Approach Regulations for Humpback Whales in Waters Surrounding the Hawaiian Islands Under the Marine Mammal Protection Act, 88262-88265 [2023-28091]
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Federal Register / Vol. 88, No. 244 / Thursday, December 21, 2023 / Rules and Regulations
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Regulatory Flexibility Act
The Secretary hereby certifies that
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Congressional Review Act (5 U.S.C. 801
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List of Subjects in 48 CFR Part 1252
Government procurement, Reporting
and recordkeeping requirements.
Signing Authority
Signed under authority provided by 5
U.S.C. 301; 41 U.S.C. 1121(c)(3); 41
U.S.C. 1702; and 48 CFR 1.301 through
1.304; 1.501–3, and 49 CFR 1.38 in
Washington, DC, on December 14, 2023.
Philip A. McNamara,
Assistant Secretary for Administration, U.S.
Department of Transportation.
For the reasons set out in the
preamble, DOT amends 48 CFR part
1252 as set forth below.
PART 1252—SOLICITATION
PROVISIONS AND CONTRACT
CLAUSES
1. The authority citation for part 1252
continues to read as follows:
■
Authority: 5 U.S.C. 301; 41 U.S.C.
1121(c)(3); 41 U.S.C. 1702; and 48 CFR 1.301
through 1.304.
Subpart 1252.2—Text of Provisions
and Clauses
1252.239–92
[Amended]
2. Amend section 1252.239–92 in
paragraph (b) of the provision by
removing ‘‘1252.239–81, Information
and Communication Technology
Accessibility’’ and adding in its place
‘‘1252.239–93, Information and
Communication Technology
Accessibility’’.
■
[FR Doc. 2023–27890 Filed 12–20–23; 8:45 am]
BILLING CODE 4910–9X–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 216
[Docket No. 231214–0303]
RIN 0648–BF98
Approach Regulations for Humpback
Whales in Waters Surrounding the
Hawaiian Islands Under the Marine
Mammal Protection Act
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Department of Commerce.
ACTION: Final rule.
AGENCY:
NMFS issues this final rule
‘‘Approach Regulations for Humpback
SUMMARY:
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Whales in Waters Surrounding the
Islands of Hawaii under the Marine
Mammal Protection Act’’ under the
Marine Mammal Protection Act
(MMPA). This rule prohibits the ‘‘take’’
of humpback whales (Megaptera
novaeangliae), which means ‘‘to harass,
hunt, capture, or kill, or attempt to
harass, hunt, capture, or kill any marine
mammal,’’ within 200 nautical miles
(nmi) (370.4 kilometers (km)) of the
islands of Hawaii from the detrimental
effects resulting from approach by
humans.
DATES: This rule is effective January 22,
2024.
ADDRESSES: Public comments and other
supporting materials are available at
www.regulations.gov identified by
docket number NOAA–NMFS–2016–
0046 or by submitting a request to the
Protected Resources Division, National
Marine Fisheries Service, Pacific Islands
Regional Office, 1845 Wasp Blvd., Bldg.
176, Honolulu, HI 96818, Attn:
Humpback Whale Approach
Regulations.
FOR FURTHER INFORMATION CONTACT:
Elena Duke, NMFS, Pacific Islands
Regional Office, elena.duke@noaa.gov;
808–725–5085.
SUPPLEMENTARY INFORMATION:
Background
Protections for humpback whales in
Hawaii were initially promulgated
under the ESA, after NMFS determined
that guidelines published in 1979 as a
‘‘Notice of Interpretation of ‘Taking by
Harassment’ in Regard to Humpback
Whales in the Hawaiian Islands Area’’
(44 FR 1113; January 4, 1979) proved
ineffective in protecting humpback
whales in Hawaii from tour vessel
operators approaching closer than the
recommended viewing guidelines. The
ESA rule that protected humpback
whales in Hawaii was published on
November 23, 1987 as an interim final
rule (52 FR 44912), and then was
finalized on January 19, 1995 (60 FR
3775). That rule made it unlawful to
operate an aircraft within 1,000 feet (ft),
approach by any means within 100
yards (yds), cause a vessel or another
object to approach within 100 yds, or
disrupt the normal behavior or prior
activity of a humpback whale by any
other act or omission. Regulations
regarding the implementation of the
ESA were then reorganized on March
23, 1999, with the section containing
the approach regulations for humpback
whales in Hawaii, changed from 50 CFR
222.31 to 50 CFR 224.103 (64 FR 14052).
NMFS published a final ESA listing
rule on September 8, 2016 (81 FR
62259) that revised the species-wide
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listing and separated humpback whales
into 14 DPSs. In that rule, the humpback
whales that use the waters surrounding
Hawaii as their breeding grounds are
identified as the ‘‘Hawaii DPS,’’ which
is not listed under the ESA as
endangered or threatened and, therefore,
is no longer protected under the ESA.
Humpback whales in Hawaii would
have continued to be protected by
approach regulations only within the
boundaries of the Hawaiian Islands
Humpback Whale National Marine
Sanctuary (HIHWNMS) under the
National Marine Sanctuaries Act (15
CFR 922.184(a)(1) and (2) and (b)).
