13464 Federal Register / Vol. 72, No. 55 / Thursday, March 22, 2007 / Proposed Rules 

authorized to operate under the program 

and possesses the appropriate State or 

Tribal permits, when required. 

Moreover, this section does not 

authorize the killing of any migratory 

bird species or destruction of their nest 

or eggs other than resident Canada 

geese. 

(8) Registrants may not undertake any 

actions under this section if the 

activities adversely affect species 

designated as endangered or threatened 

under the authority of the Endangered 

Species Act. Persons operating under 

this order must immediately report the 

take of any species protected under the 

Endangered Species Act to the Service. 

Further, to protect certain species from 

being adversely affected by management 

actions, registrants must: 

* * * * * 

(e) Can the depredation order be 

suspended? We reserve the right to 

suspend or revoke this authorization for 

a particular landowner, homeowners’

association, or local government if we 

find that the registrant has not adhered 

to the terms and conditions specified in 

the depredation order. Final decisions 

to revoke authority will be made by the 

appropriate Regional Director. The 

criteria and procedures for suspension, 

revocation, reconsideration, and appeal 

are outlined in §§ 13.27 through 13.29 of 

this subchapter. For the purposes of this 

section, ‘‘issuing officer’’ means the 

Regional Director and ‘‘permit’’ means 

the authority to act under this 

depredation order. For purposes of 

§ 13.29(e), appeals must be made to the 

Director. Additionally, at such time that 

we determine that resident Canada 

goose populations no longer need to be 

reduced in order to resolve or prevent 

injury to people, property, agricultural 

crops, or other interests, we may choose 

to terminate part or all of the 

depredation order by subsequent 

regulation. In all cases, we will annually 

review the necessity and effectiveness of 

the depredation order. 

* * * * * 

8. In subpart E, amend § 21.61 by 

revising paragraph (d)(2) to read as 

follows: 

§ 21.61 Population control of resident 

Canada geese. 

* * * * * 

(d) * * * 

(2) Control activities may be 

conducted under this section only 

between August 1 and August 31. 

* * * * * 

Dated: March 6, 2007. 

David M. Verhey, 

Assistant Secretary for Fish and Wildlife and 

Parks. 

[FR Doc. E7–5199 Filed 3–21–07; 8:45 am] 

BILLING CODE 4310–55–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 216 

[Docket No. 070125020–7020–01; I.D. 

010907A] 

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: Advance notice of proposed 

rulemaking. 

SUMMARY: We, the National Marine 

Fisheries Service (NMFS), listed the 

Southern Resident killer whale distinct 

population segment (DPS) as 

endangered under the Endangered 

Species Act (ESA) on November 18, 

2005. In the final rule announcing the 

listing, we identified vessel effects, 

including direct interference and sound, 

as a potential contributing factor in the 

recent decline of this population. Both 

the Marine Mammal Protection Act 

(MMPA) and the ESA prohibit take, 

including harassment, of killer whales, 

but these statutes do not prohibit 

specified acts. We are considering 

whether to propose regulations that 

would prohibit certain acts, under our 

general authorities under the ESA and 

MMPA and their implementing 

regulations. The Proposed Recovery 

Plan for Southern Resident killer whales 

(published November 29, 2006) includes 

as a management action the evaluation 

of current guidelines and the need for 

regulations and/or protected areas. The 

scope of this advance notice of proposed 

rulemaking (ANPR) encompasses the 

activities of any person or conveyance 

that may result in the unauthorized 

taking of killer whales and/or that may 

cause detrimental individual-level and 

population-level impacts. NMFS 

requests comments on whether—and if 

so, what type of—conservation 

measures, regulations, or other measures 

would be appropriate to protect killer 

whales from the effects of these 

activities. 

DATES: Comments must be received at 

the appropriate address (see ADDRESSES) 

no later than June 20, 2007. Public 

meetings have been scheduled for April 

18, 2007, 2–4 p.m. in The Grange Hall, 

Friday Harbor, WA and April 19, 2007, 

7–9 p.m. at the Seattle Aquarium, 

Seattle, WA. Requests for additional 

public meetings must be made in 

writing by April 23, 2007. 

