[Federal Register Volume 65, Number 123 (Monday, June 26, 2000)]
[Proposed Rules]
[Pages 39336-39342]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-16113]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 224

[Docket No. 000225052-005201; I.D. 102599C]
RIN 0648-AN29


Regulations Governing the Approach to Humpback Whales in Alaska

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS proposes to prohibit the approach within 200 yards (182.8 
m) of a humpback whale, Megaptera novaeangliae, in waters within 200 
nautical miles (370.4 km) of the coast of Alaska. Under these 
regulations, it would be unlawful for a person subject to the 
jurisdiction of the United States to approach, by any means, within 200 
yards (182.8 m) of a humpback whale. This action is necessary to 
minimize disturbance to humpback whales in waters off Alaska. It is 
intended to promote conservation and recovery of humpback whales.

DATES: Comments must be submitted by August 10, 2000.

ADDRESSES: Mike Payne, Assistant Regional Administrator, Protected 
Resources Division, NMFS, Alaska Region, P.O. Box 21668, Juneau, Alaska 
99802-1668. Comments also may be sent via facsimile (fax) to 907/586-
7012. Comments will not be accepted if sent via email or Internet. 
Courier or hand delivery of comments may be made to NMFS in the Federal 
Building, Room 461, Juneau, AK 99801.

FOR FURTHER INFORMATION CONTACT: Kaja Brix, NMFS Alaska Region, 907/
586-7235, or Jeannie Drevenak, Permits Division, NMFS Office of 
Protected Resources, 301/713-2289.

SUPPLEMENTARY INFORMATION:

Species Description

    The humpback whale, Megaptera novaeangliae, is a highly migratory 
species that is found in all oceans of the world. Humpback whales, 
listed as endangered under the Endangered Species Act of 1973, 16 
U.S.C. 1531 et seq. (ESA), are baleen whales belonging to the family 
Balaenopteridae. Humpback whales frequenting the North Pacific basin 
spend the winter months in the warmer tropical waters off Hawaii, 
Mexico and southern Japan. The summer feeding range of these animals 
extends along coastal inland waters of British Columbia, southeast 
Alaska, through western Alaska to Russia, and as far north as the 
Bering Sea.
    Humpback whales in the North Pacific have been divided into three 
stocks: (1) the California/Oregon/Washington and Mexico stock; (2) the 
Central North Pacific stock; and (3) the Western North Pacific stock 
(NMFS 1999; Calambokidis et al. 1997). The Central and Western North 
Pacific stocks feed during summer months in the waters of coastal 
Alaska. The Central North Pacific stock of humpback whales winters in 
Hawaiian waters and migrates to feeding grounds in the summer months in 
northern British Columbia/Southeast Alaska and Prince William Sound 
west to Kodiak (NMFS 1998, 1999). The Western North Pacific stock 
winters in the waters off Japan and likely spends summer months feeding 
in coastal Alaska waters west of the Kodiak Archipelago (NMFS 1998).
    Prior to commercial whaling the worldwide population of humpback 
whales was thought to have been in excess of 125,000 animals (NMFS 
1991). Approximately 15,000 animals were believed to have been present 
in the North Pacific prior to 1905. Humpback whales were heavily hunted 
until the International Whaling Commission banned commercial harvest in 
1966 (Rice 1978). As a result of commercial whaling the North Pacific 
population may have been reduced to as low as 1,000 animals (Rice 
1978). Recent population estimates indicate that the numbers are 
greater than immediately post-harvest, but have not yet reached the 
level estimated for the time period prior to intensive whaling. The 
current annual abundance estimate for the North Pacific population is 
6,010 animals (Calambokidis, et al 1997). The abundance of the Central 
North Pacific stock is estimated to be 4,005 animals (Straley 1994, 
NMFS 1998).
    Annual abundance estimates have also been calculated for feeding 
aggregations of the Central North Pacific stock of humpback whales in 
specific locations off Alaska (NMFS 1998). The estimate for Prince 
William Sound is less than 200 animals; for southeast Alaska, 404 
animals; and for the Kodiak Island region, 651 whales. These estimates 
represent minimum estimates for the three known feeding areas because 
the study areas do not include the entire geographic region. Little is 
known regarding humpback whale abundance between feeding areas, for 
example, south of Chatham Strait and west of Kodiak Island.
    An extensive data set exists on the seasonal movements and 
distribution of humpback whales in the North Pacific, primarily for the 
Central North Pacific stock. The Western North Pacific stock is not as 
well studied, due primarily to the remote locations in which these 
animals range. Humpback whales generally spend the period between early 
spring to late fall in localized coastal areas engaged in intensive 
feeding activity.
    Humpback whales congregate in the waters of their summer range in 
distinct feeding aggregations (Baker et al, 1987, 1990 in Baker, et al, 
1992), with the same whales returning repeatedly to localized feeding 
areas. The identified feeding areas in Alaska for the Central North 
Pacific stock are southeast Alaska, Prince William Sound and Kodiak 
Island. Interchange among feeding areas has been at very low rates, 
usually involving just a few individuals

[[Page 39337]]

