[Federal Register Volume 81, Number 174 (Thursday, September 8, 2016)]
[Rules and Regulations]
[Pages 62010-62018]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-21277]



National Oceanic and Atmospheric Administration

50 CFR Part 216

[Docket No. 160413333-6721-01]
RIN 0648-BF98

Approach Regulations for Humpback Whales in Waters Surrounding 
the Islands of Hawaii Under the Marine Mammal Protection Act

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

ACTION: Interim final rule; notice of availability of Environmental 


SUMMARY: We, NMFS, are issuing regulations under the Marine Mammal

[[Page 62011]]

Protection Act (MMPA) to prevent take by protecting humpback whales 
(Megaptera novaeangliae) from the detrimental effects resulting from 
approach by humans within 200 nautical miles (370.4 km) of the islands 
of Hawaii. These regulations are necessary because existing regulations 
promulgated under the Endangered Species Act (ESA) protecting humpback 
whales from approach in Hawaii will no longer be in effect upon the 
effective date of a final rule published elsewhere in today's issue of 
the Federal Register that separates humpback whales into 14 Distinct 
Population Segments (DPSs) and identifies the ``Hawaii DPS'' as neither 
endangered nor threatened. These MMPA regulations prohibit operating an 
aircraft within 1,000 feet (304.8 m) of a humpback whale, approaching 
within 100 yards (91.4 m) of a humpback whale by any means, causing a 
vessel, person or other object to approach within 100 yards (91.4 m) of 
a humpback whale, or approaching a humpback whale by interception 
(i.e., placing an aircraft, vessel, person, or other object in the path 
of a humpback whale so that the whale approaches within a restricted 
distance). The regulations also prohibit the disruption of normal 
behavior or prior activity of a humpback whale by any act or omission. 
Certain vessels and activities are exempt from the prohibition. NMFS 
finds that there is good cause to waive public notice and comment prior 
to implementation of these regulations in order to avoid a gap in 
protections for the whales. However, we are requesting comments on the 
regulations and Environmental Assessment; NMFS will subsequently 
publish a final rule with responses to comments and any revisions, if 

DATES: This rule is effective October 11, 2016. Comments must be 
received no later than 5 p.m. on November 7, 2016.

ADDRESSES: You may submit comments, information, or data on this 
interim final rule and the Environmental Assessment identified by NOAA-
NMFS-2016-0046, by either of the following methods:
     Electronic Submission: Submit all electronic public 
comments via the Federal eRulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2016-0046. Click the ``Comment Now'' icon, 
complete the required fields, and enter or attach your comments.
     Mail: Submit written comments to Susan Pultz, Chief, 
Conservation Planning and Rulemaking Branch, Protected Resources 
Division, National Marine Fisheries Service, Pacific Islands Regional 
Office, 1845 Wasp Blvd., Bldg 176, Honolulu, HI 96818, Attn: Humpback 
Whale Approach Regulations.
    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. We will accept anonymous 
comments (enter ``N/A'' in the required fields if you wish to remain 
anonymous), although submitting comments anonymously will prevent us 
from contacting you if we have difficulty retrieving your submission.

Regional Office, Chief, Conservation Planning and Rulemaking Branch, 
808-725-5150; or Trevor Spradlin, NMFS, Office of Protected Resources, 
Deputy Chief, Marine Mammal and Sea Turtle Conservation Division, 301-



    Humpback whales occur throughout the world in both coastal and open 
ocean areas. They are a highly migratory species, moving between 
breeding grounds in tropical and subtropical latitudes and feeding 
grounds in temperate and polar latitudes. A large portion of the 
humpback whales found in the North Pacific occupy waters surrounding 
Hawaii annually during winter months where they engage in breeding, 
calving, and nursing behaviors. They are commonly found in Hawaii 
between October and May, with the peak season--the highest 
concentration of whales in the region--occurring from January through 
March. However, there are confirmed sightings and several anecdotal 
reports of humpback whales arriving to the region as early as August 
and remaining in the area until as late as June.
    Prior to commercial whaling, the worldwide population of humpback 
whales is thought to have been in excess of 125,000 individuals (NMFS, 
1991), with abundance of humpback whales in the North Pacific estimated 
at 15,000 individuals (Rice, 1978). Between 1905 and 1960, intense 
commercial whaling operations targeted humpback whales worldwide and 
depleted the species in the North Pacific to approximately 1,000 
individuals (Rice, 1978). Humpback whale abundance estimates in the 
waters surrounding Hawaii in the 1960s are not clear, but estimates 
around 1977 were as low as 895 (Darling et al., 1983).
    In 1966, treaties under the International Whaling Commission (IWC) 
protected humpback whales from further harvesting by issuing a global 
moratorium on the whaling of the species, including in the North 
Pacific. The humpback whale was then listed as an endangered species in 
1970 under the United States (U.S.) Endangered Species Conservation Act 
of 1969, which was later superseded by the ESA. Humpback whales were 
considered to be a depleted species under the U.S. Marine Mammal 
Protection Act (MMPA) of 1972 on the basis of their ESA listing. In 
1992, Congress created the Hawaiian Islands Humpback Whale National 
Marine Sanctuary (HIHWNMS) under the Hawaiian Islands National Marine 
Sanctuary Act to protect humpback whales and their habitat in Hawaii.
    Humpback whale abundance estimates in Hawaii have increased over 
time to the most recent 2006 estimate of 10,103 humpback whales 
(Calambokidis et al., 2008). The Office of National Marine Sanctuaries 
(ONMS) estimates that the current abundance of humpback whales that use 
waters surrounding Hawaii is between 10,000 and 15,000 animals, 
although not all of these animals are in Hawaii at the same time during 
the season (ONMS, 2015).

