policy letter

March 29, 2002 Chief, Permits Conservation and Education Division Office of Protected Resources National Marine Fisheries Service 1315 East-West Highway Silver Springs, MD 20910 ACS Comments to the National Marine Fisheries Service (NMFS) regarding the Advance Notice of Proposed Rulemaking (ANPR) on Preventing Harassment from Human Activities Directed at Marine Mammals in the Wild.

On behalf of the American Cetacean Society (ACS), I am writing to comment on the Advance Notice of Proposed Rulemaking (ANPR) on Preventing Harassment from Human Activities Directed at Marine Mammals in the Wild.

ACS commends the National Marine Fisheries Service (NMFS) for taking action to protect marine mammals from incidental disturbance due to viewing activities. As marine mammal viewing becomes more popular due to the public's increased interest and curiosity, there are an increasing number of chances for harassment to occur. We agree that it is timely to set up more specific regulations to give the public, including tour operators, a concrete set of appropriate acts to follow when viewing marine mammals.

The ANPR has listed four potential actions for consideration: codifying the existing regional marine mammal viewing guidelines; codifying them with modifications; establishing a minimum approach rule; and restricting activities of concern. We believe there is a middle ground among these actions where appropriate regulations can be set up.

We recognize that it is a difficult task to create regulations that may vary by region and need to vary by taxa. Setting up effective viewing regulations for large whales in the ocean and for a harbor seal hauled out on the beach would be close to impossible. These animals live in different worlds (air vs. water), and use quite different senses (e.g., sight vs. acoustic). In addition, an action that would not disturb a seal in the water could very well disturb that seal on land. Therefore, appropriate regulations need to vary by either taxa or substrate within a region, and regionally around the country.

The differences between an appropriate minimum approach for a land-based mammal, where sight is the animal's primary sense and sound dissipates quickly, vs. for a large whale, where sight is almost irrelevant but noise is critical, must be taken into account when creating the regulations.

NMFS needs to continue the regional variations in regulations to allow for regional differences in the way marine mammals tolerate viewing activities. For example, Hawaii has a minimum approach regulation of 100 yards while viewing humpback whales, which are breeding and have newborn calves. The whales are sensitive to boat disturbances. However, in New England, the whales are foraging rather than calving and breeding, and are habituated to and tolerant of vessels. The 100-yard minimum approach in New England would be unnecessary and inappropriate.

The difference between codifying the existing guidelines and setting up approach regulations needs to be clarified. The current regional guidelines often contain approach regulations. The current guidelines would need some modification prior to being proposed as regulations.

We do agree with NMFS and the Marine Mammal Commission that there are some activities of concern that should be heavily regulated. We are in favor of restrictions that would limit the impact of, if not eliminate, intentionally swimming with, touching (either directly or with an object), posing with, or otherwise acting on or with a marine mammal. We also believe that the regulations should include feeding or provision marine mammals.

In conclusion, ACS suggests that NMFS:

1. Implement minimum approach regulations for pinnipeds when hauled out on land;
2. Severely restrict in-water approaches to, physical contact with, and posing with marine mammals;
3. Develop regionally varying regulations on marine mammal viewing which varies by either taxa or the substrate the animal is occupying;
4. Develop regulations that are based on studies, wherever possible, that show what are effective regulations to minimize disturbance;
5. If there are no existing studies, conduct them before initiating regulations without insight into their effectiveness.

The American Cetacean Society thanks NMFS for giving us the opportunity to comment on the ANPR, and we look forward to working with you through the upcoming process.

Respectfully,

Bonnie Gretz
American Cetacean Society National Conservation Chair