37674 Federal Register / Vol. 74, No. 144 / Wednesday, July 29, 2009 / Proposed Rules 

information indicating the petitioned 

action may be warranted with respect to 

the species throughout its entire range. 

In accordance with section 4(b)(3)(B) of 

the ESA and NMFS’ implementing 

regulations (50 CFR 424.14(b)(2)), we 

will commence a review of the status of 

the species and make a determination 

within 12 months of receiving the 

petition (i.e., April 24, 2010) as to 

whether the petitioned action is 

warranted. If warranted, we will publish 

a proposed rule and solicit public 

comments before developing and 

publishing a final rule. 

Information Solicited 

To ensure the status review is based 

on the best available scientific and 

commercial data, we are soliciting 

information on whether largetooth 

sawfish are endangered or threatened. 

Specifically, we are soliciting 

information in the following areas: (1) 

historical and current distribution and 

abundance of this species throughout its 

range; (2) historical and current 

population trends; (3) information on 

life history in marine environments, (4) 

curio, meat, ‘‘shark’’ fin or other trade 

data; (5) information related to 

taxonomy of the species and closely 

related forms (e.g., P. microdon); (6) 

information on any current or planned 

activities that may adversely impact the 

species; (7) ongoing efforts to protect 

and restore the species and its habitat; 

and (8) information identifying a North 

American Distinct Population Segment. 

We request that all information be 

accompanied by: (1) supporting 

documentation such as maps, 

bibliographic references, or reprints of 

pertinent publications; and (2) the 

submitter’s name, address, and any 

association, institution, or business that 

the person represents. 

Critical Habitat 

The petitioner also requested that we 

designate critical habitat concurrently 

with listing the species as threatened or 

endangered. Under our regulations for 

designating critical habitat, we are only 

able to designate critical habitat within 

areas of U.S. jurisdiction (50 CFR 

424.12). Critical habitat is defined in the 

ESA (16 U.S.C. 1531 et seq.) as: 

‘‘(i) the specific areas within the 

geographical area currently occupied by 

the species, at the time it is listed... on 

which are found those physical or 

biological features (I) essential to the 

conservation of the species and (II) 

which may require special management 

considerations or protection; and (ii) 

specific areas outside the geographical 

area occupied by the species at the time 

it is listed upon a determination by the 

Secretary that such areas are essential 

for the conservation of the species.’’ 

Our implementing regulations (50 

CFR 424.12) describe those essential 

physical and biological features to 

include: (1) space for individual and 

population growth, and normal 

behavior; (2) food, water, air, light, 

minerals, or other nutritional or 

physiological requirements; (3) cover or 

shelter; (4) sites for breeding, 

reproduction, rearing of offspring; and 

(5) habitats that are protected from 

disturbance or are representative of the 

historic geographical and ecological 

distribution of a species. We are 

required to focus on the primary 

constituent elements (PCEs) which best 

represent the principal biological or 

physical features. PCEs may include: 

spawning sites, feeding sites, water 

quality and quantity. Our implementing 

regulations (50 CFR 424.02) define 

‘‘special management considerations or 

protection’’ as ‘‘any methods or 

procedures useful in protecting physical 

and biological features of the 

environment for the conservation of 

listed species.’’ 

Section 4(b)(2) of the ESA requires us 

to designate critical habitat for listed 

species based on the best scientific data 

available and after taking into 

consideration the economic impact, the 

impact on national security, and any 

other relevant impact, of specifying any 

particular area as critical habitat. The 

Secretary may exclude any particular 

area from critical habitat if he 

determines that the benefits of such 

exclusion outweigh the benefits of 

specifying such area as part of the 

critical habitat, unless he determines 

that the failure to designate such area as 

critical habitat will result in the 

extinction of the species concerned. 

To ensure that our review of critical 

habitat is complete and based on the 

best available data, we solicit 

information and comments on whether 

the petitioned area in U.S. waters 

including the Exclusive Economic Zone, 

or some subset thereof, qualifies as 

critical habitat. Areas that include the 

physical and biological features 

essential to the conservation of the 

species and that may require special 

management considerations or 

protection should be identified. 

Essential features include, but are not 

limited to, space for individual growth 

and for normal behavior, food, water, 

air, light, minerals, or other nutritional 

or physiological requirements, cover or 

shelter, sites for reproduction and 

development of offspring, and habitats 

that are protected from disturbance or 

are representative of the historical, 

geographical, and ecological 

distributions of the species (50 CFR 

424.12). 

Peer Review 

On July 1, 1994, NMFS, jointly with 

the U.S. Fish and Wildlife Service, 

published a series of policies regarding 

listings under the ESA, including a 

policy for peer review of scientific data 

(59 FR 34270). The intent of the peer 

review policy is to ensure listings are 

based on the best scientific and 

commercial data available. We are 

soliciting the names of recognized 

experts in the field who could take part 

in the peer review process for this status 

review. 

Independent peer reviewers will be 

selected from the academic and 

scientific community, tribal and other 

Native American groups, Federal and 

state agencies, the private sector, and 

public interest groups. 

Authority: 16 U.S.C. 1531 et seq. 

Dated: July 24, 2009. 

James W. Balsiger, 

Acting Assistant Administrator for Fisheries, 

National Marine Fisheries Service. 

[FR Doc. E9–18079 Filed 7–28–09; 8:45 am] 

BILLING CODE 3510–22–S 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 224 

[Docket No. 070821475–81493–01] 

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: Proposed rule; request for 

comments, and availability of Draft 

Environmental Assessment on 

regulations to protect killer whales from 

vessel effects. 