ADDRESSES: You may submit comments 

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. 

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 locals. In Washington, killer 

whales (Orcinus orca) are the principal 

target species for the commercial whale 

watch industry—easily surpassing other 

species, such as gray whales 

(Eschrichtius robustus), porpoises, and 

pinnipeds (Hoyt, 2001). NMFS is 

concerned that some whale watch 

activities may cause unauthorized 

taking of killer whales or cause 

detrimental individual-level and 

population-level impacts. 

Killer whales in the eastern North 

Pacific have been classified into three 

forms, or ecotypes, termed residents, 

transients, and offshore whales. 

Resident killer whales in the North 

Pacific consist of the following groups: 

Southern, Northern, Southern Alaska 

(includes Southeast Alaska and Prince 

William Sound whales), Western 

Alaska, and Western North Pacific 

Residents. The Southern Resident killer 

whale population contains three pods—

J pod, K pod, and L pod and was 

designated as a depleted stock under the 

MMPA and listed as endangered under 

the ESA. 

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. Their occurrence in 

the coastal waters off Oregon, 

Washington, Vancouver Island, and 

more recently off the coast of central 

California in the south and off the 

Queen Charlotte Islands to the north has 


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been documented. Little is known about 

the winter movements and range of 

Southern Residents. 

Scientific studies have documented 

human disturbance of Southern 

Resident killer whales by vessels 

engaged in whale watching in the 

inland waters of Washington. Shortterm 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; 

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

although it is not well 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 

different ways to whale watching, 

including swimming faster, adopting 

less predictable travel paths, making 

shorter or longer dive times, moving 

into open water, and altering normal 

patterns of behavior at the surface 

(Kruse, 1991; Williams et al., 2002a; 

Bain et al., 2006). High frequency sound 

generated from recreational and 

commercial vessels moving at high 

speed in the vicinity of whales may 

mask echolocation and other signals the 

species rely on for foraging, 

communication (Foote et al., 2004) and 

navigation. 

In rare instances, killer whales are 

injured or killed by collisions with 

passing ships and powerboats, primarily 

from being struck by the turning 

propeller blades (Visser, 1999c; 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. One resident 

whale mortality from a vessel collision 

was previously reported for Washington 

and British Columbia from the 1960s to 

1990s (Baird, 2002). However, two 

additional mortalities have recently 

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. In July 2006, the death of a 

stranded Northern Resident female was 

attributed to blunt trauma, probably 

from a vessel strike (M. Joyce, pers. 

comm.) Five additional accidents 

between vessels and killer whales have 

been documented in the region since the 

1990s (Baird, 2001; DFO, unpubl. data, 

NMFS, unpubl. data). One took place on 

the Washington side of Haro Strait in 

1998 and involved a slow moving boat 

that apparently did not injure the whale. 

In 1995, a Northern Resident was struck 

by a speedboat, causing a wound to the 

dorsal fin that quickly healed. Another 

Northern Resident was injured by a 

high-speed boat in 2003, but also 

recovered. A 2005 collision of a 

Southern Resident with a commercial 

whale watch vessel resulted in a minor 

injury to the whale, which subsequently 

healed. An additional Northern 

Resident calf was struck by a vessel in 

July 2006. 

We are concerned about the potential 

for individual-level and populationlevel effects because of vessel activities. 

Vessel effects were identified as a factor 

in the ESA listing of the Southern 

Residents and are addressed in the 

recovery plan which is available on our 

web page at http://www.nwr.noaa.gov/. 

NMFS has received an increasing 

number of complaints from the public 

alleging that killer whales in the core 

summer area along the west side of San 

Juan Island are routinely being 

disturbed by people attempting to 

closely approach and interact with the 

whales by vessel (motor powered or 

kayak). Concerns have been expressed 

by the U.S. Marine Mammal 

Commission, as well as members of the 

scientific community, researchers, 

wildlife conservation organizations, and 

some commercial tour operators. 

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 

describe 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 a thorough 

agency review. 

