29502 Federal Register / Vol. 66, No. 105 / Thursday, May 31, 2001 / Rules and Regulations

distance that extended-haul trains may

travel between inspections, and the

meaning of certain language in the final

rule. The fact that there are many issues

that various organizations desire FRA to

reconsider is not surprising, given the

complexity of the final rule and the

large number of issues it addresses. FRA

will give each of these issues full

consideration and issue a subsequent

document explaining how it has

addressed each issue and making any

necessary amendments to the final rule.

FRA hopes to issue such a

comprehensive document concerning

all issues raised in the petitions during

the summer of 2001, but to the extent

any particular issues require more time

to resolve, the agency may address those

separately at a later date.

Of the many issues raised in the

petitions, only one issue concerns a

provision for which the compliance date

is scheduled to be May 31, 2001. This

document concerns that issue. AAR’s

petition sought reconsideration of a

provision requiring certain information

about the testing of a two-way end-oftrain (EOT) device to be provided to a

locomotive engineer. The final rule

requires that, if the person conducting

the test of the two-way EOT is someone

other than a member of the train crew,

the locomotive engineer must be

notified of the name of the person

conducting the test and a record must be

maintained, in the cab of the controlling

locomotive, containing the name of that

individual See 66 FR 4210, § 232.409(c).

Under the provisions of the final rule,

the compliance date for this and other

requirements of Subpart E is May 31,

2001. See 66 FR 4193, § 232.1(b), and

document on delay of effective date, 66

FR 9906 (February 12, 2001). To allow

FRA an opportunity to respond to this

issue without imposing a burden on the

industry that might soon be withdrawn

if the petition is granted, this document

delays the compliance date of this

specific requirement, from May 31,

2001, until further notice. If the petition

is not granted with respect to that issue,

the document explaining that decision

will set a new compliance date for that

provision. If the petition is granted, of

course, there will be no need for any

compliance date.

FRA emphasizes that this delay of

compliance date applies only to the

requirement to provide and retain the

name of the person conducting the

inspection of a two-way EOT device.

The delay does not apply to the

provisions for notification and retention

of the other information regarding the

inspection of a two-way EOT device

required by the final rule. See 66 FR

4210, § 232.409(c). Nor does the delay

apply to any other provision of the final

rule, including other provisions

addressed in AAR’s petition and the

petitions filed by other organizations.

None of those other issues on which

reconsideration is sought involves

provisions having a compliance date in

the near future. FRA anticipates

resolving those petitions long before the

compliance dates set forth in the final

rule, which for most provisions is April

1, 2004.

List of Subjects in 49 CFR Part 232

Penalties, Railroad power brakes,

Railroad safety, Two-way end-of-train

devices.

The Rule

In consideration of the foregoing, 49

CFR part 232, as revised at 66 FR 4210

and delayed at 66 FR 9906, effective

May 31, 2001, is amended as follows:

PART 232—[AMENDED]

1. The authority citation for part 232

continues to read as follows:

Authority: 49 U.S.C. 20102–20103, 20107,

20133, 20141, 20301–20303, 20306, 21301–

21302, 21304; 49 CFR 1.49(c), (m).

2. In § 232.409(c), add before the

period at the end of the last sentence the

following: ‘‘, except that compliance

with the following provision of this

paragraph will not be required until

further notice published in the Federal

Register: the provision that the

locomotive engineer shall be provided

with the name of the person conducting

the test and that a written or electronic

record of the notification of the name of

the person conducting the test shall be

maintained in the cab of the controlling

locomotive’’.

Issued in Washington, D.C., on May 25,

2001.

George A. Gavalla,

Acting Deputy Administrator, Federal

Railroad Administration.

[FR Doc. 01–13658 Filed 5–30–01; 8:45 am]

BILLING CODE 4910–06–P

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Part 224

[Docket No. 000225052–1102–02; 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: Final rule.

SUMMARY: NMFS issues a final rule to

establish measures to protect humpback

whales, Megaptera novaeangliae, in

waters within 200 nautical miles (370.4

km) of Alaska. Under these regulations

it is unlawful for a person subject to the

jurisdiction of the United States to

approach, by any means, with some

exceptions, within 100 yards (91.4 m) of

a humpback whale.

DATES: Effective July 2, 2001.

ADDRESSES: Copies of the

Environmental Assessment/Regulatory

Impact Review/Final Regulatory

Flexibility Analyses (EA/RIR/FRFA),

prepared for this action are available

from NMFS, Protected Resources

Division, Alaska Region, NMFS, P.O.

Box 21668, Juneau, AK 99802, or by

calling the Alaska Region, NMFS, at

907–586–7235.

FOR FURTHER INFORMATION CONTACT: Kaja

Brix, 907–586–7235,

Kaja.Brix@noaa.gov.

SUPPLEMENTARY INFORMATION: This rule

is issued under the authority of both the

Endangered Species Act (ESA) (16

U.S.C. 1531 et seq.) and the Marine

Mammal Protection Act (MMPA) (16

U.S.C. 1361 et seq.).

Background

The National Marine Fisheries Service

published a proposed rule (65 FR 39336,

June 26, 2000) that would have

prohibited the approach by any person,

by any means, with certain exceptions,

within 200 yards (yds) (182.8 meters

(m)) of a humpback whale, Megaptera

novaeangliae, in waters within 200

nautical miles (370.4 km) of the coast of

Alaska. The proposed rule prohibited

approaches by any means, including by

interception (e.g., placing the vessel in

the path of the humpback whale so that

the whale surfaces within the buffer

zone), and prohibited the disruption of

normal behavior or prior activity of a

Federal Register / Vol. 66, No. 105 / Thursday, May 31, 2001 / Rules and Regulations 29503

whale. Changes from the proposed rule

and reasons for those changes are

discussed below.

