[Federal Register Volume 80, Number 34 (Friday, February 20, 2015)]
[Proposed Rules]
[Pages 9314-9345]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-03389]



[[Page 9313]]

Vol. 80

Friday,

No. 34

February 20, 2015

Part II





 Department of Commerce





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 National Oceanic and Atmospheric Administration





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50 CFR Part 226





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

Federal Register / Vol. 80 , No. 34 / Friday, February 20, 2015 / 
Proposed Rules

[[Page 9314]]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 226

[Docket No. 100217099-4774-02]
RIN 0648-AY54


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

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

ACTION: Proposed rule; request for comments.

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SUMMARY: We, the NMFS, propose to replace the critical habitat for 
right whales in the North Atlantic with two new areas. The areas under 
consideration as critical habitat contain approximately 29,945 nm\2\ of 
marine habitat in the Gulf of Maine and Georges Bank region (Unit 1) 
and off the Southeast U.S. coast (Unit 2). We have considered positive 
and negative economic, national security, and other relevant impacts of 
the proposed critical habitat. We do not propose to exclude any 
particular area from the proposed critical habitat.
    We are soliciting comments from the public on all aspects of the 
proposal, including our identification and consideration of impacts of 
the proposed action. A draft Biological Source Document provides the 
basis for our identification of the physical and biological features 
essential to the conservation of the species that may require special 
management considerations or protection. A draft report was also 
prepared pursuant to section 4(b)(2) of the Endangered Species Act 
(ESA) in support of this proposal. Both supporting documents are 
available for public review and comment.

DATES: Comments on this proposal must be received by April 21, 2015.

ADDRESSES: You may submit comments, identified by the NOAA-NMFS-2014-
0085, by any of the following methods:
    <bullet> Electronic Submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2014-0085 click the ``Comment Now'' icon, 
complete the required fields, and enter or attach your comments.
    <bullet> Mail: Assistant Regional Administrator, Protected 
Resources Division, NMFS, Greater Atlantic Regional Office, 55 Great 
Republic Drive, Gloucester, MA 01930.
    Instructions: You must submit comments by one of the above methods 
to ensure that we receive, document, and consider them. Comments sent 
by any other method, to any other address or individual, or received 
after the end of the comment period, may not be considered. All 
comments received are a part of the public record and will generally be 
posted to http://www.regulations.gov without change. All Personal 
Identifying Information (for example, name, address, etc.) voluntarily 
submitted by the commenter may be publicly accessible. Do not submit 
Confidential Business Information or otherwise sensitive or protected 
information.
    NMFS will accept anonymous comments (enter ``N/A'' in the required 
fields if you wish to remain anonymous).

FOR FURTHER INFORMATION CONTACT: Mark Minton, NMFS, Greater Atlantic 
Regional Fisheries Office (GARFO), 978-282-8484, <a href="/cdn-cgi/l/email-protection#2a674b5841046743445e45446a44454b4b044d455c"><span class="__cf_email__" data-cfemail="5f123e2d34711236312b30311f31303e3e71383029">[email protected]</span></a>; 
Barb Zoodsma, NMFS, Southeast Regional Office, 904-415-3960, 
<a href="/cdn-cgi/l/email-protection#14567566763a4e7b7b70677975547a7b75753a737b62"><span class="__cf_email__" data-cfemail="a5e7c4d7c78bffcacac1d6c8c4e5cbcac4c48bc2cad3">[email protected]</span></a>; Lisa Manning, NMFS, Office of Protected 
Resources, 301-427-8466, <a href="/cdn-cgi/l/email-protection#91ddf8e2f0bfdcf0fffff8fff6d1fffef0f0bff6fee7"><span class="__cf_email__" data-cfemail="5915302a38771438373730373e1937363838773e362f">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:
    The Draft Biological Source Document (NMFS 2014a) and Draft ESA 
Section 4(b)(2) Report (NMFS 2014b) prepared in support of this 
proposal for critical habitat for the North Atlantic right whale are 
available on our Web site at www.greateratlantic.fisheries.noaa.gov, on 
the Federal eRulemaking Web site at http://www.regulations.gov, or upon 
request (see ADDRESSES).

Background

    In 1970, right whales, Eubalaena spp. were listed as endangered (35 
FR 18319; December 2, 1970). At that time, we considered the northern 
right whale species (Eubalaena glacialis) to consist of two 
populations; one occurring in the North Atlantic Ocean and the other in 
the North Pacific Ocean. In 1994, we designated critical habitat for 
the northern right whale population in the North Atlantic Ocean (59 FR 
28805; June 3, 1994). This critical habitat designation includes 
portions of Cape Cod Bay and Stellwagen Bank, the Great South Channel 
(each off the coast of Massachusetts), and waters adjacent to the 
coasts of Georgia and the east coast of Florida. These areas were 
determined to provide critical feeding, nursery, and calving habitat 
for the North Atlantic population of northern right whales. This 
critical habitat was revised in 2006 to include two foraging areas in 
the North Pacific Ocean--one in the Bering Sea and one in the Gulf of 
Alaska (71 FR 38277; July 6, 2006).
    In 2006, we published a comprehensive right whale status review, 
which concluded that recent genetic data provided unequivocal support 
to distinguish three right whale lineages as separate phylogenetic 
species (Rosenbaum et al. 2000): (1) The North Atlantic right whale 
(Eubalaena glacialis) ranging in the North Atlantic Ocean; (2) The 
North Pacific right whale (Eubalaena japonica), ranging in the North 
Pacific Ocean; and (3) The southern right whale (Eubalaena australis), 
historically ranging throughout the southern hemisphere's oceans. Based 
on these findings, we published proposed and final determinations 
listing right whales in the North Atlantic, North Pacific, and southern 
hemisphere as separate endangered species under the ESA (71 FR 77704, 
December 27, 2006; 73 FR 12024, March 6, 2008). In April 2008, a final 
critical habitat designation was published for the North Pacific right 
whale (73 FR 19000, April 8, 2008).
    On October 1, 2009, NMFS received a petition to revise the 1994 
critical habitat designation for right whales in the North Atlantic. In 
response, pursuant to section 4(b)(3)(D), NMFS published a combined 90-
day finding and 12-month determination on October 6, 2010, that the 
petition presented substantial scientific information indicating that 
the requested revision may be warranted, and that we intended to issue 
a proposed rule to revise critical habitat for the North Atlantic right 
whale (75 FR 61690). As noted in that finding, the biological basis and 
analysis for the 1994 critical habitat designation were based on the 
North Atlantic population of right whales, and we consider that 
designation to continue to apply to North Atlantic right whales after 
they were subsequently listed as a separate species in 2008. At this 
time, NMFS is proposing to replace the 1994 critical habitat 
designation for the population of right whales in the North Atlantic 
Ocean with two new areas of critical habitat for the North Atlantic 
right whale.

North Atlantic Right Whale Natural History and Status

    The following discussion of the life history and reproductive 
biology and population status of North Atlantic right whales is based 
on the best scientific data available, including the North Atlantic 
right whale Status Review Report (NMFS 2006) and the Draft

[[Page 9315]]

Biological Source Document (NMFS 2014a).
    The North Atlantic right whale (Eubalaena glacialis) is a member of 
the family Balaenidae and is closely related to the right whale species 
that inhabit the North Pacific Ocean (Eubalaena japonica) and the 
Southern hemisphere (Eubalaena australis). Right whales are large 
baleen whales that grow to lengths and weights exceeding 15 meters and 
70 tons, respectively. Females are typically larger than males. The 
distinguishing features of right whales include a stocky body, 
generally black coloration (although some individuals have white 
patches on their undersides), lack of a dorsal fin, large head (about 
\1/4\ of the body length), strongly bowed margin of the lower lip, and 
hard white patches of callosities on the head region. Two rows of long 
(up to approximately eight feet in length) baleen plates hang from the 
upper jaw with approximately 225 plates on each side. The tail is 
broad, deeply notched, and all black with smooth trailing edge. Right 
whales attain sexual maturity at an average age of 8-10 years, and 
females produce a single calf at intervals of 3 to 5 years (Kraus et 
al. 2001). Their life expectancy is unclear, but individuals have been 
known to reach 70 years of age (Hamilton et al. 1998a, Kenney 2002).
    Historically, right whale species occurred in all the world's 
oceans from temperate to subpolar latitudes. They primarily occur in 
coastal or shelf waters, although movements over deep waters are known 
to occur. Right whales are generally migratory, with at least a portion 
of the population moving between summer feeding grounds in temperate or 
high latitudes and winter calving areas in warmer waters, though during 
winter the whereabouts of a portion of the population remain unknown 
(Waring et al. 2013). Right whale populations were severely depleted by 
historic commercial whaling.
    The distribution of North Atlantic right whales in the western 
North Atlantic Ocean ranges primarily from calving grounds in coastal 
waters of the southeastern United States to feeding grounds in New 
England waters and the Canadian Bay of Fundy, Scotian Shelf, and Gulf 
of St. Lawrence. The minimum number of right whales in the western 
North Atlantic Ocean is estimated to be at least 444 individuals, based 
on a census of individual whales identified using photo-identification 
techniques (Waring et al. 2013). Due to the past depletion from which 
they have not recovered, the continued anthropogenic threats to the 
species, and the whale's life history, the North Atlantic right whale 
is in danger of extinction throughout its range.
    Waring et al. (2013) examined the minimum number alive population 
index calculated from the individual sightings database, as it existed 
on 21 October 2011, for the years 1990-2009, and found the data suggest 
a positive and slowly accelerating trend in population size. These data 
reveal a significant positive trend in the number of catalogued whales 
alive during this period, but with significant interannual variation 
due to apparent losses exceeding gains during 1998-1999. These data 
reveal a significant increase in the number of catalogued whales with a 
geometric mean growth rate for the period of 2.6% (Waring et al. 2013).

Critical Habitat Identification and Designation

    Critical habitat is defined by section 3 of the ESA as (i) the 
specific areas within the geographical area occupied by the species, at 
the time it is listed, on which are found those physical or biological 
features (I) essential to the conservation of the species and (II) 
which may require special management considerations or protection; and 
(ii) specific areas outside the geographical area occupied by the 
species at the time it is listed, upon a determination by the Secretary 
that such areas are essential for the conservation of the species. This 
definition provides a step-wise approach to identifying areas that may 
be designated as critical habitat for North Atlantic right whales.

Geographical Areas Occupied by the Species

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

Physical or Biological Features Essential for Conservation

    As noted previously, NMFS produced a Draft Biological Source 
Document (NMFS 2014a) that discusses our application of the ESA's 
definition of critical habitat for right whales in detail. The 
following discussion is derived from that document.
    Within the geographical area occupied, critical habitat consists of 
specific areas on which are found those physical or biological features 
essential to the conservation of the species (hereafter also referred 
to as ``essential features'') and that may require special management 
considerations or protection. Section 3 of the ESA (16 U.S.C. 1532(3)) 
defines the terms ``conserve,'' ``conserving,'' and ``conservation'' in 
part to mean: ``To use and the use of all methods and procedures which 
are necessary to bring any endangered species or threatened species to 
the point at which the measures provided pursuant to this chapter are 
no longer necessary.'' Further, our regulations at 50 CFR 424.12(b) for 
designating critical habitat state that physical and biological 
features that are essential to the conservation of a given species and 
that may require special management considerations or protection may 
include: (1) Space for individual and population growth, and for normal

[[Page 9316]]

behavior; (2) food, water, air, light, minerals, or other nutritional 
or physiological requirements; (3) cover or shelter; (4) sites for 
breeding, reproduction, rearing of offspring, germination, or seed 
dispersal; and generally, (5) habitats that are protected from 
disturbance or are representative of the historic geographical and 
ecological distributions of a species.
    For right whales, the 2005 Recovery Plan defines conservation as 
the use of all methods and procedures necessary to bring right whales 
to the point at which factors related to population ecology and vital 
rates indicate that the population may be: (1) Downlisted to 
threatened, and; (2) ultimately, delisted because it is no longer in 
danger of extinction throughout all or a significant portion of its 
range. Important factors related to right whale population ecology and 
vital rates include population size and trend, range, distribution, age 
structure, gender ratios, age-specific survival, age-specific 
reproduction, and lifetime reproductive success.
    The 2005 Recovery Plan identifies five major objectives designed to 
increase population size and vital rates so that North Atlantic right 
whales may be reclassified to threatened. These objectives include 
significantly reducing sources of human-caused death, injury and 
disturbance; developing demographically-based recovery criteria; 
identifying, characterizing, protecting and monitoring important 
habitats; monitoring the status and trends of abundance and 
distribution of the species; and coordinating federal, state, local, 
international and private efforts to implement the Recovery Plan.
    Based on the Recovery Plan's reclassification objectives and 
criteria for North Atlantic right whales, NMFS has identified four 
biological behaviors that are critical to the overarching recovery 
objectives of increased survival and population growth: (1) Feeding, 
(2) calving, (3) migration and (4) breeding. In the following section, 
we evaluate whether there are physical and biological features of the 
habitat areas known to be used for these behaviors that are essential 
to the species' conservation because they facilitate or are intimately 
tied to the behaviors. Because these behaviors are essential to the 
species' conservation, facilitating or protecting each one is 
considered a key conservation objective for any critical habitat 
designation for this species.

The Physical and Biological Features of Foraging Habitat That Are 
Essential to the Conservation of the Species

    North Atlantic right whales are filter feeders whose prey consists 
exclusively of zooplankton, notably the copepod Calanus finmarchicus. 
Right whales forage by filtering large volumes of seawater through open 
mouths, trapping zooplanktonic organisms on the dense filamentous mat 
fringing the inner surface of their baleen (Mayo and Marx 1990). 
Foraging takes place at the surface or at depth depending on the 
habitat type and where in the water column the prey source aggregates 
(Mayo and Marx 1990, Baumgartner et al. 2003a).
    Oceanic waters off New England and Nova Scotia are the primary 
feeding habitat for right whales during the late winter, spring, 
summer, and fall. Variation in the abundance and development of 
suitable food patches appears to modify the general patterns of right 
whale movement by reducing peak numbers, stay durations, and specific 
locales (Brown et al. 2001, Kenny et al. 2001). In particular, large 
changes in the typical pattern of food abundance can dramatically 
change the general pattern of right whale habitat use (Kenny et al. 
2001, Baumgartner 2001). In New England, peak abundance of feeding 
right whales occurs in Cape Cod Bay beginning in late winter. In early 
spring (May), peak right whale abundance occurs in Wilkinson Basin to 
the Great South Channel (Kenney et al. 1995). In late June and July, 
right whale distribution gradually shifts to the Northern Edge of 
Georges Bank. In late summer (August) and fall, much of the population 
is found in waters in the Bay of Fundy and around Roseway Basin (Winn 
et al. 1986, Kenny et al. 1995, Kenny et al. 2001).
    A right whale's mass is approximately 10 orders of magnitude larger 
than that of its prey, and the right whale's life history and 
reproductive strategies create very high energetic demands. Right 
whales are very specialized and restricted in their feeding 
requirements. They must locate and exploit feeding areas where copepods 
are concentrated into high-density patches. Efficient feeding on prey 
with high nutritional value is essential to the conservation of the 
North Atlantic right whale. Efficient feeding is not only important to 
meet the day-to-day caloric needs of individual right whales, but is 
important to achieve the overall goal of conservation because of the 
potential correlation between the abundance and caloric richness of 
copepods and the calving rates for right whales. Therefore, we conclude 
that facilitating successful feeding by protecting the physical and 
biological features that characterize feeding habitat is a key 
conservation objective that could be supported by designation of 
critical habitat for the species.
    The features of right whale foraging habitat that are essential to 
the conservation of the North Atlantic right whale are a combination of 
the following biological and physical oceanographic features:
    (1) The physical oceanographic conditions and structures of the 
Gulf of Maine and Georges Bank region that combine to distribute and 
aggregate C. finmarchicus for right whale foraging, namely prevailing 
currents and circulation patterns, bathymetric features (basins, banks, 
and channels), oceanic fronts, density gradients, and temperature 
regimes;
    (2) Low flow velocities in Jordan, Wilkinson, and Georges Basins 
that allow diapausing C. finmarchicus to aggregate passively below the 
convective layer so that the copepods are retained in the basins;
    (3) Late stage C. finmarchicus in dense aggregations in the Gulf of 
Maine and Georges Bank region; and
    (4) Diapausing C. finmarchicus in aggregations in the Gulf of Maine 
and Georges Bank region.
1. Physical Oceanographic Features Characteristic of Right Whale 
Foraging Habitat
    Within the Gulf of Maine, right whale foraging activities are 
concentrated in areas where physical oceanographic conditions and 
structures, namely prevailing currents and circulation patterns, 
bathymetric features (basins, banks, and channels), oceanic fronts, 
density gradients, and temperature regimes operate to concentrate 
copepods (Wishner et al. 1988, Mayo and Marx 1990, Murison and Gaskin 
1989, Baumgartner et al. 2003a, Jiang, et al 2007, Pace and Merrick 
2008). The bathymetry of the central Gulf of Maine is dominated by 
three large, deep basins: Jordan and Georges Basins to the northeast 
and east, respectively, and Wilkinson Basin in the southwest. The 
Jordan, Wilkinson, and Georges deep water basins serve as refugia 
habitat for the essential feature of diapausing copepods (Davis 1987, 
Meise and O'Reiley 1996, Lynch et al. 1998, Johnson et al. 2006). The 
oceanographic features of the Gulf of Maine are very dynamic, with 
strong currents, sharp frontal gradients, and high mixing rates. 
Additionally, the Gulf of Maine has a complex and highly variable 
circulation regime due to varying inflow of Atlantic

[[Page 9317]]

