4838 Federal Register / Vol. 81, No. 17 / Wednesday, January 27, 2016 / Rules and Regulations 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 226 

[Docket No. 100217099–5999–03] 

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: Final rule. 

SUMMARY: We (NMFS) are issuing this 

final rule to replace the critical habitat 

for right whales in the North Atlantic 

with two new areas. The areas being 

designated as critical habitat contain 

approximately 29,763 nm 2 of marine 

habitat in the Gulf of Maine and Georges 

Bank region (Unit 1) and off the 

Southeast U.S. coast (Unit 2). We have 

considered positive and negative 

economic, national security, and other 

relevant impacts of the critical habitat. 

We are not excluding any particular area 

from the final critical habitat. 

A 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 report was also prepared 

pursuant to section 4(b)(2) of the 

Endangered Species Act (ESA) in 

support of this rule. 

DATES: This rule is effective February 

26, 2016. 

ADDRESSES: The final rule as well as 

comments and information received, 

and accompanying documents are 

available at 

www.greateratlantic.fisheries.noaa.gov 

or by contacting Mark Minton, NMFS, 

Greater Atlantic Regional Fisheries 

Office (GARFO) 55 Great Republic 

Drive, Gloucester, MA 01930. 

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, 904–321–2806, 

Barb.Zoodsma@noaa.gov; Lisa 

Manning, NMFS, Office of Protected 

Resources, 301–427–8466, 

Lisa.Manning@noaa.gov. 

SUPPLEMENTARY INFORMATION: 

The Biological Source Document 

(NMFS 2015a) and ESA Section 4(b)(2) 

Report (NMFS 2015b) are available on 

our Web site at 

www.greateratlantic.fisheries.noaa.gov, 

on the Federal eRulemaking Web site at 

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 included 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). They 

are: (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, we 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), we 

published a combined 90-day finding 

and 12-month determination on October 

6, 2010 (75 FR 61690), 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. 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, so that designation continued to 

apply to North Atlantic right whales 

after they were listed as a separate 

species in 2008. On February 20, 2015 

(80 FR 9314), we proposed replacing 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. 

In the proposed rule we requested 

public comment through April 21, 2015. 

For a complete description of our 

proposed action, including the natural 

history of the North Atlantic right 

whale, please see the proposed rule (80 

FR 9314, February 20, 2015). 

We are making one change from the 

proposed rule to the areas designated as 

right whale critical habitat. The one 

change is based on public comments 

received and further review of the best 

available scientific data. We are 

extending Unit 2 further to the south to 

include an area that is a portion of the 

1994-designated critical habitat, 

increasing Unit 2 by approximately 341 

nm 2. Unit 2 now includes nearshore 

and offshore waters of the southeastern 

U.S., extending from Cape Fear, North 

Carolina south to approximately 27 nm 

below Cape Canaveral, Florida. 

Summary of Comments and Responses 

We received 261 letters and general 

comments on the proposed rule and 

supporting analyses via Regulations.gov, 

letter, fax, and email. In addition, 

20,826 form letters were also received 

via letter and email. We received 20,325 

form letters from an environmental 

advocacy group stating their general 

support for the proposed designation of 

critical habitat and urging NMFS to 

include a migratory corridor in the final 

designation. We received an additional 

500 form letters from a second 

environmental advocacy group as well 

as 210 (additional) form letters that 

contained slight variations to the main 

form letter. We also received two 

petitions from environmental advocacy 

groups with approximately 17,420 and 

2,069 signatures, respectively stating 

general support for designating critical 

habitat and urging the inclusion of a 

migratory corridor. 

Many comments urged imposing 

restrictions on Navy activities as well as 

oil and gas exploration and 

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development, expanding existing 

fishing gear restrictions, and expanding 

seasonal management areas (SMAs) to 

reduce the risk to right whales due to 

ship strikes and vessel speeds as part of 

this rulemaking; however, these issues 

are not within the scope of this critical 

habitat rulemaking. 

Unit 1 Boundaries 

Comment 1: One commenter stated 

that in proposing to designate Unit 1, 

we mistakenly proposed to designate a 

large area in which right whales 

congregate, rather than identifying the 

‘‘specific areas’’ on which essential 

foraging features ‘‘are found.’’ As a 

result, the proposed Unit 1 designation 

is overbroad and should be more 

narrowly tailored, consistent with the 

ESA. The comment states that the 

proposed boundaries of Unit 1 are not 

based upon the established presence of 

the essential features. 

Response: We disagree with this 

comment. The proposed boundaries of 

Unit 1 encompass the combination of 

physical and biological features of 

foraging habitat that are essential to 

right whale conservation and that may 

require special management 

considerations or protection. We did not 

simply propose to designate the area 

depicted as Unit 1 based on where 

‘‘right whales congregate’’ as the 

comment suggests. As discussed in 

detail in the Biological Source 

Document, 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 at which 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 would be 

unproductive because 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. Instead, we used 

an alternative ‘‘whale centric’’ approach 

for detecting dense prey patches. The 

location of actively foraging right 

whales provides a proxy for the 

distribution of dense copepod patches 

(Marx and Mayo 1990, Wishner et al. 

1995, Pace and Merrick 2008). We used 

the protocol for determining the whale 

density and residency indicative of 

feeding behavior developed by Clapham 

and Pace (2001) for the Dynamic Area 

Management (DAM) program to 

determine where the dense patches of C. 

finmarchicus are found. The boundaries 

of Unit 1 are not solely based on the 

presence of the dense C. finmarchicus 

patches, as determined by the foraging 

right whale proxy, but also by the 

presence of the physical oceanographic 

features and the biological feature of 

diapausing copepods identified in this 

rulemaking (see responses to comment 

36 and 49). 

Comment 2: The State of Maine 

Department of Marine Resources stated 

that it disagreed with the use of the 

current exemption line identified in the 

Atlantic Large Whale Take Reduction 

Plan (ALWTRP, 50 CFR 229.32) as the 

inshore boundary of the proposed 

critical habitat. It suggested that NMFS 

should use the 100 meter isobath 

contour as the near shore boundary to 

better align with the biological and 

physical features identified as 

supporting the aggregation and 

distribution of copepods. This 

commenter stated that the proposed 

boundary (the exemption line) does not 

have any bearing on the biological and 

physical oceanographic features that 

have been identified as drivers for 

copepod production, distribution, 

aggregation, and retention in the Gulf of 

Maine, nor is there a biological 

justification for using the exemption 

line as the inshore boundary given the 

location of right whale sightings. The 

commenter noted that the agency 

analyzed 35 years of DAM-qualified 

sightings but identified only one 

aggregation of right whales near the 

coast of Maine (Pace and Merrick 2008). 

They noted that all other identified 

aggregations occurred beyond the 100 

meter contour, which is well seaward of 

the ALWTRP’s exemption line. The 

commenter also cited a study completed 

by Runge et al. (2010) who found that 

densities of late stage copepods were 

statistically significantly higher at 

offshore stations (>100 m) than inshore 

area and that copepods were not 

aggregating in water depths less than 

100 meters. The commenter also stated 

that this finding was consistent with the 

statement in Runge et al. (2010) that the 

Maine Coastal Current centers at the 100 

m contour. 

Response: After review of this 

comment and the study cited, we 

conclude that the use of the ALWTRP 

Exemption line remains appropriate as 

the inshore boundary of the area on 

which the essential foraging features of 

right whale critical habitat are found. 

The study provided by the commenter 

in support of the requested change was 

somewhat limited both spatially and 

temporally. The study of copepod 

densities cited was based on the 

sampling that was conducted over a 

three-year period with sampling 

occurring only during the months of 

July and August. Also, there is 

uncertainty as to what exact density of 

copepods triggers feeding, with the 

density seeming to vary both temporally 

and spatially. 

Asaro (2012) depicts an overlay of the 

DAMs and Dynamic Management Areas 

(DMAs) in the western Gulf of Maine. 

The inshore extent of the plots of these 

events in the western Gulf of Maine 

closely approximates the Maine 

exemption line. While there are several 

instances of buffered DAMs and DMAs 

extending into Maine inshore waters, 

the sightings themselves were not 

located in these waters (Asaro 2012). 

This analysis does provide some 

evidence of right whale foraging 

activities in areas seaward and adjacent 

to the Maine exemption line. As we 

tried to explain in the proposed rule and 

its supporting documents and clarify 

now, the essential biological feature of 

dense patches of copepods is present in 

areas seaward and adjacent to the Maine 

exemption line. Therefore, the Maine 

exemption line does have bearing on the 

presence of this biological feature and is 

a reasonable approximation of the 

shoreward boundary of critical habitat 

in Unit 1. 

In addition, the decision to retain the 

Maine Exemption line, as proposed, for 

the inshore boundary of right whale 

critical habitat is based on the presence 

of one of the physical oceanographic 

features identified as being essential to 

the conservation of the species— 

specifically, the oceanographic 

conditions and structures of the Gulf of 

Maine and Georges Bank region that 

combine to distribute and aggregate 

copepods for right whale foraging, 

namely prevailing currents and 

circulation patterns. The Maine Coastal 

Current (MCC) is one of the major 

oceanographic features in the western 

Gulf of Maine that is essential to the 

conservation of North Atlantic right 

whales because of its role in aggregating 

and distributing copepods. The MCC 

has two major components, the Eastern 

Maine Coastal Current (EMCC) off 

Maine’s northeast coastline and the 

Western Maine Coastal Current (WMCC) 

off the coastlines of southern Maine, 

New Hampshire, and Massachusetts. 

Manning et al. (2009) report that the 

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MMC is centered from approximately 

the 71 m isobath inshore to the 117 m 

isobath seaward. Churchill et al. (2005) 

report that the EMMC is 20 km wide, 

with its shoreward extent at about 10 

km from shore. Manning et al. (2009) 

report that on average, the core of the 

WMCC is centered at the depth of 67 m. 

As these studies document, the center of 

both of the two major components of the 

MMC are shoreward of the 100 m 

isobath proposed by the commenter as 

the inshore boundary of critical habitat. 

Although the MMC coastal current is 

highly variable, the ALWTRP exemption 

line generally follows the 50 meter 

isobath and is also the approximate 

inshore boundary of the MMC. Further, 

as the depths reported represent the 

core of the two MMC currents; both the 

EMCC and the WMCC are present 

further inshore. The MMC is very 

dynamic with interannual variability 

due to such factors as wind and water 

temperature. 

Based on our review of the proposed 

use of the 100 m isobaths as the inshore 

boundary of critical habitat instead of 

the Maine exemption line, we conclude 

that the Maine exemption line 

corresponds more closely to the inshore 

extent of the essential physical 

oceanographic feature that is the MCC. 

Comment 3: Several fishing industry 

comments supported the designation of 

additional right whale critical habitat 

that is essential to the conservation and 

recovery of the North Atlantic right 

whale. However, they opposed the 

designation area as proposed. The 

commenters agreed with Maine 

Department of Marine Resources’ (DMR) 

review of the scientific literature on the 

physical oceanographic conditions and 

structures of the Gulf of Maine as well 

as foraging aggregations. They strongly 

supported DMR’s recommendation that 

the shoreward boundary of the proposed 

Gulf of Maine critical habitat (Unit 1) 

follow the 100 m contour and not the 

Maine exemption line defined in the 

Atlantic Large Whale Take Reduction 

Plan. The commenters stated that 

Maine’s exemption line has no direct 

bearing on the four physical and 

biological features identified by us as 

being essential to defining this critical 

habitat. They stated that in the absence 

of this adjustment, they would oppose 

the change in the Gulf of Maine current 

critical habitat designation. 

Response: See response to Comment 

2. 

Comment 4: One commenter 

requested the expansion of critical 

habitat in the Northeast to include all 

waters in the Gulf of Maine and Georges 

Bank from the Hague Line to the 

shoreline based on the best available 

science indicating that the area contains 

physical and biological features 

essential for the survival of the species. 

The commenter sought to extend the 

critical habitat boundary to the 

shoreline in Maine beyond the Maine 

Exemption line. The commenter 

questioned the agency’s determination 

that the essential physical and 

biological foraging features are not 

found inshore of the Maine exemption 

line. The commenter cited several 

factors in support of the expansion of 

the critical habitat boundary to the 

shoreline. The factors cited by the 

commenter include: (1) Limited 

systematic sightings effort inside the 

ALWTRP Maine exemption line as well 

as a recent analysis by Industrial 

Economics, Inc., evaluating the cooccurrence of whales and vertical lines 

used in commercial fisheries in the 

northeast shows large areas in inshore 

Maine, indicating that there was no 

survey effort in large segments of the 

inshore area; (2) the NMFS program of 

dynamic management; currently for 

ship traffic, but formerly for fishing gear 

as well, has resulted in the imposition 

of dynamic management measures in 

inshore Maine waters; and (3) the 

results of a satellite telemetry study that 

was done targeting right whales in the 

northeast. The commenter stated that in 

that study at least 2 of the 14 tagged 

right whales (approximately 14%) 

showed tracks that appear to be within 

the areas of coastal Maine that were not 

included in the proposed Unit 1 critical 

habitat. 

Response: As discussed in our 

response to Comment 2, we used 

foraging right whales as a proxy for 

identifying areas where the essential 

feature of dense aggregations of latestage copepods are found. As part of 

that process, we analyzed 35 years of 

DAM-qualified sightings and identified 

only one aggregation of foraging right 

whales near the coast of Maine inshore 

of the Maine exemption line (see 

response to Comment 15 for additional 

discussion). This analysis provides 

strong support for our determination 

that late stage copepods in quantities 

sufficient to trigger right whale foraging 

are not present inshore of the Maine 

exemption line. While the commenter is 

correct that some areas have been 

surveyed more extensively than others 

within the Gulf of Maine and Georges 

Bank region, we are required to use the 

best available data. With regard to the 

results of the telemetry studies cited by 

the commenter (Baumgartner and Mate 

2005), the telemetry data were included 

in the 35 years of DAM-qualified 

sightings data we analyzed. The two 

right whales referenced by the 

commenter did not trigger a DAM 

qualified sighting (aggregations of three 

or more feeding right whales in a 

specified area), indicating the whales 

were not foraging and were spatially 

and/or temporally separate from each 

other while in the inshore waters. As 

such, these data do not indicate that one 

or more of the essential physical and 

biological features were present. 

Comment 5: One commenter stated 

that the regular imposition of multiple 

dynamic management measures that 

extended into the inshore waters of 

Maine in a number of instances casts 

doubt on the conclusion that whales are 

unlikely to use the inshore area with 

any regularity. 

Response: We disagree. As stated in 

our response to Comment 2, Asaro 

(2012) depicts an overlay of the DAMs 

and Dynamic Management Areas 

(DMAs) in the western Gulf of Maine. 

The inshore extent of the plots of these 

events in the western Gulf of Maine 

closely approximates the Maine 

exemption line. While there are several 

instances of buffered DAM and DMAs 

areas extending into Maine inshore 

waters, the sightings themselves were 

not located in these waters, just the 

buffer zone(s) associated with the 

DAM(s) and DMA(s) (Asaro 2012). This 

analysis does provide some evidence of 

right whale foraging activities in areas 

seaward and adjacent to the Maine 

exemption line and thus, provides 

support for its use as the shoreward 

boundary of critical habitat in Unit 1. 

Comment 6: A commenter stated that 

regardless of right whale sightings, the 

inshore waters of Maine contribute to 

the circulation patterns of the Gulf of 

Maine, which support and concentrate 

C. finmarchicus—the primary forage of 

North Atlantic right whales. The 

commenter stated that, according to 

NMFS, ‘‘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.’’ The 

commenter asserts that therefore the 

inshore waters of Maine contain the 

physical and biological features 

necessary to maintain food resources for 

right whales, and that area is therefore 

essential to the survival of the species. 

The commenter stated that because the 

currents in the Gulf of Maine are 

strongly influenced by density gradients 

between the high-salinity slope water 

entering from the Atlantic and fresher 

waters, which form in the Gulf of Maine 

or enter from the Scotian Shelf, the 

freshwater inflow from these and other 

rivers within the Gulf of Maine 

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watershed that contributes to the 

density driven circulation pattern must 

be adequately protected. The 

commenter further stated that the bays 

and inlets into which these rivers flow 

may require special management to 

ensure that this flow is not impeded by 

development such as hydroelectric or 

hydrokinetic projects designed to 

provide alternative energy to the region. 

Response: The physical features in 

question here are the physical 

oceanographic conditions and structures 

that combine to distribute and aggregate 

copepods in sufficient densities to 

support right whale foraging and 

energetic requirements. We agree that 

freshwater inflow from numerous rivers 

(including the St. John, Penobscot, 

Kennebec, Androscoggin, and Merrimac 

Rivers) are one of several external 

environmental processes within the 

Gulf of Maine watershed that may 

influence the density driven circulation 

pattern. However, these influences are 

not physical oceanographic features. 

Rather they simply have the potential to 

influence the identified oceanographic 

features. The physical oceanographic 

features of the Gulf of Maine Georges 

Bank region are influenced by a variety 

of conditions including several outside 

of the Gulf of Maine. For example, the 

North Atlantic Oscillation (NAO) (a 

climatic phenomenon in the North 

Atlantic Ocean of fluctuations in the 

difference of atmospheric pressure at 

sea-level between the Icelandic low and 

the Azores high) influences the relative 

location within the Atlantic Ocean of 

warm Gulf Stream waters that approach 

the Gulf of Maine from the south, and 

the colder Labrador Current waters that 

flow toward the area from the north. 

Small-scale changes in the North 

Atlantic can produce large-scale 

changes in the Gulf of Maine. There are 

large-scale coastal circulation patterns 

that influence the Gulf of Maine that 

originate from the Labrador Sea. The 

circulation and water properties within 

the Gulf of Maine therefore may depend 

as much on influences originating over 

1,000 km away as on local processes 

(Thompson 2010). 

In addition, there are other local 

environmental processes that influence 

the physical oceanographic conditions 

inside the Gulf of Maine including such 

factors as wind, tidal mixing, the 

periodic cooler and more fresh inflow 

from the Scotian Shelf, winter cooling, 

summer heating, the deep warmer and 

more saline inflow of the slope water, 

and river runoff including from those 

identified by the commenter (Xue et al. 

2000, Thompson 2010). 

Further, the information cited by the 

commenter regarding freshwater input 

into the Gulf of Maine is taken out of 

context and relates to the ‘‘may require 

special management considerations or 

protection’’ analysis we conducted to 

determine if the areas containing the 

physical oceanographic conditions and 

structures met the definition of critical 

habitat. Consequently, we did not 

identify the external freshwater input 

associated with river inflow from the 

various sources, including rivers within 

the Gulf of Maine watershed, as part of 

the physical feature. We have updated 

the Biological Source Document 

accordingly to clarify this issue. 

Unit 2 Boundaries 

Comment 7: A number of comments 

were received concerning the location of 

the southern boundary of the proposed 

revised calving area critical habitat. 

Comments requested to (1) move the 

proposed revised boundary southward 

(commenter did not specify how far 

south), (2) keep the southern boundary 

for the proposed revised critical habitat 

the same as current critical habitat 

designated in 1994, and (3) move the 

proposed revised boundary south of the 

current critical habitat designated in 

1994. One commenter was concerned 

that the proposed Unit 2 would exclude 

Port Canaveral and noted one mothercalf pair was observed in the Canaveral 

ship channel while cruise ships were 

departing the port. Commenters 

supported a more southerly boundary 

because: (1) Sightings of mother/calf 

pairs (available at http://

www.nefsc.noaa.gov/psb/surveys/) 

reported since Good’s analysis indicate 

that waters south of proposed Unit 2 are 

used consistently—including by 

mother-calf pairs, (2) the agency 

previously recognized the area as 

critical to calving right whales, (3) 

calves are observed in the area so the 

areas should be protected even though 

they are not part of the area selected by 

the habitat models, (4) Good’s model 

(available at: http://

dukespace.lib.duke.edu/dspace/handle/

10161/588) predicts calving habitat in 

the area for at least part of the calving 

season, and (5) right whales utilize the 

area at above-average densities. 

Response: We agree with the 

commenters and have modified the 

southern boundary of Unit 2. We 

originally considered an alternative 

retaining the southern portion of the 

1994 designated calving area critical 

habitat, discussed in the consideration 

of alternatives for the Initial Regulatory 

Flexibility Analysis (see Appendix B in 

the draft ESA Section 4(b)(2) Report). 

We noted that retaining the southern 

boundary as designated in 1994 would 

have captured suitable habitat predicted 

by Good’s (2008) combined model for 

one month. However, in that analysis 

we noted that Garrison’s (2007) habitat 

model did not predict suitable calving 

habitat that far south, yet it captured 

91% of observed mother-calf pairs. 

