88262 Federal Register / Vol. 88, No. 244 / Thursday, December 21, 2023 / Rules and Regulations 

provision specifies that an agency may 

waive the publication and comment 

requirements only if urgent and 

compelling circumstances make 

compliance impracticable. Section 

1.501–3 of the Federal Acquisition 

Regulation (FAR) further provides that 

proposed agency acquisition regulations 

need not be published for comment 

when the rule does not constitute a 

significant revision, and FAR 1.301 

requires publication of proposed 

changes to agency acquisition 

regulations for public comment in 

conformance with FAR subpart 1.5 

(including FAR 1.501–3) and 41 U.S.C. 

1707. 

The Department has determined that 

publication of this rule for notice and 

comment is not required pursuant to 

these authorities. The correction of the 

erroneous cross reference is an 

administrative change that will not have 

a significant effect on any party. The 

correction will not impose a significant 

cost, or have a significant administrative 

impact, on contractors or offerors. This 

final rule merely updates 1252.239–92 

to reference the correct TAR clause. 

Executive Orders 12866 and 13563 

The Office of Management and Budget 

(OMB) has determined that this rule is 

not a significant regulatory action under 

Executive Order 12866. Therefore, OMB 

did not review the final rule. 

Regulatory Flexibility Act 

The Secretary hereby certifies that 

this final rule would not have a 

significant economic impact on a 

substantial number of small entities as 

they are defined in the Regulatory 

Flexibility Act (5 U.S.C. 601–612). The 

factual basis for this certification 

follows. This rulemaking does not 

change DOT’s policy regarding small 

businesses, does not have an economic 

impact on individual businesses, and 

does not impose any increased or 

decreased costs on small business 

entities. Instead, it is merely an 

administrative correction to an 

erroneous cross reference. Therefore, 

pursuant to 5 U.S.C. 605(b), a regulatory 

flexibility analysis is not required. 

Paperwork Reduction Act 

This final rule does not contain any 

information collection requirements that 

require approval by the Office of 

Management and Budget under the 

Paperwork Reduction Act (44 U.S.C. 

Chapter 35). 

Congressional Review Act 

This rule has not been designated by 

the Office of Information and Regulatory 

Affairs as a major rule pursuant to the 

Congressional Review Act (5 U.S.C. 801 

et seq.; see 5 U.S.C. 804(2)). 

List of Subjects in 48 CFR Part 1252 

Government procurement, Reporting 

and recordkeeping requirements. 

Signing Authority 

Signed under authority provided by 5 

U.S.C. 301; 41 U.S.C. 1121(c)(3); 41 

U.S.C. 1702; and 48 CFR 1.301 through 

1.304; 1.501–3, and 49 CFR 1.38 in 

Washington, DC, on December 14, 2023. 

Philip A. McNamara, 

Assistant Secretary for Administration, U.S. 

Department of Transportation. 

For the reasons set out in the 

preamble, DOT amends 48 CFR part 

1252 as set forth below. 

PART 1252—SOLICITATION 

PROVISIONS AND CONTRACT 

CLAUSES 

■ 1. The authority citation for part 1252 

continues to read as follows: 

Authority: 5 U.S.C. 301; 41 U.S.C. 

1121(c)(3); 41 U.S.C. 1702; and 48 CFR 1.301 

through 1.304. 

Subpart 1252.2—Text of Provisions 

and Clauses 

1252.239–92 [Amended] 

■ 2. Amend section 1252.239–92 in 

paragraph (b) of the provision by 

removing ‘‘1252.239–81, Information 

and Communication Technology 

Accessibility’’ and adding in its place 

‘‘1252.239–93, Information and 

Communication Technology 

Accessibility’’. 

[FR Doc. 2023–27890 Filed 12–20–23; 8:45 am] 

BILLING CODE 4910–9X–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 216 

[Docket No. 231214–0303] 

RIN 0648–BF98 

Approach Regulations for Humpback 

Whales in Waters Surrounding the 

Hawaiian Islands Under the Marine 

Mammal Protection Act 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Department of Commerce. 

ACTION: Final rule. 

