THE NORTH ATLANTIC RIGHT WHALE: FEDERAL MANAGEMENT ISSUES
CRS Report for Congress
The Nort h Atlantic Right Whale:
Federal M anagement Issues
Specialist in Natural Resources Po licy
Resources, Sc ience, and Industry Division
Congressional Research Service ˜ The Library of Congress
The North Atlantic Right Whale:
Federal Management Issues
The endangered North Atlantic righ t whale population h as not recovered after
com m erci al w hal i n g ceased, unl i k e m any o t h er whal e s peci es. D espi t e U.S . effort s
under t he Endangered Species Act and the M arine M ammal P rotectio n Act, t he
population h as declined by about 2% per year since t he early 1990s and now numbers
about 300 individuals. Direct human-influ enced mortality and s erious injury come
primarily from bei ng struck by large s hips and bei ng entangled i n commercial fishing
gear. These human-influenced mortalities were compounded i n t he 1990s by
alarmingl y l ow calf p roduction, possib l y c a u sed b y i nsuffici ent p rey, disease,
endocrine disruption from pollution, or other unknown factors.
The National M arine Fisheries Service (NMFS ) and the U.S. C oast Guard h ave
implemented recommendations developed i n a 1991 recovery plan for right whales
to reduce harmful human interactions with this speci es , but it’s t oo early to determine
t h e i m p act of t h ese effort s. NMFS has b een worki n g for several years t o revi s e t he
Following a number of l awsuits begi nning in 1994 and allegi ng va r i o u s
violations of federal l aw, ac t i o n s were undertaken by the C ommonwealth of
Massachuset t s , NMFS , and t he C o ast Guard t o i n crease t he prot ect i on afforded Nort h
Atlantic righ t whales. Meetings with shipping industry representatives continue in
an effort t o i d ent i fy m anagem ent opt i ons fo r r e d u c i n g s hi p s t ri k es. M eanwhi l e,
NMFS has i ssued regulations to require gear modification i n t he lobster and gillnet
fisheries t o reduce whale entanglement.
In general, individ u a l s and public and p rivate organiz ations support efforts t o
increase p rotection for North Atlantic ri gh t whales. However, some proponents o f
the i ncreasingl y restrictive m easures argu e t hat t hese efforts d o not provide enough
protection for the whales or adequately meet thei r biologi cal needs, while others
(especially those i n t he s h i p p i ng and commercial fishing industries) contend t hat
these restrictions place unwarranted or unnecessary limi t s o n industries t hat are
already overburdened with regulations.
Congress has i ncreased NMFS funding for research on and recovery of this
species from $250,000 in FY1997 to $5 million i n FY2001. Controversy arose over
NMFS proposed spending of these funds becau se of 1) reported d ifferences between
NM FS spending proposals and the recommendations of independent scientists,
conservationists, and i ndustry; 2) the l ev el of salary allocations within NMFS ; and
In troduction ..................................................1
Current Range ................................................2
Population Trends .............................................3
Involved Federal Agencies .......................................5
R ecent Devel opm ent s and C ont roversy .............................6
The N orth Atlantic Right Whale:
Federal Management Issues
O f the l arge whal e s peci es , t he North Atlantic right whale is one of the m o s t1 2
endangered. P ri z ed for cent u ri es for t hei r oi l a n d b a l een (“whal ebone”), righ t
w h al es were one of t h e fi rst whal e s peci es t o be depl et ed, p ri m ari l y because t h e y3
were eas y t o k ill. By the 1 9 t h c e n t u r y, all stocks of the s pecies were severely
depleted throughout their ranges. The League of Nations banned right whale hunting
in 1935. Additional p r o t e ctive m easures , implemented under t he Convention o n
In t ernat i onal T rade i n Endangered S p eci es (C ITES ), t h e U .S . E ndangered S p eci es
Act, and t he U.S. Marine Mammal P rotection Act, h ave resulted i n n o known
deliberate killing of a right whale in the Northwestern Atlantic since 1951.4
Despite these efforts, only about 300 righ t whales5 arebelievedtoremaininthe
northwestern Atlantic. In contrast, t he southern hemisphere righ t whale population
has b een increasing about 7% annually, and the C alifornia gray whale population h as
greatly increased un der t he same laws and t reaties, although t heir population was
never reduced to as few i ndividuals as the right whale. 6 Scientists surmise t hat North
Atlantic righ t whale recovery may b e impeded by 1) human-induced inj u r i es and
mortalities from vessel and propeller s trikes as well as entanglement in fishing gear
1 Although f ewer th a n 1 0 0 right whales are believed t o exist off t he Pacific coast of the
United States and Canada, and a much l arger population occurs in the s outhern hemi sphere
( i.e., off the coasts of Western Australia, South Africa, and Argentina), t his r eport f ocuses
exclusively on t he North Atlantic population, which i s r eproductively i solated from t he other
2 Commercial whaling of t he right whale for its oil and baleen was a profitable i ndustry f or
more t h a n 8 0 0 ye a r s . T he oil was used i n l amps, s oap, and margarine as well as, more
recently, i n cosmetics. Baleen was once processed i nto corset and umbrella ribs, f ans, clock
springs, hairbrushes, and r iding crops.
