Protective Regulations for Killer Whales in the Northwest Region Under the Endangered Species Act and Marine Mammal Protection Act, 20870-20890 [2011-9034]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 76, Number 72 (Thursday, April 14, 2011)]
[Rules and Regulations]
[Pages 20870-20890]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-9034]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 224

[Docket No. 070821475-91169-02]
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: Final rule.

-----------------------------------------------------------------------

SUMMARY: We, the National Marine Fisheries Service (NMFS), establish 
regulations under the Endangered Species Act (ESA) and Marine Mammal 
Protection Act (MMPA) to prohibit vessels from approaching killer 
whales within 200 yards (182.9 m) and from parking in the path of 
whales when in inland waters of Washington State. Certain vessels are 
exempt from the prohibitions. The purpose of this final rule is to 
protect killer whales from interference and noise associated with 
vessels. We identified disturbance and sound associated with vessels as 
a potential contributing factor in the recent decline of this 
population during the development of the final rule announcing the 
endangered listing of Southern Resident killer whales and the 
associated Recovery Plan for Southern Resident killer whales (Recovery 
Plan). The Recovery Plan calls for evaluating current guidelines and 
assessing the need for regulations and/or protected areas. To implement 
the actions in the Recovery Plan, we developed this final rule after 
considering comments submitted in response to an Advance Notice of 
Proposed Rulemaking (ANPR) and proposed rule, and preparing an 
environmental assessment (EA). This final rule does not include a 
seasonal no-go zone for vessels along the west side of San Juan Island 
that was in the proposed rule. We will continue to collect information 
on a no-go zone for consideration in a future rulemaking.

DATES: This final rule is effective May 16, 2011.

ADDRESSES: Copies of this rule and the Environmental Assessment, 
Regulatory Impact Review and Finding of No Significant Impact related 
to this rule can be obtained from the Web site https://www.nwr.noaa.gov. 
Written requests for copies of these documents should be addressed to 
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 local residents. In Washington, killer whales 
(Orcinus orca) are the principal target species for the commercial 
whale watch industry (Hoyt 2001, O'Connor et al. 2009). Since 
monitoring of this population segment has begun, the number of whales 
peaked at 97 animals in the 1990s, and then declined to 79 in 2001. At 
the end of 2010 there were 86 whales. 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. Based on monitoring data regarding 
the large number of vessels in close proximity to the whales (i.e., 
within \1/2\ mile), research results regarding behavioral and acoustic 
impacts caused by vessels, and the risk of vessel strikes, 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.

[[Page 20871]]

