Endangered and threatened species: Right whale ship strike reduction,

[Federal Register: June 1, 2004 (Volume 69, Number 105)]

[Proposed Rules]

[Page 30857-30864]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr01jn04-26]

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 224

[040506143-4143-01; I.D. 052504C]

RIN 0648-AS36

Endangered Fish and Wildlife; Advance Notice of Proposed Rulemaking (ANPR) for Right Whale Ship Strike Reduction

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

ACTION: Advance notice of proposed rulemaking (ANPR); request for comments.

SUMMARY: NMFS is considering regulations to implement a strategy to reduce mortalities to North Atlantic right whales as a result of vessel collisions. The strategy addresses the lack of recovery of the endangered North Atlantic right whale by reducing the likelihood and threat of ship strike mortalities to the species. NMFS is soliciting comments on the strategy through this advance notice of proposed rulemaking.

DATES: Written and electronic comments must be received (see ADDRESSES) no later than 5 p.m. Eastern Standard Time on August 2, 2004.

ADDRESSES: Comments should be sent to: Chief, Marine Mammal Conservation

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Division, Attn: Right Whale Ship Strike Strategy, Office of Protected Resources, NMFS, 1315 East-West Highway, Silver Spring, MD 20910. Comments may be sent via fax to (301)427-2522, Attn: Right Whale Ship Strike Strategy. Comments may also be sent via email to shipstrike.comments@noaa.gov or to the Federal eRulemaking portal:

http://www.regulations.gov (follow instructions for submitting

comments).

FOR FURTHER INFORMATION CONTACT: Aleria Jensen, Fishery Biologist, Office of Protected Resources, NMFS, at (301) 713-2322 x169; Pat Gerrior, Fishery Biologist, Northeast Regional Office, NMFS, at (508) 495-2264; or Barb Zoodsma, Fishery Biologist, Southeast Regional Office, NMFS, at (904) 321-2806.

SUPPLEMENTARY INFORMATION:

Background

NMFS has been working with state and other Federal agencies, concerned citizens and citizen groups, environmental organizations, and the shipping industry to address the ongoing threat of ship strikes to North Atlantic right whales as part of its responsibilities related to right whale recovery. The North Atlantic right whale was severely depleted by commercial whaling and, despite protection from commercial harvest, has not recovered. The current population is believed to number about 300 animals and is considered one of the most critically endangered large whales in the world. Recent modeling exercises suggest that if current trends continue, the population could go extinct in less than 200 years (Caswell et. al., 1999). These models indicate that the loss of even a single individual may contribute to the extinction of the species; likewise, according to the models, preventing the mortality of one adult female a year alters the projected outcome.

Mortality due to entanglements in fishing gear and collisions with ships are the two significant human-caused threats to right whales (Knowlton and Kraus, 2001; Jensen and Silber, 2003). Collisions with ships account for more confirmed right whale mortalities than any other human-related activity. Ship strikes are responsible for over 50 percent of known human-related right whale mortalities and are believed to be one of the principal causes for the lack of recovery in this population. Right whales are located in, or are adjacent to, several major shipping corridors on the eastern U.S. and southeastern Canadian coasts.

NMFS has established a right whale ship strike reduction program. Conservation activities in this program include the use of aerial surveys to notify mariners of right whale sighting locations; the operation of Mandatory Ship Reporting systems to provide information to mariners entering right whale habitat; interagency collaboration with the U.S. Coast Guard (USCG), which issues periodic notices to mariners regarding ship strikes; the support of regional Recovery Plan Implementation Teams that provide recommendations to NFMS on recovery activities; the support of shipping industry liaisons; and consultations under section 7 of the Endangered Species Act (ESA).

Strategy To Reduce Ship Strikes of Right Whales (Strategy)

Despite these efforts, right whales continue to be killed as a result of collisions with vessels. NMFS has recognized that this complex problem requires additional, more pro-active measures to reduce or eliminate the threat of ship strikes to right whales. Therefore, NMFS contracted a report on recommended ship strike reduction management measures, and used this 2001 report as a baseline to develop a proposed Strategy to Reduce Ship Strikes of Right Whales (Strategy). Measures contained within the Strategy attempt to reduce the overlap between ships and whales in order to reduce the likelihood of ship strikes to the extent practicable, while minimizing the adverse impact on ship operations. The Strategy allows for regional implementation and accommodates differences in oceanography, commercial ship traffic patterns, navigational concerns, and right whale use. Implementation of the Strategy requires research, proposed and final rulemaking and international actions to be taken.