3 T he r ight whale was named by early whalers, who f ound that its coastal distribution, slow
swimmi ng speed, and tendency t o f loat when killed made i t t he “right” whale to hunt.
4 Russia has acknowledged that its whalers continued t o kill substantial nu mb e r s o f North
Pacific r ight whales in the 1960s, despite international agr eements to the contrary.
5 A 1999 stock assessment by t he National M arine Fisheries Service estimated the minimum
population t o be 291 indivi duals.
6 T he l owest estimated number of California gray whales was possibly l ess t han 1,000 in the
early 1900s. In addition, female California gray whales may gi ve birth every 2 t o 3 years
compared to every 3 to 6 years f or North Atlantic right whales. T hese diffe r e n c e s may
partially explain t he different recovery response.
and 2 ) limited food supplies resultin g i n a d e cline i n reproductive s uccess and an
i n crease i n t he cal vi ng i n t erval . T he Nat i onal M arine Fisheries Service (NMFS ) and
the U.S. C oast Guard have implemented recommendations developed i n a recovery
plan for right whal es to reduce harmful human interactions with this speci es in U.S.
North Atlantic right whale. Also, northern right whal e, Bi scayan right whale,
nordkaper, and b lack righ t whale.
Eubalaena glacialis, family Balaenidae (righ t whales). Based on recent genetic
studies, m ost s cientists recogniz e t he reproductively i solated North Pacific (E .7
japonica ) and s outhern hemisphere ( E. australis ) ri ght whal es as separat e speci es.
Before modern commercial whaling began , N o r th Atlantic right whales were
found from t he western coasts o f Iceland and Greenland to Delaware Bay, and s outh
to Bermuda, Florida, and the Gulf of M ex ico. Also in the eas tern Atlantic, from t he
northern coasts o f S candinavia, around the British Isles and t he Bay o f B iscay
(bordered b y France and Spain), and down t o t he northwestern coast of Africa.
T w ent i et h cent u ry si gh t i n gs have occurred from Icel and t o Fl o ri da, i nc l u d i n g
in the Gulf o f S t. Lawrence and o ff Newfoundland, New England, and t he mid-
Atlantic states. In addition, a few r i ght whales continue to be sigh ted i n t he
northeas tern Atlantic (e.g., o ff Norway). Righ t whales are now seldom observed i n
some inshore areas where t hey once were common, such as Delaware Bay and in the
Strait of Belle Is le between Newfoundland and Labrador. S ightings north of Nova
Scotia are comparatively rare. It is unknown whether the few righ t whales observed
in the northeas tern Atlantic are rem nants of a separate northeas tern Atlantic
population o f around a doz en, whether the northwestern Atlantic population actually
consists of two partially overlapping stock s w i th one stock u sing habitat i n t he
northeas tern Atlantic, whether thes e whales i ndicat e reco l o n i zation of t he
northeas tern Atlantic by individuals from t he northwestern Atlantic, or s ome other
relationship. There h ave b een no confirmed sightings in the Bay of Bi s cay o r off
nort h west Afri ca i n recent years.
7 While this report documents the s ubstantial efforts b e i n g t a ken t o protect North Atlantic
right whales, this closely r elated species in the North Pacific ( and occasionally observed i n
Al askan w a t e r s ) has r eceived scant notice or attention. T his critically endangered
population of l ess t han 100 indivi duals was s everely damaged by illegal Soviet whaling i n
the 1960s, and no calves have been confirmed i n more t han 100 years. T his species may be
in an even more precarious condition t han t he North Atlantic right whale and may warrant
similar urgent attention.
