Federal Register / Vol. 62, No. 30 / Thursday, February 13, 1997 / Rules and Regulations 6729

for judicial review may be filed, and

shall not postpone the effectiveness of

such rule or action. This action may not

be challenged later in proceedings to

enforce its requirements. (See section

307(b)(2) of the CAA, 42 U.S.C.

7607(b)(2).)

Under 5 U.S.C. 801(a)(1)(A) added by

the Small Business Regulatory

Enforcement Fairness Act of 1996, EPA

submitted a report containing this rule

and other required information to the

U.S. Senate, the U.S. House of

Representatives and the Comptroller

General of the General Accounting

Office prior to publication of the rule in

today’s Federal Register. This rule is

not a ‘‘major rule’’ as defined by 5

U.S.C. 804(2).

List of Subjects in 40 CFR Part 58

Environmental protection, Air

pollution control, Intergovernmental

relations.

Dated: January 21, 1997.

A. Stanley Meiburg,

Acting Regional Administrator.

Part 58 of chapter 1, title 40 of the

Code of Federal Regulations is amended

as follows.

PART 58—[AMENDED]

1. The authority citation for part 58 is

revised to read as follows:

Authority: 42 U.S.C. 7410, 7601(a), 7613,

7619.

Appendix D—[Amended]

2. In Appendix D, the table in section

2.5 is amended by revising the entries

for Alabama, Georgia, and Mississippi to

read as follows:

Appendix D—Network Design for

State and Local Air Stations (SLAMS),

National Air Monitoring Stations

(NAMS), and Photochemical

Assessment Monitoring Stations

(PAMS).

* * * * *

2.5 * * *

OZONE MONITORING SEASON BY

STATE

State Begin

month

End

month

Alabama ....................... Apr ......... Oct.

* * * * *

Georgia ........................ Apr ......... Oct.

* * * * *

Mississippi ................... Apr ......... Oct.

* * * * *

[FR Doc. 97–3520 Filed 2–12–97; 8:45 am]

BILLING CODE 6560–50–P

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 20

RIN 1018-AD69

Migratory Bird Hunting; Late Seasons

and Bag and Possession Limits for

Certain Migratory Game Birds;

Supplemental

AGENCY: Fish and Wildlife Service,

Interior.

ACTION: Final Rule.

SUMMARY: The Fish and Wildlife Service

(hereinafter Service) is supplementing

the rule prescribing the late open

season, hunting hours, hunting areas,

and daily bag and possession limits for

general waterfowl seasons in South

Dakota that appeared in the Federal

Register on September 27, 1996 (61 FR

50738).

DATE: Effective on February 13, 1997.

FOR FURTHER INFORMATION CONTACT: Paul

R. Schmidt, Chief, Office of Migratory

Bird Management, U.S. Fish and

Wildlife Service, Department of the

Interior, ms 634—ARLSQ, 1849 C Street,

NW., Washington, DC 20240, (703) 358–

1714.

SUPPLEMENTARY INFORMATION: In the

September 27, 1996, Federal Register

(61 FR 50738), the Service published a

final rule prescribing the late open

season, hunting hours, hunting areas,

and daily bag and possession limits for

general waterfowl seasons and certain

other migratory bird seasons in the

conterminous United States. Public

comment was received on the proposed

rules for the seasons and limits

contemplated herein. These comments

were addressed in the Federal Registers

dated August 29, 1996, (61 FR 45836)

and September 26, 1996 (61 FR 50662).

This supplement involves no change in

substance in the contents of the prior

proposed and final rules. In the case of

South Dakota, the State has elected to

select the remaining allowable hunt

days permitted under the existing

frameworks for snow geese.

Dated: February 3, 1997

George T. Frampton, Jr.

Assistant Secretary for Fish and Wildlife and

Parks.

PART 20—[AMENDED]

For the reasons set out in the

preamble, title 50, chapter I, subchapter

B, Part 20, subpart K is amended as

follows:

1. The authority citation for Part 20

continues to read as follows:

AUTHORITY: 16 U.S.C. 703–712; and 16

U.S.C. 742 a–j.

§ 20.105 [Amended]

2. In Section 20.105, paragraph (e) is

amended by revising the Season Dates

for South Dakota, subheading Light

Geese, to read ‘‘Sept. 28–Dec. 22 & Feb.

18–Mar. 10.’

[FR Doc. 97–3657 Filed 2–12–97; 8:45 am]

BILLING CODE 4310–55–F

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.

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
6730 Federal Register / Vol. 62, No. 30 / Thursday, February 13, 1997 / Rules and Regulations

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 photoidentification 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,
Federal Register / Vol. 62, No. 30 / Thursday, February 13, 1997 / Rules and Regulations 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
6732 Federal Register / Vol. 62, No. 30 / Thursday, February 13, 1997 / Rules and Regulations

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 slowmoving. 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 speciesspecific 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
Federal Register / Vol. 62, No. 30 / Thursday, February 13, 1997 / Rules and Regulations 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 regionspecific 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 caseby-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 wellbeing. The provision is in place under

the list of ‘‘Exceptions’’ (§ 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 photoidentification, 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 § 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
6734 Federal Register / Vol. 62, No. 30 / Thursday, February 13, 1997 / Rules and Regulations

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 followup 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.
Federal Register / Vol. 62, No. 30 / Thursday, February 13, 1997 / Rules and Regulations 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 crossspecies 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 §§ 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 § 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. § 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
6736 Federal Register / Vol. 62, No. 30 / Thursday, February 13, 1997 / Rules and Regulations

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.
Federal Register / Vol. 62, No. 30 / Thursday, February 13, 1997 / Rules and Regulations 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 § 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:

§ 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).

* * * * *
6738 Federal Register / Vol. 62, No. 30 / Thursday, February 13, 1997 / Rules and Regulations

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:

§ 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