(Calambokidis, et al 1997). Site-fidelity of feeding humpback whales 
appears to be maternally directed and is likely a learned event. 
Mothers may bring their calves to a unique feeding site and the calves, 
once weaned, return to these same areas. Calves have been documented to 
return to the same feeding sites as adults and with their own offspring 
(Straley 1984).
    Humpback whales feed singly or in groups using several different 
feeding strategies to capture their prey. Some of the common feeding 
behaviors in southeast Alaska include ``browsing'' conducted by 
individual animals; non-synchronized diving behavior; ``lunge'' 
feeding; and bubble-net feeding. Lunge feeding is a cooperative feeding 
behavior employed by a loosely assembled group of animals. The whales 
also use a technique referred to as ``bubble net'' feeding that 
involves the animal diving near an aggregation of prey, releasing 
bubbles to concentrate (i.e., herd) the prey and surfacing through the 
bubbles to capture the prey.
    Humpbacks feed mainly on small schooling fishes, such as herring, 
walleye pollock, capelin and sandlance, and large zooplankton, such as 
krill (Wing and Krieger 1983, Krieger and Wing 1986, Krieger 1988). The 
productive temperate waters off Alaska have historically contained 
large numbers of herring schools and krill patches in inland coastal 
waters in predictable locations. Humpback whales, although not limited 
to these areas, return to specific feeding locations such as Frederick 
Sound, Chatham Strait, North Pass, Sitka Sound, Glacier Bay, and Prince 
William Sound, as well as other coastal areas of similar prey 
concentrations.

Whale Watching Activity in Alaska

    The predictable nature of summer distributions of feeding North 
Pacific humpback whales provides the opportunity for whale watching 
activity in Alaska waters. Humpback whale prey appear to concentrate 
consistently and the intensive feeding behavior of the whales results 
in animals remaining in relatively defined areas over long periods of 
time. These feeding locations are often areas easily accessible from 
coastal communities. This combination of factors has recently led to 
extensive development of the whale watch industry.
    Dedicated wildlife excursions in Alaska waters include both day 
trips that originate out of specific coastal communities in southeast 
and south central Alaska, and overnight package tours. The coastal hubs 
of this industry are, principally, the southeast Alaska communities of 
Petersburg, Juneau, Sitka, and Gustavus, as well as Seward and Homer in 
south central Alaska. The tours range from several hours in duration to 
day-long trips.
    Most whale watching activity occurs within less than a couple of 
hours of the coastal town from which it originates. This often means 
that the same group of whales in a local feeding area is continually 
exposed to vessel traffic throughout the duration of the whale watching 
season.
    Except for those trips that conduct whale watching as a sideline to 
a sport fish charter, most of the tours generally follow a specific 
route, stopping at known humpback whale feeding sites, as well as 
specific sites occupied by other marine wildlife. Depending on the 
schedule of the tour, the vessels may stop to view feeding humpbacks 
for the length of several dive cycles, i.e., 20 minutes, or for 
extended periods of time up to an hour or more.
    The whale watching season in Alaska typically starts in early to 
mid-May as the whales, and subsequent influx of tourists, arrive in the 
state. Tours generally operate on a daily basis through late fall.
    Whale watch activities are conducted from a variety of platforms: 
small vessels supporting recreational boaters, kayaks, sport fishing/
wildlife viewing charters that can carry 6 passengers, and larger 100-
150 foot vessels capable of carrying 100 or more passengers. The 
majority of vessels have conventional prop-driven engines; some of the 
newer and larger catamarans are water-jet propelled.
    Whale watching is unregulated in Alaska, except for the waters of 
Glacier Bay, regulated by the National Park Service, which established 
a minimum approach distance of 1/4 mile (440 yards or 0.4 km) from 
humpback whales. Whale watching vessels in Alaska that carry paying 
customers must obtain Coast Guard-regulated licenses to carry 
passengers and must have state business licenses to operate.

