[Federal Register Volume 88, Number 244 (Thursday, December 21, 2023)]
[Rules and Regulations]
[Pages 88262-88265]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-28091]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 216

[Docket No. 231214-0303]
RIN 0648-BF98


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

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

ACTION: Final rule.

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SUMMARY: NMFS issues this final rule ``Approach Regulations for 
Humpback Whales in Waters Surrounding the Islands of Hawaii under the 
Marine Mammal Protection Act'' under the Marine Mammal Protection Act 
(MMPA). This rule prohibits the ``take'' of humpback whales (Megaptera 
novaeangliae), which means ``to harass, hunt, capture, or kill, or 
attempt to harass, hunt, capture, or kill any marine mammal,'' within 
200 nautical miles (nmi) (370.4 kilometers (km)) of the islands of 
Hawaii from the detrimental effects resulting from approach by humans.

DATES: This rule is effective January 22, 2024.

ADDRESSES: Public comments and other supporting materials are available 
at www.regulations.gov identified by docket number NOAA-NMFS-2016-0046 
or by submitting a request to the Protected Resources Division, 
National Marine Fisheries Service, Pacific Islands Regional Office, 
1845 Wasp Blvd., Bldg. 176, Honolulu, HI 96818, Attn: Humpback Whale 
Approach Regulations.

FOR FURTHER INFORMATION CONTACT: Elena Duke, NMFS, Pacific Islands 
Regional Office, [email protected]; 808-725-5085.

SUPPLEMENTARY INFORMATION:

Background

    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; January 4, 1979) proved ineffective in protecting humpback 
whales in Hawaii from tour vessel operators approaching closer than the 
recommended viewing guidelines. The ESA rule that protected humpback 
whales in Hawaii was published on November 23, 1987 as an interim final 
rule (52 FR 44912), and then was finalized on January 19, 1995 (60 FR 
3775). That rule made it unlawful to operate an aircraft within 1,000 
feet (ft), approach by any means within 100 yards (yds), cause a vessel 
or another object to approach within 100 yds, or disrupt the normal 
behavior or prior activity of a humpback whale by any other act or 
omission. Regulations regarding the implementation of the ESA were then 
reorganized on March 23, 1999, with the section containing the approach 
regulations for humpback whales in Hawaii, changed from 50 CFR 222.31 
to 50 CFR 224.103 (64 FR 14052).
    NMFS published a final ESA listing rule on September 8, 2016 (81 FR 
62259) that revised the species-wide

[[Page 88263]]

listing and separated humpback whales into 14 DPSs. 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. Humpback whales in Hawaii would have 
continued to be protected by approach regulations only within the 
boundaries of the Hawaiian Islands Humpback Whale National Marine 
Sanctuary (HIHWNMS) under the National Marine Sanctuaries Act (15 CFR 
922.184(a)(1) and (2) and (b)).
    However, NMFS determined that, although unpermitted take is 
prohibited by the MMPA for humpback whales or any marine mammals in any 
location, specific regulations were warranted to address approach and 
human interactions that result in the take of humpback whales in 
Hawaii. These specific regulations were 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 any protections; (3) increasing numbers of both humpback whales 
and humans using Hawaiian waters raises the likelihood of human-whale 
interactions; and (4) approaching whales during the breeding, calving, 
and nursing season is likely to cause a disturbance that could 
adversely affect reproduction and development of individuals.
    Therefore, an interim final rule was published on September 8, 
2016, to ensure that there was no lapse in protection for humpback 
whales in Hawaii once the final ESA listing rule became effective on 
October 11, 2016. The interim final rule prohibited operating an 
aircraft within 1,000 ft (304.8 meters (m)) of a humpback whale, 
approaching within 100 yds (91.4 m) of a humpback whale by any means, 
causing a vessel, person or another object to approach within 100 yds 
(91.4 m) of a humpback whale, or approaching a humpback whale by 
interception (i.e., placing an aircraft, vessel, person, or another 
object in the path of a humpback whale so that the whale approaches 
within a restricted distance). The regulations also prohibited the 
disruption of normal behavior or prior activity of a humpback whale by 
any act or omission. Certain vessels and activities were exempted from 
the prohibition.
    This final rule serves to clarify the interim final rule by 
amending regulatory language in paragraphs (a)(5) and (b) of 50 CFR 
216.19. The changes to 50 CFR 216.19 include a punctuation correction 
in paragraph (a)(5), a word change in paragraph (b)(3), and further 
clarification of exception 1, described in paragraph (b)(1). This final 
rule also amends the regulatory language in 50 CFR 216.19(b)(4) to 
clarify the scope of NMFS-permitted or authorized activities that may 
fall under that exemption. The exemption under 50 CFR 216.19(b)(4) in 
the interim final rule reads ``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.'' 
However, the exemption as worded in the interim rule leaves out other 
potentially permitted or authorized activities. The intent of the rule 
was not to preclude the issuance of permits or authorizations for 
purposes of scientific research, enhancement, educational or commercial 
photography, or during emergency response of stranded or entangled 
marine mammals, or persons authorized to incidentally take humpback 
whales consistent with the requirements of the MMPA. Therefore, NMFS is 
amending 50 CFR 216.19(b)(4) to read, ``Activities authorized through a 
permit or authorization issued by the National Marine Fisheries Service 
to take humpback whales.''

