9314 Federal Register / Vol. 80, No. 34 / Friday, February 20, 2015 / Proposed Rules 

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. 

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 nm2 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: 

• 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. 

• 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, Mark.Minton@noaa.gov; 

Barb Zoodsma, NMFS, Southeast 

Regional Office, 904–415–3960, 

Barb.Zoodsma@noaa.gov; Lisa 

Manning, NMFS, Office of Protected 

Resources, 301–427–8466, 

Lisa.Manning@noaa.gov. 

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 


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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 


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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 


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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 °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 °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 


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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 

Jo ́nasdo ́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 selfstocking 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 


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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/m3 or a concentration of 4.67 × 103

to 1.48 × 106/m3 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 multiyear 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 ± 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 ± 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 °C, 

and never more than 17 °C; and (3) 

Water depths of 6 to 28 meters, where 


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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 (warmblooded) 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 °C to 25 °C 

(Good 2008). Gulf Stream waters 

typically have temperatures greater than 

20 °C during winter, and water closer to 

shore is cooler, ranging between 8 and 

17 °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 °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 


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temperatures between 7 and 17 °C and 

water depths ranging from 6 to 28 m. 

Predicted sighting rates decline 

dramatically at water temperatures 

greater than 17 °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 °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 mothercalf 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 °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 mothercalf 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 mothercalf pairs are located are more likely to 

contain sea surface temperatures and 

water depths at the extremities of the 

preferred ranges (e.g., 17 °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 


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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 °C to 17 °C), which 

provides for the thermal balance needs 

of both a fasting, lactating, blubber-rich 

mother and a hungry, weak, blubberpoor 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 nm2), 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 mothercalf 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 lifehistory 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 


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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/nm2 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 


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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. 


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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 


TKELLEY on DSK3SPTVN1PROD with PROPOSALS2EP20FE15.000</GPH>

North Atlantic Right Whale Critical Habitat 

Proposed Northeastern U.S. Foraging Area Unit 1 

Figure 1: Specific area on which are found the essential features ofNorth Atlantic right whale 

foraging habitat 
9326 Federal Register / Vol. 80, No. 34 / Friday, February 20, 2015 / Proposed Rules 

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°38.39′ N, 

69°57.32′ W) extending southeasterly to 

40°50′ N, 69°12′ W (the Great South 

Channel); then east to 40°50′ N 68°50′ 

W. From this point, the proposed 

boundary extends northeasterly 

direction to 42°00′ N, 67°55′ W and then 

in an easterly direction to 42°00′ N 

67°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°10′ N, 

67°09.38′ W. The proposed boundary 

then follows the U.S.-Canada maritime 

boundary north to the intersection of 

44°49.727′ N, 66°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°02.55′ N, 70°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 °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 mothercalf 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 nmi2 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 


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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° 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. 


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North Atlantic Right Whale Critical Habitat 

Southeastern U.S. Calving Area 

SOUTH CAROLINA 

GEORGIA 

Atlantic Ocean 

fLORIDA 

35 70 140 210 280 

Kilomelers 

Miles 

100 150 200 

Cape Canaveral 79'W 

Critical Habitat 

Unit2 

34"N 

33"N 

32'N 

31'N 

30'N 

This map Is provided for Illustrative nm·nn·~ .. ,. 

For the precise legal definition 

of North Atlantic right whale critical habitat. 

refer to the narrative tles:crit~tion. 

Figure 2. Area considered for designation as North Atlantic right whale southeastern calving 

critical habitat. 
Federal Register / Vol. 80, No. 34 / Friday, February 20, 2015 / Proposed Rules 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® 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®- 

derived sea lice deterrent (Calanus®

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® 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 winterspring 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 overstimulate 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. 


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9330 Federal Register / Vol. 80, No. 34 / Friday, February 20, 2015 / Proposed Rules 

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 1mg/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 latestage 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 

Jo ́nasdo ́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. 


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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 netpens (e.g., 3000 m3 capacity) that are 

partially or fully submerged below the 

sea surface, and are typically anchored 

to the sea floor. Partially submerged netpens 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 largescale 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 Multidecadal 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 °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 °C IPCC AR4 (2014). 

There is the potential that the preferred 

temperature range (7 °C to 17 °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 


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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.greater

atlantic.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 


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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, 


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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 


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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 nonconsumptive (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 coextensive 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 nm2 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 nm2. 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 


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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 nm2. 

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 °C to 

17 °C, and 

3. Water depths of 6 to 28 meters. 

These features simultaneously co-occur 

over contiguous areas of at least 231 

nmi2 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 


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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 predissemination 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 nm2 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. 


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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 


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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 whalewatching 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 MaineGeorges 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 


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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 


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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 nonFederal 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 

■ 1. The authority citation for part 226 

continues to read as follows: 

Authority: 16 U.S.C. 1533. 

