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[Federal Register Volume 62, Number 30 (Thursday, February 13, 1997)]
[Rules and Regulations]
[Pages 6729-6738]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-3632]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 217 and 222

[Docket No. 960730211-7020-02; I.D. 072296B]
RIN 0648-AJ03

North Atlantic Right Whale Protection

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

ACTION: Interim final rule.

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SUMMARY: Disturbance is identified in the Final Recovery Plan for the 
Northern Right Whale (Recovery Plan) as among the principal human-
induced factors impeding recovery of the northern right whale 
(Eubalaena glacialis) (NMFS, 1991). NMFS is issuing this interim final 
rule to restrict approaches within 500 yards (460 m) of a right whale, 
whether by vessel, aircraft or other means, in an attempt to reduce the 
current level of disturbance and the potential for vessel interaction 
and injury. This rule requires right whale avoidance measures if a 
vessel or aircraft is within the 500-yard (460 m) restricted area. 
Generally, vessels are required to immediately depart from the area at 
a slow, safe speed in a direction away from the whale. Exceptions are 
provided for emergency situations, where certain authorizations are 
provided for aircraft operations (unless the aircraft is conducting 
whale watch activities), for certain right whale disentanglement/rescue 
efforts and investigations, and for a vessel restricted in its ability 
to maneuver and unable to comply with the right whale avoidance 
measures.

EFFECTIVE DATE: March 17, 1997.

FOR FURTHER INFORMATION CONTACT: Margot Bohan, NMFS/FPR, 301-713-2322; 
Doug Beach, NMFS/Northeast Regional Office, 508-281-9254; or

[[Page 6730]]

Kathy Wang, NMFS/Southeast Regional Office, 813-570-5312.

SUPPLEMENTARY INFORMATION:

Background

    The northern right whale is recognized as the world's most 
endangered large whale species. Recent mortalities off the Atlantic 
coast of the United States have caused escalating concern for the 
western North Atlantic population, especially with regard to the 
population's vulnerability to human interaction.
    The preamble to the proposed rule discussed the critically 
endangered status of the western North Atlantic population of the 
northern right whale (right whale), the distribution pattern of these 
whales near the east coast of the United States, and the existence of 
vessel and related human activities in these areas that pose a 
significant risk to right whales. In particular, where human activities 
coincide with the distribution of right whales off the coast of the 
United States, such as vessel traffic, there is the potential that 
right whales may be disturbed or have their behavior altered, 
conceivably being injured or killed as a result. (For a more complete 
discussion of these issues, see the preamble to the proposed rule (61 
FR 41116, August 7, 1996) and the environmental assessment).
    Since the proposed rule was issued, additional information has 
become available concerning the right whale population. Another right 
whale mortality was observed in early January 1997. A neonatal male 
calf was found stranded on Flagler Beach, FL; reports from a 
preliminary examination suggest that the whale may have died from birth 
trauma or other natural causes. Thus, since 1995, there have been 14, 
possibly 15, known serious injuries and/or mortalities of right whales 
off the Atlantic coast (5 due to entanglement, 3 due to ship strikes, 5 
due to unknown or natural causes, and 1 death in 1996 due to ship 
strike of a whale injured by an entanglement in 1995). Furthermore, in 
early 1996, an increase in estimated mortalities was reported for the 
years 1994 and 1995. However, a preliminary analysis of right whale 
photo-identification data suggests that total right whale mortality 
cannot be estimated reliably because of a shift in photo-identification 
sighting efforts (Hain, et al., 1996 (in draft)). Significant 
uncertainties remain concerning the current population status and 
trends. Regardless of the uncertainties, the precarious state of the 
right whale population strongly suggests that human activity, which 
results in disturbance, and, thus, an increased potential for injury 
and mortality, may have a greater impact on population growth rates and 
trends relative to other whale species.
    This rule is issued as an interim final rule to allow NMFS and 
state coastal management agencies to consider more fully whether this 
rule will affect approved Coastal Zone Management Programs in states 
along the east coast. NMFS determined that the proposed rule, if 
implemented would be consistent to the maximum extent practicable with 
federally-approved coastal zone management programs, pursuant to the 
Coastal Zone Management Act of 1972, as amended, 16 U.S.C. 1451 et 
seq., but through an oversight, the proposed rule was never sent to the 
responsible state agencies for review. NMFS has issued a similar 
determination with respect to this interim final rule and has requested 
the responsible state agencies to expedite their review.
    In addition, other agencies have objected to the issuance of any 
regulatory definition for the ``territorial sea,'' as this term is used 
under the Endangered Species Act (ESA) and associated regulations. NMFS 
is not issuing such a definition in this interim final rule in order to 
have additional time to consult with other Federal agencies; this issue 
will be resolved prior to issuing a final rule.
    The authority for the interim final regulation restricting 
approaches to right whales is pursuant to both the ESA and the Marine 
Mammal Protection Act (MMPA), as was proposed. NMFS has concluded that 
this regulation is an appropriate mechanism to carry out the purposes 
of the MMPA. Likewise, the rule is an appropriate mechanism to promote 
conservation, to implement recovery measures, and to enhance 
enforcement under the ESA. Section 11(f) of the ESA provides the 
Secretary of Commerce with broad rulemaking authority to enforce the 
provisions of the ESA. For example, given the potential that close 
approaches to right whales could harm, harass, injure or otherwise 
``take'' a right whale, this interim final rule is issued to more fully 
implement the protections established under section 9(a) of the ESA. In 
addition, NMFS is required to develop and implement recovery plans 
under section 4(f) of the ESA and the Recovery Plan notes that 
disturbance and vessel interactions should be reduced. Lastly, all 
Federal agencies have an obligation under ESA section 7(a)(1) to use 
their authorities to further the purposes of the ESA to conserve 
species.

Changes From the Proposed Rule

    On August 7, 1996, NMFS published a proposed rule to prohibit all 
approaches within 500 yards (460 m) of a right whale, whether by 
vessel, aircraft or other means. NMFS also proposed to restrict head-on 
approaches, to prohibit any vessel maneuver that would intercept a 
right whale, and to require right whale avoidance measures under 
specified circumstances. Exceptions were proposed for emergency 
situations and where certain authorizations were provided.
    This interim final rule differs from the proposed rule in several 
important respects, and modifications were made for various reasons 
discussed below. First, NMFS endeavored to simplify and clarify the 
regulatory language of the rule. Second, changes were made to enhance 
the enforceability of the rule. Third, changes were made in response to 
comments received during the 90-day comment period for the proposed 
rule. Changes to the proposed rule include the following:

Definitions

    The definition of ``right whale'' is added to the definitions 
section in 50 CFR part 217, instead of 50 CFR part 222. The substance 
and applicability of the definition is unchanged.
    The interim final rule also adds a definition for ``vessel 
restricted in her ability to maneuver'' that refers to the definition 
in Rule 3 of the Inland Navigation Rules (33 U.S.C. 2003). A similar 
definition is used in the COLREGS Rule 3 (See 33 CFR Part 81 App. A, 
Part A, Rule 3).

