81 FR 62018 - Technical Amendments and Recodification of Alaska Humpback Whale Approach Regulations

DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration

Federal Register Volume 81, Issue 174 (September 8, 2016)

We, NMFS, are making technical amendments to and recodifying Alaska humpback whale approach regulations within the Code of Federal Regulations (CFR) with only minor, technical revisions. Specifically, we are recodifying the regulations that apply to ``Endangered Marine and Anadromous Species'' so that they also appear in ``Threatened Marine and Anadromous Species''. This action is necessary to reflect the change in the Endangered Species Act (ESA) listing status of humpback whales, whereby some populations of humpback whales will now be classified as endangered species and one will be classified as a threatened species. In addition, we are adding the Alaska approach regulations to the regulations governing the taking and importing of marine mammals under the Marine Mammal Protection Act (MMPA) to clarify that protections are in effect for all humpback whales that may occur in or transit through the waters surrounding Alaska, including those that are not ESA-listed. This clarification reflects that the approach regulations were originally adopted under the MMPA as well as the ESA. We are also making minor changes to the language of the existing regulations to modernize language and update citations to relevant authorities.

[Federal Register Volume 81, Number 174 (Thursday, September 8, 2016)]
[Rules and Regulations]
[Pages 62018-62021]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-21278]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 216, 223, and 224

[Docket No. 150727648-6720-01]
RIN 0648-BF31


Technical Amendments and Recodification of Alaska Humpback Whale 
Approach Regulations

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

ACTION: Final rule.

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SUMMARY: We, NMFS, are making technical amendments to and recodifying 
Alaska humpback whale approach regulations within the Code of Federal 
Regulations (CFR) with only minor, technical revisions. Specifically, 
we are recodifying the regulations that apply to ``Endangered Marine 
and Anadromous Species'' so that they also appear in ``Threatened 
Marine and Anadromous Species''. This action is necessary to reflect 
the change in the Endangered Species Act (ESA) listing status of 
humpback whales, whereby some populations of humpback whales will now 
be classified as endangered species and one will be classified as a 
threatened species. In addition, we are adding the Alaska approach 
regulations to the regulations governing the taking and importing of 
marine mammals under the Marine Mammal Protection Act (MMPA) to clarify 
that protections are in effect for all humpback whales that may occur 
in or transit through the waters surrounding Alaska, including those 
that are not ESA-listed. This clarification reflects that the approach 
regulations were originally adopted under the MMPA as well as the ESA. 
We are also making minor changes to the language of the existing 
regulations to modernize language and update citations to relevant 
authorities.

DATES: This final rule is effective October 11, 2016.

FOR FURTHER INFORMATION CONTACT: Shannon Bettridge, Office of Protected 
Resources, 301-427-8402, [email protected].

SUPPLEMENTARY INFORMATION:

