[Federal Register Volume 78, Number 48 (Tuesday, March 12, 2013)]
[Proposed Rules]
[Pages 15669-15672]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-05646]



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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 216

[Docket No.: 111207730-1729-01]
RIN 0648-BB71


Marine Mammals: Alaska Harbor Seal Habitats

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

ACTION: Advance notice of proposed rulemaking; request for comments.

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SUMMARY: NMFS is considering whether to propose regulations to protect 
glacially-associated harbor seal habitats in Alaska used for pupping, 
nursing, resting, and molting and limit vessel disturbance to harbor 
seals in those habitats. The scope of this advance notice of proposed 
rulemaking (ANPR) encompasses the activities of any person or vessel 
that may diminish the value of glacial habitats for harbor seals, 
result in the unauthorized taking of harbor seals, or cause detrimental 
individual- or population-level impacts. NMFS requests information and 
comments on whether regulations are needed, and if so, what type of 
measures would be appropriate to protect harbor seals from the effects 
of vessel activity in glacial habitats. Any comments or information 
received in response to this ANPR will be considered prior to any 
proposed rulemaking.

DATES: Written comments must be received on or before May 13, 2013.

ADDRESSES: You may submit comments on this document, identified by FDMS 
Docket Number [NOAA-NMFS-2011-0284] by any one of the following 
methods:
     Electronic Submission: Submit all electronic public 
comments via the Federal eRulemaking Portal at http://www.regulations.gov/#!docketDetail;D=[NOAA-NMFS-2011-0284], click the 
``Comment Now!'' icon, complete the required field, and enter or attach 
your comments.
     Mail: Address written comments to Jon Kurland, Assistant 
Regional Administrator for Protected Resources, Alaska Region NMFS, 
Attn: Ellen Sebastian. Mail comments to P.O. Box 21668, Juneau, AK 
99802-1668.
     Fax: Address written comments to Jon Kurland, Assistant 
Regional Administrator for Protected Resources, Alaska Region NMFS, 
Attn: Ellen Sebastian. Fax comments to (907) 586-7557.
     Hand delivery to the Federal Building: Address written 
comments to Jon Kurland for Assistant Regional Administrator for 
Protected Resources, Alaska Region NMFS, Attn: Ellen Sebastian. Deliver 
comments to 709 West 9th Street, Room 420A, Juneau, AK.
    Instructions: Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered by NMFS. All comments received are a part of the 
public record and will generally be posted for public viewing on 
www.regulations.gov without change. All Personal Identifying 
Information (e.g., name, address, etc.), confidential business 
information, or otherwise sensitive information submitted voluntarily 
by the sender will be publicly accessible. NMFS will accept anonymous 
comments (enter ``N/A'' in the required fields, if you wish to remain 
anonymous). Attachments to electronic comments will be accepted in 
Microsoft Word, Excel, or Adobe PDF file formats only.

FOR FURTHER INFORMATION CONTACT: Alicia Bishop, Marine Mammal 
Specialist, Protected Resources Division, NMFS Alaska Region, at (907) 
586-7224 or [email protected].

SUPPLEMENTARY INFORMATION: This notice is issued under the authority of 
the Marine Mammal Protection Act (MMPA) (16 U.S.C. 1361 et seq.).