North Atlantic righ t whales are now us ually found in five areas: 1 ) C anada’s
Bay o f Fundy (a feeding and potentially important breeding area); 2 ) t he Scotian
Shelf s outh and southwest of Nova Scotia, i ncluding Brown’s and Roseway Bank and
Roseway Bas in; 8 3) along the coast of northern Florida and Georgia (the only known
cal vi ng area for t hi s s peci es); 4) C ape C o d Bay (a feedi n g and nursery area); and 5)
the Great South C hann e l , e ast o f C ape C od (another feeding area). T he relative
i m port ance o f t hese fi ve areas t o ri gh t w hal es m ay refl ect t h e ex t ensi ve research and
whal ewat chi n g effort ex pended t here; o t h er areas ( e.g ., Platts Bank, Cashes Ledge,
J effreys Ledge, Fippennies Ledge, Block Island S ound) have not received as m uch
at t ent i on, but aggregat i ons of ri gh t whal es h ave b een not ed feedi n g i n t hese areas.
N orth Atlantic right whales t ypically migrate al ong the U.S. coast in s h al l o w
waters on their way between northern feeding grounds in the Gulf o f M aine and o ff
the C anadian M aritim es an d t he southern cal ving and offshore areas . However, at
least a third o f t he population cannot be accounted for during t he summer, and m ay
remain offshore. S o me pregnant females migrate each year from feeding grounds in
the north to calving grounds along the coast bet w e e n t h e m outh o f t he Altamaha
R i ve r , G e o r gi a, and S ebast i an Inl et (sout h o f C ape C anaveral ), Fl ori d a. It i s
unknown where the rest o f t he population overw inters (probably o ffshore), although
as m u ch as 20-30% m ay rem ai n t o feed i n coast a l w a t e r s o ff Massachuset t s from
December until J une annually.
Fl uctuations in the amount and l ocation of available food most likely determine
where t he whales may b e found from year to year. R ight whales selectively feed on
small p lanktonic i nvertebrates called calanoid copepods. 9 To cat ch t h em , t he whal es
swim open-mouthed t o allow t he water t o pass i nto t he oral cavity and out through
their b aleen plates, which ha ng down from t he upper j aw and are effective s trainers.
Popul ati on Tr e nds
Although at l east 10,000 (and perhaps s ev eral times t his number) righ t whales
m ay h ave i nhabi t ed t he Nort h A t l a n t i c Ocean pri o r t o t he advent of com m erci al
whaling, the estimated current northwestern Atlantic population i s about 300.
Through a 20-year photo-identification p rogram, al m o s t every i ndividual whale in
the p resent population h as been identified. Although t his population i ncreased at a
rate of about 2.5% annually during t he 1980s, i t h as decreased by about 2% per year
since t he early 1990s.10
After m aturing at about eigh t years o f age, female right whales can gi ve birth t o
a s ingl e o ffspring every three t o five o r m ore years. During the 1990s, t he average
8 Use of t his a rea a ppears t o have declined since 1993.
9 T hese s mall plankt onic crustaceans f orm one of the maj or links of the marine f ood web .
For mor e i nf or ma t i on, see [ ht t p: / / www.coast a l s t udi es.or g/ st el l wagen/ zoo2.ht m] .
10Marine Mammal Commi ssion. Annual Report t o Congress, 1999 (Bethesda, MD: J an. 31,
i n t erval bet w een bi rt hs for m at ure fem al es i n creased fr o m l ess t h an four years t o
nearl y si x years.11 This increasing i nterval b e t w een pregnancies, coupled with
human-influenced mortalities, contribut ed to the population d ecline i n t he 1990s.
The p rimary human factors i nhibit i n g r i g h t whale recovery are p robably s hip
strikes and entanglement in certain types of fishing gear, t oget her causing mortality
or serious injury to an es timated average of 2.4 right whales per year. 12 Other t hreats
include changes in food supply and its distribution. The harmful effects of habitat
degradation and pollution on North Atlantic right whales are often assumed, but have
not been veri fi ed. D i s t u rbance from v e ssels may alter whale behavior, but it is
uncl ear whet her t hi s h as i m p ai red ri ght whal e recovery.