The preamble to the proposed rule

discussed species distribution and

abundance, whale watching activity in

Alaska and the impact of vessel traffic

on whales. Please refer to the preamble

to the proposed rule (65 FR 39336) and

the accompanying Environmental

Assessment (EA) for further background

on the implementation of protective

measures around humpback whales off

Alaska.

The primary objective of limiting

approaches around humpback whales is

to minimize disturbance that could

adversely affect the individual animal

and to manage the threat to these

animals caused by whale watching

activities.

The potential for harm to humpback

whales from vessel traffic has increased

in recent years as the human

environment in coastal Alaska has

changed. Whale watching has increased

in popularity and substantially more

vessels are operating from several

coastal communities in southeast Alaska

and in southcentral Alaska (see EA). In

addition, humpback whales are

generally distributed throughout coastal

waters during the summer months.

Intensive feeding activity often keeps

these whales in the same or general

locations for extended periods of time.

These localized aggregations of feeding

humpback whales are easily accessible

from a number of coastal communities.

This combination of factors may make

humpback whales off Alaska

particularly vulnerable to pressure from

increasing vessel-based human

activities. As a result, NMFS has

determined that precautionary measures

must be taken to protect the humpback

whale.

The humpback whale is listed as

endangered under ESA. Implementation

of protective regulations is consistent

with and under the authority of both the

ESA and the MMPA. Section 11(f) of the

ESA provides NMFS with broad

rulemaking authority to enforce the

provisions of the ESA. 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 (see

proposed rule for further details).

Changes From the Proposed Rule

NMFS proposed to prohibit

approaches within 200 yds (182.8 m) of

a humpback whale, by any means,

including by interception, within 200

miles of the coast of Alaska. NMFS also

proposed to prohibit the disruption of

normal behavior or prior activity of a

whale. In response to comments

received during the public comment

period NMFS is making the following

changes in the final rule for this action:

NMFS is (1) prohibiting approaches

within 100 yds (91.4 m) instead of the

200 yd (182.8 m) distance as outlined in

the proposed rule; (2) implementing a

‘‘slow, safe speed’’ requirement within

proximity of a humpback whale; and

(3)creating exemptions for vessels

limited in their ability to maneuver;

commercial fishing vessels lawfully

engaged in actively setting, retrieving or

closely tending commercial fishing gear;

and state, local or Federal government

vessels operating in the course of

official duty. Details of these changes

are discussed below.

In this final rule NMFS prohibits

anyone, with exceptions, from

approaching by any means, including by

interception, within 100 yds (91.4 m) of

any humpback whale within 200

nautical miles of Alaska, or within

inland waters of the state. ‘‘Inland

waters’’ refers to the navigable waters of

the United States shoreward of the

navigational demarcation lines dividing

the high seas from harbors, rivers, and

other inland waters of the United States

(33 U.S.C. 2003(o)).

NMFS proposed a 200-yd (182.8-m)

minimum approach distance in the

proposed rule. NMFS received a number

of comments (11 of 42) that specifically

opposed the 200-yd (182.8-m) approach

distance. Commenters stated that the

distance was a significant departure

from the 100-yd distance established in

the Marine Mammal Viewing

Guidelines (Guidelines). Commenters

also noted that the 200-yd (182.8-m)

distance was inconsistent with the 100-

yd (91.4-m) distance established for

approaches to humpback whales in

Hawaii.

NMFS has decided to implement a

100-yd (91.4-m) distance to maintain

consistency with the published

Guidelines and with the regulations that

exist for viewing humpback whales in

Hawaii. Also, compliance will be

essential to effective implementation of

these regulations. Currently the industry

is operating under the 100-yd (91.4-m)

guideline. This distance is generally

recognized as the minimum approach

distance for waters around Alaska.

Consistency with this guideline should

contribute substantially towards

achieving industry compliance.

NMFS is also implementing in the

final rule a ‘‘slow, safe speed’’

requirement when a vessel is near a

humpback whale. A large number of

commenters (17 of 42) responding to the

proposed rule requested that NMFS

implement speed restrictions. The

request for implementation of a speed

limit was the prevailing comment

received during the public comment

period. Laist et al. (2001), in a study of

worldwide occurrences of whales struck

by ships, indicated that most lethal or

severe injuries to whales struck by

vessels occurs by ships traveling 14

knots (kts) or faster. The authors

recommend that in areas where special

caution is needed to avoid such events,

measures to reduce the vessel speed

below 14 kts may be beneficial.

While Laist et al. (2001) indicate that

most lethal or severe injuries are caused

by ships 80 meters long or longer, the

potential also exists for smaller vessels

traveling at fast speeds to injure a

whale. This could be particularly the

case for some of the coastal areas in

waters off Alaska where whale density

is high, whale surfacings unpredictable,

and vessel traffic great.

NMFS believes that some form of

speed restrictions should be imposed to

reduce the likelihood of mortality or

injury to a whale in the event of a

vessel/whale collision. Implementation

of a specific speed limit (e.g., less than

14 kts) throughout the state or even in

local, specifically designated areas was,

however, considered problematic from

an enforcement and practical

perspective. Practical impediments to

using specific speed limits include the

fact that ‘‘clutch-in speed’’ of vessels

varies. For some vessels, the ‘‘clutch-in

speed’’ may be greater than 10 kts.

Practically as well as for enforceability,

a safe speed standard, rather than a

strict nautical mile-per-hour standard is

appropriate.

NMFS is, therefore, implementing a

requirement for ‘‘slow, safe speed’’

when a vessel is near humpback whales.

In this situation, the U.S. Coast Guard

recommends that operational guidance

for vessels use language that mariners

are familiar with, understand and accept

by convention. This means application

of ‘‘safe speed’’ as defined in the Inland

Navigational Rules and the International

Regulations for Preventing Collisions at

Sea 1972 (COLREGS)(33 U.S.C. 2006

and 33 U.S.C. 1602, respectively).