Background

Current MMPA Prohibitions and NMFS Guidelines and Regulations

    The Marine Mammal Protection Act (MMPA), 16 U.S.C. 1361 et seq., 
contains a general prohibition on take of marine mammals. 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.'' 
Except with respect to military readiness activities and certain 
scientific research activities, 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].''
    NMFS regulations implementing the MMPA further describe the term 
``take'' to include: ``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'' (50 CFR 
216.3). The MMPA provides limited exceptions to the prohibition on take 
for activities such as scientific research, public display, and 
incidental take in commercial fisheries or incidental take by persons 
engaged in other specified activities. Such activities require a permit 
or authorization, which may be issued only after a thorough agency 
review. NMFS has developed regulations for vessel approaches to marine 
mammals, pursuant sections 112(a) of the MMPA and 11(f) of the ESA. If 
NMFS develops proposed regulations to protect harbor seals from the 
effects of vessel activity in glacial habitats, the agency would rely 
on its authority under section 112(a) of the MMPA to promulgate the 
regulations.
    To date, NMFS has regulated close vessel approaches to marine 
mammals in Hawaii, Alaska, and the North Atlantic. In 1995, NMFS 
published a final rule to establish a 100-yard (91-m) approach limit 
for humpback whales (Megaptera novaeangliae) in Hawaii (60 FR 3775, 
January 19, 1995). In 1997, an interim final rule was published to 
prohibit approaching critically endangered North Atlantic right whales 
(Eubalaena glacialis) closer than 500 yards (457 m) (62 FR 6729, 
February 13, 1997). In 2001, NMFS published a final rule (66 FR 29502, 
May 31, 2001) establishing a 100-yard (91-m) approach limit for 
humpback whales in Alaska that included a ``slow, safe speed'' 
provision for vessels operating near a humpback whale. In 2011, NMFS 
published a final rule (76 FR 20870, April 14, 2011) prohibiting 
vessels from approaching killer whales (Orcinus orca) within 200 yards 
(183 m) and from parking in the path of whales when in inland waters of 
Washington State. The purpose of the regulation is to protect killer 
whales from interference and noise associated with vessels.
    Vessel speed is also restricted to protect North Atlantic right 
whales in key port entrances along the U.S. Atlantic seaboard during 
periods that correspond to right whale occurrence. These regulations 
implement speed restrictions of 10 knots or less for certain vessels 
(65 ft or greater) to reduce the likelihood and severity of ship 
collisions with right whales. Other measures to protect right whales 
include reconfiguration of certain traffic separation schemes, 
voluntary dynamic management areas, and Mandatory Ship Reporting 
systems.
    In addition to specific regulations that apply to the viewing of 
marine wildlife,