    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 or reducing 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; 
Arcangeli and Crosti 2009; Christiansen et al. 2010); 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 et al. 2006); altering travel patterns to avoid vessels 
(Constantine 2001; Nowacek et al. 2001; Lusseau 2003b, 2006; Timmel et 
al. 2008); relocating to other areas (Allen and Read 2000); changes in 
acoustic behavior (Van Parijs and Corkeron 2001); and masking 
communication signals (Jensen et al. 2009.) 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). In some studies, however, 
researchers have found that marine mammals display no reaction to 
vessels (Watkins 1986; Nowacek et al. 2003) or concluded that there is 
no correlation between vessel effects and survival or reproduction 
(Weinrich and Corbelli 2009).
    Several scientific studies in the Pacific Northwest have documented 
disturbance of resident killer whales by vessels engaged in whale 
watching. Several researchers have reported short-term behavioral 
changes in Northern and Southern Resident killer whales in the presence 
of vessels (Kruse 1991; Kriete 2002; Williams et al. 2002a, 2002b, 
2006, 2009; Foote et al. 2004; Bain et al. 2006, Holt et al. 2009, 
Lusseau et al. 2009, Wieland et al. 2010), although many studies do not 
address 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, 2009, 2010; Bain et al. 2006; Noren et al. 2007, 2009; Lusseau 
et al. 2009).
    Some studies have looked at effects on behavior at specific vessel 
distances. In those studies, vessels were underway during active 
approaches or may have been parked in the path or stopped close to the 
whales as part of a leapfrogging sequence (i.e., a vessel repeatedly 
speeds ahead of the whales, makes a 90 degree turn to intercept the 
path of the whales and waits for the whales to approach). Many of these 
studies included both motorized and non-motorized (e.g., sail boats and 
kayaks) in assessing the impacts of vessels on the behavior of the 
whales.
    Approaches within 100 yards (91.4 m): Research results indicate 
that killer whale behavior changes from vessel approaches within 100 
yards (91.4 m) include changes in swimming patterns, changes in 
respiratory patterns, reduced time spent foraging, and increased 
surface active behaviors, such as tail slaps (Bain et al. 2006, Noren 
et al. 2007, 2009; Williams et al. 2002a, Lusseau et al. 2009). Noren 
et al. (2007, 2009) reported the highest frequency of surface active 
behaviors when the nearest vessel was within 75 to 99 meters in 2005. 
Lusseau et al. (2009) reported a significant decrease in overall time 
spent foraging and significant increase in overall time spent traveling 
when vessels were present within 100 yards (91.4 m). Williams et al. 
(2002a) found that experimental vessel approaches at 100 meters (about 
100 yards (91.4 m)) resulted in whales covering 13 percent more 
distance along a less direct route than before the vessel approached. 
Foraging female whales swam 25 percent faster and changed direction 
more often when approached by the experimental boat as compared to the 
observations before the boat approached.
    Approaches within 200 to 400 yards (182.9 to 365.8 m): Research 
results also indicate that killer whale behavior can be affected by 
approaches at distances greater than 100 yards (91.4 m) (Lusseau et al. 
2009; Noren et al. 2007, 2009; Williams et al. 2009). One study 
reported similar types of effects (i.e., increased direction changes, 
increased respiratory intervals and transitions between activity 
states) from vessels within 400 yards (365.8 m) of whales as compared 
to vessels within 100 yards (91.4 m), although to a lesser degree. This 
study did not report if the effects of vessels within 400 yards (365.8 
m) were from vessels close to the 100-yard (91.4 m) distance (i.e., at 
101 yards), at a 200-yard (182.9 m) distance or further away (i.e., 399 
yards) (Bain et al. 2006). Lusseau et al. (2009) also reported a 
reduction in time spent foraging when vessels were within 400 yards 
(365.8 m). Noren et al. (2007, 2009) reported the highest frequency of 
surface active behaviors when the closest vessels were within 100 yards 
(91.4 m) in 2005 and the highest frequency of surface active behaviors 
when the closest vessel was within 125 to 149 yards (114.3 to 136.2 m) 
in 2006, as compared to situations when the closest vessel was further 
away.
    The long term effects of these behavioral responses are less well 
known (Williams et al. 2006), although researchers have estimated the 
physiological consequences of behavioral responses by calculating the 
energetic costs of the behaviors observed when vessels are present. 
Williams et al. (2006) estimated that killer whales expended slightly 
more energy in the presence of all types of vessels. The behavior 
exhibited in the presence of vessels would require approximately 3 
percent more energy than behavior in the absence of vessels. The 
increased energy expenditure may be less important than the reduced 
time spent feeding and the resulting likely reduction in prey 
consumption. From their observations, Williams et al. (2006) calculated 
that lost feeding opportunities could result in an 18 percent decrease 
in energy intake in the presence of all types of vessels compared to 
when vessels are absent.
    In addition, researchers have also looked at the number of boats 
and how smaller or larger numbers of boats present affects the 
behavioral responses of killer whales (Williams and Ashe 2007; Giles 
and Cendak 2010). Giles and

[[Page 20872]]