Implicit here is the recognition that

mariners must adjust speeds to

accommodate hazards that they may

encounter during the course of

operations. NMFS is extending this

application to vessels operating around

humpback whales.

Operation at a ‘‘slow, safe speed’’ will

allow vessels sufficient time to vary

course and speed to reduce the potential

for a strike. The COLREGS Rule 6

defines operation such that ‘‘every

vessel shall at all times proceed at a safe

speed so that she can take proper and

29504 Federal Register / Vol. 66, No. 105 / Thursday, May 31, 2001 / Rules and Regulations

effective action to avoid collision and be

stopped within a distance appropriate to

the prevailing circumstances and

conditions.’’ A slow safe speed around

whales will provide enhanced safety to

the whale, the vessel and the passengers

onboard the vessel.

NMFS notes that particular ‘‘hot

spots’’ of concern in coastal Alaska

contain higher concentrations of whales

and vessel traffic. These areas are

generally focal areas for whale watching

activity as well as major thoroughfares

for large ship traffic.

While NMFS is implementing the

requirement for a slow, safe speed for all

waters off Alaska when near a

humpback whale, NMFS encourages

vessel operators to pay particular

attention to maintaining a slow, safe

speed in areas of high whale density.

Some of these areas include parts of

Southeast Alaska such as Frederick

Sound; Chatham Strait; North Pass,

which is between the north end of

Shelter Island and the south end of

Lincoln Island near Juneau; Point

Adolphus, near Gustavus; and the Sitka

Sound area. Reduced speeds in these

areas will likely minimize the potential

for collisions and reduce the likelihood

of serious injuries or mortalities should

an inadvertent collision occur.

Three additional modifications in the

final rule from the proposed rule were

made: (1) an exemption for commercial

fishing vessels while commercial

fishing, (2) an exemption for vessels

limited in their ability to maneuver, and

(3) an exemption for state, local and

Federal government vessels operating in

the course of official duty. These

exemptions have been included in

response to public comment and due

consideration by NMFS.

NMFS is exempting commercial

fishing vessels lawfully engaged in

actively setting, retrieving or closely

tending commercial fishing gear. For

purposes of this regulation commercial

fishing means taking or harvesting fish

or fishery resources to sell, barter or

trade. Commercial fishing does not

include commercial passenger fishing

operations (i.e., charter operations or

sport fishing activities).

Commercial fishing vessels are not

actively seeking whales. Commercial

fishermen usually avoid setting gear

close to whales to prevent injury to the

whale and damage to the fishing gear. In

some instances commercial fishing

vessels may find themselves, while

actively fishing, in close proximity to a

humpback whale. Fishing operational

requirements may preclude these

vessels from adhering to the approach

prohibition without compromising their

gear or catch. Therefore, NMFS is

exempting these vessels while they are

fishing.

NMFS is specifically not exempting

commercial fishing vessels in transit.

Commercial fishing vessels in transit

should be able to abide by the approach

restrictions in the same way as other

transiting vessels or those purposefully

approaching humpback whales. Abiding

by these regulations should not cause

commercial fishermen in transit

significant alterations in their path or

the time taken to get to a fishing ground

to set or to retrieve gear.

NMFS is exempting vessels limited in

their ability to maneuver. Certain vessel

types and some vessels in certain

situations may find it necessary to

closely approach a humpback whale to

maintain safe operating conditions.

Limitations in maneuverability could

pose hazards to the vessel should it be

required to adhere to the whale

approach regulations. The primary

motivation for this exemption is vessel

and personal safety. Some examples of

vessels that may be restricted in their

ability to maneuver and who may be

able to claim this exemption are tugs

pulling large barges, vessels with deep

draft that may encounter problems

maneuvering in narrow and/or shallow

passageways, vessels laying cable or

other similar vessel types or situations.

Finally, NMFS is also exempting

state, local and Federal government

vessels operating in the course of

official duty. The activities of these

vessels are often critical to important

safety missions or other activities that

require that they closely approach a

humpback whale. Examples of this type

of operation may be Coast Guard vessels

engaged in a search and rescue

operation, military ships undertaking

activities critical to national security,

local or state government enforcement

or safety operations, research vessels, or

vessels engaged in disentangling a

humpback whale or other marine

mammals. These examples are not

meant to be exhaustive. There may be

other situations in which vessels limited

in their ability to maneuver or state,

local or Federal government vessels

would be exempt from approaches

within 100 yds (91.4 m) of a humpback

whale. A requirement of any of the

above-mentioned exemptions is that any

person who claims the applicability of

an exception to the approach

regulations has the burden of proving

that the exemption applies.

Section 10(e) of the ESA provides an

exemption to the Section 9 ‘‘take’’

prohibition for Alaska Natives

harvesting threatened or endangered

species for subsistence purposes. While

humpback whales are not currently

harvested off Alaska, nothing in this

regulation is intended to affect the rights

of Alaska Natives under the exemption

provided in Section 10(e).

Comments and Responses

NMFS received 42 letters of comment

in response to a request for comments

in the proposed rule. Many letters

contained similar comments and are

consolidated. Response to comments

addressing significant issues and

requiring a reply are summarized below.

Comment 1: Eleven (of 42)

commenters supported making the 100-

yd (91.4-m) approach distance in the

current Alaska Marine Mammal

Viewing Guidelines the regulatory

approach distance.

Response: NMFS concurs. Please see

preamble to the final rule for further

explanation on this change from the

proposed rule.

Comment 2: Twelve commenters

supported the 200-yd (182.8-m)

proposed approach distance.

Response: While some comments

supported the proposed 200-yd (182.8-

m) approach limit, NMFS believes that

maintaining consistency with

regulations governing approaches to

humpback whales in Hawaii, as well as

with the Guidelines already established

for waters off Alaska is important.

Comment 3: Seventeen commenters

supported the inclusion of speed limits

in regulations. Some suggested a speed

limit range of 10-14 knots.