Protections and Prohibitions

Marine Mammal Protection Act of 1972

    The MMPA provides substantial protections to all marine mammals, 
although there are no regulations that specifically address humpback 
whales under the MMPA in Hawaii. Under section 102 of the MMPA, it is 
unlawful for any person, vessel, or other conveyance to ``take'' any 
marine mammal in waters under the jurisdiction of the United States (16 
U.S.C. 1372). 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'' (16 U.S.C. 1362 (13)). 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

[[Page 62012]]

not limited to, migration, breathing, nursing, breeding, feeding, or 
sheltering (Level B harassment)'' (16 U.S.C. 1362 (18)).
    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; and 
feeding or attempting to feed a marine mammal in the wild'' (50 CFR 
216.3). The MMPA provides limited exceptions to the prohibition on take 
for activities, such as scientific research, public display, or 
incidental take in commercial fisheries. Such activities require a 
permit or authorization, which may be issued only after a thorough 
agency review.
    Section 112 of the MMPA authorizes NMFS to implement regulations 
that are ``necessary and appropriate to carry out the purpose'' of the 
MMPA (16 U.S.C. 1382).

Endangered Species Act of 1973

    Humpback whales have been listed as endangered under the ESA since 
1970. The ESA prohibits any action that results in a take of a listed 
species, unless authorized or permitted. A take is defined by the ESA 
as ``to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, 
or collect, or to attempt to engage in any such conduct'' (16 U.S.C. 
1531 et seq.). The ESA does not specifically define the term 
``harassment'' of a listed species.
    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) proved ineffective in protecting humpback whales in Hawaii 
from tour vessel operators approaching closer than the recommended 
viewing guidelines. The ESA rule protecting humpback whales in Hawaii 
was published on November 23, 1987 as an interim regulation (52 FR 
44912), and then finalized on January 19, 1995 (60 FR 3775). That rule 
made it unlawful to operate an aircraft within a 1,000 feet, approach 
by any means within 100 yards, cause a vessel or other object to 
approach within a 100 yards, or disrupt the normal behavior or prior 
activity of a humpback whale by any other act or omission. Regulations 
regarding implementation of the ESA were then reorganized on March 23, 
1999, and the section containing the approach regulations for humpback 
whales in Hawaii was changed from 50 CFR 222.31 to 50 CFR 224.103 (64 
FR 14052).
    Today, we publish elsewhere in this issue of the Federal Register a 
final rule to separate humpback whales into 14 DPSs and revise the 
species-wide listing. 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. 
Because our approach regulations for humpback whales were authorized 
only under the ESA, these protections will no longer be in effect upon 
the effective date of the listing rule. Humpback whales in Hawaii would 
continue to be protected by approach regulations only within the 
boundaries of the HIHWNMS under the National Marine Sanctuaries Act (15 
CFR 922.184 (a)(1)-(2) and (b)).
    In the proposed listing rule, we solicited comments on whether we 
should continue to have approach regulations for the Hawaii humpback 
whales--other than in the sanctuary--if these whales are no longer 
listed under the ESA. We received five comments on this topic. Two of 
the comments were in support of continuing approach regulations for 
areas outside the sanctuary, and one of these comments further 
requested that an approach rule for the Hawaii humpback whales include 
an interception or leapfrog provision. One comment opposed an approach 
rule outside of the sanctuary, noting that the vessels do not pose a 
threat to the whales. As discussed in greater detail below, we disagree 
that vessels do not pose a threat to the whales. Finally, two comments 
generally supported approach regulations for humpback whales in U.S. 

Need for Action

    The need for this action is to ensure that humpback whales are 
protected from take where protections from close approach do not exist 
or no longer apply. Because humpback whales in Hawaii will no longer be 
protected from take or harassment under the ESA upon the effective date 
of the humpback whale ESA listing rule, and because humpback whales are 
such charismatic species that invariably attract individuals and tour 
companies to interact with them, we believe regulatory protections are 
necessary and appropriate to prevent take, including harassment, as 
those terms are defined by the MMPA. Evidence cited under ``Rationale 
for Regulations'' below shows that interactions between humpback whales 
and vessels harass the whales, as shown by changes in behavior of the 
whales when closely approached, and pose a danger to humpback whales 
due to potential for vessel collisions. This is particularly concerning 
in Hawaiian waters where they breed, calve, and nurture their young. 
Further, preventing take fosters humpback whale health, development, 
and safety.