The draft Strategy consists of the following five elements: (1) The establishment of new operational measures for the shipping industry, including consideration of routing and speed restrictions; (2) the negotiation of a Right Whale Conservation Agreement with the Government of Canada; (3) the development and implementation of education and outreach programs; (4) a review of the need for ESA section 7 consultations with all Federal agencies who operate or authorize the use of vessels in waters inhabited by right whales, or whose actions directly or indirectly affect vessel traffic; and (5) the continuation of ongoing research, conservation, and education/outreach activities. Neither the draft Strategy nor any other conservation measures identified through public comment are intended to replace any conservation and management measures currently in place. NMFS has developed a framework of proposed operational measures for the shipping industry as an element of this Strategy, based on the proposed suite of operational measures in the contracted 2001 report.

Based on information summarized above regarding mortalities attributable to ship strikes and the population size of North Atlantic right whales, NMFS proposes to implement these measures through its broad rulemaking authority pursuant to the MMPA and ESA. Under MMPA section 112(a) (16 U.S.C. 1382(a)), NMFS has authority, in consultation with other Federal agencies to the extent other agencies may be affected, to ``prescribe such regulations as are necessary and appropriate to carry out the purposes of [the MMPA].'' In addition, NMFS proposes to implement these measures as appropriate to promote conservation, implement recovery measures, and enhance enforcement under the ESA. However, NMFS has not made any final decision on these measures or alternatives and is seeking comments through this ANPR on these proposed measures as well as any alternatives.

Regional Implementation of the Proposed Strategy

NMFS is proposing to implement the operational measures in the Strategy within each of three broad regions: (a) The southeastern Atlantic coast of the U.S., (b) the Mid-Atlantic region, and (c) the northeastern U.S. The implementation of operational measures, and the specific times and areas (with boundaries) in which the measures would be in effect may vary within each region but all would contain specific elements to reduce the threat of ship strikes to right whales. The operational measures proposed in the Strategy would generally apply to non-sovereign vessels 65 ft (19.8 m) and greater based on information regarding confirmed ship strikes and known vessel size.

Southeastern United States (SEUS): The proposed measures in the SEUS focus on the area where and time when the vast majority of right whales have occurred. This area correlates to where survey effort has been concentrated, in recent years.

Area: The area influenced by the proposed rulemaking is bounded to the north by the latitudinal line 31[deg] 27'N (coincides with the northernmost boundary of the mandatory ship reporting system) and to the south by

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latitudinal line 29[deg] 45'N. The eastern offshore boundary is formed by a longitudinal line at 81[deg] 00'W. and the western boundary is formed by the shoreline. (See Figure 1).

Time: December 1st through March 31st

Proposed Regulatory Measures: First, if warranted and so indicated by the analysis in the Port Access Route Study called for under Non- regulatory Measures, designated routes would be established with the greatest possibility of reducing the risk of collisions between vessels and whales.

Second, seasonal speed restrictions would be implemented in those lanes during the time period indicated above, unless it is determined that there are no whales present in the area (the criteria for determining `no whales present' have yet to be developed). Uniform speed restrictions will be determined through public comment and further analyses; however, proposed speed restrictions would likely be in the range of 10-14 knots. The proposed speed measure is expected to protect right whales by potentially allowing the animals time to avoid an oncoming ship. Reduced speeds may also lessen the hydrodynamic forces that cause a whale to be pushed away but then driven back toward a moving ship or propeller. Depending on the circumstances, routing measures alone may not provide sufficient risk reduction; therefore, a proposed speed measure would provide an additional degree of risk reduction.

Third, NMFS would develop an understanding with operators of vessels (e.g., large recreational vessels, tugs and barges, etc.) which primarily transit along the coast locally and between ports. The understanding would be that vessels use the designated traffic lanes or avoid transiting the area to the maximum extent practicable and, for those that do not use the lanes or avoid the area, impose a uniform speed restriction.

Non-regulatory measures: First, NMFS would work in partnership with the United States Coast Guard (USCG) to conduct a Port Access Route Study (PARS) for the Ports of Jacksonville, Fernandina, and Brunswick. A PARS is a USCG process whereby a study is performed to determine safe access routes for vessels proceeding to and from U.S. ports, and it would ensure that a full hearing takes place for any routing measure considered and would allow for the integration of views relating to maritime safety, and right whale protection from all entities. The intent of the PARS would be to reduce the confluence of right whales and ships in this area and allow measures to consider navigational safety while taking into account the necessity of protecting right whales.