Ocean water, interactions between the eastern and western Maine coastal 
currents, freshwater inflow and temperature fluctuation. Water 
circulation within the Gulf is strongly influenced by its topography, 
with counterclockwise flow over Georges, Jordan, and Wilkinson Basins 
and clockwise circulation over Georges and Brown Banks and Nantucket 
Shoals (Smith 1989, Brown and Irish 1992, Bisgani and Pettigrew 1994). 
These physical features have a large effect on the distribution, 
abundance, and population dynamics of zooplankton populations including 
C. finmarchicus within the Gulf (Durbin 1997).
    Major Gulf of Maine and Georges Bank oceanographic features include 
the Maine Coastal Current (MCC), Georges Bank anti-cyclonic frontal 
circulation system, the basin-scale cyclonic gyres (Jordan, Georges and 
Wilkinson), the deep inflow through the Northeast Channel, the shallow 
outflow via the Great South Channel and the shelf-slope front 
(Gangopadhyay et al. 2003, Pace and Merrick 2008). These features 
create the conditions that disperse, concentrate and retain copepods 
within the Gulf of Maine. The prevailing oceanographic features and 
conditions also create low energy environments within several of the 
deep ocean basins located within the Gulf of Maine.
    Water from the Northwest Atlantic Ocean enters the Gulf of Maine 
over the Scotian Shelf and through the deep Northeast Channel, where it 
forms a general counterclockwise circulation pattern. These slope 
waters entering the Gulf of Maine from the Scotian Shelf are believed 
to transport considerable numbers of developing copepodites originating 
from both the Gulf of St. Lawrence and the Scotian Shelf (Plourde and 
Runge 1993, Greene and Pershing 2000, Conversi et al. 2001, Pace and 
Merrick 2008). Within the Gulf of Maine several smaller scale 
circulation patterns form over oceanographic features, including some 
of the deep water basins. Some of this water exits the Gulf of Maine 
through the Great South Channel, while some continues to the northwest 
where it flows onto Georges Bank in a clockwise circulation gyre (Chen 
et al. 1995, Durbin 1997).
    Due to the strong influence of the Labrador Current, the water of 
the Gulf of Maine is significantly colder and more nutrient-rich than 
waters to the south. This relatively fresh, cold water flows to the 
northeast around the southern end of Nova Scotia, across the mouth of 
the Bay of Fundy and then flows southward. This water helps drive the 
Maine Coastal Current (Brooks 1985, Durbin 1997). The cold water inflow 
from the Nova Scotian Shelf and the Northeast Channel helps drive the 
primarily counterclockwise circulation of the Gulf, propelling the 
Maine Coastal Current in a southwesterly direction (Brooks 1985, Durbin 
1997). The Maine Coastal Current has two major components, the Eastern 
Maine Coastal Current off Maine's east coast and the Western Maine 
Coastal Current off the coasts of western Maine, New Hampshire and 
Massachusetts. These currents are influenced by fluctuations in river 
outflow, often enhanced during spring runoff. Lower salinity surface 
water from spring runoff carried into this region by the Maine Coastal 
Current can cause strong stratification and increase the rate of 
horizontal transport, therefore having an impact on the abundance, 
distribution and population dynamics of C. finmarchicus in the Gulf of 
Maine (Durbin 1997).
    The Gulf of Maine's circulation pattern is principally density 
driven largely because of seasonal temperature changes and salinity 
gradients. During spring and summer months, water within the Gulf 
warms, resulting in buoyant, less dense water that expands, setting up 
a westerly flowing coastal current. The seasonal warming pattern of 
waters within the Gulf of Maine also results in enhanced stratification 
of the water column. Warmer, less dense surface water is separated from 
the colder, more saline dense waters that persist at greater depth 
throughout the year. The currents in the Gulf of Maine are also 
strongly influenced by density gradients between high-salinity slope 
water entering from the Atlantic and fresher waters, which form in the 
Gulf of Maine or enter from the Scotian Shelf (Brooks 1985). Within the 
Gulf of Maine, the freshwater inflow from numerous rivers (e.g., the 
St. John, Penobscot, Kennebec, Androscoggin, and Merrimac Rivers) 
within the Gulf of Maine watershed contributes to the density driven 
circulation pattern (Brooks 1985, Xue et al. 2000).
    There is a distinct seasonal pattern associated with prevailing 
circulation patterns within the Gulf of Maine. During spring and 
summer, the surface circulation pattern in the Gulf of Maine is 
characterized by a predominantly cyclonic (i.e., counterclockwise) 
circulation pattern with cyclonic and anti-cyclonic (clockwise) gyres 
over the three main basins and banks. As surface water cools during the 
fall months, it becomes denser and sinks, mixing with stratified water 
below and breaking down the stratification of the water column. As the 
stratification weakens, the counterclockwise circulation pattern within 
the Gulf of Maine slows until, by late winter, it is no longer evident 
(Xue et al. 2000).
    In Cape Cod Bay, the general water flow is counter-clockwise, 
running from the Gulf of Maine south into the western half of Cape Cod 
Bay, over to eastern Cape Cod Bay, and back into the Gulf of Maine 
through the channel between the north end of Cape Cod and the southeast 
end of Stellwagen Bank, a submarine bank that lies just north of Cape 
Cod. Similar to the Maine Coastal Current, flow within the bay is 
driven by density gradients caused by freshwater river run-off from the 
Gulf of Maine and by a predominantly westerly wind (Franks and Anderson 
1992a, 1992b, Geyer et al. 1992). Thermal stratification occurs in the 
bay during the summer months. Surface water temperatures typically 
range from 0 to 19 [deg]C throughout the year. The circulation pattern 
in Cape Cod Bay allows for the entrainment of C. finmarchicus produced 
elsewhere.
    The Great South Channel becomes thermally stratified during the 
spring and summer months. Surface waters typically range from 3 to 17 
[deg]C between winter and summer. Salinity is stable throughout the 
year at approximately 32-33 parts per thousand (Hopkins and Garfield 
1979). In late-winter/early spring, mixing of warmer shelf waters with 
the cold Gulf of Maine water funneled through the channel causes a 
dramatic increase in faunal productivity in the Great South Channel. C. 
finmarchicus are concentrated north of the 100 m isobath at the 
northern end of the Great South Channel (Wishner et al. 1995, Durbin et 
al. 1997, Kenney 2001).
    Baumgartner et al. (2007) note that several studies have suggested 
ocean fronts, areas that demarcate the convergence of different water 
masses, as a possible mechanism for concentrating the copepod, C. 
finmarchicus at densities suitable to support right whale foraging 
requirements. However, the available information is somewhat 
contradictory, with some studies finding associations between right 
whale foraging and oceanic fronts and others finding no evidence of 
associations (Wishner et al. 1995, Beardsley et al. 1996, Epstein and 
Beardsley 2001, Baumgartner el al. 2007). Given the evidence that in 
some cases oceanic fronts are contributing factors to concentrating 
copepods and their role is uncertain in other cases, we are identifying 
oceanic fronts as one of the combination of physical oceanographic 
features that are essential to right whale conservation. In 
combination, these features and

[[Page 9318]]

mechanisms have been linked to increased copepod densities (Baumgartner 
et al. 2007). Therefore, we identified the following as a physical 
feature of North Atlantic right whale feeding habitat essential to its 
conservation: The physical oceanographic conditions and structures of 
the Gulf of Maine and Georges Bank region that combine to distribute 
and aggregate C. finmarchicus for right whale foraging, namely 
prevailing currents and circulation patterns, bathymetric features 
(basins, banks, and channels), oceanic fronts, density gradients and 
temperature regimes.
    In addition to the combination of physical oceanographic conditions 
and structures identified previously, the hydrographic conditions of 
the deep ocean basins are important because they are conducive to low 
flow velocities. Within the low velocity environments of the deep ocean 
basins, the neutrally buoyant diapausing copepods passively aggregate 
below the convective mixed layer (Lynch et al. 1998, Visser and 
J[oacute]nasd[oacute]ttir 1999, Baumgartner et al. 2003a, Pace and 
Merrick 2008). The ability of copepods within the deep basins in the 
Gulf of Maine to repopulate the Gulf of Maine is dependent on how well 
they are retained within the basins during this period of dormancy. 
Researchers have developed models that predict that the deep basins in 
the Gulf of Maine are sources of copepods for other areas within the 
Gulf of Maine (Lynch et al. 1998, Johnson et al. 2006). These modeling 
results support the existence of deep resting C. finmarchicus 
populations present in these basins and help to explain their age 
distribution and abundance in the rest of the Gulf of Maine (Lynch et 
al. 1998, Johnson et al. 2006).
    Johnson et al. (2006) concluded that ``surface waters of the Gulf 
of Maine both supply the deep Gulf of Maine with C. finmarchicus and in 
turn are supplied with C. finmarchicus from deep water.'' Modeling has 
suggested that endogenous C. finmarchicus (i.e. offspring of copepods 
that emerged locally) can re-stock Wilkinson Basin in the western Gulf 
of Maine, while self-stocking is minimal in Jordan and Georges Basins 
(Miller et al. 1998). Jordan and Georges Basins are restocked by 
external sources of copepods entering in surface Scotian Shelf and 
continental slope waters or in the 230-m deep Northeast Channel 
(Johnson et al. 2006). These copepods subsequently enter dormancy in 
these deep water basins (Lynch et al., 1998, Johnson 2006).
    Johnson et al. (2006) also examined the influence of environmental 
forcing and copepod behavior on transport and retention of dormant C. 
finmarchicus in the deep Gulf of Maine. Based on model simulations, 
they concluded that both transport and retention of C. finmarchicus 
within the Gulf of Maine was high. The copepod transport and retention 
simulations demonstrate transport of copepods from the eastern Gulf of 
Maine into the western Gulf of Maine, as well as the recruitment of 
copepods from slope and Scotian Shelf waters into the eastern Gulf of 
Maine (Johnson et al. 2006). The researchers concluded that while a 
high proportion of dormant copepods are retained in the Gulf of Maine 
as a whole, transport within the Gulf of Maine was significant during 
the summer and fall, and loss from individual basin regions can be high 
(Johnson et al. 2006). Simulation results suggest the Wilkinson Basin 
region is the most retentive of the three major basins and receives 
copepods transported from Jordan and Georges Basins.
    As noted earlier, Jordan and Georges Basins are themselves 
recipients of copepods from upstream sources in the Northeast Channel, 
continental slope water, and Scotian Shelf (Johnson et al. 2006). 
Simulations of population dynamics of C. finmarchicus in the Gulf of 
Maine indicate that the deep basins of the Gulf (i.e., Wilkinson, 
Jordan and Georges Basins) are capable of supplying copepods to Georges 
Bank at the onset of the growing season (Lynch et al. 1998). Lynch et 
al. (1998) conclude that Jordan and Wilkinson Basins provide habitat 
for resting stocks of C. finmarchicus and that Georges Basin may also 
serve this function.
    Miller et al. (1998) provides an individual-based population model 
of C. finmarchicus for the Georges Bank region demonstrating the 
importance of Georges Basin, as well as Wilkinson and Jordan Basins, as 
sources of C. finmarchicus to Georges Bank. As for specific zones 
within the Gulf of Maine, Miller et al. (1998) point to the Marine 
Resources Monitoring, Assessment, and Prediction (MARMAP) samples that 
support Jordan and Wilkinson Basins as sources, and suggest that 
Georges Basin may also be a contributor. The role of Georges Basin has 
been debated due to the considerable water movement and relative 
connection between Georges Basin and the shelf edge (Lynch et al. 1998, 
Pace and Merrick 2008). Recent simulation models combining plankton 
sampling results of the last two decades and earlier, robust 
circulation models of the Gulf of Maine, and life history dynamics of 
C. finmarchicus corroborate earlier conclusions about the importance of 
the Jordan, Wilkinson, and Georges Basins, in addition to the Scotian 
shelf and its sources, as a copepod source for the Gulf of Maine 
ecosystem. Li et al. (2006) suggest that copepod sources within the 
Gulf of Maine are sufficient to account for the early C. finmarchicus 
population of Georges Bank, with an increased importance of advected 
sources later in the year. Models by Lynch et al. (1998) support all 
three deep basins (Jordan, Wilkinson and Georges) as contributors of C. 
finmarchicus to Georges Bank and the Great South Channel. The 
simulation models of Johnson et al. (2006) support the importance of 
Jordan and Wilkinson Basins in the population dynamics of C. 
finmarchicus within the Gulf of Maine.
    Given that low velocity environments are important for aggregating 
dormant copepods, and given that the best available data indicate that 
the ability of the Jordan, Wilkinson, and Georges Basins to retain 
dormant copepods is high, we conclude another physical feature of North 
Atlantic right whale foraging habitat essential to its conservation is: 
Low flow velocities in Jordan, Wilkinson, and Georges Basins that allow 
diapausing C. finmarchicus to aggregate passively below the convective 
layer so that the copepods are retained in the basins.
2. Biological Features Characteristic of Right Whale Foraging Habitat
    The biological features of foraging habitat that are essential to 
the conservation of the North Atlantic right whale are: (1) Late stage 
C. finmarchicus in dense aggregations in the Gulf of Maine and Georges 
Bank region; and (2) Diapausing C. finmarchicus in aggregations in 
Jordan, Wilkinson, and Georges Basins.
    For much of the year, the distribution of the North Atlantic right 
whale is strongly correlated to the distribution of their prey. Right 
whale distribution in the Gulf of Maine is largely controlled by 
zooplankton distribution (Mayo et al. 2004, Singer and Ludwig 2005). As 
discussed in the Biological Source Document (NMFS 2014a), North 
Atlantic right whales prey primarily on zooplankton, specifically the 
later juvenile stages (copepodites) of a species of copepod, C. 
finmarchicus (Baumgartner et al. 2007). Kenney et al. (1986) estimated 
the minimum caloric intake required by a right whale, using standard 
mammalian metabolic models. Not only must right whales meet their basal 
(i.e., resting) metabolic needs but they must obtain an energy surplus 
in the long-term (Brodie 1975, Sameoto

[[Page 9319]]

1983, Kenney et al. 1986, Kenney and Wishner 1995). Using estimates of 
mouth opening area, swimming speed, and daily foraging time, Kenney et 
al.'s (1986) model suggests an average 40 ton right whale's basal 
energetic requirements range from 7.57 to 2,394 kcal/m\3\ or a 
concentration of 4.67 x 10\3\ to 1.48 x 10\6\/m\3\ stage C5 C. 
finmarchicus.
    In order to maximize their caloric intake, right whales must target 
dense layers containing large, energetically rich prey (Wishner et al. 
1995). The late developmental life stages (stages C4-C5) of the copepod 
C. finmarchicus are generally recognized as the North Atlantic right 
whale's primary prey (Watkins and Schevill 1976, 1979, Kenney et al. 
1986, 1995, Wishner et al. 1988, 1995, Murison and Gaskin 1989, Mayo 
and Marx 1990, Beardsley et al. 1996, Kenney et al. 2001, Baumgartner 
2003b). When compared to other copepods, C. finmarchicus has a much 
larger biomass and higher caloric content (Baumgartner et al. 2007). 
Late stage C. finmarchicus, especially C5, contain high lipid content 
and are therefore the most energetically rich zooplankton prey source 
available to right whales. Baumgartner et al. (2003a) found a 
correlation between right whale diving depths and depth of maximum 
stage C5 C. finmarchicus abundances in Grand Manan Basin in the lower 
Bay of Fundy. By focusing their foraging efforts on the energetically 
rich late stage C. finmarchicus, right whales are able to maximize 
their energy intake. If sufficient densities of late stage C. 
finmarchicus become unavailable to feeding right whales, it is 
uncertain if the remaining developmental stages of C. finmarchicus and 
other prey species (independent of abundance) could provide right 
whales with the required energetic densities to meet their metabolic 
and reproductive demands (Kenney et al. 1986, Payne et al. 1990).
    As the principal prey source of right whales, C. finmarchicus 
abundance may play a key role in determining conditions favorable for 
right whale reproduction (Greene and Pershing 2004) (Kenney et al. 
2001). Greene et al. (2003) linked right whale calving rates to changes 
in the North Atlantic Oscillation and concurrent changes in the 
abundance of C. finmarchicus. Greene et al. (2003) found that major 
multi-year declines in right whale calving rates have tracked major 
multi-year declines in C. finmarchicus abundance since 1982. Greene et 
al. (2003) also found that calving rates were relatively stable from 
1982 to 1992, with a mean rate of 12.4 <plus-minus> 0.9 (standard error 
(SE)) calves per year. These researchers note that the stable calving 
rates were consistent with the relatively high abundance of C. 
finmarchicus observed during the 1980s. From 1993 to 2001, right whale 
calving rates exhibited two major, multi-year declines, with the mean 
rate dropping and becoming much more variable at 11.2 <plus-minus> 2.7 
(SE) calves per year. Greene et al. (2003) found that these declines 
coincided with the two precipitous drops in C. finmarchicus abundance 
observed during the early and late 1990s.
    In terms of biomass C. finmarchicus is the dominant copepod in the 
Gulf of Maine (Bigelow 1926, Fish and Johnson 1937, Durbin 1996). The 
annual life cycle of the copepod C. finmarchicus includes a relatively 
complex series of interconnected life stages. Beginning in late spring 
and early summer (May and June), as seasonal water temperature 
increases and phytoplankton levels decrease, C. finmarchicus C5 undergo 
a vertical migration to deep waters where they enter a state of 
dormancy (Bigelow 1927, Davis 1987, Durbin et al.1995). Most of the C. 
finmarchicus population can be found in diapause in deep water in the 
summer and fall (Durbin et al. 2000, Baumgartner et al. 2003). These 
dormant, diapausing pre-adult C5 copepodites form dense layers near the 
bottom of deep basins and continental slope waters. Diapausing C. 
finmarchicus are characterized by their stage of development, deep 
distribution, large oil sacs on which they rely for energy, and low 
activity rates (Baumgartner et al. 2003a). This behavior may be an 
adaptive measure for surviving periods of low food availability and/or 
for reducing predation rates (Davis 1987, Kaartvdet 1996, Dale et al 
1999, Baumgartner et al. 2003a). In late winter, diapausing C. 
finmarchicus emerge from their dormant state and molt to the adult 
stage, migrating to the phytoplankton rich surface layer (Marshall and 
Orr 1955, Davis 1987, Baumgartner et al 2007). These diapausing 
copepods serve as one of the primary source populations for the 
copepods that later form the dense aggregations of late stage C. 
finmarchicus upon which North Atlantic right whales feed.
    Given that these dormant, diapausing pre-adult C5 copepodites serve 
as one of the primary source populations for annual recruitment of the 
essential feature of late stage C. finmarchicus to the waters of the 
Gulf of Maine and Georges Bank region, and given that the Jordan, 
Wilkinson, and Georges Basins within the Gulf of Maine support both 
transport and retention of copepods, another biological feature of 
North Atlantic right whale feeding habitat essential to its 
conservation is aggregations of diapausing C. finmarchicus in the 
Jordan, Wilkinson, and Georges Basins.

