JULY 2013

No update.

MAY 2013

NOAA/NMFS has initiated an Advance Notice of Proposed Rulemaking (ANPR) for Alaska harbor seals.  NMFS has cited a 2001 study in Disenchantment Bay as evidence of seal disturbances by cruise ships and intends to use an ANPR to initiate a public comment process which may lead to new regulations.  Those regulations could include greater distances that ships must keep from seals or even the exclusion of ships near some glaciers where seals are present.  The ANPR was published on March 12, 2013, with a 60-day public comment period closing on May 13, 2013.

In addition to developing and submitting our own extensive comments opposing new regulations, we were very active in reaching out to other organizations and individual Alaskans to submit comments as well.

The opposition to the ANPR was nearly 2 to 1 over the support.  There were 41 letters in opposition of new harbor seal regulations.  There were 21 letters of support and several duplicate or general (non-support or opposed) letters.

Included in the letters of support were numerous organizations such as ACA/CLIA-Alaska, the Resource Development Council of Alaska, Alaska ACT, Alaska Travel Industry Association, and the Passenger Vessel Association (PVA).  There were many Alaska businesses including Temsco, Allen Marine, Kenai Fjords Tours (CIRI), Phillips Cruises, Stan Stephens Cruises, Major Marine Tours, Alaska Wildland Adventures, Linblad, and Un-Cruise; as well as the City of Seward and Huna Totem Corporation.  We worked with the State of Alaska to discuss the best available science and encouraged the Governor’s office to submit comments.  From large ships, to kayak tours, to the State of Alaska, there were solid comments on the lack of science and lack of need for new regulations.

The letters in support of new regulations can be categorized into four areas: Government agencies (U.S. Forest Service, Park Service Ranger), environmental organizations (Center for Biological Diversity, Oceana, SEACC, Humane Society), native subsistence hunting organizations (Alaska Native Harbor Seal Commission, Tlingit Haida Central Council, Yakutat Tribe), and graduate students (four total, grad and law students).  With the exception of the Forest Service, the others largely restate the information in the ANPR and request everything from limiting the number of ships in various fjords, to increased viewing distances, to closures of bays for set periods of time (e.g. pupping season).  Our comments, as well as those of the others in opposition of new regulations, address these points very well.

NMFS is now reviewing the public comments and will decide whether to proceed with a specific proposed regulation and new comment period.  We are continuing to work with the State of Alaska and supporting its effort to focus NMFS on conducting additional research, rather than proposing new regulations.  The State of Alaska is hoping to get an early indication of NMFS’ intention.  They are also requesting additional meetings with NMFS staff to discuss their research priorities and ways to combine their research efforts.  We intend to continue to advocate for a dialogue with potentially affected parties prior to issuing a formal regulation.

If the Alaska NMFS office decides to proceed with regulations, they will need to submit a proposal to Washington DC.  This will likely be a long process, providing us an opportunity to work with our Congressional Delegation and CLIA.

APRIL 2013

On March 12, 2013, the National Marine Fisheries Service (NMFS) issued an Advanced Notice of Proposed Rulemaking (ANPR) and request for comments regarding Alaska Harbor Seals.  The agency is currently considering whether to propose regulations imposing new restrictions in glacial habitats in Alaska used by harbor seals.  The scope of the ANPR is broad and “encompasses the activities of any person or vessel that may diminish the value of glacial habitats for harbor seals, or cause detrimental individual or population-level impacts.”

Although the NMFS requests comments that address whether additional regulations are needed, the public notice includes a lengthy discussion of why they already believe additional protections are necessary.  In the ANPR, they cite numerous options including time-area closures, minimum approach distances, and specific corridors for vessel movements.  However, the ANPR does not cite any science that demonstrates vessels are causing population declines.

The NMFS has previously indicated that they do not have a pre-determined regulation which they intend to pursue.  They have described the ANPR as an opportunity to begin a dialogue on the issue and receive input from the public.  Specific regulations could be pursued in a separate public process following the conclusion of the ANPR.