Mid-Atlantic Region of the United States (MAUS): The MAUS is a principal migratory corridor for right whales that travel between the calving/nursery areas in the SEUS, and feeding grounds in the northeast U.S. and Canada. Two right whale calves were found dead in the mid- Atlantic region in 2001 and there is a high probability that these deaths were caused by ship strikes. A dead mature female right whale was observed floating off Virginia (subsequently stranded on the coast of North Carolina in 2004) and, although final histopathology results are still pending, preliminary analysis indicated the whale likely died as a result of a vessel collision.

Ship traffic entering ports in this area, or transiting through it, continually crosses the whales' north-south migratory corridor. Satellite tagging data, opportunistic sighting data, and historical records of right whale takes, indicate that right whales often occur within 30 nautical miles (48 kilometers) of the coast and in waters less than 25 fathoms. The following proposed measures reflect this information.

Area and Time: The locations and time periods included for the mid- Atlantic measures are closely tied to sighting data as well as available information on vessel traffic in and out of the following ports (See Figure 2). Times for the seasonal management areas are being proposed as ``rolling'' in order to best account for the whales' migratory presence around particular ports while minimizing unnecessary impact to industry. The precise start and stop dates for this region will be further refined based on comments on this ANPR, and during a series of public meetings. However, the area for proposed operational measures and rolling dates are based on the historical data regarding the occurrence of right whales in this region (possible distances from shore are in brackets) and may include the following:

(a) South and east of Block Island Sound (approximate reference points: Montauk Point and the western end of Martha's Vineyard), (20- 30nm): March-April; September-October.

(b) Ports of New York/New Jersey (30nm): February-April; September- October.

(c) Delaware Bay (Ports of Philadelphia and Baltimore)(20-30nm): February-April; October-December.

(d) Entrance to the Chesapeake Bay (Ports of Hampton Roads and Baltimore)(30nm): February-April; November-December.

(e) Ports of Morehead City and Beaufort, NC (20-25nm): December- April.

(f) Port of Wilmington, NC (20nm): December-April.

(g) Port of Georgetown, SC (20-30nm): October-April.

(h) Port of Charleston (20-25nm): October-April.

(i) Port of Savannah (25nm): November-April.

Proposed Regulatory Measures: NMFS, in conjunction with appropriate agencies and through public comment and further analyses, would establish uniform speed restrictions within 20-30 miles in the approaches of the above-named ports and areas. Based on information from confirmed ship strikes and known speeds of ships involved in the strikes, proposed speed restrictions may be in the range of 10-14 knots.

Northeastern United States (NEUS): Right whales occupy and forage in four distinct areas in the NEUS: Cape Cod Bay; the area off Race Point at the northern end of Cape Cod (Race Point); the Great South Channel; and the northern Gulf of Maine. Ship strike reduction measures are concentrated in these areas.

Cape Cod Bay: Right whales frequent Cape Cod Bay in winter and spring to feed. The following reflects the peak period(s) when right whales are present in this area. The area encompasses the complete Bay and it includes all routes traveled by tug, tow and ship traffic (for descriptions of PARS and speed restriction considerations, see SEUS section above.)

Area: The entire Cape Cod Bay including the Cape Cod Bay critical habitat and the area south of a straight line formed from the northeast corner of critical habitat, through the northwest corner of the critical habitat, and continuing to the shoreline (See Figure 3).

Time: January 1st - April 30th

Proposed Regulatory Measures: First, if warranted and indicated by a PARS, routing measures with the greatest possibility of reducing the risk of collisions between vessels and whales would be established in Cape Cod Bay. Elements to be considered in this PARS are as follows: (1) all efforts would be made to reduce the confluence between right whales and ships in the Bay; (2) routing measures would be considered in right whale critical habitat, as well as the western side of the Bay and areas outside critical habitat from Cape Cod Canal, (3) designated lanes may be established to minimize the travel distance for those ships entering and

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leaving the Port of Provincetown from Cape Cod Canal or from the north, and (4) such designated lanes would need to be broad enough to allow ships to route around any whales found in the lanes.

Second, NMFS, with appropriate agencies, would establish speed restrictions (determined through public comment and further analyses) within designated ship traffic lanes into Provincetown, Massachusetts (if indicated through a PARS) to reduce the risk of collisions between vessels and whales. Such restrictions would be lifted in those rare years when it is determined that there are no whales present in the area (the criteria for determining `no whales present' have yet to be developed).

Non-regulatory Measures: First, NMFS would work in partnership with the USCG to conduct a PARS for Cape Cod Bay.

Second, NMFS would also work with the U.S. Army Corps of Engineers to provide notices to mariners when they enter Cape Cod Bay from either the south (through Cape Cod Canal) or from the north, and to traffic southbound out of the canal when whales are sighted south of the NEUS area, e.g., off Block Island and Long Island. This would include notices to tug and barge traffic, which comprises the majority of traffic using the Cape Cod Canal.

