§ 223.214 Approaching threatened humpback whales in Alaska. ( a ) *Prohibitions.* Except as provided under paragraph (b) of this section, it is unlawful for any person subject to the jurisdiction of the United States to commit, to attempt to commit, to solicit another to commit, or to cause to be committed, within 200 nautical miles (370.4 km) of Alaska, or within inland waters of the state, any of the acts in paragraphs (a)(1) through (a)(3) of this section with respect to threatened humpback whales (*Megaptera novaeangliae*): ( 1 ) Approach, by any means, including by interception (*i.e.,* placing a vessel in the path of an oncoming humpback whale so that the whale surfaces within 100 yards (91.4 m) of the vessel), within 100 yards (91.4 m) of any humpback whale;
( 2 ) Cause a vessel or other object to approach within 100 yards (91.4 m) of a humpback whale; or
( 3 ) Disrupt the normal behavior or prior activity of a whale by any other act or omission. A disruption of normal behavior may be manifested by, among other actions on the part of the whale, a rapid change in direction or speed; escape tactics such as prolonged diving, underwater course changes, underwater exhalation, or evasive swimming patterns; interruptions of breeding, nursing, or resting activities, attempts by a whale to shield a calf from a vessel or human observer by tail swishing or by other protective movement; or the abandonment of a previously frequented area.
( b ) *Exceptions.* The following exceptions apply, but any person who claims the applicability of an exception has the burden of proving that the exception applies: ( 1 ) Paragraph (a) of this section does not apply if an approach is authorized by the National Marine Fisheries Service through a permit issued under part 222, subpart C, of this chapter (General Permit Procedures) or through a similar authorization.
( 2 ) Paragraph (a) of this section does not apply to the extent that a vessel is restricted in its ability to maneuver and, because of the restriction, cannot comply with paragraph (a) of this section.
( 3 ) Paragraph (a) of this section does not apply to commercial fishing vessels lawfully engaged in actively setting, retrieving or closely tending commercial fishing gear. For purposes of this section, commercial fishing means taking or harvesting fish or fishery resources to sell, barter, or trade. Commercial fishing does not include commercial passenger fishing operations (*i.e.* charter operations or sport fishing activities).
( 4 ) Paragraph (a) of this section does not apply to state, local, or Federal government vessels operating in the course of official duty.
( 5 ) Paragraph (a) of this section does not affect the rights of Alaska Natives under 16 U.S.C. 1539(e).
( 6 ) This section shall not take precedence over any more restrictive conflicting Federal regulation pertaining to humpback whales, including the regulations at 36 CFR 13.1102-13.1188 that pertain specifically to the waters of Glacier Bay National Park and Preserve.
( c ) *General measures.* Notwithstanding the prohibitions and exceptions in paragraphs (a) and (b) of this section, to avoid collisions with threatened humpback whales, vessels must operate at a slow, safe speed when near a humpback whale. “Safe speed” has the same meaning as the term is defined in 33 CFR 83.06 and the International Regulations for Preventing Collisions at Sea 1972 (see 33 U.S.C. 1602), with respect to avoiding collisions with humpback whales.
[81 FR 62021, Sept. 8, 2016]