■ 2. Revise § 226.203 to read as follows: 


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9342 Federal Register / Vol. 80, No. 34 / Friday, February 20, 2015 / Proposed Rules 

§ 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 °C 

to 17 °C, and 

(iii) Water depths of 6 to 28 meters, 

where these features simultaneously cooccur over contiguous areas of at least 

231 nmi2 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°38.39′ N/69°57.32′ W) 

(ii) From this point, southwesterly to 

41°37.19′ N/69°59.11′ W 

(iii) From this point, southward along 

the eastern shore of South Monomoy 

Island to 41°32.76′ N/69°59.73′ W 

(iv) From this point, southeasterly to 

40°50′ N/69°12′ W 

(v) From this point, east to 40°50′ N 

68°50′ W 

(vi) From this point, northeasterly to 

42°00′ N 67°55′ W 

(vii) From this point, east to 42°00′ N 

67°30′ W 

(viii) From this point, northeast to the 

intersection of the U.S.-Canada 

maritime boundary and 42°10′ N 

(ix) From this point, following the 

U.S.-Canada maritime boundary north 

to the intersection of 44°49.727′ N/

66°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°49.727′ N ............. 66°57.952′ W. 

44°49.67′ N ............... 66°57.77′ W. 

44°48.64′ N ............... 66°56.43′ W. 

44°47.36′ N ............... 66°59.25′ W. 

44°45.51′ N ............... 67°2.87′ W. 

44°37.7′ N ................. 67°9.75′ W. 

44°27.77′ N ............... 67°32.86′ W. 

44°25.74′ N ............... 67°38.39′ W. 

44°21.66′ N ............... 67°51.78′ W. 

44°19.08′ N ............... 68°2.05′ W. 

44°13.55′ N ............... 68°10.71′ W. 

44°8.36′ N ................. 68°14.75′ W. 

43°59.36′ N ............... 68°37.95′ W. 

43°59.83′ N ............... 68°50.06′ W. 

43°56.72′ N ............... 69°4.89′ W. 

43°50.28′ N ............... 69°18.86′ W. 

43°48.96′ N ............... 69° 31.15′ W. 

43°43.64′ N ............... 69°37.58′ W. 

43°41.44′ N ............... 69°45.27′ W. 

43°36.04′ N ............... 70°3.98′ W. 

43°31.94′ N ............... 70°8.68′ W. 

43°27.63′ N ............... 70°17.48′ W. 

43°20.23′ N ............... 70°23.64′ W. 

43°4.06′ N ................. 70°36.70′ W. 

43°2.93′ N ................. 70°41.47′ W. 

(x) From this point (43°2.93′ N/

70°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°38.39′ N/

69°57.32′ W) with the exception of the 

area landward of the lines drawn by 

connecting the following points: 

42°59.986′ N ........................................ 70°44.654′ W ....................................... TO Rye Harbor. 

42°59.956′ N ........................................ 70°44.737′ W ....................................... Rye Harbor. 

42°53.691′ N ........................................ 70°48.516′ W ....................................... TO Hampton Harbor. 

42°53.516′ N ........................................ 70°48.748′ W ....................................... Hampton Harbor. 

42°49.136′ N ........................................ 70°48.242′ W ....................................... TO Newburyport Harbor. 

42°48.964′ N ........................................ 70°48.282′ W ....................................... Newburyport Harbor. 

42°42.145′ N ........................................ 70°46.995′ W ....................................... TO Plum Island Sound. 

42°41.523′ N ........................................ 70°47.356′ W ....................................... Plum Island Sound. 

42°40.266′ N ........................................ 70°43.838′ W ....................................... TO Essex Bay. 

42°39.778′ N ........................................ 70°43.142′ W ....................................... Essex Bay. 

42°39.645′ N ........................................ 70°36.715′ W ....................................... TO Rockport Harbor. 

42°39.613′ N ........................................ 70°36.60′ W ......................................... Rockport Harbor. 

42° 20.665′ N ....................................... 70° 57.205′ W ...................................... TO Boston Harbor. 

42° 20.009′ N ....................................... 70° 55.803′ W ...................................... Boston Harbor. 

42° 19.548′ N ....................................... 70° 55.436′ W ...................................... TO Boston Harbor. 

42° 18.599′ N ....................................... 70° 52.961′ W ...................................... Boston Harbor. 

42°15.203′ N ........................................ 70°46.324′ W ....................................... TO Cohasset Harbor. 

42°15.214′ N ........................................ 70°47.352′ W ....................................... Cohasset Harbor. 

42°12.09′ N .......................................... 70°42.98′ W ......................................... TO Scituate Harbor. 

42°12.211′ N ........................................ 70°43.002′ W ....................................... Scituate Harbor. 

42°09.724′ N ........................................ 70°42.378′ W ....................................... TO New Inlet. 

42°10.085′ N ........................................ 70°42.875′ W ....................................... New Inlet. 

