[Federal Register Volume 65, Number 2 (Tuesday, January 4, 2000)]
[Proposed Rules]
[Pages 270-272]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-87]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 216 and 222

[Docket No. 990901242-9242-01; I.D.072099E]


North Atlantic Whale Protection

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Advance notice of proposed rulemaking.

-----------------------------------------------------------------------

SUMMARY: NMFS publishes an advance notice of proposed rulemaking (ANPR) 
in response to a request by the Whale Watch Advisory Group (WWAG) that 
NMFS solicit comments on the appropriateness of codifying, through 
rulemaking, operational procedures for vessels engaged in whale 
watching in NMFS Northeast Region (Virginia to Maine).
    The scope of this ANPR encompasses the activity of any vessel 
(commercial or private) that is engaged in whale watching. NMFS is 
requesting comments on whether existing whale protection measures are 
adequate to address the potential threat of injury or mortality by 
vessels engaged in whale watching (commercial and private) to large 
whales, (primarily humpback, fin, and minke whales), and, if not, what 
whale protection measures are needed.

DATES: Comments must be received at the appropriate address or fax 
number

[[Page 271]]

(see ADDRESSES) no later than 5 p.m. eastern standard time, on March 6, 
2000.

ADDRESSES: Comments on this Advance Notice of Proposed Rulemaking 
(ANPR) should be addressed to Chief, Permits Division, Office of 
Protected Resources, National Marine Fisheries Service, 1315 East-West 
Highway, Silver Spring, MD 20910, or fax to 301-713-0376.

FOR FURTHER INFORMATION CONTACT: Ann Terbush, Office of Protected 
Resources, 301-713-2289; or Doug Beach, Northeast Region, 978-281-9254.

SUPPLEMENTARY INFORMATION:

Background

    Whale watching is a popular recreational activity in the Stellwagen 
Bank National Marine Sanctuary (SBNMS) and throughout the Northeast 
Region. Whale watch vessel operators seek out areas where whales 
congregate. This has led to large numbers of vessels gathering around 
groups of whales, which has increased the potential for harassment, 
injury or even the death of these animals. NMFS has received complaints 
from the public charging that marine mammals are being harassed and 
injured by commercial whale watching, fishing, and pleasure craft 
vessels. In 1998, whale watch vessels struck two whales while returning 
to their home port. In 1997, there was a report from a private citizen 
while aboard a whale watch excursion that the vessel had hit a whale. 
There were no reported ship strikes of whales by vessels engaged in 
whale watching in 1999; however, there were three reports of harassment 
in 1999 which are all currently under investigation.
    NMFS Northeast Region has attempted to address the impacts of whale 
watching through a combination of enforcing the Marine Mammal 
Protection Act (MMPA) and Endangered Species Act (ESA) prohibitions 
against the taking of listed species, and issuing operational 
guidelines to give vessel operators guidance on how to approach large 
whales without causing harassment. In addition, to minimize the 
detrimental effects of directed vessel interactions with northern right 
whales, NMFS issued an interim final rule prohibiting the approach of a 
right whale within 500 yards on February 13, 1997. Although this rule 
provides certain exemptions, it generally prohibits vessels and 
aircraft from approaching a right whale within 500 yards, and is 
believed to provide adequate protection to this species from whale 
watching vessels.
    The Recovery Plan for the Northern Humpback Whale (NMFS, 1991) 
places high priority on reducing any detrimental effects of directed 
vessel interactions with that species, specifically in regard to 
collisions with ships or boats. The Northeast Implementation Team, 
established by NMFS to implement the ESA Right Whale and Humpback Whale 
Recovery Plans, set up the WWAG under its Ship Strike Sub-Committee to 
look into appropriate measures to address what is believed to be an 
increasing threat to whales, as evidenced by the whale watch vessel 
strikes in 1998 and recent reports of harassment. The WWAG is made up 
of representatives from the whale watch industry, conservation 
organizations, and state and Federal agencies.
    In March, 1999, the WWAG recommended that NMFS revise its 1985 
whale watch guidelines to help address the issue, and prepare an ANPR 
to solicit comments on the appropriateness of codifying, through 
rulemaking, operational procedures for vessels engaged in whale 
watching in the Northeast Region. NMFS revised the guidelines as 
requested by the WWAG on June 1, 1999 (64 FR 29270). The guidelines 
were revised to provide specific vessel speed recommendations, decrease 
the number of vessels in close proximity to whales, recommend the use 
of lookouts when entering or departing known whale aggregation areas, 
and increase the circular Whale Awareness Zone.
    The U.S. Coast Guard (USCG), in performing its maritime law 
enforcement role under the ESA, has monitored whale watch operations at 
various times. The USCG established a program utilizing the Coast Guard 
Auxiliary to monitor whale watching activities in the Stellwagen Bank 
National Marine Sanctuary (SBNMS) and elsewhere in NER waters during 
the 1999 season. Observations are conducted from USCG vessels and 
aircraft, and by placing uniformed, specially trained Auxiliary 
observers in the wheel houses of whale watch vessels. However, it 
should be noted that the USCG Auxiliary has no enforcement authority.
    USCG Auxiliary observers provide written reports of their 
observations to NOAA. NMFS and SBNMS intend to review all comments and 
recommendations received, as well as information received on observed 
compliance with the revised guidelines, in the course of determining 
whether to propose a rule.

Request for Comments

    NMFS is requesting comments on (1) whether existing whale 
protection measures are adequate to address the potential threat of 
injury or mortality by vessels engaged in whale watching (commercial 
and private) to large whales, (primarily humpback, fin, and minke 
whales), and, if not, (2) what whale protection measures are needed. 
NMFS offers the following as possible options:
    Further revisions of the existing whale watch guidelines - The 
revised guidelines include several measures intended to decrease the 
likelihood of adverse interactions with whales, such as collisions. The 
revised guidelines, which cover an area two miles from any observed 
whale: (1) establish certain speed levels as a vessel approaches or 
departs from observed whales at two miles (13 knots), one mile (10 
knots), and one-half mile (7 knots); (2) provide more specific 
instructions for multi-vessel approaches within 600 feet and a maximum 
number of vessels (three) within that area; and (3) recommend the 
posting of a dedicated lookout when vessels are within two miles of 
observed whales to keep track of all whales in the vicinity. The 
guidelines could be further revised to increase or decrease these 
requirements or establish new ones, such as minimum approach distances 
or general speed restrictions in specific whale high use areas.
    Codify the whale watch guidelines - Codifying the whale watch 
guidelines as regulations would make them requirements rather than just 
recommendations, and would provide for enforcement of these provisions 
and penalties for violations.
    Minimum approach rules - Similar to the right whale minimum 
approach rule, some limit could be established by regulation to 
accommodate a reasonable level of whale watching opportunity while 
providing space for individual animals to avoid harassment and possible 
injury. This could be accomplished independently of any revision or 
codification of the whale watch guidelines.
    Operator Permit or Certification Program - Requiring operators of 
vessels engaged in whale watching to obtain a permit or certification. 
Issuance of a permit or certification would be based on the operator 
demonstrating knowledge of whale behavior and proper whale watch vessel 
operation. Sanctions, up to and including loss of permit or 
certification for nonconformance with applicable regulations, would be 
possible.


[[Page 272]]


    Dated: December 28, 1999.
Penelope D. Dalton,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
[FR Doc. 00-87 Filed 1-3-00; 8:45 am]
BILLING CODE 3510-22-F