However, NMFS determined that,
although unpermitted take is prohibited
by the MMPA for humpback whales or
any marine mammals in any location,
specific regulations were warranted to
address approach and human
interactions that result in the take of
humpback whales in Hawaii. These
specific regulations were warranted
because: (1) humpback whales are
charismatic and sought out by local
community members and tourists; (2)
commercial and recreational whale
watchers and other tour operators are
expected to pursue humpback whales
for close encounters absent any
protections; (3) increasing numbers of
both humpback whales and humans
using Hawaiian waters raises the
likelihood of human-whale interactions;
and (4) approaching whales during the
breeding, calving, and nursing season is
likely to cause a disturbance that could
adversely affect reproduction and
development of individuals.
Therefore, an interim final rule was
published on September 8, 2016, to
ensure that there was no lapse in
protection for humpback whales in
Hawaii once the final ESA listing rule
became effective on October 11, 2016.
The interim final rule prohibited
operating an aircraft within 1,000 ft
(304.8 meters (m)) of a humpback
whale, approaching within 100 yds
(91.4 m) of a humpback whale by any
means, causing a vessel, person or
another object to approach within 100
yds (91.4 m) of a humpback whale, or
approaching a humpback whale by
interception (i.e., placing an aircraft,
vessel, person, or another object in the
path of a humpback whale so that the
whale approaches within a restricted
distance). The regulations also
prohibited the disruption of normal
behavior or prior activity of a humpback
whale by any act or omission. Certain
vessels and activities were exempted
from the prohibition.
This final rule serves to clarify the
interim final rule by amending
regulatory language in paragraphs (a)(5)
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and (b) of 50 CFR 216.19. The changes
to 50 CFR 216.19 include a punctuation
correction in paragraph (a)(5), a word
change in paragraph (b)(3), and further
clarification of exception 1, described in
paragraph (b)(1). This final rule also
amends the regulatory language in 50
CFR 216.19(b)(4) to clarify the scope of
NMFS-permitted or authorized activities
that may fall under that exemption. The
exemption under 50 CFR 216.19(b)(4) in
the interim final rule reads ‘‘vessels or
persons authorized under permit or
authorization issued by NMFS to
conduct scientific research or response
efforts that may result in taking of
humpback whales.’’ However, the
exemption as worded in the interim rule
leaves out other potentially permitted or
authorized activities. The intent of the
rule was not to preclude the issuance of
permits or authorizations for purposes
of scientific research, enhancement,
educational or commercial photography,
or during emergency response of
stranded or entangled marine mammals,
or persons authorized to incidentally
take humpback whales consistent with
the requirements of the MMPA.
Therefore, NMFS is amending 50 CFR
216.19(b)(4) to read, ‘‘Activities
authorized through a permit or
authorization issued by the National
Marine Fisheries Service to take
humpback whales.’’
yds (91.4 m) without a permit. NMFS
may change this determination in the
future if scientific information becomes
available showing humpback whales
react to UASs within or beyond 100 yds.
Scope and Applicability
Applications to All Forms of Approach
Exceptions
The following specific categories are
exempt from the regulations:
(1) Federal, State, or local government
vessels, aircraft, personnel, and assets,
when necessary, in the course of
performing official duties;
(2) Vessel operations necessary to
avoid an imminent and serious threat to
a person, vessel, or the environment;
(3) Vessels restricted in their ability to
maneuver that, because of this
restriction, are not able to comply with
approach restrictions; or
(4) Activities authorized through a
permit or authorization issued by the
National Marine Fisheries Service to
take humpback whales.
The regulations apply to all forms of
approach in water and air. Forms of
approaching humpback whales include,
but are not limited to, operating a
manned or unmanned motorized, nonmotorized, self-propelled, humanpowered, or submersible vessel;
operating a manned aircraft; operating
an unmanned aircraft system (UAS) or
drone; and swimming at the water
surface or underwater (i.e., SCUBA or
free diving). UASs are, at minimum,
objects, and therefore UASs are not to
approach humpback whales within 100
Comments and Responses
NMFS solicited public comments on
the interim final rule and received 10
comments. Several comments contained
similar recommendations and/or
questions and are consolidated. In
response to comments, NMFS concurred
with comments of support and clarified
why NMFS is taking this action specific
to humpback whales and not all
cetaceans. NMFS provided rationale for
not including regulations on speed,
approach angle, and engine operating
procedures in this rule making. NMFS
Applications to All Humpback Whales
Under the MMPA, the regulations
apply to all humpback whales found in
the action area, as described below.
Geographic Action Area
The action area for this rule is limited
to the waters within 200 nmi (370.4 km)
from the shore of the islands of Hawaii.
The islands of Hawaii consist of the
entire Hawaiian Archipelago, including
the main Hawaiian Islands (Hawai1i,
Maui, Kaho1olawe, La¯na1i, Moloka1i,
O1ahu, Kaua1i, and Ni1ihau) and the
Northwestern Hawaiian Islands.
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Approach Prohibitions
The regulations prohibit people from
operating aircraft within 1,000 ft (304.8
m) or approaching by any means within
100 yds (91.4 m) of humpback whales
within the action area described above
(see Geographic Action Area). This
includes an approach by interception
(i.e., placing an aircraft, vessel, person,
or another object in the path of a
humpback whale so that the whale
approaches within the restricted
distance), also known as ‘‘leapfrogging.’’
The regulations also prohibit disrupting
the normal behavior or prior activity of
a humpback whale. Disruption of
normal behavior can include, but is not
limited to, a rapid change in direction
or speed; escape tactics such as
prolonged diving, underwater course
changes, underwater exhalation, or
evasive swimming patterns;
interruptions of breeding, nursing, or
resting activities; attempts by a whale to
shield a calf from a vessel or human
observer by tail swishing or by other
protective movements; or the
abandonment of a previously frequented
area.