SUMMARY: NMFS issues this final rule 

‘‘Approach Regulations for Humpback 

Whales in Waters Surrounding the 

Islands of Hawaii under the Marine 

Mammal Protection Act’’ under the 

Marine Mammal Protection Act 

(MMPA). This rule prohibits the ‘‘take’’ 

of humpback whales (Megaptera 

novaeangliae), which means ‘‘to harass, 

hunt, capture, or kill, or attempt to 

harass, hunt, capture, or kill any marine 

mammal,’’ within 200 nautical miles 

(nmi) (370.4 kilometers (km)) of the 

islands of Hawaii from the detrimental 

effects resulting from approach by 

humans. 

DATES: This rule is effective January 22, 

2024. 

ADDRESSES: Public comments and other 

supporting materials are available at 

www.regulations.gov identified by 

docket number NOAA–NMFS–2016– 

0046 or by submitting a request to the 

Protected Resources Division, National 

Marine Fisheries Service, Pacific Islands 

Regional Office, 1845 Wasp Blvd., Bldg. 

176, Honolulu, HI 96818, Attn: 

Humpback Whale Approach 

Regulations. 

FOR FURTHER INFORMATION CONTACT: 

Elena Duke, NMFS, Pacific Islands 

Regional Office, elena.duke@noaa.gov; 

808–725–5085. 

SUPPLEMENTARY INFORMATION: 

Background 

Protections for humpback whales in 

Hawaii were initially promulgated 

under the ESA, after NMFS determined 

that guidelines published in 1979 as a 

‘‘Notice of Interpretation of ‘Taking by 

Harassment’ in Regard to Humpback 

Whales in the Hawaiian Islands Area’’ 

(44 FR 1113; January 4, 1979) proved 

ineffective in protecting humpback 

whales in Hawaii from tour vessel 

operators approaching closer than the 

recommended viewing guidelines. The 

ESA rule that protected humpback 

whales in Hawaii was published on 

November 23, 1987 as an interim final 

rule (52 FR 44912), and then was 

finalized on January 19, 1995 (60 FR 

3775). That rule made it unlawful to 

operate an aircraft within 1,000 feet (ft), 

approach by any means within 100 

yards (yds), cause a vessel or another 

object to approach within 100 yds, or 

disrupt the normal behavior or prior 

activity of a humpback whale by any 

other act or omission. Regulations 

regarding the implementation of the 

ESA were then reorganized on March 

23, 1999, with the section containing 

the approach regulations for humpback 

whales in Hawaii, changed from 50 CFR 

222.31 to 50 CFR 224.103 (64 FR 14052). 

NMFS published a final ESA listing 

rule on September 8, 2016 (81 FR 

62259) that revised the species-wide 


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listing and separated humpback whales 

into 14 DPSs. In that rule, the humpback 

whales that use the waters surrounding 

Hawaii as their breeding grounds are 

identified as the ‘‘Hawaii DPS,’’ which 

is not listed under the ESA as 

endangered or threatened and, therefore, 

is no longer protected under the ESA. 

Humpback whales in Hawaii would 

have continued to be protected by 

approach regulations only within the 

boundaries of the Hawaiian Islands 

Humpback Whale National Marine 

Sanctuary (HIHWNMS) under the 

National Marine Sanctuaries Act (15 

CFR 922.184(a)(1) and (2) and (b)). 

However, NMFS determined that, 

although unpermitted take is prohibited 

by the MMPA for humpback whales or 

any marine mammals in any location, 

specific regulations were warranted to 

address approach and human 

interactions that result in the take of 

humpback whales in Hawaii. These 

specific regulations were warranted 

because: (1) humpback whales are 

charismatic and sought out by local 

community members and tourists; (2) 

commercial and recreational whale 

watchers and other tour operators are 

expected to pursue humpback whales 

for close encounters absent any 

protections; (3) increasing numbers of 

both humpback whales and humans 

using Hawaiian waters raises the 

likelihood of human-whale interactions; 

and (4) approaching whales during the 

breeding, calving, and nursing season is 

likely to cause a disturbance that could 

adversely affect reproduction and 

development of individuals. 

Therefore, an interim final rule was 

published on September 8, 2016, to 

ensure that there was no lapse in 

protection for humpback whales in 

Hawaii once the final ESA listing rule 

became effective on October 11, 2016. 

The interim final rule prohibited 

operating an aircraft within 1,000 ft 

(304.8 meters (m)) of a humpback 

whale, approaching within 100 yds 

(91.4 m) of a humpback whale by any 

means, causing a vessel, person or 

another object to approach within 100 

yds (91.4 m) of a humpback whale, or 

approaching a humpback whale by 

interception (i.e., placing an aircraft, 

vessel, person, or another object in the 

path of a humpback whale so that the 

whale approaches within a restricted 

distance). The regulations also 

prohibited the disruption of normal 

behavior or prior activity of a humpback 

whale by any act or omission. Certain 

vessels and activities were exempted 

from the prohibition. 