Interim Final Rulemaking

    The regulatory measures in this interim final rule are designed to 
protect humpback whales from take or harassment, as defined by the 
MMPA, from approach within 200 nautical miles (370.4 km) of the islands 
of Hawaii. Although we stress that unpermitted take of humpback whales 
or any marine mammals continues to be prohibited by the MMPA in any 
location, we believe that specific regulations aimed at approach and 
human interactions that result in take of humpback whales in Hawaii are 
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 protections; (3) the 
number of whales and humans using waters surrounding Hawaii has 
increased and continues to increase, thus raising the likelihood of 
human-whale interactions; and (4) approaching whales during the 
breeding, calving, and nursing season is likely to cause disturbance 
that could adversely affect reproduction and development of 
individuals. We are issuing these regulations pursuant to our 
rulemaking authority under MMPA sections 112(a) (16 U.S.C. 1382(a)) and 
102 (16 U.S.C. 1372).
    NMFS is implementing an interim final rule to ensure that there is 
no lapse in protection for humpback whales in Hawaii once the final ESA 
listing rule becomes effective. Notwithstanding this interim final 
rule, we are soliciting public comments on the Hawaii approach rule. 
NMFS will respond to any public comments in a final rule.

Scope and Applicability

Applications to All Humpback Whales

    Under the MMPA, the regulations apply to all humpback whales found 
in the action area.

Geographic Action Area

    The action area for this rule is limited to the waters within 200 
nautical miles (370.4 km) from shore of the islands of Hawaii. The 
islands of Hawaii consist of

[[Page 62013]]

the entire Hawaiian Archipelago, including the Main Hawaiian Islands 
(Hawaii, Maui, Kahoolawe, Lanai, Molokai, Oahu, Kauai, and Niihau) 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). With this rule, we are not changing our existing approach 
restrictions for aircraft or other objects, including UASs. UASs are, 
at minimum, objects, and therefore UASs are not to approach humpback 
whales within 100 yards without a permit. We recognize that for many 
other purposes, however, UASs are considered ``aircraft,'' and we 
anticipate providing further guidance on this in the future.

Approach Prohibitions

    The regulation prohibits people from operating aircraft within 
1,000 feet (304.8 m) or approaching by any means within 100 yards (91.4 
m) of humpback whales within the action area described above (see 
Geographic Action Area). This includes approach by interception (i.e., 
placing an aircraft, vessel, person, or other object in the path of a 
humpback whale so that the whale approaches within the restricted 
distance), also known as ``leap frogging.'' The regulations also 
prohibit disrupting the normal behavior or prior activity of a humpback 
whale. A 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.


    We have determined that the following specific categories are 
exempt from the regulations:
    (1) Federal, State, or local government vessels or persons 
operating in the course of their official duties such as law 
enforcement, search and rescue, or public safety;
    (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, and because of 
this restriction are not able to comply with approach restrictions; or
    (4) 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.

Rationale for Regulations

Threats From Human Interaction

    Close human interaction poses a significant risk to the health and 
social structure of humpback whales. Because they are large and 
charismatic, humpback whales are often approached and observed by whale 
watchers and wildlife enthusiasts who are on vessels (boats), aircraft, 
or in the water. The interactions that ensue can result in take or 
harassment by causing injury or disrupting the normal behavior or prior 
actions of whales.
    There are few studies that have directly examined the effects of 
approach of humpback whales in Hawaii. This may be due to lack of 
prioritization in research because protections from approach have been 
implemented in the region for 29 years, or because longstanding 
approach restrictions have resulted in fewer instances of humpback 
whale take or harassment from approach in Hawaii than other areas that 
do not have approach restrictions. However, there is a large amount of 
research on adverse effects of human interaction and approach on 
humpback whales and similar species in other regions throughout the 
world. Below, we summarize our use of this analogous evidence to 
analyze management options for minimizing take or harassment of 
understudied humpback whales in Hawaii from approach. We also consider 
research from other regions that do not have approach restrictions to 
provide insight on future potential effects on humpback whales in 
Hawaii if approach regulations are no longer in effect.
    Threats to humpback whales from human interaction can result from 
vessel interactions, which create a risk of collisions, aircraft 
interactions, noise, and other human interactions, such as swimming 
with whales, that disrupt and interfere with the whales' normal 
activities while they are in Hawaii. Humpback whales in Hawaii may be 
more susceptible to harmful effects from human interaction than other 
regions because disruption of breeding, nursing, and calving activities 
could potentially impede healthy reproduction and development of the 
species. Furthermore, we expect an increase in human-whale interactions 
as both human and whale populations continue to increase.

