[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]
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DEPARTMENT OF COMMERCE
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
Assessment.
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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
appropriate.
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.
FOR FURTHER INFORMATION CONTACT: Susan Pultz, NMFS, Pacific Islands
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-
427-8479.
SUPPLEMENTARY INFORMATION:
Background
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.
waters.
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.
Exceptions
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
HIHWNMS.
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,
2015).
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,
1988).
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
functions.
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
INFORMATION).
Classification
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
nonprofit
[[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
required.
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
interest.
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:
PART 216--REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE
MAMMALS
0
1. The authority citation for 50 CFR part 216 continues to read as
follows:
Authority: 16 U.S.C. 1361, et seq., unless otherwise noted.
0
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
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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]
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