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provided clarification regarding
enforcement of this regulation, provided
information on the classification of UAS
systems, and prohibitions of using UAS
within 100 yards of humpback whales.
Responses to comments addressing
significant issues are summarized
below.
Comment 1: Four commenters
expressed support for the interim final
rule, with two of these commenters
specifically stating support for making
100 yds (91.4 m) the regulatory
approach distance.
Response: NMFS concurs.
Comment 2: One commenter
requested clarification on how NMFS
will enforce this approach regulation,
how enforcement will contend with
efforts by restricted groups to adjust
their services/methodologies to conform
to the rules of exemption, and how
NMFS will manage those situations
where an innocent party unwittingly
violates the restrictions.
Response: Enforcement will be
accomplished via all available means,
including through land and sea patrols
conducted by the NOAA Office of Law
Enforcement, the United States Coast
Guard, and State partners who work
with NMFS on outreach and
enforcement under a cooperative joint
enforcement agreement (i.e., State of
Hawaii’s Division of Conservation and
Resources Enforcement (DOCARE), as
well as through cases developed
through evidence submitted by citizens
observing violations.
Regarding exceptions or exemptions
to this rule, for exceptions to apply, a
person must be a Federal, State, or local
government official operating in the
course of their official duties; avoiding
an imminent and serious threat to a
person, vessel, or the environment;
authorized under permit or other
authorization issued by NMFS; or
operating a vessel restricted in its ability
to maneuver. Additional details
regarding exceptions to these
regulations are provided in the final rule
below in (b) Exceptions. Any person
claiming the benefit of any exemption,
exception, or permit has the burden of
proving that the exemption or exception
is applicable. Enforcement officials will
consider and collect, as part of the
normal investigative process, all
available evidence, including evidence
tending to support a party’s claim to be
exempt from the rule.
Regarding intent, the MMPA is a strict
liability statute, meaning the intention
of a party violating a regulation issued
under the MMPA is not relevant for
purposes of liability. Nonetheless, the
Agency does consider the individual
circumstances of each violation in
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deciding on an appropriate enforcement
response and assessing any penalties.
Under the Agency’s penalty policy,
available to the public at https://
www.gc.noaa.gov/enforce-office3.html,
any penalties assessed for unintentional
violations are assessed at a lower level
than penalties assessed for intentional
violations.
Comment 3: NMFS should extend this
100-yd approach regulation to all
cetaceans protected by the MMPA.
Response: We appreciate your
concern for all cetaceans. In general, the
MMPA prohibits the take of marine
mammals with section 3(13) (16 U.S.C.
1362(13)) of the MMPA defining the
term ‘‘take’’ as ‘‘to harass, hunt, capture,
or kill, or attempt to harass, hunt,
capture, or kill any marine mammal.’’
These approach regulations are specific
to humpback whales in Hawaii because
of geographic and species-specific
factors, including, but not limited to, (1)
the fact that humpback whales are
sought out for encounters by the local
community and tourists; (2) safety
concerns for both whales and humans
created by a desire of whale watch and
other tour operators, as well as
individuals, to get as close as possible
to the whales; (3) the importance of the
habitat around the Hawaiian Islands for
breeding, calving, and nurturing young;
and (4) the increasing numbers of both
humpback whales and humans that use
Hawaiian waters. In short, while
unpermitted take of marine mammals
continues to be prohibited by the
MMPA, NMFS believes that specific
regulations aimed at approach and
human interactions that result in the
take of humpback whales in Hawaii are
warranted.
Comment 4: Several commenters
expressed concern regarding how this
regulation will affect the collection of
up-close photos and video footage if
such activities are regulated at distances
closer than 100 yds. Specifically, these
commenters suggested that UASs or
drones could be allowed to collect upclose footage while posing minimal risk
to the humpback whales being observed.
Two of these commenters noted that the
sound of boat engines even at over 100
yds away can produce more vibrations
and are far louder than some UASs,
which generate noise that is very low
and of a frequency that would not
penetrate the water to any significant
depth.
Response: As described in the interim
final rule, research suggests that close
human interaction poses a significant
threat to the health and social structure
of humpback whales. These threats can
include collisions, noise, visual, and
other effects from interactions with
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vessels, aircraft, persons, or objects.
While some UASs create less noise than
vessels, there are situations in which
noise and visual effects have the
potential to disturb the whales because
of the UASs use within 100 yds of
humpback whales. Examples of some
situations include the use of multiple
UASs around a single whale or groups
of whales and the use of UASs by
inexperienced users. As a result, NMFS
has determined that UASs are, at a
minimum, ‘‘objects’’ and therefore are
not permitted to approach humpback
whales within 100 yds in Hawaiian
waters (within 200 nmi of the islands of
Hawaii).
Specifically, regarding the acquisition
of up-close footage of whales, the
regulations include exceptions to the
100-yd approach regulations for
humpback whales in Hawaii, including
an exception for vessels or persons
authorized under permit or
authorization issued by NMFS to take
humpback whales for purposes of
scientific research, enhancement
educational or commercial photography,
or during emergency response of
stranded or entangled marine mammals;
or persons authorized to incidentally
take humpback whales.
Comment 5: NMFS should consider a
drone or UAS to be an aircraft, rather
than an object, therefore prohibiting
their use within 1,000 ft of humpback
whales.