Right whales are particularly sus cep t i ble t o t he dangers posed by ships and
fi shi n g gear, b ecause t h i s speci es’ s easonal d i s t ri but i o n and m i grat o ry m ovem ent s
pass t h rough h eavi l y t raffi cked areas, and because of t h i s whal e’ s buoyancy,
compa r a t i v e l y s low s wimming s peed, h abit of resting n ear and o n t he surface, and
sur f a c e c ourtship and skim-feeding. Between 1970 and 1999, a t otal of 45 righ t
whal e m ortalities were recorded. Of t hese, 13 (29%) were newborn whales, which
are b el i eved t o h ave d i ed from p eri n at al com p l i cat i ons or ot her n at ura l c a u s e s .
Another 1 6 (35%) were d etermined to be the result o f s hip s trikes, t hree (7%) were
rel at ed t o en t angl em ent i n fi s hi ng gear (i n t wo cases, l obst er gear, and t h e t hi rd i n
gillnet gear), and 1 3 (29%) were o f unknown cause. At a minimum, therefore, 42%
of the observed m ortalities during t his p er iod, and 59% of the non-calf d eaths, were
attributable to human impact s. Oftentimes, the whales are not killed outright but are
fat al l y i n j u red and event u al l y di e b ecause of i n t ernal dam age or i m p ai rm ent .
Fi shing gear, s uch as l obster t rap/pot lines and gillnet s, can entrap and entangl e
whales. Although only t hree known right whale d eaths between 1970 and 2000 were
caused b y g ear ent angl em ent , m ore t han 60% of righ t whales h ave s cars which are
beli e v ed to be from fishing gear. Between 1994 and 1998, there were 8 known
instances where entangl ement was the p r imary or secondary cause of serious injury
to or death o f a ri gh t whale. Fishing gear entanglement can lead to long-term
deterioration o f a righ t whale and, according t o s ome researchers, may b e responsible
for h igher l evels o f m ortality than previously thought.13 Even minor entanglement
involving the b aleen may i nterfere with th e normal h yd raulic sealing m echanism o f
the m outh, increas ing t he energy demands for normal s wimming, and reducing t he
probability of successful reproduction.
11Kraus, S., et al. “Status and trends in reproduction in the North Atlantic right whale.”
Journal of Cetacean Research and Management , Special Issue 2 (in press ).
12U.S. Atlantic a nd Gulf of M exico Marine Mammal Stock Assessments – 2000, NOAA
T echnical Memorandum NMFS-NE-162, at [http://www.nefsc.nmfs.gov/psb/assesspdfs.
htm] , M arch 9, 2001.
13Knowlton, A.R., and S.D. Kraus. “Mortality an d s erious inj ury of northern r ight whales
( Eubalaena glacialis) i n t he western North Atlantic Ocean.” Journal of Cetacean Research
and Management , Special Issue 2 (in press).
Another impediment to the whales’ recovery is a l ow r a t e of reproduction,
coupled with a relatively h igh m ortality rate (compared t o o ther whale s pecies) from
both human and n atural factors. This was compounded i n t he 1990s by alarmingl y
lo w c a l f p roduction, possibly caused b y i nsufficient p rey, disease, endocrine
d i s ruption from pollution, 14 or other unknown fact ors. In addition, it is unknown
whet her v essel noi se and t ransi t s i n t h e ri ght whal e cal vi ng area coul d d i s rupt cri t i cal
acoust i c com m uni cat i ons bet w een m o t h er and cal f, l eadi n g t o cal f s eparat i o n and
subsequent deat h. R ecent evi dence s uggest s t hat t he ri gh t w h a l e c a l vi ng rat e i s
influenced by food availability in the shelf waters of the eas t e rn United S tates and
Canada. 15 A l ack of food (nutrition) reduces fecundity either by preventing
pregnancy o r b y causing natural abortion as a resul t of t h e fem al e’s reduced fi t n ess.
The right whale was initially protected from hunting i n 1935 by a res o l u t ion
adopted by the League of Nations. 16 In 1949, the International W haling C ommission
(IWC) banned all killing of right whales. Additional l y, t h e y are now listed under
Appendix I of CITES, a treaty observed b y 152 nations,17 incl uding the United S tates.
Right whales are protect ed in the United S t at es b y t he Endangered S p eci es Act
(ESA, 16 U.S.C. 1531 et seq .) and t he Marine Mammal P rotection Act (MMPA, 16
U.S.C. 1361 et seq. ). Bo th laws have provisions against h arming and harassing
speci es. Under s ect i o n 7 o f t he ES A, each federal agency m ust ensure t hat any
activity it authoriz es or funds is not likely t o j eopardiz e t he c o n t i n u e d ex i stence of
an endangered speci es, s uch as t he Nort h A tlantic ri gh t w hale. S ection 118 of the
MMPA requires “the immediat e goal t hat i ncidental kill or inci dental serious injury
of mari n e mammals permitted i n t he course of commercial fishing operations be
reduced to insignificant l evel s approaching a zero mortality and s erious injury rate.”