Head-on Approaches

    The proposed rule would have prohibited a vessel from approaching a 
right whale head-on from any distance once the right whale was observed 
or should have been observed by a vessel operator using due diligence 
and once there had been time to alter the heading of the vessel. The 
interim final rule does not include this prohibition. NMFS concluded 
that this prohibition would be very difficult to enforce and that the 
general restrictions on approaches within 500 yards (460 m) of a right 
whale should provide adequate protection. Nevertheless, while not 
required by regulation, NMFS continues to encourage vessel operators to 
avoid head-on approaches of right whales (see Right Whale Avoidance 
Guidance in the Summary of Protective Measures for details).

Interception

    The proposed rule would have prohibited a vessel from turning,

[[Page 6731]]

positioning, or maneuvering in a manner to intercept a right whale. The 
interim final rule does not contain this language but maintains the 
general requirement by prohibiting any approach ``by interception.'' 
This stylistic change reflects the fact that actions designed to 
intercept a right whale constitute a form of approach. This 
interpretation is consistent with the view currently taken by NMFS in 
implementing the approach restrictions governing humpback whales in the 
Hawaiian islands.
    At this time, NMFS is not defining the term ``interception.'' With 
this prohibition, however, NMFS intends to prohibit positioning or 
maneuvering that is calculated to bring a vessel or aircraft within 500 
yards (460 m) of a right whale.

Right Whale Avoidance Measures

    The proposed rule contained a detailed list of right whale 
avoidance measures in its regulatory requirements. Right whale 
avoidance measures were described, generally, as actions necessary to 
avoid takings prohibited under the MMPA or the ESA and actions 
necessary to comply with instructions from NMFS, the U.S. Coast Guard 
and other agencies concerning the avoidance of right whales. If a 
person, aircraft, vessel or other object were to come within 500 yards 
(460 m) of a right whale, right whale avoidance measures were to be 
followed to increase the person or object's distance from the whale. 
The proposed rule also provided specific guidance concerning how to 
increase one's distance from a right whale: (1) Sudden changes in 
operation were to be avoided unless necessary to avoid striking or 
injuring a right whale or for safe vessel or aircraft operation, (2) if 
one were already moving away from a right whale, approximately the same 
speed and direction should be maintained, (3) if one was moving toward 
a right whale, expeditious efforts should be made to reduce speed and 
to change direction away from the whale, (4) if one is approached by a 
whale, the person or object should move slowly but deliberately and 
steadily away from the whale. These requirements were not applicable 
under certain circumstances such as when a vessel was not underway or 
was restricted in its ability to maneuver.
    Though still in the interim final rule, these avoidance measures 
have been scaled back significantly. NMFS has decided that more concise 
avoidance measures will enhance enforceability and will allow the use 
of avoidance measures that are appropriate, given the unique 
circumstances of any situation that is encountered.
    Specifically, this interim final rule removes the general 
description of right whale avoidance measures as written in the 
proposed rule. NMFS has concluded that there is no need to repeat the 
statutory prohibition on taking pursuant to the ESA and MMPA. In 
addition, NMFS removed the regulatory requirement, as written in the 
proposed rule, for compliance with instructions from NMFS, the U.S. 
Coast Guard and other agencies, although that information may be 
relevant in assessing the seriousness of a violation.
    Furthermore, NMFS has excluded from this rule specific regulatory 
requirements concerning the steps to be taken to increase one's 
distance from a right whale. Instead of the detailed instructions 
provided in the proposed regulations, the interim final regulations 
simply require that, if within 500 yards (460 m) of a right whale: (1) 
Vessels that are underway must steer a course away from the right whale 
and immediately leave the area at a slow safe speed; and (2) aircraft 
must take a course away from the right whale and immediately leave the 
area at a constant airspeed.
    Notwithstanding these modifications, NMFS wishes to provide 
guidance that will assist individuals who find themselves within 500 
yards (460 m) of a right whale. To that end, NMFS is providing Right 
Whale Avoidance Guidance (see Summary of Protective Measures). This 
guidance embraces many of the avoidance measures set forth in the 
proposed rule.

General Exceptions

    Exceptions to the approach restrictions and the avoidance measures 
were listed separately from the more limited exceptions applicable only 
to the avoidance measures in the proposed regulations. This interim 
final rule groups all exceptions together. In addition, the interim 
final rule states clearly that a person claiming the benefit of any 
exception has the burden of proving that the exception is applicable.
    Aircraft. The proposed rule would have prohibited approaches by 
aircraft within 1500 feet (460 m) of a right whale, regardless of 
whether the aircraft was involved in whale watching activities. NMFS 
has substantially modified this provision in order to limit the 
restrictions to aircraft-related activities of greatest concern. As 
modified, a broad exception is provided to the approach restrictions 
and avoidance measures so that these provisions only apply to aircraft 
that are conducting whale watching activities.
    Vessels at anchor or mooring. The proposed rule included an 
exception from the requirement to undertake right whale avoidance 
measures for vessels that are not underway. The interim final rule 
maintains this requirement, but in a stylistically different manner. In 
the interim final rule, the exception is removed, but the avoidance 
measures are modified to apply only to vessels that are ``underway.'' 
As with the proposed rule, the term underway is defined to mean vessels 
not at anchor, made fast to the shore, or aground.
    Right whale investigation or rescue efforts. This interim final 
rule provides an exception to the approach prohibitions and avoidance 
measures in a situation when a person is approaching to investigate a 
right whale entanglement or injury, or to assist in the disentanglement 
or rescue of a right whale; however, permission must be received from 
NMFS or a NMFS designee prior to the approach. The proposed rule did 
not include a similar exception; this addition in the interim final 
rule is in response to several commenters' requests.
    Emergency situations. Both the proposed and interim final rules 
include an exception for emergency situations. The language of this 
exception is changed somewhat from the proposed rule. In addition, the 
recommendation within the regulatory text to contact, if possible, 
NMFS, the U.S. Coast Guard, local port authority, or local law 
enforcement officials is removed in the interim final rule, although 
such action may help establish that the exception is applicable in a 
particular situation.