Vessel Interactions

    Vessel approach and interactions with humpback whales can lead to 
behavioral changes or physical injury to the whale, which may affect 
energy budgets and habitat use patterns, cause displacement from 
preferred habitats, and affect individual and population health and 
fitness. Humpback whales have been found to exhibit predictable changes 
in behavior in response to vessels in close proximity to the animals. 
Behavioral responses in humpback whales such as changes in swimming 
speed, respiration, diving, and social behaviors were linked to vessel 
numbers, speed, and proximity in waters around Maui (Bauer and Herman, 
1986; Bauer et al., 1993). In other parts of the world, Baker and 
Herman (1989) found that humpback whales in Alaska responded to vessels 
within 4,000 m with changes in respiratory behavior (decreasing blow 
intervals and increasing dive times) and orientation (moving away from 
approaching vessels' path). They concluded that vessels repeatedly 
approaching humpback whales could result in abandonment of their 
preferred feeding areas. A study examining approach to humpback whales 
in Hervey Bay, Australia concluded that whales were more likely to dive 
when vessels were within 300 m than when they are farther away, 
implying that vessels in close proximity to humpback whales can elicit 
evasive behavior (Corkeron, 1995). Another study off New South Wales, 
Australia observed a response from humpback whales when approached by a 
whale watch vessel 40 percent of the time, with 23 percent having 
approached the vessel and 17 percent having avoided the vessel 
(Stamation et al., 2010). Most observed humpback whales that approached 
the whale watch vessels during this study elicited behaviors attributed 
to disruption (e.g., trumpet blows and fluke swishes), and whales that 
avoided the vessels were reported to have longer dive times and time 
submerged. Vessels that approached humpback whales within 100 m were 
significantly more likely to elicit an avoidance response, particularly 
with regard to pods with a calf. Overall, humpback whales that were 
approached by whale watch vessels had a higher dive time, higher time 
submerged, and fewer surface

[[Page 62014]]

activity behaviors than whales that were observed from the shore 
without vessels present, and pods with calves were more sensitive to 
vessel approach than pods without calves (Stamation et al., 2010).
    In yet other situations, humpback whales became quickly habituated 
to human activity when repeatedly exposed to vessel traffic in the 
North Atlantic (Watkins, 1986). Habituation to human activity in Hawaii 
can lead to an increase in encounters between humans and whales, making 
whales more susceptible to physical injury from vessel strikes. This 
may especially be true for young humpback whales that are at an 
impressionable stage in development; 63.5 percent of vessel collisions 
between 1975 and 2011 in Hawaii involved calves and juveniles (Lammers 
et al., 2013). Regardless of whether humpback whales are eliciting 
evasive or incautious behavior, it is evident that behavioral 
harassment (take) of whales can occur with vessel approach.
    Because humpback whales annually migrate over extremely long 
distances, energy budgeting is crucial for the health and reproduction 
of the species. A recent study by Braithwaite et al. (2015) measured 
the effects of vessel disturbance on energy use of humpback whales 
during migration. They concluded that overall energy use in migrating 
humpback whales increases when disturbed by encounters with approaching 
vessels. It is rare that humpback whales feed in waters surrounding 
Hawaii, so these animals are reliant on limited fat stores to provide 
energy for their breeding, calving, and nursing activities in the 
region. Any deficiency in the conservation of energy can be detrimental 
to these essential reproductive behaviors. Excessive energy use can be 
particularly taxing on pregnant and postpartum humpback whale females 
and their calves. An exorbitant amount of energy is needed to give 
birth to and nurse newborn calves (Darling 2001). An increase in energy 
use because of vessel disruptions in waters surrounding Hawaii can have 
negative implications for the health of mothers and the growth 
potential of calves (Braithwaite et al., 2015).
    Reports of humpback whale harassment are common in Hawaii. NOAA 
Office of Law Enforcement (OLE) documented hundreds of complaints 
concerning harassment of humpback whales around Hawaii between 2007 and 
2014. Although the locations of reported harassments to NOAA-OLE were 
not always precise, there were numerous complaints in areas outside the 
    Humpback whales may be particularly sensitive to human interaction 
in Hawaii during their breeding, calving, and nursing behaviors. 
Because the relationship between adults, particularly mothers, and 
calves early in the calves' lives is an integral stage in the social 
development of the species, disrupting the mother-calf relationship can 
hinder the behavioral development of humpback whale calves (Cartwright, 
1999; Darling, 2001; Glockner-Ferrari and Ferrari, 1985). Aggressive 
behavior on the part of male whales and lack of awareness by males, as 
well as females avoiding these males, potentially make whales more 
susceptible to vessel strikes. Male humpback whales often display 
aggressive behavior during courting activities in the Hawaii breeding 
grounds (Darling et al., 1983; Tyack and Whitehead, 1983; Baker and 
Herman, 1984; Glockner-Ferrari and Ferrari, 1985; Clapham et al., 
1992). Although aggressive behavior by humpback whales towards humans 
is uncommon, an increase in interactions with humans could potentially 
create more stress for animals that are already in a combative state 
(Baker and Herman, 1984; Bauer and Herman, 1986). Furthermore, males 
engaging in competitive behaviors and females avoiding aggressive 
advances from one or more males may not be fully cognizant of 
approaching vessels. Female whales have even been observed leading 
pursuing males closely to vessels in order to thwart their advances to 
mate (Glockner-Ferrari and Ferrari, 1985). Females protecting newborn 
calves and male escorts maintaining mating status with post-partum 
females with calves have also been observed displaying aggressive 
behaviors towards intruders, including humans (Darling, 2001). 
Aggressive courting and mating behaviors by both male and female 
humpback whales can increase the risk of vessel strikes. Restrictions 
against approaching whales while in this vulnerable state would lessen 
hazards for whales and humans.