The Physical and Biological Features of Calving Habitat That Are 
Essential to the Conservation of the Species

    Like most large whales, North Atlantic right whales tend to calve 
in warm subtropical waters during winter, and migrate to feed in the 
highly productive cold temperate and subpolar waters in spring and 
summer (Green and Pershing 2004). The only known calving habitat for 
North Atlantic right whales occurs along the southeastern U.S. coast 
(Kraus et al. 1986, Knowlton et al. 1994, Reeves et al. 2001). Recent 
aerial survey data indicate calving and nursing occur from northeastern 
Florida and southeastern Georgia as far north as North Carolina (e.g., 
Good 2008, McClellan et al. 2004). Reproductive females, the most 
valuable portion of this species' population, are sighted in the 
calving ground off the coast of Florida and Georgia (Fujiwara and 
Caswell 2001, Garrison 2007, Hamilton et al. 2007) and typically arrive 
during late November and early December after migrating south from 
feeding grounds in the northeastern United States and Canada. Mothers 
and newborn calves reside within the southeast through winter and 
generally depart the calving grounds by the end of March or early April 
(Reeves et al. 2001). Given that the area off the southeastern U.S. is 
the only known calving ground for North Atlantic right whales, and that 
the most biologically valuable portion of the species' population is 
utilizing this habitat, we conclude that facilitating successful 
calving by protecting the species' calving area is a key conservation 
objective. Thus, to identify specific areas that may meet the 
definition of critical habitat, we focused first on specifically 
defining what constitutes a ``calving'' area for North Atlantic right 
whales; that is, what are the functions this area provides that promote 
successful calving and rearing. We then examined these functions and 
next identified those physical or biological features that are 
essential to the conservation of the species because they provide 
calving area functions to the species in these areas.
    The physical features of right whale calving habitat that are 
essential to the conservation of the North Atlantic right whale are: 
(1) Calm sea surface conditions of Force 4 or less on the Beaufort Wind 
Scale; (2) Sea surface temperatures from a minimum of 7 [deg]C, and 
never more than 17 [deg]C; and (3) Water depths of 6 to 28 meters, 
where

[[Page 9320]]

these features simultaneously co-occur over contiguous areas of at 
least 231 km2 of ocean waters during the months of November through 
April. When these features are available, they are selected by right 
whale cows and calves in dynamic combinations that are suitable for 
calving, nursing, and rearing, and which vary, within the ranges 
specified, depending on factors such as weather and age of the calves.
    As discussed in the Biological Source Document (NMFS 2014a), 
habitat characteristics common to lower latitude calving areas for 
large whales include warmer water temperatures, lower average wind 
speeds, less frequent storms, and lower wave heights compared to 
conditions at higher latitudes (Garrison 2007). These common calving 
habitat characteristics for large whales likely provide an energy 
benefit to both lactating mothers and calves. Female baleen whales do 
not typically feed during movement to, or the residence period in, the 
calving ground, and endure a significant energetic cost with 
reproduction (Garrison 2007). Mother whales fast during part of or 
throughout lactation, and maternal reserves are heavily exploited for 
milk production (Oftedal 1997, 2000). Fasting in warm water during 
lactation is likely more efficient than feeding, or even fasting, in 
colder water where energy reserves must be spent to keep body 
temperatures up as discussed later. Warm-water may also aid in the 
conversion of maternal body fat to high-fat milk, hence contributing to 
rapid calf growth (Oftedal 2000, Whitehead and Mann 2000).
    Females in calmer, shallower waters require less energy for 
surfacing, and thus reserve energy for calving and nursing. 
Additionally, newborn animals may have increased survival, and/or lower 
energy expenditure in warmer, calmer, or less predator-infested waters 
(Brodie 1975, Lockyer 1987, as cited in Whitehead and Mann 2000, 
Corkeron and Connor 1999). Calves have been reported to have difficulty 
surfacing to breathe in extremely rough waters (Thomas and Taber 1984). 
Further, calves are relatively weak swimmers (Thomas and Taber 1984) 
and are more likely to be separated from their mothers during storm 
events and in areas with high winds and waves; separation from the 
mother for even a short time is likely fatal for newborn calves 
(Garrison 2007).
    Although direct data about thermal tolerances in right whales are 
lacking (Kenney 2007), warmer water temperatures likely provide a 
thermoregulatory benefit to calving right whales. As homoeothermic 
(warm-blooded) animals, right whales expend additional energy for 
thermoregulation when temperatures are either too cold or too hot 
compared to some thermal optimum. North Atlantic right whales have a 
mean blubber thickness of 12.2 cm (range 8 to 22 cm) (3 to 8.6 inches), 
and the blubber of new mothers is thicker than that of females in late 
lactation or nulliparious females (i.e., females that have not given 
birth to a calf yet) (Angell 2006). The thick blubber of parturient 
females may pose a thermal constraint, and it is expected that new 
mothers will be more sensitive to warm temperatures (e.g., Atlantic 
Ocean Gulf Stream water) than to colder temperatures, compared to 
females in late lactation or nulliparious females (Good 2008). Calves 
are unlikely to face such constraints (Good 2008) because calves do not 
have a thick blubber layer; blubber from newborn southern right whale 
calves in South Africa averaged 5 cm (2 inches) in thickness (Reeb et 
al. 2007). Therefore, newborn calves without the thick blubber layer of 
adults do not have the same thermal tolerance as adult whales (Garrison 
2007). Because of the differences in the thermoregulatory needs of 
mothers (i.e., preferring waters that are not too warm so as to avoid 
heat stress) and newborns and calves (i.e., preferring waters that are 
not too cold so as to avoid cold stress), it is likely that pairs of 
new mothers (i.e. blubber rich) and newborns or calves (i.e. blubber 
poor) on a calving ground have relatively narrow combined thermal 
tolerances (Garrison 2007).
    North Atlantic right whales are observed calving off the 
southeastern U.S. coast, in an area known as the South Atlantic Bight 
(SAB). The SAB extends roughly from Cape Hatteras, North Carolina, to 
West Palm Beach, Florida. The SAB continental shelf varies from 40 to 
140 km wide, with a shallow bathymetric slope. In the inner shelf, 
where the water depth is shallow and friction is large, the current 
responds almost instantaneously to local wind stress; as a result, 
water moves in the same direction as the wind (Chen 2000). In the 
middle and outer shelves, where the water is deep and friction is weak, 
the wind-driven current flows perpendicular to the wind direction 
(i.e., Ekman spiral pattern). Average winter wind speeds in the region 
increase when moving farther offshore. With increasing wind speeds 
comes a corresponding deterioration in sea state conditions: Wave size 
increases and the sea surface becomes more turbulent.
    Winter sea surface temperatures across the SAB range from 8 [deg]C 
to 25 [deg]C (Good 2008). Gulf Stream waters typically have 
temperatures greater than 20 [deg]C during winter, and water closer to 
shore is cooler, ranging between 8 and 17 [deg]C in the southeastern 
U.S. during winter months (Garrison 2007). Pulses of warm water 
frequently move shoreward as the result of Gulf Stream meanders, but a 
steady tongue of colder water persists directly adjacent to shore and 
out to the continental shelf break in winter (Stegmann and Yoder 1996, 
Keller et al. 2006). These waters are warmer than those in the northern 
feeding grounds during winter, yet cooler than the waters located 
farther offshore the southeastern U.S. that are influenced by the warm 
waters of the Gulf Stream.
    Aerial surveys for calving right whales have been conducted in the 
southeastern U.S. each winter (December-March) since 1992. Survey 
effort has varied throughout the area with the core calving area being 
surveyed most consistently (Keller et al. 2006). The bias created by 
this uneven survey effort can be reduced by standardizing mother-calf 
sightings by level of survey effort on a spatial scale (i.e., effort-
corrected sightings or sightings per unit of effort). Based on effort-
corrected sightings data, the densest distribution of observed North 
Atlantic right whale mother-calf pairs is generally between St. 
Augustine, Florida, and just south of Savannah, Georgia in waters of 
the inner shelf of the SAB. Garrison (2007) and Keller et al. (2012) 
assessed habitat correlations and spatial patterns in the distribution 
of right whale mother-calf pairs using sightings data, satellite 
derived sea surface temperature, bathymetry, modeled average wind data, 
and several other spatial variables. The modeling results indicate that 
sea surface temperature and water depth are significant predictors of 
calving right whale spatial distribution. Wind intensity did not 
explain the spatial distribution of calving right whales in these two 
studies (Garrison 2007, Keller et al. 2012). Using the significant 
predictor variables of sea surface temperature and water depth, these 
studies showed that peak predicted right whale mother-calf pair 
sighting rates (95th percentile) occur at water temperatures from 13 to 
15 [deg]C and water depths from 10 to 20 m. The 95th percentile of 
predicted rates of right mother-calf pair sightings accounts for only 
43.5 percent of all observed right whale mother-calf pair sightings. 
The 75th percentile of predicted sighting rates, however, accounts for 
91 percent of all observed right whale mother-calf pair sightings and 
occurs at water

[[Page 9321]]

temperatures between 7 and 17 [deg]C and water depths ranging from 6 to 
28 m. Predicted sighting rates decline dramatically at water 
temperatures greater than 17 [deg]C. As calving season progresses from 
December through February, the model shows the predicted number of 
right whale sightings extending farther south, following the seasonal 
latitudinal progression of favorable water temperatures and the 
seasonal change in the distribution of observed right whale sightings. 
In the southern portion of the predicted optimal habitat area, the 
predicted number of right whale sightings are relatively close to 
shore, confined by both the narrow shelf and the incursion of warm 
water temperatures influenced by the Gulf stream close to shore 
(Garrison 2007, Keller et al. 2012).
    These results are corroborated by Good's (2008) predictive model of 
optimal right whale calving habitat, which assesses topological and 
physical conditions associated with the presence of North Atlantic 
right whale calves in the SAB. The model was used to evaluate the 
importance of water depth, sea surface temperature, and sea surface 
roughness in relation to the distribution of right whale mother-calf 
pairs over a period of 6 years (2000-2005). The model showed that 
sightings of right whale mother-calf pairs occurred within a narrow 
range of physical parameters. Over the course of the winter season 
(December through March), Good's (2008) model showed that the 
distribution of female right whales and their calves in the SAB is 
correlated with water depth, sea surface temperature, and surface 
roughness, with the importance of each variable differing by month. 
Sightings of mothers and calves occurred within a mean depth range 
between 13.8 m and 15.5 m where mean sea surface temperature varied 
between 14.2 and 17.7 [deg]C and mean surface roughness varied from -
24.8 dB to -23.3 dB. Higher backscatter values (e.g., -25 dB) reflect a 
calmer surface, while lower values (e.g. -20 dB) indicate rougher, 
choppier conditions (Good 2008). Sea surface roughness had the 
strongest correlation with right whale mother-calf pair distribution 
early in the calving season (December) when most mother-calf pairs were 
located in waters calmer than the rest of the study area; preferred 
values widened as the calving season progressed (February/March) when 
whales occupied rougher surface waters, especially in March. Further, 
the habitat used by non-calving whales differed from that used by 
mother-calf pairs with respect to surface roughness and sea surface 
temperatures. The highest rates (70 to 76 percent) of right whale 
mother-calf pair sightings occurred in areas predicted as habitat in 
both 3 and 4 months out of the calving season, which accounts for 
approximately 86 percent of all observed right whale mother-calf pair 
sightings. Good's (2008) modeling results are similar to the modeling 
results reported by Garrison (2007) and Keller et al. (2012), 
confirming bathymetry and sea surface temperature importance to right 
whale mother-calf pair distribution on the calving ground. Good's 
(2008) model also shows that sea surface roughness is a significant 
predictor of right whale mother-calf pair distribution in the SAB.
    Together, the sightings data and predictive modeling results show 
that mother-calf pairs of North Atlantic right whales are observed and 
are likely to be observed in relatively shallow waters (10-20 m) within 
a narrow range of water temperatures (7 to 17 [deg]C) (Keller et al. 
2012, Good 2008), in relatively calm waters (>23.3 dB), and in close 
proximity to shore (within 60 km of the coast) (Good 2008). The ranges 
noted in parentheses represent the 75th percentile of right whale 
mother-calf pair sightings predicted by Garrison (2007) and Keller et 
al. (2012), which also capture the mean ranges of sea surface 
temperature, sea surface roughness, and water depth associated with 
right whale mother-calf pair sightings reported by Good (2008). 
Garrison's (2007) and Keller et al.'s (2012) 75th percentile of 
predicted sighting rates for calving right whales account for the 
greatest portion of all observed calving right whales (91 percent) and 
captures the means reported by Good (2008). Additionally, Good's (2008) 
rates of right whale mother-calf pair sightings in predicted habitat 
includes the most consistent habitat features over time and accounts 
for 86 percent or more of all observed right whale mother-calf pair 
sightings. Therefore, we conclude Garrison's (2007) and Keller et al.'s 
(2012) 75th percentile and Good's (2008) habitat selected in 3 and 4 
months are the most appropriate bases for determining the essential 
features of right whale calving habitat in the southeastern U.S.
    Calving right whales can be observed in waters exhibiting some or 
all of the features described previously within the specified ranges 
depending on factors such as the weather (e.g., storms, prevailing 
winds) and age of the calf (e.g., neonate versus more mature calf). For 
example, early in the calving season mother-calf pair distribution is 
most strongly correlated with sea surface roughness (Good 2008). Most 
mother-calf pairs are located in calm waters at this time, consistent 
with reports that calves have difficulty surfacing to breathe in 
extremely rough waters (Thomas and Taber 1984), and separation from the 
mother for even a short time is likely fatal for newborn calves 
(Garrison 2007). Therefore, mother-calf pairs are likely to select 
locations with the calmest sea surface conditions to facilitate the 
needs of the neonate, which is a weak swimmer and needs to remain close 
to the mother to feed, and the needs of the mother who is fasting and 
lactating. If weather conditions are persistently poor (e.g., windy 
and/or stormy conditions), then it is likely the mother may search for 
and locate conditions more conducive to the needs of a weak-swimming 
neonate.
    Because sea surface roughness has the strongest correlation to 
mother-calf pair distribution early in the calving season, areas of 
calm water in which these mother-calf pairs are located may also 
contain sea surface temperatures and water depths within the preferred 
ranges; however, as these two features are relatively less important 
for calf survival than calm water early in the calving season, areas in 
which mother-calf pairs are located are more likely to contain sea 
surface temperatures and water depths at the extremities of the 
preferred ranges (e.g., 17 [deg]C or upper range of values for sea 
surface temperatures, and 10 m or lower range of values for water 
depths). Early in the season, these shallow waters have not cooled to 
the seasonal minimum, yet still provide the necessary thermal balance 
for both a fasting, lactating, blubber-rich mother and a hungry, weak, 
blubber-poor neonate. As the calving season progresses and young calves 
mature and become stronger swimmers, however, calm waters become 
relatively less important to calf survival. Mother-calf pairs begin 
occupying rougher surface waters and the distribution of mother-calf 
pairs begins correlating more strongly with the preferred ranges of sea 
surface temperatures and water depths.
    It is evident from the distribution patterns of mother-calf pairs 
throughout the calving season (see Garrison 2007, Keller et al. 2012, 
and Good 2008) that calving North Atlantic right whales are moving 
throughout the SAB to select optimal combinations of sea surface 
roughness, sea surface temperatures, and water depths depending on 
factors such as the weather and the age of the calves. Younger, weaker 
calves are present earlier in the calving season and Good's (2008) 
model shows that this is

[[Page 9322]]

when sea surface roughness had the strongest correlation with right 
whale mother-calf pair distribution. Therefore, calmer waters are an 
essential feature for the conservation of the species because they 
facilitate right whale calf survival. Additionally, the distribution of 
mother-calf right whale pairs correlates with (1) a narrow sea surface 
temperature range (7 [deg]C to 17 [deg]C), which provides for the 
thermal balance needs of both a fasting, lactating, blubber-rich mother 
and a hungry, weak, blubber-poor neonate; and with (2) a range of water 
depths (6 to 28 m) that provide for protection from open ocean swell, 
which increases the likelihood of calf survival. Therefore, waters 
within these sea surface temperature and depth ranges are essential 
features for the conservation of the species because they facilitate 
successful calving, which is essential to the conservation of 
endangered North Atlantic right whales.
    Further illustrated by the modeling results reported by Garrison 
(2007), Keller et al. (2012), and Good (2008) is that the features of 
sea surface roughness, sea surface temperatures, and water depth are 
present in the SAB during calving season over large, contiguous areas 
of ocean waters (at least 231 nm\2\), which is the core use area of a 
mother/calf pair in any given season. As such, mother-calf-pairs can 
move throughout the SAB to select dynamic, optimal combinations of some 
or all of these features depending on factors such as the weather and 
the age of the calves. The ability of mother-calf pairs to move 
throughout the SAB to use these features also contributes to growth and 
fitness of young calves. At the end of the calving season, these calves 
that are only a few months old must be strong enough to complete the 
lengthy trip back to the northern feeding grounds. It is believed the 
swimming abilities of young calves is strengthened by mother-calf pairs 
looping many miles up and down the coast in the calving area (S. Kraus, 
New England Aquarium, pers. comm. to S. Heberling, NMFS, June 25, 
2010). Such transit of mother-calf pairs is evidenced by one tracking 
study in which a tagged right whale with a young calf covered as much 
as 30 NM in one 24-hour period (Slay et al. 2002) and by annual 
tracking data of mother-calf pairs (Right Whale Consortium 2010). 
Therefore, calf survival is facilitated by the presence of the features 
over large, contiguous areas of the SAB such that mother-calf pairs can 
move throughout the SAB to select dynamic, optimal combinations of some 
or all of these features, which are influenced by weather and the age 
of the calves.

The Physical and Biological Features of Migratory Habitat That Are 
Essential to the Conservation of the Species

    Large-scale migratory movements between feeding habitat in the 
northeast and calving habitat in the southeast are a necessary 
component in the life-history of the North Atlantic right whale. A 
proportion of the population makes this migration annually, and the 
most valuable life-history stage (calving females) must make this 
migration for successful reproduction. The subset of the North Atlantic 
right whale population that has been observed migrating between the 
northern feeding grounds and southern calving grounds is comprised 
disproportionately of reproductively mature females, pregnant females, 
juveniles, and young calves (Ward- Geiger et al. 2005; Fujiwara and 
Caswell 2001; Kraus et al. 1986, as cited by Firestone et al. 2008). 
For logistical reasons, survey efforts have also been disproportionally 
focused in the nearshore area (within 30 nm of shore).
    During migratory periods it is difficult to locate and sample 
marine mammals systematically or to observe them opportunistically, 
because they surface less frequently and cover large distances in any 
given day during migration (Hiby and Hammond 1989; Morreale et al. 
1996; Mate et al. 1997; Knowlton et al. 2002, as cited by Firestone et 
al. 2008). The space used by right whales during their migrations 
remains almost entirely unknown (Schick et al. 2009). Defining a 
particular migratory corridor is further complicated by the fact that 
the available data are largely spatially constrained to nearshore areas 
(i.e., 30 nm of shore), and consist of opportunistic sightings. Based 
on the low numbers of whales observed migrating close to shore between 
foraging and calving habitats, it is apparent that not all right whales 
migrate within 30 nm of shore. A study by Schick et al. (2009), who 
tracked the movements of two tagged female right whales, also suggests 
that movement of right whales are much broader and more variable than 
suggested by results based solely on opportunistic sightings from 
surveys limited to nearshore areas (see Schick et al. (2009)).
    Beyond the uncertainty over the location of one or more migratory 
corridors, we cannot currently identify any specific physical or 
biological features that define migratory habitat.
    Therefore, we have concluded that it is not currently possible to 
define critical habitat associated with right whale migratory 
behaviors. The draft Biological Source Document (NMFS 2014a) contains a 
thorough discussion of the available data we considered in our 
analysis.

The Physical and Biological Features of Breeding Habitat That Are 
Essential to the Conservation of the Species

    We have concluded that it is not possible to identify essential 
physical or biological features related to breeding habitat, primarily 
because we cannot identify areas where breeding occurs. Right whales 
are known to aggregate in large groups called Surface Active Groups 
(SAGs). While indicative of courtship and reproductive behavior, not 
all SAGs are reproductive in nature (Kraus et al. 2007). SAGs are 
observed year round, both in the northeast feeding areas as well as in 
the southeast calving grounds. SAGS are usually observed 
opportunistically during directed survey efforts as well as other 
random sightings.
    Between 2002 and 2008, aerial surveys identified half the North 
Atlantic population in the central Gulf of Maine between November and 
January (Cole et al. 2013). Right whale presence in the central Gulf of 
Maine during the estimated conception period strongly suggests that 
this region is a mating ground for the species. However, there has not 
been any systematic evaluation of the particular physical or biological 
features that facilitate or are necessary for breeding and reproduction 
to occur. Therefore, it is also not possible to identify physical or 
biological features related to breeding and reproduction that are 
essential to the conservation of the species.