Responses to Comments on the Proposed Rulemaking

    Fifteen commenters responded to the proposed rule's request for 
comments; all submissions were considered in the preparation of this 
interim final rule. Responses to comments addressing significant issues 
and requiring a reply are summarized below:
    Comment 1: Usage of the term ``disturbance'' in this rule.  One 
commenter recommended that NMFS avoid equating the disturbance of 
marine mammals with ``harassment,'' explaining that the parallel is 
purely speculative.
    Response: The 1994 amendments to the MMPA included the following 
definition:

    (18)(A) The term ``harassment'' means any act of pursuit, 
torment, or annoyance which--(i) has the potential to injure a 
marine mammal or marine mammal stock in the wild; or (ii) has the 
potential to disturb a marine mammal or marine mammal stock in the 
wild by causing the disruption of

[[Page 6732]]

behavioral patterns, including, but not limited to, migration, 
breathing, nursing, feeding or sheltering.

    Based on the best available information, NMFS has determined that, 
in general, close approaches to right whales by vessels, aircraft and 
other means have the potential to disturb or injure these animals. (For 
further information concerning disturbance, see also the response to 
Comment 2 below.) NMFS also recognizes that not every approach within 
500 yards (460 m) of a right whale necessarily results in harassment. 
Nonetheless, because of the precarious status of this species, NMFS has 
concluded that a general restriction on these types of approaches is 
justified.
    Comment 2: The size of the buffer zone. Three commenters remarked 
on the lack of sufficient data to support a 500 yard (460 m) protection 
zone and demonstrate that it is an appropriate distance to protect 
right whales from behavioral disturbance. One of these commenters cited 
ESA section 4, which requires the publication of a summary of the data 
on which a regulation is based, showing the relationship of such data 
to the proposed/final regulation. The same commenter explained that 500 
yard (460 m) zone is not correlated to the observational capabilities 
of ship operators or the operational capabilities of their vessels. 
Additional study to determine the appropriate distance was recommended. 
Implementation of other measures in conjunction with the approach 
restriction was also recommended.
    In favor of the proposed rule, a fourth commenter stated that 
although 500 yards (460 m) may be a greater distance than necessary and 
may be difficult to accurately measure, it will prevent intentional 
close approach by vessels if it is enforced. Another commenter 
explained that the 500 yard (460 m) approach prohibition makes the 
protection of right whales in Federal waters consistent with that 
provided in Massachusetts State waters, where such a prohibition 
already exists; it is an important step in providing basic protection.
    Response: NMFS has determined that a 500 yard (460 m) buffer zone 
is appropriate. The Recovery Team concluded that observers (lookouts) 
with knowledge or training should be able to distinguish right whales 
from other whale species at this distance. NMFS has determined that 
such a buffer will allow people to observe right whales (and other 
large whales if they are unable to identify the species with certainty) 
while providing a measure of protection and safety for these animals 
consistent with sound management practices. NMFS recognizes operational 
limitations, such as difficulties in establishing distances at sea in 
an enforcement action, that may reduce the actual zone of protection. 
NMFS also notes that such an approach is consistent with Massachusetts' 
regulations.
    As indicated in the preamble to the proposed rule, right whales are 
vulnerable to disturbance or injury as a result of close approaches by 
vessels or other means. Right whales are slow-moving. This limitation 
and other behavioral characteristics make this species particularly 
susceptible to close approaches by humans. Vessel traffic may subject 
whales to impacts ranging from displacing cow/calf pairs from nearshore 
waters to expending increased energy when feeding is disrupted or 
migratory paths rerouted.
    Furthermore, as indicated in the preamble to the proposed rule and 
described in more detail in the environmental assessment, turbulence 
associated with vessel traffic may indirectly affect right whales by 
breaking up the dense surface zooplankton patches in certain whale 
feeding areas. Right whale energetics are such that they are 
particularly dependent on very dense zooplankton aggregations for 
feeding. If copepods in the caloric-rich, adult developmental stages 
are not available to right whales in sufficient densities, there may be 
insufficient prey available in the remaining developmental stages 
(independent of abundance) to provide right whales with the required 
energy densities (as described by Kenney et al., 1986) to meet the 
metabolic and reproductive demands of the right whale population in the 
western North Atlantic (Kenney et al., 1986; Payne et al., 1990).
    Prey distribution and density are believed to be among the primary 
governing factors in whale distribution and density in an undisturbed 
ecosystem. The presence of vessels in or adjacent to areas occupied by 
whales may cause a change in whale behavior, such as cessation of 
feeding activity, for the duration of the human activity. Such activity 
levels may cause the whales to leave localized feeding areas 
temporarily. Repeated disturbance of the whales may result in the 
abandonment of localized feeding areas. Any loss of feeding habitat or 
interference with feeding activities may affect the ability of these 
whales to obtain the full summer ration of food necessary for 
successful reproduction and overwintering. The severity of this loss 
would depend on the level of interference with feeding activity or on 
the availability of alternative food supplies.
    While the proposed rule recognized that data and evidence of 
disturbance or behavioral changes induced by human activity or 
interactions beyond 100 yards (90 m) was limited, NMFS has considered 
the best available information on this issue. The critically endangered 
status of this species was another important consideration in 
establishing the appropriate size of the buffer zone. Finally, 
operational and practical considerations also were evaluated, such as 
the maximum distance at which a right whale could be identified, and 
difficulties in estimating distance at sea. Based on these 
considerations, NMFS has concluded that the area of protection around 
right whales should be maximized to avoid any potential for disturbance 
or behavioral changes and to reduce, if possible, the risk of 
collision; thus, a 500 yard (460 m) buffer area is appropriate.
    Comment 3: Situations where the identification of the whale species 
is uncertain. Two commenters expressed notable support for the 
implementation of species-specific protective measures. According to 
these commenters, since right whales make up such a small fraction of 
the whales sighted on whale watches, it would be an undue burden on 
industry to limit approaches to all whales because of the remote 
possibility that the whale is a right whale.
    Two other commenters expressed their support for a rule 
establishing comprehensive protection for all listed whale species, 
rather than partial protection on a species-by-species basis. They 
cited the July 22, 1996, U.S. Coast Guard Biological Opinion as a model 
of protection to follow and recommended revision to the proposed rule 
to make it a generally applicable rule that could be amended according 
to whatever species-specific information may be learned as part of the 
initiative. The rule, according to these commenters, also should 
establish the presumption that any whale not positively identified as 
another whale species must be considered a northern right whale; the 
fact that only the northern right whale is afforded a buffer zone 
presupposes that all boaters will be able to identify a northern right 
whale. One of these two commenters claimed that if NMFS denies any 
listed whales the protection of a distance rule, the operators of 
commercial whale watching vessels must be required to obtain incidental 
take permits, pursuant to section 10 of the ESA and a small take 
permit, pursuant to section 101(a)(5) of the

[[Page 6733]]