Duties of the Traffic Controllers would include alerting ships' masters of right whale locations as provided by NMFS when right whales are spotted in areas where Canal traffic may transit. Such alerts to include right whale sightings in Cape Cod Bay and the Stellwagen Bank National Marine Sanctuary should be given to all east bound Canal traffic. Such alerts to include right whale sightings in Rhode Island and Block Island Sounds and off Long Island should be given to west bound Canal traffic. West bound traffic reporting into the Traffic Controllers at the east approach channel (CC Buoy) should also be given alerts for right whale sightings in the southwest quadrant of Cape Cod Bay. In addition, Traffic Controllers would provide alerts to all vessels of 65 ft (19.8 m) and greater, and provide reasonable protection for right whales and separation of vessel traffic from right whales within the Canal and within the east or west approach channels.

Off Race Point: Food resources in Cape Cod Bay are significantly reduced in availability by the end of April, causing right whales to leave the area in search of resources elsewhere. At this time, many of these animals travel to the Great South Channel, where they are found in large aggregations during spring and early summer. To reach the Great South Channel, right whales commonly transit or reside in other nearby areas prior to aggregating in the Great South Channel. These include Stellwagen Bank, areas to the east of Stellwagen Bank, and also the northern end of the Provincetown Slope (the area on the ocean side of Cape Cod which runs down to the Great South Channel). The Boston shipping lanes concentrate ship traffic through this region. Therefore, right whales are potentially vulnerable to ship strikes in this area. As a result, limits on speed in this area would provide a means of reducing collision risk by allowing whales more time to react to oncoming ships. The time and duration of these proposed measures, and their geographic extent, have been tightly defined to take into account the biological data and to minimize potential burden to industry. The time period proposed reflects when whales have historically migrated from Cape Cod Bay through this area.

Area: The area proposed has been developed based on right whale sighting data and vessel traffic patterns. This area is a box described (See Figure 3) by latitudes and longitudes (degrees and minutes format) as follows:

42[deg] 30' N. 70[deg] 30' W.

42[deg] 30' N. 69[deg] 54' W.

42[deg] 00' N. 69[deg] 54' W.

42[deg] 00' N. 70[deg] 01.8' W.

follow Massachusetts Coast to

42[deg] 04.8' N. 70[deg] 10.2' W.

42[deg] 12' N. 70[deg] 15' W.

42[deg] 12' N. 70[deg] 30' W.

Time: April 1st - May 15th

Proposed Regulatory Measures: The proposed rule would establish a uniform speed restriction in the described zone, or as an alternative, mariners may route around this area.

Great South Channel: The Great South Channel is one of the most important habitats for right whales within the species' range. Right whales aggregate there during spring and early summer to feed on dense patches of prey. In some years more than one third of the remaining population of North Atlantic right whales can be found in this area at any one time, and it is likely that more than half the population feeds in or at least passes through this area during the course of the year. Some individually identified right whales observed in the Great South Channel are seen rarely or not at all in other areas such as the Bay of Fundy, emphasizing the importance of this area to the population. For much of the time in the Great South Channel, the distribution and movements of the whales coincide with those of commercial ship traffic in the region, leading to a serious risk of collision. The proposed measure seeks to reduce the confluence of ships and whales by minimizing the area and time in which whales would be exposed to ship traffic.

Area: The area proposed reflects historical sighting data and recent survey data. This area is delineated by latitudes and longitudes (degrees and minutes format) as follows (See Figure 3):

41[deg] 00' N. 69[deg] 03' W.(southern corner)

42[deg] 08.4' N. 67[deg] 08.4' W. (southern intersection with Hague Line)

42[deg] 30' N. 67[deg] 27' W. (Northern intersection with Hague Line)

42[deg] 30' N. 69[deg] 00' W.

42[deg] 00' N. 69[deg] 00' W.

42[deg] 00' N. 69[deg] 43.8' W. (return to first point)

Time: April 1st - July 31st. The time period for the proposed measure reflects the peak period when whales are present.

Proposed Regulatory Measures: This area would be subject to several measures. First, an Area to be Avoided (ATBA) would be proposed to the International Maritime Organization (IMO) for adoption adjacent to, and east of, the Boston traffic separation scheme (TSS). This ATBA would be applicable to ships 300 gross tons and above. This measure would require the U.S. to propose an ATBA to, and receive endorsement by, the IMO. Second, all vessels under 300 gross tons and greater than or equal to 65 ft (19.8 m) (including fishing vessels) would be subject to uniform speed restrictions within the ATBA and the critical habitat which lies to the southwest of the TSS.