This final rule serves to clarify the 

interim final rule by amending 

regulatory language in paragraphs (a)(5) 

and (b) of 50 CFR 216.19. The changes 

to 50 CFR 216.19 include a punctuation 

correction in paragraph (a)(5), a word 

change in paragraph (b)(3), and further 

clarification of exception 1, described in 

paragraph (b)(1). This final rule also 

amends the regulatory language in 50 

CFR 216.19(b)(4) to clarify the scope of 

NMFS-permitted or authorized activities 

that may fall under that exemption. The 

exemption under 50 CFR 216.19(b)(4) in 

the interim final rule reads ‘‘vessels or 

persons authorized under permit or 

authorization issued by NMFS to 

conduct scientific research or response 

efforts that may result in taking of 

humpback whales.’’ However, the 

exemption as worded in the interim rule 

leaves out other potentially permitted or 

authorized activities. The intent of the 

rule was not to preclude the issuance of 

permits or authorizations for purposes 

of scientific research, enhancement, 

educational or commercial photography, 

or during emergency response of 

stranded or entangled marine mammals, 

or persons authorized to incidentally 

take humpback whales consistent with 

the requirements of the MMPA. 

Therefore, NMFS is amending 50 CFR 

216.19(b)(4) to read, ‘‘Activities 

authorized through a permit or 

authorization issued by the National 

Marine Fisheries Service to take 

humpback whales.’’ 

Scope and Applicability 

Applications to All Humpback Whales 

Under the MMPA, the regulations 

apply to all humpback whales found in 

the action area, as described below. 

Geographic Action Area 

The action area for this rule is limited 

to the waters within 200 nmi (370.4 km) 

from the shore of the islands of Hawaii. 

The islands of Hawaii consist of the 

entire Hawaiian Archipelago, including 

the main Hawaiian Islands (Hawai1i, 

Maui, Kaho1olawe, La ̄na1i, Moloka1i, 

O1ahu, Kaua1i, and Ni1ihau) and the 

Northwestern Hawaiian Islands. 

Applications to All Forms of Approach 

The regulations apply to all forms of 

approach in water and air. Forms of 

approaching humpback whales include, 

but are not limited to, operating a 

manned or unmanned motorized, nonmotorized, self-propelled, humanpowered, or submersible vessel; 

operating a manned aircraft; operating 

an unmanned aircraft system (UAS) or 

drone; and swimming at the water 

surface or underwater (i.e., SCUBA or 

free diving). UASs are, at minimum, 

objects, and therefore UASs are not to 

approach humpback whales within 100 

yds (91.4 m) without a permit. NMFS 

may change this determination in the 

future if scientific information becomes 

available showing humpback whales 

react to UASs within or beyond 100 yds. 

Approach Prohibitions 

The regulations prohibit people from 

operating aircraft within 1,000 ft (304.8 

m) or approaching by any means within 

100 yds (91.4 m) of humpback whales 

within the action area described above 

(see Geographic Action Area). This 

includes an approach by interception 

(i.e., placing an aircraft, vessel, person, 

or another object in the path of a 

humpback whale so that the whale 

approaches within the restricted 

distance), also known as ‘‘leapfrogging.’’ 

The regulations also prohibit disrupting 

the normal behavior or prior activity of 

a humpback whale. Disruption of 

normal behavior can include, but is not 

limited to, 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 movements; or the 

abandonment of a previously frequented 

area. 

Exceptions 

The following specific categories are 

exempt from the regulations: 

(1) Federal, State, or local government 

vessels, aircraft, personnel, and assets, 

when necessary, in the course of 

performing official duties; 

(2) Vessel operations necessary to 

avoid an imminent and serious threat to 

a person, vessel, or the environment; 

(3) Vessels restricted in their ability to 

maneuver that, because of this 

restriction, are not able to comply with 

approach restrictions; or 

(4) Activities authorized through a 

permit or authorization issued by the 

National Marine Fisheries Service to 

take humpback whales. 