The ESA generally prohibits the 

taking 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 regulated close vessel 

approaches to large whales in Hawaii, 

Alaska, and the North Atlantic. In 1995, 

NMFS published a final rule to establish 

a 100–yard (91.4–m) approach limit for 

humpback whales in Hawaii (60 FR 

3775, January 19, 1995). In 2001, NMFS 

published a final rule (66 FR 29502, 

May 31, 2001) to establish a 100–yard 

(91.4–m) approach limit for humpback 

whales in Alaska that included a speed 

limit for when a vessel is near a whale. 

In 1997, an interim final rule was 

published to prohibit approaching 

critically endangered North Atlantic 

right whales closer than 500 yards 

(457.2 m) (62 FR 6729, February 13, 

1997). 

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/. 

Each of the six NMFS Regions has 

developed recommended viewing 

guidelines to educate the general 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 commercial operators, 

whale advocacy groups, U.S. and 

Canadian government agencies and 

enforcement divisions over the past 


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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 (91.4 m), approach 

animals slowly from the side rather than 

from the front or rear, and avoid putting 

the vessel within 400 yards (365 m) in 

front of or behind the whales. 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. 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 1⁄2–mile (800 

m)–wide zone along a 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 

were established to facilitate shorebased viewing and to reduce vessel 

presence in an area used by the whales 

for feeding, traveling, and resting. 

NMFS supports the Soundwatch 

program, an on-water stewardship and 

monitoring group, to promote the Be 

Whale Wise guidelines and monitor 

vessel activities in the vicinity of 

whales. Soundwatch reports (Koski, 

2004, 2006) characterize trends in 

incidents when the guidelines are not 

followed and there is the potential for 

disturbance of the whales. 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. 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 proposed 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. 

Request for Information and Comments 

NMFS is requesting information and 

comments on whether — and if so, what 

type of — conservation measures, 

regulations, or other measures would be 

appropriate to protect killer whales in 

inland waters of Washington from 

human activities that result in the 

unauthorized taking of killer whales 

and/or that may cause detrimental 

individual-level and population-level 

impacts. 

NMFS has received input on potential 

measures to address vessel impacts 

during the ESA listing and recovery 

planning process. Suggestions included 

regulations governing all vessels 

(including aircraft) or only commercial 

whale watch vessels. Suggestions 

included a moratorium on all whale 

watching, prohibiting whale watching 

for one or more days per week, 

developing a permit program for 

commercial operators, and requiring 

whale watch vessels to purchase and 

install Vessel Monitoring System (VMS) 

equipment to allow for monitoring their 

activities. Based on the comments 

received, and the regulations 

implemented for other marine 

mammals, NMFS has developed a 

preliminary list of options for 

consideration and comment: 

Codify the current Be Whale Wise 

marine mammal viewing guidelines –

Codifying the guidelines, in whole or in 

part, as regulations would make them 

requirements rather than 

recommendations, and would allow 

enforcement of these provisions and 

penalties for violations. 

Establish minimum approach rule –

Similar to the minimum approach rules 

for humpback whales in Hawaii and 

Alaska, and right whales in the North 

Atlantic (50 CFR 224.103; 66 FR 29502, 

May 31, 2001), a limit could be 

established by regulation to 

accommodate killer whale viewing 

opportunities while minimizing the 

potential detrimental impacts from 

humans. If establishing a minimum 

approach rule is appropriate, then we 

would have to consider whether the 

current guideline of 100 yards 

(approximately 100 m) is appropriate for 

this regulation. We would consider 

exceptions for situations in which 

marine mammals approach vessels as 

well as other situations in which 

approach is not reasonably avoidable. 

Prohibit vessel activities of concern –

The current guidelines address specific 

activities of concern. A regulation could 

prohibit vessel operators from engaging 

in these activities or others of concern. 

Activities of concern include using 

vessels to herd whales, surrounding 

whales or otherwise preventing a 

reasonable means of escape, 

leapfrogging whales or positioning a 

vessel in their predictable path, 

separating calves from attending adults, 

approaching whales at or above 

specified speeds, or running a vessel 

through a group of whales. 

