20870 Federal Register / Vol. 76, No. 72 / Thursday, April 14, 2011 / Rules and Regulations 

FMCSA has decided to grant FCSG’s 

exemption application. FMCSA 

encourages any party having 

information that motor carriers utilizing 

this exemption are not achieving the 

requisite level of safety immediately to 

notify the Agency. If safety is being 

compromised, or if the continuation of 

the exemption is not consistent with 49 

U.S.C. 31315(b) and 31136(e), FMCSA 

will take immediate steps to revoke the 

exemption. 

Terms and Conditions for the 

Exemption 

Based on its evaluation of the 

application for an exemption, FMCSA 

has decided to grant FCSG’s exemption 

application. The Agency believes that 

the level of safety that will be achieved 

using the pre-2004 cargo securement 

regulations to secure of rows of metal 

coils with eyes crosswise during the 

2-year exemption period will likely be 

equivalent to, or greater than, the level 

of safety achieved without the 

exemption. 

The Agency hereby grants the 

exemption for a two-year period, 

beginning April 12, 2011, and ending 

April 12, 2013. 

During the temporary exemption 

period, motor carriers must meet the 

following requirements while still 

meeting the aggregate working load 

limit requirements of 49 CFR 

393.106(d). 

Coils with eyes crosswise: If coils are 

loaded to contact each other in the 

longitudinal direction, and relative motion 

between coils, and between coils and the 

vehicle, is prevented by tiedown assemblies 

and timbers: 

(1) Only the foremost and rearmost coils 

must be secured with timbers having a 

nominal cross section of 4 x 4 inches or more 

and a length which is at least 75 percent of 

the width of the coil or row of coils, tightly 

placed against both the front and rear sides 

of the row of coils and restrained to prevent 

movement of the coils in the forward and 

rearward directions; and 

(2) The first and last coils in a row of coils 

must be secured with a tiedown assembly 

restricting against forward and rearward 

motion, respectively. Each additional coil in 

the row of coils must be secured to the trailer 

using a tiedown assembly. 

Interested parties possessing 

information that would demonstrate 

that motor carriers using the cargo 

securement exemption for rows of metal 

coils with eyes crosswise are not 

achieving the requisite statutory level of 

safety should provide that information 

to the Agency, which will place it in 

Docket No. FMCSA–2010–0177. We will 

evaluate any such information, and, if 

safety is being compromised or if the 

continuation of the exemption is not 

consistent with 49 U.S.C. 31315(b)(4) 

and 31136(e), will take immediate steps 

to revoke this exemption. 

Preemption 

During the period the exemption is in 

effect, no State shall enforce any law or 

regulation that conflicts with or is 

inconsistent with this exemption to 

allow the securement of metal coils 

loaded with eyes crosswise, grouped in 

rows, in which the coils are loaded to 

contact each other in the longitudinal 

direction with respect to a person 

operating under the exemption. 

Issued on: April 5, 2011. 

Anne S. Ferro, 

Administrator. 

[FR Doc. 2011–8563 Filed 4–13–11; 8:45 am] 

BILLING CODE 4910–EX–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 224 

[Docket No. 070821475–91169–02] 

RIN 0648–AV15 

Protective Regulations for Killer 

Whales in the Northwest Region Under 

the Endangered Species Act and 

Marine Mammal Protection Act 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: We, the National Marine 

Fisheries Service (NMFS), establish 

regulations under the Endangered 

Species Act (ESA) and Marine Mammal 

Protection Act (MMPA) to prohibit 

vessels from approaching killer whales 

within 200 yards (182.9 m) and from 

parking in the path of whales when in 

inland waters of Washington State. 

Certain vessels are exempt from the 

prohibitions. The purpose of this final 

rule is to protect killer whales from 

interference and noise associated with 

vessels. We identified disturbance and 

sound associated with vessels as a 

potential contributing factor in the 

recent decline of this population during 

the development of the final rule 

announcing the endangered listing of 

Southern Resident killer whales and the 

associated Recovery Plan for Southern 

Resident killer whales (Recovery Plan). 

The Recovery Plan calls for evaluating 

current guidelines and assessing the 

need for regulations and/or protected 

areas. To implement the actions in the 

Recovery Plan, we developed this final 

rule after considering comments 

submitted in response to an Advance 

Notice of Proposed Rulemaking (ANPR) 

and proposed rule, and preparing an 

environmental assessment (EA). This 

final rule does not include a seasonal 

no-go zone for vessels along the west 

side of San Juan Island that was in the 

proposed rule. We will continue to 

collect information on a no-go zone for 

consideration in a future rulemaking. 

DATES: This final rule is effective May 

16, 2011. 

ADDRESSES: Copies of this rule and the 

Environmental Assessment, Regulatory 

Impact Review and Finding of No 

Significant Impact related to this rule 

can be obtained from the Web site 

http://www.nwr.noaa.gov. Written 

requests for copies of these documents 

should be addressed to Assistant 

Regional Administrator, Protected 

Resources Division, Northwest Regional 

Office, National Marine Fisheries 

Service, 7600 Sand Point Way NE., 

Seattle, WA 98115. 

FOR FURTHER INFORMATION CONTACT: 

Lynne Barre, Northwest Regional Office, 

206–526–4745; or Trevor Spradlin, 

Office of Protected Resources, 301–713– 

2322. 

SUPPLEMENTARY INFORMATION: 

Background 

Viewing wild marine mammals is a 

popular recreational activity for both 

tourists and local residents. In 

Washington, killer whales (Orcinus 

orca) are the principal target species for 

the commercial whale watch industry 

(Hoyt 2001, O’Connor et al. 2009). Since 

monitoring of this population segment 

has begun, the number of whales peaked 

at 97 animals in the 1990s, and then 

declined to 79 in 2001. At the end of 

2010 there were 86 whales. NMFS listed 

the Southern Resident killer whale 

distinct population segment (DPS) as 

endangered under the ESA on 

November 18, 2005 (70 FR 69903). In 

the final rule announcing the listing, 

NMFS identified vessel effects, 

including direct interference and sound, 

as a potential contributing factor in the 

recent decline of this population. Based 

on monitoring data regarding the large 

number of vessels in close proximity to 

the whales (i.e., within 1⁄2 mile), 

research results regarding behavioral 

and acoustic impacts caused by vessels, 

and the risk of vessel strikes, NMFS is 

concerned that some whale watching 

activities may harm individual killer 

whales, potentially reducing their 

fitness and increasing the population’s 

risk of extinction. 

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Federal Register / Vol. 76, No. 72 / Thursday, April 14, 2011 / Rules and Regulations 20871 

Killer whales in the eastern North 

Pacific have been classified into three 

forms, or ecotypes, termed residents, 

transients, and offshore whales. 

Resident killer whales live in family 

groups, eat salmon, and include the 

Southern Resident and Northern 

Resident communities. Transient killer 

whales have a different social structure, 

are found in smaller groups and eat 

marine mammals. Offshore killer whales 

are found in large groups and their diet 

is largely unknown. The Southern 

Resident killer whale population 

contains three pods—J, K, and L pods— 

and frequents inland waters of the 

Pacific Northwest. During the spring, 

summer, and fall, the Southern 

Residents’ range includes the inland 

waterways of Puget Sound, Strait of 

Juan de Fuca, and Southern Strait of 

Georgia. Little is known about the 

winter movements and range of 

Southern Residents. Their occurrence in 

coastal waters extends from the coast of 

central California to the Queen Charlotte 

Islands in British Columbia. The home 

ranges of transients, offshore whales, 

and Northern Residents also include 

inland waters of Washington and 

overlap with the Southern Residents. 

There is a growing body of evidence 

documenting effects from vessels on 

small cetaceans and other marine 

mammals. The variety of whale 

responses include stopping or reducing 

feeding, resting, and social interaction 

(Baker et al. 1983; Bauer and Herman 

1986; Hall 1982; Krieger and Wing 1984; 

Lusseau 2003a; Constantine et al. 2004; 

Arcangeli and Crosti 2009; Christiansen 

et al. 2010); abandoning feeding, resting, 

and nursing areas (Jurasz and Jurasz 

1979; Dean et al. 1985; Glockner-Ferrari 

and Ferrari 1985, 1990; Lusseau 2005; 

Norris et al. 1985; Salden 1988; Forest 

2001; Morton and Symonds 2002; 

Courbis 2004; Bejder et al. 2006); 

altering travel patterns to avoid vessels 

(Constantine 2001; Nowacek et al. 2001; 

Lusseau 2003b, 2006; Timmel et al. 

2008); relocating to other areas (Allen 

and Read 2000); changes in acoustic 

behavior (Van Parijs and Corkeron 

2001); and masking communication 

signals (Jensen et al. 2009.) One study 

found that marine mammals exposed to 

human-generated noise released 

increased amounts of stress hormones 

that have the potential to harm their 

nervous and immune systems (Romano 

et al. 2004). In some studies, however, 

researchers have found that marine 

mammals display no reaction to vessels 

(Watkins 1986; Nowacek et al. 2003) or 

concluded that there is no correlation 

between vessel effects and survival or 

reproduction (Weinrich and Corbelli 

2009). 

Several scientific studies in the 

Pacific Northwest have documented 

disturbance of resident killer whales by 

vessels engaged in whale watching. 

Several researchers have reported shortterm behavioral changes in Northern 

and Southern Resident killer whales in 

the presence of vessels (Kruse 1991; 

Kriete 2002; Williams et al. 2002a, 

2002b, 2006, 2009; Foote et al. 2004; 

Bain et al. 2006, Holt et al. 2009, 

Lusseau et al. 2009, Wieland et al. 

2010), although many studies do not 

address whether it is the presence and 

activity of the vessel, the sounds the 

vessel makes, or a combination of these 

factors that disturbs the animals. 

Individual animals can react in a variety 

of ways to nearby vessels, including 

swimming faster, adopting less 

predictable travel paths, making shorter 

or longer dives, moving into open water, 

and altering normal patterns of behavior 

(Kruse 1991; Williams et al. 2002a, 

2009, 2010; Bain et al. 2006; Noren et 

al. 2007, 2009; Lusseau et al. 2009). 

Some studies have looked at effects 

on behavior at specific vessel distances. 

In those studies, vessels were underway 

during active approaches or may have 

been parked in the path or stopped close 

to the whales as part of a leapfrogging 

sequence (i.e., a vessel repeatedly 

speeds ahead of the whales, makes a 90 

degree turn to intercept the path of the 

whales and waits for the whales to 

approach). Many of these studies 

included both motorized and nonmotorized (e.g., sail boats and kayaks) in 

assessing the impacts of vessels on the 

behavior of the whales. 

Approaches within 100 yards (91.4 

m): Research results indicate that killer 

whale behavior changes from vessel 

approaches within 100 yards (91.4 m) 

include changes in swimming patterns, 

changes in respiratory patterns, reduced 

time spent foraging, and increased 

surface active behaviors, such as tail 

slaps (Bain et al. 2006, Noren et al. 

2007, 2009; Williams et al. 2002a, 

Lusseau et al. 2009). Noren et al. (2007, 

2009) reported the highest frequency of 

surface active behaviors when the 

nearest vessel was within 75 to 99 

meters in 2005. Lusseau et al. (2009) 

reported a significant decrease in overall 

time spent foraging and significant 

increase in overall time spent traveling 

when vessels were present within 100 

yards (91.4 m). Williams et al. (2002a) 

found that experimental vessel 

approaches at 100 meters (about 100 

yards (91.4 m)) resulted in whales 

covering 13 percent more distance along 

a less direct route than before the vessel 

approached. Foraging female whales 

swam 25 percent faster and changed 

direction more often when approached 

by the experimental boat as compared to 

the observations before the boat 

approached. 

Approaches within 200 to 400 yards 

(182.9 to 365.8 m): Research results also 

indicate that killer whale behavior can 

be affected by approaches at distances 

greater than 100 yards (91.4 m) (Lusseau 

et al. 2009; Noren et al. 2007, 2009; 

Williams et al. 2009). One study 

reported similar types of effects (i.e., 

increased direction changes, increased 

respiratory intervals and transitions 

between activity states) from vessels 

within 400 yards (365.8 m) of whales as 

compared to vessels within 100 yards 

(91.4 m), although to a lesser degree. 

This study did not report if the effects 

of vessels within 400 yards (365.8 m) 

were from vessels close to the 100-yard 

(91.4 m) distance (i.e., at 101 yards), at 

a 200-yard (182.9 m) distance or further 

away (i.e., 399 yards) (Bain et al. 2006). 

Lusseau et al. (2009) also reported a 

reduction in time spent foraging when 

vessels were within 400 yards (365.8 m). 

Noren et al. (2007, 2009) reported the 

highest frequency of surface active 

behaviors when the closest vessels were 

within 100 yards (91.4 m) in 2005 and 

the highest frequency of surface active 

behaviors when the closest vessel was 

within 125 to 149 yards (114.3 to 136.2 

m) in 2006, as compared to situations 

when the closest vessel was further 

away. 

The long term effects of these 

behavioral responses are less well 

known (Williams et al. 2006), although 

researchers have estimated the 

physiological consequences of 

behavioral responses by calculating the 

energetic costs of the behaviors 

observed when vessels are present. 

Williams et al. (2006) estimated that 

killer whales expended slightly more 

energy in the presence of all types of 

vessels. The behavior exhibited in the 

presence of vessels would require 

approximately 3 percent more energy 

than behavior in the absence of vessels. 

The increased energy expenditure may 

be less important than the reduced time 

spent feeding and the resulting likely 

reduction in prey consumption. From 

their observations, Williams et al. (2006) 

calculated that lost feeding 

opportunities could result in an 18 

percent decrease in energy intake in the 

presence of all types of vessels 

compared to when vessels are absent. 

In addition, researchers have also 

looked at the number of boats and how 

smaller or larger numbers of boats 

present affects the behavioral responses 

of killer whales (Williams and Ashe 

2007; Giles and Cendak 2010). Giles and 

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20872 Federal Register / Vol. 76, No. 72 / Thursday, April 14, 2011 / Rules and Regulations 

Cendak (2010) analyzed killer whale 

behavior in high and low boat density 

conditions. Based on the distribution of 

number of vessels within 1,000 yards 

(914.4 m) of the focal group, low boat 

density was defined as five or fewer 

vessels within 1,000 yards (914.4 m) 

and high density was greater than five 

vessels within 1,000 yards (914.4 m). 

Whales spent significantly less time 

foraging in high boat density conditions 

(approximately 17 percent of time) 

compared to low boat density 

conditions (approximately 25 percent of 

time). Whales were also significantly 

more likely to remain foraging in low 

boat density conditions, indicating that 

the whales discontinued foraging when 

boat density was high. The effect of boat 

density was significant only when the 

whales were foraging, which may be the 

behavior state most susceptible to 

disturbance by high numbers of vessels. 

Increased energetic costs from 

behavioral disturbance and reduced 

foraging can decrease the fitness of 

individuals (Lusseau and Bejder 2007). 

Increased energy expenditure or 

disruption of foraging could result in 

poor nutrition. Poor nutrition could lead 

to reproductive or immune effects or, if 

severe enough, to mortality (Dierauf and 

Gulland 2001; Trites and Donnelly 

2003). Interference with foraging and 

nutritional stress can affect growth and 

development, which in turn can affect 

the age at which animals reach 

reproductive maturity, fecundity, and 

annual or lifetime reproductive success 

(Trites and Donnelly 2003). Vessels in 

the path of the whales can interfere with 

important social behaviors such as prey 

sharing (Ford and Ellis 2006) or with 

behaviors that generally occur in a 

forward path as the whales are moving, 

such as nursing (Kriete 2007). 

Interference with behaviors including 

prey sharing and communication could 

also change social cohesion and foraging 

efficiency and therefore the growth, 

reproduction, and fitness of individuals. 

Killer whales generally have a range 

of hearing from 1 to 100 kHz 

(Szymanski et al. 1999) and this wide 

frequency range of hearing makes killer 

whales susceptible to effects from a 

wide range of sounds, including sound 

produced by vessels. Sound modeling 

has been used to estimate distances at 

which vessel sound would cause 

behavioral responses for killer whales 

(Erbe 2002). Erbe (2002) predicted that 

the sounds of fast boats (greater than 50 

km/h [31 miles/hour]) would be audible 

to killer whales at distances of up to 16 

kilometers (10 miles) and cause 

behavioral responses within 200 meters 

(0.12 miles or 219 yards). For boats 

moving at slow speeds (10 km/h [ 6.2 

miles/hour]), sound would be audible 

within 1 kilometer (0.62 miles or 1,094 

yards) and cause behavioral changes 

within 50 meters (55 yards). 

Human-generated sounds may mask 

or compete with and effectively drown 

out clicks, calls, and whistles made by 

killer whales, including echolocation 

(signals sent by the whales that bounce 

off objects in the water and provide 

information to the whales) used to 

locate prey and other signals the whales 

rely upon for communication and 

navigation. High frequency sound 

generated from recreational and 

commercial vessels moving at high 

speed in the vicinity of whales may 

mask echolocation and other signals the 

species rely on for foraging (Erbe 2002; 

Holt 2009), communication (Foote et al. 

2004, Weiland et al. 2010), and 

navigation. Sounds directly in front of 

the whale (i.e., in their path) would 

have the greatest impact on the whales 

ability to hear important sounds. 

