[Federal Register Volume 66, Number 105 (Thursday, May 31, 2001)]
[Rules and Regulations]
[Pages 29502-29509]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-13677]


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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.

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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, 
<a href="/cdn-cgi/l/email-protection#b8f3d9d2d996facad1c0f8d6d7d9d996dfd7ce"><span class="__cf_email__" data-cfemail="97dcf6fdf6b9d5e5feefd7f9f8f6f6b9f0f8e1">[email protected]</span></a>.

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

[[Page 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

[[Page 29504]]

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

[[Page 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-, air- and 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

[[Page 29506]]

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 non-compliance 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 
non-compliance.
    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

[[Page 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

[[Page 29508]]

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 site-
fidelity 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. Site-specific 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 site-fidelity 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

[[Page 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 Sec. 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:


Sec. 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]
BILLING CODE 3510-22-S


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