Background

    On May 31, 2001, we issued a final rule (66 FR 29502) applicable to 
waters within 200 nautical miles (370 km) of Alaska that made it 
unlawful for a person subject to the jurisdiction of the United States 
to (a) approach within 100 yards (91.4 m) of a humpback whale, (b) 
cause a vessel or other object to approach within 100 yards (91.4 m) of 
a humpback whale, or (c) disrupt the normal behavior or prior activity 
of a whale. The regulations also require vessels to operate at a slow, 
safe speed when near a humpback whale. These regulations are set forth 
at 50 CFR 224.103(b) (2015). When the provisions were adopted, we cited 
MMPA section 112(a) and ESA section 11(f) as authority (16 U.S.C. 
1382(a); 16 U.S.C. 1540(f)). However, because the humpback whale was 
listed as endangered throughout its range, the approach restrictions 
were codified only in part 224 of the ESA regulations (which applies to 
``Endangered Marine and Anadromous Species'').
    On April 21, 2015, we proposed to revise the species-wide ESA 
listing of the humpback whale by recognizing fourteen distinct 
population segments (DPSs), two of which would be listed as endangered 
species (Cape Verde Islands/Northwest Africa and Arabian Sea DPSs) and 
two as threatened species (Western North Pacific and Central America 
DPSs) (80 FR 22303). In that proposed ESA listing rule, we concluded 
that the remaining ten DPSs were not endangered or threatened 
throughout all or a significant portion of their ranges and therefore 
did not propose to list them. Following consideration of information 
received through the public comment period on the proposed ESA listing 
rule, including public hearings, we are separately publishing in 
today's issue of the Federal Register a final rule implementing the 
revised listing determinations for humpback whales. Under that ESA 
listing final rule, we are listing one of the fourteen DPSs as a 
threatened species (the Mexico DPS), and four DPSs as endangered 
species (the Arabian Sea DPS, the Cape Verde Islands/Northwest Africa 
DPS, the Central America DPS, and the Western North Pacific DPS).
    As a result of the final humpback whale ESA listing rule, 
maintaining the Alaska approach regulations only within their the 
original location in the Code of Federal Regulations (CFR) is no longer 
appropriate. This is because, while some humpback whales that spend 
part of the year in Alaskan waters remain listed as endangered (those 
that are members of the Western North Pacific DPS), others are now 
listed as threatened (those that are members of the Mexico DPS) or are 
not listed (those that are members of the Hawaii DPS). All protections 
of section 9 of the ESA, including the prohibitions against ``take'' in 
16 U.S.C. 1538(a)(1)(B)-(C), are being extended to the threatened 
humpback whales as part of the final ESA listing rule (50 CFR 223.213). 
The ESA listing reclassifications thus require recodifying the approach 
regulations that currently appear in part 224 (which pertains only to 
endangered species) so that they also appear in part 223 (which 
pertains to threatened species) to ensure it is clear that humpback 
whales listed as threatened or endangered under the ESA are protected 
from approach in Alaska.
    Accordingly, concurrently with finalizing the humpback whale 
reclassification under the ESA, we are, through this final rule, 
recodifying the Alaska approach regulations that currently appear in 
Sec.  224.103(b) so that they also appear in Sec.  223.214 for the 
protection of listed humpback whales occurring in the waters 
surrounding Alaska. These include whales from the Western North Pacific 
DPS (endangered) and Mexico DPS (threatened), as specified in the final 
ESA listing rule. The approach regulations have been in effect for 15 
years and are important in light of the potential impacts posed by the 
whale watching industry, recreational boating community, and other 
maritime users.
    In addition, we are also setting forth the Alaska approach 
regulations in part 216, which contains regulations regarding the 
taking and importing of marine mammals under the MMPA (50 CFR 216.18). 
Because the approach regulations were adopted in part under the 
authority of the MMPA, this represents a technical change only. Setting 
the regulations out clearly in this part of the CFR will clarify that 
all humpback whales that may occur in or transit through the waters 
surrounding Alaska are protected from approach, not just those that are 
ESA-listed, and reflects that the regulations were originally adopted 
under MMPA as well as ESA authority.
    These three regulations (50 CFR 224.103(b), 223.214, and 216.18) 
work together to provide seamless protection to humpback whales that 
occur in the waters surrounding Alaska. While the ESA rules only apply 
to humpback

[[Page 62019]]