Masking of echolocation would reduce 

foraging efficiency (Holt 2009), which 

may be particularly problematic if prey 

resources are limited. Holt (2009) 

reviewed the current knowledge and 

data gaps regarding sound exposure in 

Southern Resident killer whales. The 

review provides an overview of acoustic 

concepts, killer whale sound 

production, ambient sound levels in 

Haro Strait (Veirs and Veirs 2006), 

sound propagation in killer whale 

habitats, effects of sound exposure, and 

assessment of likely acoustic impacts on 

the Southern Residents. Holt used data 

on ambient sound and characteristics 

and sound levels of several different 

types of vessels (Hildebrand et al. 2006) 

to analyze impacts on the effective range 

of killer whale echolocation in detecting 

a salmon. The vessel sounds were 

recorded at idle, when powering up, 

and at cruise speeds (17 to 31 knots). 

The review concluded that vessel noise 

was predicted to significantly reduce 

the range at which echolocating killer 

whales could detect salmon in the water 

column. Holt (2009) reported that the 

detection range for a killer whale 

echolocating on a Chinook salmon 

could be reduced 88 to 100 percent by 

the presence of a moving vessel within 

100 yards (91.4 m) of the whale. The 

detection range was reduced 38 to 90 

percent when different vessels were 

operating at different speeds 200 and 

400 yards (182.9 and 365.8 m) from the 

whales. Reduction in detection ranges 

decreased with greater distance from the 

whales and this was the case for both 

fast (cruise) and slower (powering up) 

vessels. 

Additionally, prey sharing has 

recently been identified as an important 

feature of Northern Resident killer 

whale foraging (Ford and Ellis 2005). 

Masking sound from vessels could affect 

the ability of whales to coordinate their 

feeding activities, including searching 

for prey and prey sharing. A study by 

Foote et al. (2004) on Southern Resident 

killer whales in the San Juan Islands 

identified that all three pods increased 

the duration of their primary 

communication call when vessels were 

present. This appears to be a recent 

development, which Foote et al. (2004) 

attributed to increased vessel traffic and 

subsequent engine noise reaching a 

threshold above which whales 

compensated with longer duration of 

calls to overcome the vessel noise (Foote 

et al. 2004). Wieland et al. (2010) also 

reported increased call durations, but 

for a larger number of call types (16 out 

of 21 calls) in a similar comparison. 

Holt et al. (2009) found that killer 

whales increase their call amplitude in 

response to vessel noise. 

Killer whales may also be injured or 

killed by collisions with passing ships 

and powerboats, primarily from being 

struck by the turning propeller blades 

(Visser 1999, Ford et al. 2000, Visser 

and Fertl 2000, Baird 2001, Carretta et 

al. 2001, 2004; Van Waerebeek et al. 

2007). Some animals with severe 

injuries eventually make full recoveries, 

such as a female described by Ford et al. 

(2000) that showed healed wounds 

extending almost to her backbone. A 

2005 collision of a Southern Resident 

with a commercial whale watch vessel 

in Haro Strait resulted in a minor injury 

to the whale, which subsequently 

healed. From the 1960s to 1990s (Baird 

2002) only one resident whale mortality 

from a vessel collision was reported for 

Washington and British Columbia. 

However, additional mortalities have 

been reported since then. In March of 

2006, the lone Southern Resident killer 

whale, L98, residing in Nootka Sound 

for several years, was killed by a tug 

boat. While L98 exhibited unusual 

behavior and often interacted with 

vessels, his death demonstrates the risk 

of vessel accidents. Several mortalities 

of resident killer whales in British 

Columbia in recent years have been 

attributed to vessel collisions (Gaydos 

and Raverty 2007). 

Vessel effects were identified as a 

factor in the ESA listing of the Southern 

Residents (70 FR 69903; November 18, 

2005) and are addressed in the Recovery 

Plan (73 FR 4176; January 24, 2008), 

which is available on our Web page at 

http://www.nwr.noaa.gov/. 

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Federal Register / Vol. 76, No. 72 / Thursday, April 14, 2011 / Rules and Regulations 20873 

Current MMPA and ESA Prohibitions 

and NMFS Guidelines and Regulations 

The Marine Mammal Protection Act 

(MMPA), 16 U.S.C. 1361 et seq., 

contains a general prohibition on take of 

marine mammals. Section 3(13) of the 

MMPA defines the term take as ‘‘to 

harass, hunt, capture, or kill, or attempt 

to harass, hunt, capture, or kill any 

marine mammal.’’ Except with respect to 

military readiness activities and certain 

scientific research activities, the MMPA 

defines the term harassment as ‘‘any act 

of pursuit, torment, or annoyance 

which—(i) Has the potential to injure a 

marine mammal or marine mammal 

stock in the wild, [Level A harassment]; 

or (ii) has the potential to disturb a 

marine mammal or marine mammal 

stock in the wild by causing disruption 

of behavioral patterns, including, but 

not limited to, migration, breathing, 

nursing, breeding, feeding, or sheltering 

[Level B harassment].’’ 

In addition, NMFS regulations 

implementing the MMPA further define 

the term take to include: ‘‘the negligent 

or intentional operation of an aircraft or 

vessel, or the doing of any other 

negligent or intentional act which 

results in disturbing or molesting a 

marine mammal; and feeding or 

attempting to feed a marine mammal in 

the wild’’ (50 CFR 216.3). 

The MMPA provides limited 

exceptions to the prohibition on take for 

activities such as scientific research, 

public display, and incidental take in 

commercial fisheries. Such activities 

require a permit or authorization, which 

may be issued only after agency review. 

The ESA, 16 U.S.C. 1531–1543, 

prohibits the take of endangered 

species. Section 3(18) of the ESA 

defines take to mean ‘‘harass, harm, 

pursue, hunt, shoot, wound, kill, trap, 

capture, or collect, or to attempt to 

engage in any such conduct.’’ Both the 

ESA and MMPA require wildlife 

viewing to be conducted in a manner 

that does not cause take. 

NMFS has developed specific 

regulations under the MMPA and ESA 

for certain marine mammal species in 

particular locations. Each rule was 

based on the biology of the marine 

mammals and available information on 

the nature of the threats. NMFS has 

regulated close vessel approaches to 

large whales in Hawaii, Alaska, and the 

North Atlantic and created buffer zones 

to protect Steller sea lions and has 

experience enforcing these regulations. 

There are exceptions to each of these 

rules. 

In 1995, NMFS published a final rule 

to establish a 100 yard (91.4 m) 

approach limit for endangered 

humpback whales in Hawaii (60 FR 

3775, January 19, 1995). While available 

scientific information did not provide 

precise information on a single distance 

at which vessels disturbed the whales, 

NMFS established the 100 yard 

approach regulation based on its 

experience enforcing the prohibition of 

harassment (i.e., activities that were 

initiated or occurred within 100 yards 

(91.4 m) of a whale had a high 

probability of causing harassment). In 

2001, NMFS published a final rule (66 

FR 29502, May 31, 2001) to establish a 

100 yard (91.4 m) approach limit for 

endangered humpback whales in Alaska 

that included a speed limit when a 

vessel is near a whale. The approach 

regulations included approach, by any 

means, including interception of the 

path of the whales. NMFS adopted the 

100 yard distance to maintain 

consistency with the published 

guidelines and with the regulations that 

existed for viewing humpback whales in 

Hawaii. NMFS considered some form of 

speed restrictions to reduce the 

likelihood of mortality or injury to a 

whale in the event of a vessel/whale 

collision. For practical and enforcement 

reasons, NMFS included a slow safe 

speed standard, rather than a strict 

nautical mile-per-hour standard, in the 

rule. 

In 1997, NMFS published an interim 

final rule to prohibit approaching 

endangered North Atlantic right whales 

closer than 500 yards (457.2 m) (62 FR 

6729, February 13, 1997). The purpose 

of the 500-yard (457.2 m) approach 

regulation was to reduce the current 

level of disturbance and the potential 

for vessel interaction and to reduce the 

risk of collisions. In addition to 

collision injuries or mortalities, NMFS 

listed other vessel impacts, including 

displacing cow/calf pairs from 

nearshore waters, expending increased 

energy when feeding is disrupted or 

migratory paths rerouted, and 

turbulence associated with vessel traffic, 

which may indirectly affect right whales 

by breaking up the dense surface 

zooplankton patches in certain whale 

feeding areas. To further reduce impacts 

to North Atlantic right whales from 

collisions with ships, NMFS recently 

published a final rule to implement 

speed restrictions of no more than 10 

knots applying to all vessels, except 

those operated by or under contract to 

Federal agencies, 65 ft (19.8 m) or 

greater in overall length in certain 

locations, and at certain times of the 

year along the east coast of the U.S. 

Atlantic seaboard (73 FR 60173; October 

10, 2008). 

On November 26, 1990 (55 FR 49204), 

NMFS listed Steller sea lions as 

‘‘threatened’’ under the ESA and the 

listing included regulations prohibiting 

vessels from operating within buffer 

zones 3 nautical miles around the 

principal Steller sea lion rookeries in 

the Gulf of Alaska and the Aleutian 

Islands. The regulations prohibit vessels 

from operating within the 3-mile buffer 

zones, with certain exceptions. 

Similarly, people are prohibited from 

approaching on land closer than 1⁄2 mile 

or within sight of a listed Steller sea lion 

rookery. NMFS created the buffer zones 

to (1) Restrict the opportunities for 

individuals to shoot at sea lions; (2) 

facilitate enforcement of this restriction; 

(3) reduce the likelihood of interactions 

with sea lions, such as accidents or 

incidental takings in these areas where 

concentrations of the animals are 

expected to be high; (4) minimize 

disturbances and interference with sea 

lion behavior, especially at pupping and 

breeding sites; and (5) avoid or 

minimize other related adverse effects. 

In addition to these specific 

regulations, NMFS has provided general 

guidance for wildlife viewing so that the 

activities are not likely to cause take. 

This is consistent with the philosophy 

of responsible wildlife viewing 

advocated by many federal and state 

agencies to allow the public to observe 

the natural behavior of wild animals in 

their habitats without causing 

disturbance (see http://www.watchable

wildlife.org/ and http://www.watchable

wildlife.org/publications/marine_

wildlife_viewing_guidelines.htm). 

Each of the six NMFS Regions has 

developed recommended viewing 

guidelines to educate the public on how 

to responsibly view marine mammals in 

the wild and avoid causing a take. These 

guidelines are available on line at: 

http://www.nmfs.noaa.gov/prot_res/

MMWatch/MMViewing.htm. The ‘‘Be 

Whale Wise’’ guidelines developed for 

marine mammals by the NMFS 

Northwest Regional Office and partners 

are also available at: http://

www.bewhalewise.org/guidelines/. 

Be Whale Wise is a transboundary 

effort to develop and update guidelines 

for viewing marine wildlife. NMFS has 

partnered with monitoring groups, 

commercial operators, whale advocacy 

groups, U.S. and Canadian government 

agencies and enforcement divisions over 

the past several years to promote safe 

and responsible wildlife viewing 

practices through the development of 

outreach materials, training workshops, 

on-water education and public service 

announcements. The 2009 version of the 

Be Whale Wise guidelines recommends 

that boaters parallel whales no closer 

than 100 yards (91.4 m), approach 

animals slowly from the side rather than 

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from the front or rear, and avoid putting 

the vessel within 400 yards (365.8 m) in 

front of or behind the whales. The 

guidelines also recommend vessels 

reduce their speed to less than 7 knots 

within 400 yards (365.8 m) of the 

whales, and to remain on the outer side 

of the whales near shore. In 2008 a state 

law with similar language to the current 

approach and ‘‘park in the path’’ 

guidelines (RCW 15.77.740) was enacted 

to protect Southern Resident killer 

whales in Washington State waters. 

San Juan County, Washington, 

identifies two voluntary no-boat areas 

off San Juan Island on their Marine 

Stewardship Area maps, although this is 

separate from the Be Whale Wise 

guidelines. The first is a 1⁄2 mile (∼800 

m)-wide zone along a 1.8 mile (3 km) 

stretch of shore centered on the Lime 

Kiln lighthouse on the west coast of San 

Juan Island. The second is a 1⁄4 mile 

(∼400 m)-wide zone along much of the 

west coast of San Juan Island from Eagle 

Point to Mitchell Point. These areas, 

totaling approximately 3.8 square miles, 

facilitate shore-based viewing and 

reduce vessel presence in an area used 

by the whales for feeding, traveling, and 

resting. 

NMFS supports the Soundwatch 

boater education program, an on-water 

stewardship and monitoring group, to 

help develop and promote the Be Whale 

Wise guidelines and monitor vessel 

activities in the vicinity of whales. 

Soundwatch reports incidents when the 

guidelines are not followed and there is 

the potential for disturbance of the 

whales (Koski 2004, 2006, 2007, 2008, 

2009, 2010a, 2010b). Soundwatch 

reported that the mean number of 

vessels following a given group of 

whales increased from five boats in 

1990 to an average of about 15 to 20 

boats within 1⁄2 mile of the whales 

during May through September, for the 

years 1998 through 2010 (Osborne et al. 

1999; Baird 2001; Erbe 2002; Marine 

Mammal Monitoring Project 2002; Koski 

2004, 2006, 2007, 2008, 2009, 2010a, 

2010b), with a peak of 22 vessels around 

the whales in 1998 and 2003 and a 

steady decline from 22 vessels in 2003 

to an average of 14 vessels in 2010. 

Soundwatch identified potential reasons 

for the decline in average number of 

boats, including economic conditions 

and fewer opportunities for fishing, as 

well as a pattern of groups of whales 

that are spread out in the action area so 

that vessels are also spread out. 

Soundwatch remains with one group of 

whales and records vessel counts 

around the group and therefore would 

not count all boats spread out with 

multiple groups of whales (Koski 

2010b). 

At any one time, the observed 

numbers of commercial and recreational 

whale watch boats around killer whales 

can be much higher than the mean 

number of vessels. For example, sources 

other than Soundwatch have reported 

that 107 vessels followed one Southern 

Resident pod (Lien 2000); 76 boats 

simultaneously positioned around a 

group of 18 whales from K pod (Baird 

2002); and local media reported up to 

500 vessels came out on the weekends 

to view a group of whales from L pod 

in Dyes Inlet during the fall of 1997. 

Although the average number of whale 

watch vessels within 1⁄2 mile is lower 

than what was observed in these three 

cases, the extreme nature of these events 

illustrates the degree to which killer 

whales can captivate the public’s 

interest in the Pacific Northwest and the 

level of vessel effects that may occur. 

Over the last several years, the whale 

watch season has extended in length, 

with vessels accompanying whales for 

more hours of the day and more days of 

the year. It is not uncommon for 

Southern Residents or transient killer 

whales to be accompanied by many 

boats throughout much or all of the day 

with peak numbers of attending vessels 

in late morning and mid-afternoon 

during the busiest whale watching 

months of July and August (Koski 2007). 

In recent years, U.S. and Canadian 

commercial whale watch vessels have 

made up from 24 percent (2010) to over 

50 percent (2004) of the vessels 

observed within a 1⁄2-mile radius of the 

whales (Koski 2006, 2007, 2010b). 

Soundwatch observers also report 

incidents when recreational and 

commercial whale watching vessels, as 

well as other types of vessels, are not 

adhering to the guidelines. From 2006 

through 2010, there were between 1,085 

(2007) and 2,527 (2009) incidents per 

year of vessels not following the 

guidelines reported during the time the 

observers were present. Soundwatch 

effort (estimated observation time) has 

fluctuated in recent years and trends in 

incident data can be difficult to 

interpret. There was an increasing trend 

in the number of incidents from 1998 to 

2006, which is not based only on 

increasing hours of observation time 

(Industrial Economics, Incorporated 

2010). An average of 1.2 incidents was 

observed per hour in 2003, while an 

average of 6.02 incidents were observed 

per hour in 2009. 

As in the past several years, the most 

common Soundwatch observed vessel 

incident categories in 2010 were: 

(1) Vessels parking in the path within 

100–400 yards (365.8 m) of whales 

(Parked in path) at 23 percent of all 

incidents, 

(2) Vessels motoring inshore of 

whales (Inshore of whales) at 17 

percent, 

(3) Vessels motoring within 100 yards 

(91.4 m) of whales (Under power within 

100 yards (91.4 m) of whales) at 12 

percent, and 

(4) Vessels motoring fast (greater than 

7 knots) within 400 yards (365.8 m) of 

whales (fast within 1⁄4 mile of whales) 

at 13 percent of all incidents. 

In 2009 there were 2,527 incidents; 

the majority of these were committed by 

private boaters (72 percent) and 

Canadian commercial operators (8 

percent). Of the 1,067 incidents in 2010, 

the majority were committed by private 

boaters (64 percent) and Canadian 

commercial operators (10 percent). The 

most common incidents also reflect this 

pattern and are most often committed by 

private boaters and Canadian 

commercial whale watch vessels. 

In both 2009 and 2010, 4 percent of 

incidents observed were committed by 

kayaks. Of the 1,067 incidents in 2010, 

41 incidents (22 commercial and 19 

private kayakers) specific to kayaks 

were observed, including parking in the 

path (20 percent of kayak incidents in 

2010). Soundwatch has reported that 

they likely underestimate kayak 

incidents because the Soundwatch 

observation vessel remains outside of 

the current voluntary no-go zone where 

considerable kayak activity takes place 

(Dismukes 2010). In 2010, Soundwatch 

collected new information regarding 

kayaks from land-based observation 

points. They observed over 2,100 kayaks 

with the whales from June to September 

along the west side of San Juan Island 

with up to 41 kayaks with the whales at 

one time. Of the kayaks observed with 

whales, 74 percent were part of 

commercial kayaking groups (Koski 

2010b). Observers reported a total of 594 

incidents of kayakers not following 

guidelines including 171 incidents of 

kayaks within 100 yards (91.4 m) of the 

whales and 88 incidents of kayaks 

parked within the path of the whales. In 

most cases when the kayakers made an 

effort to follow the guidelines they were 

able to comply with the 100 yard and 

park in the path guidelines (Koski 

2010b). 