Specific Areas Within the Geographical Area Occupied by the Species

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

[[Page 9323]]

following paragraphs describe the methods we used to determine the 
boundaries for each specific area.
(1) Specific Areas on Which Are Found the Physical and Biological 
Features of Foraging Habitat (Unit 1)
    All of the identified essential features are present within Unit 1 
(Figure 1). The physical oceanographic conditions, late stage C. 
finmarchicus aggregations, and aggregations of diapausing C. 
finmarchicus that have been identified as essential features are 
dynamically distributed throughout this specific area. The specific 
area includes the large embayments of Cape Cod Bay and Massachusetts 
Bay and deep underwater basins. The area incorporates state waters from 
Maine through Massachusetts as well as federal waters, but does not 
include inshore areas, bays, harbors, and inlets.
    While C. finmarchicus are found throughout the Gulf of Maine, some 
regions within the Gulf of Maine show more seasonal variation in 
abundance and age group distribution than others. Based on 10 years of 
data collected through the MARMAP program, Meise and O'Reilly (1996) 
found the total C. finmarchicus abundance peaked in early spring 
(March-April) on the Mixed Georges Bank, Tidal Front Georges Bank and 
Mass Bay, and in late summer (July-August) in the Northern Gulf of 
Maine and Scotian-Coastal Gulf of Maine. C. finmarchicus abundance 
peaked in the remaining areas of the Gulf of Maine during May through 
June. A sharp decrease in overall copepod abundance was found by Meise 
and O'Reilly (1996) in the months of July through October. During this 
time period, copepod abundance decreased in all areas except for waters 
50-300 m located over Jordan and Wilkinson Basins in the Gulf of Maine 
and the 200-500 m slope water seaward of Georges Bank. In these areas, 
densities of stage C5 C. finmarchicus exceeded densities of other life 
stages. Additionally, overall abundance throughout the entire Gulf of 
Maine increased ten-fold from January through April when diapausing C. 
finmarchicus migrate to the surface to molt, spawn, and are advected to 
the rest of the Gulf of Maine via depth-associated increased flow and 
transport (Meise and O'Reilly 1996).
    While the seasonal distributions and general patterns of abundance 
of C. finmarchicus within the Gulf of Maine and Cape Cod Bay have been 
documented, the geographic scales and depths where copepods are sampled 
only rarely match the fine-scale at which right whales forage (Mayo and 
Marx 1990, Baumgartner and Mate 2003). Basin-scale zooplankton 
monitoring schemes have proved ineffective in detecting the high 
concentrations usually present in the vicinity of actively feeding 
whales. Furthermore, using direct copepod sampling efforts to identify 
where dense aggregations occur is also confounded by the fact that 
sufficient data are not available to establish a specific threshold 
density of C. finmarchicus that triggers feeding. For these reasons, 
the specific area on which are found dense aggregations of late stage 
C. finmarchicus cannot be defined by relying on data from such efforts 
to sample copepod aggregations directly throughout the vast Gulf of 
Maine and Georges Bank region.
    Though the means by which right whales locate and exploit food 
resources is not well understood, the presence of foraging right whales 
is a reasonable proxy for determining where critical food densities are 
located (Kenney et al. 1995, Baumgartner et al. 2003b). The protocol 
for determining the whale density and residency indicative of feeding 
behavior was developed by Clapham and Pace (2001) for the Dynamic Area 
Management (DAM) program. The DAM protocol identifies a sighting of >3 
right whales close enough to each other to produce a density of 0.04 
right whales/nm\2\ as the minimum number and density of right whales 
that reliably indicates the presence of foraging whales. The DAM 
protocol was used retrospectively using sighting histories from 1970-
2005. Pace and Merrick (2008) identified 7,761 sightings events 
representing 15,395 whales over the time period. The DAM protocol was 
then applied to calculate the circular core sightings area and, as 
necessary, circular zones joined. This provided 1,292 unique ``pseudo-
DAM'' events that were subsequently mapped using ARCView GIS software 
(a ``pseudo-DAM'' event is an aggregation of foraging right whales 
identified in this retrospective analysis that met the definition of 
foraging right whales and would have met the DAM trigger if the 
protocol had been in place at the time). The analyses of right whale 
sightings data in U.S. Northwest Atlantic waters indicate that foraging 
habitat is expansive and that C. finmarchicus is ubiquitous in the Gulf 
of Maine and Georges Bank region.
    Seasonal movement patterns of right whales and the available 
literature on the distribution, abundance, and population dynamics of 
calanoid copepods, indicate that several areas are important for right 
whale foraging in the Gulf of Maine/Georges Bank region: Cape Cod Bay 
(January-April), Great South Channel (April-June), western Gulf of 
Maine (April-May and July-October), northern edge of Georges Bank (May-
July), Jordan Basin (August-October), and Wilkinson Basin (April-July). 
Analyses show that each of these areas has a defined pattern of 
repeated DAM events and thus whale feeding events, particularly in the 
past decade when more observations are available due to increased 
survey coverage, and/or are the source areas that supply the copepod 
prey to foraging areas (Pace and Merrick 2008).
    Cape Cod Bay exhibits high densities of copepods during winter, 
spring, and, possibly fall, as evidenced by the large numbers of 
feeding right whales. Of the 17,257 right whale sightings in New 
England during 1970 through 2005, 7,498 were in Cape Cod Bay. A total 
of 543 pseudo-DAM events occurred in this area, most during January-
April.
    The Great South Channel has high copepod concentrations at depth, 
especially during March-July, as evidenced by the large numbers of 
feeding right whales, owing to bathymetric features and water 
circulation patterns. A total of 5,753 right whales were sighted in the 
area during 1970-2005; this included 344 pseudo-DAM events. Most right 
whale sightings occurred during April-June, but also in July in some 
years. Right whale use of the Great South Channel area is not nearly as 
uniform as in Cape Cod Bay, but is widespread enough to indicate that 
the Channel is a critical foraging area in almost every year.
    The Western Gulf of Maine possesses a complex set of bathymetric 
features which markedly affect the spatial/temporal concentration of 
copepods among years. From 1970 through 2005, 1,749 right whale 
sightings (including 153 pseudo-DAM events) occurred in this area, 
mostly during April-May and July-October.
    The northern edge of Georges Bank has high copepod densities at 
depth, especially during May-July, as evidenced by the large numbers of 
feeding right whales, emanating from physical features (e.g., currents 
and upwelling) which concentrate late-stage copepods during spring and 
summer. Foraging right whales in this area are thought to be following 
an eastward progression of dense copepod patch development, which 
begins in late spring and early summer. A total of 32 pseudo-DAM events 
have occurred in this area. Recent surveys have documented that Jordan 
and Wilkinson Basins are also important feeding areas. Wilkinson Basin 
serves as a foraging area for right whales in spring. The

[[Page 9324]]

limited survey sightings effort in Wilkinson Basin during 1970-2005 
documented 1,058 individual right whales during this period, including 
104 pseudo-DAM events. Surveys have repeatedly found concentrations of 
right whales in this area during April-July. Right whale surveys 
conducted in Jordan Basin during the winter of 2004-2005 (perhaps the 
first winter surveys ever in this Basin) sighted up to 24 foraging 
right whales at a time (NMFS unpubl. data). The limited survey efforts 
in the area during 1970-2005 recorded a total 21 pseudo-DAM events. The 
available data suggest that Jordan Basin is an important right whale 
foraging area, at least during August-October.
    As part of our analysis of areas on which are found the essential 
foraging features, we considered an analysis of right whale sightings 
data along the east coast (70 FR 35849, June 25, 2005, NMFS 2007, 72 FR 
57104, October 5, 2007). This analysis indicates that endangered large 
whales rarely venture into bays, harbors, or inlets. Based on this 
analysis, NMFS (2007) concluded that it is unlikely that right whales 
spend substantial amounts of time in the coastal waters of Maine, 
particularly inshore areas such as bays, harbors, or inlets (70 FR 
35849, June 25, 2005, NMFS 2007, 72 FR 57104, October 5, 2007). 
Similarly, right whales are seldom reported in the small bays and 
harbors along the inside edge of Cape Cod, with the exception of 
Provincetown Harbor where foraging right whales have been observed. Due 
to the absence or rarity of foraging right whales in inshore areas, 
bays, harbors and inlets, we conclude that the essential feature of 
dense aggregations of late-stage C. finmarchicus is not present in the 
areas shoreward of the boundaries delineated in Table 1a and Table 1b.
    Lastly, we considered right whale sightings (and pseudo-DAM events) 
that have occurred to the south and east of the area described 
previously. Typically, whales are sighted in these areas in one year, 
but are not seen again for a number of years and evaluation of data 
across time series do not demonstrate any predictable repeated presence 
of whales. As a result, we conclude those areas do not provide 
predictable foraging habitat which is evident in the Gulf of Maine-
Georges Bank region. Most likely, sightings in these areas consist of 
whales that feed opportunistically while migrating to the Gulf of 
Maine. This includes the large number of feeding right whales sighted 
in Block Island Sound in April 2010 and the smaller aggregation 
observed 2011. The sightings off Rhode Island represents the largest 
group of right whales ever documented in those waters. However, right 
whales have not been observed in Block Island Sound in subsequent years 
and a pattern of repeated annual observations is not evident in these 
areas.
    The large area depicted in Figure 1 encompasses all of the physical 
oceanographic conditions and structures of the Gulf of Maine and 
Georges Bank region, namely prevailing currents and circulation 
patterns, bathymetric features (basins, banks, and channels), oceanic 
fronts, density gradients, and temperature regimes that combine to 
distribute and aggregate C. finmarchicus for right whale foraging in 
that region. The essential physical feature of the Gulf of Maine-
Georges Bank region important to supporting these aggregations is low 
flow velocity environments that allow the neutrally buoyant, high lipid 
content copepods to passively aggregate below the convective mixed 
layer and be retained for a period of time. As discussed previously, 
these low flow environments are present in the three deep basins--
Wilkinson, Jordan and Georges Basins--within the Gulf of Maine, with 
boundaries approximated by the 200 m isopleths. Therefore, these basins 
contain the essential features for right whale foraging habitat.

[[Page 9325]]

[GRAPHIC] [TIFF OMITTED] TP20FE15.000

    Consistent with our regulations (50 CFR 424.12(c)), we have 
identified one ``specific area'' within the geographical area occupied 
by the species at the time of listing, that contains the identified 
physical and biological features of

[[Page 9326]]

foraging habitat that are essential to the conservation of North 
Atlantic right whales. This area encompasses a large area within the 
Gulf of Maine and Georges Bank region, including the large embayments 
of Cape Cod Bay and Massachusetts Bay and deep underwater basins. This 
area also incorporates state waters, except for inshore areas, bays, 
harbors, and inlets, from Maine through Massachusetts in addition to 
federal waters.
    The specific area on which are found the physical and biological 
features essential to foraging and thus to the conservation of the 
North Atlantic right whale include all waters, seaward of the boundary 
depicted in Figure 1 (for actual coordinates see below). The boundary 
of the proposed critical habitat for Unit 1 is delineated generally by 
a line connecting the geographic coordinates and landmarks as follows: 
From the southern tip of Monomoy Island (Cape Cod) (41[deg]38.39' N, 
69[deg]57.32' W) extending southeasterly to 40[deg]50' N, 69[deg]12' W 
(the Great South Channel); then east to 40[deg]50' N 68[deg]50' W. From 
this point, the proposed boundary extends northeasterly direction to 
42[deg]00' N, 67[deg]55' W and then in an easterly direction to 
42[deg]00' N 67[deg]30' W. From this point, the proposed boundary 
extends northeast along the northern edge of Georges Bank to the 
intersection of the U.S.-Canada maritime boundary at 42[deg]10' N, 
67[deg]09.38' W. The proposed boundary then follows the U.S.-Canada 
maritime boundary north to the intersection of 44[deg]49.727' N, 
66[deg]57.952' W. From this point, moving southwest along the coast of 
Maine, the specific area is located seaward of the Maine exemption line 
developed for the Atlantic Large Whale Take Reduction Plan to the point 
(43[deg]02.55' N, 70[deg]43.33' W) on the coast of New Hampshire south 
of Portsmouth, NH. The boundary of the proposed area then follows the 
coastline southward along the coasts of New Hampshire and Massachusetts 
along Cape Cod to Provincetown southward along the eastern edge of Cape 
Cod to the southern tip of Monomoy Island. As noted, the specific area 
includes the large embayments of Cape Cod Bay and Massachusetts Bay but 
does not include inshore areas, bays, harbors and inlets. In addition, 
the specific area does not include waters landward of the 72 COLREGS 
lines (33 CFR part 80) as described below.
(2) Specific Areas on Which Are Found the Physical Features of Calving 
Habitat (Unit 2)
    The essential features of right whale calving habitat are dynamic 
in their distributions throughout the South Atlantic Bight in that they 
vary over both time and space, and their variations do not necessarily 
correlate with each other. Calving right whales therefore likely select 
areas containing varying combinations of the preferred ranges of the 
essential features available within the SAB, as identified previously, 
depending on factors such as the weather (e.g., storms, prevailing 
winds) and the age of the calves (e.g., neonate or more mature calf).
    In order to identify specific areas that may contain the essential 
features, we used analyses based on two predictive habitat models 
(Garrison (2007) and Keller et al. (2012), and Good et al (2008). These 
models help identify areas within the SAB where the essential features 
are likely to be present throughout the calving season.
    The Garrison (2007) and Keller et al. (2012) models base the 
spatial extent of potential calving habitat on average environmental 
conditions at a 4 km x 4 km sampling unit and the resulting use of 
these areas by calving right whales. These models also reflect the 
processes observed in the Florida-Georgia region only. From the mean 
water temperatures between December and March in this region, the 
models predict calving habitat for right whales in waters typically 
between 10 and 50 km from shore extending from New Smyrna Beach, 
Florida north to Cape Fear, North Carolina. The optimal temperature 
range within the 75th percentile of predicted sighting rates for 
calving right whales occurs throughout much of the spatial range. Over 
the course of the entire calving season (December through March) the 
preferred water depth (6 to 28 m) and sea surface temperature (7 to 17 
[deg]C) ranges for calving right whales correspond with predicted 
sighting rates of calving right whales in the 75th percentile, which 
accounts for 91 percent of all observed calving right whales. The area 
containing the 75th percentile of predicted sighting rates for calving 
right whales extends from approximately Daytona Beach, Florida north to 
just beyond the Georgia/South Carolina state border. The geographic 
area included in the 75th percentile of predicted sighting rates 
encompasses seasonal and annual variability of the distribution of the 
essential features, particularly sea surface temperatures as evaluated 
by Garrison (2007) and Keller et al. (2012), and provides the broadest 
availability of contiguous areas of dynamic combinations of the 
essential features for selection by calving right whales.
    Because the models used by Garrison (2007) and Keller et al. (2012) 
selected annual effects, sea surface temperature, and water depth, but 
not sea state (roughness) or wind conditions and right whale mother-
calf distribution, we also considered the results by Good (2008) that 
predicted potential right whale calving habitat based on sea state 
roughness as well as sea surface temperature and water depth. Good 
(2008) calculated the relative density of calf sightings at a 5 km x 5 
km sampling unit and measured the habitat conditions where right whale 
mother-calf pairs were sighted. These calculated habitat values (sea 
surface temperature, sea surface roughness, and water depth) were used 
to derive a ``likelihood surface'' of calving habitat to predict 
potential habitat for each month of the calving season and for all 
months combined. This combined model provided a measure of temporal 
continuity by delineating the number of months (December through March) 
a given area was selected as potential calving habitat. This combined 
model is the best representation of potential calving habitat both in 
time and space (Good 2008). Overall, the Good (2008) model predicted 
the presence of potential right whale calving habitat extending within 
40 to 50 km of shore from Cape Lookout, North Carolina south to 
approximately New Smyrna, Florida. Areas predicted by the model to be 
potential right whale calving habitat in three or more months accounted 
for 85 percent or more of all observed right whale mother-calf 
sightings. Finally, as illustrated by the results of both habitat 
predictive models and the movements of cow-calf pairs during their time 
on the calving grounds, the features of sea surface roughness, sea 
surface temperatures, and water depth in the preferred ranges used by 
right whales are present in the SAB during calving season over large, 
contiguous areas (at least 231 nmi\2\ of ocean area).
    To determine the boundaries of the specific area containing the 
essential features identified for North Atlantic right whale calving, 
we overlaid two ArcGIS shape files generated by the habitat models as 
follows: 1) The 75th percentile reported by Garrison (2007) and Keller 
et al. (2012), and 2) Good's (2008) habitat area selected by at least 
three of the monthly models. Given that the 75th percentile from 
Garrison (2007) and Keller et al. (2012) and Good's (2008) habitat area 
selected by at least three of the monthly models account for 91 and 85 
percent of all observed right whale mother-calf pair sightings, 
respectively, and Good's (2008) combined (four month) model is the best 
representation of potential calving

[[Page 9327]]

habitat both in time and space, we believe these predicted habitat 
areas are the best basis for determining right whale calving habitat in 
the southeastern U.S.
    Based on the information from these models and other information 
previously described, which we consider to be the best available 
information, the southeast right whale calving area consists of all 
marine waters from Cape Fear, North Carolina, southward to 29[deg] N 
latitude (approximately 43 miles north of Cape Canaveral, Florida) 
within the area bounded on the west by the shoreline and the 72 COLREGS 
lines, and on the east by rhumb lines connecting the specific points 
described below.
    Based on the prior discussion and consistent with our regulations 
(50 CFR 424.12(d)), we identified one ``specific area'' within the 
geographical area occupied by the species, at the time of listing, that 
contains the essential features for calving right whales in the 
southeastern U.S. (Figure 2). This area comprises waters of Brunswick 
County, North Carolina; Horry, Georgetown, Charleston, Colleton, 
Beaufort, and Jasper Counties, South Carolina; Chatham, Bryan, Liberty, 
McIntosh, Glynn, and Camden Counties, Georgia; and Nassau, Duval, St. 
John's, Flagler, and Volusia Counties, Florida.

[[Page 9328]]

[GRAPHIC] [TIFF OMITTED] TP20FE15.001


[[Page 9329]]



Special Management Considerations or Protection

    Specific areas within the geographical area occupied by a species 
may be designated as critical habitat only if they contain physical or 
biological features that ``may require special management 
considerations or protection.'' To meet the definition of critical 
habitat, it is not necessary that the features currently require 
special management considerations or protection, only that they may 
require special management considerations or protections. NMFS' 
regulations define ``special management considerations or protections'' 
to mean ``any methods or procedures useful in protecting physical and 
biological features of the environment for the conservation of listed 
species'' (50 CFR 424.02(j)). As noted previously, NMFS produced a 
Draft Biological Source Document (NMFS 2014a) that discusses our 
application of the ESA's definition of critical habitat for right 
whales in detail, including evaluation of whether proposed essential 
features ``may require special management considerations or 
protections.'' The following discussion is derived from that document.
(1) Essential Features of Foraging Habitat
    As summarized in the following sections, the essential features of 
right whale foraging habitat may require special management 
considerations or protections because of possible negative impacts from 
the following activities and events: (1) Zooplankton fisheries; (2) 
effluent discharge from municipal outfalls; (3) discharges and spills 
of petroleum products to the marine environment as a result of oil and 
gas exploration, development and transportation; and (4) climate 
change.