Vessel Collisions

    Collisions between vessels and whales often result in life-
threatening trauma or death for the cetacean. The impact is frequently 
caused by forceful contact with the bow or propeller of the vessel. 
Vessel strikes of humpback whales are typically identified by evidence 
of massive blunt force trauma (fractures of heavy bones and/or 
hemorrhaging) in stranded whales, and propeller wounds (deep slashes or 
cuts) and fluke/fin amputations on stranded or live whales (Wiley and 
Asmutis, 1995).
    There is substantial evidence indicating vessel strikes with whales 
are increasing both globally and in Hawaii (Laist et al., 2001; De 
Stephanis and Urquiola, 2006; Panigada et al., 2006; Douglas et al., 
2008; Carrillo and Ritter, 2010; Lammers et al., 2013). Lammers et al. 
(2013) estimated that reports of vessel collisions (i.e., any physical 
contact between a humpback whale and a vessel) increased 20-fold 
between 1976 and 2011 in the waters surrounding Hawaii, particularly 
between 2000 and 2011. There were 68 confirmed reports of vessel 
collisions during this timeframe, and 63 percent of the collisions 
involved calves and subadults (Lammers et al., 2013). Between 2007 and 
2012, there were 39 confirmed reports of vessel collisions with 
humpback whales near Hawaii; 11 of these collisions were determined to 
be serious injuries (i.e., injury that will likely result in mortality, 
50 CFR 229.2) and another 11 were proportionally prorated as serious 
injuries per the NMFS process for distinguishing serious from non-
serious injury of marine mammals (NMFS, 2012; Bradford and Lyman, 
2015). According to a database managed by the HIHWNMS, there were 76 
reports of whale-vessel contacts in waters surrounding the Main 
Hawaiian Islands between 2002 and 2015, with a large majority of them 
occurring in the four islands region between Maui, Molokai, Lanai, and 
Kahoolawe. Of the vessel collisions where the status of the vessel's 
movement could be determined (i.e., either normal transiting or more 
directly approaching humpback whales), 17 percent of reports (11 of 66, 
10 undetermined) indicated that the vessel was operating in a more 
directed approach of a humpback whale (Ed Lyman, personal 
communication, April 29, 2016).
    The increase in reported vessel strikes with humpback whales in 
Hawaii in recent years can likely be attributed to multiple factors. An 
extensive awareness campaign and Hotline number were initiated in 2003 
and likely contribute to the increased number of reports. However, 
Lammers et al. (2013) compiled a summary of all reported vessel 
collisions in Hawaii between 1975 and 2011 and concluded that 
increasing numbers of humpback whales in Hawaii was an important 
contributor to the trend. Tour vessels (e.g., whale watching, diving, 
snorkeling boats, etc.) comprised 61 percent of vessel collisions with 
humpback whales. Because the behavior of these vessels typically places 
them in close

[[Page 62015]]

proximity to humpback whales, vessel collisions may have increased over 
time as the tour industry comparably expanded. It is important to note 
that tour vessels typically have a high number of passengers, and this 
may increase the likelihood of reporting a vessel collision.
    Although more than half of reported vessel collisions with humpback 
whales in Hawaii in recent years occurred within the boundaries of the 
HIHWNMS, there have been a substantial number of vessel collisions 
outside Sanctuary waters. According to a database on reports of animals 
in distress managed by the HIHWNMS, 37 percent (28 of 76) of reported 
vessel collisions between 2002 and 2015 occurred outside the boundaries 
of the Sanctuary (Ed Lyman, HIHWNMS, personal communication, April 7, 
2016). Many of the collisions outside the Sanctuary occurred in 
concentrated boat traffic and popular whale watching areas, such as the 
south shore of Oahu near Honolulu Harbor and the leeward side of Kauai. 
If legal protections from approaching humpback whales are not 
implemented outside the HIHWNMS, vessel collisions could significantly 
increase, especially with an increasing humpback whale population and 
increasing human-based use of the ocean in Hawaii.
    Vessel collisions with humpback whales can also cause significant 
damage to vessels and result in serious harm to or death of passengers 
(e.g., Laist et al., 2001; Neilson et al., 2012). Human injury and 
death have occurred on several incidents involving humpback whale 
collisions with boats in Hawaii. According to a database of human 
interactions managed by the HIHWNMS, 9.2 percent (7 of 76) vessel 
collisions with humpback whales between 2002 and 2015 involved injuries 
to passengers or crew; this figure does not include injuries sustained 
when vessels moved suddenly to avoid collisions (Ed Lyman, personal 
communication, April 7, 2016). Notable incidents of serious harm 
include a young child dying in 2003 from head trauma sustained after a 
close interaction with a humpback whale off of Oahu (DePledge, 2003), 
and one woman in 2001 and another in 2015 hospitalized after vessel 
collisions with humpback whales off of Kauai (DePledge, 2003; D'Angelo, 