Response: NMFS concurs that some

measure of restricting speed is

necessary. Laist et al. (2001) showed a

critical threshold speed of 14 kts below

which serious injury and mortality of

whales struck by vessels was

minimized. The implementation of a

specific speed limit is problematic from

a practical and enforcement standpoint.

However, to minimize the chance of

whale/vessel collisions and the

potential for serious injury or mortality

NMFS is requiring that vessels maintain

a slow, safe speed in proximity to a

humpback whale. See the preamble to

the final rule for further details.

Comment 4: NMFS did not do enough

public outreach on the regulations. In

general more public outreach is needed.

Commercial operators should be

included in the process of creating

regulations.

Response: NMFS conducted extensive

public outreach upon publication of the

Marine Mammal Viewing Guidelines

(Guidelines) in 1996. NMFS distributed

the Guidelines brochures widely

throughout Alaska, both in their original

versions and later as they were revised.

Public meetings were also held in key

coastal communities around the state to

Federal Register / Vol. 66, No. 105 / Thursday, May 31, 2001 / Rules and Regulations 29505

increase public awareness of and

compliance with the Guidelines. NMFS

has met regularly with interested

industry groups to discuss marine

mammal viewing and the Guidelines. In

addition, prior to the development of

the proposed rule NMFS solicited input

statewide. NMFS contacted the public,

industry, environmental groups and

other interested parties, through a direct

mailout letter as well as through paid

advertisements in coastal newspapers

throughout the state.

Comment 5: A combination of

measures would be more effective than

merely having an approach distance;

i.e., combine approach distances with

speed and time limits around animals

and limits on number of vessels

permitted within a certain radius of a

humpback whale.

Response: In the final rule NMFS

combined a minimum approach

distance with a general speed

restriction. A combination approach has

advantages in that it is more

comprehensive. However, enforcement

of detailed combinations is difficult. As

a result, NMFS has chosen to implement

some of these measures as regulations

and retain the other measures as

guidelines. The Marine Mammal

Viewing Guidelines, which contain

some of the other measures mentioned

in the comment, will remain in place as

additional guidance for vessel behavior

around humpback whales as well as

around other marine mammal species.

The Guidelines present a

comprehensive approach to appropriate

marine mammal viewing by combining

measures such as minimum approach

distances, time spent with an animal

and general suggestions for vessel-, airand land-based operations.

Comment 6: NMFS must dedicate

sufficient resources to enforcement to

make the regulations work.

Response: The Alaska Enforcement

Division (AED) of the NMFS is

dedicated to protecting all of the living

marine resources in Alaska.

Enforcement of the regulations

promulgated under the MMPA and the

ESA has been, and will continue to

remain a priority, which is balanced

with other priorities, for the AED. The

AED recently purchased six patrol

vessels that are capable of safely

operating in any waters in Alaska where

humpback whale watching is likely to

occur. These resources provide

increased capability for Special Agents

and Enforcement Officers to prevent

violations from occurring by providing

transportation to coastal communities to

educate the general public, to respond

to reports of violations, and to enforce

regulations.

Comment 7: NMFS should develop a

permit or certification system. This

could either be a government permit

system or an industry-developed

certification program. NMFS should

consider granting some privileges to

those with certification or a permit.

Response: Several private industry

groups within the state have discussed

and/or attempted to implement an

industry-based certification program for

whale watching activities within the

state. This kind of effort is likely to

improve voluntary compliance.

A government permit system may be

more problematic. It would require a

certain infrastructure that NMFS is not

able to support at this time. A limited

entry permit system may be warranted

at some point; however, further analysis

and discussions would be needed prior

to consideration of a limited entry

permit system. As mentioned in the EA,

this type of system presents significant

issues of equity in deciding the criteria

for admission.

A permit system that simply provides

a means to register vessels engaged in

whale watching activity would,

however, provide a better means to

understand the nature of the industry.

Should a permit or certification

program be considered in the future,

NMFS would consider all aspects of

implementation, including whether or

not the granting of privileges to

permittees should occur.

Comment 8: NMFS should exempt

certain vessel classes or vessel types

such as fishing vessels, those in the

course of official duty (e.g., for the U.S.

government), those limited in their

ability to maneuver, or sport trollers.

Other commenters suggested that no

vessels should be exempt, particularly

kayaks.

Response: NMFS agrees with the

suggestion to exempt certain vessel

types and vessels under certain

circumstances. NMFS has incorporated

into the final rule an exemption for

commercial fishing vessels lawfully and

actively engaged in setting, retrieving or

closely tending their gear; vessels

limited in their ability to maneuver; and

state, local and federal government

vessels during the course of official

duty. Please see the section above on

Changes from the Proposed Rule for

further details on these exemptions.

NMFS agrees that vessels such as

kayaks should not be exempt from the

100-yd (91.4-m) prohibition or be

subject to some lesser distance. While

kayaks, because they are small and

virtually silent, could possibly approach

whales closer than 100 yds (91.4 m)

without causing a disturbance,

empirical data does not exist to support

such a conclusion. NMFS believes that

a conservative approach of requiring all

whale watch vessels (including kayaks)

to adhere to the 100-yd (91.4-m)

approach restriction provides the

appropriate degree of protection.

Further, allowing different classes of

vessels to approach at different

distances would make enforcement

extremely difficult.

NMFS has not exempted other sport

fishers such as trollers. Recreational

fishers often also watch whales and

could therefore cause undue

disturbance to these animals. Sport

fishers should be in a position to abide

by the approach prohibition.

Comment 9: Many commenters noted

that they have seen a rapid increase in

the charter fleet numbers in recent

years.

Response: NMFS agrees.

Comprehensive data on the number of

vessels engaged in whale watching or

conducting wildlife charters are,

however, difficult to obtain. The best

available information indicates that the

charter boat industry has increased

substantially in the last 10 years.

