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Protective Regulations for Killer Whales in the Northwest Region Under the Endangered Species Act and Marine Mammal Protection Act

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PDF Version (13 pp, 278K, About PDF)

[Federal Register: July 29, 2009 (Volume 74, Number 144)]
[Proposed Rules]
[Page 37674-37686]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr29jy09-44]

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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:
    • E-mail: orca.plan@noaa.gov.
    • Federal e-rulemaking Portal: http://www.regulations.gov.
    • Mail: Assistant Regional Administrator, Protected
Resources Division, Northwest Regional Office, National Marine
Fisheries Service, 7600 Sand Point Way, NE., Seattle, WA 98115.
    The draft EA and other supporting documents will be available on
Regulations.gov and the NMFS Northwest Region Web site at 
http://www.nwr.noaa.gov/.

FOR FURTHER INFORMATION CONTACT: Lynne Barre, Northwest Regional
Office, 206-526-4745; or Trevor Spradlin, Office of Protected
Resources, 301-713-2322.

SUPPLEMENTARY INFORMATION:

Background

    Viewing wild marine mammals is a popular recreational activity for
both tourists and local residents. In Washington State, killer whales
(Orcinus orca) are the principal target species for the commercial
whale watch industry (Hoyt 2001). NMFS listed the Southern Resident
killer whale distinct population segment (DPS) as endangered under the
ESA on November 18, 2005 (70 FR 69903). In the final rule announcing
the listing, NMFS identified vessel effects, including direct
interference and sound, as a potential contributing factor in the
recent decline of this population. NMFS is concerned that some whale
watching activities may harm individual killer whales, potentially
reducing their fitness and increasing the population's risk of extinction.
    Killer whales in the eastern North Pacific have been classified
into three forms, or ecotypes, termed residents, transients, and
offshore whales. Resident killer whales live in family groups, eat
salmon, and include the Southern Resident and Northern Resident
communities. Transient killer whales have a different social structure,
are found in smaller groups and eat marine mammals. Offshore killer
whales are found in large groups and their diet is largely unknown. The
Southern Resident killer whale population contains three pods--J, K,
and L pods--and frequents inland waters of the Pacific Northwest.
During the spring, summer, and fall, the Southern Residents' range
includes the inland waterways of Puget Sound, Strait of Juan de Fuca,
and Southern Strait of Georgia. Little is known about the winter
movements and range of Southern Residents. Their occurrence in coastal
waters extends from the coast of central California to the Queen
Charlotte Islands in British Columbia. The home ranges of transients,
offshore whales, and Northern Residents also include inland waters of
Washington and overlap with the Southern Residents.
    There is a growing body of evidence documenting effects from
vessels on small cetaceans and other marine mammals. The variety of
whale responses include stopping feeding, resting, and social
interaction (Baker et al. 1983; Bauer and Herman 1986; Hall 1982;
Krieger and Wing 1984; Lusseau 2003a; Constantine et al. 2004);
abandoning feeding, resting, and nursing areas (Jurasz and Jurasz 1979;
Dean et al. 1985; Glockner-Ferrari and Ferrari 1985, 1990; Lusseau
2005; Norris et al. 1985; Salden 1988; Forest 2001; Morton and Symonds
2002; Courbis 2004; Bejder 2006); altering travel patterns to avoid
vessels (Constantine 2001; Nowacek et al. 2001; Lusseau 2003b, 2006);
relocating to other areas (Allen and Read 2000); and changes in
acoustic behavior (Van Parijs and Corkeron 2001). In some studies
marine mammals display no reaction to vessels (Watkins 1986; Nowacek et
al. 2003). One study found that marine mammals exposed to human-
generated noise released increased amounts of stress hormones that have
the potential to harm their nervous and immune systems (Romano et al. 2004).
    Several scientific studies in the Pacific Northwest have documented
disturbance of resident killer whales by vessels engaged in whale
watching. Short-term behavioral changes in Northern and Southern
Residents have been observed and studied by several researchers (Kruse
1991; Kriete 2002; Williams et al. 2002a, 2002b, 2006, In Press; Foote
et al. 2004; Bain et al. 2006, Lusseau et al. In Press), although it is
not always understood whether it is the presence and activity of the
vessel, the sounds the vessel makes, or a combination of these factors
that disturbs the animals. Individual animals can react in a variety of
ways to nearby vessels, including swimming faster, adopting less
predictable travel paths, making shorter or longer dives, moving into
open water, and altering normal patterns of behavior (Kruse 1991;
Williams et al. 2002a, In Press; Bain et al. 2006; Noren et al. 2007,
In Press; Lusseau et al. In Press). High frequency sound generated from
recreational and commercial vessels moving at high speed in the
vicinity of whales may mask echolocation (signals sent by the whales
that bounce off objects in the water and provide information to the
whales) and other signals the species rely on for foraging (Erbe 2002;
Holt 2008), communication (Foote et al. 2004), and navigation.
    Killer whales may also be injured or killed by collisions with
passing ships and powerboats, primarily from being struck by the
turning propeller blades (Visser 1999, Ford et al. 2000, Visser and
Fertl 2000, Baird 2001, Carretta et al. 2001, 2004). Some animals with
severe injuries eventually make full recoveries, such as a female
described by Ford et al. (2000) that showed healed wounds extending
almost to her backbone. A 2005 collision of a Southern Resident with a
commercial whale watch vessel in Haro Strait resulted in a minor injury
to the whale, which subsequently healed. From the 1960s to 1990s (Baird
2002) only one resident whale mortality from a vessel collision was
reported for Washington and British Columbia. However, additional
mortalities since then have been reported. In March of 2006 the lone
Southern Resident killer whale, L98, residing in Nootka Sound for
several years, was killed by a tug boat. While L98 exhibited unusual
behavior and often interacted with vessels, his death demonstrates the
risk of vessel accidents. Several mortalities of resident killer whales
in British Columbia in recent years have been attributed to

[[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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