Zooplankton Fisheries

    The essential foraging habitat features that may be affected by 
zooplankton fisheries are late stage C. finmarchicus copepods in dense 
aggregations and diapausing C. finmarchicus aggregations in Jordan, 
Wilkinson, and Georges Basins in the Gulf of Maine and Georges Bank 
region.
    While directed zooplankton fisheries have primarily focused efforts 
on the larger krill species, with the most significant harvests taking 
place in Antarctica (targeting Euphasia superba) and in the Pacific 
(targeting Euphasia pacifica), copepod fisheries have also been 
permitted, attempted or researched by Canadian and Norwegian interests 
in North Atlantic waters beginning in the 1990s(NMFS 2014a). In January 
2008, the Norwegian Directorate of Fisheries awarded Calanus AS a 
renewed and expanded license to harvest C. finmarchicus in the 
Norwegian Economic Zone (Calanus[supreg] 2008a). In April 2008, the 
company also entered into a contract with Skretting, the world's 
largest salmon and trout aquaculture feed production firm, for research 
and development and subsequent distribution of the Calanus[supreg]-
derived sea lice deterrent (Calanus[supreg] 2008b). Calanus AS is also 
currently engaged in the development of other uses for C. finmarchicus 
in aquarium feed, health and nutritional products, dietary supplements, 
flavoring ingredients, bioactive compounds for cosmetics, and 
pharmaceuticals (Calanus[supreg] 2009.)
    Several analyses predict the demand for krill will increase, 
including increased future demands for pharmaceutical and aquaculture 
products derived from copepods (Nicol and Endo (1997), Payne et al. 
2001, Suontama 2004). As harvesting technology for C. finmarchicus 
becomes more efficient, demands for C. finmarchicus products may 
increase to the point where zooplankton fishing is economically 
feasible (Nicol and Endo 1997, Suontama 2004, Piasecki et al. 2004).
    The essential biological features of foraging habitat in the Gulf 
of Maine and Georges Bank region may be negatively affected if 
worldwide demand for C. finmarchicus products continues to rise. 
Therefore, the essential biological features--late stage C. 
finmarchicus copepods in dense aggregations and diapausing C. 
finmarchicus aggregations in Jordan, Wilkinson, and Georges Basins in 
the Gulf of Maine and Georges Bank region--may require special 
management considerations or protections.

Sewage Outfalls

    Several municipalities from Maine to Massachusetts have waste 
discharge facilities that empty into the Gulf of Maine. These 
discharges as well as coastal runoff result in increased nutrient 
inputs to the ocean. Increased nutrient input in the Gulf of Maine 
region may result in changes to the overall phytoplankton community 
structure and enhance nuisance and/or less desirable forage species. 
These changes may result in changes in productivity and/or changes in 
the distribution and densities of C. finmarchicus populations.
    While a single outfall facility may not have a significant impact 
on the entire Gulf of Maine ecosystem, the cumulative impacts of all 
sewage outfalls may pose the need for management considerations or 
protection for C. finmarchius. Monitoring results from the Boston 
outfall in Massachusetts Bay support this concern. In 2000, the 
Massachusetts Water Resource Authority (MWRA) implemented a new ocean 
outfall system 15.2 miles offshore in Massachusetts Bay, as part of a 
Boston Harbor Cleanup program. This new system relocated an estimated 
350 million gallons of treated effluent per day from Boston Harbor to 
the hydrodynamic system of Massachusetts and Cape Cod Bays (PCCS 2005, 
Bothner and Butman 2007).
    In 2002, Provincetown Center for Coastal Studies (PCCS) documented 
a ``shift from the predominant winter-spring zooplankton resources, C. 
finmarchicus, to the estuarine copepod Acartia spp.'' as well as a 
significant increase in nuisance algae, Phaeocystis pouchetti, in Cape 
Cod Bay (PCCS 2003). PCCS (2005) noted that ``further work may be 
required to fully assess cumulative or long-term impacts to plankton 
and higher trophic levels within this dynamic system.''
    The MWRA monitoring program further noted that though the structure 
of the zooplankton community in 2005 was similar to many earlier years, 
there was a measurable decrease in total zooplankton abundance during 
2001 through 2005 compared to the baseline period. Overall lower 
abundance during the late spring and early summer and during the fall 
was observed across Massachusetts Bay, but not in the shallower waters 
of Boston Harbor or Cape Cod Bay (Werme and Hunt 2006).
    These observations support the hypothesis that with increased 
nutrient input and increased primary productivity, Massachusetts Bay 
plankton communities could shift to being dominated by Acartia and 
other inshore copepods, therefore displacing the high concentrations of 
offshore copepods such as C. finmarchicus from these areas during 
seasons when they are normally present and serve as a food source for 
right whales (Werme and Hunt 2006). In addition, increased nutrient 
input to offshore areas, ``particularly nitrogen, could over-stimulate 
algal blooms, which would be followed by low levels of dissolved oxygen 
in the bottom waters when the phytoplankton die, sink, and decompose,'' 
thereby providing habitat unsuitable for C. finmarchicus (Werme and 
Hunt 2006). We conclude that the essential features of late-stage C. 
finmarchicus in dense aggregations in that region, as well as 
diapausing C.

[[Page 9330]]

finmarchicus in Jordan, Wilkinson, and Georges Basins, may require 
special management considerations or protection due to outfall 
effluents and other sources of nutrients entering the Gulf of Maine and 
Georges Bank region.

Oil and Gas Exploration and Development

    Currently, there is no oil or natural gas exploration or 
development activity in the Gulf of Maine and Georges Bank area. Since 
1980, all of the area has been under a moratorium on such natural 
resource development. A leasing moratorium has also been in effect on 
the Canadian portion of Georges Bank since 1988. The Nova Scotian and 
Canadian governments extended the moratorium on exploration of eastern 
Georges Bank through 2015, matching the adjoining U.S. moratorium. 
Outside the area under the moratorium, oil and gas exploration and 
production has proceeded in Canadian waters offshore of Nova Scotia.
    There is reason to believe that oil or natural gas exploration and 
development may occur at some point in the future in the specific area 
proposed for designation as critical foraging habitat for right whales. 
There is economic interest in opening up new domestic sources for oil 
and gas, including OCS lands within the specific area proposed for 
designation as critical foraging habitat for right whales. In addition, 
emerging deep water drilling technologies now provide the potential to 
explore deep water basins and other areas within the Gulf of Maine and 
Georges Bank region.
    Activities associated with offshore oil and gas exploration, 
development, and production include drilling, extraction, and 
transportation. Oil spills and discharges are associated with all of 
these activities. Very low concentrations (from less than 1[micro]g/l 
to 1 mg/l) of oil and petroleum hydrocarbons have been found to have 
harmful effects on various marine organisms in laboratory tests 
(Jacobson and Boylan 1973, Johnson 1977, Steele 1977, Kuhnhold et al. 
1978, Howarth 1987). Sublethal effects from hydrocarbon exposure can 
occur at concentrations several orders of magnitude lower than 
concentrations that induce acute toxic effects (Vandermeulen and 
Capuzzo 1983). Impairment of feeding mechanisms, growth rates, 
development rates, energetics, reproductive output, recruitment rates 
and increased susceptibility to disease are some examples of the types 
of sublethal effects that may occur with exposure to petroleum 
hydrocarbons (Capuzzo 1987). Early developmental stages of marine 
organisms, including C. finmarchicus, can be especially vulnerable to 
hydrocarbon exposure. Recruitment failure in chronically contaminated 
habitats may be related to direct toxic effects of hydrocarbon 
contaminated sediments (Krebs and Burns 1977, Cabioch et al. 1980, 
Sanders et al. 1980, Elmgren et al. 1983). A major oil spill could have 
the potential to engulf dense concentrations of copepods, resulting in 
smothering and asphyxiation of any organisms coated with oil (NAS 
1975). Early life history stages such as eggs and larvae may be 
particularly susceptible to both acute and chronic effects of oil 
exposure because even small releases can kill or damage organisms (NRC 
2003).
    As discussed in the Biological Source Document (NMFS 2014a), both 
acute and chronic exposure to oil pollution could result in changes to 
the species composition of phytoplankton communities. It is conceivable 
that species replacing one another due to differential sensitivities to 
oil exposure could result in shifts in phytoplankton community 
structure. Such shifts may then negatively affect the abundance, 
availability, and density of aggregations of late-stage C. finmarchicus 
on which right whales feed. These shifts also may negatively affect the 
abundance of diapausing C. finmarchicus, which serve as source 
populations for late-stage C. finmarchicus. We conclude that the 
essential features of late-stage C. finmarchicus in dense aggregations 
in that region, as well as diapausing C. finmarchicus in Jordan, 
Wilkinson, and Georges Basins, may require special management 
considerations or protection due to impacts associated with oil and gas 
exploration and development as well as oil spills and discharges 
entering the Gulf of Maine and Georges Bank region.

Global Climate Change

    The projected effects of global climate change include a variety of 
potential impacts based on a variety of greenhouse gas emissions 
scenarios, including: Increased average global surface air 
temperatures; sea level rise, increased global precipitation; and 
increased atmospheric carbon dioxide concentrations and ocean 
acidification (IPCC 20142007).
    As discussed in detail in the Biological Source Document (NMFS 
2014a), there are a number of ways that global climate change may 
affect the biological and physical features of foraging habitat 
essential to the conservation of the North Atlantic right whale. The 
distribution of marine fish and plankton are predominantly determined 
by climate. The distribution of marine species in U.S. waters is moving 
northward, and the timing of plankton blooms is shifting (Karl et al. 
2009). The potential effects of global climate change also include 
shifts in productivity, biomass, and species composition of 
zooplankton, including C. finmarchicus, which could negatively impact 
the foraging success of right whales. Inter-annual, decadal, and longer 
time-scale variability in climate can alter the distribution and 
biomass of prey available to right whales. For example, decade-scale 
climatic regime shifts have been related to changes in zooplankton in 
the North Atlantic (Fromentin and Planque 1996). Decadal trends in the 
North Atlantic Oscillation (Hurrell 1995) can affect the position of 
the Gulf Stream (Taylor et al. 1998) and other circulation patterns in 
the North Atlantic that may influence the oceanographic conditions 
responsible for distributing, aggregating and retaining C. 
finmarchicus.
    The predicted range of increase in water temperatures, combined 
with other factors such as increased precipitation and runoff, may 
alter seasonal stratification in the northeast coastal waters. 
Increased stratification of the water column in the Gulf of Maine 
region could affect copepod abundance and densities by limiting or 
preventing the exchange of surface and nutrient rich deep water. 
Increased stratification could affect primary and secondary 
productivity by altering the composition of phytoplankton and 
zooplankton (Mountain 2002). This in turn may negatively impact the 
abundance and distribution of C. finmarchicus patches that support 
right whale foraging and energetic requirements.
    Diapausing C. finmarchicus populations could also be impacted by 
predicted climate change-induced changes to the physical oceanographic 
conditions that create the low-energy environments present within deep 
ocean basins. The low-flow velocity environments of the deep basins 
where aggregations of diapausing copepods are found allow the neutrally 
buoyant, high lipid content copepods to passively aggregate below the 
convective mixed layer and be retained for a period of time (Lynch et 
al. 1998, Visser and J[oacute]nasd[oacute]ttir 1999, Baumgartner et al. 
2003, Pace and Merrick 2008). Changes to the physical oceanographic 
features in the Gulf of Maine region, such as potential increased 
stratification of the water column, may negatively impact the retention 
and subsequent emergence and distribution of diapausing copepod source 
populations in deep ocean basins.

[[Page 9331]]

    Given these expected negative impacts to the essential features for 
foraging, NMFS concludes these features may require special management 
considerations or protections due to climate change.
(2) Essential Features of Calving Habitat
    As summarized in the following sections, the essential features of 
right whale calving habitat may require special management 
considerations or protections because of possible negative impacts from 
the following activities and events: Offshore energy development, 
large-scale offshore aquaculture operations, and global climate change. 
These activities and their potential broad-scale impacts on the 
essential features are discussed in detail in the Biological Source 
Document (NMFS 2014a)

Offshore Energy Development

    There is growing interest in diversifying domestic energy sources, 
including offshore oil and gas exploration and production (including 
liquid natural gas (LNG) terminals), exploration and development of 
techniques for mining mineral deposits from the continental shelf, and 
development and production of offshore energy alternatives in the 
Atlantic (e.g., wind farms, wave energy conversion) (e.g., see DOE 
2008, DOE 2009). Installation and operation of offshore energy 
development facilities are not likely to negatively impact the 
preferred ranges of sea surface roughness, sea surface temperatures, or 
water depths, in that it will not result in lowering or raising the 
available value ranges for these features. However, installation and 
operation of these technologies may fragment the large, contiguous 
areas containing the optimum ranges of all the essential features that 
are necessary for right whale calving and rearing (NMFS 2014a).
    Availability of the essential features may be limited by large 
arrays or fields of permanent structures that may act as physical 
barriers and prevent or limit the ability of right whale mothers and 
calves to move about and find (``select'') the optimal combinations of 
the essential features. The effective size of offshore energy 
facilities includes and is increased by all of the associated 
structures, lines and cables, and activities and noise. There are 
numerous floating, submerged, and emergent structures, mooring lines, 
and transmission cables associated with large ocean energy facilities 
(DOE 2009). Larger whales may have difficulty passing through an energy 
facility with numerous, closely spaced mooring or transmission lines 
(DOE 2009). If the density of structures, lines, and cables associated 
with a facility is sufficiently great and spacing is close, cables 
could have a ``wall effect'' that could force whales around, or 
preclude them from using the areas (Boehlert et al. 2008).
    Therefore, these facilities may limit the availability of the 
essential features such that right whales are not able to move about, 
find and use the optimal combinations of the features necessary for 
successful calving and rearing. These are negative impacts on what 
makes these features essential to the conservation of the species. 
Therefore, we conclude the essential features for right whale calving 
habitat may require special management considerations or protections.

Large-Scale Offshore Aquaculture Operations

    Approximately 20 percent of U.S. aquaculture production is based on 
marine species (NOAA 2010), and there is growing interest in expanding 
aquaculture operations to offset the increasing demand for seafood 
(NOAA 2007). Recent advances in offshore aquaculture technology have 
resulted in several commercial finfish and shellfish operations in more 
exposed, open-ocean locations (e.g., Hawaii, California) (NOAA 2010). 
NOAA's 10-year plan (2007) includes establishing new offshore farms in 
the U.S. Exclusive Economic Zone (EEZ) for finfish, shellfish, and 
algae.
    Large-scale aquaculture operations involve numerous floating or 
submerged structures and mooring lines, and associated activities and 
noise. Offshore aquaculture operations utilize large net-pens (e.g., 
3000 m\3\ capacity) that are partially or fully submerged below the sea 
surface, and are typically anchored to the sea floor. Partially 
submerged net-pens typically employ a floating collar that is flexible 
or strong enough to withstand rough sea conditions and from which the 
containment net is hung (NOAA 2008). Offshore aquaculture operations 
typically include aggregations of several net pens and associated 
structures.
    Installation and operation of large-scale offshore aquaculture 
facilities are not likely to negatively impact the preferred ranges of 
sea surface roughness, sea surface temperatures, or water depths, in 
that it will not result in lowering or raising the available value 
ranges for these features. However, like offshore energy development, 
the construction and operation of large-scale offshore aquaculture 
facilities within the specific calving area have the potential to limit 
the availability of the essential features. Large scale aquaculture 
facilities could force whales to abandon these areas (Young 2001) by 
acting as a barrier, or limiting the whales' ability to move about, and 
find and use the optimal combinations of essential features necessary 
for successful calving and rearing. Installation and operation of these 
facilities may also fragment the large contiguous areas containing 
optimal combinations of the essential features needed for calving and 
rearing. These are negative impacts on what makes these features 
essential to the conservation of the species. Therefore, we conclude 
the essential features for right whale calving habitat may require 
special management considerations or protections.

Global Climate Change

    Global climate change and its potential effects on the environment 
is a very complex issue. Several of the projected future effects of 
global climate change are discussed previously.
    In the specific area identified as potential right whale calving 
critical habitat, sea surface temperatures are influenced by the 
``Atlantic Multi-decadal Oscillation,'' or AMO. The essential feature 
of sea surface temperature may be negatively impacted by global climate 
change, depending on the degree to which the influence of the AMO is 
reduced. The AMO is an ongoing series of long-duration changes in the 
sea surface temperature of the North Atlantic Ocean, with cool and warm 
phases that may last for periods of 20 to 40 years and result in a 
difference of about 1[emsp14][deg]F between extremes (NOAA AOML 2010). 
The AMO also influences the frequency of hurricanes that originate in 
the Atlantic Warm Pool (AWP), with fewer major hurricanes and 
hurricanes making landfall during AMO cool phases.
    However, over the next generation, global climate change is 
projected to be nonlinear, and it is likely that the AMO will have less 
influence over sea surface temperature oscillations than anthropogenic 
global climate change in the North Atlantic (Enfield and Serrano 2009). 
Depending on the degree to which the influence of the AMO is reduced, 
sea surface temperatures may increase by 1 to 3 [deg]C IPCC AR4 (2014). 
There is the potential that the preferred temperature range (7 [deg]C 
to 17 [deg]C) identified for right whales may no longer be available 
within the specific area, or may become available only within smaller 
areas co-occurring with the preferred water depth and sea surface 
conditions, thereby reducing the area available to support the key

[[Page 9332]]

conservation objective of facilitating successful calving.
    Further, relaxation of the present rate of increase in hurricane 
activity may never occur (Enfield and Serrano 2009), potentially 
impacting seasonal sea state conditions in the specific area by 
increasing the frequency of major hurricanes passing through the 
specific area. The essential physical features for North Atlantic right 
whales on their calving grounds are calm sea surface conditions 
associated with Force 4 or less on the Beaufort Scale. Neonate right 
whale calves are relatively weak swimmers and are more vulnerable to 
changes from calm to rough sea state conditions.
    We conclude global climate change may result in negative impacts to 
the preferred ranges identified for the essential features, and to the 
ability of these features to support successful calving. Therefore, the 
essential features may require special management considerations or 
protections to preserve the ability of these features to provide for 
successful calving and rearing of North Atlantic right whales.

Unoccupied Areas

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

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

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

Application of ESA Section 4(b)(2)

    The foregoing discussion described the specific areas within U.S. 
jurisdiction that fall within the ESA section 3(5) definition of 
critical habitat in that they contain the physical and biological 
features essential to the North Atlantic right whale's conservation 
that may require special management considerations or protection. 
Section 4(b)(2) of the ESA requires that we consider the economic 
impact, impact on national security, and any other relevant impact, of 
designating any particular area as critical habitat. Additionally, the 
Secretary has the discretion to consider excluding any area from 
critical habitat if she determines the benefits of exclusion (that is, 
avoiding some or all of the impacts that would result from designation) 
outweigh the benefits of designation based upon the best scientific and 
commercial data available. The Secretary may not exclude an area from 
designation if exclusion will result in the extinction of the species. 
Because the authority to exclude is discretionary, exclusion is not 
required for any particular area under any circumstances.
    The following discussion of impacts summarizes the analysis 
contained in our Draft ESA Section 4(b)(2) Report (NMFS 2014b), which 
identifies the economic, national security, and other relevant impacts 
that we projected would result from including each of the two specific 
areas in the proposed critical habitat designation. We considered these 
impacts when deciding whether to exercise our discretion to propose 
excluding particular areas from the designation. Both positive and 
negative impacts were identified and considered (these terms are used 
interchangeably with benefits and costs, respectively). Impacts were 
evaluated in quantitative terms where feasible, but qualitative 
appraisals were used where that is more appropriate to particular 
impacts. The Draft ESA Section 4(b)(2) Report (NMFS 2014b) is available 
on NMFS' Greater Atlantic Region Web site at 
[www.greateratlantic.fisheries.noaa.gov].
    The primary impacts of a critical habitat designation result from 
the ESA section 7(a)(2) requirement that Federal agencies ensure their 
actions are not likely to result in the destruction or adverse 
modification of critical habitat, and that they consult with NMFS in 
fulfilling this requirement. Determining these impacts is complicated 
by the fact that section 7(a)(2) also requires that Federal agencies 
ensure their actions are not likely to jeopardize the species' 
continued existence. One incremental impact of designation is the 
extent to which Federal agencies modify their proposed actions to 
ensure they are not likely to destroy or adversely modify the critical 
habitat beyond any modifications they would make because of listing and 
the jeopardy requirement. When the same modification would be required 
due to impacts to both the species and critical habitat, the impact of 
the designation is co-extensive with the ESA listing of the species 
(i.e., attributable to both the listing of the species and the 
designation critical habitat). To the extent possible, our analysis 
identified impacts that were incremental to the proposed designation of 
critical habitat--meaning those impacts that are over and above impacts 
attributable to the species' listing or any other existing regulatory 
protections. Relevant, existing regulatory protections (including the 
species' listing) are referred to as the ``baseline'' and are also 
discussed in the Draft Section 4(b)(2) Report.
    The Draft ESA Section 4(b)(2) Report describes the projected future 
federal activities that would trigger section 7 consultation 
requirements because they may affect the essential features, and 
consequently may result in economic costs or negative impacts. 
Additionally, the report describes broad categories of project 
modifications that may reduce impacts to the essential features, and 
states whether the modifications are likely to be solely a result of 
the critical habitat designation or co-extensive with another 
regulation, including the ESA listing of the species. The report also 
identifies the potential national security and other relevant impacts 
that may arise due to the proposed critical habitat designation, such 
as positive impacts that may arise from conservation of the species and 
its habitat, state and local

[[Page 9333]]

protections that may be triggered as a result of designation, and 
education of the public to the importance of an area for species 
conservation.