SUMMARY: We, the National Marine 

Fisheries Service (NMFS), propose 

regulations under the Endangered 

Species Act and Marine Mammal 

Protection Act to prohibit vessels from 

approaching killer whales within 200 

yards and from parking in the path of 

whales for vessels in inland waters of 

Washington State. The proposed 

regulations would also prohibit vessels 

from entering a conservation area during 

a defined season. Certain vessels would 

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be exempt from the prohibitions. The 

purpose of this action is to protect killer 

whales from interference and noise 

associated with vessels. In the final rule 

announcing the endangered listing of 

Southern Resident killer whales we 

identified disturbance and sound 

associated with vessels as a potential 

contributing factor in the recent decline 

of this population. The Recovery Plan 

for Southern Resident killer whales calls 

for evaluating current guidelines and 

assessing the need for regulations and/ 

or protected areas. We developed this 

proposed rule after considering 

comments submitted in response to an 

Advance Notice of Proposed 

Rulemaking (ANPR) and preparing a 

draft environmental assessment (EA). 

We are requesting comments on the 

proposed regulations and the draft EA. 

DATES: Comments must be received at 

the appropriate address (see ADDRESSES) 

no later than October 27, 2009. Public 

meetings have been scheduled for 

September 30, 2009, 7–9 p.m. at the 

Seattle Aquarium, Seattle, WA and 

October 5, 2009, 7–9 p.m. in The Grange 

Hall, Friday Harbor, WA. Requests for 

additional public meetings must be 

made in writing by August 28, 2009. 

ADDRESSES: You may submit comments 

on the proposed rule, draft EA and any 

of the supporting documents by any of 

the following methods: 

• E-mail: orca.plan@noaa.gov. 

• Federal e-rulemaking Portal: http:// 

www.regulations.gov. 

• Mail: Assistant Regional 

Administrator, Protected Resources 

Division, Northwest Regional Office, 

National Marine Fisheries Service, 7600 

Sand Point Way, NE., Seattle, WA 

98115. 

The draft EA and other supporting 

documents will be available on 

Regulations.gov and the NMFS 

Northwest Region Web site at http:// 

www.nwr.noaa.gov/. 

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 State, killer whales 

(Orcinus orca) are the principal target 

species for the commercial whale watch 

industry (Hoyt 2001). 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. 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. 

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 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); 

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 2006); altering travel 

patterns to avoid vessels (Constantine 

2001; Nowacek et al. 2001; Lusseau 

2003b, 2006); relocating to other areas 

(Allen and Read 2000); and changes in 

acoustic behavior (Van Parijs and 

Corkeron 2001). In some studies marine 

mammals display no reaction to vessels 

(Watkins 1986; Nowacek et al. 2003). 

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). 

Several scientific studies in the 

Pacific Northwest have documented 

disturbance of resident killer whales by 

vessels engaged in whale watching. 

Short-term behavioral changes in 

Northern and Southern Residents have 

been observed and studied by several 

researchers (Kruse 1991; Kriete 2002; 

Williams et al. 2002a, 2002b, 2006, In 

Press; Foote et al. 2004; Bain et al. 2006, 

Lusseau et al. In Press), although it is 

not always understood 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, In Press; Bain et 

al. 2006; Noren et al. 2007, In Press; 

Lusseau et al. In Press). High frequency 

sound generated from recreational and 

commercial vessels moving at high 

speed in the vicinity of whales may 

mask echolocation (signals sent by the 

whales that bounce off objects in the 

water and provide information to the 

whales) and other signals the species 

rely on for foraging (Erbe 2002; Holt 

2008), communication (Foote et al. 

2004), and navigation. 

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). 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 since then have 

been reported. 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 

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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/. 

Current MMPA and ESA Prohibitions 

and NMFS Guidelines and Regulations 

The Marine Mammal Protection Act, 

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 prohibits the take of 

endangered species. 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 for certain 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. Buffer zones were also 

created to protect Steller sea lions. 

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 on the effects of 

vessel traffic and whale watching did 

not provide precise guidance on 

proximity limits for approaching 

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 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 for when a vessel 

is near a whale. Again limited 

information on vessel impacts was 

available for humpback whales, 

however, the risk of harm to the species 

from a possible delay in detecting a 

long-term negative response to 

increased vessel pressure provided the 

impetus to implement vessel measures 

in waters off Alaska. NMFS decided to 

implement a 100 yard distance to 

maintain consistency with the 

published guidelines and with the 

regulations that existed for viewing 

humpback whales in Hawaii. Some form 

of speed restrictions was considered to 

reduce the likelihood of mortality or 

injury to a whale in the event of a 

vessel/whale collision. For practical and 

enforcement reasons, a slow safe speed 

standard, rather than a strict nautical 

mile-per-hour standard, was included in 

the rule. 

In 1997, an interim final rule was 

published to prohibit vessels from 

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 

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, other 

vessel impacts were identified, 

including displacing cow/calf pairs 

from nearshore waters, whales 

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, a 

final rule was recently published to 

implement speed restrictions of no more 

than 10 knots applying to all vessels 65 

ft (19.8m) 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) 

Steller sea lions were listed 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. Vessels are prohibited 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. The buffer zones were created 

to (1) restrict the opportunities for 

individuals to shoot at sea lions and 

facilitate enforcement of this restriction; 

(2) 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; (3) minimize 

disturbances and interference with sea 

lion behavior, especially at pupping and 

breeding sites; and, (4) avoid or 

minimize other related adverse effects. 

In addition to these specific 

regulations, NMFS has provided general 

guidance for wildlife viewing that does 

not cause take. This is consistent with 

the philosophy of responsible wildlife 

viewing advocated by many Federal and 

State agencies to unobtrusively 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.html. The ‘‘Be 

Whale Wise’’ guidelines developed for 

marine mammals by the NMFS 

Northwest Regional Office and partners 

are also available at http:// 

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

upload/BeWhaleWise.pdf. 

