39336 Federal Register / Vol. 65, No. 123 / Monday, June 26, 2000 / Proposed Rules

comments, commenters should send an

e-mail message to ecfs@fcc.gov and

include ‘‘get form <your e-mail

address>’’ in the body of the message.

A sample form and directions will be

sent in reply. Parties who choose to file

by paper must file an original and four

copies of each filing with the

Commission’s Secretary, Magalie Roman

Salas, Office of the Secretary, Federal

Communications Commission, 445—

12th Street, S.W., TW–A325,

Washington, D.C. 20554. In addition,

one copy of each pleading must be filed

with International Transcription

Services (ITS), the Commission’s

duplicating contractor, at its office at

1231—20th Street, N.W., Washington,

D.C. 20036, and one copy with the

Chief, Competitive Pricing Division,

445—12th Street, S.W., TW—A225,

Washington, D.C. 20554.

List of Subjects

47 CFR Part 1

Administrative practice and

procedure, Communications common

carriers, Telecommunications.

47 CFR Part 61

Access Charges, Communications

common carriers, Telephone.

47 CFR Part 69

Communications common carriers,

Telephone.

Federal Communications Commission.

Magalie Roman Salas,

Secretary.

[FR Doc. 00–16166 Filed 6–23–00; 8:45 am]

BILLING CODE 6712–01–U

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.

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

Federal Register / Vol. 65, No. 123 / Monday, June 26, 2000 / Proposed Rules 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; nonsynchronized 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

39338 Federal Register / Vol. 65, No. 123 / Monday, June 26, 2000 / Proposed Rules

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 § 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

§ 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

Federal Register / Vol. 65, No. 123 / Monday, June 26, 2000 / Proposed Rules 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 nonmotorized 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

39340 Federal Register / Vol. 65, No. 123 / Monday, June 26, 2000 / Proposed Rules

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 noncalf 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

Federal Register / Vol. 65, No. 123 / Monday, June 26, 2000 / Proposed Rules 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

39342 Federal Register / Vol. 65, No. 123 / Monday, June 26, 2000 / Proposed Rules

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 § 224.103, paragraph (a) is

revised to read as follows:

§ 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

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Parts 300 and 679

[Docket No. 000616184–0184–01; I.D.

050500A]

RIN 0648–AK74

Fisheries of the Exclusive Economic

Zone Off Alaska; Prohibition of

Groundfish Fishing and Anchoring in

the Sitka Pinnacles Marine Reserve

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Proposed rule; request for

comments.

SUMMARY: NMFS proposes regulations to

implement Amendment 59 to the

Fishery Management Plan for

Groundfish of the Gulf of Alaska (FMP),

and to make changes to the regulations

governing the halibut fishery. This

action would designate a 2.5 square

nautical mile (nm) area of Federal ocean

water above and surrounding the

Pinnacles off Cape Edgecumbe in the

Gulf of Alaska (GOA) as the Sitka

Pinnacles Marine Reserve. This area,

which is an unusually productive and

highly fragile marine habitat, would be

closed to fishing for groundfish or

anchoring by vessels holding a Federal

fisheries permit. The area would also be

closed to commercial or sport fishing for

Pacific halibut, and to anchoring by

sport or commercial halibut vessels. The

intent of this action is to protect an area

containing important fish habitat from

degradation due to fishing and

anchoring impacts, and to create a

groundfish reserve.

DATES: Comments on the proposed rule

must be received by August 10, 2000.

ADDRESSES: Comments must be sent to

Susan Salveson, Assistant Regional

Administrator, Sustainable Fisheries

Division, Alaska Region, NMFS, P.O.

Box 21668, Juneau, AK 99802–1668,

Attn: Lori Gravel. Comments may also

be sent via facsimile (fax) to 907–586–

7465. Comments will not be accepted if

submitted via e-mail or Internet. Courier

or hand delivery of comments may be

made to NMFS in the Federal Building,

Room 453, Juneau, AK. Copies of

Amendment 59 and the Environmental

Assessment/Regulatory Impact Review/

Initial Flexibility Analysis (EA/RIR/

IRFA) prepared for the amendment by

the North Pacific Fishery Management

Council (Council) and NMFS are

available from the Council, 605 West 4th

Avenue, Suite 306, Anchorage, AK

99501–2252; telephone 907–271–2809.

FOR FURTHER INFORMATION CONTACT:

Nina Mollett, 907–586–7462, fax 907–

586–7465, e-mail

nina.mollett@noaa.gov.

SUPPLEMENTARY INFORMATION:

Regulations governing the domestic

groundfish fisheries appear at 50 CFR

parts 600 and 679. Regulations

governing the domestic halibut fisheries

appear at 50 CFR 300.60 to 300.65.

These regulations supplement the

annual fishery management measures

adopted by the International Pacific

Halibut Commission (IPHC) under the

Convention between the United States

and Canada for the Preservation of the

Halibut Fishery of the Northern Pacific

Ocean and Bering Sea.

The Council has submitted

Amendment 59 to the Secretary of

Commerce (Secretary) for review. NMFS

published a notice of availability (NOA)

of the FMP amendment on May 12, 2000

(65 FR 30559), with comments on the

FMP amendment invited through July

11, 2000. Written comments may

address the FMP amendment, the

proposed rule, or both, but must be