Comment 10: Commenters suggested

that a distance regulation might not be

the most effective measure to protect

whales. This regulation would also

place a burden on those who know the

whales the best, i.e. the whale watching

industry.

Response: The intent of any whale

watch regulation is to provide

protection to the animals being viewed.

A distance regulation can be an

effective, practical and enforceable tool

to manage vessel activity in the

presence of whales. A distance

regulation creates a buffer zone around

the whale. This buffer zone should

provide protection from disturbance

caused by close approaches. It is also

easily understandable for the public and

easily enforceable.

While those involved in the whale

watch industry may have significant

experience with whale behavior this

does not obviate the fact that vessel

presence and proximity may affect the

behavior of the whale. Thus, because

the objective of whale watch vessels is

to get relatively close to a whale the

regulations on approaches would

minimize the potential for harm by

limiting this encroachment.

Comment 11: NMFS should include

avoidance measures for those instances

when the vessel operator finds him/

herself closer than the minimum

approach distance to the whale.

Response: Instances may occur in

which a vessel finds itself within the

minimum approach distance of a whale.

This is most likely to occur when a

29506 Federal Register / Vol. 66, No. 105 / Thursday, May 31, 2001 / Rules and Regulations

whale approaches a vessel. NMFS

considered the implementation of

avoidance measures for these

circumstances in the development of the

proposed regulations. NMFS concluded

that requiring vessels to engage in

avoidance measures could cause more

disturbance than if vessels remained in

their original position.

In tightly constrained areas of coastal

Alaska, with potentially many vessels

observing a whale at the same time, the

requirement for avoidance measures

may cause vessels to constantly be in

motion as whales shift locations. As a

result, avoidance measures have the

potential to cause greater disturbance to

the animals being viewed and could be

dangerous to both the whales and the

vessel.

Comment 12: More strict regulations

will have a negative economic impact

on charter operators. Customers will be

disappointed by not being able to get

closer to the whales and this will result

in damage to business.

Response: NMFS has chosen to

implement the status quo minimum

approach distance specified in the

Guidelines. Thus, the final regulation

for approaches will not be more strict

than the current recommendation.

Because we are not differing from the

status quo, the promulgation of

regulations should not significantly alter

customer satisfaction or participation in

whale watch activities.

Comment 13: NMFS should extend

the regulations to cover all whales.

Untrained observers cannot be expected

to distinguish among species.

Response: The different species of

baleen whales could potentially be

confused by inexperienced observers.

However, the distribution of baleen

species in Alaska and the patterns of

whale watch traffic are such that most

whale watch activity is conducted

largely on humpback whales as the

primary baleen species. Whale watch

vessels in specific locations may

encounter gray or fin whales. However,

in locations where these other two

species occur the vessel operators and

naturalists are generally well-versed in

species identification. NMFS chose to

focus these regulations on interactions

with humpback whales because of the

local distribution patterns of this

species and the concern over the greater

pressure placed on this species by

whale watch vessels.

Comment 14: NMFS should require

that dedicated lookouts be posted on

vessels.

Response: Dedicated whale watching

vessels are the focus of this regulation

to minimize impacts to humpback

whales. These vessels typically have

dedicated naturalists onboard searching

for whales for their clients. Other than

recreational vessels, for which it would

not be practical to require dedicated

lookouts, most vessels transiting coastal

Alaska waters will have pilot house

personnel who are actively scanning the

water for hazards to navigation,

including large cetaceans.

Comment 15: NMFS is targeting one

group (charter operators) whose overall

numbers are few compared to all boats

on the water.

Response: While the number of whale

watch charter vessels may be few

compared to the overall number of

vessels operating in coastal Alaska,

charter boats, by the nature of their

operation, have the greatest interaction

with, and, therefore, the greatest

potential to cause harm to, humpback

whales. The intent of the regulation is

to manage vessels interacting around

humpback whales so that disturbance

and harm to this species is minimized.

Comment 16: NMFS did not

adequately justify the approach distance

of 200 yds (182.8 m) over 100 yds (91.4

m) in the proposed rule.

Response: The proposed rule and the

accompanying EA give details

supporting the proposed

implementation of a 200-yd (182.8-m)

versus a 100-yd (91.4-m) minimum

approach distance. In this final rule

NMFS is implementing a 100-yd (91.4-

m) minimum approach distance;

therefore further explanation for a 200-

yd (182.8-m) minimum approach

distance is moot.

Comment 17: Where are cases of noncompliance documented?

Response: The Office of Enforcement

records all complaints received by that

office concerning non-compliance with

the Guidelines or the MMPA and ESA.

The Protected Resources Division in the

Alaska Region also keeps on file any

report of non-compliance received by

that office.

Comment 18: One commenter noted

observations of blatant violations of the

Marine Mammal Viewing Guidelines

and supports implementation of

regulations.

Response: NMFS acknowledges that

non-compliance with the Guidelines

occurs. The regulations implemented

here are designed to protect the whales

and to provide an enforcement tool to

respond to situations of noncompliance.

Comment 19: Current laws and

guidelines are working well in places

that one commenter visits.

Response: NMFS acknowledges that

in some situations the Guidelines may

be adequate to manage interactions with

humpback whales. While compliance

with the Guidelines may occur in some

localized areas, universal compliance

does not occur. The preamble to the

proposed rule and the accompanying

EA provide greater detail with respect to

the inadequacy of the Guidelines.

Comment 20: One commenter

suggested that a prohibition on

interception of whales (leapfrogging)

may make people pursue whales.

Response: NMFS reminds readers that

pursuit is prohibited under the ESA.

Comment 21: The proposed rule did

not provide an explanation of the link

between a change in a whale’s behavior

as caused by a vessel and the biological

significance of such a change.

Response: NMFS interprets biological

significance to mean a change in vital

rate parameters. The potential for vessel

traffic to affect whales can occur on two

levels: 1) short-term behavioral changes

that disturb the animal or 2) long-term

effects that result in changes to vital

rates (e.g., reproductive or survival rate).