In response to public comments, we 

investigated observations of mother-calf 

pairs collected subsequent to the data 

used in the cited models and reexamined Garrison (2007), Good (2008), 

and Keller et al. (2006). We reviewed 

the North Atlantic Right Whale 

Consortium Database (2015) (available 

at http://www.narwc.org/

index.php?mc=8&p=28) for mother-calf 

pair sightings south of the proposed 

Unit 2 and from the 2001–2002 calving 

season to present. We used this 

timeframe because Garrison (2007) and 

Keller et al. (2006) used Consortium 

data through March 2001. We found 39 

mother-calf pair sightings at an annual 

sighting rate of just under three mothercalf pairs (highest annual number of 

pair sightings was 10). Of these, January 

and February sightings were most 

prevalent and totaled 12 and 19, 

respectively. While the number of 

sightings varies among years, sightings 

of mother-calf pairs within that area are 

predictable and consistent, as noted by 

some of the commenters. Because 

occupied critical habitat must be based 

on the presence of features essential to 

the species’ conservation that may 

require special management 

considerations or protection, we reevaluated the predictive habitat model 

results in terms of temporal distribution 

of the essential depth, temperature, and 

sea surface roughness features. First, we 

reviewed the models and temporal 

scales of model outputs. Garrison’s 

(2007) and Keller et al.’s (2006) models 

at the 4-month (season-level) temporal 

resolution (as illustrated in Garrison’s 

Figure 19 and Keller et al.’s Figure 7), 

which were used for the proposed 

designation, do not predict presence of 

all the essential features south of the 

proposed boundary. This is because the 

4-month scale obscured the areas 

containing the essential features for a 

smaller timeframe (i.e., one month). 

Garrison’s (2007) model output at a finer 

temporal resolution (monthly scale) 

does predict presence of the essential 

features south of the proposed revised 

critical habitat for at least a portion of 

the calving season (in January and 

February) (see Garrison’s Figure 21 and 

22). Good’s (2008) model outputs are 

similar. The presence of all the essential 

features are not predicted to 

simultaneously co-occur south of the 

proposed unit boundary for the coarser 

temporal scale of 3 or 4 months, but the 

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essential features are expected to 

simultaneously co-occur over a 

contiguous area in the finer, 1-month 

temporal scale. Good’s model also 

predicts presence of the essential 

features south of the proposed revised 

critical habitat in January and February, 

and to a lesser degree, in December. 

Thus, this southern area contains the 

essential features at times when the 

majority of the right whale mother-calf 

pairs have been observed there in the 

years since the models were published. 

Mother/calf pairs in the area were most 

often seen swimming (n = 23) but other 

behaviors were observed (diving-7, 

breaching-1, and slapping the water 

with flippers or tails-2) (Right Whale 

Consortium 2015). The high number of 

observations of swimming mother/calf 

pairs in this area is consistent with our 

analysis, discussed in the Biological 

Source Document for the Critical 

Habitat Designation, that mother-calf 

pairs likely loop many miles up and 

down the coast in the calving area to 

strengthen calves’ swimming abilities. 

Apparent nursing was also observed in 

the area (n = 4), and mother-calf pairs 

were also seen in physical contact with 

each other (n = 9). 

Therefore, we believe the available 

data show consistent and predictable 

presence of right whale mother-calf 

pairs in this southern area, during the 

months the habitat models predict 

presence of all the essential features. 

The features here may require special 

management considerations or 

protections for the same reasons as the 

rest of Unit 2: Because of possible 

negative impacts from activities and 

events of 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 

2015). For these reasons, we agree with 

the commenters that the southern 

boundary of the calving area critical 

habitat should be moved southward 

from where we proposed. Next, we 

identified new coordinates for including 

this area in Unit 2. Based on the above 

information and Good’s (2008) onemonth model, the Southeast Calving 

Area (Unit 2) boundaries were 

developed by drawing straight lines 

around the modelled one-month area 

extending from Daytona Beach to just 

south of Melbourne, Florida, trying to 

use the fewest number of waypoints as 

possible, and rounding waypoints to the 

nearest minute to the greatest extent 

possible. This extension represents an 

approximate 4% increase in the area of 

Unit 2 from the proposed rule and 

retains critical habitat in Atlantic waters 

adjacent to Port Canaveral. 

To evaluate and consider the 

economic impacts of including this area 

in the designation, we followed the 

same methodology described in the 

proposed rule (80 FR 9314, February 20, 

2015) and in the Section 4(b)(2) Report. 

Similar to the proposed Unit 2 area, we 

identified three categories of activities 

that have occurred and are likely to 

recur in the future and have the 

potential to affect the essential features 

in the expanded Unit 2 area: (1) U.S. 

Army Corps of Engineers (USACE) 

maintenance dredging or permitting of 

dredge and disposal activities under the 

Clean Water Act; (2) USACE permitting 

of marine construction, including 

shoreline restoration and artificial reef 

placement under the Rivers and Harbors 

Act and/or Clean Water Act; and (3) 

Bureau of Ocean Energy and 

Management permitting of sand and 

gravel extraction under the Outer 

Continental Shelf Lands Act. 

Additionally, we identified one 

category of activities that has not 

occurred in the expanded Unit 2 area in 

the past but, based on available 

information, may occur in the future. 

The projected activity is offshore 

renewable/alternative energy 

development. If this activity occurs, it 

may adversely affect the essential 

features. In the proposed rule (80 FR 

9314, February 20, 2015), we described 

our justification for determining relative 

levels of impacts (i.e., incremental, or 

co-extensive) for all of these activities. 

We repeated that process, to consider 

the impacts of adding the southern 

extension to the designation. Based on 

our analysis of past consultation history, 

we project that over the next ten years, 

there will be 22 consultations, or about 

two consultations per year, in this area 

which may affect the features of critical 

habitat. Eleven of these projects would 

involve dredging and/or disposal by the 

U.S. Army Corps of Engineers, and 11 

projects would involve permitting of 

marine construction or artificial reef 

placement by the U.S. Army Corps of 

Engineers. Thus, adding the southern 

extension would involve no additional 

federal agencies or actions that are 

different from those that will be 

conducted in the rest of Unit 2 and were 

evaluated in the Draft Section 4(b)(2) 

report. As discussed in the Section 

4(b)(2) Report, these activities are only 

expected to involve incremental 

administrative costs of consultation as a 

result of this designation. Annual 

administrative costs for these projected 

consultations are $10,160 (at $5,080 per 

consultation—see the Economics Impact 

section in the proposed rule and the 

Section 4(b)(2) Report for background 

information on the costs for conducting 

consultations). 

Relative to projected, new activities, 

offshore renewable/alternative energy 

may occur in the southern extension 

area, given its proximity to shore and 

available information about where and 

how these activities might be 

implemented (http://www.boem.gov/

Florida/). Because there are no records 

in NMFS’s consultation history for 

offshore renewable or alternative energy 

projects occurring within Unit 2, we are 

unable to (a) predict how many section 

7 consultations may result from projects 

of this type over the next 10 years or (b) 

calculate the projected incremental 

costs resulting from this action. We are 

not aware of any other future new 

federal activity that may be 

implemented in the southern extension 

area. 

We also contacted Department of 

Defense agencies that are active in the 

area to determine if they anticipated any 

impacts from critical habitat designation 

on their activities within the additional 

southern area that would pose national 

security concerns. Their responses were 

similar to those submitted for the 

proposed Unit 2 area in that they did 

not anticipate their activities would 

destroy or adversely modify the 

essential features of calving habitat. 

Therefore, other than the administrative 

costs of consultation for about 2 

consultations annually over the next 2 

years, there will be no economic or 

national security impacts of this 

addition. Yet, as the sightings data 

demonstrate, there appear to be 

measurable conservation benefits to 

right whale mother-calf pairs that use 

this particular area every year. 

Finally, we evaluated whether the 

data suggest the Unit 2 boundaries 

should be expanded on a similar basis 

elsewhere. In other words, whether 

there is consistent mother-calf pair 

usage of other areas predicted by the 

habitat suitability models to contain the 

essential features in one month of the 

calving season evaluated in the models. 

Good’s (2008) model generally predicts 

calving habitat in one month (two 

months in some portions of the area) 

north of the proposed Unit 2 

boundaries, from Cape Fear to 

approximately Cape Hatteras, North 

Carolina. Nine mother/calf pair 

sightings occurred in the approximately 

2,386 nm2 area from the 2001/2002 

calving season to present (Right Whale 

Consortium, 2015) and at an annual 

sighting rate of just under one pair 

(highest number of pair sightings is four 

in one season). In other words, the area 

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off North Carolina is approximately 

600% larger than the area off Florida, 

yet it has 75% fewer sightings of 

mother/calf pairs of right whales. 

Mother-calf pair sightings occurred in 

three different calving seasons. Two 

mother calf pairs observed off North 

Carolina in April 2010 were likely 

migrating northward as both were 

observed earlier in the calving season 

off Florida and Georgia (Right Whale 

Consortium, 2015a). Since available 

data do not demonstrate that mothercalf pair usage of the area off North 

Carolina and north of the proposed Unit 

2 boundary is as consistent and 

predictable as off Florida south of 

proposed Unit 2 during the peak calving 

season (North Atlantic Right Whale 

Consortium sighting database), we are 

not expanding the Unit 2 boundaries to 

the north at this time. 

Consequently, at this time we are 

extending Unit 2 further to the south to 

include a portion of the 1994-designated 

critical habitat. We find that this is 

supported because: (a) Garrison (2007) 

and Good (2008) confirm the presence 

of the essential features of critical 

habitat in the area for at least a portion 

of the right whale calving season; (b) we 

confirmed mother-calf pairs were 

sighted in the area most frequently 

when the essential features are expected 

to be in that area, and (c) multiple 

mother-calf pairs consistently and 

predictably occur there every year. 

Comment 8: One commenter 

recommended extending calving area 

critical habitat eastward off Florida to 

include the location of an observed 

March 20, 2010, right whale birthing 

event. 

Response: We are not extending the 

calving area critical habitat boundary 

farther to the east off South Carolina or 

Florida. The March 20, 2010, right 

whale calving event was at least 15 nm 

east of predicted suitable right whale 

calving habitat—at any temporal 

resolution (see response to Comment 

23). 

Comment 9: One commenter 

suggested extending calving critical 

habitat into the Gulf of Mexico because 

the area was occupied by right whales 

at the time the species was listed and 

because of recent calving events there. 

Response: NMFS is not aware of 

known incidents of right whale calves 

being born in the Gulf of Mexico. Right 

whales have been observed only rarely 

in the Gulf of Mexico. The few 

published sightings (Moore and Clark 

1963; Schmidly and Melcher 1974; 

Ward-Geiger et al. 2011) represent either 

right whale presence that is abnormal 

(i.e. outliers) or a more extensive 

historical range beyond the current sole 

known calving and wintering ground in 

the waters of the southeastern United 

States (Waring et al. 2009). We also 

concur with other right whale 

researchers that the Gulf Stream serves 

as a thermal barrier preventing right 

whales from routinely using the Gulf of 

Mexico (Keller et al. 2006, Good 2008, 

Keller et al. 2012). Therefore, we are not 

extending the critical habitat to include 

the Gulf of Mexico. 

Comment 10: One commenter stated 

that Unit 2 should match the area in 

Action 1 Alternative 9a of Regulatory 

Amendment 16 (Reg-16) under 

consideration by the South Atlantic 

Fishery Management Council for the 

Snapper-Grouper Fishery Management 

Plan (S–G FMP). 

Response: We do not agree with 

matching the boundaries as specified by 

the commenter. The area created for S– 

G FMP Reg-16 meets the needs of a 

fishery management plan development 

process but is not consistent with the 

ESA-specific requirements for 

designation of critical habitat. Based on 

the statutory definition of critical 

habitat we applied a step-wise approach 

to identifying occupied areas that may 

be designated as critical habitat for 

North Atlantic right whales. Briefly, the 

steps we followed included: (1) 

Identifying the right whale range, (2) 

identifying areas within that range 

where physical or biological features 

essential to right whale conservation are 

found, and (3) determining if those 

features may require special 

management considerations or 

protections. The boundaries of 

Alternative 9a do not contain the full 

area identified by us as containing 

physical features essential to the 

conservation of the North Atlantic right 

whale, particularly off South and North 

Carolina. 

Comment 11: A number of comments 

supported the designation of Unit 2 as 

critical habitat. Comments included (a) 

the calving area critical habitat should 

be expanded to incorporate the entire 

area proposed as Unit 2, (b) strong 

support for the area proposed for critical 

habitat, and (c) the Bureau of Ocean 

Energy Management (BOEM) is 

supportive of the proposal to replace 

critical habitat for the North Atlantic 

right whale. 

Response: NMFS appreciates the 

support. 

Comment 12: One commenter 

suggested considering additional 

information to better support the calving 

area critical habitat designation 

including: 

(a) Identifying the relative value of 

various nursery areas (e.g. track the 

location where an individual was born 

to see if differential growth or survival 

occurs) as has been done in fishery 

science; 

(b) using opportunistic sightings; 

(c) changing distribution of calves due 

to climate change—a northward shift in 

cow-calf distribution may mean a 

greater need to protect additional 

northern habitat, while expanding 

distribution to north and south could be 

due to increased abundance of whales; 

(d) using a depth contour that 

captures 90% of right whale cow-calf 

pairs. 

Response: As mentioned in the 

Federal Register Notice of Proposed 

Rulemaking and Biological Source 

Document, the ESA definition of critical 

habitat provides NMFS with a step-wise 

approach to identifying areas that may 

be designated as critical habitat for 

North Atlantic right whales. Briefly, the 

steps we follow include: (1) Identifying 

the right whale range, (2) identifying 

areas within that range where physical 

or biological features essential to right 

whale conservation are found, and (3) 

determining if those features may 

require special management 

considerations or protection. Calving is 

essential to the species’ conservation 

and the physical features that are 

essential to successful calving include: 

(1) Calm sea surface conditions 

associated with Force 4 or less on the 

Beaufort Scale, (2) sea surface 

temperatures from 7 °C through 17 °C, 

and (3) water depths of 6 to 28 meters 

where these features simultaneously cooccur over contiguous areas of at least 

231 km 2 during the months of 

November through April. The 

distribution of optimal values of these 

features changes throughout a calving 

season, and between calving seasons. 

Further, the needs cow-calf pairs’ have 

for each of the individual parameters 

change over the course of rearing, and 

the pairs move across broad swaths of 

the calving area to seek out optimal 

conditions and to condition the calf. 

Therefore, we believe that all of Unit 2 

is highly valuable to calving right 

whales. 

Opportunistic sightings lack 

associated information on search effort 

so are not included in efforts to 

statistically analyze and predict right 

whale habitat. Thus, Garrison (2007), 

Good (2008), and Keller et al. (2012) did 

not use opportunistic sightings in their 

work. However, we reviewed 

opportunistic sightings when 

considering the importance of calving 

habitat south of proposed Unit 2. 

Opportunistic sightings were used to 

assess the consistency of calving right 

whale use of that area. 

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We also considered climate change 

effects on calving right whale (including 

calf) distribution using the same stepwise approach to identify critical 

habitat. We determined that increased 

temperatures and hurricane activity due 

to global climate change may alter sea 

surface conditions within the specific 

area such that the area capable of 

providing dynamic, optimal 

combinations of the essential features is 

reduced and the ability of the specific 

area to support the key conservation 

objective of facilitating successful 

calving is reduced. We determined that 

the essential features of the calving 

habitat may require special management 

considerations or protection due to 

future climate change impacts. Existing 

predictions of climate change impacts 

do not provide fine enough information 

to determine how the distribution of 

essential features in the SAB will 

change in the future, and thus setting 

boundaries based on future climate 

change impacts would be speculative at 

this time. 

Comment 13: One commenter 

submitted a number of comments on the 

underlying models used to identify the 

Unit 2 proposed critical habitat. 

Comments included: (1) Concern about 

averaging and aggregating data, (2) the 

treatment of zero-inflated data, (3) 

suggestions for other parameters (water 

density, underwater currents, substrate, 

and salinity) to include, (4) the 

nonrandom nature of survey design 

used to collect underlying data, (5) 

concern over model fit, (6) the use of 

limited information, (7) use Easting 

(relative east-west location) and 

Northing (relative north-south location) 

or the interaction parameter of the two 

variables, and (8) models should be 

updated and viewed with caution. 

Another commenter suggested that we 

utilize the Duke University Marine 

Geospatial Ecology Lab (MGEL) and 

Atlantic Marine Assessment Program for 

Protected Species (AMAPPS) models of 

marine mammal habitat utilization 

when making decisions on North 

Atlantic right whale (NARW) Critical 

Habitat boundaries. 

Response: The first comment is 

focused on methods used in generating 

models described in publications we 

used to inform critical habitat, and 

changing those analyses is beyond the 

scope of the actions proposed in this 

rule. In general, we use information 

from a wide variety of sources. We are 

required to gather, review, and evaluate 

available information to ensure it is 

reliable, credible, and represents the 

best scientific and commercial data 

available. We reviewed Garrison (2008), 

Keller et al. (2012), and Good (2008) and 

found these to be the best scientific and 

commercial data available at the time 

the proposed rule was published in the 

Federal Register. As far as updating 

models: We did not, nor does the ESA 

require us, to develop new models as 

part of the rulemaking. Moreover, based 

on our review of whale sightings dated 

after publication of the models (see 

response to comment 7), the models are 

performing well in predicting the 

overall boundaries of the calving area. 

However, we will continue to monitor 

ongoing studies and publications to 

determine if new information will 

enhance our understanding of right 

whale habitat, and the ESA allows us to 

revise critical habitat when appropriate. 

We are aware that the Duke Marine 

Geospatial Ecology Lab and AMAPPs 

are modeling densities and abundance 

of right whales; however, those products 

were not available at the time this final 

rule was developed. 

Comment 14: One commenter noted 

that Good et al. (2008) stated that 

bottom type is an important habitat 

component that was not included in 

either modeling approach. This 

commenter also reported that the 

bottom type had been mapped for a 

significant portion of the area where 

right whales occur in the Southeast U.S. 

Atlantic (A screenshot of the SAFMC 

Habitat and Ecosystem Viewer was 

included with the comment, which we 

assume was taken from http://

ocean.floridamarine.org/SA_Fisheries/). 

The commenter went on to state that 

including this available information into 

the modeling approach might improve 

our understanding of habitat selection 

by right whales. 

Response: We agree that additional 

information into the modeling approach 

might improve our understanding of 

habitat selection by right whales. 

However, the information in Good 

(2008), also said this about substrate 

type: ‘‘Substrate was not considered 

because of lack of suitable data for the 

broader Atlantic Ocean and because 

available substrate data for the [South 

Atlantic Bight] showed little variation.’’ 

Therefore, it was concluded that the 

inclusion of the substrate information as 

provided in Good (2008) was not 

warranted at this time. In addition, see 

our response to comment 13 above. 

Comment 15: One commenter stated 

that Good’s (2008) box-plots showed 

that the majority of mother-calf pairs in 

the southeastern U.S. were observed 

from 6 through 20 m depth and 11° 

through 21 °C sea surface temperature 

(SST) in calm waters. However, the 

proposed right whale critical habitat 

(Unit 2) includes waters with SSTs 

ranging from 8° through 17° C and 

depths of 6 through 28 m, which are 

beyond the range where right whales are 

typically observed. 

Response: We assume the commenter 

is referring to Good’s (2008) box-plots of 

habitat conditions illustrated in Figure 

3. This figure compares habitat 

conditions associated with mother-calf 

sightings against the survey search area. 

The data and, by extension, the figure 

illustrate that mother-calf pairs occurred 

in shallower and cooler waters 

compared to available conditions 

throughout the study area. Good (2008) 

used Mantel tests to evaluate the 

association of mother-calf pairs with 

habitat conditions. Although she found 

SST and depth were significant 

predictors, Good (2008) didn’t specify 

what proportion of observed or 

predicted sightings, corrected for effort, 

would occur with the various SST and 

depth ranges. For that information, we 

looked to Garrison (2007). 

Garrison (2007) generated a figure that 

illustrates percentile of predicted 

sightings per unit of effort by water 

depth and temperature (see Garrison’s 

Figure 16). For reasons specified in the 

Notice of Proposed Rulemaking and 

Biological Source Document, we 

concluded Garrison’s (2007) 75th 

percentile and Good’s (2008) habitat 

selected in 3 and 4 months were the 

most appropriate bases for determining 

the best distribution of essential features 

of right whale calving habitat. Garrison’s 

(2007) Figure 16 illustrate that SST 

ranging from 7–17 °C and depth ranging 

from 6–28 m are habitat features 

associated with the 75th percentile of 

predicted sightings per unit of effort. 