MMPA before being allowed to conduct whale watching.
    Response: NMFS recognizes that under certain circumstances 
regulations are appropriate to address specific species in a particular 
area or region. Oftentimes, differences in species and marine habitat 
merit differences in regulatory approach. This rule pertains only to 
the western North Atlantic population of northern right whales. On 
August 3, 1992, NMFS published a proposed rule of general applicability 
to protect whales, dolphins and porpoise from activities associated 
with whale watching and to establish minimum approach distances (see 57 
FR 34101). That proposal was withdrawn in 1993, in part, because it was 
viewed as being too broad in scope (see 58 FR 16519, March 29, 1993). 
At that time, NMFS began an initiative to concentrate efforts regarding 
marine mammal approach on a more species- and region-specific basis.
    NMFS recognizes that in some situations it may be difficult for a 
person to differentiate between a right whale and another species of 
large whale at a distance of 500 yards (460 m), although the Recovery 
Team indicated that persons with knowledge or training could identify 
right whales at this distance. Thus, in order to ensure compliance with 
the mandates concerning right whales in this interim final rule, a 
person is advised to avoid approaches within 500 yards (460 m) of any 
large whales that cannot be identified as to species in waters along 
the east coast of the United States, especially in right whale high-use 
areas when those whales are expected to be present.
    NMFS did not propose restrictions on approaches to any species 
except right whales. As indicated above, NMFS believes that such 
restrictions should be evaluated on a species- and region-specific 
basis, and NMFS has not completed those evaluations at this time.
    With respect to the need for an incidental take permit for 
approaches to endangered whales, NMFS notes that this interim final 
rule does not authorize any approach that would constitute a ``taking'' 
under the ESA or MMPA. Such approaches are prohibited by statute unless 
a permit or other authorization is obtained; the fact that these types 
of approaches are not prohibited explicitly in this interim final rule 
should not be interpreted as any type of authorization for the taking 
of an endangered whale. On the other hand, NMFS also recognizes that 
whether a specific approach constitutes a ``taking'' and thus would 
require an incidental take permit must be determined on a case-by-case 
basis. NMFS declines to make any determination concerning the necessity 
of such a permit in the context of this interim final rule.
    Comment 4: Applicability of rule to various approach activities. 
Three commenters recommended that a provision be added to the list of 
``Exceptions,'' whereupon, with proper notification to either NMFS and/
or the Coast Guard, a vessel would be authorized to approach to within 
less than 500 yards (460 m) for the purpose of confirming a right whale 
entanglement, reporting the nature of its distress, and/or awaiting 
help. Concern exists with regard to the potential for missing valuable 
sightings of right whale entanglements or distress because of the 500 
yard (460 m) distance restriction. One of these commenters recommended 
that the regulations include a provision or be issued with a commitment 
of funding to ensure that each right whale may be approached briefly 
for a health assessment and photo-identification.
    Response: NMFS agrees with the commenters' recommendation to 
include a provision to allow vessel approaches within less than 500 
yards (460 m) in imminent circumstances regarding the whale's health 
and well-being. The provision is in place under the list of 
``Exceptions'' (Sec. 222.32(c)) to enable close approaches to 
investigate a right whale entanglement or injury, or to assist in the 
disentanglement or rescue of a right whale, provided that permission is 
received from NMFS or a NMFS designee prior to the approach. In 
response to the comment recommending implementation of an approach 
provision for right whale health assessments and photo-identification, 
researchers may apply for a scientific research permit issued under 
subpart C (Endangered Fish or Wildlife Permits) of part 222.
    Comment 5: Deliberate versus unintentional approaches. Three 
commenters recommended that the rule's prohibitions and mandated 
evasive maneuvers should apply only to explicit actions with the 
deliberate intent of approaching a right whale. Another commenter 
stated that the rule is overly broad in scope and attempts to regulate 
many activities that do not threaten physical harm to right whales. It 
should eliminate actions that have little or no potential to cause 
serious injury or mortality, such as small vessel activities, vessels 
traveling at very slow speeds and swimmers. According to this 
commenter, the rule should limit activities only during the time 
periods and in the geographic areas where right whales are known to 
congregate and where critical habitat is established, as shown by 
scientific data. Two other commenters recommended being explicit if 
whale watching is in fact the focus of the rule; the rule should be 
revised to narrowly address these activities.
    Response: Though some activities present only a limited potential 
to disturb or injure right whales, NMFS believes that an expansive 
approach prohibition is necessary. This view is predicated upon the 
highly endangered status of the species, and the need to minimize those 
risks associated with any type of approach. Additionally, such an 
approach is easier to understand and enforce, thereby enhancing its 
overall effectiveness.
    Given this rationale, the prohibition on approach applies to both 
intentional and unintentional approaches. This restriction reflects the 
fact that both intentional and unintentional approaches create a risk 
of disturbance or injury. Additionally, this restriction is consistent 
with both the MMPA and ESA, which prohibit all takings, including those 
that are intentional, unintentional, and incidental.
    Having said this, NMFS does not wish to extend this prohibition to 
activities that clearly present little risk to right whales. For this 
reason, NMFS has modified the regulation as it applies to aircraft, 
only prohibiting approaches by aircraft conducting whale watching 
activities.
    Comment 6: Vessels restricted in their ability to maneuver in 
certain situations--Exceptions to the rule. Two commenters requested 
confirmation that the proposed rule exemption granted to vessels 
restricted in their ability to maneuver is applicable to their 
situation. Another commenter requested special consideration for 
submerged operations where a posted lookout is not possible and where 
there is limited or no ability for a submerged vessel to detect the 
presence of right whales and to execute recommended evasions or altered 
courses. A fourth commenter recommended that vessels ``in extremis,'' 
as defined by the Convention on the International Regulations for 
Preventing Collisions at Sea, 1972, be added to proposed 
Sec. 222.32(d)(2).
    Response: The interim final rule recognizes the special 
circumstances presented by a vessel restricted in its ability to 
maneuver; right whale avoidance measures are not required under such 
circumstances. Under the COLREGS Rule 3 (See 33 CFR part 81 App. A, 
Part A, Rule 3) and Rule 3 of the Inland Navigation Rules (33 U.S.C. 
2003) a vessel restricted in its ability to