Comments and Responses 

NMFS solicited public comments on 

the interim final rule and received 10 

comments. Several comments contained 

similar recommendations and/or 

questions and are consolidated. In 

response to comments, NMFS concurred 

with comments of support and clarified 

why NMFS is taking this action specific 

to humpback whales and not all 

cetaceans. NMFS provided rationale for 

not including regulations on speed, 

approach angle, and engine operating 

procedures in this rule making. NMFS 


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88264 Federal Register / Vol. 88, No. 244 / Thursday, December 21, 2023 / Rules and Regulations 

provided clarification regarding 

enforcement of this regulation, provided 

information on the classification of UAS 

systems, and prohibitions of using UAS 

within 100 yards of humpback whales. 

Responses to comments addressing 

significant issues are summarized 

below. 

Comment 1: Four commenters 

expressed support for the interim final 

rule, with two of these commenters 

specifically stating support for making 

100 yds (91.4 m) the regulatory 

approach distance. 

Response: NMFS concurs. 

Comment 2: One commenter 

requested clarification on how NMFS 

will enforce this approach regulation, 

how enforcement will contend with 

efforts by restricted groups to adjust 

their services/methodologies to conform 

to the rules of exemption, and how 

NMFS will manage those situations 

where an innocent party unwittingly 

violates the restrictions. 

Response: Enforcement will be 

accomplished via all available means, 

including through land and sea patrols 

conducted by the NOAA Office of Law 

Enforcement, the United States Coast 

Guard, and State partners who work 

with NMFS on outreach and 

enforcement under a cooperative joint 

enforcement agreement (i.e., State of 

Hawaii’s Division of Conservation and 

Resources Enforcement (DOCARE), as 

well as through cases developed 

through evidence submitted by citizens 

observing violations. 

Regarding exceptions or exemptions 

to this rule, for exceptions to apply, a 

person must be a Federal, State, or local 

government official operating in the 

course of their official duties; avoiding 

an imminent and serious threat to a 

person, vessel, or the environment; 

authorized under permit or other 

authorization issued by NMFS; or 

operating a vessel restricted in its ability 

to maneuver. Additional details 

regarding exceptions to these 

regulations are provided in the final rule 

below in (b) Exceptions. Any person 

claiming the benefit of any exemption, 

exception, or permit has the burden of 

proving that the exemption or exception 

is applicable. Enforcement officials will 

consider and collect, as part of the 

normal investigative process, all 

available evidence, including evidence 

tending to support a party’s claim to be 

exempt from the rule. 

Regarding intent, the MMPA is a strict 

liability statute, meaning the intention 

of a party violating a regulation issued 

under the MMPA is not relevant for 

purposes of liability. Nonetheless, the 

Agency does consider the individual 

circumstances of each violation in 

deciding on an appropriate enforcement 

response and assessing any penalties. 

Under the Agency’s penalty policy, 

available to the public at http://

www.gc.noaa.gov/enforce-office3.html, 

any penalties assessed for unintentional 

violations are assessed at a lower level 

than penalties assessed for intentional 

violations. 

Comment 3: NMFS should extend this 

100-yd approach regulation to all 

cetaceans protected by the MMPA. 

Response: We appreciate your 

concern for all cetaceans. In general, the 

MMPA prohibits the take of marine 

mammals with section 3(13) (16 U.S.C. 

1362(13)) of the MMPA defining the 

term ‘‘take’’ as ‘‘to harass, hunt, capture, 

or kill, or attempt to harass, hunt, 

capture, or kill any marine mammal.’’ 

These approach regulations are specific 

to humpback whales in Hawaii because 

of geographic and species-specific 

factors, including, but not limited to, (1) 

the fact that humpback whales are 

sought out for encounters by the local 

community and tourists; (2) safety 

concerns for both whales and humans 

created by a desire of whale watch and 

other tour operators, as well as 

individuals, to get as close as possible 

to the whales; (3) the importance of the 

habitat around the Hawaiian Islands for 

breeding, calving, and nurturing young; 

and (4) the increasing numbers of both 

humpback whales and humans that use 

Hawaiian waters. In short, while 

unpermitted take of marine mammals 

continues to be prohibited by the 

MMPA, NMFS believes that specific 

regulations aimed at approach and 

human interactions that result in the 

take of humpback whales in Hawaii are 

warranted. 

Comment 4: Several commenters 

expressed concern regarding how this 

regulation will affect the collection of 

up-close photos and video footage if 

such activities are regulated at distances 

closer than 100 yds. Specifically, these 

commenters suggested that UASs or 

drones could be allowed to collect upclose footage while posing minimal risk 

to the humpback whales being observed. 