Thus, the physical features essential to 

the conservation of the North Atlantic 

right whale, which provide calving area 

functions in Unit 2 include sea surface 

temperatures of 7 °C to 17 °C, and water 

depths of 6 to 28 meters. 

Comment 16: One commenter stated 

that the proposed critical habitat is 

strongly based on areas from Keller et al. 

(2012) that indicate the probability of 

right whale sightings based on SST 

alone (see Figure 8b in Keller et al. 

(2012)). Depth should have been 

included in the model similar to cell 

mapping in Good et al. (2008). 

Response: We acknowledge that Unit 

2 closely resembles Figure 8b from 

Keller et al. (2012). As indicated in the 

Source Document, in order to identify 

the area that contains essential features 

of calving habitat, we used the 

predictive models of Garrison (2007), 

Good (2008), and Keller et al. (2012). All 

of these authors included water depth 

and sea surface temperature in their 

models because they found depth and 

sea surface temperature were significant 

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variables in predicting the spatial 

distribution of calving right whales. 

Keller et al.’s (2012) Figure 8b illustrates 

where their model, which does include 

bathymetry, predicts right whales to be 

distributed based on SST in December 

through March (as opposed to June 

through September). This temporal 

delineation rightfully constrains the 

model to predicting calving habitat 

during the known right whale core 

calving season of December through 

March. 

Comment 17: One commenter noted 

that Good et al. (2008) limited their 

dataset to presence only to reduce the 

influence of the zero observations. This 

commenter was concerned that 

eliminating the zeros could give a false 

increase in the preferred habitat and, 

resultantly, in protecting calving 

habitats that are not truly critical habitat 

for right whales. 

Response: We concur with Good et al. 

(2008) in that this is a suitable approach 

for a very small population. As that 

author states: ‘‘if habitat conditions 

associated with whale absence are 

incorporated into a model as 

‘unsuitable’, the outcome may be biased 

away from suitable habitat due to 

limited species dispersal.’’ This would 

be particularly true with a small, 

remnant population like right whales. 

Therefore, we do not agree that 

eliminating zeros from the data will 

result in protecting calving habitats that 

are not truly critical habitat for right 

whales. 

Comment 18: The justification for 

choosing the 75[th] percentile of the 

predicted whale sightings stated that 

91% of the observed whale sightings 

were included in the selected model. 

This transforms the goal of the modeling 

exercise from an exercise to select the 

best habitat based on environmental 

parameters to a selection of a model to 

best cover the data. Therefore, the 

selection of the model to describe the 

critical habitat may not give a realistic 

representation of the environmental 

parameter’s influence on the 

distribution of the species. 

Response: Garrison (2007), Keller et 

al. (2012), and Good (2008) found that 

sea surface temperature and water depth 

were significant predictors of calving 

right whale spatial distribution. Good 

(2008) also found surface roughness to 

be a significant predictor. The extent to 

which calving right whales select the 

range and combination of these features 

is best represented as a spatial gradient 

between the most suitable and least 

suitable environments. There is no 

discrete spatial boundary for the habitat 

(e.g. shore line, watershed boundary, 

etc.). Therefore, NMFS defined a 

geographic area that contained a 

significant amount of the habitat 

features used by a large proportion of 

calving right whales (i.e. ‘‘best’’ plus 

‘‘good’’ habitat) over the entirety of the 

calving season. When selecting 

boundaries of critical habitat, we used 

the model results, but we also 

considered the behaviors, physiologies, 

and growth and development of cowcalf pairs during the calving season, 

including the significant amount of 

movement of pairs over the period. We 

also considered the fact that the 

distribution of temperature and surface 

roughness values changes over the 

course of calving seasons, and between 

calving seasons. The purpose of a 

critical habitat designation is to 

facilitate compliance with section 7 of 

the ESA, year in and year out, to ensure 

that actions of federal agencies do not 

destroy or adversely modify critical 

habitat. This objective is accomplished 

by evaluating whale presence and 

behavior, and status of essential 

features, in specific project areas at the 

time they are proposed to be 

implemented. The critical habitat 

features and boundaries being 

designated will facilitate compliance 

with ESA section 7. 

Comment 19: One commenter 

inquired about the portion of the 

population that uses the proposed 

critical habitats during the winter 

months. The commenter also asked at 

what point does the critical habitat no 

longer become vital on a monthly basis. 

This information would be useful for 

planning purposes. 

Response: It is not entirely clear, but 

we believe this commenter is inquiring 

about either the demographic segments 

or how many right whales are in the 

calving area critical habitat on a 

monthly basis. We know all 

demographic segments (adult females 

and males, juveniles, and calves) may be 

found within the calving area critical 

habitat in the winter months. As far as 

the proportion of the total right whale 

population that uses the calving area 

critical habitat then, we do not know. 

We know that as many as 243 different 

whales have been seen in the Southeast 

U.S. during one winter (P. Hamilton 

pers. Comm., April 11, 2014). We 

interpret the second question to be 

asking when are potential impacts to 

right whales in this area no longer of 

concern. From Good (2008), we know 

that at least 85% of all observed right 

whale mother-calf pair sightings from 

January 2000 through March 2005 are 

located within the modified calving area 

critical habitat (Good 2008). Generally, 

by the end of March, mother-calf pairs 

have begun moving northward out of 

the area. 

Designation of a Migratory Corridor 

A number of comments focused on 

the agency’s determination that we are 

unable to identify physical or biological 

feature associated with right whale 

migration. These ranged from comments 

in favor of the agency designating a 

migratory corridor and comments in 

support of the agency’s determination 

that identification of features associated 

with migration is not possible at this 

time. This determination was based on 

our review of the best available 

information. 

Many of the comments received 

advocating the designation of a 

migratory corridor focused on the 

presence of right whales but provide 

little if any additional information on 

the characteristics of physical and 

biological features that enable the 

agency to identify and define critical 

habitat. 

Comment 20: A number of 

commenters stated that the agency must 

designate a migratory corridor for the 

North Atlantic right whale in the midAtlantic, asserting there is no other 

route between the southern calving and 

northern feeding grounds. They stated 

that the agency undervalued the data in 

the available studies and other data the 

agency has relied upon in other 

rulemakings regarding protections for 

North Atlantic right whales. The 

commenters stated that the agency’s 

summary in the proposed rule relied 

primarily on a single study of the broad 

movements of two tagged animals to 

conclude that not all right whales 

migrate within 30 miles of shore, the 

distance referenced in the petition to 

revise critical habitat. The commenters 

stated that the study in question (Schick 

et al. 2009) showed that while not all 

right whales are found within 30 miles 

of the coast, the tagging data from 

Schick et al. (2009) show that the tagged 

whales were primarily found within 30 

miles of the coast of the mid-Atlantic 

and only appeared to travel significantly 

farther from shore off of the Delaware 

Bay area toward Block Island Sound. 

The commenters also stated that a 

recently published report of the tagging 

of two right whales in 2014 showed a 

similar nearshore travel pattern, with all 

movements on the narrow shelf to the 

Chesapeake Bay and only farther 

offshore northward of that area where 

the shelf is broader. 

Response: Given that large-scale 

migratory movements between feeding 

habitat in the northeast and calving 

habitat in the southeast are a necessary 

component in the life-history of the 

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North Atlantic right whale, we agree 

with the commenters that facilitating 

successful migration by protecting the 

species’ migratory area is a key 

conservation objective that could be 

supported by designation of critical 

habitat for the species. As described in 

the Biological Source Document, we 

explored the possibility of using known 

occurrences of North Atlantic right 

whales in the mid-Atlantic to identify 

the specific areas used for migration and 

essential physical and biological 

features in those areas. Data and 

information considered by NMFS 

included sightings data used while 

developing the rule to implement ship 

speed restrictions to reduce the threat of 

ship collisions to North Atlantic right 

whales (73 FR 60173, October 10, 2008); 

the studies by, Knowlton et al. (2002), 

and Firestone et al. (2008); and 

telemetry data and model results used 

in Schick et al. (2009). 

The authors of these three 

publications expressed whale 

distribution in terms of distance from 

shore. For example, of the sightings 

used in support of the ship speed rule, 

NMFS found that approximately 83 

percent of all observed right whale 

sightings occurred within 20 nm (37 

km) of the coast, and approximately 90 

percent of all right whale sightings 

occurred within 30 nm (55.6 km) of the 

coast (73 FR 60173). Schick et al. (2009) 

found that, based on telemetry data for 

two tagged whales, peak habitat 

suitability occurred in the range of 17 to 

108 nm from shore for one tagged whale 

(a mother-calf pair), and for the other, 

peak suitability occurred in the range of 

8 to 40 nm from shore for the other. 

Regardless of the distance from shore in 

which right whales have been 

documented along the mid-Atlantic, we 

found no evidence to support a 

conclusion that ‘‘distance from shore’’ is 

a physical or biological habitat feature 

essential to the conservation of right 

whales. In other words, we found no 

basis to suggest that right whales key in 

on distance from shore, or somehow use 

distance from shore, to facilitate 

migration. 

The commenter also cited the recently 

published report of two tagged right 

whales from 2014. We are aware of this 

three-year ongoing North Atlantic right 

whale telemetry project that tagged 

three right whales in 2014, and we did 

consider the preliminary results of this 

work. Estimated tracks of two of the 

whales were well publicized and made 

available on www.alaskasealife.org. 

However, we are also aware that there 

are varying levels of error and 

uncertainty associated with those 

preliminary telemetry tracks, and the 

data have not been processed 

completely to account for those errors 

(thus, the Web site correctly refers to the 

tracks as ‘‘estimated tracks’’). Further, 

similar to the discussion of the Schick 

et al. (2009) study above, these 

preliminary data do not provide us with 

any indication of physical or biological 

features essential to the conservation of 

right whales and whether any such 

features warranted any special 

management considerations. Therefore, 

we determined that those data are 

preliminary and do not represent the 

best available information present at the 

time of this final rule. For the reasons 

stated above, we conclude it is not 

possible to designate migratory critical 

habitat at this time. 

Comment 21: Several commenters 

stated that they supported our 

conclusion that there is no basis for the 

designation of a migratory corridor as 

critical habitat because there are no 

reliable data by which the physical and 

biological features of migratory critical 

habitat can be determined. 

Response: We agree with this 

comment. 

Comment 22: One commenter stated 

that right whales seasonally residing in 

Cape Cod waters are known to travel 

along the mid-Atlantic coastal waters as 

part of their migration between calving 

grounds offshore of the southeastern 

United States and feeding areas in Cape 

Cod Bay and the Gulf of Maine. Both the 

Biological Source Document and the 

proposed rule reference Schick et al. 

(2009) in support of the statement that 

‘‘The space used by right whales along 

their migration remains almost entirely 

unknown.’’ The commenter suggested 

that, while these data and analyses may 

not be judged sufficient to designate a 

critical habitat along a migratory 

corridor, the compilation of sightings 

data from 1974–2002 prepared as part of 

the analyses for the Ship Strike 

Reduction Program (http://

www.greateratlantic.fisheries.noaa.gov/

shipstrike/doc/

Historical%20sightings.htm), and the 

papers of Knowlton et al. (2002), 

Firestone et al. (2008), Asaro (2012), 

Laist et al. (2014), LaBrecque et al. 

(2015), and Andrews (2015) highlight 

areas of migratory importance and 

should be considered for designation. 

Response: The sightings data 

referenced compiled from 1974–2002 

prepared as part of the analyses for the 

Ship Strike Reduction Program were 

considered. For the purposes of the ship 

strike rule analysis, the focus was to 

determine the risk of ship strikes of 

right whales in the vicinity of ports. As 

discussed, the best available data are 

limited in scope, and do not provide a 

complete description of migratory 

habitat (i.e., survey data were biased 

near shore, and not all right whales 

migrated within 30 nm of shore). Since 

the vast majority of the survey effort was 

focused close to shore, the fact that the 

majority of migrating whales were 

observed close to shore is not surprising 

and does not indicate that distance from 

shore and shallow habitat contain or 

comprise essential features for 

migration. The one completed study 

that removes the associated biases 

related to survey effort and location was 

based on two telemetry tagged whales 

and the movements of those whales 

were much broader and variable (Schick 

et al. 2009). 

Comment 23: One commenter stated 

that the rationale for not designating a 

migratory corridor is not convincing. 

The commenter stated that female right 

whales are seen both in nearshore areas 

within 30 nm of shore and also much 

farther offshore, which suggests that the 

migratory corridor may be wide, not that 

it is non-existent or impossible to 

delineate in some form. The commenter 

stated that adequate information exists, 

along with viable models, to provide the 

necessary data to develop a migratory 

corridor that would provide the 

minimum necessary requirement to 

enhance survivability of the right whale 

populations under consideration 

(Firestone et al. 2008, LaBreque 2015, 

Pendoley et al. 2014, Schick et al. 2009, 

Whitt et al. 2013). 

Response: See response to Comment 

20. 

Comment 24: One commenter stated 

that ensuring that mothers and calves 

are not disturbed as they transit the 

Mid-Atlantic on their way to the 

southern calving grounds is a special 

management consideration associated 

with migration. The comment stated 

that this is essential to the conservation 

of the species and that this area and the 

essential life activities that occur in it 

may be impacted by the activities we 

have identified for Unit 2, as well as by 

oil and gas activities, vessel traffic, and 

other federal actions. 

Response: We agree that migrating 

right whales, including mothers and 

calves, need to be protected. The 

potential impacts identified in the 

comment, however, relate to potential 

impacts to individual whales, which 

would be addressed through a jeopardy 

analysis as required under section 7 of 

the ESA. The impacts identified by the 

commenter do not relate to physical and 

biological features associated with 

possible critical habitat used by 

migrating whales. Designated critical 

habitat receives protection pursuant to 

section 7 of the ESA through a separate 

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provision and process in which 

potential adverse modification or 

destruction of the habitat must be 

evaluated. The protection of physical 

and biological features of critical habitat 

is distinct from the protection the 

animals themselves receive under 

section 7 of the ESA. 

Comment 25: One commenter stated 

that the importance of migratory 

corridors as a Biologically Important 

Area (BIA) is discussed in the Aquatic 

Mammals Journal Special Issue on BIAs 

for Cetaceans within U.S. waters. The 

four categories of BIAs identified in the 

journal articles are: Reproductive areas, 

feeding areas, migratory corridors, and 

areas in which small and resident 

populations are concentrated. NOAA’s 

Cetsound Web site (cetsound.noaa.gov) 

includes a CetMap module that can 

display Migration BIAs for numerous 

cetacean species, including the North 

Atlantic right whale. Migration BIAs 

cover an extensive area of the Atlantic 

coast from Maine to Florida. The 

commenter recognized that the CetMap 

migratory corridor was not intended as 

a regulatory boundary, but the absence 

of a migratory corridor of any size 

within the proposed rule means that one 

of the major BIA categories important 

for the survival of the North Atlantic 

right whale has been omitted. 

Response: Schick et al. (2009) provide 

the only unbiased data and analysis on 

the actual extent of movements of right 

whales in the Mid-Atlantic. Although 

we acknowledge that some portion of 

the right whale population is sighted 

transiting through the waters of the MidAtlantic, designating migratory critical 

habitat requires more than just a general 

understanding of where some whales 

may be seen transiting (see Response 20 

above). The paper identified by the 

commenter, LaBrecque et al. (2015), 

which discusses a migratory corridor for 

right whales relies on the same studies 

that we analyzed in our efforts to 

identify essential physical and 

biological features associated with 

migratory behavior in right whales. 

Although the authors identify a 

‘‘migratory BIA’’ for right whales, this 

paper, like the others evaluated through 

this rulemaking, do not provide us with 

a basis for identifying physical or 

biological features used by right whales 

to facilitate their migration. 

Comment 26: One commenter stated 

that the features of migratory habitat are: 

Shallow, minimal slope, nearshore. 

Another commenter stated that the 

primary physical features for a 

migratory habitat would appear to be 

the existence of a contiguous volume of 

ocean water, within an appropriate 

range of temperatures which provides a 

path through which North Atlantic right 

whales migrate from their foraging areas 

to their calving areas and return. 

Response: The non-specific terms 

‘‘shallow,’’ ‘‘minimal slope’’ and 

‘‘nearshore’’ simply describe the general 

bathymetry of nearshore shallow 

continental shelf benthic habitat. The 

comment did not include any data or 

specific information that would allow 

us to define the appropriate or essential 

values of depth or slope within right 

whale migratory habitat, nor are we 

aware of any such data. The suggestion 

that right whale migratory habitat 

appears to be the existence of a 

contiguous volume of ocean water, 

within an appropriate range of 

temperatures that provides a path 

through which North Atlantic right 

whales migrate from their foraging areas 

to their calving areas and return is also 

non-specific. Again, the comment did 

not include any additional data or 

information that would allow us to 

define an appropriate volume of water 

or range of water temperatures that are 

essential for the conservation of right 

whales. What the range of temperatures 

that may be essential for right whale 

migration is unknown but is a potential 

focus of future research and analysis. 

Comment 27: One commenter stated 

that many of the same habitat features 

identified as essential for calving and 

nursing whales south of Cape Fear (i.e., 

relatively calm, shallow waters between 

7–17 °C) are present in the coastal 

waters between southern North Carolina 

and southern Massachusetts. The 

commenter states that although 

empirical data to support a conclusion 

are lacking, it seems reasonable to 

assume that calves and their mothers 

would continue to prefer waters with 

those characteristics as long as possible 

along their migratory route. This is 

consistent with observations that 

mother-calf pairs do not follow a 

straight-line route between the calving 

and feeding grounds, which would take 

them far off shore, but rather follow the 

coast line to at least the Chesapeake Bay 

where those same conditions also occur. 

Response: The commenter is correct 

in noting that there are no empirical 

data to support the suggestion that right 

whale mother-calf pairs’ migratory 

movements are linked to the 

temperature and sea states similar to 

essential calving features. Also, as 

discussed previously, data from two 

tagged female right whales, one with a 

calf, demonstrate that one migrating 

right whale (the mother calf pair) moved 

with a range of peak habitat suitability 

of 17 to 108 nm from shore, and for the 

other whale, peak suitability occurred in 

the range of 8 to 40 nm from shore 

(Schick et al. 2009). This contradicts the 

statement by the commenter that 

transiting right whales ‘‘follow the 

coastline.’’ While two recently tagged 

animals provide additional information 

regarding right whale movements, 

Schick et al. (2009) still provide the best 

available data related to movements of 

migrating whales. The comment itself 

does suggest to us potential future 

research into whether temperature and 

sea state are possibly being actively 

selected by transiting right whales. 

Comment 28: One commenter stated 

that the agency used the same studies 

the commenter considered in analysis of 

whether it is possible to identify 

essential migratory features in prior 

rulemakings to protect North Atlantic 

right whales. The commenter states that 

the agency inexplicably dismissed them 

for purposes of this rulemaking, by 

claiming that they are effort-biased (i.e., 

most effort is within 30 miles of shore). 

Response: The commenter may be 

referring to the ship strike rule analysis 

(73 FR 60173, October 10, 2008). For the 

purposes of the ship strike rule analysis, 

the nearshore area was of greatest 

interest for determining risk in the 

vicinity of ports. The data were used to 

determine the risk to the species in 

order to mitigate the threat of ship 

strikes of right whales in these areas, not 

to identify a migratory corridor or 

physical and biological features 

essential to the conservation of the 

species which may require special 

management considerations or 

protection. The difficultly in using the 

data for identification of critical habitat 

is also discussed above. 

Comment 29: One commenter stated 

that with regard to identifying features 

essential to conservation of the species 

along its migratory route, Knowlton et 

al. (2002), which is cited in the 

Biological Source Document found that 

93% of all sightings are within 25 

fathoms of water and 80.5% of the 

sightings are within 15 fathoms of water 

indicating reliable physical parameters 

that are likely features for the midAtlantic migratory corridor. 

Response: In terms of water depth, 

Knowlton et al. (2002) found that a 

majority of the sightings were within 5 

to 10 fathoms of water, with the second 

highest number of sightings in 0 to 5 

fathoms of water. The analysis indicated 

that 93 percent of sightings are in water 

depths of 25 fathoms or less, and 80.5 

percent are in water depths of 15 

fathoms or less. As noted above, in so 

far as the sightings were positively 

biased towards shore, it would also be 

expected that the water depth analysis 

would be positively biased towards 

shallow water. 

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Comment 30: One commenter stated 

that we should take the same approach 

to assessing the inclusion of migratory 

habitat in the designation as we did for 

calving and feeding habitat. Not all 

calving and feeding occurs within the 

areas identified in the proposed 

designation. However, the best available 

scientific information indicates that 

most whales use those areas for calving 

and feeding and supports inclusion of 

those areas in the critical habitat 

designation. 