Be Whale Wise is a transboundary 

effort to develop and revise guidelines 

for viewing marine wildlife. NMFS has 

partnered with monitoring groups, 

commercial operators, whale advocacy 

groups, U.S. and Canadian government 

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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 2006 version of the 

Be Whale Wise guidelines recommends 

that boaters parallel whales no closer 

than 100 yards (100 meters), approach 

animals slowly from the side rather than 

from the front or rear, and avoid putting 

the vessel within 400 yards (400 meters) 

in front of or behind the whales. The Be 

Whale Wise guidelines are used in U.S. 

and Canadian waters and use meters 

and yards interchangeably in the 

guideline materials. Vessels are also 

recommended to reduce their speed to 

less than 7 knots (13 km/h) within 400 

meters of the whales, and to remain on 

the outer side of the whales near shore. 

In 2008 a State bill with similar 

language to the current approach and 

‘‘park in the path’’ guidelines (HB 2514) 

was approved to protect Southern 

Resident killer whales in Washington 

State waters. 

Two voluntary no-boat areas off San 

Juan Island are recognized by San Juan 

County, although this is separate from 

the Be Whale Wise guidelines. The first 

is a 2 mile (~800 m)—wide zone along 

a 1.8 mile (3 km) stretch of shore 

centered on the Lime Kiln lighthouse. 

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, were 

established to facilitate shore-based 

viewing and to 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). Incidents are 

frequently observed involving both 

recreational and commercial whale 

watching vessels. Soundwatch also 

serves as a crucial 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 

promote activities that appear 

inconsistent with what is recommended 

in the NMFS 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 

wild marine mammals have the 

potential to harass and/or disturb the 

animals by causing injury or disruption 

of normal behavior patterns. 

Soundwatch reports continue to include 

high numbers of incidents where 

guidelines to avoid harassment are not 

being followed (Koski 2004, 2006). 

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. NMFS has also 

received inquiries from members of the 

public and commercial tour operators 

requesting clarification of NMFS’ policy 

on these matters. 

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. Over 500 comments 

were received 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 and a 

2007 killer whale-specific ANPR 

(described below), monitoring reports, 

and scientific information. Monitoring 

groups continue to report high numbers 

of vessels around the whales and 

increasing 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. 

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. 

We relied on the public comments on 

the ANPR, the Recovery Plan, 

Soundwatch data, and other scientific 

information to develop a range of 

alternative individual 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 individual 

regulations, we developed an alternative 

that combined three of the individual 

regulations into a single package and 

analyzed the effects of that package. The 

results of our analysis are contained in 

a draft EA under the National 

Environmental Policy Act (NEPA). The 

EA is available for review and comment 

in association with this rulemaking (see 

ADDRESSES). 

Comments and Responses to Comments 

on the ANPR 

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, 

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37678 Federal Register / Vol. 74, No. 144 / Wednesday, July 29, 2009 / Proposed Rules 

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. All comments 

received during the comment period 

were posted on the NMFS Northwest 

Regional Web page http:// 

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

Whales-Dolphins-Porpoise/KillerWhales/ESA–Status/Orca-VesselRegs.cfm and Regulations.gov (as 

supporting documents to this proposed 

rule). 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. 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. Here 

we summarize comments and our 

responses that directly relate to the 

measures in this proposed rule. 

Additional information is provided in 

the Rationale for Regulations section of 

this notice. 

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. 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 the most 

serious violation—parking in the path of 

the whales—is committed primarily by 

commercial whale watch operators. In 

the draft EA, we examined the available 

evidence and concluded that mandatory 

regulations would reduce the number of 

incidents of vessels disturbing and 

potentially harming the whales and that 

this reduction would improve the 

whales’ chances for recovery. 

Accordingly, we are proposing 

mandatory regulations governing vessel 

activity around the whales. 

Approach regulation. Some 

commenters supported an approach 

limit of 100 yards (current guideline), 

and others suggested that an approach 

limit of 200 yards or 200–400 yards 

would better protect the whales. 

Commenters noted that an approach 

regulation could limit the potential for 

vessels to disturb or collide with whales 

and could limit the potential for vessel 

noise to mask the whale’s auditory 

signals, interfering with their ability to 

communicate and forage. In the draft EA 

we fully analyzed the effects of both a 

100 and 200 yard approach regulation. 

Researchers have documented 

behavioral disturbance and considerable 

potential for masking from vessels at 

100 yards and as far away as 400 yards. 

Researchers have also modeled the 

potential for vessel noise to mask the 

whales’ auditory signals and concluded 

that at 100 yards there is likely to be 

almost 100 percent masking, while at 

400 yards the masking has substantially 

decreased. The 200 yard approach 

regulation proposed here is intended to 

limit the risk of vessel strikes, the 

degree of behavioral disruption, and the 

amount of noise that masks 

echolocation and communication. 

While an approach regulation at a 

distance greater than 200 yards 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 to arrive 

at the 200 yard approach regulation we 

are proposing. 

No-go zone. We received comments 

supporting a mandatory no-go zone 

similar to the current voluntary no-go 

zones on the west side of San Juan 

Island, as well as suggestions to create 

no-go zones that included larger areas, 

other shoreline areas, and feeding ‘‘hot 

spots’’. In the draft EA we fully 

analyzed the effects of a mandatory nogo zone similar to the current voluntary 

zone, as well as a larger no-go zone on 

the west side of San Juan Island. A nogo zone provides protection in an area 

where researchers have observed high 

levels of foraging. Keeping vessels out of 

the zone is intended to eliminate the 

chance of a vessel strike, create foraging 

opportunities in the absence of vessels, 

and provide a buffer that limits the 

potential for acoustic masking. The 

proposed regulations include a no-go 

zone out 880 yards from shore, twice the 

distance of most of the current no-go 

zone. 

Park in the path. Some commenters 

supported codifying the guideline to 

keep clear of the whales’ path. The risk 

of vessel strikes and masking are both 

most severe when vessels are directly in 

front of the whales. The draft EA 

evaluated an alternative that included a 

mandatory prohibition on parking in the 

whales’ path. The proposed regulations 

include a prohibition on parking in the 

path because it 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. 