Two of these commenters noted that the 

sound of boat engines even at over 100 

yds away can produce more vibrations 

and are far louder than some UASs, 

which generate noise that is very low 

and of a frequency that would not 

penetrate the water to any significant 

depth. 

Response: As described in the interim 

final rule, research suggests that close 

human interaction poses a significant 

threat to the health and social structure 

of humpback whales. These threats can 

include collisions, noise, visual, and 

other effects from interactions with 

vessels, aircraft, persons, or objects. 

While some UASs create less noise than 

vessels, there are situations in which 

noise and visual effects have the 

potential to disturb the whales because 

of the UASs use within 100 yds of 

humpback whales. Examples of some 

situations include the use of multiple 

UASs around a single whale or groups 

of whales and the use of UASs by 

inexperienced users. As a result, NMFS 

has determined that UASs are, at a 

minimum, ‘‘objects’’ and therefore are 

not permitted to approach humpback 

whales within 100 yds in Hawaiian 

waters (within 200 nmi of the islands of 

Hawaii). 

Specifically, regarding the acquisition 

of up-close footage of whales, the 

regulations include exceptions to the 

100-yd approach regulations for 

humpback whales in Hawaii, including 

an exception for vessels or persons 

authorized under permit or 

authorization issued by NMFS to take 

humpback whales for purposes of 

scientific research, enhancement 

educational or commercial photography, 

or during emergency response of 

stranded or entangled marine mammals; 

or persons authorized to incidentally 

take humpback whales. 

Comment 5: NMFS should consider a 

drone or UAS to be an aircraft, rather 

than an object, therefore prohibiting 

their use within 1,000 ft of humpback 

whales. 

Response: NMFS understands that 

UASs are considered ‘‘aircraft’’ by 

Federal agencies, such as the Federal 

Aviation Administration. UASs, at least 

in their current form, are relatively 

small and generate little noise and are 

therefore unlikely to disturb humpback 

whales if kept at a distance of 100 yds 

from the whales. In the context of this 

rule and, considering available data 

regarding the effects of UASs on 

humpback whales and other marine 

mammals (see the National 

Environmental Policy Act (NEPA) 

Environmental Assessment (EA) 

prepared for the interim final rule), 

NMFS has determined that UASs are, at 

a minimum, considered ‘‘objects’’ and 

therefore are not to approach humpback 

whales within 100 yds without a permit. 

NMFS may change this determination in 

the future if scientific information 

becomes available showing whales react 

to UASs within or beyond 100 yds. 

Comment 6: The approach regulations 

for humpback whales should specify 

vessel operating procedures such as the 

guidance developed for the HIHWNMS 

and whale-watching guidance 

developed by NMFS for humpback 

whales in the northeastern United 

States. The operating procedures should 


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Federal Register / Vol. 88, No. 244 / Thursday, December 21, 2023 / Rules and Regulations 88265 

include guidance on vessel speed limits 

depending on the distance from a 

humpback whale, the angles at which a 

vessel can approach and depart from a 

humpback whale, and engine operating 

procedures within various distances. 

Response: The guidelines referenced 

in this comment contain various 

measures that are designed to protect 

humpback whales and other marine 

mammals. NMFS agrees that all of the 

guidelines can be useful in protecting 

humpback whales and other large whale 

species. However, NMFS did not 

include in the regulations any 

provisions regarding speed, approach 

angle, and engine operating procedures 

within various distances because the 

specifics of such provisions vary 

according to different situations. 

Therefore, these provisions are more 

appropriate as guidelines rather than 

regulations, which must be followed at 

all times except in limited situations 

(i.e., the exceptions to the rule). These 

general guidelines may be used to 

supplement the minimum approach 

regulations, but the regulations must be 

complied with at all times unless an 

exception applies. 

Classification 

National Environmental Policy Act 

(NEPA) 

NMFS prepared an EA pursuant to 

NEPA (42 U.S.C. 4321, et seq.) to 

support the interim final rule published 

on September 8, 2016. NMFS also 

provided an opportunity for public 

comment on the EA; however, no public 

comments were received. The EA 

contains an analysis of two no-action 

alternatives and two action alternatives. 