The latter type of studies necessarily

entails long-term observations and are

difficult to conduct. Very few studies, if

any, have examined the question of the

long-term effects to whales by vessel

approaches.

In addition, short-term studies

indicate that changes occur in

humpback whale behavior in response

to vessel approaches. The ESA and the

MMPA prohibit the ‘‘take’’ of a marine

mammal. ‘‘Take’’ is defined in part to

include any act of pursuit, torment or

annoyance which has the potential to

disturb a marine mammal in the wild by

causing disruption of behavioral

patterns. NMFS believes the results of

the short-term studies indicate that

conservation measures should be taken

before any potential long-term effects

occur.

Consistent with the definition of

‘‘take’’ and the associated prohibition on

‘‘take,’’ NMFS is implementing these

regulations to prevent disturbance of

humpback whales that may be caused

by disruption of behavioral patterns. In

addition, the precautionary principle

would dictate that NMFS take action to

protect a species based on the

information that we have that shows

that vessel traffic can cause changes in

a whale’s behavior.

Comment 22: Further research is

needed before implementing

regulations.

Response: NMFS acknowledges that

more research would be beneficial.

However, the absence of a greater body

of knowledge does not preclude the

adoption of protective measures. The

ESA generally requires NMFS to use the

best available information in managing

protected species. NMFS believes

Federal Register / Vol. 66, No. 105 / Thursday, May 31, 2001 / Rules and Regulations 29507

sufficient information is available to

support this action. NMFS may revise

protection efforts accordingly if future

research demonstrates that additional or

different means of protection are

needed.

Comment 23: One commenter

supported the application of the

precautionary principle in protecting

whales.

Response: NMFS agrees. In addition

to the data available on the effects of

vessel traffic on whales, NMFS believes

that the application of the precautionary

principle in this situation is warranted.

Comment 24: Several commenters

suggested that NMFS turn the current

Marine Mammal Viewing Guidelines

into regulations.

Response: This final rule implements

the 100-yd (91.4-m) minimum approach

distance as recommended in the

Guidelines. The Guidelines contain

other measures to protect humpback

whales, as well as other marine

mammals, and these measures will

remain as guidelines to supplement the

regulations.

Comment 25: Few good statistics exist

on the number of charter vessels

operating in Alaska. Related to this, one

commenter noted that NMFS provided

totals of vessels registered in the state

but did not break out those vessels

operating on inland lakes and rivers.

Response: NMFS agrees that limited

information is available on charter

vessels operating in Alaska. Charter

vessels must obtain a business license

and a Coast Guard passenger license but

they are not required to indicate

anywhere that they do, or do not, engage

in whale watching activity. As a result,

a comprehensive picture of those

vessels operating as whale watch

charters in the state is not available.

Specific operating patterns and

locations of operation are also not

available. In addition, in some locations

trailered vessels may be used on the

ocean, in rivers and on lakes and not

exclusively in one water body.

Comment 26: The table on vessel

collisions in the proposed rule did not

identify the types of vessels that struck

humpback whales; therefore it is hard to

determine what kind of vessel is causing

the problem.

Response: The summary statistics of

vessel strikes in Alaska originated from

the Alaska Region stranding database.

The numbers presented in Table 1 of the

EA are minimum estimates as not all

collisions are reported. These reports

are also opportunistic and often provide

minimal specific information. The

potential exists for all vessel types to

collide with a whale. NMFS wants to

ensure that no vessel collisions with

whales occur. The measures

implemented by this regulation should

minimize the potential for any vessel to

collide with a whale.

Comment 27: NMFS should keep the

regulations as simple as possible.

Response: NMFS acknowledges the

merit of making the regulations as

simple as possible, provided that they

are effective in protecting the whales.

Simplicity enhances enforcement as

well as compliance.

Comment 28: Does NMFS have

general guidelines that it recommends

for viewing whales?

Response: The Alaska Region has

general Marine Mammal Viewing

Guidelines published on our Regional

website at www.fakr.noaa.gov. These

Guidelines are also available in

brochure format from the Alaska Region

(see ADDRESSES).

Comment 29: The prohibition on

interception in the proposed rule would

preclude any vessels from being in front

of a whale which would affect

educational opportunities.

Response: The prohibition on

interception does not preclude vessels

from being in front of a whale. The

interception prohibition, does, however,

preclude vessels from repositioning

themselves to intercept the path of a

whale as the whale moves. While

educational opportunities are an

important component of whale

watching, the regulations are designed

foremost to address the protection of the

humpback whale. The specific position

of the vessel in relation to the

orientation of the whale should not have

an impact on educational opportunities.

Comment 30: Whales react to sound,

not proximity of a vessel, and NMFS

should limit sound production.

Response: Whales may react to sound

as well as to the physical proximity of

a vessel. Management of vessel

approaches to humpback whales should

result in the reduction of sound in the

proximate environment. The actual

management of sound itself would be

difficult to accomplish on a practical

level. Managing sound production

would ultimately require a better

understanding of the effect of sound on

the whale and would also entail

performance standards or specifications

for engine construction and sound

output. This type of measure would

place significant burden on current and

future vessel construction. NMFS

provides further details on the issue of

sound management in the

accompanying EA.

Comment 31: In the proposed rule

documents NMFS does not provide

support to their contention that ‘‘critical

feeding activity may be interrupted by

close approaches.’’

Response: NMFS emphasizes the use

of the word ‘‘may’’ in the statement as

quoted here. It logically follows that

given the demonstration that vessel

activity causes changes in whales’

behavior (see EA for details), that a

whale engaged in feeding behavior may

be affected by vessel activity.

Comment 32: In citations provided in

the proposed rule NMFS notes that an

effect of vessel presence was seen at 400

m distance from a whale but does not

mention an effect at 200 m.

