Endangered and Threatened Species; Critical Habitat for Endangered North Atlantic Right Whale, 4837-4874 [2016-01633]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 81, Number 17 (Wednesday, January 27, 2016)]
[Rules and Regulations]
[Pages 4837-4874]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-01633]



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Vol. 81

Wednesday,

No. 17

January 27, 2016

Part IV





 Department of Commerce





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 National Oceanic and Atmospheric Administration





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50 CFR Part 226





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

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

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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.

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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 co-
occurrence 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 late-stage 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 mother-calf 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 https://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: https://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 re-examined Garrison (2007), Good (2008), and Keller et al. 
(2006). We reviewed the North Atlantic Right Whale Consortium Database 
(2015) (available at https://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 mother-calf 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 re-
evaluated 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) one-month 
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 (https://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 nm\2\ 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

[[Page 4843]]

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 mother-calf 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 [deg]C through 17 [deg]C, and (3) water depths of 6 
to 28 meters where these features simultaneously co-occur 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.

[[Page 4844]]

    We also considered climate change effects on calving right whale 
(including calf) distribution using the same step-wise 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 https://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[deg] through 21 [deg]C 
sea surface temperature (SST) in calm waters. However, the proposed 
right whale critical habitat (Unit 2) includes waters with SSTs ranging 
from 8[deg] through 17[deg] 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 
[deg]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 [deg]C to 17 [deg]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

[[Page 4845]]

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 cow-calf 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 mid-Atlantic, 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

[[Page 4846]]

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 
a