Cendak (2010) analyzed killer whale behavior in high and low boat 
density conditions. Based on the distribution of number of vessels 
within 1,000 yards (914.4 m) of the focal group, low boat density was 
defined as five or fewer vessels within 1,000 yards (914.4 m) and high 
density was greater than five vessels within 1,000 yards (914.4 m). 
Whales spent significantly less time foraging in high boat density 
conditions (approximately 17 percent of time) compared to low boat 
density conditions (approximately 25 percent of time). Whales were also 
significantly more likely to remain foraging in low boat density 
conditions, indicating that the whales discontinued foraging when boat 
density was high. The effect of boat density was significant only when 
the whales were foraging, which may be the behavior state most 
susceptible to disturbance by high numbers of vessels.
    Increased energetic costs from behavioral disturbance and reduced 
foraging can decrease the fitness of individuals (Lusseau and Bejder 
2007). Increased 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 (Dierauf and Gulland 
2001; Trites and Donnelly 2003). Interference with foraging and 
nutritional stress 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 (Trites and Donnelly 2003). 
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). Interference with behaviors including prey 
sharing and communication could also change social cohesion and 
foraging efficiency and therefore the growth, reproduction, and fitness 
of individuals.
    Killer whales generally have a range of hearing from 1 to 100 kHz 
(Szymanski et al. 1999) and this wide frequency range of hearing makes 
killer whales susceptible to effects from a wide range of sounds, 
including sound produced by vessels. Sound modeling has been used to 
estimate distances at which vessel sound would cause behavioral 
responses for killer whales (Erbe 2002). Erbe (2002) predicted that the 
sounds of fast boats (greater than 50 km/h [31 miles/hour]) would be 
audible to killer whales at distances of up to 16 kilometers (10 miles) 
and cause behavioral responses within 200 meters (0.12 miles or 219 
yards). For boats moving at slow speeds (10 km/h [ 6.2 miles/hour]), 
sound would be audible within 1 kilometer (0.62 miles or 1,094 yards) 
and cause behavioral changes within 50 meters (55 yards).
    Human-generated sounds may mask or compete with and effectively 
drown out clicks, calls, and whistles made by killer whales, including 
echolocation (signals sent by the whales that bounce off objects in the 
water and provide information to the whales) used to locate prey and 
other signals the whales rely upon for communication and navigation. 
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 (Erbe 2002; Holt 
2009), communication (Foote et al. 2004, Weiland et al. 2010), and 
navigation. Sounds directly in front of the whale (i.e., in their path) 
would have the greatest impact on the whales ability to hear important 
sounds. Masking of echolocation would reduce foraging efficiency (Holt 
2009), which may be particularly problematic if prey resources are 
limited. Holt (2009) reviewed the current knowledge and data gaps 
regarding sound exposure in Southern Resident killer whales. The review 
provides an overview of acoustic concepts, killer whale sound 
production, ambient sound levels in Haro Strait (Veirs and Veirs 2006), 
sound propagation in killer whale habitats, effects of sound exposure, 
and assessment of likely acoustic impacts on the Southern Residents. 
Holt used data on ambient sound and characteristics and sound levels of 
several different types of vessels (Hildebrand et al. 2006) to analyze 
impacts on the effective range of killer whale echolocation in 
detecting a salmon. The vessel sounds were recorded at idle, when 
powering up, and at cruise speeds (17 to 31 knots). The review 
concluded that vessel noise was predicted to significantly reduce the 
range at which echolocating killer whales could detect salmon in the 
water column. Holt (2009) 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 (91.4 
m) of the whale. The detection range was reduced 38 to 90 percent when 
different vessels were operating at different speeds 200 and 400 yards 
(182.9 and 365.8 m) from the whales. Reduction in detection ranges 
decreased with greater distance from the whales and this was the case 
for both fast (cruise) and slower (powering up) vessels.
    Additionally, prey sharing has recently been identified as an 
important feature of Northern Resident killer whale foraging (Ford and 
Ellis 2005). Masking sound from vessels could affect the ability of 
whales to coordinate their feeding activities, including searching for 
prey and prey sharing. A study by Foote et al. (2004) on Southern 
Resident killer whales in the San Juan Islands identified that all 
three pods increased the duration of their primary communication call 
when vessels were present. This appears to be a recent development, 
which Foote et al. (2004) attributed to increased vessel traffic and 
subsequent engine noise reaching a threshold above which whales 
compensated with longer duration of calls to overcome the vessel noise 
(Foote et al. 2004). Wieland et al. (2010) also reported increased call 
durations, but for a larger number of call types (16 out of 21 calls) 
in a similar comparison. Holt et al. (2009) found that killer whales 
increase their call amplitude in response to vessel noise.
    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; Van Waerebeek et 
al. 2007). 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 have been reported 
since then. 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 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 https://www.nwr.noaa.gov/.