Other suggested alternatives. We did 

not propose some of the regulatory 

options suggested in the ANPR and in 

public comments 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 of the whales) 

would be difficult to implement and 

enforce without vessel tracking 

technology. A speed limit of 7 knots 

within 400 yards of the whales was fully 

analyzed as an alternative in the draft 

EA. Several other alternatives were 

suggested during the ANPR comment 

period and were addressed in the draft 

EA as alternatives considered but not 

analyzed in detail. These included: 

(1) A permit or certification program 

which would require a large 

infrastructure to implement. There 

would also be equity issues in 

determining who is permitted or 

certified and who is not. 

(2) A moratorium on all vessel-based 

whale watching, or protected areas 

along all shorelines, which would be 

challenging to enforce and are not 

supported by available scientific 

information. 

(3) 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. 

Proposed 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. The 

regulatory measures proposed here are 

designed to protect killer whales from 

vessel impacts and will support 

recovery of Southern Resident killer 

whales. We are proposing 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 proposed 

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 

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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). 

Scope and Applicability 

Application to All Killer Whales: 

Under the MMPA and ESA the 

proposed regulations would 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. In addition, providing 

protection of all killer whales in inland 

waters of Washington is appropriate 

under the MMPA. 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. 

Geographic Area: Regulations would 

apply to vessels in navigable inland 

waters of Washington under United 

States 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). This 

regulation will apply to an area similar 

to designated critical habitat including 

all U.S. marine waters in Jefferson, King, 

Kitsap, Island, Mason, Pierce, San Juan, 

Skagit, Snohomish, Thurston, Whatcom, 

and Clallam counties east of a line 

connecting Cape Flattery, Washington 

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

Island, Washington (48°23 30* N./ 

124°44 12* W.), and Bonilla Point, 

British Columbia (48°35 30* N./124°43 

00* W.) and south of the border 

delineating U.S. and Canadian waters. 

Marine waters include all waters 

relative to a contiguous shoreline 

relative to the mean high water line and 

cutting across the mouths of all rivers 

and streams. 

Vessels Subject to Proposed Rule: 

Commercial and recreational whale 

watch vessels include motorized, nonmotorized and self-propelled vessels 

(i.e., motor boats, sail boats and kayaks), 

all of which can cause disturbance to 

whales. While kayaks are small and 

quiet, they have the potential to disturb 

whales as obstacles on the surface, and 

they may startle whales by approaching 

them without being heard (Mathews 

2000). Some kayakers may be less likely 

to follow rules (Jelinski et al. 2002) and 

more likely to approach wildlife 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 nonmotorized 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 nonmotorized vessels in their analysis 

(Lusseau 2003b, Nichols et al. 2001, 

Trites et al. 2007, Noren et al. 2007, In 

Press). Based on this information, it is 

appropriate to protect killer whales from 

different types of vessels. 

Exceptions: We considered six 

specific categories of vessels that should 

be exempted 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, (5) 

vessels limited in their ability to 

maneuver safely, and (6) vessels owned 

by individuals who own shoreline 

property located immediately adjacent 

to the no-go zone when such vessels are 

transiting to or from the property for 

personal, non-commercial purposes. 

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) 

and Bain (2007) indicate that 

commercial and recreational whale 

watch vessels have the greatest potential 

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) 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. In 

addition, these vessels generally move 

slowly and in usually predictable 

straight paths, 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 

at this time is the sound from small, fast 

moving vessels moving in close 

proximity to the whales. 

Vessels engaged in scientific research 

do closely approach killer whales to 

obtain photographs, collect a variety of 

samples, and observe behavior. NMFS 

considers ongoing research essential to 

its efforts to recover the whales. 

Potential effects of these activities are 

evaluated under section 7 and takes are 

authorized under section 10 of the ESA 

for Southern Resident killer whales. 

Expertise of researchers, operating 

procedures, and permit terms and 

conditions reduce the potential impacts 

to whales, therefore specific research 

activities authorized by NMFS would be 

exempt from the vessel regulations. 

Regulating some categories of vessels 

could cause adverse impacts. 

Government vessels are often critical to 

safety missions, such as search and 

rescue operations, enforcement, and 

activities critical to national security. 

Washington State ferries would not be 

considered government vessels 

operating in the course of their official 

duties. U.S. and Canadian regulations 

require power vessels more than 40 

meters in length, tugs that are more than 

eight meters in length, and vessels 

carrying 50 or more passengers all 

participate in the monitoring and 

reporting system set in place by the Cooperative Vessel Traffic Service which 

is designed to efficiently and safely 

manage vessel movements in the shared 

waters of the two countries (Navigation 

and Navigable Waters, 33 CFR part 161). 

These ships generally follow the welldefined navigation lanes called the 

Traffic Separation Scheme under Rule 

10, as amended, of the International 

Regulations for Preventing Collisions at 

Sea, 1972 (COLREGS), Oct. 20, 1972, 28 

U.S.T. 3459, T.I.A.S. 8587, adopted by 

statute at 33 U.S.C. 1602; 57 FR 29218, 

July 1, 1992. If they were required to 

make sudden or unpredictable 

movements to avoid close approaches to 

whales, it could increase the risk of 

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collisions and pose safety hazards. If 

fishing vessels were required to follow 

regulations while actively engaged in 

fishing, it could compromise gear or 

catch. Exempting treaty Indian fishing 

vessels is consistent with treaty fishing 

rights and use of Usual and Accustomed 

fishing areas. NMFS is also proposing to 

exempt vessels from any regulations if 

the exemption is required for safe 

operation of the vessel to avoid adverse 

effects to public safety. There are private 

landowners with property adjacent to 

the no-go zone. NMFS is proposing to 

exempt the personal use of privately 

owned vessels for access to their 

shoreline by landowners adjacent to the 

no-go zone. 

Based on these considerations, NMFS 

is proposing exceptions to the 

regulations. 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. 

The following exceptions would apply 

to all regulations: 

(1) The regulations would not apply 

to Federal, State, and local government 

vessels operating in the course of 

official duty. 

(2) The regulations would not apply 

to vessels participating in the Vessel 

Tracking System and operating within 

the defined Traffic Separation Scheme 

shipping lanes. 