I nvol ved Feder a l Agenci e s
Numerous federal agencies are involved i n t he management and/or protection
of t h e Nort h At l ant i c ri gh t whal e. T hey i ncl ude NMFS and t he Nat i onal Ocean
Service (NOS) within the National Ocea n i c and Atmospheric Administration
(NOAA), t he Minerals Management S ervice (MMS ) within the Department of th e
In terior, t he Environmental P rotection Agency (EPA), t he Army Corps o f Engineers
(COE), the U.S . C oast Guard (US CG), and t he U.S . Navy (US N).
14See CRS Report RS20778, Endocrine Disruption: An Introduction .
15T he dramatic increase i n number of calves born i n l ate 2000 and early 2001 (a total of at
least 26 calves have been reported, compar ed to only one birth t he previous year) may
support t his t heory, since f ood was much more a bundant in 1999-2000.
16Howe ve r, neither J a pan nor the Soviet Union signed this resolution, and both nations
continued t o kill North Pacific r ight whales.
17As of March 2001. See [ http ://www.c ites.org/ CIT ES/eng/index.shtml ] .
NMFS administers the ESA and MMPA for right whales , incl uding
enforcem ent , rul e m aki ng, p erm i t revi ew an d i ssuance, research (bot h b i o l o gi cal and
f i shing gear-related), and tailors fish ery m anagement p ractices to minimiz e t he
entanglement threat and other impact s. NOS es tablishes program s - both educational
and enforcem ent/management - within National M arine S anct uaries t h at further
protect righ t whales i n concert with NMFS pro g r a ms. NOS also provides
data/research in support o f our understandi ng of righ t whale habitat u se and n eeds.
MMS provides research to determine right whal e use and habitat requirements within
areas that may b e p roposed or have the potential for oil and gas o r o ther mineral
ex traction efforts. The EPA undertakes a ssessment s tudies of pot e n t i al impacts o f
discharge o f point or non-point source pollution o n right whales. The COE conducts
assessment studies of potential impact s of construction project s within al l navigable
marine waters on right whales. The USCG and USN assess the potential impact s of
their normal v essel operations and/or training ex ercises o n right whales. The USCG
is also responsible for enforcement o f t he MMPA, ESA, and all fisheries l aws within
the U.S. Ex clusive Economic Zone.
Recent Developments and Controve rsy
Righ t whale research within NMFS has b een funded b y C ongress since 1986.
In itial appropriations totaled $500,000 in FY1986, and $200,000-$250,000 annually
for FY1987-FY1997. Funding was i ncreased to $350,000-$400,000 annuall y for
FY1998-FY1999. In FY2000, NMFS received a substantial i ncrease t o $4.1
million18 for a large r f o cus o n fishing gear m odification research, funding of the
S i gh t i n g Advisory System in the Northeast and the Early Warning S ystem i n t h e
Southeast, funding for a disentangl ement network, s atellite taggi ng research, s urveys
of previously unknown h abitat, genetic and reproductive research, acoustic research,
and improved coordination with the Navy and Coast Guard to reduce s hip s trikes in
whal e h abi t at areas. 19 Righ t whale research funds were further i ncreased to $5
million f or FY2001. Of this $5 million, a t otal of $2.9 million was direct ed to the
Northeast C o n s o rtium (University of New Hampshire, University of Maine,
Massachusetts In stitute of Technology, and W oods Hole Oceanographic Institution)
for a competitive grants program . 20
18NMFS had r equested less than $500,000; the l arge increase has been attributed to lobbying
by non-profit gr oups.
19Controve rsy a rose over NM FS proposed spending of these f unds because of 1) reported
differences bet w e e n NMFS s pending propos als a nd the r ecomme ndations of independent
s cientists, conservationists, and i ndustry; 2) the l evel of salary allocations within NM F S ;
and 3) t he timeliness of NMFS contracting procedures.