Response: NMFS understands that
UASs are considered ‘‘aircraft’’ by
Federal agencies, such as the Federal
Aviation Administration. UASs, at least
in their current form, are relatively
small and generate little noise and are
therefore unlikely to disturb humpback
whales if kept at a distance of 100 yds
from the whales. In the context of this
rule and, considering available data
regarding the effects of UASs on
humpback whales and other marine
mammals (see the National
Environmental Policy Act (NEPA)
Environmental Assessment (EA)
prepared for the interim final rule),
NMFS has determined that UASs are, at
a minimum, considered ‘‘objects’’ and
therefore are not to approach humpback
whales within 100 yds without a permit.
NMFS may change this determination in
the future if scientific information
becomes available showing whales react
to UASs within or beyond 100 yds.
Comment 6: The approach regulations
for humpback whales should specify
vessel operating procedures such as the
guidance developed for the HIHWNMS
and whale-watching guidance
developed by NMFS for humpback
whales in the northeastern United
States. The operating procedures should
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include guidance on vessel speed limits
depending on the distance from a
humpback whale, the angles at which a
vessel can approach and depart from a
humpback whale, and engine operating
procedures within various distances.
Response: The guidelines referenced
in this comment contain various
measures that are designed to protect
humpback whales and other marine
mammals. NMFS agrees that all of the
guidelines can be useful in protecting
humpback whales and other large whale
species. However, NMFS did not
include in the regulations any
provisions regarding speed, approach
angle, and engine operating procedures
within various distances because the
specifics of such provisions vary
according to different situations.
Therefore, these provisions are more
appropriate as guidelines rather than
regulations, which must be followed at
all times except in limited situations
(i.e., the exceptions to the rule). These
general guidelines may be used to
supplement the minimum approach
regulations, but the regulations must be
complied with at all times unless an
exception applies.
Classification
National Environmental Policy Act
(NEPA)
NMFS prepared an EA pursuant to
NEPA (42 U.S.C. 4321, et seq.) to
support the interim final rule published
on September 8, 2016. NMFS also
provided an opportunity for public
comment on the EA; however, no public
comments were received. The EA
contains an analysis of two no-action
alternatives and two action alternatives.
Several elements were common to both
of the action alternatives analyzed,
including the preferred alternative
described in the interim final rule, and
several exceptions that would apply to
the alternatives. Because the preferred
alternative in the interim final rule is
the same as in this final rule, an updated
NEPA document is unnecessary. The EA
with the Finding of No Significant
Impact is available for download on the
NMFS Pacific Islands Region website
https://www.fisheries.noaa.gov/species/
humpback-whale.
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Executive Order 12866
This final rule has been determined to
be not significant for purposes of
Executive Order (E.O.) 12866.
Paperwork Reduction Act
The purpose of the Paperwork
Reduction Act is to minimize the
paperwork burden for individuals, small
businesses, educational and nonprofit
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institutions, and other persons resulting
from the collection of information by or
for the Federal government. The final
rule includes no new collection of
information, so further analysis is not
required.
Coastal Zone Management Act
NMFS determined that the interim
final rule would be implemented in a
manner consistent, to the maximum
extent practicable, with the enforceable
policies of the approved coastal zone
management program of the State of
Hawaii. The State of Hawaii’s Coastal
Zone Management Program (the
responsible State agency under section
307(c)(1) of the Federal Coastal Zone
Management Act (CZMA) of 1972)
provided a letter, dated May 13, 2016,
concurring with NMFS’s federal
consistency determination. Because the
interim final rule is substantively the
same as this final rule, no updated
CZMA documentation is necessary.
Executive Order 13132, Federalism
E.O. 13132 requires agencies to take
into account any federalism impacts of
regulations under development. It
includes specific directives for
consultation in situations in which a
regulation will preempt State law or
impose substantial direct compliance
costs on State and local governments
(unless required by statute). Neither of
those circumstances applies to this final
rule; therefore, this action does not have
federalism implications as that term is
defined in E.O. 13132.
Information Quality Act
Pursuant to section 515 of Public Law
106–554 (the Information Quality Act),
this information product has undergone
a pre-dissemination review by NMFS.
The signed Pre-dissemination Review
and Documentation Form is on file with
the NMFS Pacific Islands Regional
Office (see ADDRESSES).
Regulatory Flexibility Act
Under the Regulatory Flexibility Act
(RFA) (5 U.S.C. 601 et seq.) as amended
by the Small Business Regulatory
Enforcement Fairness Act (SBREFA) of
1996, whenever an agency publishes a
notice of rulemaking for any proposed
or final rule, it must prepare and make
available for public comment a
Regulatory Flexibility Analysis
describing the effects of the rule on
small entities, i.e., small businesses,
small organizations, and small
government jurisdictions. The final
regulations are exempt from the
requirements of the Regulatory
Flexibility Act because NMFS
determined that notice and public
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88265
comment when publishing the interim
final rule would have been
impracticable and against the public
interest.
List of Subjects in 50 CFR Part 216
Administrative practice and
procedure, Marine mammals.
Dated: December 14, 2023.
Samuel D. Rauch, III,
Deputy Assistant Administrator for
Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the
preamble, NMFS amends 50 CFR part
216 as follows:
PART 216—REGULATIONS
GOVERNING THE TAKING AND
IMPORTING OF MARINE MAMMALS
1. The authority citation for 50 CFR
part 216 continues to read as follows:
■
Authority: 16 U.S.C. 1361, et seq., unless
otherwise noted.