Aircraft Interactions

    Aircraft flown in proximity to humpback whales in Hawaii have been 
shown to elicit a behavioral response. Smultea et al. (1995) reported 
that humpback whales near Kauai, particularly pods with calves, 
responded to low flying planes by increasing swim speeds and changing 
direction. General accounts of disturbance of humpback whales in Hawaii 
and other regions caused by a range of sources, including helicopter 
tours, were highlighted in a workshop that reviewed and evaluated whale 
watching programs (Atkins and Swartz, 1989). Other reports have also 
discussed cases of disturbance of humpback whales in Hawaii resulting 
from helicopters and other aircraft (Shallenberger, 1978; Tinney, 
    Several studies targeting other species and/or other regions also 
provide evidence that aircraft can disrupt large whales. In their 
review on the effects of man-made noise on whales, Richardson and 
W[uuml]rsig (1997) claim aircraft overflights with altitudes as high as 
400 m can elicit specific reactions (e.g., sudden dives or turns and 
occasional tail or flipper slaps) from both baleen and toothed whales; 
however, behaviors can vary depending on species, animal activity, and 
water depth. Various behavioral responses from sperm whales were 
observed in response to aircraft throughout different parts of the 
world, including in waters near Kauai, where they reacted to aircraft 
at about 250 m in altitude and 360 m in horizontal distance (Smultea et 
al., 2008). Short-term behavioral responses (e.g., short surfaces, 
immediate dives or turns, changes in behavior state, vigorous swimming, 
and breaching) were observed in both bowhead and beluga whales when 
closely approached by helicopters and fixed-wing aircraft. Most 
reactions occurred within 150 m altitude and 250 m lateral distance of 
helicopters and 182 m altitude and 250 m (but up to 460 m) lateral 
distance of fixed-wing aircraft (Patenaude et al., 2002). Aircraft that 
hover or repeatedly pass over whales at altitudes low enough to affect 
the whales are thought to cause significantly more disruption than 
aircraft that briefly pass directly over or to the side of whales 
(Richardson and W[uuml]rsig, 1997).
    Aircraft are explicitly cited by NMFS as a potential instrument of 
take under the MMPA regulations, which state that take can 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). Other 
regulations and notices have interpreted approach to humpback whales by 
aircraft in Hawaii as a form of harassment. Current approach 
regulations promulgated under the ESA (50 CFR 224.103; regulations that 
will no longer apply upon the effective date of the ESA humpback whale 
listing final rule) and in the HIHWNMS (15 CFR 922.184) restrict 
operating aircraft within 1,000 feet (304.8 m) of humpback whales in 
Hawaii and Sanctuary waters. A response to a comment in the November 
23, 1987, interim rule ``Approaching Humpback Whales in Hawaiian 
Waters'' further clarified the restricted area around the whale to 
aircraft as ``a 1,000 foot aerial dome over a whale'' (52 FR 44912). 
This 1,000 foot perimeter was implemented in the final rule humpback 
whale approach rule on January 19, 1995 (60 FR 3775).
    Regions outside Hawaii have also implemented aircraft operations 
near whales or other marine mammals, supporting the widely-accepted 
need to protect whales from this type of disturbance. Approach 
regulations for North Atlantic right whales published on February 13, 
1997, restrict approach by aircraft conducting whale watching 
activities within 500 yards (457.2 m) of a whale, and require aircraft 
to take a course away from the whale and immediately leave the area at 
a constant airspeed if within 500 yards (457.2 m) (50 CFR 224.103(c)). 
It is also prohibited to fly motorized aircraft at less than 1,000 feet 
(304.8 m) over marine mammals in the Channel Islands National Marine 
Sanctuary (15 CFR 922.71), the Greater Farallones National Marine 
Sanctuary (15 CFR 922.82), or in specified regions of the Monterey Bay 
National Marine Sanctuary (15 CFR 922.132). Approach regulations for 
all cetaceans in Australia require that helicopters do not approach 
within 500 m and all other aircraft do not approach within 300 m 
(National Parks and Wildlife Amendment (Marine Mammals) Regulation 2006 
(Cth) No. 271 (57)). New Zealand has similar rules for approaching 
wildlife, in that it is unlawful to operate aircraft from a horizontal 
distance of 150 m from any marine mammal, 200 m from any baleen or 
sperm whale mother-calf pair, and 300 m from any marine mammal if three 
or more vessels or aircraft are already positioned to enable passengers 
to watch the animals (Marine Mammals Protection Regulations 1992 s 
18(g, h) and s 19(d)).