Response: The study by Baker and

Herman (1989), to which this comment

refers, showed an effect on whale

behavior from vessels as close as 400 m

and as far away as 4000 m. The authors

did not indicate that the 200-m distance

was tested in their study. However, if a

whale reacts to a vessel that is 400 m

away, presumably it is also likely to

react to a vessel that is closer than that

distance. A distance of 400 m was not

proposed in the rule because it would

have appreciably diminished the

viewing experience. NMFS seeks to find

a balance between protecting the

humpback whale and allowing

opportunities for whale watching to

occur.

Comment 33: One commenter

asserted that 200 yds (182.8 m) seems

excessive.

Response: NMFS outlined its

justification for the 200 yd (182.8 m)

proposal in the proposed rule and

accompanying EA. At this time NMFS

declines to expand on this justification

because the final rule will implement a

100-yd (91.4-m) approach distance.

Comment 34: NMFS should elaborate

on why the 200-yd (182.8-m) rule would

provide the greatest benefit to the

environment, the whales, and their

prey.

Response: See response to Comment

33.

Comment 35: One commenter

requested that NMFS elaborate on the

statement provided in the proposed rule

documents that ‘‘the perception by

many people is that whale watching

vessels approach too closely to marine

mammals.’’

Response: NMFS has received general

comments from the public that whale

watch vessels get close enough to the

whales to cause a disturbance. While

not all individuals have accurate

knowledge of how close a vessel comes

to a whale, the general public is often

in a position to observe the activities of

whale watch vessels and the resultant

behavior of whales on a routine basis.

Based on these observations, many

people, including those in the industry

29508 Federal Register / Vol. 66, No. 105 / Thursday, May 31, 2001 / Rules and Regulations

and those familiar with boat operation,

and with whale behavior in Alaska,

have expressed the view to the Alaska

Region that vessels are operating too

closely to the whales, resulting in

disturbance to the animals.

Comment 36: A commenter stated that

it is important not to generalize the

results of whale/vessel interactions from

one area or habitat type to another.

Response: NMFS recognizes that some

variation in whale response may exist

under different circumstances.

However, NMFS has utilized the best

available data to support the decision,

including data from a study of

humpback whales in Glacier Bay

National Park and Preserve, which is

within the larger area affected by this

final rule. The data from that study

demonstrate behavioral changes in

whales in response to vessel proximity.

Given the direct relevance of this study

to the animals that are to be protected,

consideration of these data are

appropriate in formulating management

strategies for Alaska.

Comment 37: One commenter

asserted that the statement in the EA

that ‘‘whales exhibit a great degree of

site fidelity on their feeding grounds’’ is

misleading. The commenter asserts that

humpback whale site-fidelity occurs

with respect to large-scale population

structure site fidelity and not on a

smaller site-specific scale.

Response: Humpback whales

returning to Alaska to feed exhibit sitefidelity on a regional basis (i.e.,

generalized feeding area fidelity such as

returns to southeast Alaska) as well as

on a more localized site-specific basis

(i.e., they feed specifically off of a

certain point of land) (Straley 1994, J.

Straley, pers. comm.). Regional site

fidelity occurs with animals who return

to the same general feeding areas of, for

example, Southeast Alaska, Prince

William Sound or the Kodiak area. Sitespecific fidelity does occur on a more

local level (J. Straley, pers. comm.). For

example, some animals return

repeatedly to the same limited stretch of

coastline near Pt. Adolphus or Glacier

Bay to feed. A similar kind of sitefidelity occurs for other areas within a

greater feeding region.

Comment 38: One commenter

supported the discontinuation of whale

watch activities if these activities invoke

a dramatic change in the whales’

behavior.

Response: NMFS concurs. However,

no evidence exists that whale watching

has resulted in a ‘‘dramatic’’ change in

whale behavior. Current statutory

language does prohibit an activity that

disturbs or causes changes in normal

behavior. Current regulations are

intended to manage whale watch vessels

so that these vessels do not cause

changes in the whales’ behavior, i.e.,

disturb or ‘‘take’’ a whale. NMFS

believes that the new regulations will

allow appropriate whale watching to

occur without disturbing the animals.

Comment 39: NMFS does not make

accommodations for situations in which

whales approach a vessel.

Response: NMFS specifies in the

preamble to the proposed rule, and in

the accompanying EA, that should a

whale approach a vessel within the

minimum approach distance, NMFS

would not require the vessel to

undertake avoidance measures. NMFS

recognizes that situations occur in

which the whales approach the vessel

under their own volition. For reasons

outlined in Comment 11, NMFS is not

requiring vessels to undertake

avoidance measures in such instances.

Comment 40: No evidence has been

presented that the Marine Mammal

Viewing Guidelines, when complied

with, are insufficient for minimizing

disturbance to the whales.

Response: Compliance with the

Guidelines should result in minimizing

disturbance to whales. However,

sufficient non-compliance occurs to the

extent that NMFS believes that

regulatory measures are necessary. The

new regulatory measures are consistent

with the Guidelines. These combined

measures should provide protection to

humpback whales.

Comment 41: The proposed distance

will make photo-identification data

impossible to collect. The commenter

notes that bona fide researchers should

have NMFS research permits but that

whale watchers can make a valuable

contribution to such studies.

Response: NMFS did not adopt the

proposed distance of 200 yds (182.8 m)

and instead adopted a distance of 100

yds (91.4 m), the same distance as the

voluntary guidelines. Therefore, the

NMFS regulation should not have any

effect on the status quo collection of

photo-identification data.

Classification

The Administrator, Alaska Region,

NMFS, determined that this rule is

necessary for conservation and

management and is consistent with the

Endangered Species Act and the Marine

Mammal Protection Act.

NMFS prepared a final regulatory

flexibility analysis (FRFA). A copy of

this analysis is available from NMFS

(see ADDRESSES). A summary of the

FRFA follows:

(1) Vessel-based disturbance of

humpback whales is currently a

problem in waters off Alaska. The

MMPA and ESA prohibit the ‘‘take,’’

including harassment, of humpback

whales and other marine mammals.