Impact of Vessel Traffic on Whales

    Adverse impacts to marine mammals from whale watching could occur 
in several ways: direct physical impact from a vessel strike; noise 
effects could impede echolocation in some whales or damage or interfere 
with hearing; disruption and alteration of normal feeding, resting and 
other critical behaviors; habitat modification; and reduced fitness; 
all of which may ultimately lead to reproductive effects and population 
level changes.
    Studies of vessel impacts to marine mammals have more often looked 
at short-term effects (e.g., measuring disturbance or avoidance 
behaviors) rather than long-term or cumulative effects of repeated 
exposure to numerous vessels over time (e.g., decreased survivability 
or reproductive effects such as increased birthing intervals, which 
would directly affect productivity). Generally this is because 
immediate responses to vessel presence, such as avoidance behavior or 
changes in dive patterns, can be measured more easily than long-term 
effects. Further, interpretation of measured effects can be difficult. 
Studies on one species or group of animals (i.e., a feeding aggregation 
vs. a transiting aggregation vs. a breeding or calving aggregation) may 
not be applicable to another species or group.
    The potential for vessels to cause disturbance to marine mammals is 
widely recognized. However, the literature on quantified impacts is not 
extensive. Baker and Herman (1989) note that ``human disturbance has 
the potential to reduce an animal's biological fitness, defined as its 
relative reproductive contribution to subsequent generations, and thus 
inhibit the recovery of an endangered population.'' These authors 
conducted controlled studies on the impact of vessel traffic on 
humpback whales in Glacier Bay and in the Frederick Sound area of 
southeast Alaska. They examined responses to obtrusive, unobtrusive, 
and ``pass by'' conditions conducted by different vessel classes.
    In this study, the obtrusive condition resulted in a striking 
increase in the frequency of blows when the whale was near the surface 
and an increase in the longest submergence observed (Baker and Herman 
1989). Respiratory behaviors were the most sensitive indicators of 
response to a vessel. The effects declined as the activity of the 
vessel moderated during the unobtrusive and ``pass by'' conditions. The 
authors identified a 400 meter (m) range of influence within which 
vessel operations accounted for 27.5 percent of the variance in the 
blow intervals of whales.
    Baker and Herman (1982, 1989) also noted a tendency of humpback 
whales to orient in the direction of the vessel as it approached, and 
then to turn away at a perpendicular direction as the vessel reached 
its closest point of approach. The percentage of whale movement devoted 
to avoidance behavior increased from 15 percent at a distance from the 
vessel of 4000 m to 27 percent at a distance from the vessel of 1000 m. 
Of note, however, is that predictable behavioral reactions to the

[[Page 39338]]

vessels were evident up to a distance of 4000 m from the vessel.
    Baker and Herman (1989) also observed changes in aerial behavior 
and pod composition with the proximity and presence, respectively, of 
vessels. The presence of large vessels was correlated with changes in 
pod composition; aerial behavior occurred with a 50-percent probability 
when vessels approached within 478 m of the focal pod.
    Despite changes in whale behavior occurring in response to vessel 
presence, the animals may not abandon the area in which the disturbance 
occurs. As Baker and Herman (1989) note, the availability of a rich 
food source may outweigh the disadvantages posed by the high level of 
vessel traffic and potential disturbances. This, however, does not 
preclude the possibility that an effect exists.
    The dependence of humpback whales on the dense aggregations of prey 
may cause these whales to remain in an area to feed, despite 
potentially negative impacts from nearby vessels. The impact, 
therefore, could be one that occurs over time, reducing the overall 
fitness of the individual and manifested in reproductive or population 
level changes.
    The range of vessel types that could interact with humpback whales 
in coastal Alaska includes the large commercial transport industry such 
as oil supertankers; tug and barge operations; ferries; fishing 
vessels; commercial tourism vessels including large cruise liners; 
wildlife viewing vessels; smaller owner-operator charter vessels that 
conduct multi-purpose tours; eco-tourism companies (specifically kayak-
based tours); and private recreational vessels. However, vessels 
actively engaged in whale watching are the group of primary concern.
    Although whale watching activities have been going on for some time 
in some areas of Alaska, the pressure has been at a level much lower 
than that which exists currently. Although not comprehensive, some data 
on the whale watch industry are available. Commercial Fisheries Entry 
Commission (CFEC) of the State of Alaska gathers data on charter 
vessels. These data represent the number of vessels in Alaska that 
register as charter fishing vessels. Some of the fishing charter fleet 
also offer whale watch charters; the CFEC statistic does not, however, 
include those vessels that conduct exclusively whale watching charters. 
In 1998, 3,670 vessels were registered as charter fishing vessels, an 
increase of 212 percent from 1988 (CFEC 1999). While this is not a 
direct measure of the universe of whale watching charters, the overlap 
between the charter fishing industry and the whale watching charter 
industry indicates that the number of charter vessels that could 
potentially interact with humpback whales is growing. This statistic 
also shows a significant increase in the charter industry over the last 
10 years.
    The U.S. Coast Guard state vessel registration program records all 
vessels under 5 net tons operating in Alaska waters. Data from 1999 
indicate a total of 34,353 active vessels. This includes 2,171 
commercial passenger vessels, 4,809 commercial fishing vessels, 660 
rental vessels, 24,462 pleasure vessels and 1,226 in the ``other'' 
category. Some portion of the commercial passenger vessels are used for 
whale watching activities. Most of the remaining vessels could 
potentially interact with whales; the degree of interaction is likely 
to be minimal, except perhaps for pleasure craft whose operation can be 
directed at humpback whales. The majority of the 34,353 vessels, 
however, likely operate in coastal waters, overlapping to some extent 
with the range of the humpback whale. Although NMFS does not have 
information on specific vessel use patterns, the number of vessels that 
could interact with humpback whales has increased substantially in 
recent years and is likely to continue to grow.
    The impact of the current level of viewing pressure, or an 
increased viewing pressure, may not be fully understood for many years. 
The risk of harm to the species from a possible delay in detecting a 
long-term negative response to increased pressure provides impetus to 
implement measures on a precautionary basis to manage vessel 
interaction with humpback whales in waters off Alaska.