Economic Impacts

    Economic impacts of the critical habitat designation result through 
implementation of section 7 of the ESA in consultations with Federal 
agencies to ensure their proposed actions are not likely to destroy or 
adversely modify critical habitat. These economic impacts may include 
both administrative and project modification costs; economic impacts 
that may be associated with the conservation benefits of the 
designation are described later.
    We examined the ESA section 7 consultation record over the last 10 
years, as compiled in our Public Consultation Tracking System (PCTS) 
database, to identify the types of Federal activities that may 
adversely affect North Atlantic right whale critical habitat. We 
requested that federal action agencies provide us with information on 
future consultations if we omitted any future actions likely to affect 
the proposed critical habitat. No new activities were identified 
through this process. Of the types of past consultations that ``may 
affect'' some or all of the essential features in either unit of 
proposed critical habitat, we determined that no activities would 
solely affect the essential features. That is, all categories of the 
activities identified would also require consultation for potential 
impacts to the listed species.
    Five categories of activities were identified as likely to recur in 
the future and have the potential to affect the essential features:
    1. Environmental Protection Agency (EPA) Clean Water Act permitting 
or management of pollution discharges through the NPDES programs in 
Unit 1;
    2. United States Coast Guard (USCG) authorization or use of 
dispersants during an oil spill response in Unit 1;
    3. U.S. Army Corps of Engineers (USACE) maintenance dredging or 
permitting of dredge and disposal activities under the Clean Water Act 
in Unit 2;
    4. USACE permitting of marine construction, including shoreline 
restoration and artificial reef placement under the Rivers and Harbors 
Act and/or Clean Water Act in Unit 2;
    5. The Maritime Administration's permitting of siting and 
construction of offshore liquefied natural gas facilities in Unit 1.
    As discussed in more detail in our Draft ESA Section 4(b)(2) Report 
(NMFS, 2014b), we determined that two of these federal actions, Water 
Quality/NPDES related actions and oil spill response activities 
implemented respectively by the EPA and the USCG, could result in 
incremental impacts from section 7 consultations related to the 
proposed critical habitat.
    Additionally, we identified four categories of activities that have 
not occurred in the proposed areas in the past but based on available 
information and discussions with action agencies, may occur in the 
future. If they do occur, these activities may adversely affect the 
essential features. These projected activities are: Oil and gas 
exploration and development activities, directed copepod fisheries, 
offshore alternative energy development activities, and marine 
aquaculture. As with past or ongoing federal activities in the proposed 
critical habitat areas, these four categories of projected future 
actions may trigger consultation because they have the potential to 
adversely affect both the essential features and the whales themselves. 
Three categories of future activities were judged as being likely to 
have incremental impacts due to the proposed critical habitat: Oil and 
gas exploration and development activities (Unit 1), directed copepod 
fishery (Unit 1), and offshore alternative or renewable energy 
activities (Unit 2). Consequently, costs of project modifications 
required through section 7 were considered to be incremental impacts of 
the proposed designation.
    In order to avoid underestimating impacts, we assumed that all 
projected categories of future actions resulting in incremental impacts 
to essential features will require formal consultations, in order to 
estimate both administrative and project modification costs. This 
assumption likely results in an overestimation of the number of future 
formal consultations.
    Of the ongoing or current activities expected to recur in Unit 1, 
EPA's activities under the Clean Water Act related to water quality and 
NPDES programs and the USCG's authorization or use of dispersants 
during an oil spill response are likely to result in incremental 
impacts due to effects on the essential features than the species. 
Based on our analysis of past consultation history we project that over 
the next ten years, there will be 21 consultations involving Water 
Quality/NPDES activities. We also project that there will be 6 
consultations involving oil spill response.
    Of the past or ongoing activities expected to recur in Unit 2, all 
the federal activities identified as having the potential to adversely 
affect the essential features also have the potential to adversely 
affect right whales. These activities are not likely to require 
additional project modifications to address impacts to essential 
features beyond those that may be required to address impacts to the 
whales. Therefore we conclude that the only incremental costs resulting 
from consultations for these activities are the additional 
administrative costs associated with analysis of impacts to the 
essential features.
    Consultations resulting from activities affecting the essential 
features include both administrative and project modification costs. 
Administrative costs include the cost of time spent in meetings, 
preparing letters, and in some cases, developing a biological 
assessment and biological opinion, identifying and designing RPMs, and 
so forth. For this impacts report, we estimated per-project 
administrative costs based on IeC 2013. That impacts report estimates 
administrative costs for different categories of consultations as 
follows: (1) New consultations resulting entirely from critical habitat 
designation; (2) new consultations considering only adverse 
modification (unoccupied habitat); (3) re-initiation of consultation to 
address adverse modification; and (4) additional consultation effort to 
address adverse modification in a new consultation. Given that all the 
consultations we project to result from this proposed rulemaking will 
be co-extensive consultations on new actions that would be evaluating 
impacts to the whales as well as impacts to critical habitat, the 
administrative costs would all be in category 4 above.
    As previously mentioned, we assumed that all future activities that 
may affect the proposed essential features will require formal 
consultations. Based on IeC 2013, we project that each formal 
consultation will result in the following additional costs to address 
critical habitat impacts: $1,400 in NMFS'costs; $1,600 in action agency 
costs; and $880 in third party (e.g., permittee) costs, if applicable. 
Annual estimated administrative costs for the projected number of 
formal consultations representing incremental costs of the critical 
habitat designation are expected to total approximately $82,296 per 
year.
    Of the four categories of activities that have not occurred in the 
proposed areas in the past but may occur in the future, and which have 
the potential to adversely affect the essential features resulting in 
ESA section 7 consultations, only oil and gas exploration and 
development and a directed copepod fishery in the proposed foraging 
area,

[[Page 9334]]

and renewable energy activities in the proposed calving area, would 
result in incremental impacts due to effects on the essential features. 
However, because these are categories of future activity for which 
there is no past consultation history and no specific or planned 
project proposals, we are unable to quantify the number of potential 
future consultations and thus the incremental administrative costs for 
these activities.
    In our impacts analysis, we assumed that categories of activities 
that ``may affect'' the proposed essential features may result in the 
need for some sort of project modification to avoid destruction or 
adverse modification of critical habitat. Thus, we considered the range 
of broad categories of modifications we might seek for these activities 
to avoid negative impacts to the essential features. The cost of 
project modifications depends on the specific project and the 
circumstances of the actual project, for example, its size, timing and 
location. Although we have a projection of the number of future formal 
consultations, we were unable to identify the exact modification or 
combinations of modifications that would be required for any future 
actions. Thus, it is not possible to estimate the costs for project 
modifications that would be required to address adverse effects that 
may occur from all projected future agency actions requiring 
consultation. The same limitation applies to projecting the type, size, 
scale, and thus cost, of project modifications that may be necessary to 
avoid jeopardizing the whales' existence--we are only able to identify 
broad categories of types of potential future project modifications. 
The same categories of potential project modifications that might be 
recommended to avoid impacts to the species could also address 
potential impacts to the essential features. In our analysis, we 
identified where it is possible that unique modifications could be 
required to address impacts to critical habitat, above and beyond those 
needed to address impacts to the whales.

National Security Impacts

    Previous critical habitat designations have recognized that impacts 
to national security result if a designation would trigger future ESA 
section 7 consultations because a proposed military activity ``may 
affect'' the physical or biological feature(s) essential to the listed 
species' conservation. Anticipated interference with mission-essential 
training or testing or unit readiness, either through delays caused by 
the consultation process or through expected requirements to modify the 
action to prevent adverse modification of critical habitat, has been 
identified as a negative impact of critical habitat designations. (See, 
e.g., Proposed Designation of Critical Habitat for the Pacific Coast 
Population of the Western Snowy Plover, 71 FR 34571, June 15, 2006, at 
34583; and Proposed Designation of Critical Habitat for Southern 
Resident Killer Whales; 69 FR 75608, Dec. 17, 2004, at 75633.)
    Based on the past consultation history and information submitted by 
DOD for this analysis, it is unlikely that consultations with respect 
to DOD activities will be triggered as a result of the proposed 
critical habitat designation.
    On September 21, 2009, and again in November 2010, NMFS sent 
letters to DOD requesting information on national security impacts of 
the proposed critical habitat designation, and we received responses 
from the Navy, United States Marine Corps (USMC), USCG, Department of 
Homeland Security (DHS), and the Air Force (USAF). We discuss the 
information contained within the responses thoroughly in the Draft 
Section 4(b)(2) Report (NMFS 2014b) and summarize the information 
below.
    The Navy noted that several of the areas under consideration for 
designation as right whale critical habitat overlap with important Navy 
testing and training or operational areas. The Navy stated that while 
current activities will not destroy or adversely modify the essential 
features of right whale critical habitat, national security impacts 
would result if mitigation measures to protect right whales themselves, 
currently in place in existing critical habitat, were required for 
naval activities conducted within the boundaries of the expanded 
proposed critical habitat. However, measures to protect whales 
themselves are not an impact of the critical habitat designation.
    In 2013, NMFS completed consultation with the Navy on its Atlantic 
Fleet Training and Testing activities (AFFT) conducted within the 
expanded areas proposed in this rulemaking as critical habitat and 
concluded that these activities would not likely jeopardize the 
continued existence of North Atlantic Right Whales. As part of the 
4(b)(2) analysis for this proposed critical habitat designation, NMFS 
reviewed the AFTT activities conducted within the areas proposed as 
critical habitat and concluded the Navy's activities would not likely 
affect the proposed essential features of right whale habitat. U.S. 
Navy training and testing activities are not likely to affect the 
physical or biological features essential to foraging in Unit 1, or 
fragment large, continuous areas of the essential features or alter the 
optimal ranges of these essential features in Unit 2 such that they are 
rendered unsuitable for calving, and calf survival.
    The USCG considers it unlikely that its exercises, operations, and 
training associated with National and Homeland Security, separately or 
in aggregate, would affect the essential features for foraging or 
calving right whale habitat. The USCG asserted in its response that 
should new or existing regulations intended to protect the species be 
applied to the expanded area under consideration for designation as 
critical habitat, National and Homeland Security impacts would likely 
result. As with naval actions discussed previously, measures imposed on 
USCG activities to prevent or minimize harm to whales themselves are 
not an impact of the critical habitat designation.
    The Air Force noted in its reply that while the critical habitat 
area proposed is heavily used for flight operations, restrictions on 
flight operations are not currently imposed in critical habitat for 
right whales. Based on our analysis, Air Force flights in the proposed 
area are not likely to affect the essential features; therefore, there 
would be no need for consultations or operation modifications.
    Based on a review of the information provided by the Navy, USMC, 
and USCG, DHS, and USAF, and on our review of the activities conducted 
by these entities associated with national security within the specific 
areas proposed for designation as right whale critical habitat, their 
activities have no routes of potential adverse effects to the proposed 
essential features and will not require consultation to prevent adverse 
effects to critical habitat (see Draft Section 4(b)(2) Report, NMFS 
2014b). Therefore, based on information available at this time, we do 
not anticipate there will be national security impacts associated with 
the proposed critical habitat for the North Atlantic right whale.

Other Relevant Impacts

    Other relevant impacts of critical habitat designations can include 
conservation benefits to the species and to society, and impacts to 
governmental and private entities. Our Draft Section 4(b)(2) Report 
(NMFS 2014b) discusses conservation benefits of designating the two 
specific areas, and the benefits of

[[Page 9335]]

conserving the right whale to society, in both ecological and economic 
metrics.
    As discussed in the Draft Section 4(b)(2) Report (NMFS 2014b) and 
summarized here, large whales, including the North Atlantic right 
whale, currently provide a range of benefits to society. Given the 
positive benefits of protecting the physical and biological features 
essential to the conservation of the right whale, this protection will 
in turn contribute to an increase in the benefits of this species to 
society in the future as the species recovers. While we cannot quantify 
nor monetize these benefits, we believe they are not negligible and 
would be an incremental benefit of this designation. However, although 
the features are essential to the conservation of right whales, 
critical habitat designation alone will not bring about the recovery of 
the species. The benefits of conserving right whales are, and will 
continue to be, the result of several laws and regulations.
    We identified in the Draft Section 4(b)(2) Report (NMFS 2014b) both 
consumptive (e.g., commercial and recreational fishing) and non-
consumptive (e.g., wildlife viewing) activities that occur in the areas 
proposed as critical habitat. Commercial and recreational fishing are 
components of the economy related to the ecosystem services provided by 
the resources within the proposed right whale critical habitat areas. 
The essential features provide for abundant fish species diversity. 
Commercial fishing is the largest revenue generating activity occurring 
within the proposed critical habitat area, and protection of the 
essential features will contribute to sustaining this activity.
    Further, the economic value of right whales can be estimated in 
part by such metrics as increased visitation and user enjoyment 
measured by the value of whale watching activities.
    Education and awareness benefits stem from the critical habitat 
designation when non-federal government entities or members of the 
general public responsible for, or interested in, North Atlantic right 
whale conservation change their behavior or activities when they become 
aware of the designation and the importance of the critical habitat 
areas and features. Designation of critical habitat raises the public's 
awareness that there are special considerations that may need to be 
taken within the area. Similarly, state and local governments may be 
prompted to carry out programs to complement the critical habitat 
designation and benefit the North Atlantic right whale. Those programs 
would likely result in additional impacts of the designation. However, 
it is impossible to quantify the beneficial effects of the awareness 
gained or the secondary impacts from state and local programs resulting 
from the critical habitat designation.

Proposed Exclusions Under Section 4(b)(2)

    On the basis of our impacts analysis, we are not proposing to 
exercise our discretion to propose excluding any particular areas from 
the proposed critical habitat designation.
    We could not reasonably quantify the total economic costs and 
benefits of the proposed critical habitat designation due to limited 
information. Nevertheless, we believe that our characterization of the 
types of costs and benefits that may result from the designation, in 
particular circumstances, may provide some useful information to 
Federal action agencies and permit applicants that may implement the 
types of activities discussed in our analyses within the designated 
critical habitat. We have based the proposed designation on very 
specifically defined features essential to the species' conservation, 
which allowed us to identify the few, specific effects of federal 
activities that may adversely affect such features and thus require 
section 7 consultation under the ESA. We have discussed to the extent 
possible the circumstances under which section 7 impacts will be 
incremental impacts of this proposed rule. We believe that the 
limitations of current information about potential future projects do 
not allow us to be more specific in our estimates of the section 7 
impacts (administrative consultation and project modification costs) of 
the proposed designation.
    We have analyzed the economic, national security, and other 
relevant impacts of designating critical habitat. While we have 
utilized the best available information and an approach designed to 
avoid underestimating impacts, many of the potential impacts are 
speculative and may not occur in the future. Our conservative 
identification of potential incremental economic impacts indicates that 
any such impacts would be very small, resulting from very few (less 
than 17) federal section 7 consultations annually. Further, the 
analysis indicates that there is no particular area within the areas 
proposed for designation as critical habitat where economic impacts 
would be particularly high or concentrated. No impacts to national 
security are expected. Other relevant impacts include conservation 
benefits of the designation, both to the species and to society. 
Because the features that form the basis of the critical habitat 
designation are essential to the conservation of North Atlantic right 
whales, the protection of critical habitat from destruction or adverse 
modification may at minimum prevent loss of the benefits currently 
provided by the species and may contribute to an increase in the 
benefits of these species to society in the future. While we cannot 
quantify nor monetize the benefits, we believe they are not negligible 
and would be an incremental benefit of this designation. Moreover, our 
analysis indicates that all potential future section 7 consultations on 
impacts to critical habitat features would also be conducted for the 
projects' potential impacts on the species, resulting in at least 
partial co-extensive impacts of the designation and the baseline 
listing of the species. Therefore, we have concluded that there is no 
basis to exclude any particular area from the proposed critical 
habitat.

Critical Habitat Designation

    We are proposing to designate approximately 29,945 nm\2\ of marine 
habitat within the geographical area occupied by North Atlantic right 
whales at the time of its listing. The two units proposed for 
designations are in the Gulf of Maine and Georges Bank region (Unit 1) 
and in waters off the Southeast U.S coast (Unit 2).
    The specific area where the essential foraging features are located 
(``Unit 1'') is in the Gulf of Maine and Georges Bank region and covers 
a total area of approximately 21,334 nm\2\. In Unit 1, the physical and 
biological features that are essential to the conservation of the 
species and that may require special management considerations or 
protection are:
    1. The physical oceanographic conditions and structures of the Gulf 
of Maine and Georges Bank region that combine to distribute and 
aggregate C. finmarchicus for right whale foraging, namely prevailing 
currents and circulation patterns, bathymetric features (basins, banks, 
and channels), oceanic fronts, density gradients, and temperature 
regimes;
    2. Low flow velocities in Jordan, Wilkinson, and Georges Basins 
that allow diapausing C. finmarchicus to aggregate passively below the 
convective layer so that the copepods are retained in the basins;
    3. Late stage C. finmarchicus in dense aggregations in the Gulf of 
Maine and Georges Bank region; and

[[Page 9336]]

    4. Diapausing C. finmarchicus in aggregations in the Gulf of Maine 
and Georges Bank region.
    The specific area where the essential calving features are located 
(``Unit 2'') is in the South Atlantic Bight and covers a total area of 
approximately 8,611 nm\2\. Within Unit 2, the essential features are:
    1. Sea surface conditions associated with Force 4 or less on the 
Beaufort Scale,
    2. Sea surface temperatures of 7 [deg]C to 17 [deg]C, and
    3. Water depths of 6 to 28 meters.

These features simultaneously co-occur over contiguous areas of at 
least 231 nmi\2\ of ocean waters during the months of November and 
April. When these features are available, they are selected by right 
whale cows and calves in dynamic combinations that are suitable for 
calving, nursing, and rearing, and which vary, within the ranges 
specified, depending on factors such as weather and age of the calves.
    No unoccupied areas are proposed for designation of critical 
habitat.