Response 30: As described in the 

proposed rule and Biological Source 

Document, we identified essential 

calving and foraging features that meet 

the definition of critical habitat. The 

areas we are designating as right whale 

critical habitat are the areas in which 

are found the essential forging and 

calving features. As discussed in the 

Biological Source Document, the areas 

where right whales feed and calve are 

well established and thus we were able 

to analyze what specific physical and 

biological features are found in these 

areas that meet the definition of critical 

habitat as required by the ESA. 

Currently, based on the best available 

information, we do not know the actual 

route or routes that right whales 

typically use to transit between other 

habitats, nor do we have data to identify 

the essential physical and biological 

features of a migratory route. Some 

individuals advocate that because right 

whales are sighted in nearshore waters, 

those areas should be designated as 

critical habitat. This approach, however, 

fails to acknowledge the limitations of 

virtually all of the available sightings 

data and overlook the data provided by 

Schick et al. (2009), which show broad 

scale offshore movements of migrating 

right whales far beyond nearshore 

waters. Additional research is needed to 

help identify what areas are typically 

used by right whales for migration, so 

that we can begin to try to identify what 

physical and biological features are 

associated with such an area and 

whether or not, these as yet unidentified 

features may require special 

management and as such qualify for 

designation as critical habitat under the 

ESA. 

Comment 31: One commenter stated 

that the rationale for excluding all areas 

along the migratory corridor from the 

proposed designation fails to recognize 

the importance of this corridor to the 

conservation of the species and the fact 

that most whales migrate through a 

fairly well-defined area. The commenter 

stated that although the data 

documenting right whale migratory 

patterns are less extensive than those for 

other activities in other areas, available 

data from whale sightings and the 

increasing number of tagging and 

passive acoustic studies strongly 

indicate that waters within 30 nm of 

shore are an important component of 

the migratory corridor likely used by 

most pregnant and nursing females and 

calves, as well as by other whales for 

overwintering (Kraus et al. 1986, Kenny 

et al. 2001, Knowlton et al. 2002, Schick 

et al. 2009, Van Parjis et al. 2009, and 

Morano et al. 2012). The commenter 

stated that most right whales migrate 

between the calving and feeding 

grounds within a fairly well defined 

corridor, that we should expand the 

proposed critical habitat to include all 

waters that provide migratory and 

overwintering habitat for North Atlantic 

right whales within 30 nm of the coast 

between the proposed critical habitats 

areas in the northeastern and 

southeastern United States. Another 

commenter stated that there is little 

doubt that virtually all females and 

calves that use the calving grounds in 

winter pass through waters over the 

continental shelf between North 

Carolina and the known feeding 

grounds. The comment stated that the 

conservation of the species will be 

undermined if whales have no other 

way to transit between the two areas. 

Response: See response to Comment 

20. 

Comment 32: One commenter stated 

that historical whaling records provide 

support for designating waters in the 

Mid-Atlantic region as migratory and 

overwintering areas in the critical 

habitat designation. The commenter 

stated that whaling records indicate that 

nearshore waters between Cape 

Lookout, North Carolina, and 

Nantucket, Massachusetts, at least 

historically, were important habitat for 

right whales from November through 

April. The commenter cited Reeves et 

al. (2007) who, based on a review of 

historical whaling records along the 

U.S. East Coast, estimated that at least 

5,500 right whales were killed by 

whalers in the western North Atlantic 

between 1630 and 1950, with perhaps 

80 to 90 percent killed during a 50-year 

period between 1680 and 1730. The 

commenter stated that most of that 

whaling occurred between the months 

of November and May and was 

conducted by shore-based whalers 

operating between North Carolina and 

Nantucket. 

Response: Historical whaling records 

indicate the historic presence of North 

Atlantic right whales and are another 

source of non-systematic data that were 

collected for the purpose of 

documenting the harvest of whales for 

commercial purposes. These records 

merely provide broad geographic 

information concerning general 

locations of right whales during 

harvesting operations. The harvesting 

records do not provide information that 

can be used to identify the physical or 

biological features that promote the 

conservation of the species and which 

may require special management 

protections. 

Identification of Additional Essential 

Features 

Comment 33: One commenter stated 

that the proposed rule does not 

specifically identify features that may 

require special management 

considerations or protections, although 

these are discussed in the preamble. 

Response: A detailed description of 

the physical and biological features we 

identified as essential to the 

conservation of the species and that may 

require special management 

considerations or protections are 

provided in the proposed rule as well as 

in the Biological Source Document and 

Section 4(b)(2) Report. 

Comment 34: One commenter 

recommended that we expand the list of 

essential physical and biological 

features for North Atlantic right whales 

in all critical habitat areas to include the 

acoustic qualities that allow right 

whales to communicate efficiently and 

carry out other essential biological 

functions. 

Response: The acoustic qualities or 

features of the habitat that are essential 

to the conservation of North Atlantic 

right whales are currently unknown. 

Clark et al. (2009) noted that specific 

questions and uncertainty exists 

regarding large whale communications 

and the potential for communication 

loss to lead to impacts to the 

conservation of right whales. These 

researchers concluded that ‘‘At present, 

we can only speculate because we do 

not know enough details about when 

and how whales use their calls to 

communicate relative to the behavioral 

and ecological contexts, and how 

reductions in these capabilities translate 

to biological cost.’’ In addition Clark et 

al. (2009), with regard to bioacoustic 

effects of ocean noise states ‘‘. . . the 

greatest uncertainties in our abilities to 

estimate the impacts of communication 

masking come from our ignorance of 

spatial and temporal scales over which 

animals engage in their bioacoustic 

activities. Very little is known about the 

ranges over which the large whales 

actually communicate . . .’’ Therefore, 

an expansion of the list of essential 

physical and biological features for 

North Atlantic right whales to include 

the acoustic qualities that allow them to 

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communicate efficiently and carry out 

other essential biological functions is 

not warranted at this time. As new 

information becomes available, we will 

take appropriate action if warranted. 

Comment 35: One commenter stated 

that we should identify water quality 

capable of sustaining robust copepod 

blooms without risk of passing 

contaminant concentrations through the 

food web to right whales as an essential 

habitat feature. The commenter stated 

that successful foraging also requires 

clean ocean waters that support healthy 

copepod populations on which right 

whales depend. Several activities 

discussed in the preamble to the 

proposed rule were identified as 

potentially requiring special 

management attention because of their 

effects on water quality (e.g., sewage 

outfalls and offshore oil and gas 

development). Water quality, however, 

was not identified as an essential habitat 

feature. 

Response: Although we did not 

include water quality as an essential 

feature of the critical habitat, we did 

consider impacts associated with water 

quality. The available information on 

the impacts of contaminants directly on 

copepod abundance and reproduction is 

lacking. Copepods are widely 

distributed over a vast expanse in the 

feeding area. While contaminants could 

impact particular parts of this vast 

oceanic expanse, it is unlikely that 

contaminant concentrations would be of 

such magnitude as to negatively affect 

copepod blooms throughout the entire 

feeding area. Further, many of the 

contaminants such as DDT and PCBs 

have been banned in the United States 

for many years, and as such, 

contaminant inputs have decreased in 

many areas. Additionally, within our 

Section 4(b)(2) Report we identified two 

categories of activities, one under the 

Environmental Protection Agency’s 

(EPA’s) jurisdiction and one under the 

U.S. Coast Guard’s (USCG’s) authority, 

that may require modifications 

specifically to avoid adverse 

modification of the essential features. 

These activities are Water Quality/

National Pollutant Discharge 

Elimination System (NPDES) and oil 

spill response. Effluent may affect the 

foraging feature by influencing the 

phytoplankton community structure. 

Similarly, dispersants used in oil spill 

response may have direct impact to the 

foraging features. Both of these activities 

would be subject to consultation 

requirements to ensure they do not 

destroy or adversely modify the 

essential features of the critical habitat. 

With respect to the issue of 

contamination and passing 

contaminants throughout the food web 

to right whales, there is currently no 

evidence for significant contaminantrelated problems in baleen whales 

(O’Shea and Brownell 1994, Weisbrod et 

al. 2000). Weisbrod et al. (2000) found 

that the PCB and pesticide 

concentrations in the right whale 

biopsies were relatively low and did not 

provide evidence that the endangered 

right whales bioaccumulate hazardous 

concentrations of organochlorines. We 

do not have evidence that the 

endangered whales bioaccumulate 

hazardous concentrations of 

organochlorines (Weisbrod et al. 2000). 

Although more research is needed, the 

existing data on mysticetes support the 

view that the lower trophic levels at 

which these animals feed should result 

in lower levels of contaminant 

accumulation than would be expected 

in many odontocetes, which typically 

show concentrations that differ from 

those of baleen whales by an order of 

magnitude (O’Shea and Brownell 1994, 

Weisbrod et al. 2000). However, the 

manner in which pollutants negatively 

impact animals is complex and difficult 

to study, particularly in taxa for which 

many of the key variables and pathways 

are unknown (such as large whales) 

(Aguilar 1987; O’Shea and Brownell 

1994). 

Comment 36: The Marine Mammal 

Commission recommended that we 

should expand the list of essential 

physical and biological features for 

designated feeding areas to include (1) 

water quality able to sustain and 

maintain blooms of copepods, 

particularly Calanus finmarchicus, and 

(2) waters free of materials that could 

impede or interfere with the filterfeeding behavior of North Atlantic right 

whales. 

Response: Regarding the 

recommendation to include water 

quality as a feature, please see response 

to Comment 35. We do not agree with 

the commenter’s recommendation that 

we should identify ‘‘waters free of 

materials that could impede or interfere 

with the filter-feeding behavior of North 

Atlantic right whales’’ as an essential 

foraging feature, and that this proposed 

feature may need special management 

attention because placement of fishing 

or other lines in the water column could 

interfere with right whale filter feeding 

or become caught in right whale baleen. 

Although we agree that addressing 

direct impacts to right whales as they 

forage is important to the overall 

recovery and conservation of the 

species, this rule addresses impacts to 

the physical and biological features of 

the foraging habitat, not direct impacts 

to the species itself. 

As provided throughout this rule, 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. 

Facilitating successful feeding by 

protecting these physical and biological 

features that characterize feeding habitat 

is a key conservation objective that is 

supported by designation of critical 

habitat for the species. 

With respect to activities that may 

impede or interfere with filter-feeding 

behavior of right whales, such as 

placement of fishing or other lines in 

the water column that could interfere 

with right whale filter feeding or 

become caught in right whale baleen 

and thus pose direct impacts to the 

species itself, these impacts are not 

effects to the physical and biological 

features of the foraging habitat. These 

direct impacts to the species itself are 

already provided protection through 

Sections 7 and 9 of the ESA and through 

the MMPA. 

Inclusion of Area to the South of Cape 

Cod/Nantucket in the Critical Habitat 

Designation 

Comment 37: One commenter 

recommended that NOAA support 

research focused upon two areas likely 

critical to the NARW population: (1) 

The entire migratory corridor between 

the Southeast U.S. and the Gulf of 

Maine, and (2) a potentially important 

feeding, residency, and nursery area 

south of Cape Cod, Martha’s Vineyard, 

and Nantucket. 

Response: We agree and will continue 

to support research focused on 

identifying those physical and 

biological features that promote 

conservation for North Atlantic right 

whales. 

Comment 38: Several commenters 

stated that we have inappropriately 

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excluded the waters south of Cape Cod, 

specifically the waters south of 

Nantucket and Martha’s Vineyard from 

the Unit 1 designation. While the 

agency concluded that right whale 

sightings in Block Island Sound have 

not been consistent annually, sightings 

of right whales off Nantucket and 

Martha’s Vineyard have been consistent 

and may be increasing. The commenter 

referenced statements found in the 

Biological Source Document as evidence 

that Nantucket Shoals is a physical 

feature of right whale foraging habitat 

and therefore stated that we should 

include areas south of Cape Cod in the 

Unit 1 critical habitat designation. 

Response: We acknowledge that 

sightings occur to the south and east of 

Unit 1 as depicted in Figure 9 in the 

Biological Source Document, including 

Nantucket Sound and Block Island 

Sound. There is no basis that we are 

aware of for the statement that sightings 

‘‘may be increasing.’’ Typically, whales 

were sighted in these areas in one year, 

but were not seen again in these areas 

on an annual basis. Therefore, a pattern 

of repeated annual observations is not 

evident in these areas. As a result, we 

have concluded that the combination of 

the physical and biological foraging 

features; including the dense 

aggregations of late stage C. 

finmarchicus are not present in these 

areas as found in the Gulf of Maine/

Georges Bank region. We have 

concluded that most likely, these are 

sightings of transiting whales that may 

feed opportunistically while migrating 

to the Gulf of Maine/Georges Bank 

region (Richard Merrick, Pers. Comm., 

May 2010). As discussed in the Source 

Document, researchers have 

documented that right whales forage on 

the copepods other than Calanus 

finmarchicus, including Pseudocalanus 

and Centropages typicus as well as 

barnacle larvae (Mayo and Marx 1990, 

Baumgartner et al. 2007). These 

researchers note, that right whales 

quickly ceased foraging on these 

zooplankton assemblages indicating that 

the prey was likely not suitable to meet 

their energetic requirements 

(Baumgartner et al. 2007). In addition, 

recent survey effort in the areas south of 

Cape Cod off of Nantucket, Martha’s 

Vineyard and in Rhode Island Sound 

have observed socially active groups 

(reproductive behavior) of right whales, 

which provides some additional insight 

into the behaviors of right whales 

present in these areas (Kraus et al. 

2014). 

We have considered additional 

sightings data available (see Kraus et al. 

2014, Khan, C. et al. 2010, 2011, 2012, 

2014, Gatzke J. et al. 2013). Their 

inclusion does not fundamentally 

change the outcome of the analysis 

provided by Pace and Merrick 2008 in 

light of the 35 years of sightings data 

already used in that analysis (Richard 

Merrick, Pers. Comm., May 2010). 

However, we will continue to monitor 

sightings in these areas and will take 

appropriate action if warranted. 

Therefore, we have concluded that the 

combination of physical and biological 

foraging features, including the dense 

aggregations of late stage C. 

finmarchicus, are not present in these 

areas and thus do not include these 

areas south of the Gulf of Maine-Georges 

Bank region in the boundaries of right 

whale critical habitat. We will continue 

to monitor sightings in these areas and 

will take appropriate action if 

warranted. 

Comment 39: One commenter stated 

that we have acknowledged the 

importance of the areas surrounding 

Nantucket Sound for spring aggregations 

of copepods. The agency has stated in 

a separate resource document that the 

early spring abundances of C. 

finmarchicus increase throughout the 

ecosystem, but are highest in the 

shallower portions of the Gulf of Maine, 

on Georges Bank and on Nantucket 

Shoals. Abundance continues to 

increase into late spring, with high 

abundance throughout the Gulf of 

Maine, Georges Bank, the Southern New 

England shelf and the outer Middle 

Atlantic Bight shelf. The comment 

referenced the following NMFS 

document: Seasonal and Spatial Trends’ 

in Ecology of the Northeast Continental 

Shelf: Zooplankton. Retrieved from: 

www.nefsc.noaa.gov/ecosys/ecology/

Zooplankton/. 

Response: The Web site cited by the 

commenter describes our current 

understanding of ecosystem properties 

of the Northeast U.S. Continental Shelf 

Large Marine Ecosystem (NES LME). As 

described, the commenter is correct that 

C. finmarchicus is found seasonally 

throughout the Gulf of Maine, Georges 

Bank, the Southern New England shelf 

and the outer Middle Atlantic Bight 

shelf including Nantucket Shoals. As 

noted, given the diversity of 

zooplankton (>100 species), it is 

difficult to generalize seasonal and 

interannual trends; the dynamics of 

individual species can be very different. 

As discussed in the Biological Source 

Document, right whales must locate and 

exploit extremely dense patches of 

zooplankton to feed efficiently (Mayo 

and Marx 1990). 

Bi et al. (2014) studied the abundance 

of the subarctic copepod, Calanus 

finmarchicus, and temperate, shelf 

copepod, Centropages typicus, over the 

Northeast U.S. continental shelf (NEUS) 

from 1977–2010. These researchers 

studied variation in long term trends 

and seasonal patterns for the two 

copepod species for four sub-regions: 

The Gulf of Maine (GOM), Georges Bank 

(GB), Southern New England (SNE), and 

Mid-Atlantic Bight (MAB). Results 

suggested that there was significant 

difference in long term variation 

between northern region (GOM and GB), 

and the MAB for both species. Calanus 

finmarchicus had the highest abundance 

in the Gulf of Maine and Georges Bank 

followed in Southern New England 

region. Relative to the Gulf of Maine and 

Georges Bank, the long term trend of C. 

finmarchicus showed more variation in 

the SNE but less variation than the MidAtlantic Bight (MAB). The long term 

abundance of C. finmarchicus showed 

more fluctuation in the Mid-Atlantic 

Bight than the Gulf of Maine Georges 

Banks region (Bi et al. 2014). 

As described above and in the 

Biological Source Document we have 

used foraging right whales as a proxy for 

the presence of essential foraging 

features because basin-scale 

zooplankton monitoring schemes have 

proved ineffective in detecting the high 

concentrations usually present in the 

vicinity of actively feeding whales. 

Furthermore, zooplankton such as C. 

finmarchicus are found throughout the 

ocean, but frequently at concentrations 

far too low to meet right whales’ 

energetic requirements (Baumgartner et 

al. 2007). As discussed, 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. 

While C. finmarchicus is present in 

the waters south of Cape Cod including 

Nantucket Sound and Martha’s 

Vineyard, we have concluded that those 

areas do not have the combination 

essential physical and biological 

features, including late stage C. 

finmarchicus in dense aggregations that 

are evident in the GoM-Georges Bank 

region. 

4(b)(2) Report 

Comment 40: One commenter stated 

that our Section 4(b)(2) Report does not 

present a clear assessment of the costs 

and benefits of the proposed 

designation. In addition, the commenter 

stated that the report underestimates the 

total section 7 administrative costs that 

will be incurred because of the 

proposed critical habitat designation. 

The commenter stated the 4(b)(2) 

Report’s estimated section 7 

consultation administrative costs are 

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extraordinarily low and are inconsistent 

with other recent section 4(b)(2) cost 

assessments performed by NMFS. The 

commenter cited two recent 

administrative cost estimates they 

believe provide more accurate 

administrative cost estimates including 

the recent 4(b)(2) impact analysis 

prepared for the Northwest Atlantic 

Ocean Distinct Population Segment of 

the Loggerhead Sea Turtle critical 

habitat designation. 

The commenter stated that we 

improperly concluded that we are 

unable to estimate the critical habitatrelated section 7 administrative costs 

associated with oil and gas exploration 

and development in Unit 1 on the basis 

that there is not a consultation history 

on this activity. The commenter stated 

that section 7 consultations for actions 

involving offshore oil and gas-related 

activities that have been completed in 

other areas, such as the Gulf of Mexico 

and Alaska, as well as for certain areas 

in the Atlantic Ocean, could be used as 

the basis for estimating the costs of 

future oil and gas-related consultations 

in Unit 1. 

Response: We disagree. As discussed 

in the 4(b)(2) Report, we concluded that 

no categories of future federal actions 

would require consultation solely due to 

the critical habitat; all future activities 

will involve consultation on impacts 

both to the species and to critical 

habitat. The administrative costs we 

estimated as being associated with the 

critical habitat consultations represent 

the incremental costs of conducting 

critical habitat analyses in consultations 

on federal actions that ‘‘may affect’’ the 

essential features of the critical habitat. 

According to our regulations, we are 

required to analyze the incremental (i.e., 

the portion of) costs attributable to the 

critical habitat. Therefore, consistent 

with our previous critical habitat 

designations, any administrative costs 

associated with evaluating impacts to 

the species are not included in the 

administrative costs we estimated for 

the proposed North Atlantic right whale 

critical habitat. 

Based on our review of past 

consultations and on comments 

received, we have identified six 

categories of activities that may affect 

the critical habitat: National Pollution 

Discharge Elimination System (NPDES) 

permitting, oil spill response, dredging 

and spoil disposal, marine construction 

permitting, construction and operation 

of offshore liquefied natural gas (LNG) 

facilities, and construction and 

operation of energy facilities and sand 

extraction on the Outer Continental 

Shelf. Of these six categories, we 

identified two categories of activities, 

one under the Environmental Protection 

Agency’s (EPA’s) jurisdiction and one 

under the U.S. Coast Guard’s (USCG’s) 

authority, that may require unique 

modifications specifically to avoid 

adverse modification of the essential 

features, in addition to modifications 

that may be required to address impacts 

to the whales. We have 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. 