Background to Proposed Regulations

    The ESA and the Marine Mammal Protection Act, 16 U.S.C. 1361 et 
seq. (MMPA), give NMFS jurisdiction over humpback whales. The proposed 
regulations are promulgated under the authority of both the ESA and the 
MMPA. The rule is an appropriate mechanism to promote conservation and 
recovery of humpback whales, and to enhance enforcement under the ESA. 
Section 11(f) of the ESA provides NMFS with broad rulemaking authority 
to enforce the provisions of the ESA.
    For example, section 9(a) of the ESA prohibits the take of 
endangered marine mammals. Given that close approaches to humpback 
whales could harm, harass, injure or otherwise ``take'' one or more of 
this endangered species, the proposed rule provides a safeguard against 
section 9(a) violations, and facilitates enforcement. In addition, 
Section 112(a) of the MMPA provides NMFS with broad authority to 
prescribe regulations that are necessary to carry out the purposes of 
the statute.
    The MMPA contains a general prohibition on ``taking'' a marine 
mammal. ``Take,'' under the MMPA, means to harass, hunt, capture, 
``collect'' or kill any marine mammal, or attempt to do any of the 
above. Harassment is defined as any act of pursuit, torment, or 
annoyance which has the potential to injure a marine mammal or marine 
mammal stock in the wild; or has the potential to disturb a marine 
mammal or marine mammal stock in the wild by causing a disruption of 
behavioral patterns, including, but not limited to, migration, 
breathing, nursing, breeding, feeding, or sheltering. The ESA generally 
prohibits the ``taking'' of an endangered species. The ESA defines 
``take'' to mean ``harass, harm, pursue, hunt, shoot, wound, kill, 
trap, capture, or collect, or to attempt to engage in any such 
conduct.'' The measure proposed in this rule is consistent with and is 
designed to implement the prohibition on ``take'' under both the ESA 
and the MMPA.
    Beyond the prohibitions on ``take'' in the MMPA and the ESA, no 
protective regulations have been promulgated by NMFS in Alaska for 
humpback whales. Specific restrictions are implemented by the National 
Park Service for waters of Glacier Bay National Park and Preserve (36 
CFR Sec. 13.65). The restrictions within the boundaries of the Park 
include a minimum approach distance of 1/4 mile (440 yards or 0.4 km). 
Approaches to humpback whales within 200 nautical miles (370.4 km) of 
Hawaii may be no closer than 100 yards (91.4 m) (50 CFR 
Sec. 224.103(a)). Approaches to North Atlantic right whales may be no 
closer than 500 yards (457 m) (50 CFR 224.103(b)).
    In 1996, NMFS, Alaska Region, developed Marine Mammal Viewing 
Guidelines (Guidelines) designed to help people avoid ``taking'' a 
marine mammal and to provide protection to marine mammals subjected to 
viewing pressure. The Guidelines detailed appropriate viewing behavior 
from water-based platforms, including a 100 yard (91.4 m) minimum 
approach distance. Guidelines were also established for viewing from 
land and from aircraft. These Guidelines apply to all marine mammals in 
waters off Alaska (cetaceans and pinnipeds, except walrus) under the 
jurisdiction of NMFS. The Guidelines include minimum approach distances 
as well as general

[[Page 39339]]

operating procedures designed to reduce the potential impact to marine 
mammals. These proposed regulations would establish mandatory approach 
limits for humpback whales. The Guidelines would remain in effect for 
approaches to other marine mammals. The Guidelines would also continue 
to apply to other forms of conduct around humpback whales, such as 
suggested time limits on viewing individuals or groups of animals, and 
aircraft altitude.
    The Guidelines have relied on voluntary compliance on the part of 
the public and the charter boat industry since implementation. Other 
than the ability to prosecute ``takes'' under the MMPA and the ESA, the 
Guidelines are not enforceable.
    The viewing pressure has increased substantially over the last 
several years. The charter boat industry has grown in several key 
locations in southeast Alaska and in south central Alaska such that the 
potential impact to humpback whales is much greater than in earlier 
years.
    In response to this recent increase in vessel traffic, NMFS, Alaska 
Region, expanded its public outreach effort. Public meetings were held 
in key coastal communities around the state to increase public 
awareness of and compliance with the Guidelines. The Guidelines 
brochures were also distributed through direct mailouts to affected 
parties, through various media, and at numerous public venues around 
the state. Meetings were also held with charter boat groups to discuss 
the Guidelines as well as to discuss remedies to non-compliance. 
However, after 3 years of an extensive campaign to promote the Marine 
Mammal Viewing Guidelines, non-compliance continues to occur. As public 
viewing increases, the potential for negative impacts to the animals 
increases. After careful evaluation of the overall marine mammal 
viewing situation in Alaska, NMFS has concluded that regulations are 
necessary to manage the threat to humpback whales caused by viewing 
pressure and to minimize the potential impact of increased human 
viewing pressure. Regulations are also necessary to provide an 
enforcement tool. Regulations are considered to be most critical for 
humpback whale watching because, as noted earlier, the nature of 
humpback whale distribution and feeding behaviors concentrates viewing 
pressure on individuals or groups of individuals over extended periods 
of time. The more transitory nature of other cetacean species may make 
them less vulnerable to potential negative impacts of marine mammal 
viewing activity.
    The Alaska Region requested and received individual recommendations 
for specific protective measures from biologists, tour operators, 
members of the public and other interested parties. The recommendations 
included minimum approach distances ranging from 100 to 500 yards (91.4 
to 457 m), speed limits around humpbacks, limits on time spent with an 
animal or group of animals, permitting, certification programs, and 
reductions in underwater noise levels.