[[Page 6734]]

maneuver includes, but is not limited to, a vessel engaged in dredging, 
a vessel engaged in submerged operations, a vessel engaged in launching 
or recovery of aircraft, a vessel engaged in a towing operation that 
severely restricts the towing vessel and the tow in their ability to 
deviate from their course, and various other types of vessels. NMFS 
interprets this definition to include a fishing vessel engaged in 
haulback operations and vessels in similar situations where the vessel 
is unable or severely limited in its ability to comply with right whale 
avoidance measures. To the extent that the vessel is able to maneuver 
in a situation where it is within 500 yards (460 m) of a right whale, 
it should undertake efforts to maximize its distance from and minimize 
interactions with the whale.
    In formulating this exception, NMFS recognizes the unique, and 
oftentimes limiting, circumstances facing vessels operating in the 
Atlantic and along its coastline. Unlike Hawaii, where humpback whales 
are generally found nearshore and the humpback whale approach 
restrictions largely impact recreational vessel activity, the Atlantic 
distribution of right whales is more variable and the right whale 
approach prohibitions affect a multi-use and highly trafficked water 
body.
    NMFS also acknowledges that what constitutes a proper lookout 
depends upon the prevailing conditions and circumstances and that 
submarine operations are somewhat unique. Maintaining a proper lookout 
for a submarine may include the use of sonar or other available means 
under the circumstances; NMFS also encourages communication efforts 
with submarines before the submarines enter critical habitat or areas 
of high use by right whales so that sighting information may be relayed 
to the operator. Finally, with respect to a vessel in extremis, NMFS 
has concluded that the emergency exception is applicable because of the 
serious and imminent threat to the vessel or person in such a 
situation.
    Comment 7: Appropriate speed. One commenter recommended that NMFS 
adopt a generic rule requiring vessel operators to adjust their vessel 
speed and direction when whales are observed. Another commenter 
questioned the absence of a rationale for the exclusion of speed limits 
in the proposed rule.
    Response: NMFS recognizes that it may be necessary, under certain 
circumstances, for vessels, especially large ships, to reduce speed in 
order to avoid prohibited approaches to right whales. Currently, vessel 
operators are required by COLREGS, Rule 6, to proceed at safe speed so 
that the vessel can take proper and effective action to avoid collision 
and ``be stopped within a distance appropriate to the prevailing 
circumstances and conditions'' (72 COLREGS, see 33 CFR part 81 App. A. 
Part B, Section 1, Rule 6). An identical requirement is imposed under 
the Inland Navigational Rules, 33 U.S.C. 2006. These and other 
regulations limiting vessel speed should be interpreted with a 
consideration of the risk of a close approach to a right whale.
    While vessel speed remains a concern with regard to right whale 
avoidance, NMFS also recognizes that other agencies and organizations 
may have special expertise and authority with respect to this subject 
and that specific or detailed guidance on speed may depend on the 
operational characteristics of a vessel or the circumstances under 
which it is operated. The focus of the proposed rule and this interim 
final rule is on restricting approaches within 500 yards (460 m) of a 
right whale. In that respect, this interim final rule requires that 
vessels within the restricted area immediately leave the area at a slow 
safe speed. NMFS encourages adherence to the speed regulations already 
in place, but it declines to adopt further speed restrictions in this 
interim final rule.
    Comment 8: Aircraft. One commenter stated that actions having 
little or no potential to cause serious injury or mortality, such as 
military aircraft approaches and overflights, small vessel activities, 
should be eliminated from the rule, i.e., only limit the class of 
actions that may physically harm right whales. Two additional 
commenters claim that NMFS overlooks military aircraft maneuvers, 
especially in the southeast United States while right whales are in 
calving grounds, and overlooks what type of regulations the military 
have to follow for these exercises; exceptions should be made in some 
cases. A fourth commenter remarked that the 500 yard (460 m) 
prohibition may impact aircraft takeoffs and landings in an 
unacceptable manner for safety, glide path and air traffic operations.
    Response: NMFS has reconsidered its original proposal to limit all 
aircraft to an altitude of no less than 1500 feet (460 m) above a right 
whale. As modified in the interim final rule, a broad exception is 
provided for most aircraft operations so that approach restrictions and 
avoidance measures are applicable only to aircraft conducting whale 
watching activities.
    Comment 9: Economic impacts. One commenter remarked that the 
avoidance measures may result in substantial delays to shipping and, 
thus, increase costs to the industry. According to this commenter, 
there is no evidence that NMFS has actually calculated the chances that 
a vessel would have to adhere to avoidance measures; nor has NMFS 
calculated the effect of those measures on the vessel's arrival in port 
and transportation costs. A second commenter suggested that 
transportation costs are likely to increase for commercial vessels 
based on increased transit time as a result of this regulation.
    Response: NMFS concluded that the proposed rule, if implemented, 
would not have a significant economic impact on a substantial number of 
small entities. While this rule may have a minor impact on whale 
watching activities, especially in early spring when right whales, but 
no other whale species, are likely to be in the area where these 
activities occur, the cost of delaying operations for a few weeks, with 
respect to expected revenues, is not considered significant.
    Similarly, this rule is expected to have only a minor impact on 
commercial shipping and other vessel activities. Adjustments to speed 
or a more vigilant lookout would be appropriate under current law to 
avoid the risk of taking a right whale, especially in areas where, and 
at times when, right whales are known or expected to be present. In 
light of existing law, any change in operation and any costs associated 
with these changes in operation necessitated by the implementation of 
this interim final rule are not considered significant when compared to 
expected revenues.
    Comment 10: Additional research needs--Cumulative effects. Three 
commenters recommended implementation of a research component to 
examine existing and future technologies and methods that may lead to 
the healthy coexistence of human activities and these species, e.g., 
increased surveillance of right whale movement, assessment of shipping 
traffic relative to high risk areas; determination of what distance 
disrupts feeding behavior and establishment of this distance 
restriction on feeding grounds; evaluation of deterrents including 
sonar; and, finally, a follow-up on the New England Aquarium/MIT ship 
modeling study to include (a) other vessel types, and (b) the depth 
dimension. According to one of the commenters, a distance rule should 
be based on studies of the reactions of right whales to vessel 
approaches with varying sound signatures, and the effect of vessels of 
dense plankton aggregations at or near the surface.

[[Page 6735]]