[[Page 20873]]

Current MMPA and ESA Prohibitions and NMFS Guidelines and Regulations

    The Marine Mammal Protection Act (MMPA), 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, 16 U.S.C. 1531-1543, prohibits the take of endangered 
species. Section 3(18) of 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 under the MMPA and ESA for 
certain marine mammal 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 and created 
buffer zones to protect Steller sea lions and has experience enforcing 
these regulations. 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 did not 
provide precise information on a single distance at which vessels 
disturbed the 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 (91.4 m) 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 when a vessel is near a whale. The approach 
regulations included approach, by any means, including interception of 
the path of the whales. NMFS adopted the 100 yard distance to maintain 
consistency with the published guidelines and with the regulations that 
existed for viewing humpback whales in Hawaii. NMFS considered some 
form of speed restrictions to reduce the likelihood of mortality or 
injury to a whale in the event of a vessel/whale collision. For 
practical and enforcement reasons, NMFS included a slow safe speed 
standard, rather than a strict nautical mile-per-hour standard, in the 
rule.
    In 1997, NMFS published an interim final rule to prohibit 
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 (457.2 m) 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, NMFS listed other vessel impacts, including displacing 
cow/calf pairs from nearshore waters, 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, NMFS recently published a final rule 
to implement speed restrictions of no more than 10 knots applying to 
all vessels, except those operated by or under contract to Federal 
agencies, 65 ft (19.8 m) 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), NMFS listed Steller sea lions 
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. The regulations prohibit vessels 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. NMFS 
created the buffer zones to (1) Restrict the opportunities for 
individuals to shoot at sea lions; (2) facilitate enforcement of this 
restriction; (3) 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; (4) minimize 
disturbances and interference with sea lion behavior, especially at 
pupping and breeding sites; and (5) avoid or minimize other related 
adverse effects.
    In addition to these specific regulations, NMFS has provided 
general guidance for wildlife viewing so that the activities are not 
likely to cause take. This is consistent with the philosophy of 
responsible wildlife viewing advocated by many federal and state 
agencies to allow the public to observe the natural behavior of wild 
animals in their habitats without causing disturbance (see https://www.watchablewildlife.org/ and https://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: https://www.nmfs.noaa.gov/prot_res/MMWatch/MMViewing.htm. The ``Be Whale Wise'' guidelines developed for marine 
mammals by the NMFS Northwest Regional Office and partners are also 
available at: https://www.bewhalewise.org/guidelines/.
    Be Whale Wise is a transboundary effort to develop and update 
guidelines for viewing marine wildlife. NMFS has partnered with 
monitoring groups, commercial operators, whale advocacy groups, U.S. 
and Canadian government 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 
2009 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

[[Page 20874]]