Establish time-area closures – Similar 

to the prohibitions used to protect fish 

stocks or habitat, we could establish a 

regulation restricting human access to 

specific areas. These restrictions could 

restrict all human entry to the area or 

restrict only specified acts within an 

area; they could be full-time or limited 

to certain seasons when killer whales 

are likely to be present; or a closure 

could be any combination of the above. 

Operator permit or certification 

program – We could adopt approach 

rules or establish closed areas that 

applied to all vessels except those 


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Federal Register / Vol. 72, No. 55 / Thursday, March 22, 2007 / Proposed Rules 13467 

operated under a whale watching permit 

or certification. Issuance of a permit or 

certification could be based on the 

operator’s knowledge of whale behavior 

and proper procedures for operating 

vessels around whales. A permit or 

certification could allow the whale 

watch operator to get closer to the 

whales than those who do not have one. 

For example, a general approach limit of 

200 m could be implemented for all 

non-permitted or uncertified operators, 

and only operators who are permitted or 

certified would be allowed to approach 

to 100 m of the whales. Sanctions, up 

to and including loss of permit or 

certification for noncompliance with 

applicable regulations, would be 

possible. The issuance of permits or 

certifications could be directly related to 

an assessment of the appropriate level of 

whale watching in Puget Sound. This 

would require us to evaluate the current 

level of whale watching effort and limit 

the maximum number of vessels that 

can be engaged in whale watching 

activity. The limit could be adjusted 

based on monitoring and ongoing 

evaluation of what is appropriate to 

protect the whales. 

We recognize that the most 

appropriate regulations may be some 

combination of the above measures, or 

that additional possibilities may exist. 

Regulations adopted under the MMPA 

could apply to all three killer whale 

ecotypes - residents, transients, and 

offshores. To the average wildlife 

viewer, these whales are difficult to 

differentiate between visually, and all 

three could potentially be found in the 

inland waters of Washington State 

where whale watching occurs. 

The geographic scope of regulations, 

if proposed, would likely be the inland 

waters of the State of Washington, since 

this is where vessel interactions are 

concentrated. The coastal waters off 

Washington and Oregon do not 

currently have a significant level of 

documented vessel interactions, and the 

small number of killer whale sightings 

in these areas makes it unlikely that 

they will develop whale watching 

operations at significant levels in the 

future. 

NMFS invites information and 

comment from the public on the 

advisability of regulations, on the above 

options, and on other possible measures 

that will help the agency decide what 

type of regulations, if any, would be 

most appropriate to consider for 

protecting killer whales in the Pacific 

Northwest. In particular, we are seeking 

information and comments concerning: 

(1) The advisability of and need for 

regulations; 

(2) The geographic scope of 

regulations; 

(3) Management options for regulating 

vessel interactions with killer whales, 

including but not limited to the options 

listed in this notice; 

(4) Scientific and commercial 

information regarding the effects of 

vessels on killer whales and their 

habitat; 

(5) Information regarding potential 

economic effects of regulating vessel 

interactions; and 

(6) Any additional relevant 

information that NMFS should consider 

should it undertake rulemaking. 

You may submit information and 

comments concerning this ANPR 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 

proposed rule. 

References Cited 

A complete list of all references cited 

in this advanced notice of proposed 

rulemaking 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). 

Public Hearings 

Based on the level of interest in killer 

whales and whale watching, public 

meetings have been scheduled for April 

18, 2007, 2–4 p.m. in The Grange Hall, 

Friday Harbor, WA and April 19, 2007, 

7–9 p.m. at the Seattle Aquarium, 

Seattle, WA. Requests for additional 

public hearings or special 

accommodations must be made in 

writing (see ADDRESSES) by April 23, 

2007. 

Classification 

This ANPR was determined to be 

significant for purposes of E.O. 12866. 

Dated: March 15, 2007. 

Samuel D. Rauch III, 

Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service. 

[FR Doc. E7–5262 Filed 3–21–07; 8:45 am] 

BILLING CODE 3510–22–S 


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