2. In § 216.19, revise paragraphs (a)(5)
and (b) to read as follows:
■
§ 216.19 Special restrictions for humpback
whales in waters surrounding the islands of
Hawaii.
(a) * * *
(5) Disrupt the normal behavior or
prior activity of a whale by any other act
or omission. A disruption of normal
behavior may be manifested by, among
other actions on the part of the whale,
a rapid change in direction or speed;
escape tactics such as prolonged diving,
underwater course changes, underwater
exhalation, or evasive swimming
patterns; interruptions of breeding,
nursing, or resting activities; attempts
by a whale to shield a calf from a vessel
or human observer by tail swishing or
by other protective movements; or the
abandonment of a previously frequented
area.
(b) Exceptions. The prohibitions of
paragraph (a) of this section do not
apply to:
(1) Federal, State, or local government
vessels, personnel, and assets, when
necessary, in the course of performing
official duties;
(2) Vessel operations necessary to
avoid an imminent and serious threat to
a person, vessel, or the environment;
(3) Vessels restricted in their ability to
maneuver that, because of this
restriction, are not able to comply with
approach restrictions; or
(4) Activities authorized through a
permit or authorization issued by the
National Marine Fisheries Service to
take humpback whales.
*
*
*
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[FR Doc. 2023–28091 Filed 12–20–23; 8:45 am]
BILLING CODE 3510–22–P
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]]>Agencies
[Federal Register Volume 88, Number 244 (Thursday, December 21, 2023)]
[Rules and Regulations]
[Pages 88262-88265]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-28091]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 216
[Docket No. 231214-0303]
RIN 0648-BF98
Approach Regulations for Humpback Whales in Waters Surrounding
the Hawaiian Islands Under the Marine Mammal Protection Act
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Department of Commerce.
ACTION: Final rule.
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SUMMARY: NMFS issues this final rule ``Approach Regulations for
Humpback Whales in Waters Surrounding the Islands of Hawaii under the
Marine Mammal Protection Act'' under the Marine Mammal Protection Act
(MMPA). This rule prohibits the ``take'' of humpback whales (Megaptera
novaeangliae), which means ``to harass, hunt, capture, or kill, or
attempt to harass, hunt, capture, or kill any marine mammal,'' within
200 nautical miles (nmi) (370.4 kilometers (km)) of the islands of
Hawaii from the detrimental effects resulting from approach by humans.
DATES: This rule is effective January 22, 2024.
ADDRESSES: Public comments and other supporting materials are available
at www.regulations.gov identified by docket number NOAA-NMFS-2016-0046
or by submitting a request to the Protected Resources Division,
National Marine Fisheries Service, Pacific Islands Regional Office,
1845 Wasp Blvd., Bldg. 176, Honolulu, HI 96818, Attn: Humpback Whale
Approach Regulations.
FOR FURTHER INFORMATION CONTACT: Elena Duke, NMFS, Pacific Islands
Regional Office, [email protected]; 808-725-5085.
SUPPLEMENTARY INFORMATION:
Background
Protections for humpback whales in Hawaii were initially
promulgated under the ESA, after NMFS determined that guidelines
published in 1979 as a ``Notice of Interpretation of `Taking by
Harassment' in Regard to Humpback Whales in the Hawaiian Islands Area''
(44 FR 1113; January 4, 1979) proved ineffective in protecting humpback
whales in Hawaii from tour vessel operators approaching closer than the
recommended viewing guidelines. The ESA rule that protected humpback
whales in Hawaii was published on November 23, 1987 as an interim final
rule (52 FR 44912), and then was finalized on January 19, 1995 (60 FR
3775). That rule made it unlawful to operate an aircraft within 1,000
feet (ft), approach by any means within 100 yards (yds), cause a vessel
or another object to approach within 100 yds, or disrupt the normal
behavior or prior activity of a humpback whale by any other act or
omission. Regulations regarding the implementation of the ESA were then
reorganized on March 23, 1999, with the section containing the approach
regulations for humpback whales in Hawaii, changed from 50 CFR 222.31
to 50 CFR 224.103 (64 FR 14052).
NMFS published a final ESA listing rule on September 8, 2016 (81 FR
62259) that revised the species-wide
[[Page 88263]]
listing and separated humpback whales into 14 DPSs. In that rule, the
humpback whales that use the waters surrounding Hawaii as their
breeding grounds are identified as the ``Hawaii DPS,'' which is not
listed under the ESA as endangered or threatened and, therefore, is no
longer protected under the ESA. Humpback whales in Hawaii would have
continued to be protected by approach regulations only within the
boundaries of the Hawaiian Islands Humpback Whale National Marine
Sanctuary (HIHWNMS) under the National Marine Sanctuaries Act (15 CFR
922.184(a)(1) and (2) and (b)).
However, NMFS determined that, although unpermitted take is
prohibited by the MMPA for humpback whales or any marine mammals in any
location, specific regulations were warranted to address approach and
human interactions that result in the take of humpback whales in
Hawaii. These specific regulations were warranted because: (1) humpback
whales are charismatic and sought out by local community members and
tourists; (2) commercial and recreational whale watchers and other tour
operators are expected to pursue humpback whales for close encounters
absent any protections; (3) increasing numbers of both humpback whales
and humans using Hawaiian waters raises the likelihood of human-whale
interactions; and (4) approaching whales during the breeding, calving,
and nursing season is likely to cause a disturbance that could
adversely affect reproduction and development of individuals.
