[Federal Register Volume 67, Number 20 (Wednesday, January 30, 2002)]
[Proposed Rules]
[Pages 4379-4382]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-2259]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 216

[Docket No. 020103001-2001-01;I.D. 122001B]
RIN: 0648-AN43


Preventing Harassment From Human Activities Directed at Marine 
Mammals in the Wild

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

ACTION: Advance notice of proposed rulemaking.

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SUMMARY: NMFS is considering whether to propose regulations to protect 
marine mammals in the wild from human activities that are directed at 
the animals and that have the potential to harass the animals. The 
scope of this advance notice of proposed rulemaking (ANPR) encompasses 
any activity of any person or conveyance engaged in direct interactions 
with marine mammals in the wild. NMFS requests comments on what type of 
regulations and other measures would be appropriate to prevent 
harassment of marine mammals in the wild caused by human activities 
directed at the animals.

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DATES: Comments must be received at the appropriate address or fax 
number (see ADDRESSES) no later than April 1, 2002.

ADDRESSES: Comments on this Advance Notice of Proposed Rulemaking 
(ANPR) should be addressed to Chief, Permits, Conservation and 
Education 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: Trevor Spradlin, Office of Protected 
Resources, 301-713-2289.

SUPPLEMENTARY INFORMATION:

Background

    Viewing whales, dolphins, porpoises, seals and sea lions in their 
natural habitat can be an educational and enriching experience if 
conducted safely and responsibly. Over the past decade, whale watching 
activities have grown into a billion dollar ($US) industry involving 
over 80 countries and territories and over 9 million participants (Hoyt 
2001). Increasing numbers of commercial operations are offering close 
interactions with wild marine mammals, including opportunities to swim 
with, touch or handle the animals.
    As human interactions with wild marine mammals increase, the risk 
of disturbing or injuring the animals also increases. The following 
human activities directed at marine mammals in the wild are of 
particular concern to NMFS:
    ``Swim-with'' activities: Over the past several years, swimming 
with wild dolphins has significantly increased in the Southeast U.S. 
and Hawaii, and is beginning to expand to other U.S. coastal areas and 
to other species of marine mammals. In the Southeast, swimming with 
bottlenose dolphins appears to be facilitated by illegal feeding 
activities, which have been prohibited since 1991 when NMFS amended the 
definition of ``take'' under 50 CFR 216.3 to include feeding or 
attempting to feed a marine mammal (56 FR 11693, March, 20, 1991). In 
Hawaii, where feeding of wild dolphins has not been a concern, swim 
activities primarily target Hawaiian spinner dolphins and take 
advantage of the dolphins' use of shallow coves and bays during the day 
to rest and care for their young. In the Southwest, tour operators are 
offering opportunities to dive and swim with gray whales, pilot whales, 
Pacific white-sided dolphins, harbor seals, and sea lions.
    Vessel-based interactions: The use of motorized or non-motorized 
vessels (e.g., outboard or inboard boats, kayaks, canoes, underwater 
scooters, or other types of water craft) to interact with marine 
mammals in the wild is also a rapidly growing activity nationwide. For 
example, NMFS has received complaints from researchers and members of 
the public that include: (1) operators of motorized vessels driving 
through groups of dolphins in order to elicit bow-riding behavior 
(e.g., bottlenose dolphins in the Southeast, spinner dolphins in 
Hawaii, Dall's porpoise in the Northwest); (2) kayakers and canoers 
utilizing the quiet nature of their vessels to closely approach and 
observe or photograph cetaceans and pinnipeds (e.g., killer whales in 
the Northwest, large whales and pinnipeds in California and the 
Northeast); (3) whale watchers attempting to touch and pet gray whales 