(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 authorization. 

(4) The regulations would not apply 

to treaty Indian fishing vessels lawfully 

engaged in actively setting, retrieving, or 

closely tending fishing gear. 

(5) The regulations would not apply 

to vessel operations necessary for safety 

to avoid an imminent and serious threat 

to a person or vessel. 

(6) The no-go zone regulation would 

not apply to personal use of private 

vessels owned by land owners for access 

to private property they own located 

adjacent to the no-go zone. 

In addition to these exceptions, the 

prohibition against approaching within 

200 yards and parking in the whales’ 

path would not apply to commercial 

(non-treaty) fishing vessels lawfully 

engaged in actively setting, retrieving, or 

closely tending fishing gear. Non-treaty 

commercial fishing vessels would be 

prohibited from entering the no-go zone. 

The regulations would apply to all 

fishing vessels, including treaty Indian 

and non-treaty vessels, transiting to or 

from fishing areas. 

Requirements 

Approach Restrictions: The proposed 

regulations would prohibit vessels from 

approaching any killer whale in the 

inland waters of Washington closer than 

200 yards. This would include 

approaching by any means, including by 

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

oncoming path of a killer whale, so that 

the whale surfaces within 200 yards of 

the vessel, or positioning a vessel so that 

wind or currents carry the vessel to 

within 200 yards). 

No-go zone: The proposed regulations 

would prohibit vessels from entering a 

no-go zone along the west side of San 

Juan Island. The area would extend 

seaward from the mean high water line 

to a line approximating 1⁄2 mile (800 m) 

offshore, from Eagle Point to Mitchell 

Point, and include an area totaling 

approximately 6.2 square miles (Figure 

1). With certain exceptions as described 

above, no vessels would be permitted 

inside the no-go zone during the period 

from May 1 through September 30 of 

each year. 

Prohibition against parking in the 

whales’ path: The proposed regulations 

would require vessels to keep clear of 

the whales’ path within 400 yards of the 

whales. Similar to the approach 

regulation, parking in the path includes 

interception (positioning a vessel so that 

whales surface within 200 yards of the 

vessel, or so that wind or 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 85 whales as of the 2008 

summer census. Based on ongoing 

observations to monitor the population, 

two whales have disappeared since the 

census count. The Southern Residents 

underwent an almost 20 percent decline 

from 1996 to 2001, and while there were 

several years of population increases 

following 2001, as of this year the 

population is once again in decline. 

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 20 boats during May 

through September, for the years 1998 

through 2006 (Osborne et al. 1999; Baird 

2001; Erbe 2002; Marine Mammal 

Monitoring Project 2002; Koski 2004, 

2006). 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. In 2006, there were 1,281 

incidents of vessels not following the 

guidelines reported during the time the 

observers were present (Koski 2007). 

There was an increasing trend in the 

number of incidents from 1998 to 2006. 

Since observers were not present during 

all days and all hours, it is likely that 

there were more incidents than those 

reported. Of the 1,281 incidents in 2006, 

the majority were committed by private 

boaters (53 percent), Canadian 

commercial operators (21 percent), and 

U.S. commercial operators (9 percent) 

(Koski 2007). The top incidents also 

reflect this pattern and are most often 

committed by private boaters, Canadian 

commercial whale watch vessels, and 

U.S. commercial whale watch vessels, 

respectively. The top four observed 

incidents were parking in the path, 

vessels motoring inshore of whales, 

vessels motoring within 100 yards of 

whales, and vessels motoring fast within 

400 yards of the whales (Koski 2007). 

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 

2000; Baird 2001; Carretta et al. 2001, 

2004, Gaydos and Raverty 2007). 

As described in the background 

section of this proposed rule and in the 

EA, it is well documented that killer 

whales in the Pacific Northwest respond 

to vessels engaged in whale watching 

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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, In Press; 

Williams et al. In Press). Southern 

Residents also spend less time foraging 

in the presence of vessels (Bain et al. 

2006, Lusseau et al. In Press). 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 2008), 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 (2008) 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 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. 

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. 

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, a no-go zone, and 

a prohibition on parking in the path. We 

recognize that adopting regulations that 

are different from the current voluntary 

guidelines and State regulation 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 three 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 draft EA contains a full 

analysis of a No-action alternative, six 

individual alternatives, and the 

combined approach we are proposing, 

described below. 

200 yard approach regulation. A 

regulation prohibiting approaches closer 

than 200 yards would be clear to whale 

watch operators. These operators would 

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 

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 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 considerable potential 

for masking from vessels at 100 yards. 

These effects are reduced at 200 yards 

and greater distances. Some effects are 

observed up to 400 yards from the 

whales. While an approach regulation at 

a distance greater than 200 yards 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 approach 

regulation we are proposing. 

No-go zone. A no-go zone is clear and 

could be readily avoided by both 

commercial and recreational boaters. 

The area would be identified using 

latitude and longitude coordinates and 

landmarks on maps and charts, making 

the regulation widely identifiable and 

compliance and enforcement 

straightforward. The no-go zone 

provides special protection in an area 

where researchers have observed high 

levels of foraging. Keeping vessels out of 

the zone is intended to eliminate the 

chance of a vessel strike, allow for 

increased foraging opportunities in the 

absence of vessels, and provide a buffer 

that greatly reduces the potential for 

acoustic masking. The potential for 

masking declines as vessels are kept 

further away from the whales. Holt 

(2008) concluded that some fast moving 

vessels within 200 yards of the whales 

can decrease the distance at which 

whales can detect salmon by 75 to 95 

percent, while those same vessels at 400 

yards reduce the distance at which they 

can detect salmon by 38 to 90 percent. 

The expanded no-go zone creates a 

maximum buffer of over 880 yards from 

vessels, twice that of the current no-go 

zone. This large buffer is particularly 

important for reducing the masking 

effects on echolocation signals and 

impacts to foraging from vessel sound. 