Therefore, an interim final rule was published on September 8,
2016, to ensure that there was no lapse in protection for humpback
whales in Hawaii once the final ESA listing rule became effective on
October 11, 2016. The interim final rule prohibited operating an
aircraft within 1,000 ft (304.8 meters (m)) of a humpback whale,
approaching within 100 yds (91.4 m) of a humpback whale by any means,
causing a vessel, person or another object to approach within 100 yds
(91.4 m) of a humpback whale, or approaching a humpback whale by
interception (i.e., placing an aircraft, vessel, person, or another
object in the path of a humpback whale so that the whale approaches
within a restricted distance). The regulations also prohibited the
disruption of normal behavior or prior activity of a humpback whale by
any act or omission. Certain vessels and activities were exempted from
the prohibition.
This final rule serves to clarify the interim final rule by
amending regulatory language in paragraphs (a)(5) and (b) of 50 CFR
216.19. The changes to 50 CFR 216.19 include a punctuation correction
in paragraph (a)(5), a word change in paragraph (b)(3), and further
clarification of exception 1, described in paragraph (b)(1). This final
rule also amends the regulatory language in 50 CFR 216.19(b)(4) to
clarify the scope of NMFS-permitted or authorized activities that may
fall under that exemption. The exemption under 50 CFR 216.19(b)(4) in
the interim final rule reads ``vessels or persons authorized under
permit or authorization issued by NMFS to conduct scientific research
or response efforts that may result in taking of humpback whales.''
However, the exemption as worded in the interim rule leaves out other
potentially permitted or authorized activities. The intent of the rule
was not to preclude the issuance of permits or authorizations for
purposes of scientific research, enhancement, educational or commercial
photography, or during emergency response of stranded or entangled
marine mammals, or persons authorized to incidentally take humpback
whales consistent with the requirements of the MMPA. Therefore, NMFS is
amending 50 CFR 216.19(b)(4) to read, ``Activities authorized through a
permit or authorization issued by the National Marine Fisheries Service
to take humpback whales.''
Scope and Applicability
Applications to All Humpback Whales
Under the MMPA, the regulations apply to all humpback whales found
in the action area, as described below.
Geographic Action Area
The action area for this rule is limited to the waters within 200
nmi (370.4 km) from the shore of the islands of Hawaii. The islands of
Hawaii consist of the entire Hawaiian Archipelago, including the main
Hawaiian Islands (Hawai[revaps]i, Maui, Kaho[revaps]olawe,
L[amacr]na[revaps]i, Moloka[revaps]i, O[revaps]ahu, Kaua[revaps]i, and
Ni[revaps]ihau) and the Northwestern Hawaiian Islands.
Applications to All Forms of Approach
The regulations apply to all forms of approach in water and air.
Forms of approaching humpback whales include, but are not limited to,
operating a manned or unmanned motorized, non-motorized, self-
propelled, human-powered, or submersible vessel; operating a manned
aircraft; operating an unmanned aircraft system (UAS) or drone; and
swimming at the water surface or underwater (i.e., SCUBA or free
diving). UASs are, at minimum, objects, and therefore UASs are not to
approach humpback whales within 100 yds (91.4 m) without a permit. NMFS
may change this determination in the future if scientific information
becomes available showing humpback whales react to UASs within or
beyond 100 yds.
Approach Prohibitions
The regulations prohibit people from operating aircraft within
1,000 ft (304.8 m) or approaching by any means within 100 yds (91.4 m)
of humpback whales within the action area described above (see
Geographic Action Area). This includes an approach by interception
(i.e., placing an aircraft, vessel, person, or another object in the
path of a humpback whale so that the whale approaches within the
restricted distance), also known as ``leapfrogging.'' The regulations
also prohibit disrupting the normal behavior or prior activity of a
humpback whale. Disruption of normal behavior can include, but is not
limited to, a rapid change in direction or speed; escape tactics such
as prolonged diving, underwater course changes, underwater exhalation,
or evasive swimming patterns; interruptions of breeding, nursing, or
resting activities; attempts by a whale to shield a calf from a vessel
or human observer by tail swishing or by other protective movements; or
the abandonment of a previously frequented area.
Exceptions
The following specific categories are exempt from the regulations:
(1) Federal, State, or local government vessels, aircraft,
personnel, and assets, when necessary, in the course of performing
official duties;
(2) Vessel operations necessary to avoid an imminent and serious
threat to a person, vessel, or the environment;
(3) Vessels restricted in their ability to maneuver that, because
of this restriction, are not able to comply with approach restrictions;
or
(4) Activities authorized through a permit or authorization issued
by the National Marine Fisheries Service to take humpback whales.
Comments and Responses
NMFS solicited public comments on the interim final rule and
received 10 comments. Several comments contained similar
recommendations and/or questions and are consolidated. In response to
comments, NMFS concurred with comments of support and clarified why
NMFS is taking this action specific to humpback whales and not all
cetaceans. NMFS provided rationale for not including regulations on
speed, approach angle, and engine operating procedures in this rule
making. NMFS
[[Page 88264]]
provided clarification regarding enforcement of this regulation,
provided information on the classification of UAS systems, and
prohibitions of using UAS within 100 yards of humpback whales.
Responses to comments addressing significant issues are summarized
below.
Comment 1: Four commenters expressed support for the interim final
rule, with two of these commenters specifically stating support for
making 100 yds (91.4 m) the regulatory approach distance.
Response: NMFS concurs.