from the front or rear, and avoid putting the vessel within 400 yards 
(365.8 m) in front of or behind the whales. The guidelines also 
recommend vessels reduce their speed to less than 7 knots within 400 
yards (365.8 m) of the whales, and to remain on the outer side of the 
whales near shore. In 2008 a state law with similar language to the 
current approach and ``park in the path'' guidelines (RCW 15.77.740) 
was enacted to protect Southern Resident killer whales in Washington 
State waters.
    San Juan County, Washington, identifies two voluntary no-boat areas 
off San Juan Island on their Marine Stewardship Area maps, although 
this is separate from the Be Whale Wise guidelines. The first is a \1/
2\ mile (~800 m)-wide zone along a 1.8 mile (3 km) stretch of shore 
centered on the Lime Kiln lighthouse on the west coast of San Juan 
Island. 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, facilitate shore-based 
viewing and 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, 2007, 2008, 2009, 2010a, 2010b). Soundwatch reported 
that the mean number of vessels following a given group of whales 
increased from five boats in 1990 to an average of about 15 to 20 boats 
within \1/2\ mile of the whales during May through September, for the 
years 1998 through 2010 (Osborne et al. 1999; Baird 2001; Erbe 2002; 
Marine Mammal Monitoring Project 2002; Koski 2004, 2006, 2007, 2008, 
2009, 2010a, 2010b), with a peak of 22 vessels around the whales in 
1998 and 2003 and a steady decline from 22 vessels in 2003 to an 
average of 14 vessels in 2010. Soundwatch identified potential reasons 
for the decline in average number of boats, including economic 
conditions and fewer opportunities for fishing, as well as a pattern of 
groups of whales that are spread out in the action area so that vessels 
are also spread out. Soundwatch remains with one group of whales and 
records vessel counts around the group and therefore would not count 
all boats spread out with multiple groups of whales (Koski 2010b).
    At any one time, the observed numbers of commercial and 
recreational whale watch boats around killer whales can be much higher 
than the mean number of vessels. For example, sources other than 
Soundwatch have reported that 107 vessels followed one Southern 
Resident pod (Lien 2000); 76 boats simultaneously positioned around a 
group of 18 whales from K pod (Baird 2002); and local media reported up 
to 500 vessels came out on the weekends to view a group of whales from 
L pod in Dyes Inlet during the fall of 1997. Although the average 
number of whale watch vessels within \1/2\ mile is lower than what was 
observed in these three cases, the extreme nature of these events 
illustrates the degree to which killer whales can captivate the 
public's interest in the Pacific Northwest and the level of vessel 
effects that may occur.
    Over the last several years, the whale watch season has extended in 
length, with vessels accompanying whales for more hours of the day and 
more days of the year. It is not uncommon for Southern Residents or 
transient killer whales to be accompanied by many boats throughout much 
or all of the day with peak numbers of attending vessels in late 
morning and mid-afternoon during the busiest whale watching months of 
July and August (Koski 2007). In recent years, U.S. and Canadian 
commercial whale watch vessels have made up from 24 percent (2010) to 
over 50 percent (2004) of the vessels observed within a \1/2\-mile 
radius of the whales (Koski 2006, 2007, 2010b).
    Soundwatch observers also report incidents when recreational and 
commercial whale watching vessels, as well as other types of vessels, 
are not adhering to the guidelines. From 2006 through 2010, there were 
between 1,085 (2007) and 2,527 (2009) incidents per year of vessels not 
following the guidelines reported during the time the observers were 
present. Soundwatch effort (estimated observation time) has fluctuated 
in recent years and trends in incident data can be difficult to 
interpret. There was an increasing trend in the number of incidents 
from 1998 to 2006, which is not based only on increasing hours of 
observation time (Industrial Economics, Incorporated 2010). An average 
of 1.2 incidents was observed per hour in 2003, while an average of 
6.02 incidents were observed per hour in 2009.
    As in the past several years, the most common Soundwatch observed 
vessel incident categories in 2010 were:
    (1) Vessels parking in the path within 100-400 yards (365.8 m) of 
whales (Parked in path) at 23 percent of all incidents,
    (2) Vessels motoring inshore of whales (Inshore of whales) at 17 
percent,
    (3) Vessels motoring within 100 yards (91.4 m) of whales (Under 
power within 100 yards (91.4 m) of whales) at 12 percent, and
    (4) Vessels motoring fast (greater than 7 knots) within 400 yards 
(365.8 m) of whales (fast within \1/4\ mile of whales) at 13 percent of 
all incidents.
    In 2009 there were 2,527 incidents; the majority of these were 
committed by private boaters (72 percent) and Canadian commercial 
operators (8 percent). Of the 1,067 incidents in 2010, the majority 
were committed by private boaters (64 percent) and Canadian commercial 
operators (10 percent). The most common incidents also reflect this 
pattern and are most often committed by private boaters and Canadian 
commercial whale watch vessels.
    In both 2009 and 2010, 4 percent of incidents observed were 
committed by kayaks. Of the 1,067 incidents in 2010, 41 incidents (22 
commercial and 19 private kayakers) specific to kayaks were observed, 
including parking in the path (20 percent of kayak incidents in 2010). 
Soundwatch has reported that they likely underestimate kayak incidents 
because the Soundwatch observation vessel remains outside of the 
current voluntary no-go zone where considerable kayak activity takes 
place (Dismukes 2010). In 2010, Soundwatch collected new information 
regarding kayaks from land-based observation points. They observed over 
2,100 kayaks with the whales from June to September along the west side 
of San Juan Island with up to 41 kayaks with the whales at one time. Of 
the kayaks observed with whales, 74 percent were part of commercial 
kayaking groups (Koski 2010b). Observers reported a total of 594 
incidents of kayakers not following guidelines including 171 incidents 
of kayaks within 100 yards (91.4 m) of the whales and 88 incidents of 
kayaks parked within the path of the whales. In most cases when the 
kayakers made an effort to follow the guidelines they were able to 
comply with the 100 yard and park in the path guidelines (Koski 2010b).
    In addition to monitoring, the Soundwatch program includes an 
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