whales listed as endangered or threatened species under the ESA 
(currently, only the Western North Pacific DPS and the Mexico DPS), the 
MMPA protections apply to all humpback whales in the specified 
geographic area (including the Hawaii DPS that is not listed). The 
provisions set forth under these authorities are substantively 
identical, so vessel operators will need to continue to exercise the 
same caution with regard to all humpback whales, as the current 
regulations have long required.
    Recodifying these longstanding provisions so they appear both in 50 
CFR parts 223 and 224, and setting them out clearly in part 216, 
represents a technical change only. The substantive provisions and the 
authority for their adoption are unchanged. The only changes to the 
regulations as compared to the existing provisions have been technical 
corrections and adjustments, including:
     Inserting the word ``endangered'' in front of ``humpback 
whales'' in the heading and in the main sections of text of the 
existing ESA-based regulation in Sec.  224.103(b) to reflect that it 
does not apply to all humpback whales;
     Inserting the word ``threatened'' in front of ``humpback 
whales'' in the heading and in the main sections of text of the new 
ESA-based regulation in Sec.  223.214 to reflect that it does not apply 
to all humpback whales;
     Adjusting the numbering of subsections to fit the new 
locations in Sec.  216.18 and Sec.  223.214;
     Directly incorporating the description of disruption of 
normal behavior or prior activity of a whale from Sec.  224.103(a)(4) 
(2015) (a cross-referenced provision within the approach regulations 
protecting whales in Hawaii, which will no longer be in effect upon 
finalization of the revisions to the ESA listing status of humpback 
whales) into the regulations in Sec.  216.18(a)(3), Sec.  
223.214(a)(3), and Sec.  224.103(b)(1)(iii);
     Updating language by changing ``her'' to ``its'' in the 
phrase ``to the extent that a vessel is restricted in her ability to 
maneuver. . . .'' in Sec.  216.18(b)(2), Sec.  223.214(b)(2), and Sec.  
224.103(b)(2)(ii);
     In the provisions being set out at part 216, tailoring the 
reference to applicable permit procedures to refer to the relevant MMPA 
permit procedures (which are contained in subpart D of part 216);
     In 50 CFR 224.103(b)(3), updating a reference to a safe 
speed rule formerly set out at 33 U.S.C. 2006. This is necessary 
because the safe speed rule is now set out in regulations from the 
Department of Homeland Security at 33 CFR 83.06. These regulations were 
adopted in 2010 pursuant to the Coast Guard and Maritime Transportation 
Authorization Act of 2004 (Pub. L. 108-293, sec. 303, 118 Stat. 1028 
(2004)), which directed that such final regulations would replace 
sections 2001-2038 of Title 33 of the United States Code. See 33 U.S.C. 
2071 (codifying sec. 303(b)); 75 FR 19544 (April 15, 2010), 79 FR 37898 
(July 2, 2014); and
     In 50 CFR 224.103(b)(2)(vi), updating a reference to 
special regulations for Glacier Bay National Park and Preserve formerly 
set out at 36 CFR 13.65. This is necessary because the special 
regulations applicable within Glacier Bay National Park and Preserve, 
including vessel operating restrictions to protect whales, were 
reorganized in 2006 and are now set out in regulations from the 
Department of the Interior at 36 CFR 13.1102-13.1188. See 71 FR 69328 
(Nov. 30, 2006).
    We solicited public comments in the proposed ESA listing rule (80 
FR 22303, April 21, 2015) regarding relocation of the Alaska approach 
regulations. See 80 FR at 22354. At the time of the proposed listing 
rule, we did not expect that there would be any endangered DPSs present 
in Alaska and so sought comment as to whether we should relocate them 
from part 224 to part 223 (setting out ESA regulations applicable to 
``Threatened Marine and Anadromous Species'') and also as to whether we 
should set them out in part 216 as MMPA regulations. Because we are now 
listing the Western North Pacific DPS as endangered, we will retain the 
approach regulations under the ESA at 50 CFR 224.103, and because we 
are listing the Mexico DPS as threatened, we will also add the 
provisions to part 223 at 50 CFR 223.214.
    The State of Alaska was the only commenter that specifically 
addressed approach regulations in Alaska. The State supported retaining 
approach regulations in U.S. waters in Alaska because of the 
conservation benefits to ESA-listed and non-listed humpback whales that 
frequent Alaska waters. We therefore promulgate a final rule effecting 
a technical correction and recodification that recodifies these 
provisions so that they appear in both parts 223 and 224 and also 
setting the provisions out in part 216 (MMPA Regulations) at 50 CFR 
216.18, to reflect that these provisions were originally adopted under 
the MMPA as well as the ESA and are an important source of protection 
for these marine mammals.