Scope and Applicability

Applications to All Humpback Whales

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

Geographic Action Area

    The action area for this rule is limited to the waters within 200 
nmi (370.4 km) from the shore of the islands of Hawaii. The islands of 
Hawaii consist of the entire Hawaiian Archipelago, including the main 
Hawaiian Islands (Hawai[revaps]i, Maui, Kaho[revaps]olawe, 
L[amacr]na[revaps]i, Moloka[revaps]i, O[revaps]ahu, Kaua[revaps]i, and 
Ni[revaps]ihau) 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). UASs are, at minimum, objects, and therefore UASs are not to 
approach humpback whales within 100 yds (91.4 m) without a permit. NMFS 
may change this determination in the future if scientific information 
becomes available showing humpback whales react to UASs within or 
beyond 100 yds.

Approach Prohibitions

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

    The following specific categories are exempt from the regulations:
    (1) Federal, State, or local government vessels, aircraft, 
personnel, and assets, when necessary, in the course of performing 
official duties;
    (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 that, because 
of this restriction, are not able to comply with approach restrictions; 
or
    (4) Activities authorized through a permit or authorization issued 
by the National Marine Fisheries Service to take humpback whales.

Comments and Responses

    NMFS solicited public comments on the interim final rule and 
received 10 comments. Several comments contained similar 
recommendations and/or questions and are consolidated. In response to 
comments, NMFS concurred with comments of support and clarified why 
NMFS is taking this action specific to humpback whales and not all 
cetaceans. NMFS provided rationale for not including regulations on 
speed, approach angle, and engine operating procedures in this rule 
making. NMFS

[[Page 88264]]