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NMFS provides general guidance to minimize the chances of a ``take'' 
occurring during wildlife viewing activities. This guidance is 
consistent with that of many federal and state agencies who advocate 
responsible wildlife viewing to observe animal behavior in the wild 
without causing disturbance. Each of the six NMFS Regions has developed 
recommended viewing guidelines to educate the general public on how to 
view marine mammals responsibly in the wild and avoid causing take. 
Guidelines for marine mammal viewing in Alaska are available on the 
Internet at: http://www.fakr.noaa.gov/protectedresources/mmv/guide.htm. 
The NMFS ``Code of Conduct'' under the marine mammal viewing guidelines 
for viewing harbor seals (Phoca vitulina richardii) in Alaska 
recommends that users remain at least 100 yards (91m) away, and advises 
viewers to use extra caution when viewing seals hauled out on land or 
ice as harassment may occur at distances greater than 100 yards. 
Further, the guidelines state that when viewing marine mammals, actions 
should not cause a change in the behavior of the animals. Viewers 
should avoid making the animals aware of their presence by keeping 
noise low, staying hidden, and staying downwind. Pups are often left 
alone while the mother feeds and should not be disturbed.
Need for Increased Harbor Seal Management in Glacial Fjords in Alaska
    In Alaska, harbor seals range from southeast Alaska, west through 
the Gulf of Alaska and Aleutian Islands, in the Bering Sea north to 
Cape Newenham, and the Pribilof Islands. However, tidewater glacial 
habitats are only available to seals in south-central and southeast 
Alaska. Tidewater glacier areas serve as important habitats for harbor 
seals supporting some of the largest aggregations of this species in 
the world. Consolidated areas of floating glacial ice serve as 
important substrate for harbor seals to rest, give birth, nurse, and 
molt. In total, fewer than two dozen ice-filled inlets in Alaska 
provide this unique form of seal habitat. An estimated 10-15% of the 
harbor seals in Alaska depend seasonally on these glacial habitats 
(Bengtson et al. 2007); in some glacial areas, such as Icy Bay near 
Yakutat, minimum seal counts have been as high as 5,000 seals (Jansen 
et al. 2006, Jansen et al. 2010b). Some authors have suggested that 
these aggregations serve as source populations given the higher harbor 
seal productivity compared to terrestrial sites (Hoover 1983, Womble et 
al. 2010).
    Over the last few decades, harbor seal abundance has significantly 
declined in two glacial fjords: Glacier Bay in southeast Alaska and 
Aialik Bay in south-central Alaska (Hoover-Miller 1994; Mathews and 
Pendleton 2006; Womble et al. 2010; Hoover-Miller et al. 2011). 
Declining populations in these areas are a concern because glacial 
fjords are believed to provide seals refuge from predators and provide 
habitat for large aggregations of seals. A decline in the quality of 
this habitat (i.e., carrying capacity) via vessel disturbance could 
have broader impacts on harbor seal populations statewide. In addition, 
glacial sites in Alaska are now experiencing high rates of ice loss due 
to climate change, which is likely to further alter habitat quality and 
may lead to compromised population health (Arendt et al. 2002; Larsen 
et al. 2007; Womble et al. 2010).
    Vessel-based tourism in Alaska has been increasing rapidly over the 
last few decades. In particular, there has been a dramatic increase in 
the number of larger cruise ships (i.e., carrying >=250 passengers) 
visiting tidewater glacial fjords. The number of cruise ship passengers 
visiting Alaska per year now exceeds 1 million (Alaska Department of 
Commerce 2012). Currently about 500 ship visits per year occur in 
fjords that do not have specific rules regarding approaches to seals, 
