Rule2023-28091
Approach Regulations for Humpback Whales in Waters Surrounding the Hawaiian Islands Under the Marine Mammal Protection Act
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Published
December 21, 2023
Effective
January 22, 2024
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
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.
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<title>Federal Register, Volume 88 Issue 244 (Thursday, December 21, 2023)</title>
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[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 [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[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 <a href="http://www.regulations.gov">www.regulations.gov</a> 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, <a href="/cdn-cgi/l/email-protection#82e7eee7ece3ace6f7e9e7c2ecede3e3ace5edf4"><span class="__cf_email__" data-cfemail="cda8a1a8a3ace3a9b8a6a88da3a2acace3aaa2bb">[email protected]</span></a>; 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 <a href="http://www.gc.noaa.gov/enforce-office3.html">http://www.gc.noaa.gov/enforce-office3.html</a>, 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 <a href="https://www.fisheries.noaa.gov/species/humpback-whale">https://www.fisheries.noaa.gov/species/humpback-whale</a>.
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.
* * * * *
[FR Doc. 2023-28091 Filed 12-20-23; 8:45 am]
BILLING CODE 3510-22-P
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