Several elements were common to both 

of the action alternatives analyzed, 

including the preferred alternative 

described in the interim final rule, and 

several exceptions that would apply to 

the alternatives. Because the preferred 

alternative in the interim final rule is 

the same as in this final rule, an updated 

NEPA document is unnecessary. The EA 

with the Finding of No Significant 

Impact is available for download on the 

NMFS Pacific Islands Region website 

https://www.fisheries.noaa.gov/species/ 

humpback-whale. 

Executive Order 12866 

This final rule has been determined to 

be not significant for purposes of 

Executive Order (E.O.) 12866. 

Paperwork Reduction Act 

The purpose of the Paperwork 

Reduction Act is to minimize the 

paperwork burden for individuals, small 

businesses, educational and nonprofit 

institutions, and other persons resulting 

from the collection of information by or 

for the Federal government. The final 

rule includes no new collection of 

information, so further analysis is not 

required. 

Coastal Zone Management Act 

NMFS determined that the interim 

final rule would be implemented in a 

manner consistent, to the maximum 

extent practicable, with the enforceable 

policies of the approved coastal zone 

management program of the State of 

Hawaii. The State of Hawaii’s Coastal 

Zone Management Program (the 

responsible State agency under section 

307(c)(1) of the Federal Coastal Zone 

Management Act (CZMA) of 1972) 

provided a letter, dated May 13, 2016, 

concurring with NMFS’s federal 

consistency determination. Because the 

interim final rule is substantively the 

same as this final rule, no updated 

CZMA documentation is necessary. 

Executive Order 13132, Federalism 

E.O. 13132 requires agencies to take 

into account any federalism impacts of 

regulations under development. It 

includes specific directives for 

consultation in situations in which a 

regulation will preempt State law or 

impose substantial direct compliance 

costs on State and local governments 

(unless required by statute). Neither of 

those circumstances applies to this final 

rule; therefore, this action does not have 

federalism implications as that term is 

defined in E.O. 13132. 

Information Quality Act 

Pursuant to section 515 of Public Law 

106–554 (the Information Quality Act), 

this information product has undergone 

a pre-dissemination review by NMFS. 

The signed Pre-dissemination Review 

and Documentation Form is on file with 

the NMFS Pacific Islands Regional 

Office (see ADDRESSES). 

Regulatory Flexibility Act 

Under the Regulatory Flexibility Act 

(RFA) (5 U.S.C. 601 et seq.) as amended 

by the Small Business Regulatory 

Enforcement Fairness Act (SBREFA) of 

1996, whenever an agency publishes a 

notice of rulemaking for any proposed 

or final rule, it must prepare and make 

available for public comment a 

Regulatory Flexibility Analysis 

describing the effects of the rule on 

small entities, i.e., small businesses, 

small organizations, and small 

government jurisdictions. The final 

regulations are exempt from the 

requirements of the Regulatory 

Flexibility Act because NMFS 

determined that notice and public 

comment when publishing the interim 

final rule would have been 

impracticable and against the public 

interest. 

List of Subjects in 50 CFR Part 216 

Administrative practice and 

procedure, Marine mammals. 

Dated: December 14, 2023. 

Samuel D. Rauch, III, 

Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service. 

For the reasons set out in the 

preamble, NMFS amends 50 CFR part 

216 as follows: 

PART 216—REGULATIONS 

GOVERNING THE TAKING AND 

IMPORTING OF MARINE MAMMALS 

■ 1. The authority citation for 50 CFR 

part 216 continues to read as follows: 

Authority: 16 U.S.C. 1361, et seq., unless 

otherwise noted. 

■ 2. In § 216.19, revise paragraphs (a)(5) 

and (b) to read as follows: 

§ 216.19 Special restrictions for humpback 

whales in waters surrounding the islands of 

Hawaii. 

(a) * * * 

(5) 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 movements; or the 

abandonment of a previously frequented 

area. 

(b) Exceptions. The prohibitions of 

paragraph (a) of this section do not 

apply to: 

(1) Federal, State, or local government 

vessels, personnel, and assets, when 

necessary, in the course of performing 

official duties; 

(2) Vessel operations necessary to 

avoid an imminent and serious threat to 

a person, vessel, or the environment; 

(3) Vessels restricted in their ability to 

maneuver that, because of this 

restriction, are not able to comply with 

approach restrictions; or 

(4) Activities authorized through a 

permit or authorization issued by the 

National Marine Fisheries Service to 

take humpback whales. 

* * * * * 

[FR Doc. 2023–28091 Filed 12–20–23; 8:45 am] 

BILLING CODE 3510–22–P 


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