In addition to monitoring, the 

Soundwatch program includes an 

education component, providing 

information on the viewing guidelines 

to boaters that are approaching areas 

with whales. Despite the regulations, 

guidelines and outreach efforts, 

interactions between vessels and killer 

whales continue to occur in the waters 

of Puget Sound and the Georgia Basin. 

Advertisements on the Internet and in 

local media in the Pacific Northwest 

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promote activities that appear 

inconsistent with what is recommended 

in the Be Whale Wise guidelines. NMFS 

has received letters from the Marine 

Mammal Commission, members of the 

scientific research community, 

environmental groups, and members of 

the general public expressing the view 

that some types of interactions with 

killer whales have the potential to 

harass and/or disturb the animals by 

causing injury or disruption of normal 

behavior patterns. Soundwatch reports 

high numbers of incidents when vessels 

are not following the guidelines to avoid 

harassment (Koski 2004, 2006, 2007, 

2008, 2009, 2010a, 2010b). Violations of 

current ESA and MMPA take 

prohibitions are routinely reported to 

NOAA’s Office for Law Enforcement; 

however, the current prohibitions are 

difficult to enforce. The current 

prohibition against harassment may 

require demonstration of changes in the 

whales’ behavior or an injury caused by 

a specific action which often includes 

expert testimony regarding behavioral 

response. NMFS has also received 

inquiries from members of the public 

and commercial tour operators 

requesting clarification of NMFS’ policy 

on what activities constitute 

harassment. 

In 2002, NMFS published an ANPR 

requesting comments from the public on 

what types of regulations and other 

measures would be appropriate to 

prevent harassment of marine mammals 

in the wild caused by human activities 

directed at the animals (67 FR 4379, 

January 30, 2002). The 2002 ANPR was 

national in scope and covered all 

species of marine mammals under 

NMFS’ jurisdiction (whales, dolphins, 

porpoises, seals and sea lions), and 

requested comments on ways to address 

concerns about the public and 

commercial operators closely 

approaching, swimming with, touching 

or otherwise interacting with marine 

mammals in the wild. Several potential 

options were presented for 

consideration and comment, including: 

(1) Codifying the current NMFS 

Regional marine mammal viewing 

guidelines into regulations; (2) codifying 

the guidelines into regulations with 

additional improvements; (3) 

establishing minimum approach 

regulations similar to the ones for 

humpback whales in Hawaii and Alaska 

and North Atlantic right whales; and (4) 

restricting activities of concern similar 

to the MMPA regulation prohibiting the 

public from feeding or attempting to 

feed wild marine mammals. The 2002 

ANPR specifically mentioned the 

complaints received from researchers 

and members of the public concerning 

close vessel approaches to killer whales 

in the Northwest. NMFS received over 

500 comments on the 2002 ANPR 

regarding human interactions with wild 

marine mammals in United States 

waters and along the nation’s coastlines. 

NMFS has determined that existing 

prohibitions, regulations, and guidelines 

described above do not provide 

sufficient protection of killer whales 

from vessel impacts. We considered 

information developed through internal 

scoping, public and agency comments 

on the 2002 nation-wide ANPR, a 2007 

killer whale-specific ANPR and the 

2009 proposed rule (described below), 

monitoring reports, and scientific 

information. Monitoring groups 

continue to report high numbers of 

vessels around the whales and high 

numbers of vessel incidents that may 

disturb or harm the whales. Vessel 

effects may limit the ability of the 

endangered Southern Resident killer 

whales to recover and may impact other 

killer whales in inland waters of 

Washington. We therefore deem it 

necessary and advisable to adopt 

regulations to protect killer whales from 

vessel impacts, which will support 

recovery of Southern Resident killer 

whales. NMFS’ determination that 

regulations are needed is described in 

detail in the Rationale for Regulations 

section below. 

Development of Proposed Regulations 

In March 2007, we published an 

ANPR (72 FR 13464; March 22, 2007) to 

gather public input on whether and 

what type of regulation might be 

necessary to reduce vessel effects on 

Southern Residents. The ANPR 

requested comments on a preliminary 

list of potential regulations including 

codifying the Be Whale Wise guidelines, 

establishing a minimum approach rule, 

prohibiting particular vessel activities of 

concern, establishing time-area closures, 

and creating operator permit or 

certification programs. During the ANPR 

public comment period, we received a 

total of 84 comments via letter, e-mail 

and on the Federal e-rulemaking portal. 

Comments were submitted by 

concerned citizens, whale watch 

operators, research, conservation and 

education groups, federal, state and 

local government entities, and various 

industry associations. The majority of 

comments explicitly stated that 

regulations were needed to protect killer 

whales from vessels. Most other 

comments generally supported 

protection of the whales. Six comments 

explicitly stated that no regulations 

were needed. There was support for 

each of the options in the preliminary 

list of alternatives published in the 

ANPR, and many comments supported 

multiple approaches. Some additional 

alternatives were also suggested. A full 

summary of the comments and NMFS’ 

responses are contained in the proposed 

rule. 

Proposed Rule 

In July 2009, NMFS proposed 

regulations that would prohibit 

motorized, non-motorized, and selfpropelled vessels in inland waters of 

Washington from (1) Causing a vessel to 

approach within 200 yards (182.9 m) of 

any killer whale; (2) entering a restricted 

zone along the west coast of San Juan 

Island during a specified season, and 

(3) intercepting the path of any killer 

whale in inland waters of Washington 

(74 FR 3764, July 29, 2009). The 

proposed regulations included 

exemptions for certain vessels and 

activities. As described in the proposed 

rule and draft EA, we based the 

proposed regulations on the best 

available data on vessels and whales, 

and public comments on the ANPR. 

NMFS published the proposed rule in 

the Federal Register and requested 

public comment on the proposed 

regulations, the draft EA and supporting 

documents, such as the Draft Regulatory 

Impact Review (IEC 2008). To develop 

the draft EA, we relied on the public 

comments on the ANPR, the Recovery 

Plan, Soundwatch data, and other 

scientific information to develop a range 

of alternatives to the regulations, 

including the alternative of not adopting 

regulations. We analyzed the 

environmental effects of these 

alternative regulations and considered 

options for mitigating effects. After a 

preliminary analysis of the alternative 

regulations, we developed an alternative 

that combined three separate provisions 

into a single package—a 200-yard (182.9 

m) approach restriction, a no-go zone 

along the west side of San Juan Island 

from May–September, and a prohibition 

on parking in the whales’ path. We 

analyzed the effects of that package in 

the draft EA. 

Comments and Responses to Comments 

on the Proposed Rule 

NMFS published proposed 

regulations to protect killer whales on 

July 29, 2009, and announced two 

public meetings. In response to requests, 

NMFS added a third public meeting 

(74 FR 47779, September 17, 2009) and 

extended the comment period to 

January 15, 2010 (74 FR 53454, October 

19, 2009). The public meetings were 

well attended and over 160 people 

provided recorded oral comments on 

the proposed rule. During the public 

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comment period, 704 unique written 

comments were submitted via letter, 

e-mail and the Federal e-rulemaking 

portal. Comments were submitted by 

concerned citizens; whale watch 

operators and naturalists; research, 

conservation and education groups; 

federal, state and local government 

entities; and various industry and other 

associations. NMFS posted all written 

comments received during the comment 

period on the NMFS Northwest 

Regional Web page: http:// 

www.nwr.noaa.gov/Marine-Mammals/ 

Whales-Dolphins-Porpoise/KillerWhales/Recovery-Implement/OrcaVessel-Regs.cfm. In addition to unique 

comments, over 2,400 form letters were 

submitted. There were 15 different form 

letters with the number of copies for 

each ranging from four to over 1,500. 

Additionally, we received five petitions 

that ranged from 100 to 740 signatures 

each and totaled over 1,300 names and 

signatures. 

Many of the oral and written 

comments from individual members of 

the public were short general statements 

that: (1) Supported the proposed 

regulations and killer whale 

conservation in general, (2) disagreed 

with the proposed regulations, or 

(3) disagreed only with the proposed nogo zone. Other individual public 

comments and comments from 

organizations and government agencies 

included substantive information, such 

as specific suggestions to alter the 

proposed regulations, new information, 

or additional alternatives to consider. 

The Marine Mammal Commission made 

several recommendations in their 

comments on the proposed rule that are 

addressed below in response to 

Comments 4, 6, 7, 14, 16 and 17. The 

following is a summary of the comments 

received on both the proposed rule and 

the draft EA. The proposed rule 

included almost all of the information 

in the draft EA and most commenters 

directed their comments toward the 

proposed rule. We have grouped and 

summarized similar comments and 

recommendations, and responded to 

issues that directly relate to this 

rulemaking. Responses to the comments 

also include descriptions of changes 

made to the proposed regulations. 

Comment 1: Mandatory regulations 

versus voluntary guidelines. Several 

commenters supported adoption of 

mandatory regulations, while other 

commenters stated that voluntary 

guidelines are adequate to protect the 

whales. 

Response: Monitoring of vessel 

activity around the whales reveals that 

many vessels violate the current 

voluntary guidelines, the number of 

violations appears to be increasing, and 

one of the most serious violations— 

parking in the path of the whales—was 

committed primarily by commercial 

whale watch operators, with a recent 

increase in parking in the path by 

recreational boaters. Approaching 

within 100 yards (91.4 m) of the whales 

is primarily committed by recreational 

boaters. In the EA, we examined the 

available evidence and concluded that 

mandatory regulations are likely to 

reduce the number of incidents of 

vessels disturbing and potentially 

harming the whales and that this 

reduction would improve the whales’ 

chances for recovery. We expect both 

commercial and recreational whale 

watchers to increase compliance with 

mandatory regulations compared to the 

current voluntary guidelines. 

Commercial whale watchers, in 

particular, will be aware of the new 

regulations and can serve as an example 

of lawful viewing for other boaters. 

Accordingly, we are adopting 

mandatory regulations governing vessel 

activity around the whales. 

Comment 2: Enforce state law and 

maintain current guidelines. Several 

commenters suggested the current state 

law, prohibiting approach within 300 

feet, should be enforced to increase 

compliance and that with the current 

state law and Be Whale Wise guidelines 

in place, no additional Federal 

regulations were necessary. One 

commenter suggested making it 

unlawful to fail to disengage the 

transmission of a vessel when within 

300 feet of a Southern Resident killer 

whale similar to the state law. 

Response: A state law requiring 

vessels to stay 300 feet (100 yards (91.4 

m)) from Southern Resident killer 

whales went into effect in June 2008. 

The Washington Department of Fish and 

Wildlife (WDFW) has enforced this law 

since 2008, issuing several violations 

and many warnings. While NMFS 

agrees that enforcement of state law has 

likely improved conditions for the 

endangered whales, our analysis 

revealed that vessels at 100 yards (91.4 

m) can have harmful effects on whales 

(see Comment 3: Approach regulation). 

This final regulation prohibits 

approaches closer than 200 yards (182.9 

m), providing greater protection than 

the state’s 100-yard (91.4 m) law. 

WDFW supported the 200-yard (182.9 

m) approach rule in its comments on 

NMFS’s proposed regulations. NMFS 

has not included a requirement to 

disengage the transmission of the vessel 

when within a certain distance of the 

whales. The Be Whale Wise guidelines 

include a recommendation to place 

engines in neutral and allow whales to 

pass if your vessel in not in compliance 

with the 100-yard (91.4 m) approach 

guideline. NMFS will continue to work 

with the Be Whale Wise partners to 

discuss maintaining this 

recommendation in the guidelines and 

evaluate the effectiveness of the final 

regulations to determine if any 

modifications are needed. 

Comment 3: Approach regulation. 

Some commenters supported an 

approach limit of 100 yards (91.4 m) 

(current guideline and state law), and 

others suggested that an approach limit 

of 150, 200, 200–400, 1,000 yards 

(137.1, 182.9, 182.9–365.8, 914.4 m) or 

several miles would better protect the 

whales. Commenters noted that an 

approach regulation could limit the 

potential for vessels to disturb or collide 

with whales and for vessel noise to 

mask the whale’s auditory signals, 

interfering with their ability to 

communicate and forage. Several whale 

watch operators raised concerns about 

how viewing from a distance of 200 

yards (182.9 m) would impact their 

businesses. In addition, they provided 

comments that viewing from 200 yards 

(182.9 m) would reduce their ability to 

educate customers and affect the 

example they set for other boaters. 

Response: In the final EA we fully 

analyzed the effects of both a 100- and 

200-yard (182.9 m) approach regulation. 

Based on the best available information 

we concluded that a 100-yard (91.4 m) 

approach regulation is not sufficient to 

protect the whales. Researchers have 

documented behavioral disturbance and 

estimated the considerable potential for 

masking from vessels at 100 yards (91.4 

m) and as far away as 400 yards (365.8 

m). Researchers have modeled the 

potential for vessel noise to mask the 

whales’ auditory signals and concluded 

that at 100 yards (91.4 m) there is likely 

to be up to 100 percent masking, while 

at 400 yards (365.8 m) the masking has 

substantially decreased. Even at 200 

yards (182.9 m) the models show 

auditory masking of 75 to 95 percent. 

We expect the 200-yard (182.9 m) 

approach limit in the final regulation to 

significantly reduce the risk of vessel 

strikes, the degree of behavioral 

disruption, and the amount of noise that 

masks echolocation and 

communication, compared to a 100-yard 

(91.4 m) approach regulation. An 

approach regulation greater than 200 

yards (182.9 m) would reduce vessel 

effects even more, but could diminish 

both the experience of whale watching 

and opportunities to participate in 

whale watching. We recognize that 

whale watching educates the public 

about whales and fosters stewardship. 

While it is difficult to quantify the 

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conservation benefits of public 

education, the Recovery Plan for 

Southern Resident Killer Whales 

identifies education and outreach 

actions as an essential part of the overall 

conservation program for the whales 

(NMFS 2008). We believe that a 200- 

yard (182.9 m) limit strikes an 

appropriate balance between the need to 

reduce vessel interactions with 

Southern Residents and the public 

interest in whale watching and 

observation. 

Many whale watch operators 

expressed concern that their business 

will decrease if they are required to stay 

200 yards (182.9 m) away from whales. 

Several operators conducted informal 

surveys of their customers to support 

their assertion that a 200-yard (182.9 m) 

approach regulation would diminish the 

experience and make customers less 

likely to go on whale watching tours. 

The best available information, 

however, supports our conclusion that a 

200-yard (182.9 m) approach regulation 

is unlikely to affect the numbers of 

people who go on whale watching tours 

or the price they are willing to pay for 

the experience (see Comment 11: 

Economic Analysis). 

First, observational data from thirdparty observers reveals that many 

operators already regularly view whales 

from 200 yards (182.9 m) or greater. In 

2007–2008 a new research program 

collected detailed information on the 

distance of vessels from the whales 

using an integrated range finder, GPS 

and compass. This study measured the 

distance between all vessels and the 

nearest whale and reported that for all 

vessels within 400 yards (365.8 m) of 

the whale (likely engaged in whale 

watching), 74 percent were greater than 

200 yards (182.9 m) from the whales. 

For all vessels within 800 yards (likely 

includes both whale oriented and 

transiting vessels), 88 percent of vessels 

were greater than 200 yards (182.9 m) 

from the whales (Giles and Cendak 

2010). 

In addition, the EA accompanying the 

final rule describes peer-reviewed 

studies of customer attitudes that 

identify the features of the whale 

watching experience that are most 

valuable to customers. Several studies 

focused on killer whales in the Pacific 

Northwest have assessed the value that 

whale watching participants have for 

wildlife viewing and provide data on 

the factors that lead to an enjoyable or 

memorable whale watching trip, and 

how satisfied participants are with 

various aspects of their trip (Dufus and 

Deardon 1993; Andersen 2004; 

Andersen and Miller 2006; Malcolm 

2004). Survey results of whale watch 

participants indicate that proximity to 

the whales is not the most important 

part of the whale watchers’ experience 

and that seeing whales and whale 

behavior was much more important 

(Andersen 2004; Malcolm 2004). In 

addition, Malcolm (2004) found 

participants were most satisfied with 

the respect their vessels gave the 

whales. The number of whales, whale 

behavior, and learning also received 

higher satisfaction than the distance 

from which whales were observed. The 

participants also strongly agreed with 

statements related to protection of the 

whales. Economic research also 

indicates that the general public places 

a high value on the continued existence 

of species such as the Southern 

Residents, such that actions necessary 

for the species’ recovery have broad and 

lasting economic benefits. The 

Endangered Species Act protects species 

that are in danger of or threatened with 

extinction and states that ‘‘these species 

are of esthetic, ecological, educational, 

historical, recreational and scientific 

value to the Nation and its people.’’ 

Independent research also demonstrates 

the value that the public places on 

protection and recovery of endangered 

species including marine mammals 

(Loomis and Larson 1994). 

While many whale watch operators 

referenced informal surveys of their 

customers, these surveys were not 

scientifically designed and there was no 

control in their administration. In 

addition to the evidence described 

above, we received comments from the 

public that support the conclusion that 

a 200-yard (182.9 m) approach 

regulation will not reduce the public 

education value of whale watching. 

These comments highlight the value and 

effectiveness of educational programs 

that take place at great distances from 

the whales, even off the water away 

from whales, such as in classroom 

programs. 