Parking in the path prohibition. As 

described above, this is the most 

common violation of the current 

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guidelines by commercial whale watch 

operators. 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 is 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 of the 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 proposed 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 proposed 

rule. 

We did not propose some of the 

regulatory options suggested in the 

ANPR and in public comments 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 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 proposed 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 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 proposed 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, allowing us to 

fulfill our treaty trust responsibilities, 

and avoiding infringement on the use of 

private land. 

The costs of implementing vessel 

regulations to protect the whales will be 

borne primarily by 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. Another cost is that 

some commercial and recreational 

kayakers may need to relocate to 

alternate launch sites where they are 

farther from core whale areas. Other 

impacts to boaters are expected to be 

minor and include slight deviations of 

a vessel’s path, or relocating to a nearby 

fishing area in order to comply with 

proposed regulations. 

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 compels us to take 

all reasonable actions to improve their 

chances of survival and recovery. We 

proposed the most appropriate 

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 the three with the 

greatest benefits. All of the options have 

relatively low socioeconomic and 

recreation costs. In contrast, the cost of 

extinction of Southern Residents is 

incalculable. The proposed regulations 

maximize net benefits 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 

(NEPA), Regulatory Flexibility Act, and 

Regulatory Impact Review 

NMFS has prepared a draft EA/RIR, 

pursuant to NEPA (42 U.S.C. 4321 et 

seq.), Executive Order 12866, and an 

Initial Regulatory Flexibility Analysis, 

pursuant to the Regulatory Flexibility 

Act (5 U.S.C. 601 et seq.), to support this 

proposed 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 draft EA/RIR 

and IRFA contain a full analysis of a Noaction alternative, six individual 

alternatives, and the combined 

approach we are proposing. There are a 

number of elements that were common 

to all of the alternatives analyzed, 

including the action proposed in this 

notice. NMFS identified the geographic 

location, application of regulations and 

exemptions, as described in the 

Proposed Rule section of this notice. 

The elements common to all alternatives 

are as follows. All regulations would 

apply to activities in the inland waters 

of Washington State. The specific 

protected areas within inland waters are 

identified. The regulations would apply 

to all killer whales, not just endangered 

Southern Residents. The regulations 

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would not exempt any vessel operators 

from the harassment or take 

prohibitions under the MMPA or ESA. 

The regulations would apply to 

motorized and non-motorized vessels. 

The following exceptions would 

apply to all regulations: 

(1) The regulations would not apply 

to Federal, State, and local government 

vessels operating in the course of 

official duty. 

(2) The regulations would not apply 

to vessels participating in the Vessel 

Tracking System and operating within 

the defined Traffic Separation Scheme 

shipping lanes. 

(3) The regulations would not apply 

to activities, such as scientific research, 

authorized through a permit issued by 

the National Marine Fisheries Service or 

through a similar authorization. 

(4) The regulations would not apply 

to treaty Indian fishing vessels lawfully 

engaged in actively setting, retrieving, or 

closely tending fishing gear. 

(5) The regulations would not apply 

to vessel operations necessary for safety 

to avoid an imminent and serious threat 

to a person or vessel. 

(6) The no-go zone regulation would 

not apply to personal use of private 

vessels owned by land owners for access 

to private property they own located 

adjacent to the no-go zone. 

Additional exceptions considered for 

individual alternatives are presented 

under each alternative below. 

(1) Alternative 1: No Action.The 

MMPA prohibits take of all marine 

mammals, including killer whales, and 

the ESA prohibits the take of listed 

marine mammals, including endangered 

Southern Resident killer whales. NMFS 

promotes responsible viewing through a 

‘‘Be Whale Wise’’ education campaign 

that includes a set of voluntary 

guidelines designed to help boaters 

avoid harassment. Under the No-action 

Alternative, NMFS would not 

promulgate any new regulations but 

would continue the education and 

outreach program with all of the 

partners involved in Be Whale Wise. 

The elements common to all alternatives 

above are specific to regulations and 

would not apply to the No-action 

Alternative. 

(2) Alternative 2: 100 Yard Approach 

Regulation. Under this alternative, 

NMFS would promulgate a regulation 

prohibiting vessels from approaching 

any killer whale closer than 100 yards. 

This would include approaching by any 

means, including by interception (i.e., 

placing a vessel in the oncoming path of 

a killer whale, so that the whale surfaces 

within 100 yards of the vessel, or 

positioning a vessel so that wind or 

currents carries the vessel to within 100 

yards). In addition to the exceptions 

listed above, this regulation would not 

apply to commercial fishing vessels 

(non-treaty) lawfully engaged in actively 

setting, retrieving, or closely tending 

fishing gear. 

(3) Alternative 3: 200 Yard Approach 

Regulation. This alternative is the same 

as Alternative 2, but the rule would 

prohibit vessel approaches within 200 

yards of all killer whales. 

(4) Alternative 4: Protected Area— 

Current Voluntary No-go Zone. Under 

this alternative, NMFS would formalize 

the current voluntary no-go zone along 

the west side of San Juan Island. This 

includes a 1⁄2 mile (800 meter)-wide 

zone centered on the Lime Kiln 

lighthouse and a 1⁄4 mile (400 meter)- 

wide zone from Eagle Point to Mitchell 

Point. No vessels would be permitted 

inside the protected area from May 1 

through September 30. This area would 

not overlap with shipping lanes or ferry 

routes and would not be directly 

adjacent to the Canadian border. 

(5) Alternative 5: Protected Area— 

Expanded No-go Zone. Under this 

alternative, NMFS would formalize a 

no-go zone along the west side of San 

Juan Island. The area would extend 1⁄2

mile (800 meter) offshore from Eagle 

Point to Mitchell Point. This is a larger, 

but simplified area compared to the nogo zone described under Alternative 4. 

No vessels would be permitted inside 

the protected area from May 1 through 

September 30. This area would not 

overlap with shipping lanes or ferry 

routes and would not be directly 

adjacent to the Canadian border. 