Comment 2: One commenter requested clarification on how NMFS will
enforce this approach regulation, how enforcement will contend with
efforts by restricted groups to adjust their services/methodologies to
conform to the rules of exemption, and how NMFS will manage those
situations where an innocent party unwittingly violates the
restrictions.
Response: Enforcement will be accomplished via all available means,
including through land and sea patrols conducted by the NOAA Office of
Law Enforcement, the United States Coast Guard, and State partners who
work with NMFS on outreach and enforcement under a cooperative joint
enforcement agreement (i.e., State of Hawaii's Division of Conservation
and Resources Enforcement (DOCARE), as well as through cases developed
through evidence submitted by citizens observing violations.
Regarding exceptions or exemptions to this rule, for exceptions to
apply, a person must be a Federal, State, or local government official
operating in the course of their official duties; avoiding an imminent
and serious threat to a person, vessel, or the environment; authorized
under permit or other authorization issued by NMFS; or operating a
vessel restricted in its ability to maneuver. Additional details
regarding exceptions to these regulations are provided in the final
rule below in (b) Exceptions. Any person claiming the benefit of any
exemption, exception, or permit has the burden of proving that the
exemption or exception is applicable. Enforcement officials will
consider and collect, as part of the normal investigative process, all
available evidence, including evidence tending to support a party's
claim to be exempt from the rule.
Regarding intent, the MMPA is a strict liability statute, meaning
the intention of a party violating a regulation issued under the MMPA
is not relevant for purposes of liability. Nonetheless, the Agency does
consider the individual circumstances of each violation in deciding on
an appropriate enforcement response and assessing any penalties. Under
the Agency's penalty policy, available to the public at https://www.gc.noaa.gov/enforce-office3.html, any penalties assessed for
unintentional violations are assessed at a lower level than penalties
assessed for intentional violations.
Comment 3: NMFS should extend this 100-yd approach regulation to
all cetaceans protected by the MMPA.
Response: We appreciate your concern for all cetaceans. In general,
the MMPA prohibits the take of marine mammals with section 3(13) (16
U.S.C. 1362(13)) of the MMPA defining the term ``take'' as ``to harass,
hunt, capture, or kill, or attempt to harass, hunt, capture, or kill
any marine mammal.'' These approach regulations are specific to
humpback whales in Hawaii because of geographic and species-specific
factors, including, but not limited to, (1) the fact that humpback
whales are sought out for encounters by the local community and
tourists; (2) safety concerns for both whales and humans created by a
desire of whale watch and other tour operators, as well as individuals,
to get as close as possible to the whales; (3) the importance of the
habitat around the Hawaiian Islands for breeding, calving, and
nurturing young; and (4) the increasing numbers of both humpback whales
and humans that use Hawaiian waters. In short, while unpermitted take
of marine mammals continues to be prohibited by the MMPA, NMFS believes
that specific regulations aimed at approach and human interactions that
result in the take of humpback whales in Hawaii are warranted.
Comment 4: Several commenters expressed concern regarding how this
regulation will affect the collection of up-close photos and video
footage if such activities are regulated at distances closer than 100
yds. Specifically, these commenters suggested that UASs or drones could
be allowed to collect up-close footage while posing minimal risk to the
humpback whales being observed. Two of these commenters noted that the
sound of boat engines even at over 100 yds away can produce more
vibrations and are far louder than some UASs, which generate noise that
is very low and of a frequency that would not penetrate the water to
any significant depth.
Response: As described in the interim final rule, research suggests
that close human interaction poses a significant threat to the health
and social structure of humpback whales. These threats can include
collisions, noise, visual, and other effects from interactions with
vessels, aircraft, persons, or objects. While some UASs create less
noise than vessels, there are situations in which noise and visual
effects have the potential to disturb the whales because of the UASs
use within 100 yds of humpback whales. Examples of some situations
include the use of multiple UASs around a single whale or groups of
whales and the use of UASs by inexperienced users. As a result, NMFS
has determined that UASs are, at a minimum, ``objects'' and therefore
are not permitted to approach humpback whales within 100 yds in
Hawaiian waters (within 200 nmi of the islands of Hawaii).
Specifically, regarding the acquisition of up-close footage of
whales, the regulations include exceptions to the 100-yd approach
regulations for humpback whales in Hawaii, including an exception for
vessels or persons authorized under permit or authorization issued by
NMFS to take humpback whales for purposes of scientific research,
enhancement educational or commercial photography, or during emergency
response of stranded or entangled marine mammals; or persons authorized
to incidentally take humpback whales.
Comment 5: NMFS should consider a drone or UAS to be an aircraft,
rather than an object, therefore prohibiting their use within 1,000 ft
of humpback whales.
Response: NMFS understands that UASs are considered ``aircraft'' by
Federal agencies, such as the Federal Aviation Administration. UASs, at
least in their current form, are relatively small and generate little
noise and are therefore unlikely to disturb humpback whales if kept at
a distance of 100 yds from the whales. In the context of this rule and,
considering available data regarding the effects of UASs on humpback
whales and other marine mammals (see the National Environmental Policy
Act (NEPA) Environmental Assessment (EA) prepared for the interim final
rule), NMFS has determined that UASs are, at a minimum, considered
``objects'' and therefore are not to approach humpback whales within
100 yds without a permit. NMFS may change this determination in the
future if scientific information becomes available showing whales react
to UASs within or beyond 100 yds.