Classification

    NMFS finds that good cause exists, under the Administrative 
Procedure Act, for adopting these rule changes as a final rule without 
stand-alone public notice and comment. See 5 U.S.C. 553(b)(B). As noted 
above, public comments on this action were solicited in the proposed 
ESA listing rule (80 FR 22303, April 21, 2015) and have been fully 
considered both for this technical regulation and in the context of the 
development of the final ESA listing rule. We find that additional 
notice and public procedure on this technical final rule is unnecessary 
because no substantive modifications are being made to the regulations 
being recodified so that they appear both in 50 CFR part 224 and 50 CFR 
part 223 and set out in 50 CFR part 216. All of the changes are 
technical, including the change to the language at Sec.  
224.103(b)(1)(iii) (which now sets out a definition directly in the 
text that was previously cross-referenced, as noted above). 
Consequently, the final rule does not alter the rights or 
responsibilities of any party. Additionally, delaying implementation of 
this rule for a separate public notice and comment period would be 
contrary to the public interest because it would create a lapse in 
necessary protections for the humpback whales that transit through 
Alaskan waters.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    This final rule does not contain any collections of information 
pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et 
seq.). Therefore, NMFS has not submitted any information to the Office 
of Management and Budget for review.
    Pursuant to section 605(b) of the Regulatory Flexibility Act, the 
Chief Counsel for Regulation of the Department of Commerce has 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that this rule would not have a significant economic 
impact on a substantial number of small entities. This action affects 
owner-operator whale watch businesses, eco-tourism companies (mostly 
local kayak tour businesses), and owner-operator fishing enterprises.
    This action is a technical change to update the provisions and 
recodify them so they appear at both 50 CFR part 224 (which applies to 
``Endangered Marine and Anadromous Species'') and 50 CFR part 223 
(which applies to ``Threatened Marine and Anadromous Species''). 
Additionally, when the Alaska provisions were adopted, we cited

[[Page 62020]]

section 112(a) of the MMPA in addition to section 11(f) of the ESA as 
authority (16 U.S.C. 1382(a); 16 U.S.C. 1540(f)). However, because the 
humpback whale was listed throughout its range as endangered, the rule 
was codified only in part 224. Setting out the regulations in a new 
section, Sec.  223.214, is necessary in order to continue the 
protection of threatened humpback whales, in addition to the endangered 
humpback whales, in Alaska. We are also setting out these provisions in 
50 CFR part 216, for the protection of all humpback whales that may 
occur or transit through the waters surrounding Alaska, to reflect that 
these provisions were adopted under the MMPA as well as the ESA and are 
an important source of protection for these marine mammals. These 
provisions have been in effect for 15 years and are important in light 
of the potential impacts posed by the whalewatching industry, 
recreational boating community, and other maritime users. These 
provisions are merely being recodified within the CFR to continue 
existing protections in light of revisions to the ESA listing status of 
humpback whales.
    Because of this certification, a regulatory flexibility analysis is 
not required and none has been prepared.
    NMFS analyzed this rule under the National Environmental Policy Act 
(NEPA) (42 U.S.C. 4321 et seq.) and NOAA's Administrative Orders (NAO) 
216-6A and 216-6. NMFS determined that this action satisfies the 
standards for reliance upon a categorical exclusion under NAO 216-6 
Sec.  [thinsp]6.03c.3(i) for ``policy directives, regulations and 
guidelines of an administrative, financial, legal, technical or 
procedural nature.'' NAO 216-6, Sec.  [thinsp]6.03c.3(i). The rule 
would not trigger an exception precluding reliance on the categorical 
exclusion because it does not involve a geographic area with unique 
characteristics, is not the subject of public controversy based on 
potential environmental consequences, will not result in uncertain 
environmental impacts or unique or unknown risks, does not establish a 
precedent or decision in principle about future proposals, will not 
have significant cumulative impacts, and will not have any adverse 
effects upon endangered or threatened species or their habitats. Id. 
Sec.  [thinsp]5.05c. As such, it is categorically excluded from the 
need to prepare an Environmental Assessment. In addition, NMFS finds 
that because this rule will not result in any effects to the physical 
environment, much less any adverse effects, there would be no need to 
prepare an Environmental Assessment even aside from consideration of 
the categorical exclusion. See Oceana, Inc. v. Bryson, 940 F. Supp. 2d 
1029 (N.D. Cal. 2013). Issuance of this rule does not alter the legal 
and regulatory status quo in such a way as to create any environmental 
effects. See Humane Soc. of U.S. v. Johanns, 520 F. Supp. 2d. 8, 29 
(D.D.C. 2007).