(6) Alternative 6: Speed Limit of 7 

Knots Within 400 Yards of Killer 

Whales. Under this alternative, NMFS 

would promulgate a regulation 

prohibiting vessels from operating at 

speeds over 7 knots when within 400 

yards of killer whales. In addition to the 

exceptions listed above, this regulation 

would not apply to commercial fishing 

vessels lawfully engaged in actively 

setting, retrieving, or closely tending 

fishing gear. 

(7) Alternative 7: Keep Clear of the 

Whales’ Path. Under this alternative, 

NMFS would promulgate a regulation 

requiring vessels to keep clear of the 

whales’ path. Violations of this 

regulation would include intercepting 

or placing a vessel in the oncoming path 

of a killer whale or positioning a vessel 

so that wind or currents carry the vessel 

into the path of the whales. In addition 

to the exceptions listed above, this 

regulation would not apply to 

commercial fishing vessels lawfully 

engaged in actively setting, retrieving, or 

closely tending fishing gear. 

(8) Proposed Action. Under this 

alternative, NMFS would promulgate a 

package of regulations incorporating 

Alternatives 3, 5, and 7 as described in 

the Proposed Rule section of this notice. 

The Draft EA/RIR addresses impacts 

to the eight resources that could be 

affected by the proposed action or 

alternatives: Marine Mammals, Listed 

and Non-listed Salmonids, 

Socioeconomics, Recreation, 

Environmental Justice, Noise, 

Aesthetics, and Transportation. Impacts 

to some resources were avoided or 

reduced by exempting certain classes of 

vessels or activities under all of the 

alternatives. 

The draft EA/RIR/IRFA, and 

supporting documents are available for 

review and comment and can be found 

on the NMFS Northwest Region Web 

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

Clarity of This Proposed 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 feel that we have not met these 

requirements, send us comments by any 

of the methods listed in the ADDRESSES

section. To better help us revise the 

rule, your comments should be as 

specific as possible. 

Public Comments 

You may submit information and 

comments concerning this Proposed 

Rule, the draft EA, or any of the 

supporting documents by any one of 

several methods (see ADDRESSES). 

Materials related to this notice can be 

found on the NMFS Northwest Region 

Web site at http://www.nwr.noaa.gov/. 

We will consider all comments and 

information received during the 

comment period in preparing a final 

rule. 

Public Availability of Comments 

Before including your address, phone 

number, e-mail address, or other 

personal identifying information in your 

comment, you should be aware that 

your entire comment—including your 

personal identifying information—may 

be made publicly available at any time. 

While you can ask us in your comment 

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37684 Federal Register / Vol. 74, No. 144 / Wednesday, July 29, 2009 / Proposed Rules 

to withhold your personal identifying 

information from public review, we 

cannot guarantee that we will be able to 

do so. 

Public Hearings 

Based on the level of interest in killer 

whales and whale watching, public 

meetings have been scheduled for 

September 30, 2009, 7–9 p.m. at the 

Seattle Aquarium, Seattle, WA and 

October 5, 2009, 7–9 p.m. in The Grange 

Hall, Friday Harbor, WA. Requests for 

additional public hearings must be 

made in writing (see ADDRESSES) by 

August 28, 2009. 

Required Determinations 

Paperwork Reduction Act 

This proposed rule will not impose 

any new requirements for collection of 

information that requires approval by 

the OMB under the Paperwork 

Reduction Act (44 U.S.C. 3501 et seq.) 

This proposed 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 Proposed 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 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 

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. 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 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 

of killer whales is more protective than 

the State regulation HB 2514 prohibiting 

approach within 100 yards of Southern 

Resident killer whales and therefore 

may preempt the State regulation. 

Inclusion of the Washington Department 

of Fish and Wildlife 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: July 21, 2009. 

James W. Balsiger, 

Acting Assistant Administrator for Fisheries, 

National Marine Fisheries Service. 

For the reasons set out in the 

preamble, 50 CFR part 224 is proposed 

to be amended as follows: 

PART 224—ENDANGERED MARINE 

AND ANADROMOUS SPECIES 

1. The authority citation for 50 CFR 

part 224 continues to read as follows: 

Authority: 16 U.S.C. 1531–1543 and 16 

U.S.C 1361 et seq. 

2. A new § 224.103(e) is added to read 

as follows: 

§ 224.103 Special prohibitions for 

endangered marine mammals. 

* * * * * 

(e) Protective regulations for killer 

whales in Washington—(1) Prohibitions. 

The following restrictions apply to all 

motorized, non-motorized, and selfpropelled vessels, regardless of size, 

transiting the navigable waters of 

Washington State and subject to the 

jurisdiction of the United States, which 

includes all U.S. marine waters in 

Clallam, Jefferson, King, Kitsap, Island, 

Mason, Pierce, San Juan, Skagit, 

Snohomish, Thurston, and Whatcom 

counties east of a line connecting Cape 

Flattery, Washington (48°23 10* N./ 

124°43 32* W.), Tatoosh Island, 

Washington (48°23 30* N./124°44 12* 

W.), and Bonilla Point, British Columbia 

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

of the U.S. Canadian border. Marine 

waters include all waters relative to a 

contiguous shoreline relative to the 

mean high water line and cutting across 

the mouths of all rivers and streams. 

Except as noted in paragraph (e)(2) of 

this section it is unlawful to: 

(i) Cause a vessel to approach within 

200 yards (182.8 m) of any killer whale. 

This includes approaching a killer 

whale by any means, including by 

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

the path of an oncoming killer whale, so 

that the whale surfaces within 200 yards 

(182.8 m) of the vessel, or by positioning 

a vessel so that the prevailing wind or 

currents carries the vessel to within 200 

yards (182.8 m), or being towed by 

another vessel). 

(ii) Enter the no-go zone located along 

the west side of San Juan Island 

extending 1⁄2 mile (805 m) offshore from 

Mitchell Point south to Eagle Point 

(Figure 1) at any time during the period 

May 1 through September 30 each year. 