For the reasons described above and 

in contrast to the public comments 

submitted by the commercial whale 

watching industry, we do not anticipate 

a reduction in the willingness of 

customers to participate in commercial 

whale watch trips or the ability of the 

whale watching industry to provide an 

educational and meaningful experience 

for their customers viewing whales at a 

distance of 200 yards (182.9 m). In 

adopting a 200-yard (182.9 m) approach 

regulation, we evaluated all of the 

available information on the potential 

costs to whale watch business. In 

addition, we balanced the competing 

conservation benefits to killer whales of 

reduced vessel interference against 

continued public education through onwater whale watching opportunities. We 

consider the viability of the whale 

watch business to be an integral part of 

public education. We will continue to 

study the impact of both motorized and 

non-motorized vehicle distance limits 

on whale behavior, and the impact of 

the newly established regulations on the 

viability of the whale watch business. 

NMFS will conduct this analysis 

alongside the additional consideration 

of a no-go area discussed in more detail 

below. If subsequent analysis suggests 

either a disproportionate impact on 

segments of the business, or that certain 

kinds of whale watching, such as the 

non-motorized business, has less of an 

effect on whale behavior, we will 

consider modifying or relaxing 

restrictions. We will conduct such 

analysis as the new rulemaking 

requirements are being implemented 

over the next two whale watching 

seasons. 

Comment 4: No-go zone. There were 

a large number of oral and written 

comments from the public, recreational 

fishing community, whale watch 

operators and kayakers in opposition to 

the proposed no-go zone. Some reasons 

expressed for opposition to the no-go 

zone included concerns about setting a 

precedent for closing additional areas to 

fishing, impacts to commercial and 

recreational fishing, elimination of 

kayaking opportunities, and safety 

concerns. A number of comments 

suggested creation of a go-slow zone in 

the place of a proposed no-go zone. We 

also received comments supporting the 

proposed seasonal no-go zone (May– 

September), as well as suggestions to 

create a larger no-go zone along the west 

side of San Juan Island, to include other 

shoreline areas, and to identify the nogo zone based on feeding ‘‘hot spots.’’ 

Additional comments on the 

proposed no-go zone included support 

for more or fewer exceptions. Several 

commenters opposed the proposed 

exception for treaty fishing. Suggestions 

for additional exceptions were for 

recreational and commercial fishing, 

and a corridor near shore in the zone to 

allow for kayakers, and property owners 

using the zone for recreational purposes. 

Both oral and written commenters 

expressed concern that NMFS 

underestimated the economic impacts 

in the assessment of the proposed no-go 

zone. One specific concern was that the 

economic analysis did not adequately 

address impacts to the recreational and 

commercial fishing communities and 

impacts would be greater that what was 

considered in the EA. 

Several commenters suggested 

creating a public process to receive 

additional feedback on the concept of 

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the no-go zone and engage the 

community in developing an 

appropriate protected area. Others 

commented that NMFS should select 

the site based on the best available 

science and should consider use of areas 

by the three separate pods of Southern 

Resident killer whales. 

We received several comments 

specific to the status of the boat launch 

at the San Juan County Park (within the 

proposed no-go zone) as a resource 

supported by grants from the 

Washington Recreation and 

Conservation Office and whether it 

would be ‘‘converted’’ to uses other than 

those for which it was funded if the nogo zone was implemented. 

Response: Public comments on the 

no-go zone raised several suggested 

alternatives that we had not fully 

analyzed in the draft EA. In addition, 

we recognize that to be effective, 

regulations must be understood by the 

public and have a degree of public 

acceptance. Because of the many 

alternatives suggested by the public, and 

because of the degree of public 

opposition, we have decided to gather 

additional information and conduct 

further analysis and public outreach on 

the concept of a no-go zone. Therefore, 

the final rule does not adopt a no-go 

zone. We will pursue this additional 

work expeditiously because the best 

available information indicates there 

would be a significant conservation 

benefit to the whales if they were free 

of all vessel disturbance in their core 

foraging area. 

Comment 5: Park in the path. Some 

commenters supported adoption of a 

regulation that all vessels must keep 

clear of the whales’ path. Others 

commented that a prohibition on 

parking in the path of the whales would 

be difficult to enforce and raised 

questions about situations where whales 

approach vessels. Commenters also 

suggested that a single approach 

distance would be easier for boaters to 

understand compared to a combination 

of a 200 yard approach distance and a 

parking in the path prohibition out to 

400 yards. 

Response: The risks of both vessel 

strikes and acoustic masking are both 

most severe when vessels are directly in 

front of the whales. In addition 

researchers have reported behavioral 

responses from vessels out to 400 yards 

(365.8 m) and beyond and have 

expressed concern about impacts to 

important behaviors, such as prey 

sharing and nursing that occur as the 

whales move forward. The final 

regulations include a prohibition on 

parking in the path because it provides 

the best management tool for reducing 

these risks. Increasing the overall 

approach distance to mitigate for the 

specific impacts that can occur from 

vessels in the whales’ path (i.e., a 300 

or 400 yard (274.3 or 365.8 m) approach 

rule) would increase the viewing 

distance for all whale watchers and 

could impact the experience of whale 

watchers and potentially the whale 

watch businesses (see Comment 3: 

Approach Regulation). NMFS believes 

that a 200 yard approach distance in 

combination with a prohibition on 

parking in the path of the whales within 

400 yards (365.8 m) provides for 

meaningful and economically viable 

whale watching and provides additional 

protection from vessels out in front of 

the whales. We acknowledge that 

enforcement of the prohibition on 

parking in the path of the whales will 

be challenging and recognize that 

whales can be unpredictable and can 

approach vessels unexpectedly. A 

regulation prohibiting parking in the 

path of killer whales will be clear to 

whale watch operators and is consistent 

with the current guidelines. These 

operators would likely know about such 

a regulation and would have some 

experience in judging the travel path of 

the whales and estimating a 400 yard 

(365.8 m) distance. Under certain 

conditions, however, whale movements 

can be unpredictable (i.e., foraging 

whale pod spread out over a large area) 

even for experienced whale watchers. 

The prohibition on parking in the path 

is intended to address specific 

situations observed by monitoring 

groups where operators repeatedly 

position themselves to intercept the 

whales and do not get out of the way, 

rather than unexpected situations where 

whales are moving erratically and 

boaters find themselves in the path 

unexpectedly. 

Comment 6: Speed restriction. There 

were comments in support of codifying 

the current guideline, which suggests a 

speed of less than 7 knots when within 

400 yards (365.8 m) of the nearest 

whale. There was also support for goslow zones in combination with or 

instead of the proposed no-go zone. 

Response: The draft EA concluded 

that risks of vessel strikes and acoustic 

masking would be reduced if vessels 

traveled at a slow speed within 400 

yards (365.8 m) of the whales, 

consistent with the current guidelines. 

We have not included such a provision 

in the final regulation because it would 

be difficult to enforce. We will continue 

to work with partners on the Be Whale 

Wise campaign to promote a speed 

guideline and encourage voluntary 

compliance to reduce impacts from fast 

moving vessels in close proximity to the 

whales. We will also consider go-slow 

zones when we further evaluate a no-go 

zone as described above under 

Comment 4: No-go zone. 

Comment 7: Other suggested 

alternatives. Similar to comments we 

received in response to the ANPR, 

comments on the proposed rule 

included a variety of alternatives to the 

proposed regulations and the 

alternatives analyzed in the EA. The 

suggested alternatives included: Permit 

programs, stand-by zones, time limits 

for whale watching, time off from whale 

watching (days of the week or hours of 

the day), and a prohibition on whale 

watching during unsafe weather 

conditions. Comments suggesting 

variations on the alternatives fully 

analyzed have been addressed in 

Comments 3 through 6. 

Response: Some of the alternatives 

suggested during the public comment 

period on the proposed rule were 

similar to alternatives suggested in 

response to the ANPR and these were 

considered, but not fully analyzed in the 

draft EA. The comments on stand-by 

zones and prohibiting whale watching 

under certain weather conditions were 

two new suggestions which were not 

included in the draft EA. The two new 

alternatives have been included in the 

alternatives considered but not analyzed 

in detail in the final EA. There were 

several reasons why we did not fully 

analyze or further consider a number of 

the alternatives suggested in public 

comments, including difficulties in 

enforcing them, changes to 

infrastructure needed to implement 

them, or a lack of sufficient science to 

support them. Alternatives considered 

but not analyzed in detail in the final 

EA include: (1) Permit or certification 

program. A permit or certification 

program, including stand-by zones, was 

not fully analyzed because it would 

require a large infrastructure to 

administer, monitor and enforce. There 

would also be equity issues in 

determining who is permitted or 

certified and who is not. (2) Moratorium 

on vessel-based whale watching. A 

moratorium on all vessel-based whale 

watching, or protected areas along all 

shorelines, would be challenging to 

enforce and are not supported by 

available scientific information. Both 

commercial and recreational vessels 

engage in a variety of wildlife and 

scenic viewing and other activities on 

the water and it would be difficult to 

determine at what point they were 

engaged in prohibited whale watching. 

(3) Shipping lane or vessel noise 

regulations. Regulatory options, such as 

rerouting shipping lanes or imposing 

noise level standards would have large 

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economic impacts and unnecessarily 

restrict some types of vessels rarely in 

close proximity to the whales. (4) Time 

limits. It would be difficult to determine 

when vessels were engaged in whale 

watching to enforce limits on viewing 

time, such as the 30 minute limit 

suggested in the Be Whale Wise 

guidelines or a time of day restriction on 

whale watching. (5) Aircraft regulations. 

Aircraft regulations are beyond the 

scope of minimizing impacts from 

vessels as identified in the EA. (6) No 

whale watching during poor weather 

conditions. It would be difficult to 

educate recreational boaters regarding 

specific weather conditions and when 

they could or could not watch whales 

and what vessel activities constitute 

‘‘whale watching.’’ There is currently no 

infrastructure to monitor weather 

conditions with respect to whale 

watching and to broadcast the 

information to alert boaters that 

particular weather conditions in a 

certain area trigger a prohibition on 

whale watching. 

Comment 8: Scope and Applicability. 

NMFS received a variety of comments 

on the scope and applicability of the 

regulations including the geographic 

area, the species covered by the 

regulation and the types of vessels 

subject to the regulations. Several 

commenters suggested applying the 

proposed regulations throughout the 

range of the Southern Resident killer 

whales, rather than limiting the scope to 

inland waters of Washington. Other 

comments supported regulations that 

would apply to other species of whales 

and marine mammals in addition to 

killer whales. We received many 

comments on the types of vessels to 

which the regulations should apply. 

Commenters suggested that the 

regulations should only apply to whale 

watching vessels and that the 

regulations should not apply to kayaks. 

Commenters also identified additional 

exceptions for certain vessels and these 

are addressed below under Comment 9: 

Exceptions. 

Response: Establishing regulations in 

coastal waters is an alternative that was 

considered, but not fully analyzed in the 

final EA. Most whale watching occurs in 

inland waters of Washington, with 

whale watching vessels originating from 

nearby ports in the United States and 

Canada. The presence of Southern 

Residents and other killer whales in 

inland waters is predictable and 

reliable, which is the basis for the 

success of the local commercial whale 

watch industry. The presence of the 

whales and proximity of the whale 

watching industry in inland waters of 

Washington concentrates whale watch 

activity in particular areas. Monitoring 

groups report a high number of 

incidents of vessels not following the 

current viewing guidelines in these 

waters, particularly along the west side 

of San Juan Island. There are no 

monitoring groups observing whale 

watching activities with killer whales in 

coastal waters, nor does there appear to 

be extensive whale watching activity in 

coastal waters, as we have limited 

sightings of the whales along the coast, 

and their presence is not reliable 

enough to support an active killer whale 

watching industry. If new information 

in the future indicates that whale 

watching poses a threat to the whales in 

coastal waters, we will consider the 

need for additional protections. 

The final vessel regulation applies to 

all killer whales. It would be difficult 

for boaters, especially recreational 

boaters without expertise and 

experience with killer whales, to 

identify Southern Residents or even to 

identify killer whales to ecotype 

(resident, transient, offshore). Requiring 

boaters to know which killer whales 

they are observing is not feasible. In 

addition, providing protection to all 

killer whales in inland waters of 

Washington is appropriate under the 

MMPA. Including other whale or 

marine mammal species is outside the 

scope of this regulation, which is 

focused on protecting killer whales and, 

in particular, supporting recovery of 

endangered Southern Resident killer 

whales. Wildlife viewing in inland 

waters of Washington targets Southern 

Resident killer whales and while other 

marine mammal species are the subject 

of opportunistic viewing, particularly 

when killer whales are not present, 

vessel impacts have not been identified 

as a major threat for other marine 

mammals in inland waters of 

Washington. While the regulations do 

not apply to other marine species, we 

anticipate that other species may benefit 

as boaters aware of the regulations may 

be more likely to know about their 

potential impacts and keep their 

distance from all wildlife. 

The regulations are designed to 

reduce the impact from vessels 

including the risk of vessel strikes, 

behavioral disturbance, and acoustic 

masking. Available data on vessel 

activities indicates that private and 

commercial whale watch vessels are 

most often in close proximity to the 

whales, and that other vessels such as 

government vessels, commercial and 

tribal fishing boats, cargo ships, tankers, 

tug boats, and ferries represent a small 

proportion (typically 5–7 percent in 

most years) of the vessels that are within 

one-quarter mile of the whales. 

Although not the primary focus of the 

regulations, vessels conducting 

activities other than whale watching 

(i.e., transport, fishing, etc.) can impact 

the whales and are also subject to the 

regulations with some exceptions (i.e., 

shipping lanes, safety). Because these 

vessels do not target the whales and are 

not often in close proximity, NMFS 

expects the impacts from adjusting 

course to avoid getting within 200 yards 

(182.9 m) of the whales or to stay out 

of their path will be minimal. We have 

not included exemptions for 

Washington State Ferries or vessels 

associated with oil spill preparedness or 

training based on the expectation that 

the vessels will rarely have to adjust 

their course to comply with the 

regulations and that the adjustments 

will be relatively easy to achieve, shortterm and minimal. For example, 

Washington State Ferries already adhere 

to the 100-yard (91.4 m) guideline and 

should similarly be able to adhere to a 

200-yard (182.9 m) regulation. 

Several commenters stated that 

kayaks do not disturb whales and 

should be exempt from the regulations. 

While kayaks are small and quiet, they 

have the potential to disturb whales as 

obstacles on the surface. In both 2009 

and 2010, 4 percent of incidents 

observed were committed by kayaks. Of 

the 1,067 incidents in 2010, 41 

incidents (22 commercial and 19 private 

kayakers) specific to kayaks were 

observed including parking in the path 

(20 percent of kayak incidents in 2010). 

Soundwatch has reported that they 

likely underestimate kayak incidents 

because the Soundwatch observation 

vessel remains outside of the current 

voluntary no-go zone where 

considerable kayak activity takes place 

(Dismukes 2010). New information 

collected and analyzed in 2010 provides 

a better assessment of the potential for 

kayak disturbance and the cumulative 

effects of large numbers of kayaks in the 

vicinity of the whales. 

For the summer of 2010, 

Soundwatch’s Kayak Education and 

Leadership Program (KELP), San Juan 

County Parks, and the San Juan Island 

Kayak Association worked together to 

update and refine a Kayaker Code of 

Conduct as part of KELP. In 2010, the 

San Juan County Park implemented a 

required launch permit for boaters using 

the park boat launch. Before boaters 

could obtain a permit, they had to 

attend a required Code of Conduct 

Training conducted by KELP educators. 

Commercial operators were required to 

have all their guides trained by KELP 

educators and have their guests sign 

statements acknowledging that they had 

been trained on the Code of Conduct by 

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their guides. The code of conduct 

includes information about the 

Washington State law prohibiting 

approach within 100 yards (91.4 m) of 

Southern Resident killer whales, the Be 

Whale Wise guidelines, and additional 

guidelines such as staying close together 

(rafting) when whales approach, 

avoiding stopping at headlands to 

remain out of the whales path, stopping 

paddling if whales are within 100 yards 

(91.4 m) (91.4 meters), and suggestions 

for assessing their position and 

remaining outside of the path of the 

whales by moving offshore or inshore. 

In addition to providing the 

guidelines and training for kayakers 

through the KELP education program, 

Soundwatch also monitored kayak 

activity and compliance of kayakers 

with the recommendations in the code 

of conduct to augment the Soundwatch 

vessel monitoring program. From June 

through September 2010, 594 total 

incidents were observed (66 percent 

commercial and 28 percent private) 

when kayakers did not follow all 

guidelines, with 171 incidents when 

kayaks were within 100 yards (91.4 m) 

of the whales. The most common 

incidents were kayaks not rafted, parked 

on headland or within kelp bed, parked 

in the path of whales and stopped 

within 100 yards (91.4 m) of whales 

(Koski 2010b). 

Williams et al. (2010) analyzed 

impacts of kayaks on Northern Resident 

killer whales and reported that kayaks 

can have a significant impact on killer 

whale behavior. Killer whales exhibited 

increased probability of traveling 

behavior, which indicates an avoidance 

tactic, and decreased feeding activities 

when kayaks were present (Williams et 

al. 2010). For additional information on 

the scientific assessment of kayak 

impacts on killer whales see Comment 

10: Scientific basis for regulations. 

Based on the best available information, 

the final regulations will apply to all 

vessels including kayaks to reduce 

impacts to the whales. 

Comment 9: Exceptions. Commenters 

provided a range of suggestions for 

additional exceptions (i.e., kayaks and 

sail boats, Washington State Ferries, all 

vessels except whale watching) and 

expressed disagreement with some of 

the exceptions in the proposed rule 

(vessels actively engaged in fishing). 

