[Federal Register Volume 74, Number 144 (Wednesday, July 29, 2009)]
[Proposed Rules]
[Pages 37674-37686]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-18075]


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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.

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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

[[Page 37675]]

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:
    <bullet> E-mail: <a href="/cdn-cgi/l/email-protection#84ebf6e7e5aaf4e8e5eac4eaebe5e5aae3ebf2"><span class="__cf_email__" data-cfemail="c4abb6a7a5eab4a8a5aa84aaaba5a5eaa3abb2">[email protected]</span></a>.
    <bullet> Federal e-rulemaking Portal: http://www.regulations.gov.
    <bullet> 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

[[Page 37676]]

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

[[Page 37677]]

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,

[[Page 37678]]

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/Killer-Whales/ESA-Status/Orca-Vessel-Regs.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 no-go zone 
similar to the current voluntary zone, as well as a larger no-go zone 
on the west side of San Juan Island. A no-go 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

[[Page 37679]]

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[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 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, non-motorized 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 over-estimate 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, 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 Co-operative 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 
well-defined 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

[[Page 37680]]

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

[[Page 37681]]

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

[[Page 37682]]

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 No-action 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

[[Page 37683]]

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 no-go 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

[[Page 37684]]

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 Sec.  224.103(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) 
Prohibitions. The following restrictions apply to all motorized, non-
motorized, and self-propelled 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[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. 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[deg]10'120.19'' W, 48[deg]34'20.67'' N;

[[Page 37685]]

    123[deg]11'6.71'' W, 48[deg]34'20.67'' N;
    123[deg]11'13.99'' W, 48[deg]34'8.12'' N;
    123[deg]11'15.83'' W, 48[deg]33'56.15'' N;
    123[deg]11'13.14'' W, 48[deg]33'38.80'' N;
    123[deg]11'2.91'' W, 48[deg]33'22.97'' N;
    123[deg]10'55.44'' W, 48[deg]33'7.97'' N;
    123[deg]10'40.63'' W, 48[deg]32'51.10'' N;
    123[deg]10'21.06'' W, 48[deg]32'37.62'' N;
    123[deg]10'21.38'' W, 48[deg]32'28.70'' N;
    123[deg]10'30.04'' W, 48[deg]32'12.73'' N;
    123[deg]10'29.69'' W, 48[deg]32'2.48'' N;
    123[deg]10'26.63'' W, 48[deg]31'45.92'' N;
    123[deg]10'18.54'' W, 48[deg]31'29.48'' N;
    123[deg]10'5.34'' W, 48[deg]31'16.07'' N;
    123[deg]09'48.51'' W, 48[deg]30'55.15'' N;
    123[deg]09'45.22'' W, 48[deg]30'46.38'' N;
    123[deg]09'31.91'' W, 48[deg]30'32.53'' N;
    123[deg]09'19.56'' W, 48[deg]30'20.03'' N;
    123[deg]09'13.97'' W, 48[deg]30'16.86'' N;
    123[deg]09'0.19'' W, 48[deg]30'3.30'' N;
    123[deg]08'44.56'' W, 48[deg]29'55.15'' N;
    123[deg]08'40.54'' W, 48[deg]29'46.62'' N;
    123[deg]08'20.43'' W, 48[deg]29'31.99'' N;
    123[deg]07'54.54'' W, 48[deg]29'26.65'' N;
    123[deg]07'40.69'' W, 48[deg]29'16.29'' N;
    123[deg]07'24.74'' W, 48[deg]29'8.36'' N;
    123[deg]06'50.12'' W, 48[deg]29'3.18'' N;
    123[deg]06'34.81'' W, 48[deg]28'59.48'' N;
    123[deg]06'25.50'' W, 48[deg]28'54.57'' N;
    123[deg]06'11.47'' W, 48[deg]28'39.55'' N;
    123[deg]05'56.57'' W, 48[deg]28'31.18'' N;
    123[deg]05'39.99'' W, 48[deg]28'27.84'' N;
    123[deg]05'6.86'' W, 48[deg]28'31.27'' N;
    123[deg]04'38.40'' W, 48[deg]28'25.94'' N;
    123[deg]04'32.58'' W, 48[deg]28'15.11'' N;
    123[deg]04'18.39'' W, 48[deg]28'1.25'' N;
    123[deg]04'1.07'' W, 48[deg]27'54.14'' N;
    123[deg]03'37.56'' W, 48[deg]27'47.83'' N;
    123[deg]03'18.18'' W, 48[deg]27'32.24'' N;
    123[deg]02'58.60'' W, 48[deg]27'25.48'' N;
    123[deg]02'53.75'' W, 48[deg]27'21.01'' N;
    123[deg]02'34.37'' W, 48[deg]27'7.24'' N;
    123[deg]05'13.06'' W, 48[deg]27'3.05'' N;


and connecting back to 123[deg]10'120.19'' W, 48[deg]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[deg]04'28.33'' W, 
48[deg]28'54.84'' N and 123[deg]04'4.01'' W, 48[deg]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

[[Page 37686]]

[GRAPHIC] [TIFF OMITTED] TP29JY09.056

[FR Doc. E9-18075 Filed 7-28-09; 8:45 am]
BILLING CODE 3510-22-C


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