These potential activities are: Oil and 

gas exploration and development 

activities, offshore alternative energy 

development activities, directed 

copepod fisheries, and marine 

aquaculture. Due to uncertainty in 

timing of these activities and a lack of 

a consultation history for these four new 

categories, we are not able to project 

annual administrative costs for future 

consultations because we don’t know 

how many such activities might occur. 

However, we expect any of these 

consultations would each result in 

incremental administrative costs for the 

agencies and applicants involved of 

$5,080 per action, again, because these 

activities will also require consultation 

due to impacts to the whales. 

As discussed in the Section 4(b)(2) 

Report, we used administrative cost 

estimates for section 7 consultations 

developed by Industrial Economics, Inc. 

(IEc 2014, See exhibit 2–1 at page 2–11 

in: Industrial Economics (2014) 

Economic Analysis of Critical Habitat 

Designation of Marine Habitat for the 

Northwest Atlantic Ocean Distinct 

Population Segment of the Loggerhead 

Sea Turtle, Final Report, April 29, 2014, 

prepared for NMFS, 220 pp, http://

www.nmfs.noaa.gov/pr/species/

documents/loggerhead_sea_turtle_feafinal.pdf). The IEc (2014) report 

provides estimates of 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 designation 

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 discussed in the Section 4(b)(2) 

Report, we applied the conservative 

assumption that all potential future 

consultations will be formal 

consultations (as opposed to less 

expensive informal consultations); 

therefore, the incremental 

administrative costs for the agencies and 

applicants likely represents an 

overestimation of the costs. 

The example of the higher 

administrative cost estimate provided 

by the commenter of $20,000 per formal 

consultation was taken from the IEc 

(2014) report and represents the cost of 

a new consultation resulting entirely 

from a critical habitat designation (See 

exhibit 2–1 at page 2–11 (IEc 2014)). As 

explained above, this scenario does not 

apply to the North Atlantic right whale 

critical habitat designation. 

The commenter asserted we 

improperly concluded that we are 

unable to estimate the critical habitatrelated section 7 administrative costs 

associated with oil and gas exploration 

and development in Unit 1 on the basis 

that we do not have a consultation 

history on this activity and are therefore 

unable to estimate the number of 

projected section 7 consultations, and 

their associated costs, due to 

uncertainty about the nature, scope, and 

scale of future activities. The 

commenter referenced previous section 

7 consultations for actions involving 

offshore oil and gas-related activities 

that have been completed in other areas, 

such as the Gulf of Mexico and Alaska, 

as well as for certain areas in the 

Atlantic Ocean. The commenter states 

that these consultations could easily be 

used as the basis for estimating the costs 

of future oil and gas-related 

consultations in Unit 1. However, the 

number of past section 7 consultations 

that have taken place in Alaska, the Gulf 

of Mexico, and the Mid-Atlantic does 

not provide a basis by which we can 

estimate the number of potential future 

oil and gas related activities in Unit 1, 

as these planning areas and their state 

of development are vastly different from 

each other. As discussed, we have 

identified the incremental costs of 

future section 7 consultations associated 

with the designation of North Atlantic 

right whale critical habitat in our 4(b)(2) 

analysis. As discussed in the Biological 

Source Document and 4(b)(2) Report, we 

have identified oil and gas exploration 

and development as potential future 

activities that may affect the essential 

features of right whale critical habitat. 

Unit 1 is currently under a moratorium 

for oil and gas exploration. Within Unit 

1, the current moratorium is due to 

expire in 2017 in U.S. waters. The scope 

and nature of the previous projects as 

well as the ecological settings vary 

between geographic region, each 

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presenting unique environmental 

impacts and mitigation needs. 

Comment 41: One commenter stated 

that the Section 4(b)(2) Report is 

disorganized, at times internally 

inconsistent, and does not provide a 

clear accounting or comparison of the 

projected costs and the projected 

benefits of the proposed designation. 

The commenter states that therefore it is 

difficult to provide specific responsive 

comments because the report does not 

provide a straightforward or specific 

explanation of what we have considered 

to be the costs of the designation. 

Response: The commenter did not 

provide specific examples of what they 

believe is disorganized, unclear, or 

internally inconsistent with the Section 

4(b)(2) Report. While we disagree with 

the comment, we have reviewed the 

Section 4(b)(2) Report in response to 

this comment and have made several 

minor organizational changes and 

updates. We believe that the Section 

4(b)(2) Report provides as clear a nonspeculative assessment of the economic, 

national security, and other relevant 

impacts of the designation of critical 

habitat for the North Atlantic right 

whale as is possible given the nature of 

projecting the type, scale, number and 

timing of future activities that may 

trigger consultation. As discussed in the 

Section 4(b)(2) Report, the joint NMFS 

and Fish and Wildlife Service (FWS) 

regulations at 50 CFR 424.19 require 

NMFS and FWS to conduct an 

‘‘incremental analysis’’ by considering 

economic impacts attributable to the 

proposed designation and to describe 

the impacts either qualitatively or 

quantitatively. In order to estimate the 

incremental costs of the proposed 

designation, we attempted to identify 

whether the potential impacts of any 

activities would require efforts to 

specifically avoid adverse modification 

or destruction of the proposed critical 

habitat. Any such efforts were 

considered incremental economic costs 

of the proposed critical habitat 

designation. In addition, the added 

administrative costs associated with 

evaluating impacts to the critical habitat 

are considered incremental costs of the 

proposed designation. While it was not 

possible to provide quantitative 

estimates for all the projected benefits 

and costs that may be uniquely 

attributable to North Atlantic right 

whale critical habitat, the analysis 

attempts to comprehensively identify 

(and, wherever practicable, quantify) 

benefits and costs attributable to the 

proposed action. We expect that this 

critical habitat designation will result in 

both direct and indirect benefits, with 

non-consumptive use and non-use 

values representing a significant 

component of the benefits derived from 

the critical habitat. These values are 

described qualitatively in the Section 

4(b)(2) Report because the economic 

studies needed to quantify those 

benefits are not available. See also the 

Response 42. 

Comment 42: One commenter stated 

that we incorrectly assumed that section 

7 consultations for actions that are more 

likely to affect listed species than affect 

essential habitat features have zero costs 

associated with critical habitat. Further, 

the commenter stated that consultation 

involving a species for which critical 

habitat has been designated results in 

additional costs that are attributable to 

the critical habitat designation, 

specifically as it relates to analysis 

contained in biological opinions. The 

commenter stated that the report 

therefore underestimates the total 

section 7-related costs incurred as a 

result of the designation of North 

Atlantic right whale critical habitat. 

Response: The comment is not 

correct. We identified incremental 

administrative costs for each future 

action we projected would require 

consultation due to potential impacts to 

critical habitat. Administrative section 7 

costs estimated at $95,504 are presented 

in the Section 4(b)(2) Report and 

represent the annual, incremental (i.e., 

additional), administrative cost of 

conducting critical habitat assessments 

for a projected 188 formal consultations 

per year over the next ten years. The 

estimated incremental administrative 

cost for the agencies and applicants 

involved in the consultations we 

identified totaled $5,080 per action. The 

incremental administrative costs were 

derived from data from the Federal 

Government Schedule Rates, Office of 

Personnel Management, 2013, and a 

review of consultation records from 

several Service field offices across the 

country. In calculating these estimates, 

we assumed all future consultations 

would be ‘‘formal’’ (as opposed to some 

being informal); this assumption was 

applied to avoid underestimating the 

administrative costs associated with the 

critical habitat. 

In terms of project modification costs, 

we identified those activities for which 

project modifications to address impacts 

to critical habitat could be required and 

would be different from any 

modifications needed to address 

impacts to the whales. We could not 

monetize project modification costs, 

because there are too many variables 

about potential future actions (e.g., size, 

location, timing) that make it impossible 

to project exactly what type or 

combination of project modifications 

might be needed. 

Special Management Considerations 

and Impacts of the Designation 

Comment 43: Several organizations 

agreed with concerns we raised in the 

Biological Source Document that 

fragmented habitat may have an adverse 

impact on successful calving. Several of 

these commenters identified additional 

activities that they believed could 

fragment calving habitat and therefore 

be subject to federal consultation 

requirements. Among these were 

activities that could alter the acoustic 

habitat necessary for whale 

communication including seismic 

airguns, pile driving, underwater 

detonations, military sonar, and vessel 

traffic that could interfere with essential 

physical or biological features of calving 

habitat. One organization stated that 

installation and operation of oil and gas 

rigs and supportive structures could act 

as a type of barrier to calving right 

whales and prevent them from moving 

around to find optimal combinations of 

essential calving area features. 

Response: As stated in the Biological 

Source Document, activities or 

conditions that fragment the 

contiguousness of the essential features 

or reduce or eliminate the 

‘‘selectability’’ of dynamic, optimal 

combination of the essential features 

may have negative impacts on right 

whale calving. However, we do not 

agree that oil and gas rigs will reduce or 

eliminate the selectability of dynamic, 

optimal combination of the essential 

calving features. The BOEM presently 

implements a 50-mile no-leasing buffer 

from the Georgia, South Carolina, and 

North Carolina coastlines for oil and gas 

leasing, and the buffer is being proposed 

for the 2017–2022 lease sale. Unit 2 off 

Florida is not within BOEM’s South 

Atlantic Planning Area (i.e., there are no 

oil and gas leases proposed through 

2022), based on objections from the 

State. Consequently, no oil or gas rigs 

are projected to be located within Unit 

2. 

As stated in the Biological Source 

Document, activities or conditions that 

fragment the contiguousness of the 

essential features or reduce or eliminate 

the ‘‘selectability’’ of dynamic, optimal 

combination of the essential features 

may have negative impacts on right 

whale calving. The Section 4(b)(2) 

report also outlines the process and set 

of activities we expect may affect the 

features of the calving habitat. The 

activities identified by the commenter 

may have impacts on right whales 

themselves but are not be expected to 

affect the essential physical and 

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biological features of calving habitat. 

Therefore, we would consult on the 

effect of those activities on the listed 

species, not the designated critical 

habitat. 

Comment 44: One commenter stated 

that the impacts of overlapping North 

Atlantic right whale calves and wind 

farms off Southeast North Carolina has 

not been studied and should be added 

as a future management concern. This 

commenter further advocated that no 

marine wind energy construction be 

allowed until impacts on right whales 

are understood. 

Response: We are also unaware of any 

studies that investigate the effects of 

wind farms on right whales, including 

calves. In the proposed rule and 

Biological Source Document, we 

identified wind farms (i.e., offshore 

energy development) as a reason the 

calving habitat essential features may 

require special management 

considerations or protection, given 

potential impacts on (1) the essential 

physical features of North Atlantic right 

whale calving habitat and (2) the 

contiguousness and selectability of the 

essential features. Construction and 

presence of large arrays of permanent 

structures may limit the availability of 

essential habitat features to calving right 

whales. Arrays of structures may also 

act as physical barriers and prevent or 

limit the ability of right whale mothers 

and calves to select dynamic 

combinations of the essential habitat 

features. Windfarms may also impact 

the contiguousness the physical habitat 

features essential for successful calving. 

By explicitly acknowledging these 

potential impacts to calving right whale 

critical habitat, we encourage Federal 

agencies and applicants whose actions 

may affect critical habitat features in 

these ways to consider and address 

these concerns to critical habitat in early 

planning of such activities. 

Comment 45: One commenter stated 

that hydrokinetic energy is proposed for 

coastal Maine and was evaluated by the 

Department of Energy (DOE). The 

commenter stated that the DOE report, 

though acknowledging the lack of 

information on large-scale operations, 

also acknowledges that there could be 

adverse ‘‘effects on bottom habitats, 

hydrographic conditions, or animal 

movements.’’ The commenter further 

stated that the DOE Report indicated 

that floating and submerged structures, 

mooring lines, and transmission cables 

associated with large ocean energy 

facilities could interfere with the 

movement of animals and it cites 

entanglement risk for right whales that 

has been documented in other lines and 

cables. 

Response: In Unit 1, we considered 

the potential impacts of wave and tidal 

energy facilities, should they be 

developed, on dense aggregations of 

copepods and concluded based on the 

information available that the activity 

would not likely affect the survivability 

of dense copepod aggregations. We do 

not believe that hydrokinetic energy 

facilities will impact essential physical 

features in Unit 1. The basin-wide scale 

of the physical oceanographic features 

we have identified as essential features 

of foraging habitat in Unit 1 will not be 

affected by the relatively localized 

impacts of hydrokinetics energy 

facilities. 

Most of ocean energy and 

hydrokinetic renewable energy 

technologies remain at the conceptual 

stage and have not yet been developed 

as full-scale prototypes or tested in the 

field (DOE 2009). Several potential 

hydrokinetic tidal energy sites have 

been identified in Maine as part of 

Maine Tidal Power Initiative (Available 

at: http://umaine.edu/mtpi/overview). 

These sites are all located inshore, 

either at the lower reaches of rivers or 

bays. Studies are underway at a 

potential tidal turbine site in Eastport, 

Maine to better understand the impact 

a tidal energy project could have on 

fish. 

The DOE (2009) report, cited by the 

commenter, indicates that ‘‘effects on 

bottom habitats, hydrographic 

conditions, or animal movements’’ may 

possibly need further investigation as 

part of siting and licensing a project 

investigation, not that there could be 

adverse effects as suggested. Future 

proposals for development of 

hydrokinetic energy and deployment of 

arrays will provide an opportunity to 

evaluate the potential impacts to the 

essential features and the species 

through the section 7 consultation 

process. 

We considered the potential impacts 

of the construction and operation of 

energy production technologies 

including hydrokinetic on the 

dynamically distributed essential 

features of calving habitat and their 

selectability by right whales. In Unit 2, 

we concluded that the 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 raise or lower the available 

value ranges for these features. 

However, installation and operation of 

these technologies may fragment large, 

continuous areas where the essential 

features are present. Additionally, 

installation and operation of these 

technologies may limit the availability 

of the essential features such that right 

whales are not able to select dynamic, 

optimal combinations of the features 

necessary for successful calving. 

Comment 46: Multiple commenters 

stated that with regard to the 

installation of offshore wind energy 

facilities, the Biological Source 

Document discusses potential offshore 

wind energy projects only with regard to 

the possible adverse impacts on the 

essential features of calving habitat in 

Unit 2. One comment stated that the 

concerns and cautions raised for the 

installation of offshore wind energy 

facilities in calving grounds are also 

applicable to the installation of these 

facilities in the northeast, and cited an 

application for a lease site in federal 

waters approximately 12 miles off of 

Portland, Maine. The commenter stated 

that so-called ‘‘floating’’ turbines such 

as are proposed for this project are 

anchored to the bottom by heavy cables 

that could, as discussed in the 

Biological Source Document for Unit 2, 

impede passage or disrupt current 

flows, possibly disrupting some of the 

physical features of this critical feeding 

habitat. 

Additionally, installation and 

operation of these technologies may 

limit the availability of the essential 

features such that right whales are not 

able to select dynamic, optimal 

combinations of the features. This 

document also stated that ‘‘[l]arger 

whales may have difficulty passing 

through an energy facility with 

numerous, closely spaced mooring or 

transmission lines.’’ 

Response: We disagree with the 

statement that special management 

considerations and protections 

associated with the potential impacts of 

offshore wind energy development on 

the essential features of calving habitat 

in Unit 2 are applicable in Unit 1. The 

special management considerations and 

protections associated with calving and 

foraging habitat are different, as are the 

routes of potential impacts, because the 

features are defined differently. We 

considered the potential impacts from 

the construction, operation, and 

decommissioning of wind farms on the 

essential physical and biological 

foraging features in Unit 1. We 

concluded there would be no impacts to 

the essential features. 

The effects on passage and a whale’s 

ability to feed that the commenter 

suggested might be associated with the 

activity would constitute impacts on the 

species and not critical habitat features. 

On December 30, 2010, we completed a 

formal section 7 consultation on the 

proposed Cape Wind Energy Project. We 

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concluded that all effects to whales from 

the proposed project were insignificant 

or discountable, and therefore the 

proposed action was not likely to 

adversely affect listed whales, including 

right whales. 

While impacts to critical habitat were 

not considered for this project because 

there is none designated within the 

project’s action area, the potential 

environmental impacts of the Cape 

Wind Energy Project were analyzed 

(DOE 2012). As part of the analysis, the 

potential impact associated with 

possible alterations to circulation 

patterns and currents were considered 

and determined to be negligible (DOE 

2012). We believe that this would be the 

case in other future wind energy 

projects should they be proposed within 

Unit 1. Therefore, there would be no 

impacts to essential physical foraging 

features in Unit 1. Furthermore, we 

cannot currently identify any 

mechanisms by which the construction, 

operation or decommissioning of a wind 

energy project would affect the other 

essential foraging features we have 

identified in Unit 1. 

However, future proposals for 

development of offshore wind facilities 

will provide an opportunity to evaluate 

the potential impacts to the essential 

features and the species through the 

section 7 consultation process. 

Comment 47: One commenter stated 

that for both the Unit 1 and Unit 2 

proposed designations, we summarily 

concluded that future special 

management measures may be needed 

to address possible, but uncertain, 

future consequences of climate change. 

The comment stated that, we did not 

identify any special management 

measures that may address those 

projected consequences. Because there 

is no support for the proposed climate 

change-related special management 

finding, the commenter recommended 

that we eliminate it in any final rule that 

is issued. The comment stated that 

critical habitat designations must be 

supported by a finding that the essential 

habitat features ‘‘may require special 

management considerations or 

protection[s].’’ 16 U.S.C. 

1532(5)(A)(i)(II). The comment stated 

that any special management ‘‘methods 

or procedures’’ identified by the agency 

must be ‘‘useful in protecting physical 

and biological features of the 

environment for the conservation of 

listed species.’’ 50 CFR 424.02(j). The 

comment stated that for both Unit 1 and 

Unit 2, we recited a number of possible 

future consequences that the agency 

believes may be related to climate 

change and then summarily concluded 

that future special management 

measures may be needed to address 

those possible, but uncertain, future 

consequences. The commenter stated 

that we did not speculate as to what 

type of special management measures (if 

any) may be needed with respect to 

projected climate change effects. The 

comment provided previous cases and 

legal standards that they believe support 

this recommendation, such as ‘‘Cape 

Hatteras Pres. Alliance, F. Supp. 2d at 

124.’’ 

Response: We disagree with this 

comment. A review of the decision in 

Cape Hatteras Access Preservation 

Alliance v. U.S. Dep’t of the Interior et 

al., 344 F. Supp. 2d 108 (D.D.C., Nov. 

1, 2004), reveals that the court 

remanded the critical habitat 

designation to the U.S Fish and Wildlife 

Service (FWS) because they failed to 

make a determination as to whether the 

essential features (‘‘PCEs’’) they 

identified in the designation of critical 

habitat may require special management 

considerations or protections. The 

ruling was not that FWS must make the 

determinations and also identify 

specific special management measures 

that may be needed with respect to 

possible future effects. 

In the proposed rule, we identified 

specific routes, where possible by which 

we believe that the essential foraging 

and calving features could be impacted 

by climate change and thus why the 

features might require special 

management considerations or 

protections in the future (See pages 

117–131 for Unit 1 essential features 

and pages 139–143 for Unit 2 in the 

Biological Source Document). 

Comment 48: The commenter stated 

that one special management situation 

for Unit 1 that was not considered is a 

proposed increase in shellfish 

aquaculture. The commenter provided a 

specific example of a project under 

consideration on Jeffreys Ledge as being 

illustrative of this particular concern 

and provided a number of potential 

impacts including the introduction of 

vertical lines and mooring and buoy 

lines into the water column. The 

commenter asserted that this type of 

facility might block free passage of 

whales or disrupt foraging behavior and 

increase entanglement risks. The 

commenter noted that there are 

proposals to site other facilities outside 

of the area in which the essential 

foraging features are found (e.g., 

Nantucket Sound). The commenter 

stated that these activities have not been 

adequately considered by the agency 

with regard to potential threats to right 

whales and whether they may 

potentially disrupt foraging behavior to 

determine if special management 

considerations or protections are 

necessary. 

Response: During the development of 

the proposed rule and the supporting 

documents (e.g., Biological Source 

Document, Section 4(b)(2) Report), we 

conducted an in-depth and thorough 

analysis of the potential for a variety of 

activities to impact the essential features 

of foraging and calving habitat including 

offshore aquaculture. The potential 

impacts of the activities cited by the 

commenter were not identified as 

reasons the essential features may 

require special management, or as 

activities that would require section 7 

consultation because they might 

adversely affect the essential features of 

foraging habitat. The introduction of 

vertical lines, mooring, and buoy lines 

into the water column associated with 

the development of offshore shellfish 

aquaculture may present an 

entanglement risk for large whales, 

including right whales, but is not a 

route of effects to the essential foraging 

features of the critical habitat. Thus, the 

agency would consider those impacts 

during a section 7 consultation to insure 

those activities are not likely to 

jeopardize the continued existence of 

North Atlantic right whales. 