and a recent study indicates that there are high levels of seal 
disturbance despite existing voluntary guidelines for approach 
distances to seals (Jansen et al. 2010b). In 2012, at Glacier Bay--
where cruise ship approaches to seals are regulated by the U.S. 
National Park Service (NPS)--209 cruise ships visited. At other glacial 
seal haul outs where ships are unregulated, the frequency of scheduled 
cruise ship visits in 2012 was: Tracy Arm fjord, 257 visits; 
Disenchantment Bay, 125 visits; and College Fjord, 39 visits (Cruise 
Line Agencies of Alaska 2011). Concern about impacts of vessel traffic 
is elevated for Tracy Arm and Disenchantment Bay where daily visitation 
is high with as many as 5 cruise ships visiting on a given day. At 
Endicott Arm, cruise ship traffic was once extremely rare, but now the 
Arm experiences approximately 30-50 transits by tour ships per year 
(USFS 2010; Cruise Lines Agencies of Alaska 2011; Cruise Ship Calendar 
2012).
    Small (i.e., charter boats <=45 passengers) and mid-size (i.e., 
tour boats 45-250 passengers) vessel traffic in Alaska has also 
increased substantially in recent years. At least three small- and mid-
size ships added Endicott Arm to their weekly summer itineraries in 
recent years, and two more mid-size commercial tour vessels regularly 
visited Endicott Arm in 2011 (USFS 2010). The potential for disturbance 
to harbor seals is magnified by numerous small boats (zodiacs, kayaks) 
regularly dispatched by mid-size vessels, which spend prolonged time in 
the area for glacier and seal viewing opportunities. U.S. Forest 
Service Visitor Encounters Monitoring Data indicate that visitors in 
2010 had nearly twice the motorized encounters at the end of Endicott 
Arm as visitors had in 2001 (USFS 2010).
    In light of these compounding factors, disturbance from vessel 
traffic becomes a more significant threat to seal survival and 
reproduction, and thus the long-term stability of seal populations. 
Recent estimates by NMFS scientists suggest that a single ship can 
flush up to 16% of the seals present; these estimates do not factor in 
multiple ships visiting within a day and often times concurrently 
(Brady et al. 2010; Jansen et al. 2010a). Pups flushed from ice floes 
are at risk from cold temperature stress with small increases in time 
submerged in water of 3-5 [deg]C (Jansen et al. 2010b). Further, 
disturbance can increase the risk of mother-pup separation during the 
short (~3 weeks) but critical life stage of weaning when pups must 
receive maternal sustenance and protection to survive.
    A number of recent studies have evaluated the effects of vessels on 
harbor seals in various parts of Alaska:
     In 2001, the Yakutat Tlingit Tribe expressed concern about 
a gradual seal population decline in Disenchantment Bay occurring in 
conjunction with, and believed to be caused by, dramatic increases in 
visitation by cruise ships over the previous 20 years. In 2002, a study 
by NMFS in collaboration with the Yakutat Tlingit Tribe and Northwest 
Cruise Ship Association examined the effects of cruise ships on the 
behavior, abundance, and distribution of harbor seals in Disenchantment 
Bay. Results from the study indicated that the likelihood of harbor 
seals vacating the ice and entering the water increased significantly 
when ships approached closer than 547 yds (500 m) (Jansen et al. 2006; 
Jansen et al. 2010b). Seals approached by a ship at 110 yds (100 m) 
were 25 times more likely to enter the water than seals approached at 
547 yds (500 m). Seals increasingly flushed from the ice when cruise 
ships approached closer than 437 yds (400 m), with about 90 percent 
flushing at 100 yds (91 m)--the current guideline for minimum approach 
distance (Jansen et al 2010b). Seals were also four times more likely 
to enter the water when ships approached them directly rather than