[[Page 20875]]

promote activities that appear inconsistent with what is recommended in 
the Be Whale Wise 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 killer whales have the 
potential to harass and/or disturb the animals by causing injury or 
disruption of normal behavior patterns. Soundwatch reports high numbers 
of incidents when vessels are not following the guidelines to avoid 
harassment (Koski 2004, 2006, 2007, 2008, 2009, 2010a, 2010b). 
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. The current prohibition against 
harassment may require demonstration of changes in the whales' behavior 
or an injury caused by a specific action which often includes expert 
testimony regarding behavioral response. NMFS has also received 
inquiries from members of the public and commercial tour operators 
requesting clarification of NMFS' policy on what activities constitute 
harassment.
    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. 
NMFS received over 500 comments 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, a 2007 killer whale-specific ANPR and the 2009 
proposed rule (described below), monitoring reports, and scientific 
information. Monitoring groups continue to report high numbers of 
vessels around the whales and high 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. NMFS' determination that regulations are needed 
is described in detail in the Rationale for Regulations section below.

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. 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, 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. 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. A full summary of the 
comments and NMFS' responses are contained in the proposed rule.

Proposed Rule

    In July 2009, NMFS proposed regulations that would prohibit 
motorized, non-motorized, and self-propelled vessels in inland waters 
of Washington from (1) Causing a vessel to approach within 200 yards 
(182.9 m) of any killer whale; (2) entering a restricted zone along the 
west coast of San Juan Island during a specified season, and (3) 
intercepting the path of any killer whale in inland waters of 
Washington (74 FR 3764, July 29, 2009). The proposed regulations 
included exemptions for certain vessels and activities. As described in 
the proposed rule and draft EA, we based the proposed regulations on 
the best available data on vessels and whales, and public comments on 
the ANPR.
    NMFS published the proposed rule in the Federal Register and 
requested public comment on the proposed regulations, the draft EA and 
supporting documents, such as the Draft Regulatory Impact Review (IEC 
2008). To develop the draft EA, we relied on the public comments on the 
ANPR, the Recovery Plan, Soundwatch data, and other scientific 
information to develop a range of alternatives to the 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 the 
alternative regulations, we developed an alternative that combined 
three separate provisions into a single package--a 200-yard (182.9 m) 
approach restriction, a no-go zone along the west side of San Juan 
Island from May-September, and a prohibition on parking in the whales' 
path. We analyzed the effects of that package in the draft EA.

Comments and Responses to Comments on the Proposed Rule

    NMFS published proposed regulations to protect killer whales on 
July 29, 2009, and announced two public meetings. In response to 
requests, NMFS added a third public meeting (74 FR 47779, September 17, 
2009) and extended the comment period to January 15, 2010 (74 FR 53454, 
October 19, 2009). The public meetings were well attended and over 160 
people provided recorded oral comments on the proposed rule. During the 
public

[[Page 20876]]