Human-Related Noise

    Humans introduce sound intentionally and unintentionally into the 
marine environment for navigation, oil and gas exploration and 
acquisition, research, military activities, and many other reasons. 
Noise exposure can result in a range of impacts to whales, from little 
or none to severe, depending on the source, level, distance between the

[[Page 62016]]

source and the receptor, characteristics of the animal (e.g., hearing 
sensitivity, behavioral context, age, sex, and previous experience with 
sound source), time of day or season, and various other factors. In 
marine mammal populations, noise can seriously disrupt communication, 
navigational ability, and social patterns. Humpback whales use sound to 
communicate, navigate, locate prey, and sense their environment. Both 
anthropogenic and natural sounds may cause interference with these 
    Understanding the specific impacts of sounds on humpback whales is 
difficult. However, it is clear that the geographic scope of potential 
impacts is vast as low-frequency sounds can travel great distances 
under water, and these sounds have the potential to reduce the space 
that whales use for communication (i.e., communication space). For 
example, shipping was predicted to reduce communication space of 
singing humpback whales in the northeastern United States by eight 
percent (Clark et al., 2009). Other detrimental effects of 
anthropogenic noise include masking and possible temporary threshold 
shifts. Masking results when noise interferes with cetacean social 
communication, which may range greatly in intensity and frequency. Some 
adjustment in acoustic behavior is thought to occur in response to 
masking. For instance, humpback whale songs were found to lengthen 
during low-frequency active sonar activities (Miller et al., 2000). 
This altered song length persisted two hours after the sonar activities 
stopped (Fristrup et al., 2003). Researchers have also observed 
diminished song vocalizations in humpback whales during remote sensing 
experiments 200 km away from the whales' location in the Stellwagen 
Bank National Marine Sanctuary (Risch et al., 2012). Hearing loss can 
also be permanent if the sound is intense enough, although effects vary 
greatly across individuals. This and other factors make it difficult to 
determine a standardized threshold. Humpback whales do not appear to be 
frequently involved in strandings related to noise events. However, 
there is one record of two whales found dead with extensive damage to 
the temporal bones near the site of a 5,000 kg explosion that likely 
produced shock waves responsible for the injuries (Ketten et al., 1993; 
Weilgart, 2007).
    Humpback whales in Hawaii are likely exposed to moderate levels of 
underwater noise resulting from human activities, which include 
commercial and recreational vessel traffic, pile driving from coastal 
construction, and activities in Naval test ranges. Boat noise might 
affect humpback whale singing behavior by altering the rhythm or 
increasing the tempo of songs (Norris, 1994). Noise is also the likely 
major contributor of reported behavioral changes of humpback whales in 
Hawaii with regard to aircraft disturbance (Shallenberger, 1978; 
Tinney, 1988; Atkins and Swartz, 1989; Smultea et al., 1995). Overall, 
population-level effects of exposure to underwater noise in Hawaii are 
not well established, but exposure is likely chronic. As vessel traffic 
and other in-water activities are expected to increase in Hawaii, the 
level of this threat is also expected to increase.

Increase in Human-Whale Interactions as Both Populations Increase

    The humpback whale population in Hawaii is increasing (Darling et 
al., 1983; Baker and Herman, 1987; Calambokidis et al., 1997; Cerchio 
1998; Mobley et al., 2001; Calambokidis et al., 2008). The human 
population is also increasing (U.S. Census, 2015). As both populations 
increase, the probability of humans interacting with humpback whales in 
Hawaii will likely increase. Increasing numbers of humpback whales in 
Hawaii also increase the likelihood of encountering whales outside the 
HIHWNMS, in areas where whales would not have the benefit of continued 
protection from approach if not ESA-listed. Current ESA approach 
restrictions (which will no longer be in effect upon the effective date 
of the ESA listing rule) limit opportunities to lawfully approach 
humpback whales, thus establishing a safe perimeter around whales. If 
whales are not protected by approach restrictions, this would erase 
this perimeter and increase the danger attributed to being in proximity 
to whales. With an increasing humpback whale population in Hawaii, 
eliminating approach regulations is a cause for concern with regard to 
both human and whale safety.
    As a result of human population growth and demand for new products 
and tourist destinations, ocean recreation in Hawaii is increasing. The 
value of the tour boat industry has increased by 300 percent from 1984 
to 2003 (Markrich, 2004). Whale watching has also increased in recent 
years from 52 operators in 1999 to an estimated 117 companies currently 
offering tours specific to whale watching (Hoyt, 2002; Internet search, 
February 2016).
    As the number of people, tourism, and ocean-based activities 
increases in Hawaii, the number of interactions between humans and 
humpback whales is also likely to increase. If humpback whales are not 
protected by approach regulations in Hawaii, unrestricted access to 
whales outside the HIHWNMS would likely result in more encounters with 
commercial whale watching and recreational vessels, thus resulting in 
increased take of whales, while placing the safety of both humans and 
whales in jeopardy.

Public Comments and Public Hearings

    We are soliciting comments on this interim final rule and the 
supporting Environmental Assessment (see ADDRESSES). No public hearings 
have been scheduled but public hearings can be requested. Requests for 
public hearings must be made in writing (see ADDRESSES) by October 11, 
2016. If a public hearing is requested, a notice detailing the specific 
hearing location and time will be published in the Federal Register at 
least 15 days before the hearing is to be held. Information on the 
specific hearing locations and times will also be posted on our Web 
site at: http://www.fpir.noaa.gov/PRD/prd_humpback.html.