Recognizing harassment potential, from

the perspective of the vessel operator,

and proving a case of harassment, from

the enforcement perspective, is often

difficult. NMFS, Alaska Region,

therefore, implemented Marine Mammal

Viewing Guidelines to provide a

structure for voluntary action to prevent

disturbance to marine mammals,

including humpback whales, in waters

off Alaska. Voluntary compliance is not

achieving the Agency’s conservation

and management objectives. The

measures implemented by this final rule

will provide protection from harassment

to humpback whales. (For additional

detail, refer to Section 3.1 of the EA).

(2) The public commented that a

regulation stricter than the 100-yd (91.4-

m) voluntary guideline, such as the

proposed 200-yd (182.8-m) restriction,

could diminish passengers’ satisfaction

with the whale watch tour and hence

future clientele. However, the agency

has chosen to implement a 100-yd (91.4-

m) minimum approach distance, which

is the same as the present voluntary

guidelines and which, therefore, would

not affect business in the manner

perceived.

(3) 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

Federal Register / Vol. 66, No. 105 / Thursday, May 31, 2001 / Rules and Regulations 29509

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.

Quantitative data from potentially

affected vessel operators are not

available for NMFS to precisely

determine whether the affected industry

sectors are small entities or not. These

data are not available because the

charter industry is largely unregulated

and no statistics are recorded on the

nature of charter operations. A

qualitative assessment of the types of

vessels that would be impacted

indicates that the dedicated whale

watch and charter vessels would be

most probably directly impacted and

also most likely are ‘‘small entities,’’

consistent with the SBA definitions.

For purposes of the FRFA, all whale

watch vessels are conservatively

assumed to be ‘‘small entities’’ within

the meaning of the Regulatory

Flexibility Act.

(4) The rule does not contain

reporting, recordkeeping and other

compliance requirements.

(5) Instead of a 200-yd (182.8-m)

minimum approach distance, NMFS has

chosen to implement a 100-yd (91.4-m)

minimum approach distance which is

the same as the present voluntary

guidelines, and which would, therefore,

minimize to the maximum extent

possible any negative economic impact

that may have occurred under the

proposed rule. The industry asserts that

it complies with the present 100-yd

(91.4-m) voluntary guideline.

Accordingly, the 100-yd (91.4-m)

mandatory approach distance should

have no effect on the industry. Although

a variety of less restrictive measures

were examined, none were selected

because they would not have provided

an appropriate level of protection for the

whales. A variety of more restrictive

measures were examined, including the

proposed 200-yd (182.8-m) approach

restriction, and while they would have

provided a greater level of protection for

the whales, they were rejected because

they would have caused a greater cost

to the industry.

This rule has been determined to be

not significant for purposes of Executive

Order 12866.

List of Subjects in 50 CFR Part 224

Endangered and threatened species,

Reporting and record keeping

requirements.

Dated: May 23, 2001.

John Oliver,

Acting Deputy Assistant Administrator for

Management and Administration, National

Marine Fisheries Service.

For the reasons set out in the

preamble, 50 CFR part 224 is 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, paragraphs (b) and (c)

are redesignated as paragraphs (c) and

(d), respectively, and a new paragraph

(b) is added to read as follows:

§ 224.103 Special prohibitions for

endangered marine mammals.

* * * * *

(b) Approaching humpback whales in

Alaska—(1) Prohibitions. Except as

provided under paragraph (b)(2) of this

section, 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 to cause

to be committed, within 200 nautical

miles (370.4 km) of Alaska, or within

inland waters of the state, any of the

acts in paragraphs (b)(1)(i) through

(b)(1)(iii) of this section with respect to

humpback whales (Megaptera

novaeangliae):

(i) Approach, by any means, including

by interception (i.e., placing a vessel in

the path of an oncoming humpback

whale so that the whale surfaces within

100 yards (91.4 m) of the vessel), within

100 yards (91.4 m) of any humpback

whale;

(ii) Cause a vessel or other object to

approach within 100 yards (91.4 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)(4) of this section.

(2)Exceptions. The following

exceptions apply to this paragraph (b),

but any person who claims the

applicability of an exception has the

burden of proving that the exception

applies:

(i) Paragraph (b)(1) of this section

does not apply if an approach is

authorized by the National Marine

Fisheries Service through a permit

issued under part 222, subpart C, of this

chapter (General Permit Procedures) or

through a similar authorization.

(ii) Paragraph (b)(1) of this section

does not apply to the extent that a vessel

is restricted in her ability to maneuver

and, because of the restriction, cannot

comply with paragraph (b)(1) of this

section.

(iii) Paragraph (b)(1) of this section

does not apply to commercial fishing

vessels lawfully engaged in actively

setting, retrieving or closely tending

commercial fishing gear. For purposes

of this paragraph (b), commercial fishing

means taking or harvesting fish or

fishery resources to sell, barter, or trade.

Commercial fishing does not include

commercial passenger fishing

operations (i.e. charter operations or

sport fishing activities).

(iv) Paragraph (b)(1) of this section

does not apply to state, local, or Federal

government vessels operating in the

course of official duty.

(v) Paragraph (b)(1) of this section

does not affect the rights of Alaska

Natives under 16 U.S.C. 1539(e).

(vi) 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.

(3) General measures.

Notwithstanding the prohibitions and

exceptions in paragraphs (b)(1) and (2)

of this section, to avoid collisions with

humpback whales, vessels must operate

at a slow, safe speed when near a

humpback whale. ‘‘Safe speed’’ has the

same meaning as the term is defined in

33 U.S.C. 2006 and the International

Regulations for Preventing Collisions at

Sea 1972 (see 33 U.S.C. 1602), with

respect to avoiding collisions with

humpback whales.

* * * * *

[FR Doc. 01–13677 Filed 5–30–01; 8:45 am]

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