provided clarification regarding enforcement of this regulation, 
provided information on the classification of UAS systems, and 
prohibitions of using UAS within 100 yards of humpback whales. 
Responses to comments addressing significant issues are summarized 
below.
    Comment 1: Four commenters expressed support for the interim final 
rule, with two of these commenters specifically stating support for 
making 100 yds (91.4 m) the regulatory approach distance.
    Response: NMFS concurs.
    Comment 2: One commenter requested clarification on how NMFS will 
enforce this approach regulation, how enforcement will contend with 
efforts by restricted groups to adjust their services/methodologies to 
conform to the rules of exemption, and how NMFS will manage those 
situations where an innocent party unwittingly violates the 
restrictions.
    Response: Enforcement will be accomplished via all available means, 
including through land and sea patrols conducted by the NOAA Office of 
Law Enforcement, the United States Coast Guard, and State partners who 
work with NMFS on outreach and enforcement under a cooperative joint 
enforcement agreement (i.e., State of Hawaii's Division of Conservation 
and Resources Enforcement (DOCARE), as well as through cases developed 
through evidence submitted by citizens observing violations.
    Regarding exceptions or exemptions to this rule, for exceptions to 
apply, a person must be a Federal, State, or local government official 
operating in the course of their official duties; avoiding an imminent 
and serious threat to a person, vessel, or the environment; authorized 
under permit or other authorization issued by NMFS; or operating a 
vessel restricted in its ability to maneuver. Additional details 
regarding exceptions to these regulations are provided in the final 
rule below in (b) Exceptions. Any person claiming the benefit of any 
exemption, exception, or permit has the burden of proving that the 
exemption or exception is applicable. Enforcement officials will 
consider and collect, as part of the normal investigative process, all 
available evidence, including evidence tending to support a party's 
claim to be exempt from the rule.
    Regarding intent, the MMPA is a strict liability statute, meaning 
the intention of a party violating a regulation issued under the MMPA 
is not relevant for purposes of liability. Nonetheless, the Agency does 
consider the individual circumstances of each violation in deciding on 
an appropriate enforcement response and assessing any penalties. Under 
the Agency's penalty policy, available to the public at http://www.gc.noaa.gov/enforce-office3.html, any penalties assessed for 
unintentional violations are assessed at a lower level than penalties 
assessed for intentional violations.
    Comment 3: NMFS should extend this 100-yd approach regulation to 
all cetaceans protected by the MMPA.
    Response: We appreciate your concern for all cetaceans. In general, 
the MMPA prohibits the take of marine mammals with section 3(13) (16 
U.S.C. 1362(13)) of the MMPA defining the term ``take'' as ``to harass, 
hunt, capture, or kill, or attempt to harass, hunt, capture, or kill 
any marine mammal.'' These approach regulations are specific to 
humpback whales in Hawaii because of geographic and species-specific 
factors, including, but not limited to, (1) the fact that humpback 
whales are sought out for encounters by the local community and 
tourists; (2) safety concerns for both whales and humans created by a 
desire of whale watch and other tour operators, as well as individuals, 
to get as close as possible to the whales; (3) the importance of the 
habitat around the Hawaiian Islands for breeding, calving, and 
nurturing young; and (4) the increasing numbers of both humpback whales 
and humans that use Hawaiian waters. In short, while unpermitted take 
of marine mammals continues to be prohibited by the MMPA, NMFS believes 
that specific regulations aimed at approach and human interactions that 
result in the take of humpback whales in Hawaii are warranted.
    Comment 4: Several commenters expressed concern regarding how this 
regulation will affect the collection of up-close photos and video 
footage if such activities are regulated at distances closer than 100 
yds. Specifically, these commenters suggested that UASs or drones could 
be allowed to collect up-close footage while posing minimal risk to the 
humpback whales being observed. Two of these commenters noted that the 
sound of boat engines even at over 100 yds away can produce more 
vibrations and are far louder than some UASs, which generate noise that 
is very low and of a frequency that would not penetrate the water to 
any significant depth.
    Response: As described in the interim final rule, research suggests 
that close human interaction poses a significant threat to the health 
and social structure of humpback whales. These threats can include 
collisions, noise, visual, and other effects from interactions with 
vessels, aircraft, persons, or objects. While some UASs create less 
noise than vessels, there are situations in which noise and visual 
effects have the potential to disturb the whales because of the UASs 
use within 100 yds of humpback whales. Examples of some situations 
include the use of multiple UASs around a single whale or groups of 
whales and the use of UASs by inexperienced users. As a result, NMFS 
has determined that UASs are, at a minimum, ``objects'' and therefore 
are not permitted to approach humpback whales within 100 yds in 
Hawaiian waters (within 200 nmi of the islands of Hawaii).
    Specifically, regarding the acquisition of up-close footage of 
whales, the regulations include exceptions to the 100-yd approach 
regulations for humpback whales in Hawaii, including an exception for 
vessels or persons authorized under permit or authorization issued by 
NMFS to take humpback whales for purposes of scientific research, 
enhancement educational or commercial photography, or during emergency 
response of stranded or entangled marine mammals; or persons authorized 
to incidentally take humpback whales.
    Comment 5: NMFS should consider a drone or UAS to be an aircraft, 
rather than an object, therefore prohibiting their use within 1,000 ft 
of humpback whales.
    Response: NMFS understands that UASs are considered ``aircraft'' by 
Federal agencies, such as the Federal Aviation Administration. UASs, at 
least in their current form, are relatively small and generate little 
noise and are therefore unlikely to disturb humpback whales if kept at 
a distance of 100 yds from the whales. In the context of this rule and, 
considering available data regarding the effects of UASs on humpback 
whales and other marine mammals (see the National Environmental Policy 
Act (NEPA) Environmental Assessment (EA) prepared for the interim final 
rule), NMFS has determined that UASs are, at a minimum, considered 
``objects'' and therefore are not to approach humpback whales within 
100 yds without a permit. NMFS may change this determination in the 
future if scientific information becomes available showing whales react 
to UASs within or beyond 100 yds.
    Comment 6: The approach regulations for humpback whales should 
specify vessel operating procedures such as the guidance developed for 
the HIHWNMS and whale-watching guidance developed by NMFS for humpback 
whales in the northeastern United States. The operating procedures 
should