in California; (4) people using underwater ``scooters'' to closely 
approach, pursue and interact with the animals (e.g., dolphins in the 
Southeast); and (5) operators of personal watercraft tightly circling 
or crossing through groups of dolphins, often at high speed, to closely 
approach, pursue and interact with the animals (e.g., dolphins along 
the mid-Atlantic and Gulf of Mexico).
    Land-based interactions: Public interactions with marine mammals on 
land have increased in recent years. Elephant seals, harbor seals and 
sea lions in the Southwest, and monk seals in Hawaii, are closely 
approached by people for the purpose of observing them, posing with 
them for pictures, touching, petting, poking, throwing objects at them 
to elicit a reaction, or simply strolling among them.
    Researchers monitoring the effects of human disturbance on wild 
marine mammals report boat strikes, disruption of behaviors and social 
groups, separation of mothers and young, abandonment of resting areas, 
and habituation to humans (for some examples, see Kovacs and Innes 
1990, Kruse 1991, Janik and Thompson 1996, Wells and Scott 1997, 
Christie 1998, Samuels and Bejder 1998, Bejder et al. 1999, Colborn 
1999, Constantine 1999, Cope et al. 1999, Mortenson et al. 2000, 
Samuels et al. 2000, Constantine 2001, Lelli and Harris 2001, Nowacek 
et al. 2001).
    In addition, there are significant public safety considerations as 
people have been seriously injured while trying to interact with wild 
marine mammals. People have been bitten or otherwise injured while 
trying to closely approach, feed, swim with, pet or interact with wild 
cetaceans or pinnipeds (Webb 1978, Shane et al. 1993, NMFS 1994, Wilson 
1994, Orams et al. 1996, Seideman 1997, Christie 1998, Samuels and 
Bejder 1998, Samuels et al. 2000). In one case, a dolphin killed a 
swimmer who was harassing the animal (Santos 1997). Some marine mammals 
that have injured people have been labeled as ``nuisance animals,'' and 
individuals have requested the animals be removed from the wild or 
euthanized.
    The Marine Mammal Protection Act of 1972, 16 U.S.C. 1361 et seq. 
(MMPA), prohibits the ``take'' of marine mammals which includes 
``harassment.'' Section 3(13) of the MMPA defines the term ``take'' as 
``to harass, hunt, capture, or kill, or attempt to harass, hunt, 
capture, or kill any marine mammal.'' Section 3(18)(A) of the MMPA 
defines the term ``harassment'' as ``any act of pursuit, torment, or 
annoyance which - (i) has the potential to injure a marine mammal or 
marine mammal stock in the wild, (Level A harassment), or (ii) has the 
potential to disturb a marine mammal or marine mammal stock in the wild 
by causing disruption of behavioral patterns, including, but not 
limited to, migration, breathing, nursing, breeding, feeding, or 
sheltering (Level B harassment).''
    In addition, NMFS regulations implementing the MMPA specify that 
the term ``take'' includes: the negligent or intentional operation of 
an aircraft or vessel, or the doing of any other negligent or 
intentional act which results in disturbing or molesting a marine 
mammal; and feeding or attempting to feed a marine mammal in the wild 
(50 CFR 216.3).
    The MMPA does not provide for a permit or other authorization 
process to view or interact with wild marine mammals, except for 
specific listed purposes such as scientific research. Therefore, 
interacting with wild marine mammals should not be attempted, and 
viewing marine mammals must be conducted in a manner that does not 
harass the animals. NMFS cannot support, condone, approve or authorize 
activities that involve closely approaching, interacting or attempting 
to interact with whales, dolphins, porpoises, seals or sea lions in the 
wild. This includes attempting to swim with, pet, touch or elicit a 
reaction from the animals. NMFS believes that such interactions 
constitute ``harassment'' as defined in the MMPA since they involve 
acts of pursuit, torment or annoyance that have the potential to injure 
or disrupt the behavioral patterns of wild marine mammals.
    Each of the five NMFS Regions has developed recommended viewing 
guidelines to educate the general public on how to responsibly view 
marine