Effects of Critical Habitat Designations

    Section 7(a)(2) of the ESA requires Federal agencies, including 
NMFS, to insure that any action authorized, funded, or carried out by 
the agency (agency action) does not jeopardize the continued existence 
of any threatened or endangered species or destroy or adversely modify 
designated critical habitat. Federal agencies are also required to 
confer with NMFS regarding any actions likely to jeopardize a species 
proposed for listing under the ESA, or likely to destroy or adversely 
modify proposed critical habitat, pursuant to section 7(a)(4). A 
conference involves informal discussions in which NMFS may recommend 
conservation measures to minimize or avoid adverse effects. The 
discussions and conservation recommendations are to be documented in a 
conference report provided to the Federal agency. If requested by the 
Federal agency, a formal conference report may be issued, including a 
biological opinion prepared according to 50 CFR 402.14. A formal 
conference report may be adopted as the biological opinion when the 
species is listed or critical habitat designated, if no significant new 
information or changes to the action alter the content of the opinion. 
When a species is listed or critical habitat is designated, Federal 
agencies must consult with NMFS on any agency actions to be conducted 
in an area where the species is present and that may affect the species 
or its critical habitat. During the consultation, NMFS would evaluate 
the agency action to determine whether the action may adversely affect 
listed species or critical habitat and issue its findings in a 
biological opinion. If NMFS concludes in the biological opinion that 
the agency action would likely result in the destruction or adverse 
modification of critical habitat, NMFS would also recommend any 
reasonable and prudent alternatives to the action. Reasonable and 
prudent alternatives are defined in 50 CFR 402.02 as alternative 
actions identified during formal consultation that can be implemented 
in a manner consistent with the intended purpose of the action, that 
are consistent with the scope of the Federal agency's legal authority 
and jurisdiction, that are economically and technologically feasible, 
and that would avoid the destruction or adverse modification of 
critical habitat. Regulations at 50 CFR 402.16 require federal agencies 
that have retained discretionary involvement or control over an action, 
or where such discretionary involvement or control is authorized by 
law, to reinitiate consultation on previously reviewed actions in 
instances where: (1) Critical habitat is subsequently designated; or 
(2) new information or changes to the action may result in effects to 
critical habitat not previously considered in the biological opinion. 
Consequently, some Federal agencies may request reinitiation of 
consultation or conference with NMFS on actions for which formal 
consultation has been completed, if those actions may affect designated 
critical habitat or adversely modify or destroy proposed critical 
habitat.
    Activities subject to the ESA section 7 consultation process 
include activities on Federal lands and activities on private or state 
lands requiring a permit from a Federal agency or some other Federal 
action, including funding. In the marine environment, activities 
subject to the ESA section 7 consultation process include activities in 
Federal waters and in state waters that (1) have the potential to 
affect listed species or critical habitat, and (2) are carried out by a 
Federal agency, need a permit or license from a Federal agency, or 
receive funding from a Federal agency. ESA section 7 consultation would 
not be required for Federal actions that do not affect listed species 
or critical habitat and for actions in the marine environment or on 
non-Federal and private lands that are not Federally funded, 
authorized, or carried out.

Activities That May Be Affected

    ESA section 4(b)(8) requires in any proposed or final regulation to 
designate or revise critical habitat an evaluation and brief 
description of those activities (whether public or private) that may 
adversely modify such habitat or that may be affected by such 
designation. A variety of activities may affect the proposed critical 
habitat and may be subject to the ESA section 7 consultation process 
when carried out, funded, or authorized by a Federal agency. As 
indicated above and in the 4(b)(2) report, activities (3) through (6) 
and (9) are only predicted to result in incremental administrative 
costs of consultation. As discussed previously, the activities most 
likely to be affected by this critical habitat designation, once 
finalized, are: (1) Water Quality/NPDES permitting and regulatory 
activities (Unit 1); (2) Oil Spill Response (Unit 1); (3) Maintenance 
Dredging and Disposal or Dredging (Unit 2); (4) Construction Permitting 
(Unit 2); (5) Offshore Liquid Natural Gas Facilities (Unit 1); (6) Oil 
and Gas Exploration and Development (Unit 1); (7) Offshore alternative 
energy development activities (Unit 2); (8) Directed copepod fisheries 
(Unit 1); and (9) Marine aquaculture (Unit 2). Private entities may 
also be affected by this proposed critical habitat designation if a 
Federal permit is required, Federal funding is received, or the entity 
is involved in or receives benefits from a Federal project. These 
activities will need to be evaluated with respect to their potential to 
destroy or adversely modify critical habitat. Changes to the actions to 
avoid destruction or adverse modification of proposed critical habitat 
may result in changes to some activities. Please see the ESA Section 
4(b)(2) Report (NMFS 2014b) for more details and examples of changes 
that may need to occur in order for activities to minimize or avoid 
destruction or adverse modification of designated critical habitat. 
Questions regarding whether specific activities will constitute 
destruction or adverse modification of critical habitat should be 
directed to NMFS (see ADDRESSES and FOR FURTHER INFORMATION CONTACT).

Public Comments Solicited

    We request that interested persons submit comments, information, 
maps, and suggestions concerning this proposed rule during the comment 
period (see DATES). We are soliciting comments or suggestions from the 
public, other concerned governments and agencies, the scientific 
community, industry, or any other interested party concerning this 
proposed rule. We are also soliciting economic data and information 
pertaining to our economic analysis and our Initial Regulatory 
Flexibility Analysis to improve our assessment of the impacts of this 
proposed rule on small entities. You

[[Page 9337]]

may submit your comments and materials concerning this proposal by any 
one of several methods (see ADDRESSES). The proposed rule, maps, fact 
sheets, references, and other materials relating to this proposal can 
be found on the NMFS Greater Atlantic Region Web site at 
www.greateratlantic.fisheries.noaa.gov/. We will consider all comments 
pertaining to this designation received during the comment period in 
preparing the final rule. Accordingly, the final designation may differ 
from this proposal.

Public Hearings

    50 CFR 424.16(c)(3) requires the Secretary of Commerce (Secretary) 
to promptly hold at least one public hearing if any person requests one 
within 45 days of publication of a proposed rule to designate critical 
habitat. Such hearings provide the opportunity for interested 
individuals and parties to give comments, exchange information and 
opinions, and engage in a constructive dialogue concerning this 
proposed rule.

Information Quality Act and Peer Review

    The data and analyses supporting this proposed action have 
undergone a pre-dissemination review and have been determined to be in 
compliance with applicable information quality guidelines implementing 
the Information Quality Act (IQA) (Section 515 of Public Law 106-554). 
On July 1, 1994, a joint USFWS/NMFS policy for peer review was issued 
stating that the Services would solicit independent peer review to 
ensure the best biological and commercial data is used in the 
development of rulemaking actions and draft recovery plans under the 
ESA (59 FR 34270). In addition, on December 16, 2004, the Office of 
Management and Budget (OMB) issued its Final Information Quality 
Bulletin for Peer Review (Bulletin). The Bulletin was published in the 
Federal Register on January 14, 2005 (70 FR 2664), and went into effect 
on June 16, 2005. The primary purpose of the Bulletin is to improve the 
quality and credibility of scientific information disseminated by the 
Federal government by requiring peer review of ``influential scientific 
information'' and ``highly influential scientific information'' prior 
to public dissemination. ``Influential scientific information is 
defined as information the agency reasonably can determine will have or 
does have a clear and substantial impact on important public policies 
or private sector decisions.'' The Bulletin provides agencies broad 
discretion in determining the appropriate process and level of peer 
review. Stricter standards were established for the peer review of 
``highly influential scientific assessments,'' defined as information 
whose ``dissemination could have a potential impact of more than $500 
million in any one year on either the public or private sector or that 
the dissemination is novel, controversial, or precedent-setting, or has 
significant interagency interest.''
    The Draft Biological Source Document (NMFS 2014a) and Draft Section 
4(b)(2) Report (NMFS 2014b) supporting this proposed critical habitat 
rule are considered influential scientific information and subject to 
peer review. To satisfy our requirements under the OMB Bulletin, we 
obtained independent peer review of those draft documents, which 
support this critical habitat proposal, and incorporated the peer 
review comments prior to dissemination of this proposed rulemaking. For 
this action, compliance with the OMB Peer Review Bulletin satisfies any 
peer review requirements under the 1994 joint peer review policy.
    The Draft Biological Source Document (2014a) and Draft ESA Section 
4(b)(2) Report (NMFS 2014b) prepared in support of this proposal for 
critical habitat for the North Atlantic right whale are available on 
our Web site at www.greateratlantic.fisheries.noaa.gov, on the Federal 
eRulemaking Web site at http://www.regulations.gov, or upon request 
(see ADDRESSES).

Required Determinations

Regulatory Planning and Review (E.O. 12866)

    This proposed rule has been determined to be significant under 
Executive Order (E.O.) 12866.

National Environmental Policy Act

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

Regulatory Flexibility Act

    We prepared an initial regulatory flexibility analysis (IRFA) 
pursuant to section 603 of the Regulatory Flexibility Act (5 U.S.C. 
601, et seq.), which describes the economic impact this proposed rule, 
if adopted, would have on small entities. The IRFA is found in Appendix 
B of the Draft ESA Section 4(b)(2) Report and is available upon request 
(see ADDRESSES). A summary of that document follows.
    This proposed action would replace the 1994 critical habitat for 
right whales in the North Atlantic with two new areas of critical 
habitat for the North Atlantic right whale pursuant to ESA sections 
4(a)(3)(A)(i) and 4(b)(3)(D). The areas under consideration contain 
approximately 29,953 nm\2\ of marine habitat in the Gulf of Maine-
Georges Bank region (Unit 1) and off the coasts of northern Florida, 
Georgia, South Carolina and the southern part of North Carolina (Unit 
2). The purpose of this action is to designate, within the geographical 
area occupied by the species at the time it was listed, the specific 
areas that contain the physical and biological features essential to 
the conservation of the species and which may require special 
management considerations or protection. No areas outside the species' 
geographical range have been identified as essential to its 
conservation; therefore, none are proposed for designation in this 
action. The objective is to help conserve endangered North Atlantic 
right whales.
    The proposed critical habitat rule does not directly apply to any 
particular entity, small or large. The rule would be implemented under 
ESA Section 7(a)(2), which requires that Federal agencies insure, in 
consultation with NMFS, that any action they authorize, fund, or carry 
out is not likely to destroy or adversely modify critical habitat. That 
consultation process may result in the recommendation or requirement of 
project modifications in order to protect critical habitat.
    The proposed rule, in conjunction with the section 7(a)(2) 
consultation process, may indirectly affect small businesses, small 
nonprofit organizations, and small governmental jurisdictions if they 
engage in activities that may affect the essential features identified 
in this proposed designation and if they receive funding or 
authorization for such activity from a federal agency. Such activities 
would trigger ESA section 7 consultation requirements and potential 
requirements to modify proposed activities to avoid destroying or 
adversely modifying the critical habitat. The proposed rule may also 
indirectly benefit small entities that benefit from or strive for the 
protection of the essential features, such as commercial fishing and 
whale watching industries. The past consultation record from which we 
have projected likely federal actions over the next 10 years indicates 
that applicants for federal permits or funds have included small 
entities in the past.

[[Page 9338]]

    A review of historical ESA section 7 consultations involving 
projects in the areas proposed for designation is described in Section 
3.2 of the Draft ESA Section 4(b)(2) Report prepared for this 
rulemaking. We have concluded, based on our review of past section 7 
consultations, and analyses in our draft 4(b)(2) report (NMFS 2014b), 
that no category of activity would trigger consultation on the basis of 
the critical habitat designation alone. Based on our review of past 
consultations, we have identified five categories of activities that 
may affect the proposed critical habitat: in Unit 1 National Pollution 
Discharge Elimination System (NPDES) permitting and oil spill response 
and; in Unit 2 dredging and spoil disposal, marine construction 
permitting, and construction, and operation of energy facilities. Of 
those, we identified the following categories of actions that may have 
incremental impacts: for Unit 1, water quality/NPDES and, oil spill 
response. We did not identify any for Unit 2. We also identified four 
new (i.e., not previously consulted on) categories of federal 
activities that may occur in the future and, if they do occur, may 
affect the essential features. In Unit 1 these potential activities 
are: (1) Oil and gas exploration and development activities; and (2) 
directed copepod fisheries. In Unit 2 we have identified three 
categories of federal activities that could occur in the future: (1) 
Oil and gas exploration; (2) offshore alternative energy developments; 
and (3) marine aquaculture. Of those, we identified the following 
categories of actions that may have incremental impacts: Oil and gas 
exploration; (2) offshore alternative energy developments. Potential 
project modifications we have identified that may be required to 
prevent these types of projects from destroying or adversely modifying 
critical habitat include: Project relocation, project redesign, 
conditions monitoring, water quality standard modification, pollution 
control measures, timing restrictions, and area restrictions as 
outlined in Table 11 of the Draft ESA Section 4(b)(2) Report (NMFS 
2014b).
    While we cannot determine relative numbers of small and large 
entities that may be affected by this proposed rule, there is no 
indication that affected project applicants would be limited to, nor 
disproportionately comprise, small entities. It is unclear whether 
small entities would be placed at a competitive disadvantage compared 
to large entities. However, as described in the Draft ESA Section 
4(b)(2) Report (NMFS 2014b), consultations and project modifications 
will be required based on the type of permitted action and its 
associated impacts on the essential critical habitat feature. Because 
the costs of many potential project modifications that may be required 
to avoid adverse modification of critical habitat are unit costs such 
that total project modification costs would be proportional to the size 
of the project, it is not unreasonable to assume that larger entities 
would be involved in implementing the larger projects with 
proportionally larger project modification costs.
    It is also unclear whether the proposed rule will significantly 
reduce profits or revenue for small businesses. As discussed throughout 
the Draft ESA Section 4(b)(2) Report (NMFS 2014b), we assumed all of 
the future consultations that may result in incremental costs 
attributable to the proposed critical habitat will be formal 
consultations. This conclusion likely results in an overestimate of the 
impacts of the proposed action. In addition, as stated previously, 
though it is not possible to determine the exact cost of any given 
project modification resulting from consultation, the smaller projects 
most likely to be undertaken by small entities would likely result in 
relatively small modification costs.
    Economic impacts of the proposed action consist of two main 
components: administrative costs, and costs of modifying projects in 
order to avoid destroying or adversely modifying the critical habitat. 
These costs may be incurred by NMFS, the Federal action agency, or a 
third party proposing the activity in areas proposed as critical 
habitat. The only quantitative cost estimates we can provide for this 
proposed action are the estimated administrative costs associated with 
ESA section 7 consultations required due to potential impacts to both 
the proposed critical habitat and the listed species. Based on our 
analysis in the 4(b)(2) report (NMFS 2014b), we have identified 
categories of federal actions that ``may affect'' the essential 
features in the future, but all of these projects will also affect the 
listed species. We considered whether any of these future activities 
may pose a greater threat to the essential features than to the listed 
species in order to identify any incremental costs of the designation. 
Based on our review (NMFS 2014b), we have determined that impacts 
resulting from EPA's management of municipal wastewater discharges to 
offshore waters and EPA's activities implementing the NPDES programs, 
as well as the USCG authorization or use of dispersants during an oil 
spill response in Unit 1, are more attributable to the critical habitat 
designation and are therefore incremental. In addition, we have 
identified two potential future activities that may have greater 
effects on the essential features than the species, and thus the 
impacts are incremental. These are oil and gas exploration and 
development in Unit 1 and the development of offshore renewable energy 
in Unit 2. Therefore, we conclude that there are incremental impacts 
attributable to this critical habitat designation. The associated 
estimated administrative annual costs for the projected number of 
formal consultations projected to be focused more on critical habitat 
are expected to cost approximately $82,296 per year. Economic effects 
from the action are not expected to be significant and are not 
anticipated to affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, local or tribal governments 
or communities.
    Third party applicants or permittees would be expected to incur 
costs associated with participating in the administrative process of 
consultation along with the permitting federal agency. The average per 
consultation administrative costs for third parties is approximately 
$880. Because we have assumed all potential future consultations will 
be formal this may represent an overestimation of the costs. It is not 
possible to identify which third parties would qualify as small 
business entities. This action does not contain any new collection-of-
information, reporting, recordkeeping, or other compliance 
requirements. Any reporting requirements associated with reporting on 
the progress and success of implementing project modifications are not 
likely to require special skills to satisfy.
    In Unit 1, commercial fishing is the largest revenue generating 
activity occurring within the proposed critical habitat Unit 1; 
commercial fishing is not identified as an activity for which project 
modifications might be necessary. We have concluded, that with the 
exception of a possible future proposal to conduct a directed copepod 
fishery, the proposed action to designate critical habitat for the 
North Atlantic right whale will not have a direct impact on the 
profitability of small commercial fishing entities. That is because we 
have concluded that current fishing practices and techniques will not 
affect the essential foraging features in Unit 1. In 2014, based on a 
review of the number of active fishing vessels and dealers and trips 
landed in ME, NH, MA or RI in the Gulf of Maine Region, we have 
determined that there were 483 dealers and 8,094 fishing vessels that

