[Federal Register Volume 65, Number 2 (Tuesday, January 4, 2000)]
[Proposed Rules]
[Pages 270-272]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-87]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Parts 216 and 222
[Docket No. 990901242-9242-01; I.D.072099E]
North Atlantic Whale Protection
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Advance notice of proposed rulemaking.
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SUMMARY: NMFS publishes an advance notice of proposed rulemaking (ANPR)
in response to a request by the Whale Watch Advisory Group (WWAG) that
NMFS solicit comments on the appropriateness of codifying, through
rulemaking, operational procedures for vessels engaged in whale
watching in NMFS Northeast Region (Virginia to Maine).
The scope of this ANPR encompasses the activity of any vessel
(commercial or private) that is engaged in whale watching. NMFS is
requesting comments on whether existing whale protection measures are
adequate to address the potential threat of injury or mortality by
vessels engaged in whale watching (commercial and private) to large
whales, (primarily humpback, fin, and minke whales), and, if not, what
whale protection measures are needed.
DATES: Comments must be received at the appropriate address or fax
number
[[Page 271]]
(see ADDRESSES) no later than 5 p.m. eastern standard time, on March 6,
2000.
ADDRESSES: Comments on this Advance Notice of Proposed Rulemaking
(ANPR) should be addressed to Chief, Permits Division, Office of
Protected Resources, National Marine Fisheries Service, 1315 East-West
Highway, Silver Spring, MD 20910, or fax to 301-713-0376.
FOR FURTHER INFORMATION CONTACT: Ann Terbush, Office of Protected
Resources, 301-713-2289; or Doug Beach, Northeast Region, 978-281-9254.
SUPPLEMENTARY INFORMATION:
Background
Whale watching is a popular recreational activity in the Stellwagen
Bank National Marine Sanctuary (SBNMS) and throughout the Northeast
Region. Whale watch vessel operators seek out areas where whales
congregate. This has led to large numbers of vessels gathering around
groups of whales, which has increased the potential for harassment,
injury or even the death of these animals. NMFS has received complaints
from the public charging that marine mammals are being harassed and
injured by commercial whale watching, fishing, and pleasure craft
vessels. In 1998, whale watch vessels struck two whales while returning
to their home port. In 1997, there was a report from a private citizen
while aboard a whale watch excursion that the vessel had hit a whale.
There were no reported ship strikes of whales by vessels engaged in
whale watching in 1999; however, there were three reports of harassment
in 1999 which are all currently under investigation.
NMFS Northeast Region has attempted to address the impacts of whale
watching through a combination of enforcing the Marine Mammal
Protection Act (MMPA) and Endangered Species Act (ESA) prohibitions
against the taking of listed species, and issuing operational
guidelines to give vessel operators guidance on how to approach large
whales without causing harassment. In addition, to minimize the
detrimental effects of directed vessel interactions with northern right
whales, NMFS issued an interim final rule prohibiting the approach of a
right whale within 500 yards on February 13, 1997. Although this rule
provides certain exemptions, it generally prohibits vessels and
aircraft from approaching a right whale within 500 yards, and is
believed to provide adequate protection to this species from whale
watching vessels.
The Recovery Plan for the Northern Humpback Whale (NMFS, 1991)
places high priority on reducing any detrimental effects of directed
vessel interactions with that species, specifically in regard to
collisions with ships or boats. The Northeast Implementation Team,
established by NMFS to implement the ESA Right Whale and Humpback Whale
Recovery Plans, set up the WWAG under its Ship Strike Sub-Committee to
look into appropriate measures to address what is believed to be an
increasing threat to whales, as evidenced by the whale watch vessel
strikes in 1998 and recent reports of harassment. The WWAG is made up
of representatives from the whale watch industry, conservation
organizations, and state and Federal agencies.
In March, 1999, the WWAG recommended that NMFS revise its 1985
whale watch guidelines to help address the issue, and prepare an ANPR
to solicit comments on the appropriateness of codifying, through
rulemaking, operational procedures for vessels engaged in whale
watching in the Northeast Region. NMFS revised the guidelines as
requested by the WWAG on June 1, 1999 (64 FR 29270). The guidelines
were revised to provide specific vessel speed recommendations, decrease
the number of vessels in close proximity to whales, recommend the use
of lookouts when entering or departing known whale aggregation areas,
and increase the circular Whale Awareness Zone.
The U.S. Coast Guard (USCG), in performing its maritime law
enforcement role under the ESA, has monitored whale watch operations at
various times. The USCG established a program utilizing the Coast Guard
Auxiliary to monitor whale watching activities in the Stellwagen Bank
National Marine Sanctuary (SBNMS) and elsewhere in NER waters during
the 1999 season. Observations are conducted from USCG vessels and
aircraft, and by placing uniformed, specially trained Auxiliary
observers in the wheel houses of whale watch vessels. However, it
should be noted that the USCG Auxiliary has no enforcement authority.
USCG Auxiliary observers provide written reports of their
observations to NOAA. NMFS and SBNMS intend to review all comments and
recommendations received, as well as information received on observed
compliance with the revised guidelines, in the course of determining
whether to propose a rule.
Request for Comments
NMFS is requesting comments on (1) whether existing whale
protection measures are adequate to address the potential threat of
injury or mortality by vessels engaged in whale watching (commercial
and private) to large whales, (primarily humpback, fin, and minke
whales), and, if not, (2) what whale protection measures are needed.
NMFS offers the following as possible options:
Further revisions of the existing whale watch guidelines - The
revised guidelines include several measures intended to decrease the
likelihood of adverse interactions with whales, such as collisions. The
revised guidelines, which cover an area two miles from any observed
whale: (1) establish certain speed levels as a vessel approaches or
departs from observed whales at two miles (13 knots), one mile (10
knots), and one-half mile (7 knots); (2) provide more specific
instructions for multi-vessel approaches within 600 feet and a maximum
number of vessels (three) within that area; and (3) recommend the
posting of a dedicated lookout when vessels are within two miles of
observed whales to keep track of all whales in the vicinity. The
guidelines could be further revised to increase or decrease these
requirements or establish new ones, such as minimum approach distances
or general speed restrictions in specific whale high use areas.
Codify the whale watch guidelines - Codifying the whale watch
guidelines as regulations would make them requirements rather than just
recommendations, and would provide for enforcement of these provisions
and penalties for violations.
Minimum approach rules - Similar to the right whale minimum
approach rule, some limit could be established by regulation to
accommodate a reasonable level of whale watching opportunity while
providing space for individual animals to avoid harassment and possible
injury. This could be accomplished independently of any revision or
codification of the whale watch guidelines.
Operator Permit or Certification Program - Requiring operators of
vessels engaged in whale watching to obtain a permit or certification.
Issuance of a permit or certification would be based on the operator
demonstrating knowledge of whale behavior and proper whale watch vessel
operation. Sanctions, up to and including loss of permit or
certification for nonconformance with applicable regulations, would be
possible.
[[Page 272]]
Dated: December 28, 1999.
Penelope D. Dalton,
Assistant Administrator for Fisheries, National Marine Fisheries
Service.
[FR Doc. 00-87 Filed 1-3-00; 8:45 am]
BILLING CODE 3510-22-F