Comment 49: One commenter states 

that the proposed rule discusses several 

activities that may adversely affect 

essential physical or biological features 

and that require special management 

considerations or protection. The 

commenter stated that while they 

recognize that it may be unrealistic to 

list all such activities, a more extensive 

discussion of the range of activities that 

may affect essential physical and 

biological features should be provided. 

The commenter states that for their 

recommended feature of ‘‘acoustic 

habitat necessary for whale 

communication or other essential whale 

behavior’’ we should note in the 

preamble that seismic airguns, pile 

driving, underwater detonations, 

military sonar, and vessel traffic could 

interfere with essential physical or 

biological features, prompting the need 

for special management considerations. 

With regard to feeding areas, it would be 

appropriate to note that activities that 

discharge contaminants, in addition to 

those already mentioned in the 

proposed rule, and could affect the 

reproduction or abundance of copepods, 

also may trigger special management 

action. Similarly, the placement of 

fishing or other lines in the water 

column that could interfere with right 

whale filter feeding or become caught in 

right whale baleen may need special 

management attention as well. 

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Response: The ‘‘special management 

considerations’’ that the commenter 

identifies apply to physical and 

biological features that the Marine 

Mammal Commission recommended be 

identified as essential right whale 

critical habitat features. We have 

considered their recommendations and 

have concluded that the features they 

propose are not appropriate for 

identification as such (see responses to 

comments 34, 35 and 36). Further, many 

of the activities that they identify and 

that they believe require special 

management are issues related to the 

takings of right whales, not impacts to 

essential features of critical habitat. The 

activities identified by the commenter 

would affect right whale individuals 

and not critical habitat itself. Therefore, 

these were not identified as part of the 

impact analysis as having the potential 

to affect the essential features. 

Comment 50: One commenter stated 

that the impacts of overlapping North 

Atlantic right whale calves and wind 

farms off Southeast North Carolina has 

not been studied and should be added 

as a future management concern. This 

commenter further advocated that no 

marine wind energy construction be 

allowed until impacts on right whales 

are understood. 

Response: We are also unaware of any 

studies that investigate the effects of 

wind farms on right whales, including 

calves. In the proposed rule and 

Biological Source Document, we 

identified wind farms (i.e., offshore 

energy development) as a reason the 

calving habitat essential features may 

require special management 

considerations or protection, given 

potential impacts on (1) the essential 

physical features of North Atlantic right 

whale calving habitat and (2) the 

contiguousness and selectability of the 

essential features. Construction and 

presence of large arrays of permanent 

structures may limit the availability of 

essential habitat features to calving right 

whales. Arrays of structures may also 

act as physical barriers and prevent or 

limit the ability of right whale mothers 

and calves to select dynamic 

combinations of the essential habitat 

features. Windfarms may also impact 

the contiguousness the physical habitat 

features essential for successful calving. 

By explicitly acknowledging these 

potential impacts to calving right whale 

critical habitat, we encourage Federal 

agencies and applicants whose actions 

may affect critical habitat features in 

these ways to consider and address 

these concerns to critical habitat in early 

planning of such activities. 

Comment 51: BOEM commented that 

their Marine Minerals Program has a 

role in sand resources leasing to support 

identified U.S. Army Corps of Engineers 

actions. However, the proposed rule and 

ESA Section 4(b)(2) Report did not, but 

should, consider BOEM’s administrative 

costs for these actions. 

Response: In response to this 

comment, we modified the Section 

4(b)(2) Report to reflect BOEM’s sand 

leasing activities and administrative 

costs associated with section 7 

consultations. 

Comment 52: Several comments 

discussed the relationship between 

critical habitat and take avoidance 

measures implemented to protect the 

species during geological and 

geophysical activities. One commenter 

asked if protection measures would 

change to accommodate the change in 

critical habitat. Another commenter 

supported extending protection 

measures from the 1994-designated 

critical habitat area to the modified 

critical habitat. Finally, one commenter 

suggested considering the impact of oil 

spills from oil and gas activities off the 

Southeast U.S. coast on calves and 

lactating mothers. 

Response: The ESA requires Federal 

agencies, in consultation with us, to 

ensure that ‘‘any action authorized, 

funded, or carried out’’ by the action 

agency is not likely to jeopardize the 

continued existence of any listed 

species or result in the destruction or 

adverse modification of the species’ 

habitat (16 U.S.C. 1536(a)(2)). The 

purpose of the referenced protection 

measures is to avoid harm to right 

whales (the animals themselves). The 

purpose of consulting on critical habitat 

is to avoid destroying or adversely 

modifying critical habitat. We are not 

aware of how measures protecting the 

species from physical harm (e.g., injury 

from vessel strike) would protect habitat 

essential features (e.g., water depth in 

Unit 2); consequently, we do not 

anticipate the protection measures will 

change as the result of modification to 

critical habitat. However, protection 

measures may change as we all learn 

more about the North Atlantic right 

whales—including their distribution 

patterns. As far as oil spills, we would 

analyze those possible impacts to the 

animals during ESA section 7 

consultations. 

Comment 53: One commenter 

requested that we consider impacts 

associated with coastally-located 

industrial electric generators (e.g., 

Pilgrim Nuclear Power Station, 

Seabrook Nuclear power station, Mirant 

Canal Power Plant) as a cause for special 

management considerations or 

protections. The comment stated that 

the proposed critical habitat area 

includes the large embayments of Cape 

Cod Bay and Massachusetts Bay and 

deep underwater basins, incorporating 

state and federal waters from Maine 

through Massachusetts, but inshore 

waters were not considered. The 

commenter stated that over the last 

several years, there have been increasing 

concentrations of right whales in the 

western portion of Cape Cod Bay, 

including inshore areas off the shore of 

Plymouth, MA. The commenter 

recommended that we consider 

including these inshore areas where 

high concentrations of right whales have 

been sighted. The commenter also stated 

that there may be cumulative impacts to 

copepods or other foraging habitat 

features due to industrial electric 

generators operating on the shoreline, 

such as Entergy’s Pilgrim Nuclear Power 

Station (PNPS) on the shore of Cape Cod 

Bay (Plymouth, MA), Seabrook Station 

Nuclear Power Plant (SBNPP) 

(Seabrook, NH), and Mirant Canal 

Power Plant (MCPP) (Sandwich, MA). 

The commenter stated that negative 

impacts include entrainment of 

copepods and other planktonic species, 

as well as chemical, thermal and 

radioactive discharges occurring in 

important foraging areas. The comment 

stated that this issue should be included 

as a cause for special management 

considerations or protections. 

Response: We agree that in recent 

years there has been an increase in the 

concentration of right whales in 

Western Cape Cod Bay, which has been 

included in this critical habitat 

designation. We have conducted 

informal consultations for the 

relicensing of the named power plants. 

The consultations concluded that the 

relicensing and continued operation of 

the power plants was not likely to 

adversely affect any NMFS ESA-listed 

species under our jurisdiction and 

would be would be extremely unlikely 

to adversely affect right whale critical 

habitat as it was designated at the time. 

The best available scientific 

information, derived from recent 

modeling, indicates that population 

level effects of zooplankton/copepods 

removal due to entrainment in liquefied 

natural gas (LNG) operations involving 

water withdrawals would be so minor 

that the change would be 

indistinguishable from natural 

variability (NMFS 2007, Robert Kenney 

in October 11, 2011, letter to NMFS). 

While some copepods are likely lost to 

entrainment at Pilgrim each year, 

approximately 85% of entrained 

zooplankton are believed to survive. As 

such, the essential feature of dense 

aggregations of late stage C. 

finmarchicus does not require special 

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management considerations or 

protection due to entrainment by the 

PNPS, SBNPP or MCPP. 

Comment 54: One commenter 

questioned how critical habitat 

designation will impact the efficiency 

and overall processes for future ESA 

consultations for BOEM’s three 

programs of Oil and Gas, Renewable 

Energy, and Marine Minerals. 

Response: The impacts of designating 

critical habitat on BOEM’s programs are 

considered in the Economic Impacts 

section of the proposed rule and 

accompanying ESA Section 4(b)(2) 

Report. How the critical habitat 

designation will affect the efficiency 

and overall process for future ESA 

consultations is contingent upon 

whether BOEM’s particular proposed 

activity has the potential to adversely 

affect essential features in Unit 2, and 

on the project scope, and routes of 

effects. For BOEM’s renewable energy 

programs only, we concluded proposed 

actions will more likely affect the 

essential features of critical habitat than 

the species in Unit 2. However, because 

there are no records in our consultation 

history for offshore renewable or 

alternative energy projects occurring 

within Unit 2, we are unable to (a) 

predict how many section 7 

consultations may result from projects 

of this type or (b) calculate the projected 

incremental costs resulting from this 

action. Ultimately, proposed projects 

will have to be analyzed on a case-bycase basis and we encourage BOEM to 

coordinate with us early in the project 

development phase. 

Comment 55: We received a number 

of comments from BOEM regarding 

Atlantic geological and geophysical 

(seismic) activities in Unit 2. Comments 

included: A request to identify and 

address effects of Geological and 

Geophysical Data Acquisition on critical 

habitat or further offshore; an inquiry as 

to whether the revised critical habitat 

would affect existing mitigation 

measures that are tied to existing critical 

habitat or require additional protection 

measures for the species (BOEM stated 

that additional measures were required 

in recent consultations on Navy 

dredging and disposal activities within 

the 1994-designated critical habitat); 

information on and examples of 

possible special considerations or 

protections that may be required as the 

result of changes to critical habitat was 

requested. 

Response: We are not aware of any 

routes of impact concerning seismic 

activity that would potentially create 

adverse effects on the essential features 

of Unit 2 of North Atlantic right whale 

critical habitat—i.e., the physical 

features of sea surface conditions or 

temperature, or water depths, or their 

selectability over large contiguous areas. 

Consequently, we believe that seismic 

activities are more likely to affect the 

species in Unit 2 than the physical 

features of critical habitat. As far as the 

effects of seismic activity on the species, 

we would analyze those possible 

impacts to the animals during ESA 

section 7 consultations. 

Comment 56: BOEM requested that 

the administrative costs associated with 

the changes in critical habitat be 

captured in the Section 4(b)(2) Report 

for BOEM’s three program areas: Marine 

minerals, renewable energy, and oil and 

gas. BOEM commented that possible 

additional protections and special 

considerations resulting from the 

modified critical habitat were not 

included in the analysis estimating 

BOEM’s costs for future renewable 

energy programs. BOEM believes $5,080 

per action underestimates BOEM’s true 

administrative cost so the Section 

4(b)(2) Report should be revised. 

Response: As mentioned in the 

Economic Impacts section of the 

proposed rule (80 FR 9314, February 20, 

2015), we are unable to quantify the 

number of potential future consultations 

and thus the annualized incremental 

administrative costs associated with 

renewable energy activities in the 

calving area. The reason for this is that 

these are future activities for which 

there is no past consultation history, 

and we received a correspondence from 

BOEM that stated they have no specific 

or planned project proposals. We 

disagree that $5,080 per action 

underestimates true incremental 

administrative costs for consultations on 

impacts to critical habitat that will be 

required as a result of this rulemaking. 

We used costs for consultations 

developed by Industrial Economics, Inc. 

(IEc 2014). The administrative costs 

associated with critical habitat 

consultations are low because they 

represent the incremental costs of 

adding critical habitat analyses to 

consultations that would be required to 

address potential impacts to the species. 

The costs of consultation that would 

occur even in the absence of critical 

habitat are not incremental costs of this 

designation. 

Comment 57: One commenter stated 

although the 4(b)(2) Report correctly 

recognizes the potential for oil and gas 

exploration and development in Units 1 

and 2, we incorrectly assume that 

project modifications associated with 

critical habitat may occur in Unit 1 but 

not in Unit 2 for these activities. 

However, project modifications have 

already been proposed in Unit 2 for 

currently proposed actions that are 

solely attributable to right whale critical 

habitat. For example, the Bureau of 

Ocean Energy Management’s Record of 

Decision for the Atlantic OCS Proposed 

Geological and Geophysical Activities 

Mid-Atlantic and South Atlantic 

Planning Areas, Final Environmental 

Impact Statement recommends an 

expansion of the time-area closure 

applicable to right whale critical habitat 

to a continuous 37 km wide zone and 

includes protective restrictions. None of 

the costs associated with these 

restrictions are identified in the Report 

and consequently the Report 

underestimates critical habitat related 

costs for oil and gas activities in Unit 2. 

Response: We do not agree that the 

Section 4(b)(2) Report should be 

updated to recognize potential project 

modifications to oil and gas exploration 

and development activities in Units 2. 

The BOEM Record of Decision (ROD) for 

the Atlantic OCS Proposed Geological 

and Geophysical Activities Mid-Atlantic 

and South Atlantic Planning Areas, 

Final Environmental Impact Statement 

(FEIS) contains mitigation measures 

intended to avoid or minimize effects to 

right whales themselves (and other 

environmental impacts) related to oil 

and gas geological and geophysical 

(G&G) activities and other proposed 

G&G activities throughout the Mid- and 

South Atlantic Planning areas. These 

mitigation measures include guidance 

for ship strike avoidance, mitigation 

measures for seismic airgun surveys and 

mitigation measures for high resolution 

geophysical (HRG) surveys. The 

mitigation measures are not intended to 

provide protection measures for critical 

habitat features but are intended to 

reduce the risk of acoustic and vessel 

strike impacts to North Atlantic right 

whales. Based on our 4(b)(2) impact 

analysis, we have not identified any 

routes of effects for acoustic impacts to 

the essential calving features. Any costs 

associated with the implementation of 

such G&G mitigation measures are not 

attributable to the designation of right 

whale critical habitat. As such, the 

Section 4(b)(2) Report does not 

underestimate critical habitat-related 

costs for oil and gas activities in Unit 2. 

Fishing and Critical Habitat 

Comment 58: Several commenters 

noted that while the proposed rule does 

not include any new restrictions for 

commercial fishing commenters are 

concerned about the waters being 

proposed for designation. The 

commenters stated that while we have 

determined ‘‘current fishing practices 

and techniques will not affect the 

essential foraging features’’ and we do 

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not anticipate ‘‘fishery related activities 

that would trigger consultation on the 

basis of critical habitat designation,’’ 

commenters feel it is not a guarantee. 

The commenters could not support a 

formal designation with the potential to 

negatively impact fishermen without 

concrete scientific evidence of its need. 

Response: As part of its impact 

analysis, we concluded that commercial 

fishing activities, as currently 

conducted, are not expected to affect the 

essential features of right whale foraging 

habitat with the exception of a potential 

future directed copepod fishery. Gear 

restrictions currently in place to protect 

large whales, including right whales, 

were established by the regulations 

implementing the Marine Mammal 

Protection Act’s Atlantic Large Whale 

Take Reduction Plan. Changes to gear 

restrictions are beyond the scope of this 

rulemaking to designate critical habitat 

under the ESA. The Atlantic Large 

Whale Take Reduction Team process is 

the proper venue to consider the 

adequacy of gear restrictions. 

Consequently, we are not making any 

changes to the current gear restrictions 

as part of this critical habitat rule. 

Comment 59: One commenter stated 

that Maine’s lobster industry has been 

engaged in the Take Reduction Team 

process since its inception and 

fishermen have worked diligently over 

nearly two decades to implement 

changes in fishing practices to aid in the 

recovery of right whales. The 

commenter questioned the potential 

impact of new federal regulations on 

fishermen and doubted that the 

proposed designation area reflects a 

balanced review of the best available 

science, nor does it properly consider 

the economic impacts that will result 

from using an arbitrarily drawn critical 

habitat area that fails to exclude all 

areas that are not essential for 

conservation and recovery of the 

species. 

Response: We have identified the 

areas on which are found the physical 

and biological features which are 

essential to the conservation of the 

species and which may require special 

management considerations or 

protections as required by the ESA. The 

boundaries of the proposed critical 

habitat encompass the essential foraging 

and calving features. In identifying the 

essential calving and foraging features 

and considering the economic impacts 

of the designation, we have used the 

best available data and information. See 

also Response to Comment 58 regarding 

commercial fishing. 

Comment 60: Multiple commenters 

stated that while they support the 

concept of expanding the existing 

critical habitat areas where essential to 

the conservation and recovery of the 

right whale, this support for the 

proposed expansion is predicated on 

our finding in the Section 4(b)(2) Report 

that neither commercial nor recreational 

fishery-related activities are expected to 

affect the essential features of right 

whale foraging habitat with the 

exception of a directed copepod fishery. 

Response: See response to Comment 

58. 

Other Comments 

Comment 61: Several organizations 

commented that we should not exclude 

areas from critical habitat based on 

economic or other impacts. 

Response: As required by section 

4(b)(2) of the ESA, we considered the 

economic, national security, and any 

other relevant impact, of specifying any 

particular area as critical habitat. 

Section 4(b)(2) allows, but does not 

require, us to consider excluding a 

particular area from a designation, but 

only if the benefits of excluding that 

area outweigh the benefits of including 

it in the designation, and if the 

exclusion will not result in extinction of 

the species. We considered the 

economic impacts of specifying North 

Atlantic critical habitat; however, based 

on those considerations, we are not 

exercising our discretion to exclude any 

areas from the designation. 

Comment 62: One commenter stated 

that we can exclude any area where the 

costs of designation, including 

economic impacts, outweigh the 

conservation or economic benefits of 

designation. Such exclusions avoid 

unnecessarily burdening economic 

activity and designating areas as critical 

habitat where there is little or no benefit 

in doing so. The comment further stated 

that the ESA does not require us, in 

making section 4(b)(2) decisions, to 

limit our analysis to only those 

economic impacts that are certain and 

quantifiable. Instead, the economic 

analysis is a reasoned projection of what 

human activities may happen in the 

future and the economic impacts that 

the designation may have on those 

future activities. 

Response: See response to Comment 

61. 

Comment 63: Several commenters 

noted that they supported our 

determinations not to designate a 

migratory corridor or breeding areas as 

critical habitat or to designate 

unoccupied areas as critical habitat. 

Response: We acknowledge these 

comments. 

Comment 64: One commenter was 

concerned about possible impacts of the 

proposed critical habitat designation on 

ferry service in the coastal waters and 

islands of Maine, New Hampshire and 

Boston Harbor/Massachusetts Bay that 

are served by existing or likely ferry 

routes. The commenter recommended 

that the Secretary exercise her 

discretion under section 4(b)(2) of the 

Endangered Species Act and exclude 

coastal ferry routes from the critical 

habitat designation. The commenter 

stated that they believe that the 

expansion of critical habitat in the 

coastal waters of Unit 1 will lead to 

proposals to expand or create seasonal 

management areas with mandatory 

speed limits. The commenter expressed 

concern that we did not evaluate the 

potential economic impact of the 

proposed designation on ferry operators, 

the majority of whom are classified as 

small businesses or entities under the 

criteria of the U.S. Small Business 

Administration. The commenter noted 

they recognize that the critical habitat 

designation alone will impose no direct 

or immediate burden or impact on the 

ferry systems. 

Response: We do not believe that the 

normal transit of coastal ferries through 

areas designated as critical habitat will 

have any impact on the essential 

foraging features present in Unit 1 

waters of the Gulf of Maine and Georges 

Bank. We have concluded that transiting 

vessels, whether military, civilian, or 

commercial do not impact the essential 

foraging features of critical habitat. 

Furthermore, we are not aware of a 

federal nexus regarding routine 

operation of the ferries such that this 

activity would be subject to the federal 

consultation requirements of section 7 

of the ESA. Therefore, there will be no 

impact to the operation of ferries as a 

result of the designation of critical 

habitat and as such, no impacts to these 

small business entities. Under the ship 

speed rule (73 FR 6017, December 10, 

2008), vessels greater than 65′ in length 

are required to not exceed 10 knots 

seasonally in certain locations covered 

by seasonal management areas (SMAs) 

or are recommended to maintain speeds 

of 10 knots or less in dynamic 

management areas in certain times and 

locations. These measures are in place 

to reduce the risk of serious injury and 

mortality to right whales due to ship 

strikes. 

Beyond the Scope of This Action 

Comment 65: One commenter stated 

that we failed to mention the potential 

impacts of noise on right whale mothers 

and calves and their need to stay 

together during the calving and nursing 

season. The need for ‘‘noise levels to 

remain below those that would cause 

abandonment of critical habitat’’ has 

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previously been recognized by us in our 

designation of critical habitat for other 

sound dependent marine mammals. 