[[Page 4381]]

mammals in the wild and avoid harassing them (e.g., minimum approach 
distances for observing the animals on land or on board a vessel; use 
binoculars or telephoto lenses to get a good view of the animals; limit 
observation time to 30 minutes or less). NMFS Regional Wildlife Viewing 
Guidelines for Marine Mammals are available on line at: http://www.nmfs.noaa.gov/prot_res/MMWatch/MMViewing.html
    NMFS recognizes that there are situations where wild marine mammals 
will approach people on their own accord, either out of curiosity or to 
ride the bow wave/surf the stern wake of a vessel underway. If wild 
marine mammals approach a vessel underway, NMFS recommends that the 
vessel maintain its course and avoid abrupt changes in direction or 
speed to avoid running over or injuring the animals. Vessels that are 
stationary should remain still to allow the animals to pass. If wild 
marine mammals enter an area used by swimmers or divers, NMFS 
recommends avoiding abrupt movements and moving away. Under no 
circumstances should people try to feed, touch, pet, ride or chase 
marine mammals in the wild.
    To support these guidelines, NMFS initiated a nationwide education 
and outreach program and in 1997 expanded its efforts by developing the 
``Protect Dolphins'' campaign to address growing concerns about feeding 
and harassment activities with wild dolphins in the Southeast. In 1998, 
NMFS further expanded its education and outreach efforts by joining 
Watchable Wildlife, a consortium of federal and state wildlife agencies 
and wildlife interest groups that encourages passive viewing of 
wildlife from a distance for the safety and well-being of both animals 
and people (Duda 1995, Oberbillig 2000).
    The guidelines have relied on voluntary compliance by the public 
and commercial operators. Although ``takes'' may be prosecuted under 
the MMPA, the guidelines themselves are not enforceable. After more 
than a decade of extensive efforts to promote NMFS' educational message 
and marine mammal viewing guidelines, noncompliance continues. For 
example, advertisements on the Internet and in local media in Hawaii, 
California and Florida are promoting activities that clearly contradict 
the NMFS guidelines and appear to depict harassment of the animals. 
NMFS has received letters from the Marine Mammal Commission (MMC), 
members of the scientific research community, environmental groups, the 
public display community, and members of the general public expressing 
the view that swimming with and other types of interactions with wild 
marine mammals have the potential to harass the animals by causing 
injury or disruption of normal behavior patterns. NMFS has also 
received inquiries from members of the public and commercial tour 
operators requesting clarification on NMFS' policy and the MMPA 
restrictions on closely approaching, swimming with or interacting with 
wild cetaceans.
    The MMC sponsored a literature review by Samuels et al. (2000) to 
compile information regarding human interactions with marine mammals in 
the wild. Upon review of the report, the MMC stated:
    ``The information and analyses in the report provide compelling 
evidence that any efforts to interact intentionally with dolphins in 
the wild are likely to result in at least Level B harassment and, in 
some cases, could result in the death or injury of both people and 
marine mammals.''
    The MMC therefore recommended to NMFS that it ``promulgate 
regulations specifying that any activity intended to enable in-water 
interactions between humans and dolphins in the wild constitutes a 
taking and is prohibited'' (Letter from MMC to NMFS dated May 23, 
2000). Based on both the scientific evidence and the legal framework of 
the MMPA, NMFS believes that these concerns apply equally to all 
species of whales, dolphins, porpoises, seals and sea lions.
    On August 3, 1992, NMFS published proposed regulations (57 FR 
34101) to provide greater protection for marine mammals by specifying, 
among other actions, minimum distances that people, vessels, and 
aircraft should maintain from these animals to avoid harming them. NMFS 
withdrew the proposed regulations on March 29, 1993 (58 FR 16519) to 
further evaluate the comments received and to consider alternatives for 
addressing the problem of close approach of marine mammals by vessels/
persons. Since then, NMFS has continued to monitor the growing body of 
scientific evidence regarding the impacts of human activities directed 
at marine mammals in the wild, and NMFS has routinely received letters 
of concern from researchers, wildlife protection groups and private 
citizens regarding human interactions with wild marine mammals. As a 
result, NMFS has concluded that development of a proposed rule to 
prevent harassment from human activities directed at marine mammals in 
the wild may be warranted.

Request for Comments

    NMFS is requesting comments on what type of regulations and other 
measures would be appropriate to prevent harassment from human 
activities directed at marine mammals in the wild. NMFS offers several 
possible options for consideration and comment, and recognizes that 
other possibilities may exist including a combination of the following:
    Codify the current NMFS Regional marine mammal viewing guidelines - 
Codifying the guidelines as regulations would make them requirements 
rather than recommendations, and would provide for enforcement of these 
provisions and penalties for violations.
    Codify the current marine mammal viewing guidelines with 
improvements - The current guidelines could be revised to more clearly 
address specific activities of concern, and then codified as 
enforceable regulations.
    Establish minimum approach rule - Similar to the minimum approach 
rules for humpback whales in Hawaii and Alaska, and right whales in the 
North Atlantic (50 CFR 224.103; 66 FR 29502, May 31, 2001), a limit 
could be established by regulation to accommodate a reasonable level of 
wildlife viewing opportunity while minimizing harassment from human 
activities directed at marine mammals in the wild. If establishing a 
minimum approach rule is appropriate, then NMFS would have to consider 
whether or not distances should be specific to particular species and/
or Regions, and whether or not distances should be consistent between 
vessel platforms and from land. NMFS would consider exceptions for 
situations in which marine mammals approach vessels or humans as well 
as other situations in which approach is not reasonably avoidable.
    Restrict activities of concern - Similar to the prohibition on 
feeding wild marine mammals, a regulation amending the definition of 
``take'' and/or ``harassment'' could clarify which specific activities 
are prohibited, e.g., interacting or attempting to interact with a 
marine mammal in the wild. Interaction would include swimming with, 
touching (either directly or with an object), posing with, or otherwise 
acting on or with a marine mammal. This would include interaction by 
any means or medium, including interception, on land, on/in the water, 
or from the air. It would also include operating a vessel or providing 
other platforms from which interactions are conducted or supported.


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    Dated: January 24, 2002.
William T. Hogarth,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

References

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[FR Doc. 02-2259 Filed 1-29-02; 8:45 am]
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