Overall Strategy

Our goals have been to:

• Work with the NMFS to slow down any effort to pursue additional regulations
• Identify research gaps and bad assumptions in NMFS data
• Develop strong written arguments why no regulations are needed
• Keep the Governor’s Office and the leadership at the State Dept. of Fish and Game apprised of the issue, work with them to develop data to counter NMFS assumptions, and encourage the State to submit comments
• Outreach to other Alaska organizations and communities and encourage them to submit comments
• Work with Senator Murkowski’s and Begich’s staff to explore potential Congressional actions

Two years ago, we reached out to the NMFS to discuss their concerns.  They did not express a willingness to discuss what they believed to be the problem or how in their opinion, it could be mitigated.  It was clear; they intended to pursue an ANPR and cited a 2001 study in Disenchantment Bay as evidence of seal disturbances by cruise ships.

In preparation, we began discussions with the State of Alaska.  They have conducted their own seal research and have a different perspective on vessel interactions.  They do see individual seal impacts; however, they have not seen any population level impacts.  Evidence of seals in the water does not demonstrate any different behavior than what is already occurring.  We worked with the State to develop a research proposal that would give them additional information regarding seal behavior while ships are present and not present.  In 2012, we were successful in getting the Legislature to appropriate funds for additional research.  The State intended to pursue the research in 2013; however their internal review of the objectives and methodology resulted in a decision to postpone the research and strengthen the proposal.

Now that the State has had a chance to review the ANPR, they will also take the opportunity to include data in the research to address some of the current research gaps and inconsistencies.

We traveled to Yakutat to meet with the Tribal Council to discuss their concerns and visited the bay to observe the vessel route and seal and ice distributions.  Although we were able to dispel a number of myths about the industry, the Tribal Council members continued to believe the ships were causing a seal population decline and hurting their traditional and subsistence seal hunts.  We have had numerous subsequent meetings and continue to communicate with the Yakutat Tribal Council Administrator.  Although we still have a difference of opinions, we believe it is important to keep a dialogue open.

Over the last year, we have been in contact with Senator Murkowski’s staff.  The staff has been active on the issue, keeping in contact with the NMFS in Washington DC.  Their focus up to this point has been to try to delay any agency action until the State concludes its research.

We developed a white paper and presented it at the recent Alaska Travel Industry Association board meeting.  The board voted unanimously to pass a resolution opposing any new NMFS restrictions and to reach out to their membership and local communities to encourage them to submit comments during the ANPR process.

The real issue is whether the NMFS intends to focus on causes which they can link to population impacts or whether they want to take an extreme view of the Marine Mammal Protection Act (MMPA) and regulate any individual seal disturbance as a “take” under their regulations.

In a recent workshop, the NMFS acknowledged there are many areas where they do not have definitive science and certain assertions regarding risk to seal populations are “potential” rather than something they have measured.  It is clear, they believe that the number of disturbances by all vessels is too high and something should be done to reduce the risk of seal pups flushing into the water when vessels are present.

Our strongest approach is to point to the very small percentage of seals and seal pups our vessels operate near compared to statewide population numbers.  We are also focusing on available studies which do not show any change in seal populations or distributions as a result of our vessels operating in a small number of glacial habitats.

If NMFS pursue regulations based an extreme interpretation of the MMPA , we hope arguing the lack of science demonstrating impacts caused by cruise ships and the uniqueness of each glacial habitat will result in NMFS at least considering our request to work with us prior to proceeding with a specific regulation which applies to all areas.

The deadline to submit comments under the ANPR is May 13, 2013.

Going Forward

Our plan is to:

• Work with the State of Alaska to:
  • Evaluate relevant research to identify inconsistencies with ANPR
  • Identify statements in the ANPR which do not have any scientific research to support them
  • Identify areas in the ANPR which are inconclusive
  • Encourage the State to submit written comments
  • Work with experts at Stoel Rives to draft a letter in response to the ANPR; we intend to make a strong case that:
    • There is no scientific justification to support additional regulation at this time
    • Current research is inconclusive and the NMFS should postpone any effort to impose additional restrictions until the State obtains additional information regarding the impact of vessels on seal populations
    • The potential regulatory solutions identified by NMFS in the ANPR could result in an unjustified and significant economic impact to Alaska
  • Develop a sample letter to circulate to ATIA and their members and encourage them to submit comments
  • Work with other Alaska organizations such as the Resource Development Council and the Alaska State Chamber of Commerce to submit comments
  • Work with the State of Alaska to discuss specific research objectives with NMFS in an effort to ascertain the direction NMFS might be heading
  • Keep Senator Murkowski’s and Begich’s office updated on our activities and continue to discuss opportunities for a Congressional effort to slow down the rulemaking process.