Almost all of these comments were 

specific to the proposed no-go zone. An 

exception for kayaks to all regulations is 

discussed under Comment 8: Scope and 

Applicability. Several commenters 

suggested wording changes regarding 

the exception for ships in the shipping 

lanes and their support vessels, and the 

exception for vessels actively engaged in 

fishing activities, and other suggested 

exempting ferries and vessel engaged in 

oil spill preparedness and training. 

Response: Almost all of the 

suggestions for additional exceptions or 

fewer exceptions to the rule were 

specific to the no-go zone. While the nogo zone is not part of this final rule, 

NMFS will consider the information on 

exceptions and other aspects of a no-go 

zone (see Comment 4: No-go zone) and 

respond at a later date. NMFS has made 

changes to the description of the 

exception for vessels in the established 

shipping lanes, known as the Traffic 

Separation Scheme, to clarify when and 

how it applies to certain vessels. NMFS 

has also amended the language 

regarding exceptions for vessels actively 

engaged in fishing to include transfer of 

catch, however, vessels transiting to or 

from or scouting fishing areas are not 

exempt from the regulations. We expect 

impacts to these activities associated 

with fishing to occur in close proximity 

to whales only rarely and expect any 

impacts from changing course to 

maintain 200 yards (182.9 m) or to stay 

out of the whales’ path to be minimal 

(IEC 2010). 

Ferries and vessels associated with oil 

spill preparedness and training do not 

target the whales and are not often in 

close proximity, therefore, NMFS 

expects the impacts from adjusting 

course to avoid getting within 200 yards 

(182.9 m) of the whales and to stay out 

of their path on rare occasions will be 

minimal. We have not included 

exemptions for Washington State Ferries 

or vessels associated with oil spill 

preparedness or training based on the 

expectation that these vessels will rarely 

have to adjust their course to comply 

with the regulations and that the 

adjustments will be relatively easy to 

achieve, minimal and short-term. For 

example, Washington State Ferries 

already adhere to the 100-yard (91.4 m) 

guideline and should similarly be able 

to adhere to a 200-yard (182.9 m) 

regulation. Support vessels associated 

with booming activities required for fuel 

transfer or emergency pollution 

response would be exempt from the 

regulations based on the exemption for 

safe operation; we amended the safety 

exception to include these vessels. 

Comment 10: Scientific basis for 

regulations. Commenters raised 

questions about the scientific 

information used to support the vessel 

regulations. Scientific information on 

the vessel impacts to whales was called 

biased, inconclusive, questionable, or 

wrong. Commenters placed a higher 

value on their personal observations 

than on the results from published 

studies and asserted that they have not 

seen the whales changing their behavior 

in response to vessels. Commenters 

raised concerns that scientists 

conducting scientific studies on killer 

whale were biased against the whale 

watch industry. Some commenters 

highlighted that results were not 

conclusive and challenged the 

interpretation of specific research 

results, questioning that increased 

energy expenditure form avoiding 

vessels or engaging in high energy 

surface active behaviors, like breaching 

and tail slapping, would result in a 

negative impact on the whales. Other 

commenters questioned the use of 

models to estimate the potential impact 

of vessel sound on the whales’ ability to 

use echolocation to find prey in their 

habitat. Several commenters questioned 

the science used to demonstrate the 

potential for kayaks to impact killer 

whales primarily because it referred to 

studies on species other than killer 

whales in other geographic locations. 

Response: NMFS relied on the best 

available data to develop the proposed 

and final regulations. The majority of 

the information came from peer 

reviewed scientific publications. To a 

lesser extent, unpublished data, 

personal accounts and other anecdotal 

information also informed development 

of the regulations. We gave greater 

weight to sound peer reviewed studies 

published in scientific journals than to 

personal observation and interpretation. 

These scientific studies use established 

scientific methods, test hypotheses, 

employ statistical analysis, and have 

been peer reviewed and published in 

scientific journals. These steps in the 

scientific process reduce the potential 

for bias in results. We reviewed all of 

the best available information from 

multiple independent scientists which 

also limits the concerns about potential 

bias related to one individual 

researcher. 

Several independent scientists have 

reported behavioral changes in whale 

swimming patterns, changes in 

respiratory patterns, reduced time spent 

foraging/feeding, and increased surface 

active behaviors in the presence of 

vessels. These studies provide multiple 

lines of evidence regarding the nature 

and degree of vessel impacts on the 

behavior of killer whales. The data from 

these studies have been rigorously 

analyzed and the results are statistically 

significant. Some of the reported 

behavioral changes may not be obvious 

to casual observers. 

We acknowledge that there is some 

uncertainty involved in interpretation of 

the results in the peer reviewed 

published papers. While we evaluated 

the quality, applicability and 

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uncertainty in the scientific 

information, we also relied on a 

conservative approach in weighing the 

severity and likelihood of impacts from 

vessels in light of the whales’ status as 

an endangered species. The Noren et al. 

(2009) study reported increased 

energetically expensive surface active 

behaviors in the presence of vessels, and 

we considered the uncertainty regarding 

the conclusions. For example, the 

function of surface active behaviors is 

not known for certain. Noren et al. 

(2009) suggest these behaviors may 

serve a role in communication to 

promote group coordination, while 

several commenters speculated that it 

was play or that the whales enjoyed 

showing off for whale watch boats. 

Noren et al. (2009) also acknowledged 

uncertainty based on the limits of the 

study to provide details on all of the 

variables that determine whether vessel 

presence elicits a response in the 

whales. Even with the uncertainty about 

the function of the behaviors and some 

of the conclusions, we did consider the 

increased energy expenditure as an 

important result. We were conservative 

in assuming that increased energy 

expenditure likely has a negative impact 

on the whales, particularly in light of 

the concerns regarding reduced prey for 

the whales and other studies that found 

short-term behavioral responses can 

have long-term consequences for 

individuals and populations (Lusseau 

and Bejder 2007). 

With field studies of wild animals 

there will always be some uncertainties 

because it is not possible to control for 

all of the variables. In addition, there are 

some hypotheses that cannot be tested 

with wild animals in the field. We 

routinely use models with inherent 

assumptions to help fill these data gaps 

and inform our decisions. For example, 

there is no direct data to measure a 

reduction in the efficiency of 

echolocation in the presence of vessel 

sound. Instead, we relied on a model 

created to estimate the vessel sound 

under varying conditions and calculate 

a reduction in echolocation efficiency. 

This model is based on data collected 

on the whales’ hearing capabilities, 

sound recordings of vessels, sound 

propagation models, and some 

assumptions about the whales’ ability to 

detect a salmon in the water column. 

We believe these assumptions are 

justified by the available information. 

In the case of assessing the impact of 

kayaks on killer whales, we relied on 

studies done on similar species in other 

locations and research results that 

indicated trends, but were not 

conclusive. Several commenters 

questioned our reliance on studies of 

the effects of kayaks on dolphins to 

support a conclusion that kayaks have 

the potential to disturb killer whales. 

Although we believe the dolphin 

studies give insight into effects on killer 

whales (the largest member of the 

dolphin family), in response to these 

comments, we secured additional 

analysis of available data on Northern 

Resident killer whales. Williams et al. 

(2010) assessed the effects of kayak 

presence on Northern Resident killer 

whales and reported that kayaks can 

have a significant impact on killer 

whale behavior. In previous studies, 

Williams et al. (2006) reported changes 

to killer whale behavior from boat 

presence, pooling kayaks and motorized 

vessels together. In their recent study, 

the presence of both types of vessels 

was analyzed separately for data from 

1995–2004. In the presence of only 

kayaks, the probability that the whales 

will shift to travel behavior from other 

behavior states (including feeding) 

significantly increased compared to 

situations with no vessels present, 

which indicates an avoidance tactic. As 

a result, the whales spent significantly 

more time traveling when in the 

presence of kayaks than they did under 

no-boat conditions (11 percent increase 

in time spent traveling). Consistent with 

previous studies, killer whales 

significantly reduced overall time spent 

feeding in the presence of kayaks and 

powerboats compared to no-boat 

conditions (30 percent decrease in time 

spent feeding). With respect to both 

kayaks and motorized vessels, the 

duration of feeding decreased and the 

overall proportion of time spent feeding 

decreased when vessels were present, 

regardless of the type of vessel. One 

model suggested that the effect of 

kayaks on feeding activity was perhaps 

less pronounced than the effect of 

powerboats on feeding activity. The 

types of effects vessels have on foraging 

activities seem to be similar whether the 

boats involved are kayaks or other types 

of vessels, but the whales may use 

different avoidance tactics to deal with 

the two types of vessels (Williams et al. 

2010). 

Comment 11: Economic analysis. 

Comments from individuals, 

commercial whale watch and other 

industry associations focused on the 

economic analysis and disagreed with 

some conclusions in the EA. 

Commenters believed that NMFS did 

not adequately evaluate potential 

economic impacts from new vessel 

regulations to whale watching 

businesses, kayak companies, 

recreational and commercial fishing 

communities, and the local economy in 

the San Juan Islands. In addition, 

several people providing oral comments 

were concerned that the economic 

analysis was conducted by a contractor 

outside of the Puget Sound area. Other 

commenters suggested that the proposed 

regulations would have a positive 

economic impact by protecting the 

whales, which draw large numbers of 

people to the area. 

Response: In comments on the ANPR 

and on the proposed rule, whale watch 

operators expressed concerns regarding 

the economic impacts to their business 

from reduced participation in 

commercial whale watch trips 

conducted at 200 yards (182.9 m) from 

the whales. In the Pacific Whale Watch 

Association comments on the proposed 

rule, they suggested that at least one 

company would go out of business and 

estimated a 30 percent reduction in the 

number of companies participating in 

the industry over three years and a drop 

in revenue for the remaining 70 percent. 

No commenters provided data to 

support this assertion. The comments 

summarized information from informal 

surveys of customers indicating that 

they would not book a trip if they would 

be watching from 200 yards (182.9 m). 

The whale watch association also 

asserted that one of their most 

frequently asked questions is ‘‘How 

close can we get?’’ and 5 percent of 

bookings are lost when they answer 

‘‘100 yards (91.4 m).’’ In the comments, 

the whale watch association 

acknowledged that their informal 

communications with customers were 

admittedly not ‘‘scientifically accurate 

surveys’’. The information from the 

informal customer surveys also 

contradicts information from published, 

peer reviewed, scientifically conducted 

surveys about the important features of 

trips for customers. Our analysis of the 

likely impacts to the whale watch 

industry relied on the published, peer 

reviewed, and scientifically conducted 

surveys using accepted statistical 

methods rather than the anecdotal 

information provided by the industry. 

As part of implementation of new 

regulations, NMFS will monitor to 

evaluate effectiveness of the regulations, 

as well as identify any unanticipated 

impacts in order to inform adaptive 

changes to the regulation. 

To analyze economic impacts of 

alternative regulations, NMFS 

contracted with Industrial Economics, 

Incorporated (IEC), which has its 

headquarters in Massachusetts. IEC also 

has employees located in the Pacific 

Northwest. IEC has extensive expertise 

conducting economic analyses regarding 

actions taking place in Washington State 

waters, including Puget Sound. IEC has 

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gathered data and worked on multiple 

projects in the area, including salmon 

and killer whale critical habitat 

designations. In response to concerns 

raised in public comments about IEC’s 

lack of local knowledge, IEC identified 

local economics experts from the 

University of Washington to review the 

draft economics analysis, help identify 

additional data, and contribute to the 

final economic analysis. The local 

economics experts reviewed the data 

sources, analysis methods, and 

assumptions about the study area. They 

supported the data and methods used. 

The local experts provided suggestions 

for clarifications of some assumptions, 

more detailed descriptions of data 

sources and methods, and inclusion of 

additional information on the positive 

impacts of protecting the whales (i.e., 

existence values.) They did not identify 

any additional data sources to inform 

the analysis. IEC incorporated the 

results of this additional local review 

into the final economic analysis. 

The economic analysis considers the 

potential that the Southern Resident 

killer whales could go extinct without 

regulatory protection and, therefore, 

reduce the value of the whale watching 

industry and contributions to the local 

economy. The economic analysis also 

indicates that the continued existence of 

rare species, including marine 

mammals, has a broad-based economic 

benefit separate from the viability of the 

whale-watching industry. The 

Endangered Species Act protects species 

that are in danger of or threatened with 

extinction and states that ‘‘these species 

are of esthetic, ecological, educational, 

historical, recreational and scientific 

value to the Nation and its people.’’ 

Independent research also demonstrates 

the value that the public places on 

protection and recovery of endangered 

species including marine mammals 

(Loomis and Larson 1994). 

Comment 12: Legal issues. Several 

comments included concerns regarding 

the legality of NMFS regulating vessel 

traffic in the transboundary area of Haro 

Strait with respect to the Treaty of 1846 

between the United States and the 

United Kingdom [Canada] regarding 

maritime boundaries and rights of 

navigation. There were also comments 

suggesting that all whale watching 

activity is illegal because it involves 

‘‘pursuit,’’ which is prohibited under the 

Endangered Species Act. Some 

comments also questioned our 

compliance with Executive Order 12866 

and the Regulatory Flexibility Act. 

Response: Neither the proposed nor 

the final regulations violate the 1846 

Treaty. NMFS has the authority to 

establish vessel regulations (including 

the proposed no-go zone) to protect 

killer whales from vessels in United 

States waters and related activities 

under various domestic laws including 

the Endangered Species Act (ESA) and 

the Marine Mammal Protection Act 

(MMPA). Both the proposed and the 

final vessel regulations are reasonable 

and consistent with a coastal nation’s 

ability to regulate the navigation of 

vessels in its territorial seas and internal 

waters under international law. 

The ESA prohibits the ‘‘take’’ of 

endangered species, which it defines to 

mean ‘‘harass, harm, pursue, hunt, 

shoot, wound, kill, trap, capture or 

collect, or to attempt to engage in any 

such conduct.’’ The statute does not 

define the term ‘‘pursue’’ nor have we 

adopted regulations defining pursuit. 

Under both the ESA and MMPA, there 

are no exceptions to the take prohibition 

for whale watching; therefore wildlife 

viewing must be conducted in a manner 

that does not cause take. To promote 

responsible and sustainable marine 

animal viewing that avoids take, NMFS 

has worked with a variety of whale 

watch industries in multiple regions to 

develop numerous education programs, 

viewing guidelines and regulations. The 

agency believes that whale watching 

enhances marine mammal conservation 

by increasing education and fostering 

stewardship. The Recovery Plan for 

Southern Resident killer whales 

describes the educational benefits of 

whale watching and identifies actions 

such as supporting naturalist trainings 

(NMFS 2008). This is also the case for 

other species. The Recovery Plan for 

North Atlantic Right Whales includes a 

section on whale watching and includes 

actions regarding educating vessel 

operators about regulations and 

guidelines as well as training whale 

watch naturalists and including 

conservation messages to whale 

watchers (NMFS 2005). For this reason, 

we have not sought to curtail 

responsible viewing by applying an 

expansive interpretation to the 

prohibition on ‘‘pursuit.’’ For additional 

information on NMFS’ nationwide 

efforts to promote responsible wildlife 

viewing, please visit http:// 

www.nmfs.noaa.gov/pr/education/ 

viewing.htm. 

We conducted a Regulatory Impact 

Review/Regulatory Impact Assessment 

(RIR/RIA) in accordance with Executive 

Order 12866 and the Regulatory 

Flexibility Act. We incorporate this 

assessment and the Final Regulatory 

Flexibility Analysis into the final EA as 

Chapter 6. The RIR/RIA summarizes the 

costs and benefits of alternative 

regulations, including the No-action 

Alternative of not promulgating 

regulations. The final EA, including 

RIR/RIA analysis, and separate 

economic analysis (IEC 2010) contain all 

the elements required of a RIR/RIA. The 

RIR/RIA also serves as a basis for our 

determination on whether the proposed 

action is a ‘‘significant regulatory action’’ 

under the criteria provided in Executive 

Order 12866. 

Comment 13: NMFS should address 

other threats. Many oral and public 

comments cited the threats of pollution 

and contamination and insufficient 

salmon prey for the whales. A small 

number of comments raised concerns 

about use of Navy sonar. Some 

commenters suggested we should focus 

on these threats rather than vessel 

regulations, while other commenters 

supported the regulations and 

encouraged NMFS to also address the 

other threats. 

Response: Promulgation of vessel 

regulations to protect Southern Resident 

killer whales is just one part of a 

comprehensive recovery program to 

address all of the major threats to the 

whales. The Recovery Plan for Southern 

Resident Killer Whales includes actions 

to address each of the threats and there 

are many ongoing efforts in the region 

to restore depleted salmon populations, 

clean up the Puget Sound ecosystem, 

develop a response plan for oil spills, 

use existing MMPA and ESA 

mechanisms to address sounds like 

Navy sonar, conduct education and 

outreach activities, and implement other 

actions in the plan (NMFS 2008). For 

more information on implementation of 

the recovery plan, please visit http:// 

www.nwr.noaa.gov/Marine-Mammals/ 

Whales-Dolphins-Porpoise/KillerWhales/Recovery-Implement/index.cfm. 

For specific information on salmon 

recovery, please visit http:// 

www.salmonrecovery.gov and for more 

information on efforts to address 

pollution and contaminants, please visit 

http://www.psp.wa.gov/. To the extent 

that actions authorized, funded, or 

carried out by a Federal agency may 

affect species listed under the ESA, the 

agency is required to consult with 

NMFS pursuant to ESA section 7, 16 

U.S.C. 1536, and its implementing 

regulations. 

Comment 14: Education about 

regulations. A number of commenters 

suggested that for new regulations to be 

effective it was essential to have a strong 

educational component. 