comment period, 704 unique written comments were submitted via letter, 
e-mail and the Federal e-rulemaking portal. Comments were submitted by 
concerned citizens; whale watch operators and naturalists; research, 
conservation and education groups; federal, state and local government 
entities; and various industry and other associations. NMFS posted all 
written comments received during the comment period on the NMFS 
Northwest Regional Web page: https://www.nwr.noaa.gov/Marine-Mammals/Whales-Dolphins-Porpoise/Killer-Whales/Recovery-Implement/Orca-Vessel-Regs.cfm. In addition to unique comments, over 2,400 form letters were 
submitted. There were 15 different form letters with the number of 
copies for each ranging from four to over 1,500. Additionally, we 
received five petitions that ranged from 100 to 740 signatures each and 
totaled over 1,300 names and signatures.
    Many of the oral and written comments from individual members of 
the public were short general statements that: (1) Supported the 
proposed regulations and killer whale conservation in general, (2) 
disagreed with the proposed regulations, or (3) disagreed only with the 
proposed no-go zone. Other individual public comments and comments from 
organizations and government agencies included substantive information, 
such as specific suggestions to alter the proposed regulations, new 
information, or additional alternatives to consider. The Marine Mammal 
Commission made several recommendations in their comments on the 
proposed rule that are addressed below in response to Comments 4, 6, 7, 
14, 16 and 17. The following is a summary of the comments received on 
both the proposed rule and the draft EA. The proposed rule included 
almost all of the information in the draft EA and most commenters 
directed their comments toward the proposed rule. We have grouped and 
summarized similar comments and recommendations, and responded to 
issues that directly relate to this rulemaking. Responses to the 
comments also include descriptions of changes made to the proposed 
regulations.
    Comment 1: 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.
    Response: 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 one of the most serious 
violations--parking in the path of the whales--was committed primarily 
by commercial whale watch operators, with a recent increase in parking 
in the path by recreational boaters. Approaching within 100 yards (91.4 
m) of the whales is primarily committed by recreational boaters. In the 
EA, we examined the available evidence and concluded that mandatory 
regulations are likely to reduce the number of incidents of vessels 
disturbing and potentially harming the whales and that this reduction 
would improve the whales' chances for recovery. We expect both 
commercial and recreational whale watchers to increase compliance with 
mandatory regulations compared to the current voluntary guidelines. 
Commercial whale watchers, in particular, will be aware of the new 
regulations and can serve as an example of lawful viewing for other 
boaters. Accordingly, we are adopting mandatory regulations governing 
vessel activity around the whales.
    Comment 2: Enforce state law and maintain current guidelines. 
Several commenters suggested the current state law, prohibiting 
approach within 300 feet, should be enforced to increase compliance and 
that with the current state law and Be Whale Wise guidelines in place, 
no additional Federal regulations were necessary. One commenter 
suggested making it unlawful to fail to disengage the transmission of a 
vessel when within 300 feet of a Southern Resident killer whale similar 
to the state law.
    Response: A state law requiring vessels to stay 300 feet (100 yards 
(91.4 m)) from Southern Resident killer whales went into effect in June 
2008. The Washington Department of Fish and Wildlife (WDFW) has 
enforced this law since 2008, issuing several violations and many 
warnings. While NMFS agrees that enforcement of state law has likely 
improved conditions for the endangered whales, our analysis revealed 
that vessels at 100 yards (91.4 m) can have harmful effects on whales 
(see Comment 3: Approach regulation). This final regulation prohibits 
approaches closer than 200 yards (182.9 m), providing greater 
protection than the state's 100-yard (91.4 m) law. WDFW supported the 
200-yard (182.9 m) approach rule in its comments on NMFS's proposed 
regulations. NMFS has not included a requirement to disengage the 
transmission of the vessel when within a certain distance of the 
whales. The Be Whale Wise guidelines include a recommendation to place 
engines in neutral and allow whales to pass if your vessel in not in 
compliance with the 100-yard (91.4 m) approach guideline. NMFS will 
continue to work with the Be Whale Wise partners to discuss maintaining 
this recommendation in the guidelines and evaluate the effectiveness of 
the final regulations to determine if any modifications are needed.
    Comment 3: Approach regulation. Some commenters supported an 
approach limit of 100 yards (91.4 m) (current guideline and state law), 
and others suggested that an approach limit of 150, 200, 200-400, 1,000 
yards (137.1, 182.9, 182.9-365.8, 914.4 m) or several miles would 
better protect the whales. Commenters noted that an approach regulation 
could limit the potential for vessels to disturb or collide with whales 
and for vessel noise to mask the whale's auditory signals, interfering 
with their ability to communicate and forage. Several whale watch 
operators raised concerns about how viewing from a distance of 200 
yards (182.9 m) would impact their businesses. In addition, they 
provided comments that viewing from 200 yards (182.9 m) would reduce 
their ability to educate customers and affect the example they set for 
other boaters.
    Response: In the final EA we fully analyzed the effects of both a 
100- and 200-yard (182.9 m) approach regulation. Based on the best 
available information we concluded that a 100-yard (91.4 m) approach 
regulation is not sufficient to protect the whales. Researchers have 
documented behavioral disturbance and estimated the considerable 
potential for masking from vessels at 100 yards (91.4 m) and as far 
away as 400 yards (365.8 m). Researchers have modeled the potential for 
vessel noise to mask the whales' auditory signals and concluded that at 
100 yards (91.4 m) there is likely to be up to 100 percent masking, 
while at 400 yards (365.8 m) the masking has substantially decreased. 
Even at 200 yards (182.9 m) the models show auditory masking of 75 to 
95 percent. We expect the 200-yard (182.9 m) approach limit in the 
final regulation to significantly reduce the risk of vessel strikes, 
the degree of behavioral disruption, and the amount of noise that masks 
echolocation and communication, compared to a 100-yard (91.4 m) 
approach regulation. An approach regulation greater than 200 yards 
(182.9 m) would reduce vessel effects even more, but 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. While it is difficult to quantify 
the

