[Federal Register Volume 76, Number 72 (Thursday, April 14, 2011)]
[Rules and Regulations]
[Pages 20870-20890]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-9034]


=======================================================================
-----------------------------------------------------------------------

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.

[[Page 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 short-term 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 non-motorized (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

[[Page 20872]]

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/.

[[Page 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.watchablewildlife.org/ and http://www.watchablewildlife.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

[[Page 20874]]

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

[[Page 20875]]

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 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 (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

[[Page 20876]]

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/Killer-Whales/Recovery-Implement/Orca-Vessel-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 no-go 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

[[Page 20877]]

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 third-party 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 on-water 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 no-go 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

[[Page 20878]]

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 no-go 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 go-slow 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

[[Page 20879]]

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, short-term 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

[[Page 20880]]

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 no-go 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

[[Page 20881]]

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

[[Page 20882]]

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/Killer-Whales/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

[[Page 20883]]

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

[[Page 20884]]

regulations with three elements that would prohibit motorized, non-
motorized, 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 photo-identification, 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 ESA-listed 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[deg]23'10'' N./124[deg]43'32'' W.), Tatoosh Island, Washington 
(48[deg]23'30'' N./124[deg]44'12'' W.), and Bonilla Point, British 
Columbia (48[deg]35'30'' N./124[deg]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 non-motorized 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

[[Page 20885]]

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

[[Page 20886]]

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

[[Page 20887]]

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 short-term 
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

[[Page 20888]]

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

[[Page 20889]]

    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

[[Page 20890]]

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

0
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.

0
2. In Sec.  224.103, a new paragraph (e) is added to read as follows:


Sec.  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 
non-motorized vessels in inland waters of the United States east of a 
line connecting Cape Flattery, Washington (48[deg]23'10'' N./
124[deg]43'32'' W.), Tatoosh Island, Washington (48[deg]23'30'' N./
124[deg]44'12'' W.), and Bonilla Point, British Columbia 
(48[deg]35'30'' N./124[deg]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