This commenter cited our designation of 

critical habitat for Cook Inlet Beluga 

Whale. The commenter also stated that 

activities, such as seismic airguns, pile 

driving, underwater detonations, 

military sonar, and vessel traffic, could 

alter the acoustic habitat necessary for 

whale communication and interfere 

with the use of calving habitat; and 

therefore, sound qualifies as an essential 

feature that may require special 

management considerations. 

Response: As stated in the Federal 

Register Notice of Proposed Rulemaking 

for Cook Inlet Beluga Whale Critical 

Habitat (74 FR 63080, December 2, 

2009), beluga whales are known to be 

among the most adept users of sound of 

all marine mammals, using sound rather 

than sight for many important functions, 

especially in the highly turbid waters of 

upper Cook Inlet. Beluga whales use 

sound to communicate, locate prey, and 

navigate, and may make different 

sounds in response to different stimuli. 

Beluga whales produce high frequency 

sounds which they use as a type of 

sonar for finding and pursuing prey. For 

these, and other reasons, we consider 

‘‘quiet’’ areas in which noise levels do 

not interfere with important life history 

functions and behavior of these whales 

to be an essential feature of Cook Inlet 

Beluga Whale critical habitat. 

In contrast, in our final rule to 

designate critical habitat for the 

southern resident killer whale, we 

discussed the lack of sufficient 

information to include noise as an 

essential feature, but noted that we 

would continue to consider sound in 

any future revisions of that critical 

habitat (71 FR 69054, November 29, 

2006). In that rule, we acknowledged 

the many observations about the 

potential for sound to startle or even 

physically injure killer whales. These 

effects, however, are direct effects to the 

animal itself and not to its habitat. 

Physical and biological features that 

are identified as essential to the 

conservation of a species vary among 

species. Similar to southern resident 

killer whales, we lack sufficient 

information to include noise as an 

essential feature for North Atlantic right 

whale calving area critical habitat. 

Unlike the other physical features 

identified as essential to the 

conservation of right whales because 

they facilitate successful calving, we are 

not aware of any information on 

acoustic thresholds that facilitate 

successful calving in right whales or 

other baleen whales. However, the 

agency has conducted and will continue 

to conduct ESA section 7 consultations 

on noise impacts of construction and 

geologic and geophysical exploration 

activities, and in completed 

consultations, measures have been 

included to avoid direct impacts to the 

whales as a consequence of noise 

associated with the proposed activities. 

Comment 66: One commenter 

recommended that the agency expand 

Seasonal Management Areas that reduce 

ship strikes to include all portions of the 

proposed critical habitat in the 

northeast and critical habitat in the midAtlantic migratory corridor out to 30 nm 

as well as areas in the Southeast 

Atlantic. 

Response: The commenters assertion 

that the SMA boundaries be 

reconfigured and extended out to 30 

nautical miles from shore are beyond 

the scope of this rulemaking as the SMA 

rulemaking was concerning risk 

reduction to large whale interactions 

directly with North Atlantic right 

whales not its habitat. The purpose of 

the Seasonal Management Area (SMA) 

program is to promote direct protection 

to North Atlantic right whales by 

reducing the likelihood of death and 

serious injury that may result from 

collisions with ships. The SMA 

boundaries were based on right whale 

sightings not the presence of physical 

and biological features associated with 

right whale migration. The SMA 

program is not intended to provide 

protections to the essential features of 

right whale critical habitat. 

Comment 67: A commenter stated that 

the right whale population data used to 

support the proposed designation is not 

based on the best available science. The 

commenter noted the discrepancy 

between the North Atlantic Right Whale 

Consortium’s 2012 and 2014 Right 

Whale Report Cards, which indicated 

that the population was at least 509 and 

522 whales, respectively; and the 450 

population number referenced by us. 

The commenter stated that we should 

amend our rule to reflect this best 

available science. 

Response: The current abundance of 

North Atlantic right whales is not 

directly relevant to designating critical 

habitat, and we disagree with the 

assertion that we did not rely on the 

best available science when determining 

which areas meet the definition of 

critical habitat under the ESA. 

Furthermore, although not relevant to 

this rulemaking, we offer the following 

explanation of the differing abundance 

estimates cited by the commenter. The 

estimates provided in the North Atlantic 

Right Whale Consortium’s reports state, 

‘‘This ‘best estimate’ is based upon the 

number of photographed whales, but it 

excludes potential unphotographed 

whales, and therefore, should not be 

considered a ‘population estimate.’ ’’ 

Therefore, it is not considered to be an 

appropriate estimate to use for right 

whale abundance. However, the Marine 

Mammal Protection Act requires that we 

use the minimum population estimate 

to ensure a more precautionary, 

conservative approach in the 

management of the marine mammal 

species. The 2014 Final NMFS Marine 

Mammal Stock Assessment Report 

(SARs) indicates 465 individually 

recognized North Atlantic right whales 

were known to be alive in 2011 (Waring 

et al. 2015)—this is a direct count, 

represents a minimum population size, 

is peer-reviewed, published, and is 

considered the best available science. 

We are required to use the minimum 

population developed by the NOAA 

Fisheries Northeast Fisheries Science 

Center for the annual Marine Mammal 

Stock Assessment Reports in our 

management actions. 

Comment 68: One commenter 

expressed concerns about the lack of 

regulation in Canadian waters, noting 

that, right whales traverse international 

borders and yet there has been no effort 

made to establish uniform regulations 

across U.S. and Canadian waters. The 

commenter also appreciated our caution 

in not designating a mating habitat area. 

Response: As stated in the proposed 

rule, we are not authorized to designate 

critical habitat outside of U.S. 

jurisdiction. However, we acknowledge 

the commenter’s view concerning the 

non-designation of a critical habitat 

associated with mating, and we will 

continue to work with our Canadian 

counterparts to coordinate and 

implement measures necessary to 

promote the conservation and recovery 

of protected species including the North 

Atlantic right whale. 

Comment 69: One commenter 

recommended that right whales be 

protected from gear entanglement 

through expanded SMAs and expanding 

entanglement regulations to encourage 

the use of gear innovations such as 

sinking or neutrally buoyant line to 

reduce and prevent entanglement and to 

promote science based catch quotas. 

Response: The commenter’s 

suggestion is beyond the scope of this 

rulemaking (see response to Comment 

58). 

Comment 70: A number of 

commenters expressed concerns about 

seismic exploration for oil and gas in 

proposed critical habitat. Concerns for 

right whales included: Habitat 

displacement, injuries, mortalities, 

behavioral disruption, acoustic masking, 

increase in noise pollution (particularly 

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as climate change impacts increase), and 

impacts to reproduction and survival. 

One commenter suggested that oil and 

gas rigs may act as a type of barrier 

similar to types of barriers we identify 

with regard to other activities. One 

commenter stated that oil and gas 

activities may require management 

considerations similar to the installation 

and operation of offshore energy 

development facilities. Seismic testing, 

drilling, vessel traffic, construction of 

infrastructure, and industrialization of 

the coast may fragment large, 

contiguous areas containing the 

optimum ranges of all essential features 

that are necessary for right whale 

calving and rearing. 

Response: In the Biological Source 

Document and Section 4(b)(2) Report, 

we concluded that future potential oil 

and gas leasing development was one of 

the reasons the essential features may 

require special management 

considerations or protection in Unit 1. 

However, we do not anticipate oil and 

gas rig construction in Unit 2, because 

BOEM presently implements a 50-mile 

no-leasing buffer from the coastline for 

oil and gas leasing off Georgia and 

South and North Carolina. That buffer is 

being proposed for the year 2017 

through 2022. No oil and gas leases off 

Florida are planned through 2022. We 

have clarified that in the final Section 

4(b)(2) Report and Biological Source 

Document. We will work with BOEM to 

determine whether any of the activities 

listed by the commenters and proposed 

or authorized by BOEM may affect right 

whales (or any other listed species 

under our purview) or may affect right 

whale critical habitat, and thus require 

section 7 consultation. 

Comment 71: One commenter 

recommended that right whales be 

protected from proposed oil and gas 

exploration and development in the 

Atlantic Ocean through rules that 

prevent or limit the seismic airgun 

activity. 

Response: See response to comment 

49. Based on our analysis of past and 

potential future activities that may affect 

critical habitat, we identified a number 

of activities with the potential to affect 

the essential features of right whale 

critical habitat. Seismic airguns were 

not identified as having the potential to 

impact right whale critical habitat. The 

effects of any oil and gas exploration 

activities and their potential to impact 

right whales as well as critical habitat 

will be analyzed in section 7 

consultations. 

Information Quality Act and Peer 

Review 

The data and analyses supporting this 

designation 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 Pub. L. 106–554). In December 

2004, the Office of Management and 

Budget (OMB) issued a Final 

Information Quality Bulletin for Peer 

Review pursuant to the IQA. The 

Bulletin established minimum peer 

review standards, a transparent process 

for public disclosure of peer review 

planning, and opportunities for public 

participation with regard to certain 

types of information disseminated by 

the Federal Government. The peer 

review requirements of the OMB 

Bulletin apply to influential or highly 

influential scientific information 

disseminated on or after June 16, 2005. 

To satisfy our requirements under the 

OMB Bulletin, we obtained independent 

peer review of the Biological Source 

Document and Section 4(b)(2) Impacts 

Report that support the designation of 

critical habitat for the North Atlantic 

right whale, and we incorporated the 

peer review comments prior to 

publishing the proposed rule. The final 

peer review report is available along 

with all materials related to the peer 

review on the agency’s Web site at: 

http://www.cio.noaa.gov/services_

programs/prplans/ID259.html. The 

majority of the peer review comments 

were editorial in nature, and no 

substantive comments were received. 

For additional information on the 

specific comments received please see 

the Web site identified above. 

Changes From Proposed Rule 

We are making one change from the 

proposed rule to the areas designated as 

right whale critical habitat. The one 

change is based on public comments 

received and further review of the best 

available scientific data. We are 

extending Unit 2 further to the south to 

include an area that is a portion of the 

critical habitat designated in 1994, 

expanding the area south and increasing 

Unit 2 by approximately 341 nm2. Unit 

2 now includes nearshore and offshore 

waters of the southeastern U.S., 

extending from Cape Fear, North 

Carolina south to approximately 27 nm 

below Cape Canaveral, Florida. 

In addition to this change, we 

corrected an inadvertent omission of 

coordinates by which we have 

determined that following inshore 

waters associated with the harbors of 

Sandwich, Scorton and Barnstable 

should be excluded from the proposed 

critical habitat area of Unit 1. We also 

corrected a few omissions from the 

Section 4(b)(2) report, based on input 

from commenters. 

Critical Habitat Identification and 

Designation 

Critical habitat is defined by section 

3 of the ESA as (1) 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 (a) essential to the 

conservation of the species and (b) 

which may require special management 

considerations or protection; and (2) 

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. 

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 occurred in temperate, subarctic, 

coastal and continental shelf waters 

throughout the North Atlantic Ocean 

rim (Perry et al. 1999). Considerable 

sightings data document the 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 

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4860 Federal Register / Vol. 81, No. 17 / Wednesday, January 27, 2016 / Rules and Regulations 

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 of the 

Species 

Within the geographical area 

occupied, critical habitat consists of 

specific areas on which those physical 

or biological features essential to the 

conservation of the species are found 

(hereafter 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 

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. 

As noted previously, we produced a 

Biological Source Document (NMFS 

2015a) that discusses our application of 

the ESA’s definition of critical habitat 

for right whales in detail. When 

defining critical habitat for right whales, 

we considered the physical and/or 

biological features of foraging and 

calving habitats. 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. 

The physical and biological 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 these features simultaneously cooccur over contiguous areas of at least 

231 nm2 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. 

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. 

Large-scale migratory movements 

between feeding habitat in the northeast 

and calving habitat in the southeast are 

a necessary component in the life 

history of the North Atlantic right 

whale. A proportion of the population 

makes this migration annually, and the 

most valuable life-history stage (calving 

females) must make this migration for 

successful reproduction. The subset of 

the North Atlantic right whale 

population that has been observed 

migrating between the northern feeding 

grounds and southern calving grounds 

is comprised disproportionately of 

reproductively mature females, pregnant 

females, juveniles, and young calves 

(Ward-Geiger et al. 2005; Fujiwara and 

Caswell 2001; Kraus et al. 1986, as cited 

by Firestone et al. 2008). For logistical 

reasons, survey efforts have also been 

disproportionally focused in the 

nearshore area (within 30 nm of shore). 

The Biological Source Document (NMFS 

2015a) contains a thorough discussion 

of the available data we considered in 

our analysis. 

Likewise, 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 known as 

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. 

Specific Areas Within the Geographical 

Area Occupied by the Species 

The definition of critical habitat 

instructs us to identify specific areas on 

which the physical or biological features 

essential to the species’ conservation are 

found. 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. 

BILLING CODE 3510–22–P 

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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 

foraging habitat that are essential to the 

conservation of North Atlantic right 

whales. This 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 the 

physical and biological features 

essential to foraging and thus to the 

conservation of the North Atlantic right 

whale are found includes all waters, 

seaward of the boundary depicted in 

Figure 1 (see below for actual 

coordinates). The boundary of the 

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 

boundary extends northeasterly 


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4862 Federal Register / Vol. 81, No. 17 / Wednesday, January 27, 2016 / Rules and Regulations 

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 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 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 as part of 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 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. 

The second ‘‘specific area’’ we 

identified contains the essential features 

identified for North Atlantic right whale 

calving. The southeast right whale 

calving area consists of all marine 

waters from Cape Fear, North Carolina, 

southward to approximately 27 nm 

below 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, 

Volusia, and Brevard Counties, Florida. 

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BILLING CODE 3510–22–C 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 


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North Atlantic Right Whale Critical Habitat 

Southeastern U.S. Calving Area 

SOUTH CAROLINA 

GEORGIA 

Atlantic Ocean 

FLORIDA 

0 35 70 140 210 280 

-==-~:::~~--11::::=:::::1--•Kilometers 

w w Miles 

0 25 50 100 150 200 

~ Critical Habitat 

Unit2 

34'N 

33'N 

32'N 

31'N 

30'N 

29'N 

28'N 

This map is provided for illustrative purposes only of North Atlantic right whale critical habitat. 

For the precise legal definition of critical habitat, please refer to the narrative description. 

Figure 2. Area designated as North Atlantic right whale southeastern calving critical 

habitat. 
4864 Federal Register / Vol. 81, No. 17 / Wednesday, January 27, 2016 / Rules and Regulations 

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. Our 

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, we 

produced a Biological Source Document 

(NMFS 2015a) that discusses our 

application of the ESA’s definition of 

critical habitat for right whales in detail, 

including evaluation of whether 

essential features ‘‘may require special 

management considerations or 

protections.’’ 

As summarized in the Biological 

Source Document (NMFS 2015a), 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. 

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 2015a). 

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 

infrequent 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 

designated are covered by INRMPs. 

Therefore, there are no military lands 

ineligible for designation as critical 

habitat within 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 ESA Section 4(b)(2) Report (NMFS 

2015b), 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 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 was more appropriate 

to particular impacts. The ESA Section 

4(b)(2) Report (NMFS 2015b) is 

available on our Web site at 

www.greateratlantic.fisheries.noaa.gov. 

The primary impacts of a critical 

habitat designation result from the ESA 

section 7(a)(2) requirement that Federal 

agencies ensure their actions are not 

likely to result in the destruction or 

adverse modification of critical habitat, 

and that they consult with us 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 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 Section 4(b)(2) Report. 

The 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 

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Federal Register / Vol. 81, No. 17 / Wednesday, January 27, 2016 / Rules and Regulations 4865 

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 critical habitat 

designation, such as positive impacts 

that may arise from conservation of the 

species and its habitat, state and local 

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 

are discussed in further detail in the 

Section 4(b)(2) Report (NMFS 2015b) 

and the proposed rule of this action. 

Changes to Economic Impacts as a result 

of the change in area to Unit 2 are 

described below. 

Six 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; 

6. The Bureau of Ocean Energy 

Management’s (BOEM’s) permitting of 

sand extraction on the Outer 

Continental Shelf in Unit 2. 

As discussed in more detail in our 

ESA Section 4(b)(2) Report (NMFS 

2015b), 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 critical 

habitat. 

Additionally, we identified four 

categories of activities that have not 

occurred in the critical habitat 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 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 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 designation. 

As previously mentioned, we 

assumed that all future activities that 

may affect the essential features will 

require formal consultations. Based on 

analyses conducted by Industrial 

Economics, Inc. (Industrial Economics 

2014), 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. Administrative costs for the 

projected number of formal 

consultations representing incremental 

costs of the critical habitat designation 

were estimated in the proposed rule to 

total approximately $82,296 per year. 

Based on the addition of 22 

consultations that may occur as a result 

of the expanded Unit 2 area, the 

incremental administrative costs of the 

critical habitat designation are now 

expected to total approximately $95,504 

per year. As discussed in responses to 

comments, to evaluate and consider the 

economic impacts of including this area 

to Unit 2, we followed the same 

methodology described in the proposed 

rule (80 FR 9314, February 20, 2015) 

and in the Section 4(b)(2) Report (NMFS 

2015b). 

Based on our analysis of past 

consultation history, we project that 

over the next ten years, there will be 22 

consultations, or about 2 consultations 

per year, in this area which may affect 

the features of critical habitat. Eleven of 

these projects are expected to involve 

dredging and/or disposal by the U.S. 

Army Corps of Engineers. Eleven 

projects are expected to involve 

permitting of marine construction or 

artificial reef placement by the U.S. 

Army Corps of Engineers. Thus, adding 

the southern extension is not expected 

to involve additional federal agency nor 

additional federal actions that are 

different from those that will be 

conducted in the rest of Unit 2. As 

discussed in the Section 4(b)(2) Report, 

these activities are only expected to 

involve incremental administrative 

costs of consultation, as a result of this 

designation. Annual administrative 

costs for these projected consultations is 

$10,160 (at $5,080 per consultation—see 

the Economics Impact section in the 

Notice of Proposed Rulemaking and the 

Section 4(b)(2) Report for background 

information on the costs for conducting 

consultations). 

Relative to projected, new activities, 

offshore renewable/alternative energy 

may occur in the southern extension 

area, given its proximity to shore and 

available information about where and 

how these activities might be 

implemented (www.boem.gov/Florida/). 

Because there are no records in our 

consultation history for offshore 

renewable or alternative energy projects 

occurring within Unit 2, we are unable 

to (a) predict how many section 7 

consultations may result from projects 

of this type over the next 10 years or (b) 

calculate the projected incremental 

costs resulting from this action. We are 

not aware of any other future new 

federal activity that may be 

implemented in the southern extension 

area. 

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 features essential 

to the listed species’ conservation. 

Anticipated interference with missionessential 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, 

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2006, at 34583); and Proposed 

Designation of Critical Habitat for 

Southern Resident Killer Whales (69 FR 

75608, December 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 critical habitat designation. 

In September 2009, and again in 

November 2010, we 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 United States Air Force 

(USAF). We discuss the information 

contained within the responses 

thoroughly in the Section 4(b)(2) Report 

(NMFS 2015b). 

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 

designated as right whale critical 

habitat, their activities have no routes of 

potential adverse effects to the essential 

features and will not require 

consultation to prevent adverse effects 

to critical habitat (see Section 4(b)(2) 

Report, NMFS 2015b). Therefore, based 

on information available at this time, we 

do not anticipate there will be national 

security impacts associated with the 

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 Section 4(b)(2) 

Report (NMFS 2015b) discusses 

conservation benefits of designating the 

two specific areas, and the benefits of 

conserving the right whale to society, in 

both ecological and economic metrics. 

As discussed in the Section 4(b)(2) 

Report (NMFS 2015b) 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 can 

neither 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 Section 4(b)(2) 

Report (NMFS 2015b) both consumptive 

(e.g., commercial and recreational 

fishing) and non-consumptive (e.g., 

wildlife viewing) activities that occur in 

the critical habitat area. Commercial and 

recreational fishing are components of 

the economy related to the ecosystem 

services provided by the resources 

within the 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 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 

Exclusions Under Section 4(b)(2) 

On the basis of our impacts analysis, 

we are not excluding any particular 

areas from the critical habitat 

designation. This has not changed since 

the proposed rule. 

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 18) federal section 7 

consultations annually. Furthermore, 

the analysis indicates that there is no 

particular area within the areas 

designated 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 can 

neither 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 critical habitat. 

Final Determinations and Critical 

Habitat Designation 

We conclude that specific areas meet 

the definition of critical habitat, 

comprising approximately 29,763 nm2

of marine habitat within the 

geographical area occupied by North 

Atlantic right whales at the time of its 

listing. The two units designated as 

critical habitat are in the Gulf of Maine 

and Georges Bank region (Unit 1) and in 

waters off the Southeast U.S coast (Unit 

2). 