42°04.64′ N .......................................... 70°38.587′ W ....................................... TO Green Harbor. 


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42°04.583′ N ........................................ 70°38.631′ W ....................................... Green Harbor. 

41°59.686′ N ........................................ 70°37.948′ W ....................................... TO Duxbury Bay/Plymouth Harbor. 

41°58.75′ N .......................................... 70°39.052′ W ....................................... Duxbury Bay/Plymouth Harbor. 

41°50.395′ N ........................................ 70°31.943′ W ....................................... TO Ellisville Harbor. 

41°50.369′ N ........................................ 70°32.145′ W ....................................... Ellisville Harbor. 

41°45.53′ N .......................................... 70°09.387′ W ....................................... TO Sesuit Harbor. 

41°45.523′ N ........................................ 70°09.307′ W ....................................... Sesuit Harbor. 

41°45.546′ N ........................................ 70°07.39′ W ......................................... TO Quivett Creek. 

41°45.551′ N ........................................ 70°07.32′ W ......................................... Quivett Creek. 

41°47.269′ N ........................................ 70°01.411′ W ....................................... TO Namskaket Creek. 

41°47.418′ N ........................................ 70°01.306′ W ....................................... Namskaket Creek. 

41°47.961′ N ........................................ 70°0.561′ W ......................................... TO Rock Harbor Creek. 

41°48.07′ N .......................................... 70°0.514′ W ......................................... Rock Harbor Creek. 

41°48.932′ N ........................................ 70°0.286′ W ......................................... TO Boat Meadow River. 

41°48.483′ N ........................................ 70°0.216′ W ......................................... Boat Meadow River. 

41°48.777′ N ........................................ 70°0.317′ W ......................................... TO Herring River. 

41°48.983′ N ........................................ 70°0.196′ W ......................................... Herring River. 

41°55.501′ N ........................................ 70°03.51′ W ......................................... TO Herring River, inside Wellfleet Harbor. 

41°55.322′ N ........................................ 70°03.191′ W ....................................... Herring River, inside Wellfleet Harbor. 

41°53.922′ N ........................................ 70°01.333′ W ....................................... TO Blackfish Creek/Loagy Bay. 

41°54.497′ N ........................................ 70°01.182′ W ....................................... Blackfish Creek/Loagy Bay. 

41°55.503′ N ........................................ 70°02.07′ W ......................................... TO Duck Creek. 

41°55.753′ N ........................................ 70°02.281′ W ....................................... Duck Creek. 

41°59.481′ N ........................................ 70°04.779′ W ....................................... TO Pamet River. 

41°59.563′ N ........................................ 70°04.718′ W ....................................... Pamet River. 

42°03.601′ N ........................................ 70°14.269′ W ....................................... TO Hatches Harbor. 

42°03.601′ N ........................................ 70°14.416′ W ....................................... Hatches Harbor. 

41°48.708′ N ........................................ 69°56.319′ W ....................................... TO Nauset Harbor. 

41°48.554′ N ........................................ 69°56.238′ W ....................................... Nauset Harbor. 

41°40.685′ N ........................................ 69°56.781′ W ....................................... TO Chatham Harbor. 

41°40.884′ N ........................................ 69°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°35.1′ N. longitude 70°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°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°51′ ........................ at shoreline 

33°42′ ........................ 77°43′ 

33°37′ ........................ 77°47 

33°28′ ........................ 78°33 

32°59′ ........................ 78°50′ 

32°17′ ........................ 79°53′ 

31°31′ ........................ 80°33′ 

30°43′ ........................ 80°49′ 

30°30′ ........................ 81°01′ 

29°45′ ........................ 81°01′ 

29°00′ ........................ at shoreline 

(c) Overview maps of the designated 

critical habitat for the North Atlantic 

right whale follow. 


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9344 Federal Register / Vol. 80, No. 34 / Friday, February 20, 2015 / Proposed Rules 


TKELLEY on DSK3SPTVN1PROD with PROPOSALS2EP20FE15.002</GPH>

North Atlantic Right Whale Critical Habitat 

Proposed Northeastern U.S. Foraging Area 

NH 

71"W 

cs:::J Proposed Critical Habitat 

... ,.·\......... 200m Depth Contour 

ME 

.Augusta 

69'W 

This map is provided for illustrative purposes only of proposed 

North Atlantic right whale critical habitat For the precise legal 

definition of critical please refer to the narrative r~"'''"""tt''n 

Unit 1 

44"N 

68"W 
Federal Register / Vol. 80, No. 34 / Friday, February 20, 2015 / Proposed Rules 9345 

[FR Doc. 2015–03389 Filed 2–19–15; 8:45 am] 

BILLING CODE 3510–22–P 


TKELLEY on DSK3SPTVN1PROD with PROPOSALS2EP20FE15.003</GPH>