Another of the three commenters suggested that, although additional 
study was necessary to determine the appropriate right whale approach 
distance, an interim rule could be implemented in the meantime to 
prohibit commercial and recreational whale watching programs from 
focusing on right whales. Two additional commenters remarked on the 
potential for inaccuracies when making cross-species behavioral 
comparisons.
    Response: NMFS acknowledges that long-term studies in this area are 
needed. However, the absence of definitive long-term research results 
does not preclude the adoption of protective measures. The ESA 
generally requires NMFS to use the best available information in 
managing protected species. In this case, the available information 
reviewed by NMFS indicates that right whales may be disturbed by human 
activity, especially close approaches within 500 yards (460 m). NMFS 
believes there is sufficient information available to support this 
action. (See also the response to Comment 2.)
    NMFS may revise protection efforts accordingly if future research 
demonstrates that additional or different means of protection are 
needed. Other human-induced factors mentioned in the Recovery Plan that 
pose a threat to the right whales will be addressed in separate 
rulemakings or through other management initiatives.
    Additionally, immediate protective measures are appropriate since 
they represent an important step in increasing public awareness of the 
problems caused by disturbance and vessel interactions with right 
whales. Finally, these regulations will complement other initiatives, 
such as efforts to communicate information concerning the location of 
right whales to vessel operators and any initiatives that may be 
undertaken internationally, as well as efforts to undertake further 
research.
    Comment 11: Noise. Two commenters suggested that, in terms of the 
harm caused to whales by vessels, the cumulative effect (noise) of many 
vessels in a limited area is one of the most serious concerns in that 
it may cause abandonment or decrease in use of important right whale 
habitats.
    Response: NMFS recognizes that this problem warrants further study. 
While not specifically designed for this purpose, this interim final 
rule may reduce vessel noise in the vicinity of right whales by 
restricting human approaches.
    Comment 12: Enforcement/compliance. According to one commenter, the 
definition ``to approach head on'' is subjective and will be difficult 
to enforce. A vessel operator could easily argue an intention to change 
course to avoid intercepting a whale; enforcement officials could not 
easily refute this argument. This commenter also recommended that NMFS 
remove proposed Secs. 222.32(b)(4) and (5) that would have required 
vessels not to approach a right whale head-on from any distance once 
observed and identified or to cause a vessel to be turned positioned or 
maneuvered in a manner to intercept a right whale. According to the 
commenter, these restrictions are vague and are drafted to preclude 
maneuvers at any distance from a sighted right whale, which could 
impact vessel operation for miles.
    Two other commenters believe that enforcement of the regulation 
and/or prosecution for violations would be extremely difficult, given 
the somewhat subjective nature of the approach standards. To minimize 
or eliminate concerns regarding the inability to enforce conservation 
measures and to conduct measures of environmental protection or 
navigational aid, especially in cases of emergency, one of these 
commenters suggested including a third exception under 
Sec. 222.32(d)(3): ``Coast Guard law enforcement, marine environmental 
protection and aid to navigation operations.''
    Another commenter requested that NMFS outline what enforcement it 
proposes and how the results of the rule will be reported to the 
public. The same commenter requested clarification of the second 
paragraph in the first column on page 41119 of the proposed rule (61 FR 
41119, August 7, 1996), in that it currently implies that violation of 
this rule would not be considered an incidental take. This commenter 
also wanted to know how NMFS will address/enforce right whale 
protection at night, in rain, fog or high sea states to ensure whales 
are not disturbed.
    A final commenter remarked that the prohibitions and avoidance 
measures in the proposed rule may result in vessel movement that would 
conflict with USCG Traffic Separation Schemes for the Atl. East Coast, 
33 CFR part 167 et seq. and Rule 10 of the International Regs for 
Preventing Collisions at sea 33 foll. Sec. 1602, Rule 10, rules that 
provide safe access routes for vessels proceeding to and from U.S. 
ports.
    Response: NMFS has reconsidered its original proposal to prohibit 
head-on approaches to right whales. NMFS recognizes that this provision 
would be difficult to interpret and enforce; that provision is not 
included in this interim final rule. On the other hand, while not 
required by regulation, NMFS continues to encourage vessel operators to 
avoid head-on approaches of right whales.
    While NMFS has concluded that, in general, approaches within 500 
yards (460 m) of right whales have the potential to disturb or injure 
these animals, NMFS also recognizes that whether an incidental take 
occurs in any specific approach may depend on the circumstances of that 
approach. NMFS also recognizes that circumstances such as rain, fog, 
sea state, and visibility may affect the ability of an operator to 
avoid close approaches to right whales. Extra caution is urged in these 
situations. In addition, NMFS is working with other agencies and 
organizations to enhance vessel traffic coordination. (See response to 
Comment 15.)
    NMFS disagrees with claims that these approach and avoidance 
requirements are unenforceable. The approach prohibition largely 
mirrors a similar restriction enacted in 1987 for the protection of 
humpback whales in the Hawaiian Islands. Past experience in Hawaii 
suggests that this prohibition is easy to understand and enforce. 
Indeed, NOAA has successfully prosecuted many cases involving vessels 
that have violated this approach prohibition.
    Additionally, from an enforcement perspective, this approach 
prohibition ensures more effective prosecution of inappropriate 
activities. The prohibition establishes a clear, objective, distance 
requirement. This requirement is easily understood by the vast majority 
of individuals who wish to legally observe right whales, and is far 
easier to prosecute in the event of a violation.
    NMFS agrees with comments that stress the need for enforceable 
requirements. To that end, NMFS has made significant modifications from 
the proposed rule, especially to those provisions addressing right 
whale avoidance measures. NMFS has deleted provisions addressing head-
on approaches and many of the speed and directional provisions 
applicable to aircraft and vessels within 500 yards (460 m) of a right 
whale. These changes are designed to simplify the requirements and 
enhance enforceability.
    NMFS does not believe that these requirements are unduly 
burdensome. The rule provides an exception in instances where 
compliance would create an imminent and serious threat to any person, 
vessel, or aircraft. NMFS also recognizes that law enforcement 
activities are exempt from prohibitions such as this rule under 
traditional common law theories. Additionally, NMFS has the authority 
to consider

[[Page 6736]]