Description of Proposed Regulations

    Measures such as those described here might provide elements of 
protection for humpback whales exposed to vessel traffic; however many 
of these measures are also difficult to implement in an effective, 
practical, and enforceable way. Permitting and certification programs 
require a large infrastructure to implement as well as presenting 
equity issues in determining who is permitted/certified and who is not. 
Ambient noise in the underwater environment can often be fairly great, 
and measuring and regulating the relative contribution by certain 
vessel types would be difficult to do. Imposing noise reduction 
requirements on certain vessels could also require significant changes 
to a vessel's construction. Restricting vessel speed and time in an 
area or with a whale was considered problematic due to constraints that 
this measure could place on `` non-target'' vessels.
    Restricting vessel speed and time in an area or with a whale was 
considered problematic at this time. There would need to be some 
relative aspect to speed limits such as a certain speed within defined 
geographic areas or within a certain area surrounding a whale. 
Implementing speed limits is difficult from an enforcement perspective.
    Implementing speed limits within defined geographic areas could be 
unnecessarily restrictive and potentially dangerous in Alaska where 
some of the areas frequented by humpback whales, which involve narrow 
passageways with swift currents and large tidal fluctuations. Applying 
a slow speed limit to these areas could be hazardous for vessels. 
Placing speed limits within a certain area relative to the location of 
the whale (e.g., 5 kts within 300 yds) would be difficult for vessels 
to adhere to as the whales are constantly moving, which would require 
constant fine tuning for speed on the part of the vessel and potential 
greater disturbance to the whale with constant speed changes. Speed 
limits would also be difficult to enforce on a practical scale. 
Imposing time limits on a vessel staying with a whale may also be 
difficult to enforce; particularly in determining what the point of 
reference is; i.e., an individual whale or group of whales and the 
burden of proving that it was the same individual or group, and group 
composition, that the vessel was staying with. Exempting certain types 
of non-motorized vessels from the 200 yard approach restriction was 
considered but is not proposed because of the risk that these types of 
vessels could surprise or startle a whale due to their size and 
silence.
    NMFS is not proposing regulations for minimum altitude for aircraft 
in Alaska because of complications arising from the unique weather 
situation in Alaska. Inclement weather often forces pilots to fly at 
the minimum Federal Aviation Administration altitude, which may be 
lower than the recommendations in the Marine Mammal Viewing Guidelines.
    Some of the preceding recommended measures may, however, be further 
considered in the future.
    The primary objective of implementing regulations of this nature is 
to manage the threat to humpback whales caused by whale watching 
activities, and to minimize disturbance that could adversely affect the 
individual animal or the population. This should be balanced with the 
objective of allowing whale watching activities to occur. Whale 
watching activities can be good platforms for education about cetacean 
behavior and habitat concerns. NMFS believes that the most appropriate 
measure to minimize impacts to humpback whales that would also provide 
a satisfactory viewing opportunity is to implement a minimum approach 
distance for vessels operating around humpback whales.
    NMFS, therefore, proposes to prohibit anyone from approaching, by 
any means including by interception (e.g., placing the vessel in the 
path of a humpback whale so that the whale surfaces within the buffer 
zone) within 200 yards (182.8 m) of a humpback whale in waters off 
Alaska. This measure is designed to manage the threat caused by vessels 
engaged in whale watching so that they do not encroach upon the whales 
and cause a disruption of normal activities and, thereby, implement the 
protections established by the ESA and the MMPA. This measure would 
also provide a greater enforcement ability. Including a prohibition on 
interception in these regulations adopts and codifies the NMFS' policy 
and practice with respect to enforcement of the Hawaii humpback whale 
regulations.
    NMFS is also including two other measures that supplement the 
approach regulation. These measures are

[[Page 39340]]