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passing abeam. More recent results stemming from the NMFS 2002 study 
showed that the presence of cruise ships altered the large-scale 
spatial distribution of seals. Seal aggregation density increased in 
response to cruise ships (Jansen et al. In review). Such evidence of 
large-scale distribution impacts increases concern that ship presence 
could be altering population birth/death rates, which are difficult to 
measure.
     A study evaluating and characterizing the exposure of 
harbor seals to vessel traffic in Johns Hopkins Inlet, Glacier Bay, 
found that vessel presence altered seal haulout patterns by increasing 
the rate of flushing (Young 2009). Vessel presence also caused 
increased seal vigilance and decreased resting. Both the rate and 
frequency of seal flushing resulting from motorized vessel presence 
were greater than from kayaks; cruise ships were found to be the most 
disruptive vessel type. In general, likelihood of seal disturbance was 
found to increase with vessel size and proximity. Although the overall 
proportion of seals impacted by vessel disturbance in Johns Hopkins 
Inlet was relatively low, the author concluded that repeated 
disturbance may induce the relocation of seals to other areas, and 
direct energetic impacts may decrease the individual fitness levels of 
pups. These findings indicate that vessel disturbance could be playing 
both a direct and indirect role in the decrease of harbor seal 
abundance in Johns Hopkins Inlet (Young 2009).
     A study in Endicott Arm investigated whether there was a 
specific change in harbor seal behavior as a result of vessel presence 
(Smith et al. 2010). Initial findings indicated that seals entered the 
water more often in the presence of a vessel. Those seals that remained 
hauled out in the presence of a vessel exhibited a change in behavior 
by lifting and moving their heads (indicating an alert state in 
response to vessel presence). Researchers concluded that the presence 
of vessels (all sizes) in Endicott Arm changes the behavior of harbor 
seals, which likely results in associated energetic costs to the 
animals. With frequent occurrence, vessel disturbance could negatively 
influence harbor seal survival, especially during already costly 
energetic periods associated with breeding, pupping, nursing, and 
molting (Smith et al. 2010).
     Disturbance to wildlife is typically measured by examining 
behavioral responses to anthropogenic stressors. In addition, 
physiological responses of seals to vessels are currently being 
examined in Tracy and Endicott Arms (Karpovich and Blundell 2009). The 
objective of the study is to measure harbor seal heart rates in 
response to vessel disturbance, describe associated behaviors, and 
estimate the increased energetic cost. Researchers' preliminary 
conclusions question whether classifying disturbance as a seal entering 
the water is sufficient, given that an increase in heart rate (and 
associated metabolic/energetic cost) occurs several minutes before a 
seal enters the water.
    Currently, all cruise ships visiting Alaska enter one or more 
tidewater glacial fjords (Jansen et al. 2010b). Four of the five most 
heavily visited sites--Tracy Arm, Endicott Arm, College Fjord, and 
Disenchantment Bay--have no specific measures in place to protect 
sensitive seal habitat. The only protection currently in place in these 
areas is the MMPA's general prohibition against ``take.'' Studies 
suggest that compliance with the take prohibition is low with 85-88% of 
cruise ships approaching harbor seals at distances known to disturb 
them (Young 2009; Jansen et al. 2010). These glacial sites frequented 
by cruise ships host significant numbers of harbor seals, as 
illustrated by the most recent counts by NMFS biologists: Tracy Arm, 
972 seals in 2010; Endicott Arm, 244 seals in 2010; College Fjord, 817 
seals in 2008; and Disenchantment Bay, 1667 seals in 2009 (NMML, 
unpublished data).
    LeConte Glacier Fjord, though currently not experiencing the same 
level of ship traffic as those described above, also supports a large 
seasonal population of harbor seals, as last measured at 1,980 
individuals in August 2010 (NMML, unpublished data). Icy Bay in south-
central Alaska hosts the largest aggregation of harbor seals in the 
state, and perhaps the world, at an estimated 6,465 seals (in 2007). 
Icy Bay reportedly receives only a few visits annually from smaller 
tour vessels (NMML, unpublished data; Jansen et al. 2010b), as larger 
vessels presently are unable to cross the moraine at the entrance to 
the bay, limiting vessel disturbance. Aialik Bay, in the Kenai Fjords 
area, is another significant glacial habitat for harbor seals in Alaska 
with seal counts averaging 500-600 since 2007. Aialik Bay receives 
traffic primarily from small- to medium-sized tour vessels (A. Hoover-
Miller, pers. comm. 2010). The estimates of population size for sites 
reported above should be considered minimums since they do not correct 
for seals that are in the water during aerial surveys and therefore not 
counted.
    The NPS has established time-area closures by regulation to protect 
harbor seals in Glacier Bay National Park and Preserve (GBNPP), which 
has many tidewater glaciers (36 CFR, subpart C, 13.65). Recognizing 
that harbor seals react to human activities by flushing into the water, 
the NPS designated ``harbor seal critical areas'' within GBNPP where 
vessel and foot traffic are prohibited to protect pupping and molting 
harbor seals (36 CFR, subpart N, 13.1178). This includes a prohibition 
on the operation of vessels or seaplanes in Johns Hopkins Inlet waters 
from May 1-June 30 during harbor seal pupping season. From July 1-
August 31, ``all vessels (including kayaks) must remain further than 
\1/4\ nautical mile [402 meters] from any seal hauled out on ice, 
except when safe navigation requires, and then with due care maintain a 
\1/4\ mile distance from any concentration of seals. Vessel speed must 
be 10 knots or less'' (36 CFR 13.65). In addition, cruise ships are not 
allowed to enter Johns Hopkins Inlet from May 1-August 31 to protect 
seals during the sensitive periods of pupping and molting.
    The Alaska Native Harbor Seal Commission, which has a co-management 
agreement with NMFS under section 119 of the MMPA to assist the agency 
with harbor seal research and management, has expressed concern about 
the effects of vessel traffic on harbor seals and requested that NMFS 
exercise its discretionary authority to promulgate protective 
regulations.
    In summary, populations of glacial-fjord harbor seals exposed to 
chronic and potentially disruptive levels of vessel traffic have 
documented and suspected declines in abundance, as well as documented 
frequent flushing (with projected energetic consequences). This 
indicates that further management measures are needed beyond the 
existing 100-yd (91-m) guideline for vessel approach. This is further 
supported by preliminary information suggesting that even seals that do 
not flush into the water experience physiological responses to vessel 
traffic (with energetic consequences).
    Section 2 of the MMPA (16 U.S.C. 1361, ``Findings and Declaration 
of Policy'') states ``in particular, efforts should be made to protect 
essential habitats, including the rookeries, mating grounds, and areas 
of similar significance for each species of marine mammal from the 
adverse effect of man's actions.'' Glacial sites in Alaska are indeed 
essential habitat for harbor seals to give birth, nurse, rest, and 
molt. Currently, these sites receive no protection other than general 
guidelines to give seals reprieve from human activities during 
sensitive periods of their life cycle. Further, because takes