20T he Northeast Consortium [ http://www.northeastconsortium.org/ ] was created in 1999 to
encourage and fund effective, co-equal partnerships among commercial f ishermen,
researchers, and other stakeholders to become active participants in cooperative r esearch and
development of s elective f ishing gear technology. Most of the e x p e r t ise on r ight whales
resides outside the f ederal government. T hus, NMFS has facilitated conservation r esearch
through subcontracting t o scientists at private, non-profit organizations an d a cademic
A Fi n al R ecovery P l an for t he Nort hern R i gh t W hale was completed in
December 1991 by NMFS . R ecovery P l an Im plementation Teams were formed i n
1993 in the S outheast United S tates and in 1994 in the Northeast t o i dentify actions
federal agencies could i nitiate. 21 The S outheas t Implementation Team initiated an
educat i o n cam pai gn t o i m p rove publ i c awareness o f t he whal es and reduce hum an-
induced injuries. It also assisted in developing the Early Warning S ystem for al erting
mariners to the presence of ri ght whal es , t o diminish t he number of s hip s trikes . 22
The Northeast Implementation Team sponsored the d evelopment o f a training video
“Right W h ales and t he Prudent Mariner,” focusing on right whal e/ ship interactions
in the Gulf o f M aine. Although t he majority o f t h e v ideos p roduced targeted the
com m erci al s hi ppi ng i ndus t ry and were di s tri but ed t o m e rchant m a rine personnel, the
Naval Undersea W arfare Center Division Ne wport t ailored a version t o cover t heir
test and evaluation operations in the Block Is land and C ape C od areas . In addition,
t h e Nort h east T eam hel p ed devel o p and di st ri but e ri ght whal e i nform at i o n p l acards
and b rochures t o fi sherm en, recreat i onal boaters, and commercial s hipping interests.
With the passage of time, t he 1991 Plan h a s b eco m e increasingl y outdated due to
advances in understanding the b iology and m anagement o f t he righ t whale. NMFS
has b een working for several years t o revise t he 1991 plan, but has b een criticized for
slow progress on completing t he updated p lan.
Fo llowing a number o f l awsuits begi nn i n g i n 1994 and allegi ng various
violations of the MMPA, the ESA, and ot her l aws, actions were undertaken by the
C o m m onweal t h of Massachuset t s , NMFS , and t he C o ast Guard t o i n crease t he whal e
protection efforts. As of early 2001, the Humane S ociety of the United S tates and the
Conservation Law Foundation h ad similar litigation pending in the First District
C ourt , Bost on, agai nst t he S ecret ary o f C om m erce; t h e U ndersecret ary o f C om m erce
for Oceans an d A t m o sphere, NOAA; the Assist ant Administrator for Fisheries,
NMFS ; and the R egional Administrat or, NMFS Northea st Regi on, for failure to
adequately protect righ t whales under t he MMPA and the ESA, and for violations of
the Administrative P rocedures Act.23
Effective J uly 5 , 1994, three areas of the right whale’s U.S. range were declared
to be critical habitat by NMFS.24 Thi s des i gn at i o n i ncreased publ i c awareness
concerni ng t h e p l i ght of t h i s speci es and s trengt hened t he protection o ffered b y t he
ESA and the MMPA by i nsuring t hat habitat w as not m odi fi ed even when t h e w hal es
are not present. It al so helped to det e rm i n e which activities (such as wastewat er
21T he Plan’s r ecomme ndations included: 1) education a nd enforcement t o r educe s hip s trikes
and f ishing gear entanglement; 2) designation of t he three key habitat areas as c r i t i cal
habitat; and 3) r estrictions on recreational whalewatching.
22Flights are conducted by a consortium of s tate and f ederal agencies to detect right whales
off t he coasts of Florida, Georgi a, and South Carolina. T hese f lights not only document t he
distribution of r ight whales, but this information can be relayed t o ships which are requested
to take voluntary action t o avoid the whales.
23Huma ne Society of t he United States v. M ineta e t a l, No. 0 0 -C V -12069-DPW ( D. Mass
filed October 6, 2000).