[[Page 88265]]

include guidance on vessel speed limits depending on the distance from 
a humpback whale, the angles at which a vessel can approach and depart 
from a humpback whale, and engine operating procedures within various 
distances.
    Response: The guidelines referenced in this comment contain various 
measures that are designed to protect humpback whales and other marine 
mammals. NMFS agrees that all of the guidelines can be useful in 
protecting humpback whales and other large whale species. However, NMFS 
did not include in the regulations any provisions regarding speed, 
approach angle, and engine operating procedures within various 
distances because the specifics of such provisions vary according to 
different situations. Therefore, these provisions are more appropriate 
as guidelines rather than regulations, which must be followed at all 
times except in limited situations (i.e., the exceptions to the rule). 
These general guidelines may be used to supplement the minimum approach 
regulations, but the regulations must be complied with at all times 
unless an exception applies.

Classification

National Environmental Policy Act (NEPA)

    NMFS prepared an EA pursuant to NEPA (42 U.S.C. 4321, et seq.) to 
support the interim final rule published on September 8, 2016. NMFS 
also provided an opportunity for public comment on the EA; however, no 
public comments were received. The EA contains an analysis of two no-
action alternatives and two action alternatives. Several elements were 
common to both of the action alternatives analyzed, including the 
preferred alternative described in the interim final rule, and several 
exceptions that would apply to the alternatives. Because the preferred 
alternative in the interim final rule is the same as in this final 
rule, an updated NEPA document is unnecessary. The EA with the Finding 
of No Significant Impact is available for download on the NMFS Pacific 
Islands Region website https://www.fisheries.noaa.gov/species/humpback-whale.

Executive Order 12866

    This final rule has been determined to be not significant for 
purposes of Executive Order (E.O.) 12866.

Paperwork Reduction Act

    The purpose of the Paperwork Reduction Act is to minimize the 
paperwork burden for individuals, small businesses, educational and 
nonprofit institutions, and other persons resulting from the collection 
of information by or for the Federal government. The final rule 
includes no new collection of information, so further analysis is not 
required.

Coastal Zone Management Act

    NMFS determined that the interim final rule would 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 State of Hawaii's Coastal Zone Management 
Program (the responsible State agency under section 307(c)(1) of the 
Federal Coastal Zone Management Act (CZMA) of 1972) provided a letter, 
dated May 13, 2016, concurring with NMFS's federal consistency 
determination. Because the interim final rule is substantively the same 
as this final rule, no updated CZMA documentation is necessary.

Executive Order 13132, Federalism

    E.O. 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 applies to this final rule; therefore, this action 
does not have federalism implications as that term is defined in E.O. 
13132.

Information Quality Act

    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

    Under the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.) 
as amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996, whenever an agency publishes a notice of rulemaking 
for any proposed or final rule, it must prepare and make available for 
public comment a Regulatory Flexibility Analysis describing the effects 
of the rule on small entities, i.e., small businesses, small 
organizations, and small government jurisdictions. The final 
regulations are exempt from the requirements of the Regulatory 
Flexibility Act because NMFS determined that notice and public comment 
when publishing the interim final rule would have been impracticable 
and against the public interest.

List of Subjects in 50 CFR Part 216

    Administrative practice and procedure, Marine mammals.

    Dated: December 14, 2023.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For the reasons set out in the preamble, NMFS amends 50 CFR part 
216 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 Sec.  216.19, revise paragraphs (a)(5) and (b) to read as 
follows:


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

    (a) * * *
    (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, personnel, and 
assets, when necessary, in the course of performing official duties;
    (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 that, because 
of this restriction, are not able to comply with approach restrictions; 
or
    (4) Activities authorized through a permit or authorization issued 
by the National Marine Fisheries Service to take humpback whales.
* * * * *
[FR Doc. 2023-28091 Filed 12-20-23; 8:45 am]
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