contained in regulations concerning humpback whales in Hawaii and are 
considered applicable to Alaska. NMFS proposes to prohibit someone from 
causing a vessel or other object to approach within 200 yards (182.8 m) 
of a humpback whale and also from disrupting the normal behavior or 
prior activity of a whale by any other act or omission. The latter 
provision contains some of the elements currently expressed in 
recommended NMFS Marine Mammal Viewing Guidelines.
    The Marine Mammal Viewing Guidelines recommend not approaching 
within 100 yards (91.4 m) of a marine mammal. NMFS believes that the 
100 yard (91.4 m) recommendation in the guidelines is not enough to 
ensure minimal disturbance to humpback whales in Alaska.
    NMFS considered several factors, as outlined here, in determining 
the 200-yard (182.8 m) minimum approach distance. Humpback whales 
return to the same localized areas during the summer months for 
intensive feeding in preparation for the return southward migration and 
a long period of fasting. Studies (Calambokidis, et al., 1997) of North 
Pacific humpback whales indicate that less interchange of animals from 
one site to another occurs in their feeding areas off Alaska than 
occurs in the Hawaiian subareas of their winter range. A greater degree 
of site fidelity in Alaska may make the animals more vulnerable to 
negative pressure. In Alaska, humpback whales may be less inclined to 
move to another site when disturbed, despite potentially negative 
impacts from vessel presence.
    Many of these feeding areas in Southeast Alaska, in particular, are 
easily accessible from coastal communities that support large numbers 
of vessels. Dedicated whale watching operations have increased 
substantially in recent years and represent a constant daily presence 
around some groups of feeding humpback whales. This is the impetus to 
ensure that disturbance during feeding is minimized. Critical feeding 
activity may be interrupted by close approaches by vessels. Given the 
critical need of these animals to obtain the maximum amount of prey 
during a relatively short time period and their site fidelity, 
establishing a minimum approach distance that ensures only a minimum 
disturbance occurs during the summer feeding months is warranted.
    In developing these proposed regulations, NMFS also solicited 
individual comments from the public and the whale watching industry. 
The greatest number of comments suggested speed limits around animals, 
followed by suggestions for minimum approach distances. Some 
respondents, including industry respondents, suggested that the 
distance be increased from the distance in the Guidelines, up to 200 to 
500 yards (182.8 to 457 m). Another significant factor taken into 
consideration was that Baker and Herman (1982, 1989) found that vessels 
can alter the behavior of humpback whales at distances ranging from 400 
m (437.2 yards) to 4000 m (4372 yards) from a whale. Corkeron (1995) 
showed in Hervey Bay, Australia, that for non-calf and calf pods of 
humpback whales, the animals dove more often in the presence of vessels 
when the vessels were within 300 m of the animal. Although these 
studies did not evaluate vessel effects at lesser distances, it is 
reasonable to conclude that closer vessel approaches entail an equal or 
greater likelihood of altering an animal's behavior.
    In addition to these considerations, NMFS conducted informal 
observations of vessel-whale interactions in southeast Alaska. Many of 
the viewing opportunities in southeast Alaska occur in tightly 
constrained areas where the local geography consists of many small 
islands with somewhat shallow and narrow passageways. Several vessels 
grouped at a distance of only 100 yards (91.4 m) from a whale may 
effectively deny a whale an apparent escape route, and also potentially 
restrict its movement during feeding. Finally, Glacier Bay National 
Park and Preserve (Park) regulations that prohibit vessel approaches 
closer than 1/4 mile (440 yards or 0.4 km) to humpback whales were 
considered.
    Within the ``buffer zone'' (i.e., the area between vessels and 
whales, as established by NMFS guidelines or regulations), some degree 
of inadvertent encroachment will likely occur as vessels drift, 
maneuver around each other and whales, and as the whales move. This can 
create a situation in which the resulting distance between a vessel and 
a humpback whale is less than necessary. Extending the limits of this 
``buffer zone'' to 200 yards (182.8 m) by regulation would allow for a 
greater effective distance from the whales while still allowing for 
good viewing opportunities.
    Based on the factors described here, NMFS concluded that the 
minimum approach distance specified in the Alaska Guidelines is 
inadequate and should be increased, but not so far as to appreciably 
diminish the viewing experience. A distance of 200 yards (182.8 m) was 
determined to be the most appropriate to minimize negative impacts to 
humpback whales while still allowing for good viewing opportunities.
    The regulation would require that vessel operators ensure that, as 
they approach a humpback whale, they do not position the vessel closer 
than 200 yards (182.8 m) to the animal. NMFS recognizes that there are 
circumstances when a whale, under its own volition, might come within 
200 yards (182.8 m) of a vessel. This might occur as a vessel idles at 
a specific site, is at anchor or is underway.
    This prohibition is not designed to cause a vessel to retreat from 
the area when a whale approaches the vessel within the 200 yard (182.8 
m) limit. However, a distinction is made between a vessel that is 
positioned to intercept the path of the whale such that the whale 
surfaces within the buffer area. The latter kind of maneuvering would 
be prohibited by the regulation. NMFS believes that requiring vessels 
to engage in avoidance maneuvers to reposition outside of 200 yards 
(182.8 m) in those instances when a whale approaches under its own 
volition would create greater potential for disturbance or physical 
impact than having the vessel remain in its original position. Thus, no 
avoidance measures are proposed.
    All vessels would be prohibited from approaching within 200 yards 
(182.8 m) of a humpback whale.
    The minimum approach distance proposed by NMFS would not supersede 
more conservative measures that apply to the designated waters of 
Glacier Bay National Park and Preserve.