24“Designated Critical Habitat; Northern Ri ght Whale,” 59 Federal Register 28793 (J une
di sposal i n adj acent wat ers) out si de t h e p roscri bed area were s ubj ect t o ES A s ect i o n
In October 1994, NMFS was p etitioned b y a Massachusetts environmental
group to establish a p r o t e c t i o n z one of 500 yards around each righ t whale, i n t he
b e l i e f t hat v essel activity, i ncluding engine noi se and wakes, d i s t u rbed t h e whal es
and c o u l d adversel y a lter t heir behavior.25 The res triction, which prevents vessels
and i ndividuals from approaching t he whales to reduce t he risk of disturbance, was
implemented in March 1997 and i s enforced by NMFS and t he Coast Guard. 26 Some
whal ewat chi n g operat o rs obj ect ed t o t h e no-approach z one, s i n ce i t r e s t ri ct s t hei r
commercial activity. In addition, some scientists object to the rule, since i t precl udes
data collection from whalewatching vessels. These scientists believe this rule has
been the primary cause for a 20% reduction i n t he number of right whal es identified
in southern New E n gl a n d waters, compared t o t he identification rat e prior to the
Since 1994, the S outheastern E a rly W ar ning System has b een refined, and a
similar p rogram was i nitiated i n 1996 to cover waters o ff the coast of Massachusetts.
Ba s e d o n a NOAA/NMFS initiative, and with contributions from s everal
organiz ations, NOAA and t he U.S . Coast Guard estab l i s hed t he Mandatory S h ip
Reporting S ys tem. This system provides m ariners with information on right whal es
and collect s dat a on s hip distribution and movemen t s - i n formation t hat can
subsequently be used to define high -risk areas for t hese whales. In J une 1999, the
Coast Guard publishe d i nterim final regul ations for t he Mandatory Ship Reporting
System covering all U.S. critical hab itat for North Atlantic ri gh t whales.27 Under
thes e regulations, all commercial vessels larger than 300 gross t ons were required t o
notify U.S. authorities before entering defined right whale habitat areas .28 Sovereign
immune vessels (e.g., military ships, government-owned research ves s e l s ) are
encouraged, but not required, to notify U.S. a u t horities. 29 The reporting s ys tem
facilitates understandi ng of the u se of critical habitat b y s hips, and allows vessels to
be instr u c t e d i n means o f reducing t he likelihood of ship strikes on whales. An
NMFS -sponsored Ship Strike Committee held a series o f m eetings in 2000 with
25T he Commonwealth of Massachusetts already had a 500-yard no-approach regulation i n
place (322 Code of Massachusetts Regulations 12.01-12.05).
26“North Atlantic Right Whale Protection,” 62 Federal Register 6729 (Feb. 13, 1997).
27“Mandatory Ship Reporting Sys tems ,” 64 Federal Register 29229 (J une 1,1999).
28Some critics s uggest that vessels less than 300 gr oss t ons are j ust as capa ble of harming
right whales, and t hat little biological j ustifica tion exists f or this arbitrary t onnage threshold.
29During the right whale calving period, the Navy’s Fleet Area Control and Surveillance
Facility (FACSFAC) receives i nformation from a variety of sources on right whale sightings
along the Florida/Georgia coast an d dissemi nates t he locations to Navy ships, along with
recommendations regarding s p e e d , r elocating exercises, etc. In addition, the Sighting
Advi sory System (SAS) broadc a sts right whale sighting i nformation t o northeastern
maritime i nterests, i ncluding the Navy. In turn, when operating i n t he Cape Cod T est Area,
the Navy r epor t s a n y r ight whales observed during aerial or s hipboard surveillance t o t he
SAS f or broadcast.
shipping industry representatives at v a r i ous locations along the east coast. This
Committee i s preparing a report on m anagem ent options for reducing s hip s trikes .
A number o f efforts h ave f o c u s e d on fishing gear entanglement. In August
pursuant t o requirements o f 1994 amendm ents to the MMPA. Based primarily on a
February 1997 report b y t his TRT, 30 NMFS developed and published a proposed
Atlantic Large W hale Take Reduction P lan (TRP).31 Although t he TRP s pecified
multiple high risk areas that required additional fishing gear modifications, i t did not
include area closures as an option. Noneth el ess, NMFS regulations implement i n g
the TRP proposed fishery time and area closures, marking o f fishing gear to identify
ownership, and gear design alternatives. Elements o f t he commercial fishing industry
strongly opposed some of the s pecifics of the NMFS p roposed rul e ( e.g., t he weak
link b elow a s u r f a c e b u o y with a b reaking s trengt h n o greater than 50 pounds) as
incompatib l e w i t h the practical realities of s etting and retrieving fishing gear.