Comment 6: The approach regulations for humpback whales should
specify vessel operating procedures such as the guidance developed for
the HIHWNMS and whale-watching guidance developed by NMFS for humpback
whales in the northeastern United States. The operating procedures
should
[[Page 88265]]
include guidance on vessel speed limits depending on the distance from
a humpback whale, the angles at which a vessel can approach and depart
from a humpback whale, and engine operating procedures within various
distances.
Response: The guidelines referenced in this comment contain various
measures that are designed to protect humpback whales and other marine
mammals. NMFS agrees that all of the guidelines can be useful in
protecting humpback whales and other large whale species. However, NMFS
did not include in the regulations any provisions regarding speed,
approach angle, and engine operating procedures within various
distances because the specifics of such provisions vary according to
different situations. Therefore, these provisions are more appropriate
as guidelines rather than regulations, which must be followed at all
times except in limited situations (i.e., the exceptions to the rule).
These general guidelines may be used to supplement the minimum approach
regulations, but the regulations must be complied with at all times
unless an exception applies.
Classification
National Environmental Policy Act (NEPA)
NMFS prepared an EA pursuant to NEPA (42 U.S.C. 4321, et seq.) to
support the interim final rule published on September 8, 2016. NMFS
also provided an opportunity for public comment on the EA; however, no
public comments were received. The EA contains an analysis of two no-
action alternatives and two action alternatives. Several elements were
common to both of the action alternatives analyzed, including the
preferred alternative described in the interim final rule, and several
exceptions that would apply to the alternatives. Because the preferred
alternative in the interim final rule is the same as in this final
rule, an updated NEPA document is unnecessary. The EA with the Finding
of No Significant Impact is available for download on the NMFS Pacific
Islands Region website https://www.fisheries.noaa.gov/species/humpback-whale.
Executive Order 12866
This final rule has been determined to be not significant for
purposes of Executive Order (E.O.) 12866.
Paperwork Reduction Act
The purpose of the Paperwork Reduction Act is to minimize the
paperwork burden for individuals, small businesses, educational and
nonprofit institutions, and other persons resulting from the collection
of information by or for the Federal government. The final rule
includes no new collection of information, so further analysis is not
required.
Coastal Zone Management Act
NMFS determined that the interim final rule would be implemented in
a manner consistent, to the maximum extent practicable, with the
enforceable policies of the approved coastal zone management program of
the State of Hawaii. The State of Hawaii's Coastal Zone Management
Program (the responsible State agency under section 307(c)(1) of the
Federal Coastal Zone Management Act (CZMA) of 1972) provided a letter,
dated May 13, 2016, concurring with NMFS's federal consistency
determination. Because the interim final rule is substantively the same
as this final rule, no updated CZMA documentation is necessary.
Executive Order 13132, Federalism
E.O. 13132 requires agencies to take into account any federalism
impacts of regulations under development. It includes specific
directives for consultation in situations in which a regulation will
preempt State law or impose substantial direct compliance costs on
State and local governments (unless required by statute). Neither of
those circumstances applies to this final rule; therefore, this action
does not have federalism implications as that term is defined in E.O.
13132.
Information Quality Act
Pursuant to section 515 of Public Law 106-554 (the Information
Quality Act), this information product has undergone a pre-
dissemination review by NMFS. The signed Pre-dissemination Review and
Documentation Form is on file with the NMFS Pacific Islands Regional
Office (see ADDRESSES).
Regulatory Flexibility Act
Under the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.)
as amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996, whenever an agency publishes a notice of rulemaking
for any proposed or final rule, it must prepare and make available for
public comment a Regulatory Flexibility Analysis describing the effects
of the rule on small entities, i.e., small businesses, small
organizations, and small government jurisdictions. The final
regulations are exempt from the requirements of the Regulatory
Flexibility Act because NMFS determined that notice and public comment
when publishing the interim final rule would have been impracticable
and against the public interest.
List of Subjects in 50 CFR Part 216
Administrative practice and procedure, Marine mammals.
Dated: December 14, 2023.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the preamble, NMFS amends 50 CFR part
216 as follows:
PART 216--REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE
MAMMALS
0
1. The authority citation for 50 CFR part 216 continues to read as
follows:
Authority: 16 U.S.C. 1361, et seq., unless otherwise noted.
0
2. In Sec. 216.19, revise paragraphs (a)(5) and (b) to read as
follows:
Sec. 216.19 Special restrictions for humpback whales in waters
surrounding the islands of Hawaii.
(a) * * *
(5) Disrupt the normal behavior or prior activity of a whale by any
other act or omission. A disruption of normal behavior may be
manifested by, among other actions on the part of the whale, a rapid
change in direction or speed; escape tactics such as prolonged diving,
underwater course changes, underwater exhalation, or evasive swimming
patterns; interruptions of breeding, nursing, or resting activities;
attempts by a whale to shield a calf from a vessel or human observer by
tail swishing or by other protective movements; or the abandonment of a
previously frequented area.
(b) Exceptions. The prohibitions of paragraph (a) of this section
do not apply to:
(1) Federal, State, or local government vessels, personnel, and
assets, when necessary, in the course of performing official duties;
(2) Vessel operations necessary to avoid an imminent and serious
threat to a person, vessel, or the environment;
(3) Vessels restricted in their ability to maneuver that, because
of this restriction, are not able to comply with approach restrictions;
or
(4) Activities authorized through a permit or authorization issued
by the National Marine Fisheries Service to take humpback whales.
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[FR Doc. 2023-28091 Filed 12-20-23; 8:45 am]
BILLING CODE 3510-22-P