References Cited

    A complete list of all references cited in this interim final rule 
can be found at http://www.fpir.noaa.gov/PRD/prd_humpback.html or 
www.regulations.gov, and is available upon request from the NMFS 
Pacific Islands Regional Office in Honolulu, HI (see FOR FURTHER 


National Environmental Policy Act (NEPA)

    NMFS has prepared an Environmental Assessment pursuant to NEPA (42 
U.S.C. 4321 et seq.) to support this rule. The Environmental Assessment 
contains an analysis of two no action alternatives and two action 
alternatives. There are a number of elements that were common to both 
of the action alternatives analyzed, including the preferred 
alternative described in this document and a number of exceptions that 
would apply to these alternatives. The Environmental Assessment is 
available for review and comment on the NMFS Pacific Islands Region Web 
site at http://www.fpir.noaa.gov/PRD/prd_humpback.html.

Executive Order 12866

    This interim final rule has been determined to be not significant 
for purposes of Executive Order 12866.

Paperwork Reduction Act

    The purpose of the Paperwork Reduction Act is to minimize the 
paperwork burden for individuals, small businesses, educational and 

[[Page 62017]]

institutions, and other persons resulting from the collection of 
information by or for the Federal government. The interim final rule 
includes no new collection of information, so further analysis is not 

Coastal Zone Management Act

    NMFS has determined that this rule will 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 consistency determination has been submitted for review 
to the responsible State agency under section 307(c)(1) of the Federal 
Coastal Zone Management Act of 1972.

Executive Order 13132, Federalism

    Executive Order 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 is applicable to this interim 
final rule; therefore this action does not have federalism implications 
as that term is defined in E.O. 13132.

Information Quality Act (IQA)

    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

    This interim final regulation is exempt from the requirements of 
the Regulatory Flexibility Act because NMFS has determined that notice 
and public comment would be impracticable and against the public 

Administrative Procedure Act

    There is good cause to waive the prior notice and public comment 
requirement of the Administrative Procedure Act, and make this rule 
effective immediately upon publication in the Federal Register. This 
rule would prohibit the approach of humpback whales by aircraft within 
a 1,000 feet (304.8 m) and by any means within 100 yards (91.4 m), 
including to cause a vessel, person or other object to approach within 
100 yard (91.4 m), and approach a whale by interception (placing an 
aircraft, vessel, person or other object in the path of a humpback 
whale so that the whale approaches within 1000 feet of the aircraft or 
100 yards of the vessel, person or object). Approach regulations 
reflecting the above prohibitions have existed in Hawaii for 29 years, 
except the interception and exceptions provisions are new. Further, 
NMFS published in the Federal Register a proposed revision to the 
humpback listing in April 15, 2015 and, as dicussed above, requested 
comments on whether approach regulations under the MMPA should be 
considered if the proposed Hawaii DPS is finalized, as this DPS would 
no longer be listed or protected under ESA regulations.
    Unregulated approach of humpback whales in Hawaii by aircraft, 
vessel, persons, or other means would likely lead to increased take of 
humpback whales. Upon the effective date of the ESA listing final rule, 
there will be a lapse in protections for the Hawaii DPS of humpback 
whales if these approach regulations under the MMPA are not in place. 
Because we have an obligation to uphold the regulatory objectives of 
the MMPA, and leaving humpback whales in Hawaii without approach 
regulations would result in increased take and consequent noncompliance 
with the statute, NMFS finds it impracticable and contrary to the 
public interest to have prior notice and comment.
    For the reasons stated above, NMFS believes protections for Hawaii 
humpback whales are necessary and appropriate during the time the ESA 
listing determination becomes effective and the humpback whales begin 
to return to waters surrounding Hawaii in September.

List of Subjects in 50 CFR Part 216

    Administrative practice and procedure, Marine mammals.

    Dated: August 30, 2016.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 216 is amended 
as follows:


1. The authority citation for 50 CFR part 216 continues to read as 

    Authority:  16 U.S.C. 1361, et seq., unless otherwise noted.

2. In subpart B of part 216, add Sec.  216.19 to read as follows:

Sec.  216.19  Special restrictions for humpback whales in waters 
surrounding the islands of Hawaii.

    (a) Prohibitions. Except as noted in paragraph (b) of this section, 
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 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):
    (1) Operate any aircraft within 1,000 feet (304.8 m) of any 
humpback whale;
    (2) Approach, by any means, within 100 yards (91.4 m) of any 
humpback whale;
    (3) Cause a vessel, person, or other object to approach within 100 
yards (91.4 m) of a humpback whale;
    (4) Approach a humpback whale by interception (i.e., placing an 
aircraft, vessel, person, or other object in the path of a humpback 
whale so that the whale approaches within 1,000 feet (304.8 m) of the 
aircraft or 100 yards (91.4 m) of the vessel, person, or object); or
    (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 or persons 
operating in the course of their official duties such as law 
enforcement, search and rescue, or public safety;
    (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, and because of 
this restriction are not able to comply with approach restrictions; or
    (4) 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.
    (c) Affirmative defense. (1) In connection with any action alleging 
a violation of this section, any person

[[Page 62018]]

claiming the benefit of any exemption, exception, or permit listed in 
paragraph (b) of this section has the burden of proving that the 
exemption or exception is applicable, or that the permit was granted 
and was valid and in force at the time of the alleged violation.
    (2) [Reserved]

[FR Doc. 2016-21277 Filed 9-6-16; 4:15 pm]