Gulf of Maine

Area: The Gulf of Maine is considered all waters under U.S. jurisdiction to the north of the other management areas for Cape Cod Bay, Off Race Point, and the Great South Channel.

Time: Year-round

Proposed Regulatory Measures: All areas in the Gulf of Maine would be subject to dynamic area management (until such time that ongoing broad scale aerial surveys in the Northeast provide additional right whale distributional data to inform seasonal management or other measures). This would require that a mechanism be implemented whereby a precautionary area may be established around the whales, and ships would be directed either to divert around the whales or reduce their speed and proceed through a designated area with caution (keeping in mind navigation safety considerations). If certain concentrations (yet to be completely

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specified) of right whales are sighted, then these precautionary area measures would be required for a limited period.

All Areas

Proposed Additional Regulatory Measures: All areas along the Atlantic seaboard within the U.S. Exclusive Economic Zone would be subject to dynamic area management if certain concentrations (yet to be completely specified) of right whales were sighted outside of the time for, or beyond the area of, the operation of the above-described regional measures. As in the Gulf of Maine measure, this would require that a mechanism be developed whereby a precautionary area would be established for a limited period around a certain concentration of right whales, and ships would be directed either to divert around these right whales or reduce their speed and proceed through a designated area with caution (keeping in mind navigation safety considerations).

Request for Comments

NMFS is requesting comments on the proposed measures in the Strategy and information discussed in this ANPR. In particular, NMFS is soliciting information from the public on the effectiveness of the proposed regulatory measures, or other options that need to be considered in a proposed Federal rulemaking.

Public Involvement

NMFS invites the public to submit data, new information, and comments identifying relevant environmental and socioeconomic issues pertinent to the Strategy and proposed regulatory measures contained therein. In addition, NMFS expects to conduct public scoping meetings during or following the comment period on the ANPR, and will continue to work with other agencies, the shipping industry, researchers, environmental groups, and the public throughout this process. The public, as well as Federal, state, and local agencies are encouraged to participate in the meetings.

NMFS intends to convene these scoping meetings at several locations along the U.S. Atlantic coast in each of the three major regions proposed for operational measures: the northeastern U.S.; the mid- Atlantic U.S.; and the southeastern United States. The dates and locations of these meetings will be announced in a future Federal Register Notice.

References

Caswell, H., M. Fujiwara, and S. Brault. 1999. Declining survival probability threatens the North Atlantic right whale. Proc. Nat. Acad. Sci. 96:3308-3313.

Hamilton, P.K., and C.A Mayo. 1990. Population characteristics of right whales (Eubalaena glacialis) observed in Cape Cod and Massachusetts bays, 1978-1986. Rep. int. Whal. Commn Special issue 12:203-208.

Jensen, A.S., and G.K. Silber. 2003. Large whale ship strike database. U.S. Dep. Commerce, NOAA Technical Memorandum NMFS-F/OPR-25, 37 p.

Kenney, R.D., C.A. Mayo, and H.E. Winn. 2001. Migration and foraging strategies at varying spatial scales in western North Atlantic right whales: a review of hypotheses. J. Cetacean Res. Manage. (Special Issue) 2:251-260.

Kenney, R.D, H.E. Winn, and M.C. MacAulay. 1995. Cetaceans in the Great South Channel,1979-1989: right whale (Eubalaena glacialis). Continental Shelf Research, Vol. 15(4-5):385-414.

Knowlton, A.R., and S.D. Kraus. 2001. Mortality and serious injury of northern right whales(Eubalaena glacialis) in the western North Atlantic Ocean. Jour. Cetacean Res. and Manag. (Special Issue) 2:193- 208.

Russell, B.A. 2001. Recommended Measures to Reduce Ship Strikes of North Atlantic Right Whales. Submitted to the National Marine Fisheries Service in partial fulfillment of NMFS contract 40EMF9000223. 31 pp. http://www.nero.noaa.gov/whaletrp/.

Related Links

For February 2004 press release on right whale ship strikes, see: http://www.nefsc.noaa.gov/press_release/advisory04.02.html.

For information on the Mandatory Ship Reporting system, the Right Whale Sighting Advisory System, Northeast Right Whale Early Warning System, the Northeast Implementation Team, and an economic analysis of proposed ship strike management measures, see: http://www.nero.noaa.gov/whaletrp/ .

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Dated: May 25, 2004. Rebecca Lent, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

[FR Doc. 04-12356 Filed 5-28-04; 8:45 am]

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