Response: We agree that educating the 

public and industry is essential to 

promote compliance with any new 

regulations and achieve a reduction in 

vessel impacts to the whales. We 

recognize that adopting regulations that 

are different from the current voluntary 

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guidelines and State law may present 

some challenges. The new regulations, 

however, are largely extensions or 

expansions of the existing guidelines 

and Washington law. Additionally, the 

current infrastructure includes 

enforcement, monitoring, and 

stewardship groups, who will be 

available to assist with an education 

campaign to inform boaters about the 

new regulations and the scientific 

information on which they are based. 

We have developed an implementation 

plan for the new regulations that 

includes an active education program 

with our many partners including 

WDFW, the U.S. Coast Guard, 

Soundwatch, Straitwatch, and the 

Department of Fisheries and Oceans 

Canada. As part of an education 

program we will continue to work with 

partners on guidelines for safe operating 

procedures in the vicinity of whales. 

Comment 15: Enforcement. Many 

commenters stressed the importance of 

enforcement for any new regulations to 

be effective. While some comments 

suggested that enforcing current 

guidelines and the state law would be 

sufficient to protect the whales, others 

supported the proposed regulations if 

there were sufficient resources to 

enforce new regulations. 

Response: We agree that enforcement 

is essential to promote compliance with 

any new regulations and achieve a 

reduction in vessel impacts to the 

whales. Vessel operators are more likely 

to adhere to mandatory specific 

regulations than to the current voluntary 

guidelines. This likelihood for any 

particular rule would be affected by the 

clarity of the rules, motivations to 

comply, and the level of monitoring and 

enforcement. It is reasonable to assume 

that commercial operators would know 

about mandatory regulations, for the 

same reasons that they are familiar with 

the current specific voluntary 

guidelines, and would have strong 

incentives to comply to protect their 

business reputation. Recreational 

boaters are also more likely to comply 

with mandatory regulations, although 

they may be less likely to know the 

details of mandatory regulations than 

are commercial operators. Regulations 

with specific distances to the whales 

provide new tools for enforcement, so 

that cases are more straightforward and 

based on an objective criteria, like 

distance, rather than demonstrating 

changes in the behavior of the whales 

with respect to a specific action. 

Distance regulations are in place for 

other marine mammals and the NOAA 

Office for Law Enforcement has 

experience enforcing this type of 

regulations. In general, promulgation of 

specific mandatory regulations is likely 

to increase enforcement capability and 

compliance, which will result in fewer 

incidents between vessels and whales 

than occurs under the current regime. 

We have developed an implementation 

plan for the new regulations that 

includes an active education program 

with our many partners including 

WDFW, the U.S. Coast Guard, 

Soundwatch, Straitwatch, and the 

Department of Fisheries and Oceans 

Canada. See above Comment 1: 

Mandatory regulations versus voluntary 

guidelines and Comment 2: Enforce 

state law and maintain current 

guidelines, for additional information 

describing the current guidelines and 

regulations and our determination 

regarding the need for these new 

Federal regulations to protect the 

whales. 

Comment 16: Monitoring 

effectiveness of regulations. Several 

commenters who supported the vessel 

regulations suggested that monitoring 

the effectiveness of regulations would 

be an important step to assess 

compliance and the benefit to the 

whales and identify and needed changes 

in the future. Several commenters 

expressed concern about the 

regulations, but were more supportive if 

there was a periodic review in place to 

evaluate the regulations. 

Response: We agree that monitoring 

effectiveness of the regulations is an 

important part of an adaptive 

management process to ensure the 

regulations are effective in protecting 

the whales and to identify any 

unforeseen impacts to local 

communities. The success of a 

regulatory program to address vessel 

impacts is vital to recovery of the 

Southern Resident killer whales. 

Therefore, we will monitor the 

effectiveness of the final regulations and 

consider altering the measures or 

implementing additional measures if 

appropriate. We will continue to collect 

data on vessel activities in the vicinity 

of the whales to assess the anticipated 

increase in compliance with mandatory 

regulations and reduction in impacts to 

the whales. As described above (see 

Comment 3: Approach regulation, 

Comment 4: No-go zone, and Comment 

11: Economic analysis) we will also 

continue to gather information and 

further consider the proposed no-go 

zone as an additional measure to protect 

the whales. 

Comment 17: Consistent regulations 

in the United States and Canada. 

Several commenters supported 

consistent regulations in both United 

States and Canadian waters to assist 

with educating boaters and provide 

adequate protection for the whales. 

Response: Southern and Northern 

Resident killer whales are listed as 

endangered and threatened, 

respectively, under the Species at Risk 

Act in Canada. We have coordinated for 

several years with the Canadian 

Department of Fisheries and Oceans to 

develop consistent guidelines for 

boaters operating in the waters of both 

countries. We will continue 

coordinating on guidelines and provide 

support for any efforts in Canada to also 

consider 200-yard (182.9 m) approach 

guidelines or regulations to maintain 

consistency and provide a benefit to the 

whales. Even without similar 

regulations in Canada, this rulemaking 

will provide substantial benefits to the 

Southern Residents because the whales 

spend considerable time in United 

States waters. 

Comment 18: Technical changes. 

Several commenters including the U.S. 

Coast Guard suggested technical 

wording changes to ensure accuracy 

with other regulations or improve 

clarity of the rule. 

Response: NMFS agreed with a 

number of the suggestions for small 

technical changes and made appropriate 

changes to the final rule and EA to 

ensure accuracy and improve clarity. In 

some cases we eliminated wording to 

simplify the regulations, such as 

removing the second sentence 

describing the 200-yard (182.9 m) 

approach prohibition. 

Final Rule 

Current efforts to reduce vessel 

impacts have not been sufficient to 

address vessel interactions that have the 

potential to harass and/or disturb killer 

whales by causing injury or disruption 

of normal behavior patterns (See Need 

for New Regulations). These regulatory 

measures are designed to protect killer 

whales from vessel impacts and will 

support recovery of Southern Resident 

killer whales. We are issuing these 

regulations pursuant to our rulemaking 

authority under MMPA section 112(a) 

(16 U.S.C. 1382(a)), and ESA 11(f) (16 

U.S.C. 1540(f)). These final regulations 

also are consistent with the purpose of 

the ESA ‘‘to provide a program for the 

conservation of [* * *] endangered 

species’’ and ‘‘the policy of Congress that 

all Federal departments and agencies 

shall seek to conserve endangered 

species [* * *] and shall utilize their 

authorities in furtherance of the 

purposes of [the ESA].’’ 16 U.S.C. 

1531(b), (c). 

As part of the rulemaking process, we 

first published an ANPR and then a 

proposed rule that included proposed 

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regulations with three elements that 

would prohibit motorized, nonmotorized, and self-propelled vessels in 

inland waters of Washington from: 

(1) Causing a vessel to approach within 

200 yards (182.9 m) of any killer whale; 

(2) entering a restricted zone along the 

west coast of San Juan Island during a 

specified season, and (3) intercepting 

the path of any killer whale in inland 

waters of Washington. Based on public 

comments we are issuing final 

regulations with only two of the 

elements that were in the proposed rule. 

Public comments on the no-go zone 

raised several suggested alternatives that 

we had not fully analyzed in the draft 

EA. In addition, we recognize that to be 

effective, regulations must be 

understood by the public and have a 

degree of public acceptance. Because of 

the many alternatives suggested by the 

public, and because of the degree of 

public opposition, we have decided to 

gather additional information and 

conduct further analysis and public 

outreach on the concept of a no-go zone. 

Therefore, the final rule does not adopt 

a no-go zone. We will pursue this 

additional work expeditiously because 

the best available information indicates 

there would be a significant 

conservation benefit to the whales if 

they were free of all vessel disturbance 

in their core foraging area. 

The following sections pertain to the 

final regulations prohibiting motorized, 

non-motorized, and self-propelled 

vessels in inland waters of Washington 

from: (1) Causing a vessel to approach, 

in any manner, within 200 yards (182.9 

m) of any killer whale, and (2) 

intercepting the path of any killer whale 

in inland waters of Washington. Below 

we describe the scope and applicability, 

requirements and rationale for the final 

regulations. 

Scope and Applicability 

Application to All Killer Whales: 

Under the MMPA and ESA the final 

regulations will apply to all killer 

whales. Although killer whales are 

individually identifiable through photoidentification, individual identification 

requires scientific expertise and 

resources (i.e., use of a catalog) and 

cannot always be done immediately at 

the time of the sighting. It would be 

difficult for boaters, especially 

recreational boaters without expertise 

and experience with killer whales, to 

identify the individuals in the ESAlisted Southern Resident DPS or even to 

identify killer whales to ecotype 

(resident, transient, offshore). Requiring 

boaters to know which killer whales 

they are observing is not feasible. 

Section 11(f) of the ESA provides NMFS 

with broad rulemaking authority to 

enforce the provisions of the ESA. In 

addition, section 112(a) of the MMPA 

provides NMFS with broad authority to 

prescribe regulations that are necessary 

to carry out the purposes of the statute. 

Providing protection for all killer 

whales is a practical consideration 

because boaters cannot tell different 

types of killer whales apart and will also 

reduce the risk of disturbance or injury 

for all types of killer whales which is 

consistent with the purpose of the 

MMPA. 

Geographic Area: Regulations will 

apply to vessels in inland waters of 

Washington under U. S. jurisdiction. 

Inland waters include a core summer 

area for the whales around the San Juan 

Islands, as well as a fall foraging area in 

Puget Sound and transit corridor along 

the Strait of Juan de Fuca. These three 

areas make up over 2,500 square miles 

and were designated as critical habitat 

for Southern Resident killer whales (71 

FR 69054; November 29, 2006). These 

regulations will apply to an area similar 

to designated critical habitat, including 

inland waters of the United States east 

of a line connecting Cape Flattery, 

Washington (48°23′10′′ N./124°43′32′′ 

W.), Tatoosh Island, Washington 

(48°23′30′′ N./124°44′12′′ W.), and 

Bonilla Point, British Columbia 

(48°35′30′′ N./124°43′00′′ W.) and south 

of the U.S./Canada international 

boundary. The shoreline boundary is 

the charted mean high water line cutting 

across the mouths of all rivers and 

streams. 

Vessels Subject to Final Rule: The 

regulations apply to all motorized and 

non-motorized vessels in the inland 

waters of the United States described 

above. All vessels in U.S. waters, 

including foreign flag vessels, and 

persons not citizens of the United States 

are subject to the jurisdiction of the 

United States to the extent consistent 

with recognized principles of 

international law, including treaties and 

international agreements to which the 

United States is signatory. Commercial 

and recreational whale watch vessels 

include both motorized and nonmotorized vessels (i.e., kayaks and sail 

boats), both of which can cause 

disturbances to whales. While kayaks 

are small and quiet, they have the 

potential to disturb whales as obstacles 

on the surface. Kayaks may startle 

marine mammals by approaching them 

without being heard (Mathews 2000). 

Data indicate that substantial numbers 

of kayakers failed to follow existing 

voluntary guidelines, and in a study of 

sea lions, Mathews (2000) found that 

kayakers were significantly more likely 

to approach wildlife closely. Kayakers 

may approach wildlife more closely 

because they may be more apt to 

overestimate distance because of their 

low aspect on the water, and to assume 

they are less likely to disturb wildlife 

than other vessels (Mathews 2000). In 

studies comparing effects of motorized 

and non-motorized vessels on dolphins, 

the type of vessel did not matter as 

much as the manner in which the boat 

moved with respect to the dolphins 

(Lusseau 2003b). Some dolphins’ 

responses to vessels were specific to 

kayaks or were greater for kayaks than 

for motorized vessels (Lusseau 2006, 

Gregory and Rowden 2001, Duran and 

Valiente 2008). Several studies that have 

documented changes in behavior of 

dolphins and killer whales in the 

presence of vessels include both 

motorized and non-motorized vessels in 

their analysis (Lusseau 2003b, Nichols 

et al. 2001, Trites et al. 2007, Noren et 

al. 2007, 2009). 

In response to public comments 

regarding our reliance on studies of 

kayak impacts involving other species, 

NMFS secured additional analysis of 

available data on Northern Resident 

killer whales and behavioral responses 

to kayaks. Williams et al. (2010) 

analyzed the effects of kayak presence 

on Northern Resident killer whales and 

reported that kayaks can have a 

significant impact on killer whale 

behavior. In previous studies, Williams 

et al. (2006) reported changes to killer 

whale behavior from boat presence, 

pooling kayaks and motorized vessels 

together. In their recent study, the 

presence of both types of vessels was 

analyzed separately for data from 1995– 

2004. In the presence of only kayaks, the 

probability that the whales will shift to 

travel behavior from other behavior 

states (including feeding) significantly 

increased compared to no-boat 

conditions, which indicates an 

avoidance tactic. As a result, the whales 

spent significantly more time traveling 

when in the presence of kayaks than 

they did under no-boat conditions (11 

percent increase in time spent 

traveling). Consistent with previous 

studies, killer whales significantly 

reduced overall time spent feeding in 

the presence of kayaks and powerboats 

compared to no-boat conditions (30 

percent decrease in time spent feeding). 

With respect to both kayaks and 

motorized vessels, the duration of 

feeding decreased and the overall 

proportion of time spent feeding 

decreased when vessels were present, 

regardless of the type of vessel. One 

model suggested that the effect of 

kayaks on feeding activity was perhaps 

less pronounced than the effect of 

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powerboats on feeding activity. The 

types of effects vessels have on foraging 

activities seem to be similar whether the 

boats involved are kayaks or other types 

of vessels, but the whales may use 

different avoidance tactics to deal with 

the two types of vessels (Williams et al. 

2010). 

While the specific information on 

impacts to killer whales from kayaks is 

preliminary at this time, we have taken 

a conservative approach in assessing 

this information in light of the 

endangered status of the Southern 

Residents. We have considered the 

information with respect to cumulative 

impacts as well as the other threats to 

killer whale survival and recovery. Even 

if the effects are small for individual 

kayakers, there are large numbers of 

kayakers targeting the whales and the 

cumulative impacts of both kayaks and 

other types of vessels are significant. In 

June to September 2010, Soundwatch 

monitored zones out to 1⁄2 mile from 

shore and observed over 2,100 kayaks in 

the monitoring zones with the whales 

and up to 41 kayaks with the whales at 

one time. Soundwatch observed 594 

incidents of kayakers not following 

recommended guidelines. The 

cumulative impact of kayaks and all 

vessels and their effect on feeding 

behavior is particularly important 

because we are concerned about the 

whales’ ability to get sufficient prey to 

maintain their health. Based on all of 

the information available and a 

conservative approach to protect 

endangered Southern Residents, NMFS’ 

final regulations protect killer whales 

from both motorized and non-motorized 

vessels. 

Exceptions: Five specific categories of 

vessels will be exempt from the vessel 

regulations: (1) Government vessels, (2) 

cargo vessels transiting in the shipping 

lanes, (3) research vessels, (4) fishing 

vessels actively engaged in fishing, and 

(5) vessels limited in their ability to 

maneuver safely. These exceptions are 

based on the likelihood of certain 

categories of vessels having impacts on 

the whales and the potential adverse 

effects involved in regulating certain 

vessels or activities. 

Available data on vessel effects on 

whales from Soundwatch (Koski 2007, 

2008, 2009, 2010a), Bain (2007) and 

Giles and Cendak (2010) indicate that 

commercial and recreational whale 

watch vessels are more likely to affect 

killer whales. This is because operators 

of whale watching vessels are focused 

on the whales, track the whales’ 

movements, spend extended time with 

the whales, and are therefore most often 

in close proximity to the whales. Other 

vessels such as government vessels, 

commercial and tribal fishing boats, 

cargo ships, tankers, tug boats, and 

ferries do not target whales in their 

normal course of business. Soundwatch 

(Koski 2007, 2008, 2009, 2010a) and 

Bain (2007) report that these types of 

vessels combined comprise only 6 

percent or less of vessels within 1⁄2 mile 

of the whales from 2006–2009. In 2010 

there was a higher percent of 

commercial fishing vessels observed 

within 1⁄2 mile of the whales which was 

likely due to increased fishery openings 

coinciding with presence of whales 

(Koski 2010b). In 2007–2008, Giles and 

Cendak (2010) recorded the distance of 

vessels from the whales using an 

integrated GPS, range finder and 

compass and reported only 21 ferries 

and 22 shipping vessels out of 11,710 

vessels observed within 1,000 yards of 

the whales (0.4 percent). In addition, 

these vessels generally move slowly and 

usually in a predictable straight path, 

which reduces the risk of strikes to 

whales. While NMFS recognizes that 

sound from large vessels has the 

potential to affect whales even at great 

distances, the primary concern based on 

available information is the sound from 

small, fast moving vessels moving in 

close proximity to the whales and 

targeting the whales. 

Ferries and vessels associated with oil 

spill preparedness and training do not 

target the whales and are not often in 

close proximity; therefore, NMFS 

expects the impacts from adjusting 

course to avoid getting within 200 yards 

(182.9 m) of the whales and to stay out 

of their path on rare occasions will be 

minimal. We have not included 

exemptions for Washington State 

Ferries, other publicly operated ferries, 

or vessels associated with oil spill 

preparedness or training based on the 

expectation that these vessels will rarely 

have to adjust their course to comply 

with the regulations and that the 

adjustments will be relatively easy to 

achieve, minimal and short-term. For 

example, Washington State Ferries 

already adhere to the 100-yard (91.4 m) 

guideline and should similarly be able 

to adhere to a 200-yard (182.9 m) 

regulation. 

Vessels engaged in scientific research 

do closely approach killer whales to 

obtain photographs, collect a variety of 

samples, and observe behavior. 