[[Page 9339]]

meet the definition of small business entities. These numbers likely 
provide an overestimate of the total number of vessels and fish dealers 
engaged in the harvest of seafood within Unit 1 as it includes some 
non-federally-permitted vessels fishing only in state waters. As noted 
in the 4(b)(2) report, with the exception of a potential future 
proposal for a directed copepod fishery there are no fishery related 
activities that would trigger consultation on the basis of the critical 
habitat designation.
    In Unit 1, another potentially impacted small entity identified is 
small municipalities. A review of the consultation history indicates 
that we have consulted with the U.S. EPA on small governmental 
jurisdictions' (population less than or equal to 50,000) municipal 
wastewater discharges adjacent to the area under consideration for 
designation as critical habitat. Based on our review of past 
consultation history we are projecting a total of 2l consultations over 
the next 10 years involving primarily small municipalities and NPDES/
Water Quality activities. Any small municipality that proposes to 
discharge pollutants to waters of the United States must obtain a 
discharge permit from EPA or their appropriate state environmental 
protection agency, depending on which agency administers the permit 
program, to ensure compliance with the Clean Water Act. The Section 7 
consultation requirement applies to the EPA's, but not state agencies', 
authorization of discharges that may affect listed species and critical 
habitat. Of the states bordering proposed Unit 1, EPA administers the 
discharge permit program only in Massachusetts and New Hampshire; 
therefore, consultations with EPA would be required for municipal 
discharges only from those two states. Thus, the number of small 
municipalities that might be impacted would be less than the 20 
predicted to be involved in consultations from all states bordering 
Unit 1, over the next 10 years. Generally, discharge permits need to be 
renewed every 5 years unless they are administratively extended, so 
there is the potential for consultation approximately every 5 years or 
so. In the past, we have consulted with EPA on discharges from publicly 
owned treatment works operated by small municipalities. Based on the 
past consultation history, we believe that any future economic impact 
to small municipalities due to consultation to analyze impacts to right 
whale critical habitat from wastewater discharge would be small.
    Other small business entities include the approximately 55-70 
whale-watching companies that operate within the area on which are 
found the essential foraging features under consideration for 
designation as critical habitat. While these small businesses may 
benefit indirectly from the preservation of the current ecosystem, 
approach regulations prohibit the targeting of right whales by these 
whale watching operations. Whale watching companies would not be 
negatively affected by this action as their activities were not 
identified as having the potential to affect the features. There is the 
potential for some unquantifiable positive benefit to accrue to these 
small businesses as a result of the preservation and maintenance of the 
ecosystem benefits associated with the essential foraging features.
    In Unit 2, the only category of potentially impacted small entities 
is wind energy firms. Structures associated with these activities could 
fragment large, continuous areas of the essential features such that 
Unit 2 is rendered unsuitable for calving right whales. Potential 
project modifications to minimize impacts to essential features would 
likely focus on project design and density of structures. The SBA 
revised the size standards for 13 industries in the North American 
Industry Classification system (NAICS) Sector 22, Utilities. Relevant 
to this proposed action, the revised SBA small business now categorizes 
the small business entity for wind electric power generation as any 
firm with 250 employees or less. We are unable to quantify the 
incremental impacts at this time due to the lack of past consultation 
history and any specific or planned federal proposals for these 
projects. Thus, we would only be speculating in estimating the number 
of potential projects in this category that may require consultation 
due to critical habitat impacts over the next 10 years, and further 
speculating in predicting the number of small entities that might be 
involved.
    No federal laws or regulations duplicate or conflict with the 
proposed rule. Existing Federal laws and regulations overlap with the 
proposed rule only to the extent that they provide protection to marine 
natural resources or whales generally. However, no existing laws or 
regulations specifically prohibit destruction or adverse modification 
of critical habitat for, and focus on the recovery of, North Atlantic 
right whales.
    We encourage all small businesses, small governmental 
jurisdictions, and other small entities that may be affected by this 
proposed rule to comment on the potential economic impacts of the 
proposed designation, such as anticipated costs of consultation and 
potential project modifications, to improve the draft analysis.
    The alternatives to the proposed designation considered consisted 
of a no-action alternative, our preferred alternative, and an 
alternative with larger areas designated in both Unit 1 and Unit 2 
areas. The no-action, or no designation, alternative would result in no 
additional ESA section 7 consultations relative to the status quo of 
the species' listing and existing critical habitat. However, the 
physical and biological features forming the basis for our proposed 
critical habitat designation are essential to North Atlantic right 
whale conservation, and conservation for this species will not succeed 
without the availability of these features. Thus, the lack of 
protection of the critical habitat features from adverse modification 
could result in continued declines in abundance of the right whale, and 
loss of associated economic values right whales provide to society.
    Under the preferred alternative two specific areas that provide 
foraging (Unit 1) and calving (Unit 2) functions for the North Atlantic 
right whale are proposed as critical habitat. These areas contain the 
physical and biological features essential to the conservation of the 
North Atlantic right whale. The preferred alternative was selected 
because it reflects the best available scientific information on right 
whale habitat, best implements the critical habitat provisions of the 
ESA by defining the specific features that are essential to the 
conservation of the species, and offers greater conservation benefits 
relative to the no action alternative.
    Under the Unit 1 alternative, we considered an area that would 
encompass additional right whale sightings within the Gulf of Maine-
Georges Bank region (particularly inshore waters along the coasts of 
Maine, New Hampshire and Massachusetts), as well as additional right 
whale sightings to the south and east of the southern boundary of 
proposed Unit 1 resulting in a much larger geographic area. However, 
these sightings did not constitute a pattern of repeated annual 
observations. In addition, North Atlantic right whales are seldom 
reported in small coastal bays and inshore waters and feeding 
aggregations are not in these areas, indicating that the physical and 
biological features present in these areas do not provide the foraging 
functions essential to the conservation of the

[[Page 9340]]

species in these areas. Therefore, we rejected this alternative because 
the inshore waters along the coasts of Maine, New Hampshire and 
Massachusetts are not considered to meet the definition of critical 
habitat.
    In addition we considered including areas to the south and east of 
the southern boundary of the proposed Unit 1 to encompass additional 
right whale sightings. These right whale sightings were not included 
within the proposed areas because a pattern of repeated annual 
observations is not evident in these areas. Typically, whales are 
sighted in these areas in one year, but are not seen again for a number 
of years. Most likely, these are sightings of migrating whales (Pace 
and Merrick 2008).
    In Unit 2, we considered extending the boundaries to just south of 
Cape Canaveral, Florida, similar to existing SE calving critical 
habitat. Moving the proposed boundary southward would have captured 
southern habitat predicted by Good's (2008) calving habitat model for 
one month. However, Garrison's (2007) habitat model didn't predict 
suitable calving habitat that far south when based on the 75th 
percentile of predicted sightings per unit effort (SPUE) (91% of 
historical sightings). Since Garrison's 75th percentile captures 91% of 
historical sightings, we were comfortable with not examining additional 
model results by Garrison (e.g., habitat based on 65th-70th percentile 
of predicted SPUE which would represent >91% of historical sightings). 
Good's model also predicted suitable habitat for one month north of our 
proposed Unit 2 boundary along much of North Carolina. However, Good 
stated that the combined model using all four months (Jan-March) best 
represented calving habitat in space and time. Garrison (2007) and 
Keller et al. (2012) cautioned against extending their models too far 
north of where the underlying data were collected because other 
ecological variables may come into play. Given that the 75th percentile 
from Garrison (2007) and Keller et al. (2012) and Good's (2008) habitat 
selected in three and four months account for 91 and 85 percent of all 
observed right whale mother-calf pair sightings, respectively, and 
Good's (2008) combined (four month) model is the best representation of 
potential calving habitat both in time and space, we believe these 
predicted habitat areas are the best basis for determining right whale 
calving habitat in the southeastern U.S. Consequently, we considered, 
but eliminated, the alternatives of farther south (to ~Canaveral) or 
farther north (along the entire North Carolina coast), based on the 
reasons stated above.

Coastal Zone Management Act

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

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

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

Federalism (E.O. 13132)

    Pursuant to the Executive Order on Federalism, E.O. 13132, we 
determined that this proposed rule does not have significant Federalism 
effects and that a Federalism assessment is not required. However, in 
keeping with Department of Commerce policies and consistent with ESA 
regulations at 50 CFR 424.16(c)(1)(ii), we request information from, 
and will coordinate development of this proposed critical habitat 
designation with, appropriate state resource agencies in Maine, New 
Hampshire, Massachusetts, Rhode Island, Connecticut, New York, New 
Jersey, Delaware, Maryland, Virginia, North Carolina, South Carolina, 
Georgia, and Florida. The proposed designations may have some benefit 
to state and local resource agencies in that the proposed rule more 
clearly defines the physical and biological features essential to the 
conservation of the species and the areas on which those features are 
found. It may also assist local governments in long-range planning 
(rather than waiting for case by-case ESA section 7 consultations to 
occur).

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

    On May 18, 2001, the President issued an Executive Order on 
regulations that significantly affect energy supply, distribution, and 
use. E.O. 13211 requires agencies to prepare Statements of Energy 
Effects when undertaking an action expected to lead to the promulgation 
of a final rule or regulation that is a significant regulatory action 
under E.O. 12866 and is likely to have a significant adverse effect on 
the supply, distribution, or use of energy. OMB Guidance on 
Implementing E.O. 13211 (July 13, 2001) states that significant adverse 
effects could include any of the following outcomes compared to a world 
without the regulatory action under consideration: (1) Reductions in 
crude oil supply in excess of 10,000 barrels per day; (2) reductions in 
fuel production in excess of 4,000 barrels per day; (3) reductions in 
coal production in excess of 5 million tons per year; (4) reductions in 
natural gas production in excess of 25 million mcf per year; (5) 
reductions in electricity production in excess of 1 billion kilowatt-
hours per year or in excess of 500 megawatts of installed capacity; (6) 
increases in energy use required by the regulatory action that exceed 
any of the thresholds above; (7) increases in the cost of energy 
production in excess of one percent; (8) increases in the cost of 
energy distribution in excess of one percent; or (9) other similarly 
adverse outcomes. A regulatory action could also have significant 
adverse effects if it: (1) Adversely affects in a material way the 
productivity, competition, or prices in the energy sector; (2) 
adversely affects in a material way productivity, competition or prices 
within a region; (3) creates a serious inconsistency or otherwise 
interfere with an action taken or planned by another agency regarding 
energy; or (4) raises novel legal or policy issues adversely affecting 
the supply, distribution or use of energy arising out of legal 
mandates, the President's priorities, or the principles set forth in 
E.O. 12866 and 13211. This rule, if finalized, will not have a 
significant adverse effect on the supply, distribution, or use of 
energy. Therefore, we have not prepared a Statement of Energy Effects. 
The rationale for this determination follows.
    We have considered the potential impacts of this action on the 
supply, distribution, or use of energy. The proposed critical habitat 
designation will not affect the distribution or use of energy and would 
not affect supply. We have concluded that oil and gas exploration and 
development that might occur in the future, offshore liquid natural gas 
(LNG) facilities, and alternative energy projects may affect both the 
species and the essential features of critical habitat. As discussed in 
the Draft Section 4(b)(2) Report, we anticipate that there may be small 
additional incremental administrative

[[Page 9341]]

and project modification costs associated with the section 7 
consultations on oil/gas exploration/development in Unit 1 and 
alternative energy projects in Unit 2 due to this proposed rule.
    With regard to LNG facilities in Unit 1, we do not anticipate 
incremental impacts from this rule on LNG activities based on our 
analysis of the potential impacts of this activity. Absent this 
proposed critical habitat rule, federal agencies authorizing, funding, 
or carrying out these energy-related activities would be required to 
consult with NMFS regarding impacts to right whales themselves, and 
other listed species such as sea turtles, under the jeopardy standard. 
However, if this critical habitat rule were finalized, we would expect 
the additional, critical habitat-related administrative costs to be 
miniscule, and we would expect any critical habitat-related project 
modification costs to insignificant.
    The proposed action might result in project modifications that 
result in changes to how energy extraction is conducted, but these 
modifications would not result in a reduction of energy supply or 
production or increases in energy use. The proposed action would not 
result in an increase in the cost of energy production in excess of one 
percent.
    In Unit 2, depending on the size, scale, and configuration of a 
potential wind farm, the installation and operation of an array of wind 
turbines may fragment large, continuous areas of the essential features 
such that Unit 2 is rendered unsuitable for calving right whales. 
Therefore, potential project modifications may be recommended during a 
section 7 consultation including project relocation or project 
redesign. Recommending relocation of a proposed wind farm may result in 
increased costs per kilowatt (kW). These increased costs may stem from 
increased distance from shore, increased water depths, or different 
environmental conditions at the alternative site, each of which may 
drive up construction, installation, or operation and maintenance 
costs. Because potential project modifications recommended during a 
section 7 consultation are dependent on the specific project and the 
circumstances of the new project's routes of effect on the species and 
the essential features, an estimate of the average cost or range of 
costs resulting from these recommendations cannot be reasonably made at 
this time.
    As discussed, above and in the Draft ESA Section 4(b)(2) Report, 
any potential project modification that would be recommended to avoid 
impacts to the species would also address potential impacts to the 
essential features. In addition, in some cases, potential project 
modifications are common environmental mitigation measures that are 
already being performed under existing laws and regulations that seek 
to prevent or minimize adverse impacts to marine resources in general. 
Therefore, it appears unlikely that the energy industry will experience 
``a significant adverse effect'' as a result of the critical habitat 
designation for North Atlantic right whale.

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

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

Takings (E.O. 12630)

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

References

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

List of Subjects in 50 CFR Part 226

    Endangered and threatened species.

    Dated: February 12, 2015.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
    For the reasons set out in the preamble, we propose to amend 50 CFR 
part 226 as follows:

PART 226--DESIGNATED CRITICAL HABITAT

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

    Authority: 16 U.S.C. 1533.

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

[[Page 9342]]

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

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

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

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

--------------------------------------------------------------------------------------------------------------------------------------------------------
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
42[deg]59.986' N....................  70[deg]44.654' W.......  TO                    Rye Harbor.
42[deg]59.956' N....................  70[deg]44.737' W.......                        Rye Harbor.
42[deg]53.691' N....................  70[deg]48.516' W.......  TO                    Hampton Harbor.
42[deg]53.516' N....................  70[deg]48.748' W.......                        Hampton Harbor.
42[deg]49.136' N....................  70[deg]48.242' W.......  TO                    Newburyport Harbor.
42[deg]48.964' N....................  70[deg]48.282' W.......                        Newburyport Harbor.
42[deg]42.145' N....................  70[deg]46.995' W.......  TO                    Plum Island Sound.
42[deg]41.523' N....................  70[deg]47.356' W.......                        Plum Island Sound.
42[deg]40.266' N....................  70[deg]43.838' W.......  TO                    Essex Bay.
42[deg]39.778' N....................  70[deg]43.142' W.......                        Essex Bay.
42[deg]39.645' N....................  70[deg]36.715' W.......  TO                    Rockport Harbor.
42[deg]39.613' N....................  70[deg]36.60' W........                        Rockport Harbor.
42[deg] 20.665' N...................  70[deg] 57.205' W......  TO                    Boston Harbor.
42[deg] 20.009' N...................  70[deg] 55.803' W......                        Boston Harbor.
42[deg] 19.548' N...................  70[deg] 55.436' W......  TO                    Boston Harbor.
42[deg] 18.599' N...................  70[deg] 52.961' W......                        Boston Harbor.
42[deg]15.203' N....................  70[deg]46.324' W.......  TO                    Cohasset Harbor.
42[deg]15.214' N....................  70[deg]47.352' W.......                        Cohasset Harbor.
42[deg]12.09' N.....................  70[deg]42.98' W........  TO                    Scituate Harbor.
42[deg]12.211' N....................  70[deg]43.002' W.......                        Scituate Harbor.
42[deg]09.724' N....................  70[deg]42.378' W.......  TO                    New Inlet.
42[deg]10.085' N....................  70[deg]42.875' W.......                        New Inlet.
42[deg]04.64' N.....................  70[deg]38.587' W.......  TO                    Green Harbor.

[[Page 9343]]

 
42[deg]04.583' N....................  70[deg]38.631' W.......                        Green Harbor.
41[deg]59.686' N....................  70[deg]37.948' W.......  TO                    Duxbury Bay/Plymouth Harbor.
41[deg]58.75' N.....................  70[deg]39.052' W.......                        Duxbury Bay/Plymouth Harbor.
41[deg]50.395' N....................  70[deg]31.943' W.......  TO                    Ellisville Harbor.
41[deg]50.369' N....................  70[deg]32.145' W.......                        Ellisville Harbor.
41[deg]45.53' N.....................  70[deg]09.387' W.......  TO                    Sesuit Harbor.
41[deg]45.523' N....................  70[deg]09.307' W.......                        Sesuit Harbor.
41[deg]45.546' N....................  70[deg]07.39' W........  TO                    Quivett Creek.
41[deg]45.551' N....................  70[deg]07.32' W........                        Quivett Creek.
41[deg]47.269' N....................  70[deg]01.411' W.......  TO                    Namskaket Creek.
41[deg]47.418' N....................  70[deg]01.306' W.......                        Namskaket Creek.
41[deg]47.961' N....................  70[deg]0.561' W........  TO                    Rock Harbor Creek.
41[deg]48.07' N.....................  70[deg]0.514' W........                        Rock Harbor Creek.
41[deg]48.932' N....................  70[deg]0.286' W........  TO                    Boat Meadow River.
41[deg]48.483' N....................  70[deg]0.216' W........                        Boat Meadow River.
41[deg]48.777' N....................  70[deg]0.317' W........  TO                    Herring River.
41[deg]48.983' N....................  70[deg]0.196' W........                        Herring River.
41[deg]55.501' N....................  70[deg]03.51' W........  TO                    Herring River, inside Wellfleet Harbor.
41[deg]55.322' N....................  70[deg]03.191' W.......                        Herring River, inside Wellfleet Harbor.
41[deg]53.922' N....................  70[deg]01.333' W.......  TO                    Blackfish Creek/Loagy Bay.
41[deg]54.497' N....................  70[deg]01.182' W.......                        Blackfish Creek/Loagy Bay.
41[deg]55.503' N....................  70[deg]02.07' W........  TO                    Duck Creek.
41[deg]55.753' N....................  70[deg]02.281' W.......                        Duck Creek.
41[deg]59.481' N....................  70[deg]04.779' W.......  TO                    Pamet River.
41[deg]59.563' N....................  70[deg]04.718' W.......                        Pamet River.
42[deg]03.601' N....................  70[deg]14.269' W.......  TO                    Hatches Harbor.
42[deg]03.601' N....................  70[deg]14.416' W.......                        Hatches Harbor.
41[deg]48.708' N....................  69[deg]56.319' W.......  TO                    Nauset Harbor.
41[deg]48.554' N....................  69[deg]56.238' W.......                        Nauset Harbor.
41[deg]40.685' N....................  69[deg]56.781' W.......  TO                    Chatham Harbor.
41[deg]40.884' N....................  69[deg]56.28' W........                        Chatham Harbor.
--------------------------------------------------------------------------------------------------------------------------------------------------------


(xi) In addition, the specific area does not include waters landward of 
the 72 COLREGS lines (33 CFR part 80) as described in paragraphs 
(b)(1)(xi)(A), (B), and (C) of this section.

    (A) Portland Head, ME to Cape Ann, MA--A line drawn from the 
northernmost extremity of Farm Point to Annisquam Harbor Light.
    (B) Cape Ann MA to Marblehead Neck, MA--(1) A line drawn from 
Gloucester Harbor Breakwater Light to the twin towers charted at 
latitude 42[deg]35.1' N. longitude 70[deg]41.6' W.
    (2) A line drawn from the westernmost extremity of Gales Point to 
the easternmost extremity of House Island; thence to Bakers Island 
Light; thence to Marblehead Light.
    (C) Hull, MA to Race Point, MA--(1) A line drawn from Canal 
Breakwater Light 4 south to the shoreline.


(xii) The specific area does not include inshore areas, bays, harbors 
and inlets, as delineated in paragraphs (b)(1)(x) and (xi) of this 
section.
    (2) Unit 2. Unit 2 includes marine waters from Cape Fear, North 
Carolina, southward to 29[deg]N latitude (approximately 43 miles north 
of Cape Canaveral, Florida) within the area bounded on the west by the 
shoreline and the 72 COLREGS lines, and on the east by rhumb lines 
connecting the following points in the order stated from north to 
south.

------------------------------------------------------------------------
 
------------------------------------------------------------------------
N Latitude................................  W Longitude
33[deg]51'................................  at shoreline
33[deg]42'................................  77[deg]43'
33[deg]37'................................  77[deg]47
33[deg]28'................................  78[deg]33
32[deg]59'................................  78[deg]50'
32[deg]17'................................  79[deg]53'
31[deg]31'................................  80[deg]33'
30[deg]43'................................  80[deg]49'
30[deg]30'................................  81[deg]01'
29[deg]45'................................  81[deg]01'
29[deg]00'................................  at shoreline
------------------------------------------------------------------------

    (c) Overview maps of the designated critical habitat for the North 
Atlantic right whale follow.

[[Page 9344]]

[GRAPHIC] [TIFF OMITTED] TP20FE15.002


[[Page 9345]]


[GRAPHIC] [TIFF OMITTED] TP20FE15.003

[FR Doc. 2015-03389 Filed 2-19-15; 8:45 am]
BILLING CODE 3510-22-P


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