Classification

    This proposed rule has been determined to be significant for 
purposes of Executive Order 12866.
    NMFS has prepared a draft Environmental Assessment/Regulatory 
Impact Review/Initial Regulatory Flexibility Analysis (EA/RIR/IRFA), 
which is available from NMFS (see ADDRESSES). A summary of the analysis 
follows:
    The analysis describes the reasons why the action is being 
considered and contains a succinct statement of the objectives of, and 
the legal basis for, the proposed rule. These are described earlier in 
this preamble.
    The analysis contains a description of and, where feasible, an 
estimate of the number of small entities to which the proposed rule 
will apply. The Small Business Administration establishes criteria for 
defining a ``small entity'' for purposes of the RFA. However there are 
no specific criteria for most of the industry sectors to which this 
proposed regulation would apply. Therefore, NMFS is applying 
conservative fishing

[[Page 39341]]

industry criteria of less than 100 employees (applicable to fishing 
businesses other than processors) and less than $3M gross revenues as a 
threshold measure for definition of ``small entities.'' NMFS does not 
have access to information on the number of employees and the gross 
revenues of the affected industry sectors. As a result, qualitative 
judgements are made about whether the various affected industry sectors 
are ``small entities'' or not. Those industry sectors likely to be 
``small entities'' are owner-operator whale watch businesses, the 
primary focus of the regulation, and eco-tourism companies (in this 
case mostly local kayak tour businesses), as well as some owner-
operator fishing enterprises. Other industry sectors such as the large 
maritime transport industry, the large cruise line industry and most 
tug and barge operations are not likely to be ``small entities.'' The 
only governmental jurisdiction (included because of the operation of 
the state ferry system) to which this regulation would apply is the 
State of Alaska, which, having greater than 50,000 residents, would not 
be considered a small governmental jurisdiction.
    This proposed rule does not contain any reporting or record keeping 
requirements. This proposed rule does not duplicate, overlap or 
conflict with any other relevant Federal rules. The National Park 
Service (NPS) promulgated regulations at 36 CFR 13.65 that establish 
approach rules for humpback whales in Glacier Bay National Park and 
Preserve, Alaska. The NPS regulations set minimum approach distances to 
humpback whales of 1/4 mile within waters of Glacier Bay National Park 
and Preserve. These regulations are more restrictive than the rule 
proposed by NMFS. This proposed rule specifically provides that it will 
``not take precedence over any more restrictive conflicting Federal 
regulation pertaining to humpback whales, including the regulations at 
36 CFR 13.65 that pertain specifically to the waters of Glacier Bay 
National Park and Preserve.
    This proposed rule reflects the preferred method of restricting 
approaches to humpback whales in Alaska. In addition to the proposed 
rule, five alternatives were evaluated:
    Alternative 1. Maintain the status quo. The Marine Mammal Viewing 
Guidelines (Guidelines) developed by NMFS Alaska Region in 1996, 
include minimum approach distances as well as general operating 
procedures designed to reduce the potential impact vessels on marine 
mammals. However, several issues make the current situation ineffective 
in preventing disturbance, as described earlier in this preamble: (1) 
``take'' provisions of the MMPA and ESA may be difficult for the public 
to interpret and, therefore, abide by; (2) ``take'' prohibition is 
difficult to enforce; and (3) because the Guidelines are not codified 
as law, they must be adhered to on a voluntary basis for them to be 
effective. Reports received by the NMFS, Alaska Region, indicate that 
the Guidelines are not adhered to on a consistent basis. Viewing 
pressure, particularly from dedicated whale watch operations and 
recreational boaters, has increased in recent years and is likely to 
continue to increase.
    Alternative 2. Limit approaches to a humpback whale to a minimum 
distance from the whale. Two options available under this alternative 
include: (1) prohibit approaches by any means, including by 
interception within 100 yards (91.4 m) of a humpback whale in waters 
off Alaska; and (2) Prohibit approaches by any means, including by 
interception within 200 yards (182.8 m) of a humpback whale in waters 
off Alaska (Preferred Alternative).
    Based on factors described earlier in this preamble, NMFS has 
concluded that the 100 yard (91.4 m) minimum approach distance 
currently specified in the Alaska Guidelines is inadequate, and that 
200 yards (182.8 m) is the most appropriate distance to minimize 
negative impacts to humpback whales in Alaska, while still allowing for 
good viewing opportunities. The critical need of the whales to obtain 
the maximum amount of prey during a relative short time period and 
their site fidelity may make the animals more vulnerable to negative 
pressure from vessels.
    Further, the potential exists for behavior changes by animals in 
the presence of vessels. Studies have shown alterations in behavior of 
humpback whales caused by vessels within the 400 m to 4000 m range. 
Although these studies did not evaluate vessel effects at distances of 
less than that, it stands to reason that closer vessel approaches 
entail an equal or greater likelihood of altering an animal's behavior.
    Finally, informal observations by NMFS of vessel-whale interactions 
in southeast Alaska indicate that many of the viewing opportunities in 
southeast Alaska occur in tightly constrained areas where the local 
geography consists of many small islands, at a distance of only 100 
yards (91.4 m) for a whale, may often not leave the whale with an 
apparent escape route, and also potentially restrict its movement 
during feeding.
    Alternative 3. Establish protective measures other than approach 
distances. Other potentially protective measures considered by NMFS for 
humpback whales in Alaska waters include: speed limits, limits on time 
spent with an animal(s), permitting or certification programs, and 
reduction in underwater noise. While these measures could provide a 
degree of protection for humpback whales exposed to vessel traffic, 
most are difficult to implement and/or monitor in an effective, 
practical and enforceable way. Permitting and certification programs 
require a large infrastructure to implement and involve equity issues 
in determining who is permitted/certified and who is not. Measuring and 
regulating the relative contribution by certain vessel types would be 
difficult, as would imposing noise reduction requirements on vessels. 
Implementing vessel speed limits could be unnecessarily restrictive and 
potentially dangerous in Alaska where some of the areas frequented by 
humpback whales are narrow passageways with swift currents and large 
tidal fluctuations, and could also be difficult to enforce on a 
practical scale. Imposing time limits on whale watch vessels could also 
be difficult to enforce.
    Alternative 4. Prohibit approaches to humpback whales within a 
certain distance but exempt certain vessel types (e.g., kayaks or non-
motorized vessels. The intuitive reasoning for exempting kayaks and 
other non-motorized vessels from approach regulations is that they are 
less likely to cause a disturbance or negative impact to humpback 
whales. However, because of their size, maneuverability, and silence, 
such vessels can be more likely to surprise or startle a whale(s). This 
may be particularly true when humpback whales are intensively feeding 
and are using noise cues to detect objects at the surface. NMFS, Alaska 
Region, has received, and continues to receive complaints of kayaks 
disturbing whales. Implementing this alternative would also create an 
inequitable situation among boat operators. Alternative 5. Establish 
certain vessel limits within varying distances of a humpback whale. For 
example, different limits on the number of vessels that may be within 
100 yards, 200 yards, etc., of a humpback whale. This alternative may 
be effective at minimizing pressure on humpback whales by dispersing 
the vessels over greater distances. However, a spatial arrangement 
would inadvertently establish prime and exclusive viewing for the 
vessels that are closest, thereby possibly placing some businesses at a 
competitive disadvantage. One way of alleviating