List of Subjects

50 CFR Part 216

    Administrative practice and procedure, Marine mammals.

50 CFR Part 223

    Threatened marine and anadromous species.

50 CFR Part 224

    Endangered marine and anadromous species.

    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 parts 216, 223, and 
224 are amended as follows:

PART 216--REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE 
MAMMALS

0
1. The authority citation for 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.  216.18 to read as follows:


Sec.  216.18  Approaching humpback whales in Alaska.

    (a) Prohibitions. Except as provided under 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 Alaska, or within inland waters of the state, any of the 
acts in paragraphs (a)(1) through (a)(3) of this section with respect 
to humpback whales (Megaptera novaeangliae):
    (1) Approach, by any means, including by interception (i.e., 
placing a vessel in the path of an oncoming humpback whale so that the 
whale surfaces within 100 yards (91.4 m) of the vessel), within 100 
yards (91.4 m) of any humpback whale;
    (2) Cause a vessel or other object to approach within 100 yards 
(91.4 m) of a humpback whale; or
    (3) 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 movement; or the abandonment of a 
previously frequented area.
    (b) Exceptions. The following exceptions apply, but any person who 
claims the applicability of an exception has the burden of proving that 
the exception applies:
    (1) Paragraph (a) of this section does not apply if an approach is 
authorized by the National Marine Fisheries Service through a permit 
issued under subpart D of this part (Special Exceptions) or through a 
similar authorization.
    (2) Paragraph (a) of this section does not apply to the extent that 
a vessel is restricted in its ability to maneuver and, because of the 
restriction, cannot comply with paragraph (a) of this section.
    (3) Paragraph (a) of this section does not apply to commercial 
fishing vessels lawfully engaged in actively setting, retrieving or 
closely tending commercial fishing gear. For purposes of this section, 
commercial fishing means taking or harvesting fish or fishery resources 
to sell, barter, or trade. Commercial fishing does not include 
commercial passenger fishing operations (i.e., charter operations or 
sport fishing activities).
    (4) Paragraph (a) of this section does not apply to state, local, 
or Federal government vessels operating in the course of official duty.
    (5) Paragraph (a) of this section does not affect the rights of 
Alaska Natives under 16 U.S.C. 1539(e).
    (6) This section shall not take precedence over any more 
restrictive conflicting Federal regulation pertaining to humpback 
whales, including the regulations at 36 CFR 13.1102-13.1188 that 
pertain specifically to the waters of Glacier Bay National Park and 
Preserve.
    (c) General measures. Notwithstanding the prohibitions and 
exceptions in paragraphs (a) and (b) of this section, to avoid 
collisions with humpback whales, vessels must operate at a slow, safe 
speed when near a humpback whale. ``Safe speed'' has the same meaning 
as the term is defined in 33 CFR 83.06 and the International 
Regulations for Preventing Collisions at Sea 1972 (see 33 U.S.C. 1602), 
with

[[Page 62021]]

respect to avoiding collisions with humpback whales.

PART 223--THREATENED MARINE AND ANADROMOUS SPECIES

0
3. The authority citation for part 223 continues to read as follows:

    Authority:  16 U.S.C. 1531-1543; subpart B, Sec.  223.201-202 
also issued under 16 U.S.C. 1361 et seq.; 16 U.S.C. 5503(d) for 
Sec.  223.206(d)(9).


0
4. In subpart B of part 223, add Sec.  223.214 to read as follows:


Sec.  223.214  Approaching threatened humpback whales in Alaska.