mitigating factors, such as the difficulty of compliance, in 
determining the appropriate enforcement response.
    Finally, NMFS does not anticipate conflicts between this rule and 
regulations governing traffic separation schemes. Navigation rules 
provide for special exceptions in cases where departure from those 
rules is necessary to avoid immediate danger and, with respect to 
compliance with traffic separation schemes, in emergency circumstances. 
(See Rule 2 and Rule 10 of the COLREGS (See 33 CFR Part 81 App. A, Part 
A, Rule 2 and Part B, Section 1, Rule 10) and Rule 2 and 10 of the 
Inland Navigation Rules (33 U.S.C. 2002 and 2010)). In addition, this 
interim final rule provides for an emergency exception; NMFS recognizes 
that the applicability of this or other exceptions in this interim 
final rule must be evaluated in the context of the circumstances.
    Comment 13: Reports of right whale sightings. One commenter notes 
that, although the proposed rule implies that vessel personnel are 
expected to report right whale sightings and locations, it contains no 
legal requirement for personnel to report.
    Response: NMFS concurs. If a right whale is positively identified 
and observed, lookouts and/or vessel operators are encouraged to report 
right whale sightings and locations to the U.S. Coast Guard or other 
appropriate port authority, and request assistance if appropriate. 
Knowledge of the location of right whales may help prevent potential 
collisions and allow vessels to implement appropriate whale avoidance 
measures. Refer to the Right Whale Avoidance Guidance (see Summary of 
Protective Measures) for further information.
    Comment 14: Authority citations. One commenter recommends that NMFS 
delete its reference to the Fish and Wildlife Act of 1956 in the 
proposed rule.
    Response: The authority section for 50 CFR part 217, (this part is 
entitled ``General Provisions'' and includes a variety of definitions), 
currently includes the reference to the Fish and Wildlife Coordination 
Act. The approach regulations (except for the definitions) are issued 
under 50 CFR part 222, subpart D. The authority citation clearly 
indicates that those regulations are issued under the authority of the 
ESA and MMPA. The Fish and Wildlife Coordination is not cited as 
authority for that part or subpart of the CFR.
    Comment 15: Vessel traffic coordination. Six commenters expressed 
support for the coordination of whale alert teams in the southeast and 
northeast Atlantic set up to note whale locations and report them to 
the appropriate authorities, who then relay that information to ships 
in close range.
    Response: NMFS concurs and notes that these efforts will increase 
public awareness and the effectiveness of this interim final rule. In 
coastal waters of the southeastern United States, an awareness and 
mitigation program, involving ten agencies and organizations, was begun 
in 1992, and has been upgraded and expanded annually. This effort 
includes an established Early Warning System network designed to 
prevent whale/vessel collisions on the calving grounds. NMFS also 
recently established an early warning network to alert mariners to the 
location of right whales off Massachusetts. This collaborated effort of 
the U.S. Coast Guard, the State of Massachusetts, the Center for 
Coastal Studies, the Stellwagen Bank National Marine Sanctuary and NMFS 
will make sighting information available through marine radio 
announcements, automated fax, and the Internet with the intention to 
reduce the chances of collisions between vessels and whales in New 
England waters.
    Comment 16: Jurisdictional applicability. One commenter recommended 
clarification of the rule to indicate its applicability only to U.S. 
citizens and U.S.-flagged vessels, in order to be consistent with 
international law.
    Response: Clearly this interim final rule applies to U.S. citizens 
and U.S.-flagged vessels. The prohibitions in the ESA generally apply 
to all persons subject to the jurisdiction of the United States, which 
includes foreign nationals and vessels in appropriate cases. With 
certain exceptions, the MMPA also prohibits any person, vessel or 
conveyance subject to the jurisdiction of the United States from taking 
a marine mammal on the high seas; any person, vessel or conveyance is 
prohibited from taking a marine mammal within the U.S. territorial sea 
or the exclusive economic zone (EEZ), except as expressly provided for 
by an international treaty, convention or agreement or associated 
implementing statute. NMFS disagrees that the applicability of the 
final rule to foreign vessels would necessarily conflict with 
international law. U.S. jurisdictional authority over vessels other 
than U.S.-flagged vessels depends upon the circumstances of each 
particular case. In all cases, however, the United States intends to 
enforce this rule consistently with international law, including 
customary international law as reflected in the 1982 United Nations 
Convention on the Law of the Sea.
    Comment 17: Territorial Sea. One commenter questioned the necessity 
of defining ``territorial sea'' for the proposed and final rules. In 
issuing the proposed rule, NMFS had set forth its view that the 
territorial sea jurisdiction under the ESA encompassed the area within 
12 nautical miles (nm) (22.2 kilometers (km)) of the baseline. This 
commenter disagrees with NMFS defining the extent of the U.S. 
territorial sea as 12 nm (22.2 km) rather than 3 nm (5.6 km) seaward of 
the baseline on the grounds that Presidential Proclamation 5928 
extended the U.S. territorial sea to 12 nm (22.2 km) for international 
but not for domestic, legal purposes. Also according to this commenter, 
the extent to which the term is being revised for the purposes of 50 
CFR parts 216 to 227 is outside the scope of the rule and does not 
sufficiently provide for public notice and opportunity for comment.
    Response: NMFS disagrees that the definition of ``territorial 
sea,'' as presented in the proposed rule, is outside the scope of this 
rulemaking. NMFS also notes that to the extent that the definition 
would announce an interpretation of the ESA, there is no need for 
advance public notice or opportunity to comment. Finally, NMFS does not 
agree with the commenter's interpretation of the jurisdictional scope 
of the ESA and the effect of the Presidential Proclamation on that 
scope. Nonetheless, NMFS has decided not to issue a regulatory 
definition of the ``territorial sea'' in this interim final rule in 
order to have additional time to consult with other Federal agencies; 
this issue will be resolved prior to issuing a final rule.
    Again, NMFS emphasizes that the restriction on approaches to right 
whales is promulgated under the authority of both the ESA and the MMPA. 
The MMPA defines ``waters under the jurisdiction of the United States'' 
to include both the territorial sea and the EEZ which extends 200 nm 
(370 km) beyond the baseline from which the territorial sea is 
measured. The ESA does not refer to the EEZ although persons subject to 
U.S. jurisdiction are prohibited from taking endangered species, both 
within the territorial sea and upon the high seas.

Summary of Protective Measures

    There is good reason to believe that if the full range of human 
impacts specified by the Recovery Team were reduced, the chance for 
species recovery would be maximized. This rule should be considered an 
important step towards that goal.

[[Page 6737]]

Description of the Interim Final Rule

    In order to minimize the risk that human activities will disturb or 
cause other behavioral changes in right whales and to reduce the risk 
of vessel collisions and other interactions, this interim final rule is 
established: (1) To prohibit approach (including by interception) 
within 500 yards (460 m) of a right whale whether by vessel, aircraft 
or other means; and (2) to require adherence to right whale avoidance 
measures if a vessel or aircraft is within this restricted area.
    Right whale avoidance measures are those actions necessary to be 
taken within 500 yards (460 m) of a right whale, as follows: (1) 
Vessels must steer a course away from the right whale and immediately 
leave the area at a slow constant speed (See Right Whale Avoidance 
Guidance for supplementary instruction); and (2) aircraft must take a 
course away from the right whale and immediately leave the area at a 
constant airspeed.
    Exceptions to the interim final rule include: (1) Approaches to 
right whales that have been authorized by a NMFS permit (under subpart 
C (Endangered Fish or Wildlife Permits) or similar authorization; (2) 
situations of imminent and serious threat to the safety or life of a 
person, vessel or aircraft; (3) approaches made for the purpose of 
investigating a right whale entanglement or assisting in a right whale 
rescue or disentanglement, provided that prior permission is received 
from NMFS or a NMFS-designee; (4) aircraft operations, unless that 
aircraft is conducting whale watch activities; and (5) a vessel or 
aircraft restricted in its ability to maneuver and unable to comply 
with the right whale avoidance measures. Any person, who claims the 
benefit of any of the above exceptions has the burden to prove that the 
exception is applicable.