Modifications responding to fishing i ndustr y c o n cerns were incorporated in an
interim final rule published i n J uly 1997. 32 After continued entangl ement p roblems
under t he interim final rule, NMFS i ssued m odified final regulati o n s in February
1999.33 Because of continuing entanglement concerns, NMFS reconvened t he
Atlantic Large W hale TRT ear l y i n 2000 to consider additional closures and
restrictions on commercial fishing. As a result of those m eetings , and based o n gear
research conducted s ince 1997, new m odifica tions were implemented for all lobster
and gillnet gear in December 2000. 34
A w hal e di sent angl em ent p rogram was al s o d evel oped t o al l evi at e g ear
entan glement situations. Hundreds o f fis hermen have volunteered for t raining t o
participate at one of three l evels o f response t o entangl ements. The increased
vigilance o f fishermen in spotting entangl ed whales and t heir willingn ess t o abandon
fishing operations to track a whale pending t h e arri val o f t he di sent angl em ent t eam
has b een t h e k ey t o several s uccessful di sent angl em ent s .
In general, individuals a n d public and private organiz ations support efforts t o
increase p rotection for North Atlantic ri gh t whales. However, some proponents o f
increasingl y restrictive m e a s ures argu e t hat t hese efforts d o not provide enough
protection for the whales or adequately meet thei r biologi cal needs, while others
30T he T RT did not reach a consensus on a recommendation t o NMFS, and its report l argely
reflected the views of T RT members from t he envi ronmental community. Dissenting
members r epresenting both t he fishing i ndustr y and relevant state marine r esource agencies
submitted an alternative r eport and recommended plan of action.
31“Atlantic Large Whale T ake Reduction P l a n R egulations,” 62 Federal Register 16519
32“Atlantic Large Whale Take Reduction Plan Regu l a t i o n s,” 62 Federal Register 39157
33“Atlantic Large Whale Take Reduction Plan Regulations,” 64 Federal Register 7529 (Feb.
3465 Federal Register 80368 (Dec. 21, 2000). For updated i nforma tion on t he Atlantic Large
Whale T RP, s ee [http://www.nero.nmfs.gov/whaletrp/].
(especially those i n t he shipping and commercial fishin g i n d u stries) contend t hat
these r es t r ictions place unwarranted or unnecessary limits on industries t hat are
already overburdened with regu l at i ons . S h i ppers fear t h at speed rest ri ct i ons and
vessel routing m easures could affect the economics o f s hipping and p lace some ports
at a relative d i s a d v a n t age t o o thers. W h ile many commercial fishermen support
whale p rotection, they are i ncreasingly concerned that litigation and economics might
dism an t l e fi sheries t o assure this protection. Fi shermen question t he effectiveness
of fi shi n g regul at i ons i n speci fi c areas and s easons si nce t hese whal es’ m i grat i ons are
ex tensive and not fully understood. In addition, they fear that they will be forced to
bear an unequal s hare of the regulatory burde n for protecting right whal es , s ince the
U.S. government can regulate fishing out to 200 miles, w h ile foreign-flagged
commercial vessel t raffic can be regulated only out to 12 miles.
Perhaps one of t h e m ost controversial aspects o f t his i ssue could o ccur i n
relation t o t he Marine Mammal P rotection Act i f t h e North Atlantic right whale
should b ecome the first species under t his Act to have its potential b iologi cal removal
(P BR ) l evel set at z ero. 35 If NMFS were to completely cl ose fix ed-gear fisheries36 to
meet a P BR go al of z ero take, i t would b e an unprecedented action.
N orth Atlantic right whales are still threat ened by shipping and fishing gear.
Technological advances ( e.g., s onar o r o t h er m eans o f d et ect i n g ri ght whal es) m ay
enable both i ndustries t o coex i st with right whales. Funds allocated by Congress in
the l ast t wo years were i ntended t o improve right w h ale protection without putting
an yo ne out of business. NMFS has been criticized for its handling of w h a l e
protection f unds and conservation groups have initiated l awsuits. However, an
updated recovery plan, adequate funding for b o t h m anagement and research,
accountability to Congress for funds provided, and i ndependent p eer-review of
funded research may b egin to solve m any o f t hese problems.
35The PBR level i s used t o establish limits on inc i d e n t a l marine mammal mortality for
comme rcial f ishing operations. For a discussion of PBRs, s ee page s 9-10 of C R S R e p o r tth
RL30120, Marine Mammal Protection Act: Reauthorization I ssues for t he 107 Congress .
36Fixed gear is fishing gear that is secured or weighted ( anchored) t o t he bottom of t he sea,
as opposed to mobile gear, s uch a s s eines a nd trawls, t hat i s not secured or a nchored.