The boundary of the no-go zone consists 

of straight lines connecting all of the 

following points in the order stated: 

Beginning at 123°10′120.19′′ W, 

48°34′20.67′′ N; 

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123°11′6.71′′ W, 48°34′20.67′′ N; 

123°11′13.99′′ W, 48°34′8.12′′ N; 

123°11′15.83′′ W, 48°33′56.15′′ N; 

123°11′13.14′′ W, 48°33′38.80′′ N; 

123°11′2.91′′ W, 48°33′22.97′′ N; 

123°10′55.44′′ W, 48°33′7.97′′ N; 

123°10′40.63′′ W, 48°32′51.10′′ N; 

123°10′21.06′′ W, 48°32′37.62′′ N; 

123°10′21.38′′ W, 48°32′28.70′′ N; 

123°10′30.04′′ W, 48°32′12.73′′ N; 

123°10′29.69′′ W, 48°32′2.48′′ N; 

123°10′26.63′′ W, 48°31′45.92′′ N; 

123°10′18.54′′ W, 48°31′29.48′′ N; 

123°10′5.34′′ W, 48°31′16.07′′ N; 

123°09′48.51′′ W, 48°30′55.15′′ N; 

123°09′45.22′′ W, 48°30′46.38′′ N; 

123°09′31.91′′ W, 48°30′32.53′′ N; 

123°09′19.56′′ W, 48°30′20.03′′ N; 

123°09′13.97′′ W, 48°30′16.86′′ N; 

123°09′0.19′′ W, 48°30′3.30′′ N; 

123°08′44.56′′ W, 48°29′55.15′′ N; 

123°08′40.54′′ W, 48°29′46.62′′ N; 

123°08′20.43′′ W, 48°29′31.99′′ N; 

123°07′54.54′′ W, 48°29′26.65′′ N; 

123°07′40.69′′ W, 48°29′16.29′′ N; 

123°07′24.74′′ W, 48°29′8.36′′ N; 

123°06′50.12′′ W, 48°29′3.18′′ N; 

123°06′34.81′′ W, 48°28′59.48′′ N; 

123°06′25.50′′ W, 48°28′54.57′′ N; 

123°06′11.47′′ W, 48°28′39.55′′ N; 

123°05′56.57′′ W, 48°28′31.18′′ N; 

123°05′39.99′′ W, 48°28′27.84′′ N; 

123°05′6.86′′ W, 48°28′31.27′′ N; 

123°04′38.40′′ W, 48°28′25.94′′ N; 

123°04′32.58′′ W, 48°28′15.11′′ N; 

123°04′18.39′′ W, 48°28′1.25′′ N; 

123°04′1.07′′ W, 48°27′54.14′′ N; 

123°03′37.56′′ W, 48°27′47.83′′ N; 

123°03′18.18′′ W, 48°27′32.24′′ N; 

123°02′58.60′′ W, 48°27′25.48′′ N; 

123°02′53.75′′ W, 48°27′21.01′′ N; 

123°02′34.37′′ W, 48°27′7.24′′ N; 

123°05′13.06′′ W, 48°27′3.05′′ N; 

and connecting back to 123°10′120.19′′ 

W, 48°34′20.67′′ N along the shoreline of 

San Juan Island, following the mean 

high water line, with the exception of 

the opening to False Bay, where the 

shoreward boundary is defined by a 

straight line connecting 123°04′28.33′′ 

W, 48°28′54.84′′ N and 123°04′4.01′′ W, 

48°28′46.89′′ N. 

(iii) Position a vessel in the path of 

any killer whale at any point located 

within 400 yards of the whale. This 

includes intercepting a killer whale by 

positioning a vessel so that the 

prevailing wind or currents carry the 

vessel into the path of the whale. 

(2) Exceptions. The following 

exceptions apply to this section: 

(i) The prohibitions of paragraph 

(e)(1) of this section do not apply to: 

(A) Federal, State, or local 

government vessels operating in the 

course of official duty; 

(B) Vessels participating in the U.S. 

Coast Guard and Canadian Coast Guard 

Co-operative Vessel Traffic Service and 

constrained to Traffic Separation 

Scheme shipping lanes; 

(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 

authorization; 

(D) Vessels lawfully engaged in treaty 

Indian fishing that are actively setting, 

retrieving, or closely tending fishing 

gear; or 

(E) Vessel operations necessary to 

avoid an imminent and serious threat to 

a person. 

(ii) The prohibition of paragraph 

(e)(1)(ii) of this section does not apply 

to privately owned vessels that transit 

the no-go zone for the sole purpose of 

gaining access to privately owned 

shoreline property located immediately 

adjacent to the no-go zone. For purposes 

of this section, ‘‘transit’’ means that a 

vessel crosses the no-go zone by the 

shortest possible safe route, on a straight 

line course as consistent with 

International Regulations for Preventing 

Collisions at Sea, 1972 (COLREGS), 

while making way by means of a source 

of power at all times, other than drifting 

by means of the prevailing water current 

or weather conditions. 

(iii) The prohibitions of paragraphs 

(e)(1)(i) and (e)(1)(iii) of this section do 

not apply to non-treaty commercial 

fishing vessels lawfully engaged in 

actively setting, retrieving, or closely 

tending fishing gear. 

(3) Affirmative defense. In connection 

with any action alleging a violation of 

the prohibitions of paragraph (e)(1) of 

this section, any person claiming the 

benefit of any exception listed in 

paragraph (e)(2) of this section shall 

have a defense where the person can 

demonstrate that the exception is 

applicable and was in force, and that the 

person fully complied with the 

exception at the time of the alleged 

violation. This defense is an affirmative 

defense that must be raised, pleaded, 

and proven by the proponent. 

3. In Part 224, Figure 1 is added to 

read as follows. 

BILLING CODE 3510–22–P 

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[FR Doc. E9–18075 Filed 7–28–09; 8:45 am] 

BILLING CODE 3510–22–C 


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