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 

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 

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and in the Section 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 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 

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 

critical habitat may result in changes to 

some activities. Please see the ESA 

Section 4(b)(2) Report (NMFS 2015b) for 

more details and examples of changes 

that may need to occur in order for 

activities to 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). 

Classification 

Regulatory Planning and Review (E.O. 

12866) 

This rule has been determined to be 

‘‘not 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 a Final Regulatory 

Flexibility Analysis (FRFA) pursuant to 

section 604 of the Regulatory Flexibility 

Act (5 U.S.C. 601, et seq.). The FRFA is 

found in Appendix B of the ESA Section 

4(b)(2) Report and is available upon 

request (see ADDRESSES). A summary of 

the analysis follows. 

This rule is needed in order to comply 

with the ESA’s requirement to designate 

critical habitat to the maximum extent 

prudent and determinable when species 

are listed as threatened or endangered, 

and to respond to a petition to revise 

critical habitat for right whales in the 

North Atlantic. The objectives of this 

action are to help conserve endangered 

North Atlantic right whales by 

identifying critical habitat areas, 

consistent with the best available 

scientific information, that contain the 

physical and biological features 

essential to the conservation of the 

species and which may require special 

management considerations or 

protection. Once designated, this critical 

habitat can be protected through the 

ESA section 7 consultation process in 

which NMFS and federal action 

agencies review the effects of federal 

actions on the survival and recovery of 

North Atlantic right whales. 

Along with the proposed rule, the 

Initial Regulatory Flexibility Analysis 

(IRFA) was published for public 

comment. None of the public comments 

received focused specifically on the 

IRFA, which was presented in the draft 

Section 4(b)(2) Report. However, one 

comment expressed concern that we did 

not evaluate the potential economic 

impact of the proposed designation on 

ferry operators, the majority of whom 

are classified as small business or 

entities according to the commenter. We 

did not identify the coastal ferry 

services as a small business that might 

be impacted by this rule, because we 

concluded that transiting vessels, 

whether military, civilian, or 

commercial do not impact the essential 

foraging features of critical habitat. As a 

result, there will be no impact to the 

operation of ferries as a result of the 

designation of critical habitat and, as 

such, no impacts to small business 

entities. We did not amend the rule or 

our analysis as a result of this comment 

(see response to comment 64). 

Prior to the publication of the 

proposed rule and the Initial Regulatory 

Flexibility Analysis (IRFA), the Chief 

Counsel of the Small Business 

Administration (SBA) provided several 

comments concerning the analysis that 

relate to small entities and the impacts 

to these entities. The SBA stated that the 

Regulatory Flexibility Act requires an 

IRFA to identify the number and type of 

small businesses that may be affected. 

Because the potentially affected 

industries were identified, SBA 

recommended that NMFS research 

whether Census information may be 

available that would aid in identifying 

the number of small businesses as well 

as the impact the estimated costs could 

have on their yearly income and 

revenue. To address this comment, we 

solicited public comments through the 

proposed rule on all aspects of the 

proposed action including impacts to 

small businesses. We also directly 

consulted with the members of the 

Atlantic Large Take Reduction Team 

(ALWTRT), which includes industry 

representatives. However, no new 

information became available to alter 

our analysis, and no additional 

comments were received. In addition, 

the available Census data were not 

informative such that we could further 

refine our analysis of the number and 

type of small entities that may be 

affected by this rule. 

SBA also stated that there did not 

appear to be any basis for concluding in 

our IRFA that 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, 

and therefore it is not unreasonable to 

assume that larger entities would be 

involved in implementing the larger 

projects with proportionally larger 

project modification costs. SBA asked 

us to consider whether the modification 

costs are similar regardless of the size of 

the project, which could lead to 

proportionally larger costs for small 

projects than for larger projects. To 

respond in part to this comment, we 

noted that the particular statement 

referenced in the IRFA did not indicate 

an absolute conclusion, but instead 

indicated we were making what can be 

considered a ‘reasonable assumption.’ A 

more detailed response is presented in 

our FRFA. 

Lastly, SBA asked how the agency 

came to the conclusion that the 

maximum, estimated, annualized, 

administrative cost to third parties of 

$33,696—some portion of which could 

be borne by small entities—won’t have 

a significant effect on small entities if 

we aren’t clear on the relative number 

of small entities that will be affected. To 

help address this question, we clarified 

in the IRFA and the proposed rule that 

this amount represents the cost to 

NMFS, other federal agencies, and third 

parties, combined. The total estimated 

annualized cost to third parties is 

$14,256, and the estimated cost for 

development of Biological Assessments 

(BA), which may be borne at least in 

part by third parties, is $19,440. The 

maximum total the annualized 

administrative cost to third parties is 

thus $33,696, some portion of which 

could be borne by small entities. 

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The critical habitat rule does not 

directly apply to any particular entity, 

small or large. The rule would operate 

in conjunction with ESA section 7(a)(2), 

which requires that federal agencies 

ensure, in consultation with NMFS, that 

any action they authorize, fund, or carry 

out is not likely to jeopardize the 

continued existence of listed species or 

destroy or adversely modify critical 

habitat. Consultations may result in 

economic impacts to federal agencies 

and proponents of proposed actions. 

Those economic impacts may be in the 

form of administrative costs of 

participating in a section 7 consultation 

and, if the consultation results in 

required measures to protect critical 

habitat, project modification costs. As 

discussed in the Section 4(b)(2) Report, 

which serves as the basis for the FRFA 

and this summary, we determined that 

six types of federal actions that have 

occurred in the critical habitat areas in 

the past could result in incremental 

impacts from section 7 consultations 

related to the critical habitat. These 

activities are: Clean Water Act water 

quality/NPDES related actions 

implemented by the EPA; oil spill 

response actions by the USCG; dredging 

and spoil disposal implemented or 

permitted by the USACE; marine 

construction permitting by the USACE, 

including restoration and artificial reef 

placement; offshore energy regulation 

by BOEM; and authorization of sand 

extraction on the Outer Continental 

Shelf by BOEM. We project that 188 

actions in these categories will be 

implemented over the next 10 years. 

However, we also determined that these 

activities would not require 

consultation solely due to impacts to 

critical habitat. Instead, these activities 

would require consultation due to 

impacts to the whale themselves, even 

in the absence of designated critical 

habitat. Additionally, we identified four 

categories of activities that have not 

occurred in the critical habitat 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 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. However, we could 

not project the number of actions in 

these categories that would occur in the 

future, due to the lack of a consultation 

history or concrete plans by action 

agencies to implement these activities. 

Three categories of future activities were 

judged as being likely to have 

incremental impacts due to critical 

habitat impacts that would require 

project modifications to avoid these 

impacts, above and beyond any 

modifications required to address 

impacts to the whales: 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 designation. 

We applied the conservative 

assumption that all future activities that 

may affect the essential features will 

require formal consultations. Based on 

analyses conducted by Industrial 

Economics, Inc. (Industrial Economics 

2014), 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. Administrative costs for the 

projected number of formal 

consultations representing incremental 

costs of the critical habitat designation 

were estimated in the proposed rule to 

total approximately $82,296 per year. 

Based on the addition of 22 

consultations that may occur as a result 

of the expanded Unit 2 area, the 

incremental administrative costs of the 

critical habitat designation are now 

expected to total approximately $95,504 

per year. The rule, implemented 

through ESA section 7(a)(2) 

consultations, may indirectly affect 

small businesses, small nonprofit 

organizations, and small governmental 

jurisdictions that engage in the 10 

categories of activities listed above, 

through accrual of administrative costs 

($880 per action). Small entities that 

engage in water quality/NPDES related 

actions, oil spill response activities, oil 

and gas exploration and development 

activities, directed copepod fisheries, 

offshore alternative energy development 

activities, and marine aquaculture 

activities authorized or funded by a 

federal agency that may affect the 

essential features could also incur costs 

in the way of project modifications 

necessary to avoid destroying or 

adversely modifying critical habitat. As 

we discuss in the Section 4(b)(2) report 

(NMFS 2015b), it is not possible for us 

to estimate what these costs might be, 

individually or collectively. The rule 

may also indirectly benefit small 

entities that benefit from or strive for the 

protection of the essential features, such 

as fishing operations and whale watch 

companies. 

We do know from the consultation 

record that applicants for federal 

permits or funds have included small 

entities. However, our consultation 

tracking database does not track the 

identity of past permit recipients or 

whether the recipients were small 

entities; therefore, it does not provide a 

basis to estimate the number of small 

businesses that may be indirectly 

affected by this rule. It is also difficult 

to estimate the number of small entities 

that may be affected indirectly by this 

rule due to a lack of specific information 

regarding the nature, scope, and timing 

of future projects that would undergo 

section 7 consultations. 

Within Unit 1, the Gulf of MaineGeorges Bank Region, virtually all 

current fishing operations in the eastern 

U.S. are small businesses. We have 

determined that there were 483 dealers 

and 8,094 fishing vessels in 2014 that 

meet the definition of small business 

entities. These numbers provide an 

estimate of the total number of vessels 

and fish dealers engaged in the harvest 

of seafood within Unit 1 that may 

benefit from this rule. 

With regard to a potential copepod 

fishery, this rule could affect small 

businesses if fishermen choose to 

prosecute a copepod fishery in the 

future as virtually all fishing interests in 

Unit 1 are considered small businesses 

under the SBA small business entity 

size standards. Currently, there are no 

proposals to conduct a copepod fishery 

within Unit 1; nor have there been any 

in the past. Therefore, we have no basis 

to estimate the number of vessels that 

would be classified as small business 

entities in a copepod fishery. 

Other small business entities include 

the approximately 55–70 whalewatching companies that operate within 

Unit 1. Neither current fishing 

operations nor whale watching 

companies would 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 1, another potentially 

impacted group of small entities is small 

municipalities. A review of the 

consultation history indicates that we 

have consulted with the EPA on small 

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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 21 consultations 

over the next 10 years involving 

primarily small municipalities and 

NPDES/Water Quality activities. Of the 

states bordering 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 equal to or less than the 21 

predicted to be involved in 

consultations from all states bordering 

Unit 1, over the next 10 years. 

We have determined that this rule 

will not likely have an impact on small 

business entities engaged in oil and gas 

exploration and development or have a 

disproportionate impact on them 

compared to large entities. Currently no 

specific or planned oil and gas 

exploration and development activities 

for this activity in Unit 1 as it is under 

an oil and gas exploration and 

development moratorium. Furthermore, 

business entities involved in offshore oil 

and gas exploration are generally large 

scale business entities as the 

technological capabilities to engage in 

offshore oil and gas development 

require large amounts of capital for 

these types of endeavors. 

We have also determined this rule 

will not have any impact on small 

business entities engaged in oil spill 

response activities related to the at-sea 

use of oil dispersants. The SBA small 

business entity size standards for 

environmental remediation services 

establish an employee threshold of 500 

individuals or less as a small business 

entity. Entities that are involved in 

offshore emergency oil spill response 

are generally either governmental 

agencies and/or large scale business 

entities. For example, the USCG is 

responsible for implementing the Oil 

Pollution Act including emergency oil 

spill responses responding to oil spills. 

The type of platform assets (e.g., aerial, 

vessel) and technological capabilities 

necessary to respond to an oil spill in 

the marine involvement, specifically the 

application of oil dispersants, require 

large amounts of capital for these types 

of endeavors. 

In Unit 2, the Southeastern calving 

habitat, the only category of activity that 

might potentially impact small entities 

through requirements and costs of 

project modifications necessary to avoid 

destroying or adversely modifying 

critical habitat is offshore energy 

development (e.g., wind energy farms). 

Because there is no past consultation 

history or any specific or planned 

federal proposals for wind energy 

facilities in Unit 2, we are unable to 

estimate the number of potential 

projects in this category that may 

require consultation due to critical 

habitat impacts over the next 10 years. 

Therefore, we have no basis to estimate 

the number of small entities that might 

be involved. 

It is unclear whether small entities 

would be placed at a competitive 

disadvantage compared to large entities 

as a result of this rule. Because the costs 

of many potential project modifications 

that may be required to avoid adverse 

effects to the essential features 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. In addition, 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. 

Finally, many of the modifications 

identified to reduce the impact of a 

project on critical habitat may be a 

baseline requirement either due to the 

ESA listing of the species or under 

another regulatory authority, notably the 

Clean Water Act. 

There are no record-keeping or 

reporting requirements associated with 

the rule. Similarly, there are no other 

compliance requirements in the rule. 

There are no professional skills 

necessary for preparation of any report 

or record. 

We considered the effect to small 

businesses throughout our analysis and, 

as stated above, there will be no 

significant economic impact to small 

businesses. We have thus not made any 

changes from the proposed rule that 

would minimize significant economic 

impacts on small entities. We expect 

many small entities to benefit from this 

rule. We also estimate the average per 

consultation administrative costs for 

third parties, some of which may be 

small entities, is approximately $880. It 

is unlikely that the rule will 

significantly reduce profits or revenue 

for small businesses. Although 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. 

In the IRFA, we considered the 

alternative of not proposing new critical 

habitat for the North Atlantic right 

whale. We rejected this alternative 

because we determined designating 

critical habitat for the North Atlantic 

right whale listed in 2008 was prudent 

and determinable, and the ESA requires 

critical habitat designation at the time of 

listing in that circumstance. Also, new 

scientific information has become 

available since the 1994 designation that 

supports expansion of the foraging and 

calving habitat areas. 

In the IRFA, we also analyzed the 

proposed rule’s preferred alternative. 

This alternative, would have expanded 

calving habitat to the north and east 

compared to the 1994 designation, but 

it would not have included a portion of 

the 1994 designation that extends 

approximately 27 nm south of Cape 

Canaveral, FL. However, in response to 

public comments on our proposal, we 

reviewed the best available scientific 

information again. We rejected what we 

had called the preferred alternative in 

the proposed rule, because we believe 

the available data show consistent and 

predictable presence of right whale 

mother-calf pairs in this southern area, 

during the months the habitat models 

predict presence of all the essential 

features. The features here may require 

special management considerations or 

protections for the same reasons as the 

rest of Unit 2—because of possible 

negative impacts from activities and 

events of 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 

2015). For these reasons, we agreed with 

the commenters that the southern 

boundary of the calving area critical 

habitat should be moved southward 

from where we proposed. We updated 

the economic impact analysis in the 

Section 4(b)(2) Report and FRFA to 

reflect this change. 

Finally, in the IRFA we also 

considered an alternative in which the 

boundaries of both Unit 1 and Unit 2 

would be expanded compared to the 

proposed rule’s preferred alternative. 

Specifically, under the expanded 

alternative, Unit 1 would encompass 

additional right whale sightings within 

the Gulf of Maine-Georges Bank region 

(particularly inshore waters along the 

coasts of Maine, New Hampshire and 

Massachusetts) and it would be 

expanded south and east of the southern 

boundary of proposed Unit 1 (south and 

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4870 Federal Register / Vol. 81, No. 17 / Wednesday, January 27, 2016 / Rules and Regulations 

east of Cape Cod). The expanded 

alternative would also have extended 

Unit 2 boundaries south of Cape 

Canaveral, Florida, similar to the 1994 

calving critical habitat. As discussed 

above, in response to public comments, 

we chose in the final rule to extend Unit 

2 boundaries south of Cape Canaveral, 

Florida, as considered in this 

alternative. However, for Unit 1, we 

rejected this alternative to expand Unit 

1 boundaries closer inshore in the Gulf 

of Maine-Georges Bank region and south 

and east of Cape Cod. We rejected the 

expansion of Unit 1 boundaries because, 

based on the best available scientific 

information, we determined that the 

essential features of foraging habitat 

were not present in those areas. As 

discussed in our FRFA, we considered 

the nature and number of additional 

consultations that may be required to 

address impacts to critical habitat given 

the extended calving area. The addition 

of this area did not change our 

assessment of impacts to small entities. 

Coastal Zone Management Act 

We have determined that this action 

will have no reasonably foreseeable 

effects on the coastal uses and resources 

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 the 

proposed rule, these determinations 

were submitted for review by the 

responsible state agencies under section 

307 of the Coastal Zone Management 

Act. No comments were received on this 

Coastal Zone Management Act 

determination. 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3501 et seq.) 

This 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 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 requested information from, and 

coordinated this 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. 

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. 

We have considered the potential 

impacts of this action on the supply, 

distribution, or use of energy. The 

critical habitat designation will not 

affect the distribution or use of energy 

and would not affect supply. This rule 

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 is discussed in the 

proposed rule (80 FR 9314) and Section 

4(b)(2) Report (NMFS 2015b). 

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 that 

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 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. 

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Federal Register / Vol. 81, No. 17 / Wednesday, January 27, 2016 / Rules and Regulations 4871 

Dated: January 21, 2016. 

Eileen Sobeck, 

Assistant Administrator for Fisheries, 

National Marine Fisheries Service. 

For the reasons set out in the 

preamble, we 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: 

§ 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: 

Latitude Longitude 

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. 

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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. 

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°45.87′ N. ............................................................. 70°28.62′ W. ............................................................ TO Sandwich Harbor. 

41°45.75′ N. ............................................................. 70°28.40′ W. ............................................................ ........ Sandwich Harbor. 

41°44.93′ N. ............................................................. 70°25.74′ W. ............................................................ TO Scorton Harbor. 

41°44.90′ N. ............................................................. 70°25.60′ W. ............................................................ ........ Scorton Harbor. 

41°44.00′ N. ............................................................. 70°17.50′ W. ............................................................ TO Barnstable Harbor. 

41°44.00′ N. ............................................................. 70°13.90′ W. ............................................................ ........ Barnstable 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) 

described below. 

(A) Portland Head, ME to Cape Ann, 

MA. 

(1) A line drawn from the 

northernmost extremity of Farm Point to 

Annisquam Harbor Light. 

(2) [Reserved] 

(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. 

(2) [Reserved] 

(2) Unit 2. Unit 2 includes marine 

waters from Cape Fear, North Carolina, 

southward to 28° N . latitude 

(approximately 31 miles south 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. 

Latitude Longitude 

33°51′ N. ................... at shoreline. 

33°42′ N. ................... 77°43′ W. 

33°37′ N. ................... 77°47′ W. 

33°28′ N. ................... 78°33′ W. 

32°59′ N. ................... 78°50′ W. 

Latitude Longitude 

32°17′ N. ................... 79°53′ W. 

31°31′ N. ................... 80°33′ W. 

30°43′ N. ................... 80°49′ W. 

30°30′ N. ................... 81°01′ W. 

29°45′ N. ................... 81°01′ W. 

29°15′ N. ................... 80°55′ W. 

29°08′ N. ................... 80°51′ W. 

28°50′ N. ................... 80°39′ W. 

28°38′ N. ................... 80°30′ W. 

28°28′ N. ................... 80°26′ W. 

28°24′ N. ................... 80°27′ W. 

28°21′ N. ................... 80°31′ W. 

28°16′ N. ................... 80°31′ W. 

28°11′ N. ................... 80°33′ W. 

28°00′ ........................ 80°29′ W. 

28°00′ N. ................... At shoreline. 

(c) Overview maps of the designated 

critical habitat for the North Atlantic 

right whale follow. 

BILLING CODE 3510–22–P 

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North Atlantic Right Whale Critical Habitat 

Northeastern U.S. Foraging Area 

70"W 

~ Critical Habitat 

.,,..,~--··· 200m Depth Contour 

ME 

.Augusta 

sg•w 

This map is provided for illustrative purposes only of 

North Atlantic right whale critical habitat. For the precise legal 

definition of critical habitat, please refer to the narrative description. 

68"W ......... 

I 

Unit 1 

43•N 

' ' 

41•N 

............ 

~· 

.. tr-v:/ 

\ 

I 

~ --as~ 
4874 Federal Register / Vol. 81, No. 17 / Wednesday, January 27, 2016 / Rules and Regulations 

[FR Doc. 2016–01633 Filed 1–26–16; 8:45 am] 

BILLING CODE 3510–22–C 


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North Atlantic Right Whale Critical Habitat 

Southeastern U.S. Calving Area 

SOUTH CAROLINA 

GEORGIA 

Atlantic Ocean 

FLORIDA 

0 35 70 140 210 280 

..::::..1::11--11:::=:::::1--•Kilometers 

-=--=---t:::==---Miles 

0 25 50 100 150 200 

~ Critical Habitat 

Unit2 

34•N 

33•N 

32•N 

31•N 

30•N 

29•N 

28•N 

This map is provided for illustrative purposes only of North Atlantic right whale critical habitat. 

For the precise legal definition of critical habitat, please refer to the narrative description.