Right Whale Avoidance Guidance

    As stated earlier in this preamble, NMFS wishes to provide 
guidance, separate and apart from the specific approach prohibitions 
and avoidance measures found in the regulations. This guidance is 
offered to assist individuals who find themselves in the vicinity of a 
right whale, with the aim of minimizing the possibility of interaction 
and the level of disturbance associated with any interaction. The 
guidelines are advisory only, and NMFS encourages individuals to follow 
them to the extent that doing so is consistent with the controlling, 
regulatory approach restrictions and avoidance measures.
    Vessel lookout. Vessel operators are encouraged to maintain a 
proper lookout for right whales, especially when right whales are known 
to frequent an area. If a right whale is observed, increased vigilance 
is recommended, since other right whales also may be present in the 
area. Such vigilance is consistent with Rule 5 of the COLREGS (See 33 
CFR Part 81 App. A, Part B, Section 1, Rule 5) and Rule 5 of the Inland 
Navigation Rules (33 U.S.C. 2005). Such vigilance may prevent 
inadvertent approaches as well as enable vessels to take all necessary 
avoidance measures.
    If a right whale is positively identified and observed near a port, 
in a channel, in an established shipping lane, or in other areas with a 
high concentration of shipping activity, a vessel operator should 
report the sighting to the U. S. Coast Guard or other appropriate port 
authority, and request assistance if appropriate. Likewise, where the 
presence of a right whale would inhibit the entry of a large ship into 
a port or otherwise interfere with vessel operations, a vessel operator 
is encouraged to contact the U.S. Coast Guard or port authority for 
assistance or instruction.
    Vessel speed. Vessel operators also are encouraged to proceed at 
prudent speed when transiting waters frequented by right whales. 
Prudence may require transit at a reduced speed in order to avoid 
approaching within 500 yards (460 m) of a right whale, or to enable 
vessels to follow any necessary avoidance measures. Such prudence is 
consistent with Rule 6 of the COLREGS and Rule 6 of the Inland 
Navigation Rules, which require vessels to proceed at a safe speed, so 
that the vessel can take proper and effective action to avoid collision 
and be stopped within a distance appropriate to the prevailing 
circumstances and conditions.
    Sudden changes in operation. In order to minimize the potential for 
disturbance to a right whale, changes in vessel speed and direction 
should be gradual. To that end, rapid acceleration, use of bow 
thrusters, and sudden changes in propeller pitch are discouraged.
    Head-on approaches. In order to minimize the risk of an unlawful 
approach, NMFS encourages vessel operators to avoid approaching a right 
whale head-on. Once a right whale is sighted, vessel operators should 
alter course to ensure that an approach within 500 yards (460 m) is 
avoided.

Classification

    The Assistant General Counsel for Legislation and Regulation of the 
Department of Commerce certified to the Chief Counsel for Advocacy of 
the Small Business Administration when this rule was proposed that this 
rule would not have a significant economic impact on a substantial 
number of small entities. NMFS received two comments, addressed above, 
concerning the economic impact of this rule. These comments did not 
cause the Assistant General Counsel to change his determination 
regarding the certification. Furthermore, the changes made from the 
proposed rule to the interim final rule do not affect the reasons for 
the certification. As a result, no regulatory flexibility analysis was 
prepared.
    This interim final rule has been determined to be not significant 
for purposes of E.O. 12866.
    This interim final rule does not contain a collection-of-
information requirement, subject to the Paperwork Reduction Act.

List of Subjects

50 CFR Part 217

    Endangered and threatened species, Exports, Fish, Imports, Marine 
mammals, Transportation.

50 CFR Part 222

    Administrative practice and procedure, Endangered and threatened 
species, Exports, Imports, Reporting and recordkeeping requirements, 
Transportation.

    Dated: February 7, 1997.
Rolland A. Schmitten,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

    For the reasons set out in the preamble, 50 CFR part 217 and part 
222 are amended as follows:

PART 217--GENERAL PROVISIONS

    1. The authority citation for part 217 is revised to read as 
follows:

    Authority: 16 U.S.C. 742a et seq., 1361 et seq., and 1531-1544, 
unless otherwise noted.

    2. In Sec. 217.12, the definitions of ``Right whale,'' 
``Underway,'' ``Vessel,'' and ``Vessel restricted in her ability to 
maneuver'' are added in alphabetical order to read as follows:

Sec. 217.12   Definitions.

* * * * *
    Right whale, as used in subpart D of this part, means any whale 
that is a member of the western North Atlantic population of the 
northern right whale species (Eubalaena glacialis).
* * * * *

[[Page 6738]]

    Underway, with respect to a vessel, means that the vessel is not at 
anchor, or made fast to the shore, or aground.
* * * * *
    Vessel includes every description of watercraft, including 
nondisplacement craft and seaplanes, used or capable of being used as a 
means of transportation on water.
    Vessel restricted in her ability to maneuver has the meaning 
specified for this term at 33 U.S.C. 2003(g).
* * * * *

PART 222--ENDANGERED FISH OR WILDLIFE

    3. The authority citation for part 222 is revised to read as 
follows:

    Authority: 16 U.S.C. 1531 et seq.; subpart D also issued under 
16 U.S.C. 1361 et seq.

    4. Section 222.32 is added to subpart D to read as follows:

Sec. 222.32   Approaching North Atlantic right whales.

    (a) Prohibitions. Except as provided under paragraph (c) of this 
section, it is unlawful for any person subject to the jurisdiction of 
the United States to commit, attempt to commit, to solicit another to 
commit, or cause to be committed any of the following acts:
    (1) Approach (including by interception) within 500 yards (460 m) 
of a right whale by vessel, aircraft, or any other means;
    (2) Fail to undertake required right whale avoidance measures 
specified under paragraph (b) of this section.
    (b) Right whale avoidance measures. Except as provided under 
paragraph (c) of this section, the following avoidance measures must be 
taken if within 500 yards (460 m) of a right whale:
    (1) If underway, a vessel must steer a course away from the right 
whale and immediately leave the area at a slow safe speed;
    (2) An aircraft must take a course away from the right whale and 
immediately leave the area at a constant airspeed.
    (c) Exceptions. The following exceptions apply to this section, but 
any person who claims the applicability of an exception has the burden 
of proving that the exception is applicable:
    (1) Paragraphs (a) and (b) of this section do not apply if a right 
whale approach is authorized by NMFS through a permit issued under 
subpart C (Endangered Fish or Wildlife Permits) of this part or through 
a similar authorization.
    (2) Paragraphs (a) and (b) of this section do not apply where 
compliance would create an imminent and serious threat to a person, 
vessel, or aircraft.
    (3) Paragraphs (a) and (b) of this section do not apply when 
approaching to investigate a right whale entanglement or injury, or to 
assist in the disentanglement or rescue of a right whale, provided that 
permission is received from NMFS or a NMFS designee prior to the 
approach.
    (4) Paragraphs (a) and (b) of this section do not apply to an 
aircraft unless the aircraft is conducting whale watch activities or is 
being operated for that purpose.
    (5) Paragraph (b) of this section does not apply to the extent that 
a vessel is restricted in her ability to maneuver, and because of the 
restriction, cannot comply with paragraph (b) of this section.

[FR Doc. 97-3632 Filed 2-10-97; 3:49 pm]
BILLING CODE 3510-22-P
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