[[Page 39342]]

such competition, would be to establish time limits within the various 
viewing circles to avoid the establishment of exclusive viewing areas 
closest to the whales. However, time limits would be very difficult to 
implement, monitor, and enforce.
    The President has directed Federal agencies to use plain language 
in their communications with the public, including regulations. To 
comply with that directive, NMFS seeks public comment on any ambiguity 
or unnecessary complexity arising from the language used in this 
proposed rule.

List of Subjects in 50 CFR Part 224

    Endangered and threatened species, Exports, Imports, 
Transportation.
    For the reasons set out in the preamble, 50 CFR part 224 is 
proposed to be amended as follows:

PART 224 ENDANGERED MARINE AND ANADROMOUS SPECIES

    1. The authority citation for part 224 continues to read as 
follows:

    Authority: 16 U.S.C. 1531-1543 and 16 U.S.C. 1361 et seq.

    2. In Sec. 224.103, paragraph (a) is revised to read as follows:


Sec. 224.103  Special prohibitions for endangered marine mammals.

    (a) Approaching humpback whales--(1) Hawaii. Except as provided 
part 222, subpart C of this chapter (General permit Procedures), it is 
unlawful for any person subject to the jurisdiction of the United 
States to commit, to attempt to commit, or cause to be committed, 
within 200 nautical miles (370.4 km) of the Islands of Hawaii, any of 
the following acts with respect to humpback whales (Megaptera 
novaeangliae):
    (i) Operate any aircraft within 1,000 feet (304.8 m) of any 
humpback whale;
    (ii) Approach, by any means within 100 yards (91.4 m) of any 
humpback whale;
    (iii) Cause a vessel or other object to approach within 100 yards 
(91.4 m) of a humpback whale; or
    (iv) Disrupt the normal behavior or prior activity of a whale by 
any other act or omission. A disruption of normal behavior may be 
manifested by, among other actions on the part of the whale, a rapid 
change in direction or speed; escape tactics such as prolonged diving, 
underwater course changes, underwater exhalation, or evasive swimming 
patterns; interruptions of breeding, nursing, or resting activities; 
attempts by a whale to shield a calf from a vessel or human observer by 
tail swishing or by other protective movement; or the abandonment of a 
previously frequented area.
    (2) Alaska. Except as provided in part 222, subpart C of this 
chapter (General Permit Procedures), it is unlawful for any person 
subject to the jurisdiction of the United States to commit, to attempt 
to commit, to solicit another to commit, or cause to be committed, 
within 200 nautical miles (370.4 km) of Alaska, any of the acts in 
paragraphs (a)(2)(i) through (iii) of this section with respect to 
humpback whales (Megaptera novaeangliae):
    (i) Approach, by any means, including by interception, within 200 
yards (182.8 m) of any humpback whale;
    (ii) Cause a vessel or other object to approach within 200 yards 
(182.8 m) of a humpback whale; or
    (iii) Disrupt the normal behavior or prior activity of a whale by 
any other act or omission, as described in paragraph (a)(1)(iv) of this 
section.
    (iv) These regulations shall not take precedence over any more 
restrictive conflicting Federal regulation pertaining to humpback 
whales, including the regulations at 36 CFR 13.65 that pertain 
specifically to the waters of Glacier Bay National Park and Preserve.
* * * * *

    Dated: June 19, 2000.
Penelope D. Dalton,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
[FR Doc. 00-16113 Filed 6-23-00; 8:45 am]
BILLING CODE 3510-22-F