Researchers must obtain permission 

from NMFS before they may legally 

closely approach the whales. Before 

permitting research, NMFS evaluates 

the potential effects of these activities 

under both the ESA and MMPA. 

Expertise of researchers, operating 

procedures, and permit terms and 

conditions reduce the potential impacts 

to whales. In issuing permits, NMFS 

weighs the benefit of the research to the 

whales’ survival and recovery against 

the harmful impacts of close 

approaches. 

Regulating some categories of vessels 

could cause adverse impacts. 

Government vessels are often critical to 

safety missions, such as search and 

rescue operations, enforcement, 

pollution response and activities critical 

to national security. The movement of 

large commercial vessels in U.S. and 

Canadian waters in the area are 

managed by the Puget Sound Vessel 

Traffic Service and the Cooperative 

Vessel Traffic Service, which are 

designed to efficiently and safely 

manage vessel transits in the shared 

waters of the U.S. and Canada. U.S. 

regulations require power-driven vessels 

40 meters or greater in length, while 

navigating or towing vessels eight or 

more meters in length, and vessels 

certificated to carry 50 or more 

passengers for hire when engaged in 

trade to participate in the Vessel 

Movement Reporting System (VMRS) 

(Navigation and Navigable Waters, 33 

CFR 161). These ships generally follow 

well-defined navigation lanes 

established by the International 

Maritime Organization (IMO), known as 

Traffic Separation Schemes (TSS) (rules 

for vessel conduct is established by U.S. 

Coast Guard Navigation Rule 10). If 

large ships following traffic lanes or 

making their way to or from the lanes 

were required to make sudden or 

unpredictable movements to avoid close 

approaches to whales, it may impact the 

good order and predictability of 

maritime traffic, as well as adversely 

affect navigation safety, thus increasing 

the risk of collision and groundings. For 

the safety of vessel navigation, large 

ships are sometimes escorted or assisted 

by smaller vessels such as tug boats, 

which sometimes navigate just outside 

the designated lanes. Sudden or 

unpredictable movements by these 

escort vessels, in order to avoid close 

approaches to whales, could also 

increase the risk of collisions and pose 

safety hazards. Support vessels 

associated with booming activities 

required for fuel transfer or emergency 

pollution response would also be 

exempt from the regulations based on 

the exemption for safe operation. 

Commercial fishing vessels, in which 

the fish harvested are intended to enter 

commerce, when actively engaged in 

fishing are exempt from the new 

regulatory requirements. If they were 

required to follow regulations while 

actively engaged in fishing, it could 

compromise gear or catch. Also, treaty 

Indian fishing vessels actively engaged 

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in fishing are exempt from the new 

regulatory requirements. Exempting 

treaty Indian fishing vessels is 

consistent with treaty fishing rights and 

use of Usual and Accustomed fishing 

areas. NMFS is also exempting vessels 

from any regulations if the exemption is 

required for the safe operation of a 

vessel to avoid adverse effects to public 

safety. 

Based on these considerations, NMFS’ 

final regulations include several 

exceptions. The burden would be on the 

vessel operator to prove the exception 

applies, and vessel operators would not 

be exempt from the take prohibitions 

under the MMPA or ESA. Federal 

government vessels would not be 

exempt from consultation requirements 

under Section 7 of the ESA. The 

following exceptions apply to all 

regulations: 

(1) The regulations would not apply 

to Federal Government vessels operating 

in the course of official duty or to state 

and local government vessels engaged in 

official duties involving law 

enforcement, search and rescue, or 

public safety. 

(2) The regulations would not apply 

to vessels participating with a Vessel 

Traffic Service (VTS) and following a 

Traffic Separation Scheme or complying 

with a VTS Measure of Direction. This 

also includes boats escorting vessels in 

the traffic lanes, such as tug boats. 

(3) The regulations would not apply 

to activities, such as scientific research, 

authorized through a permit issued by 

the National Marine Fisheries Service 

under part 222, subpart C, of this 

chapter (General Permit Procedures) or 

through a similar National Marine 

Fisheries Service authorization. 

(4) The regulations would not apply 

to treaty Indian and commercial fishing 

vessels lawfully engaged in actively 

setting, retrieving, or closely tending 

fishing gear or transferring catch. (Note: 

The regulations would apply to all 

fishing vessels, including treaty Indian 

and non-treaty vessels, transiting to or 

from fishing areas.) 

(5) The regulations would not apply 

to vessel operations necessary for safety 

to avoid an imminent and serious threat 

to a person or vessel, including when 

necessary for overall safety of 

navigation, to comply with the 

Navigation Rules, or in direct support of 

environmental protection. 

Requirements 

Approach Restrictions: The final 

regulations prohibit vessels from 

approaching any killer whale in the 

inland waters of Washington closer than 

200 yards (182.9 m). This includes 

approaching, in any manner, including 

by interception (i.e., placing a vessel in 

the path of an oncoming killer whale, so 

that the whale surfaces within 200 yards 

(182.9 m) of the vessel, or positioning a 

vessel so that wind or currents carry the 

vessel to within 200 yards (182.9 m) of 

a whale). 

Prohibition against parking in the 

whales’ path: The final regulations 

require vessels to keep clear of the 

whales’ path within 400 yards (365.8 m) 

of the whales. Parking in the path 

includes interception (positioning a 

vessel so that whales surface within 200 

yards (182.9 m) of the vessel, or so that 

wind or water currents carry the vessel 

into the path of the whales). 

Rationale for Regulations 

The endangered Southern Resident 

killer whales are a small population 

with only 86 whales in the population 

at the end of 2010. The Southern 

Residents underwent an almost 20 

percent decline from 1996 to 2001, and 

while there were several years of 

population increases following 2001, 

there have also been recent years with 

declines. 

Our listing decision and the Recovery 

Plan for Southern Resident killer whales 

identified three major threats to their 

continued existence, all of which likely 

act in concert—prey availability, 

contaminants, and vessel effects and 

sound. While we and others in the 

region are working to restore salmon 

runs and minimize contamination in 

Puget Sound, these efforts will likely 

take many years to provide benefits for 

killer whales. In contrast, the threats 

posed by vessels can be reduced quickly 

by regulating vessel activities. The 

primary objective of promulgating these 

regulations is to manage the threats to 

killer whales from vessels, in support of 

the recovery of Southern Residents. 

Monitoring groups such as 

Soundwatch have reported that the 

mean number of vessels following a 

given group of whales within 1⁄2 mile 

increased from five boats in 1990 to an 

average of about 15–20 boats during 

May through September, for the years 

1998 through 2010 (Osborne et al. 1999; 

Baird 2001; Erbe 2002; Marine Mammal 

Monitoring Project 2002; Koski 2004, 

2006, 2007, 2008, 2009, 2010a, 2010b). 

At any one time, the observed numbers 

of commercial and recreational whale 

watch boats around killer whales can be 

much higher. Monitoring groups have 

collected several years of data on 

incidents when vessels are not adhering 

to the guidelines and the whales may be 

disturbed. From 2006–2010, there were 

between 1,085 (2007) and 2,527 (2009) 

reported incidents per year where 

vessels did not follow the guidelines 

during the time the observers were 

present (Koski 2007, 2008, 2009, 2010a, 

2010b). Since observers were not 

present during all days and all hours, it 

is likely that there were more incidents 

than those reported. In 2009, there were 

2,527 incidents, and the majority were 

committed by private boaters (72 

percent) and Canadian commercial 

operators (8 percent). Of the 1,067 

incidents in 2010, the majority were 

committed by private boaters (64 

percent) and Canadian commercial 

operators (10 percent) (Koski 2010a, 

2010b). The most common incidents 

also reflect this pattern and are most 

often committed by private boaters and 

Canadian commercial whale watch 

vessels. The four most commonly 

observed incidents in 2010, and for the 

last several years, were parking in the 

path, vessels motoring inshore of 

whales, vessels motoring within 100 

yards (91.4 m) of whales, and vessels 

motoring fast within 400 yards (365.8 

m) of the whales (Koski 2008, 2009, 

2010a, 2010b). 

For the summer of 2010, 

Soundwatch’s Kayak Education and 

Leadership Program (KELP), San Juan 

County Parks, and the San Juan Island 

Kayak Association worked together to 

update and refine a Kayaker Code of 

Conduct as part of KELP. In addition to 

providing the guidelines and training 

for kayakers through the KELP 

education program, Soundwatch also 

monitored kayak activity and 

compliance of kayakers with the 

recommendations in the code of 

conduct to augment the Soundwatch 

vessel monitoring program. From June 

through September 2010, 594 incidents 

were observed (66 percent commercial 

and 28 percent private) and the most 

common incidents were kayaks not 

rafted, parked on headland or within 

kelp bed, parked in the path of whales 

and stopped within 100 yards (91.4 m) 

of whales. 

The specific threats from these vessel 

incidents include (1) risk of strikes, 

which can result in injury or mortality, 

(2) behavioral disturbance, which 

increases energy expenditure and 

reduces foraging opportunities, and (3) 

acoustic masking, which interferes with 

echolocation and foraging, as well as 

communication. Southern and Northern 

Resident killer whales have been 

injured or killed by collisions with 

vessels. Some whales have sustained 

injuries from propeller blades and have 

eventually recovered, one was instantly 

killed, and several mortalities of 

stranded animals have been attributed 

to vessel strikes in recent years (Visser 

1999; Ford et al. 2000; Visser and Fertl 

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2000; Baird 2001; Carretta et al. 2001, 

2004, Gaydos and Raverty 2007). 

As described in the background 

section of this final rule and in the EA, 

it is well documented that killer whales 

in the Pacific Northwest respond to 

vessels engaged in whale watching 

(including kayaks) with short-term 

behavioral changes. Examples of shortterm behavioral responses include 

increases in direction changes, 

respiratory intervals, and surface active 

behaviors, all of which can increase 

energy expenditure (Bain et al. 2006; 

Noren et al. 2007, 2009; Williams et al. 

2009). Southern Residents also spend 

less time foraging in the presence of 

vessels (Bain et al. 2006, Lusseau et al. 

2009; Giles and Cendak 2010; Williams 

et al. 2010). Williams et al. (2006) 

estimated that increased energy 

expenditure may be less important than 

the reduced time spent feeding and the 

resulting likely reduction in prey 

consumption in the presence of vessels. 

Vessels in the path of the whales can 

interfere with important social 

behaviors such as prey sharing (Ford 

and Ellis 2006) or with behaviors that 

generally occur in a forward path as the 

whales are moving, such as nursing 

(Kriete 2007). 

Vessel sounds may mask or compete 

with and effectively drown out calls 

made by killer whales, including 

echolocation used to locate prey and 

other signals the whales rely upon for 

communication and navigation. 

Masking of echolocation reduces 

foraging efficiency (Holt 2009), which 

may be particularly problematic if prey 

resources are limited. Vessel noise was 

predicted to significantly reduce the 

range at which echolocating killer 

whales could detect salmon in the water 

column. Holt (2009) reported that the 

detection range for a killer whale 

echolocating on a Chinook salmon 

could be reduced 88 to 100 percent by 

the presence of a moving vessel within 

100 yards (91.4 m) of the whale. 

Masking sound from vessels could affect 

the ability of whales to coordinate their 

feeding activities, including searching 

for prey and prey sharing. Foote et al. 

(2004) attributed increased duration of 

primary communication calls to 

increased vessel traffic and a recent 

study also found similar increased 

durations for a larger number of calls 

(Wieland et al. 2010). Holt et al. (2009) 

found that killer whales increase their 

call amplitude in response to vessel 

noise. 

Energetic costs from increased 

behavioral disturbance and reduced 

foraging can decrease the fitness of 

individuals (Lusseau and Bejder 2007). 

Energy expenditure or disruption of 

foraging could result in poor nutrition. 

Poor nutrition could lead to 

reproductive or immune effects, or, if 

severe enough, to mortality. Interference 

with foraging can affect growth and 

development, which in turn can affect 

the age at which animals reach 

reproductive maturity, fecundity, and 

annual or lifetime reproductive success. 

Interference with essential behaviors, 

including prey sharing and 

communication, could also reduce 

social cohesion and foraging efficiency 

for Southern Resident killer whales, 

and, therefore, the growth, 

reproduction, and fitness of individuals. 

Injuries from vessel strikes could also 

affect the health and fitness of 

individuals. Any injury to or reduction 

in fitness of a single member of the 

Southern Resident killer whale 

population is serious because of the 

small population size. 

To reduce the risk of vessel strikes, 

behavioral disturbance, and acoustic 

masking, and to manage effectively the 

threat from vessels, regulations must 

reduce the current number of harmful 

vessel incidents. Monitoring 

demonstrates that there are numerous 

incidents in which the current 

voluntary guidelines are not observed. 

Researchers in other regions have also 

reported low compliance with voluntary 

guidelines designed to protect other 

endangered whales (Wiley et al. 2008). 

Research suggests that vessel operators 

are more likely to comply with 

mandatory regulations than with 

voluntary guidelines (May 2005). In 

addition, level of compliance is likely to 

depend on how easy the regulations are 

to understand, follow and enforce. We 

therefore expect that clear mandatory 

regulations will reduce the number of 

incidents, compared to the current 

voluntary guidelines. 

After analyzing a range of alternative 

regulations, we concluded that the most 

appropriate measures to protect the 

whales are a combination of an 

approach regulation and a prohibition 

on parking in the path. We recognize 

that adopting regulations that are 

different from the current voluntary 

guidelines and State law may present 

some challenges. The current 

infrastructure, however, includes 

enforcement, monitoring, and 

stewardship groups, who will be 

available to assist with an education 

campaign to inform boaters about the 

new regulations and the scientific 

information on which they are based. 

The combination of two measures as 

part of the regulation package provides 

multiple tools for enforcement that are 

measurable, easy for the public to 

understand, and based on the best 

available science regarding vessel 

impacts. The final EA contains a full 

analysis of a No-action alternative, six 

individual alternatives, the proposed 

regulations combining three elements 

and the final regulation combining two 

elements, described below. 

200-yard (182.9 m) approach 

regulation. A regulation prohibiting 

approaches closer than 200 yards (182.9 

m) will be clear to whale watch 

operators. These operators will likely 

know about such a regulation and be 

able to accurately judge the distance of 

their vessels from whales, as indicated 

by their current high levels of 

compliance with the current 100-yard 

(91.4 m) guideline. Recreational boaters 

would be less likely to know about such 

a regulation, though over time it is 

reasonable to expect that familiarity 

with the regulation would increase, 

particularly with education and 

publicity about any prosecutions. Some 

recreational boaters may also follow the 

example of commercial operators to 

determine the proper viewing distance. 

The 200-yard (182.9 m) approach 

regulation is intended to reduce the risk 

of vessel strikes, the degree of 

behavioral disruption, and the amount 

of noise that masks echolocation and 

communication. Current research 

results have documented behavioral 

disturbance and estimated a 

considerable potential for masking from 

vessels at 100 yards (91.4 m). These 

effects are reduced at 200 yards (182.9 

m) and greater distances. Some effects 

are observed up to 400 yards (365.8 m) 

from the whales. While an approach 

regulation at a distance greater than 200 

yards (182.9 m) would further reduce 

vessel effects, this could diminish both 

the experience of whale watching and 

opportunities to participate in whale 

watching. We recognize that whale 

watching educates the public about 

whales and fosters stewardship. We 

balanced the benefits to killer whales of 

a greater approach distance regulation 

and continued whale watching 

opportunities, and we arrived at the 

200-yard (182.9 m) approach regulation. 

Parking in the path prohibition. As 

described above, parking in the path of 

a whale is a common violation of the 

current guidelines by commercial whale 

watch operators and an increasing 

number of private boaters. It also carries 

one of the greatest risks, since it 

increases the chance of vessel strike. 

This regulation is consistent with the 

current guidelines and therefore already 

understood by commercial whale watch 

operators. A prohibition on parking in 

the path complements the approach 

regulation, which prohibits approaching 

within 200 yards (182.9 m) of the 

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whales, including by interception. The 

path regulation provides the best 

management tool for improving 

compliance and reducing the risk of 

vessel strikes and masking from vessels 

directly in front of the whales. The risk 

of vessel strikes and masking are both 

most severe when vessels are directly in 

front of the whales. By instituting a 

mandatory regulation in place of a 

voluntary guideline, we expect 

increased compliance, particularly by 

the commercial operators who are most 

often in the path of the whales. 

The final regulations for killer whales 

differ from protective regulations 

promulgated to protect other marine 

mammal species in other locations. In 

each case the development of 

regulations was based on the biology of 

the marine mammal species and 

available information on the nature of 

the threats. For the Southern Resident 

killer whales, we have detailed 

information on killer whale biology, 

vessel activities around the whales, and 

vessel effects on the whales’ behavior 

and acoustic foraging activities that 

informed the selection of the final rule. 

We did not propose some of the 

regulatory options suggested in the 

ANPR and in public comments on the 

proposed rule for several reasons, 

including, difficulties in enforcing 

them, changes to infrastructure needed 

to implement them, or a lack of 

sufficient science to support them. For 

example, a speed limit within a certain 

distance of the whales (i.e., less than 7 

knots within 400 yards (365.8 m) of the 

whales) would be difficult to implement 

and enforce without vessel tracking 

technology. A permit or certification 

program would require a large 

infrastructure to implement. There 

would also be equity issues in 

determining who is permitted or 

certified and who is not. A moratorium 

on all vessel-based whale watching, or 

protected areas along all shorelines, 

would be challenging to enforce and is 

not supported by available scientific 

information. Some comments suggested 

regulatory options such as rerouting 

shipping lanes or imposing noise level 

standards, which would unnecessarily 

restrict some types of vessels rarely in 

close proximity to the whales. 

