[Federal Register Volume 60, Number 12 (Thursday, January 19, 1995)]
[Rules and Regulations]
[Pages 3775-3776]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-1340]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 222
[Docket No. 950106004-5004-01; I.D. 121494C]
RIN 0648-AB79
Endangered Fish or Wildlife; Special Prohibitions; Approaching
Humpback Whales in Hawaiian Waters
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: NMFS issues a rule that prohibits aircraft from approaching
closer than 1,000 ft (300 m) to a humpback whale, and prohibits vessels
or people from approaching by any means closer than 100 yd (90 m) to a
humpback whale in Hawaiian waters. These provisions were contained in
an interim rule issued in 1987. The interim rule also identified cow/
calf waters and contained provisions concerning approaches to humpback
whales in these areas. Section 17 of the Marine Mammal Protection Act
Amendments of 1994 terminated the latter provisions. This rule
implements the statutory change.
EFFECTIVE DATE: January 19, 1995.
ADDRESSES: Hilda Diaz-Soltero, Regional Director, Southwest Region,
National Marine Fisheries Service, 501 West Ocean Blvd., Suite 4200,
Long Beach, CA 90802-4213.
FOR FURTHER INFORMATION CONTACT: Eugene T. Nitta, Protected Species
Program Manager, 808-973-2937; Dean Wilkinson, Marine Mammal Division,
Office of Protected Resources, 301-713-2322; James H. Lecky, Chief,
Protected Species Management Division, 310-980-4015.
SUPPLEMENTARY INFORMATION:
Background
On November 23, 1987, NMFS published an interim rule (52 FR 44912-
44915) regulating the approach to humpback whales in Hawaii (50 CFR
222.31). Paragraph (b) described certain waters as cow/calf waters and
specified a minimum approach distance of 300 yd (270 m) to humpback
whales in these areas. Section 17 of the Marine Mammal Protection Act
Amendments of 1994 (Public Law 103-238) provides that it is legal to
approach no closer than 100 yd (90 m) to a humpback regardless of
whether the approach is made in waters designated as cow/calf waters.
Section 17(b) of the statute provides:
Subsection (b) of section 222.31 of title 50, Code of Federal
Regulations, shall cease to be in force and effect.
This rule implements the statutory provision. The change to the
regulations is nondiscretionary and technical in nature.
Classification
This final rule has been determined to be not significant for
purposes of E.O. 12866. Because this rule implements a statutory
determination under which the Agency has no flexibility for
implementation, the Assistant Administrator for Fisheries, NOAA, under
section 553(b) (B) and (d) of the Administrative Procedure Act (5
U.S.C. 553 et seq.) for good cause finds that it is unnecessary to
provide notice and public comment on this rule, or to delay for 30 days
its effective date. As NMFS is unable to consider alternatives to the
statutory mandate, the preparation of an environmental assessment under
the National Environmental Policy Act is not required, and none was
prepared. Because this rule is being issued as a final rule without
prior public comment, a regulatory flexibility analysis is not required
under the Regulatory Flexibility Act, and none has been prepared. This
final rule is expected to result in no economic costs to the public.
List of Subjects in 50 CFR Part 222
Administrative practice and procedure, Endangered and threatened
species, Exports, Imports, Reporting and recordkeeping requirements,
Transportation.
Dated: January 12, 1995.
Charles Karnella,
Acting Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For reasons set out in the preamble, 50 CFR part 222 is amended as
follows:
PART 222--ENDANGERED FISH OR WILDLIFE
1. The authority citation for part 222 continues to read as
follows:
Authority: 16 U.S.C. 1531-1543.
2. Section 222.31 is revised to read as follows:
Sec. 222.31 Approaching humpback whales in Hawaii.
Except as provided in subpart C (Endangered Fish or Wildlife
Permits) of this part 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
[[Page 3776]]
to be committed, within 200 nautical miles (370.4 km) of the Islands of
Hawaii, any of the following acts with respect to humpback whales
(Megaptera novaeangliae):
(a) Operate any aircraft within 1,000 ft (300 m) of any humpback
whale; or
(b) Approach by any means, within 100 yd (90 m) of any humpback
whale; or
(c) Cause a vessel or other object to approach within 100 yd (90 m)
of a humpback whale; or
(d) 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 movement; or the abandonment of a
previously frequented area.
[FR Doc. 95-1340 Filed 1-18-95; 8:45 am]
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