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continue to occur in these essential habitats, the MMPA ``take'' 
prohibition does not currently appear to provide sufficient protection 
to the characteristics of these habitats that make them suitable places 
for critical aspects of the harbor seal life cycle. NMFS is therefore 
considering regulatory conservation measures to: (1) Preserve the 
habitat functions at existing glacial haul-out sites for harbor seals; 
(2) limit disturbance of harbor seals at such sites; and (3) minimize 
the chance of long-term impacts to the population of harbor seals in 
Alaska.

Request for Information and Comments

    NMFS is requesting information and comments on whether conservation 
measures, regulations, or other management action would be appropriate 
to protect harbor seals in Alaska from human activities that diminish 
the value of important habitat, result in unauthorized take, and/or may 
cause detrimental individual- and population-level impacts. NMFS is 
also requesting information and comments on what type of measures may 
provide appropriate protection for harbor seals while minimizing 
impacts on ocean users. Based on the best available science and input 
received in response to the publication of this notice, NMFS may 
propose management measures for public comment. The following list 
includes examples of potential management measures that NMFS may 
consider:
     Specific corridors for vessel movement.
     Vessel movement parameters relative to ice.
     Vessel speed limits.
     Required minimum approach distance and use of observers to 
keep a designated ship-to-seal separation distance. Similar to the 
minimum approach rules established for humpback whales in Hawaii and 
Alaska, and right whales in the North Atlantic, a limit could be 
established by regulation to accommodate harbor seal viewing 
opportunities while minimizing the potential detrimental impacts from 
human activity; and
     Time-area closures. Similar to seasonal measures used by 
the NPS to protect seals in Johns Hopkins Inlet, NMFS could establish a 
regulation limiting human access to certain harbor seal ice-associated 
habitats, or to zones within these areas. These measures could limit 
all human entry to the area past a particular demarcation line; 
measures could be specific to only certain acts within an area; 
measures could be full-time or limited to certain seasonally important 
times (e.g., excluding entrance during pupping and/or molting). A 
closure could also consist of any combination of the above.
    NMFS invites information and comment from the public on management 
measures such as those options listed above, or on other possible 
measures, to help the agency decide what type of regulations, if any, 
would be appropriate to consider for protecting harbor seal populations 
in habiting glacial fjords in Alaska. In particular, we are seeking 
information and comments concerning:
    (1) The advisability of and need for regulations;
    (2) The geographic scope and time horizon of regulations;
    (3) Management options for regulating vessel interactions with 
harbor seals, including but not limited to the options listed in this 
notice;
    (4) Scientific and commercial information regarding the effects of 
vessels on harbor seals and their habitat;
    (5) Information regarding potential economic effects of regulating 
vessel interactions;
    (6) The feasibility of any management measure or regulation (for 
example, navigational safety or security concerns); and
    (7) Any additional relevant information that NMFS should consider 
should it undertake rulemaking.
    You may submit information and comments by any one of several 
methods (see ADDRESSES). Electronic copies of the materials prepared 
for this action are available at http://www.regulations.gov or http://alaskafisheries.noaa.gov.

References Cited

    A complete list of all references cited in this advanced notice of 
proposed rulemaking is available upon request from the NMFS office in 
Juneau, Alaska (see ADDRESSES).

    Dated: March 5, 2013.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries, performing the functions and 
duties of the Deputy Assistant Administrator for Regulatory Programs, 
National Marine Fisheries Service.
[FR Doc. 2013-05646 Filed 3-11-13; 8:45 am]
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