    (a) Prohibitions. Except as provided under 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 Alaska, or within inland waters of the state, any of the 
acts in paragraphs (a)(1) through (a)(3) of this section with respect 
to threatened humpback whales (Megaptera novaeangliae):
    (1) Approach, by any means, including by interception (i.e., 
placing a vessel in the path of an oncoming humpback whale so that the 
whale surfaces within 100 yards (91.4 m) of the vessel), within 100 
yards (91.4 m) of any humpback whale;
    (2) Cause a vessel or other object to approach within 100 yards 
(91.4 m) of a humpback whale; or
    (3) 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 movement; or the abandonment of a 
previously frequented area.
    (b) Exceptions. The following exceptions apply, but any person who 
claims the applicability of an exception has the burden of proving that 
the exception applies:
    (1) Paragraph (a) of this section does not apply if an approach is 
authorized by the National Marine Fisheries Service through a permit 
issued under part 222, subpart C, of this chapter (General Permit 
Procedures) or through a similar authorization.
    (2) Paragraph (a) of this section does not apply to the extent that 
a vessel is restricted in its ability to maneuver and, because of the 
restriction, cannot comply with paragraph (a) of this section.
    (3) Paragraph (a) of this section does not apply to commercial 
fishing vessels lawfully engaged in actively setting, retrieving or 
closely tending commercial fishing gear. For purposes of this section, 
commercial fishing means taking or harvesting fish or fishery resources 
to sell, barter, or trade. Commercial fishing does not include 
commercial passenger fishing operations (i.e. charter operations or 
sport fishing activities).
    (4) Paragraph (a) of this section does not apply to state, local, 
or Federal government vessels operating in the course of official duty.
    (5) Paragraph (a) of this section does not affect the rights of 
Alaska Natives under 16 U.S.C. 1539(e).
    (6) This section shall not take precedence over any more 
restrictive conflicting Federal regulation pertaining to humpback 
whales, including the regulations at 36 CFR 13.1102-13.1188 that 
pertain specifically to the waters of Glacier Bay National Park and 
Preserve.
    (c) General measures. Notwithstanding the prohibitions and 
exceptions in paragraphs (a) and (b) of this section, to avoid 
collisions with threatened humpback whales, vessels must operate at a 
slow, safe speed when near a humpback whale. ``Safe speed'' has the 
same meaning as the term is defined in 33 CFR 83.06 and the 
International Regulations for Preventing Collisions at Sea 1972 (see 33 
U.S.C. 1602), with respect to avoiding collisions with humpback whales.

PART 224--ENDANGERED MARINE AND ANADROMOUS SPECIES

0
5. The authority citation for part 224 continues to read as follows:

    Authority:  16 U.S.C. 1531-1543 and 16 U.S.C. 1361 et seq.


0
6. Amend Sec.  224.103 to revise the heading of paragraph (b), and 
paragraphs (b)(1) introductory text, (b)(1)(iii), (b)(2)(ii), 
(b)(2)(vi), and (b)(3) to read as follows:


Sec.  224.103  Special prohibitions for endangered marine mammals.

* * * * *
    (b) Approaching endangered humpback whales in Alaska--(1) 
Prohibitions. Except as provided under paragraph (b)(2) 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 Alaska, or within inland waters of the state, any of the 
acts in paragraphs (b)(1)(i) through (b)(1)(iii) of this section with 
respect to endangered humpback whales (Megaptera novaeangliae):
* * * * *
    (iii) 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 movement; or the abandonment of a 
previously frequented area.
    (2) * * *
    (ii) Paragraph (b)(1) of this section does not apply to the extent 
that a vessel is restricted in its ability to maneuver and, because of 
the restriction, cannot comply with paragraph (b)(1) of this section.
* * * * *
    (vi) Paragraph (b) of this section shall not take precedence over 
any more restrictive conflicting Federal regulation pertaining to 
humpback whales, including the regulations at 36 CFR 13.1102-13.1188 
that pertain specifically to the waters of Glacier Bay National Park 
and Preserve.
    (3) General measures. Notwithstanding the prohibitions and 
exceptions in paragraphs (b)(1) and (2) of this section, to avoid 
collisions with endangered humpback whales, vessels must operate at a 
slow, safe speed when near a humpback whale. ``Safe speed'' has the 
same meaning as the term is defined in 33 CFR 83.06 and the 
International Regulations for Preventing Collisions at Sea 1972 (see 33 
U.S.C. 1602) with respect to avoiding collisions with humpback whales.
* * * * *
[FR Doc. 2016-21278 Filed 9-6-16; 4:15 pm]
 BILLING CODE 3510-22-P