We considered both benefits and costs 

in selecting the final regulation. The 

reduction in threats for each element of 

the regulation package as described 

above provides a benefit to the whales, 

as well as to the public who value the 

whales. Reducing threats to the whales 

also supports the long-term 

sustainability of the whale watching 

industry. The regulations also provide 

benefits to some land-based viewing and 

may provide benefits to other marine 

species. In addition to the benefits, we 

also considered the potential costs of 

the proposed regulations. To limit some 

potential costs to vessels or industries 

rarely in close proximity to the whales, 

we have included several exemptions to 

the regulations (i.e., ships in shipping 

lanes, fishing vessels). The exemptions 

also prevent other potential costs by 

protecting public safety, allowing for 

critical government and permitted 

activities to continue, and allowing us 

to fulfill our treaty trust responsibilities. 

The costs of implementing vessel 

regulations to protect the whales will 

likely be greatest for the commercial 

whale watch industry and recreational 

whale watchers. One cost of the 

proposed regulations is to increase 

viewing distance, which may affect the 

quality of whale watching experiences. 

An increased viewing distance affects 

the experience of the whale watch 

participants and not necessarily the 

revenue of the industry or companies. 

While some commercial whale watch 

operators have suggested that increased 

viewing distance will affect their 

revenue, there is information indicating 

that proximity to the whales is not the 

most important aspect of whale 

watching, and that participants value 

viewing in a manner that respects the 

whales. We do not anticipate any loss of 

business or reduction in the number of 

opportunities for participating in whale 

watching activities. Other impacts to 

boaters are expected to be minor and 

include slight deviations of a vessel’s 

path in order to comply with the 

regulations. Additionally, due to the 

need for these regulations to facilitate 

recovery of the Southern Resident 

population, we anticipate that the 

continued recovery of the population 

will result in broad-based benefit to the 

general public. 

In developing these regulations, we 

have determined that current 

regulations and guidelines are not 

sufficient to protect endangered 

Southern Resident killer whales and 

that additional regulations are necessary 

to reduce the risk of extinction. While 

we cannot quantify the reduction in risk 

of extinction, the perilous status of the 

Southern Residents makes it appropriate 

to take all reasonable actions to improve 

their chances of survival and recovery. 

We are issuing appropriate final 

regulations to reduce threats posed by 

vessels, limit costs, and maintain 

opportunities for the public to 

participate in whale watching. Of the 

alternatives considered, we chose a 

combination of two which provide 

benefits. All of the options have 

relatively low socioeconomic and 

recreation costs. In contrast, the cost of 

extinction of Southern Residents is 

incalculable. The final regulations will 

have a net benefit to the whales and the 

public who value the whales. 

Evaluation of the Effectiveness of the 

Measures 

The success of this program is vital to 

the recovery of the species. Therefore, 

NMFS will monitor the effectiveness of 

the final regulations and consider 

altering the measures or implementing 

additional measures if appropriate. 

References Cited 

A complete list of all references cited 

in this proposed rule can be found on 

our Web site at http:// 

www.nwr.noaa.gov/ and is available 

upon request from the NMFS office in 

Seattle, Washington (see ADDRESSES). 

National Environmental Policy Act and 

Regulatory Flexibility Act 

NMFS has prepared a final EA and 

Finding of No Significant Impact 

(FONSI) pursuant to NEPA to support 

this final rule. NMFS was the lead 

agency for the analysis and the U.S. 

Coast Guard, Washington Department of 

Fish and Wildlife, and the Department 

of Fisheries and Oceans, Canada were 

cooperating agencies. The final EA also 

includes a Regulatory Impact Review. 

An economic report and Regulatory 

Impact Review, including an analysis 

under the Regulatory Flexibility Act, 

were prepared to support the regulation. 

The Final Regulatory Flexibility 

Analysis (FRFA) is included in Chapter 

6 of the final EA. 

IEC (2010) identified a total of 283 

small business entities that may be 

affected by the vessel regulations to 

protect killer whales implemented by 

this final rule. This includes 23 small 

businesses in the whale watching 

industry, 248 in fishing related industry, 

and 12 in freight transportation. NMFS 

considered 9 alternatives for this 

rulemaking, which are: 

Alternative 1: No-action; 

Alternative 2: 100–Yard (91.4 m) 

Approach Regulation; 

Alternative 3: 200–Yard (182.9 m) 

Approach Regulation; 

Alternative 4: Protected Area— 

Current Voluntary No-go Zone; 

Alternative 5: Protected Area— 

Expanded No-go Zone; 

Alternative 6: Speed Limit of 7 Knots 

Within 400 Yards (365.8 m) of Killer 

Whales; 

Alternative 7: Keep Clear of the 

Whales’ Path; 

Alternative 8: Proposed Action 

(Package of Alternatives 3, 5, and 7); 

and 

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Alternative 9: Preferred Alternative 

(Package of Alternatives 3 and 7). 

Chapter 2 of the final EA describes 

each of the 9 alternatives that were 

analyzed. A summary of the impacts of 

each of the 9 alternatives is provided 

below. For detailed information on the 

costs of each alternative, see Chapter 4 

of the final EA. For a summary of the 

costs and benefits of each alternative, 

see Table 6–1 found in Chapter 6 of the 

final EA. The cost of the No Action 

Alternative is the potential loss of the 

whale watch industry based on an 

increased extinction risk for the whales. 

While operations of the whale watch 

industry may be affected to different 

degrees by Alternatives 2 through 9, it 

is the customers and not necessarily the 

whale watching companies (i.e., small 

entities for the purposes of RFA) who 

may bear impacts. The economic 

analysis (IEC 2010) projects no change 

in revenue for whale watching 

operations or other industries, but rather 

the potential diminished value of the 

customers’ experience as a result of 

greater viewing distances and 

displacement of vessels. 

The economic analysis and final EA 

quantify the number of trips and 

participating individuals for different 

types of vessels (commercial whale 

watch, private whale watching, 

kayaking, and fishing) that would be 

potentially affected by Alternatives 2 

through 9. A small number of 

commercial and private whale watching 

trips, kayak and fishing trips would 

have to adjust their operations to 

comply with Alternative 2 (a 100-yard 

(91.4 m) Approach Regulation). Under 

Alternative 3 (a 200-yard (182.9 m) 

Approach Regulation) there was a range 

of estimated trips and individuals that 

would experience greater viewing 

distance which included up to all 

participants in commercial and private 

whale watching trips. There was some 

uncertainty regarding the potential 

effects of Alternatives 4 and 5 (Current 

and Expanded No-go Zones), which 

included increased viewing distances 

for a small percent of all commercial 

and private whale watching trips and 

displacement of a large number of 

commercial and recreational kayaks 

from the San Juan County boat launch 

and a smaller number of commercial 

fishing vessels from the no-go zone. A 

small number of commercial and private 

whale watching trips, kayak and fishing 

trips would be affected by having to 

comply with Alternative 6 (a Speed 

Limit of 7 Knots Within 400 Yards 

(365.8 m) of Killer Whales) similar to 

the numbers for Alternative 2 (the 100– 

Yard (91.4 m) Approach Regulation). A 

larger number of commercial whale 

watching trips and similar small 

number of private whale watching trips 

would be affected by Alternative 7 

(Keep Clear the Whales’ Path) compared 

to Alternatives 2 and 6. Alternative 8 is 

a combination of Alternatives 3, 5 and 

7 and would have the greatest impacts 

of all the action alternatives. Alternative 

9 is a combination of Alternatives 3 and 

7 and would have fewer impacts than 

Alternative 8, but greater impacts than 

the individual alternatives (Alternatives 

2 through 7). 

The benefits of two alternatives, 

Alternatives 3 and 7, are high and 

Alternative 9 combines these individual 

regulations into an action with high 

benefit. The expected costs are minimal 

for each alternative. The costs 

associated with Alternatives 2 through 

9, as estimated by the number of 

commercial and recreational trips and 

passengers affected vary, and in some 

cases the overall number of trips and 

passengers affected are small 

(Alternatives 2, 4, 6, and 7). For other 

alternatives (Alternatives 3, 5, 8 and 9) 

there is some uncertainty as to the 

number of trips and passengers affected. 

Even if all participants in recreational 

and commercial whale watching are 

affected, the impact itself (based on an 

increased viewing distance) is small. 

Alternative 8 with the highest benefit 

and small costs provides the highest net 

benefit. Alternative 9 also has a high 

benefit and small costs, providing a net 

benefit. Alternative 9 does not include 

Alternative 5 (the Expanded No-go 

Zone). However, NMFS recognizes the 

increased benefit to the whales of 

reducing vessel impacts in a core 

foraging area and will collect additional 

information and seek public input to 

further evaluate the concept of a no-go 

zone. While there may be some 

economic cost to various industry 

groups under Alternative 9, particularly 

commercial whale watching, overall this 

cost is likely to be minimal and 

outweighed by the conservation benefits 

of regulations. NMFS does not expect 

any small entity to cease operation as a 

result of any of the alternatives, 

including the Preferred Alternative 

(Alternative 9). The primary costs under 

the Preferred Alternative (Alternative 9) 

are a diminished value to individuals 

engaged in whale watching at greater 

distances and would not be borne by 

these small entities. Additional 

information on selection of the Preferred 

Alternative (Alternative 9) is included 

in the Rationale for Regulations section 

of this final rule. The final EA including 

the FONSI and FRFA, Regulatory 

Impact Review, and supporting 

documents are available for review and 

can be found on the NMFS Northwest 

Region Web site at http:// 

www.nwr.noaa.gov/. 

Clarity of This Rule 

We are required by Executive Orders 

12866 and 12988 and by the 

Presidential Memorandum of June 1, 

1998, to write all rules in plain 

language. This means that each rule we 

publish must: 

(1) Be logically organized; 

(2) Use the active voice to address 

readers directly; 

(3) Use clear language rather than 

jargon; 

(4) Be divided into short sections and 

sentences; and 

(5) Use lists and tables wherever 

possible. 

If you believe that we have not met 

these requirements, send us comments 

(see ADDRESSES section). To better help 

us revise rules in the future, your 

comments should be as specific as 

possible. 

Required Determinations 

Paperwork Reduction Act 

This final rule will not impose any 

new requirements for collection of 

information that requires approval by 

the Office of Management and Budget 

under the Paperwork Reduction Act 

(44 U.S.C. 3501 et seq.) This rule will 

not impose new recordkeeping or 

reporting requirements on State or local 

governments, individuals, businesses, or 

organizations. 

Executive Order (E.O.) 12866— 

Regulatory Planning and Review 

This Final Rule was determined to be 

significant for purposes of E.O. 12866. It 

was reviewed by the Office of 

Management and Budget and other 

interested Federal agencies. 

E.O. 12988—Civil Justice Reform 

We have determined that this final 

rule does not unduly burden the judicial 

system and meets the requirements of 

sections 3(a) and 3(b)(2) of E.O. 12988. 

We issue protective regulations 

pursuant to provisions in the ESA and 

MMPA using an existing approach that 

improves the clarity of the regulations 

and minimizes the regulatory burden of 

managing ESA listings while retaining 

necessary and advisable protections to 

provide for the conservation of 

threatened and endangered species. 

E.O. 13175—Consultation and 

Coordination With Indian Tribal 

Governments 

The longstanding and distinctive 

relationship between the Federal and 

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20890 Federal Register / Vol. 76, No. 72 / Thursday, April 14, 2011 / Rules and Regulations 

tribal governments is defined by 

treaties, statutes, executive orders, 

judicial decisions, and co-management 

agreements. These differentiate tribal 

governments from the other entities that 

deal with, or are affected by, the Federal 

Government. This relationship has 

given rise to a special Federal trust 

responsibility involving the legal 

responsibilities and obligations of the 

United States toward Indian Tribes and 

the application of fiduciary standards of 

due care with respect to Indian lands, 

tribal trust resources, and the exercise of 

tribal rights. E.O. 13175 outlines the 

responsibilities of the Federal 

Government in matters affecting tribal 

interests. During our scoping process we 

provided the opportunity for all 

interested tribes to comment on the 

need for regulations and discuss any 

concerns they may have. The Lummi 

Tribe and the Northwest Indian 

Fisheries Commission provided 

comments on the proposed rule 

regarding the exception for treaty Indian 

fishing vessels. In response to the 

comments, NMFS included additional 

clarification regarding the specific treaty 

fishing activities to which the exception 

applies. See Comment 9: Exceptions. 

We will continue to coordinate with the 

tribes on management and conservation 

actions related to this species. 

E.O. 13132—Federalism 

E.O. 13132 requires agencies to take 

into account any federalism impacts of 

regulations under development. It 

includes specific consultation directives 

for situations where a regulation will 

preempt state law, or impose substantial 

direct compliance costs on state and 

local governments (unless required by 

statute). The Washington Department of 

Fish and Wildlife (WDFW) was a 

cooperating agency on the NEPA 

analysis to support development of 

proposed regulations. A Federal 

regulation under the MMPA and ESA 

prohibiting approach within 200 yards 

(182.9 m) of killer whales is more 

protective than the state law (RCW 

15.77.740), which prohibits approach 

within 100 yards (91.4 m) of Southern 

Resident killer whales in state waters, 

and therefore may preempt the state 

law. In their comments on the proposed 

rule, WDFW supported federal 

regulations prohibiting approach within 

200 yards (182.9 m) of killer whales. 

Inclusion of the WDFW as a cooperating 

agency satisfies the consultation 

requirements of E.O. 13132. 

E.O. 13211—Energy Supply, 

Distribution, or Use 

E.O. 13211 requires agencies to 

prepare a statement of energy effects 

when undertaking certain actions. 

According to E.O. 13211, ‘‘significant 

energy action’’ means any action by an 

agency that is expected to lead to the 

promulgation of a final rule or 

regulation that is a significant regulatory 

action under E.O. 12866 and is likely to 

have a significant adverse effect on the 

supply, distribution, or use of energy. 

We have determined that the energy 

effects of this final rule are unlikely to 

exceed the energy impact thresholds 

identified in E.O. 13211 and that this 

rulemaking is, therefore, not a 

significant energy action. No statement 

of energy effects is required. 

List of Subjects in 50 CFR Part 224 

Endangered marine and anadromous 

species. 

Dated: April 8, 2011. 

Samuel D. Rauch III, 

Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service. 

For the reasons set out in the 

preamble, 50 CFR part 224 is amended 

as follows: 

PART 224—ENDANGERED MARINE 

AND ANADROMOUS SPECIES 

■ 1. The authority citation for 50 CFR 

part 224 continues to read as follows: 

Authority: 16 U.S.C. 1531–1543 and 

16 U.S.C. 1361 et seq. 

■ 2. In § 224.103, a new paragraph (e) is 

added to read as follows: 

§ 224.103 Special prohibitions for 

endangered marine mammals. 

* * * * * 

(e) Protective regulations for killer 

whales in Washington—(1) 

Applicability. The following restrictions 

apply to all motorized and nonmotorized vessels in inland waters of 

the United States east of a line 

connecting Cape Flattery, Washington 

(48°23′10′′ N./124°43′32′′ W.), Tatoosh 

Island, Washington (48°23′30′′ N./ 

124°44′12′′ W.), and Bonilla Point, 

British Columbia (48°35′30′′ N./ 

124°43′00′′ W.) and south of the U.S./ 

Canada international boundary. The 

shoreline boundary is the charted mean 

high water line cutting across the 

mouths of all rivers and streams. 

(2) Prohibitions. Except as provided in 

paragraph (e)(3) of this section, it is 

unlawful for any person subject to the 

jurisdiction of the United States to: 

(i) Cause a vessel to approach, in any 

manner, within 200 yards (182.9 m) of 

any killer whale. 

(ii) Position a vessel to be in the path 

of any killer whale at any point located 

within 400 yards (365.8 m) of the whale. 

This includes intercepting a killer whale 

by positioning a vessel so that the 

prevailing wind or water current carries 

the vessel into the path of the whale. 

(3) Exceptions. The following 

exceptions apply to this section: 

(i) The prohibitions of paragraph (e)(2) 

of this section do not apply to 

(A) Federal Government vessels 

operating in the course of their official 

duty or state and local government 

vessels when engaged in official duties 

involving law enforcement, search and 

rescue, or public safety. 

(B) Vessels participating with a Vessel 

Traffic Service (VTS) and following a 

Traffic Separation Scheme or complying 

with a VTS Measure of Direction. This 

also includes support vessels escorting 

ships in the traffic lanes, such as tug 

boats. 

(C) Vessels engaged in an activity, 

such as scientific research, authorized 

through a permit issued by the National 

Marine Fisheries Service under part 

222, subpart C, of this chapter (General 

Permit Procedures) or through a similar 

National Marine Fisheries Service 

authorization. 

(D) Vessels lawfully engaged in 

commercial or treaty Indian fishing that 

are actively setting, retrieving, or closely 

tending fishing gear. 

(E) Vessel operations necessary to 

avoid an imminent and serious threat to 

a person, vessel or the environment, 

including when necessary for overall 

safety of navigation and to comply with 

the Navigation Rules. 

(ii) [Reserved] 

(4) Affirmative defense. In connection 

with any action alleging a violation of 

the prohibitions of paragraph (e)(2) of 

this section, any person claiming the 

benefit of any exception listed in 

paragraph (e)(3) of this section has the 

burden of raising, pleading, and proving 

such affirmative defense. 

(b) [Reserved] 

[FR Doc. 2011–9034 Filed 4–13–11; 8:45 am] 

BILLING CODE 3510–22–P 

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