[[Page 20877]]

conservation benefits of public education, the Recovery Plan for 
Southern Resident Killer Whales identifies education and outreach 
actions as an essential part of the overall conservation program for 
the whales (NMFS 2008). We believe that a 200-yard (182.9 m) limit 
strikes an appropriate balance between the need to reduce vessel 
interactions with Southern Residents and the public interest in whale 
watching and observation.
    Many whale watch operators expressed concern that their business 
will decrease if they are required to stay 200 yards (182.9 m) away 
from whales. Several operators conducted informal surveys of their 
customers to support their assertion that a 200-yard (182.9 m) approach 
regulation would diminish the experience and make customers less likely 
to go on whale watching tours. The best available information, however, 
supports our conclusion that a 200-yard (182.9 m) approach regulation 
is unlikely to affect the numbers of people who go on whale watching 
tours or the price they are willing to pay for the experience (see 
Comment 11: Economic Analysis).
    First, observational data from third-party observers reveals that 
many operators already regularly view whales from 200 yards (182.9 m) 
or greater. In 2007-2008 a new research program collected detailed 
information on the distance of vessels from the whales using an 
integrated range finder, GPS and compass. This study measured the 
distance between all vessels and the nearest whale and reported that 
for all vessels within 400 yards (365.8 m) of the whale (likely engaged 
in whale watching), 74 percent were greater than 200 yards (182.9 m) 
from the whales. For all vessels within 800 yards (likely includes both 
whale oriented and transiting vessels), 88 percent of vessels were 
greater than 200 yards (182.9 m) from the whales (Giles and Cendak 
2010).
    In addition, the EA accompanying the final rule describes peer-
reviewed studies of customer attitudes that identify the features of 
the whale watching experience that are most valuable to customers. 
Several studies focused on killer whales in the Pacific Northwest have 
assessed the value that whale watching participants have for wildlife 
viewing and provide data on the factors that lead to an enjoyable or 
memorable whale watching trip, and how satisfied participants are with 
various aspects of their trip (Dufus and Deardon 1993; Andersen 2004; 
Andersen and Miller 2006; Malcolm 2004). Survey results of whale watch 
participants indicate that proximity to the whales is not the most 
important part of the whale watchers' experience and that seeing whales 
and whale behavior was much more important (Andersen 2004; Malcolm 
2004). In addition, Malcolm (2004) found participants were most 
satisfied with the respect their vessels gave the whales. The number of 
whales, whale behavior, and learning also received higher satisfaction 
than the distance from which whales were observed. The participants 
also strongly agreed with statements related to protection of the 
whales. Economic research also indicates that the general public places 
a high value on the continued existence of species such as the Southern 
Residents, such that actions necessary for the species' recovery have 
broad and lasting economic benefits. The Endangered Species Act 
protects species that are in danger of or threatened with extinction 
and states that ``these species are of esthetic, ecological, 
educational, historical, recreational and scientific value to the 
Nation and its people.'' Independent research also demonstrates the 
value that the public places on protection and recovery of endangered 
species including marine mammals (Loomis and Larson 1994).
    While many whale watch operators referenced informal surveys of 
their customers, these surveys were not scientifically designed and 
there was no control in their administration. In addition to the 
evidence described above, we received comments from the public that 
support the conclusion that a 200-yard (182.9 m) approach regulation 
will not reduce the public education value of whale watching. These 
comments highlight the value and effectiveness of educational programs 
that take place at great distances from the whales, even off the water 
away from whales, such as in classroom programs.
    For the reasons described above and in contrast to the public 
comments submitted by the commercial whale watching industry, we do not 
anticipate a reduction in the willingness of customers to participate 
in commercial whale watch trips or the ability of the whale watching 
industry to provide an educational and meaningful experience for their 
customers viewing whales at a distance of 200 yards (182.9 m). In 
adopting a 200-yard (182.9 m) approach regulation, we evaluated all of 
the available information on the potential costs to whale watch 
business. In addition, we balanced the competing conservation benefits 
to killer whales of reduced vessel interference against continued 
public education through on-water whale watching opportunities. We 
consider the viability of the whale watch business to be an integral 
part of public education. We will continue to study the impact of both 
motorized and non-motorized vehicle distance limits on whale behavior, 
and the impact of the newly established regulations on the viability of 
the whale watch business. NMFS will conduct this analysis alongside the 
additional consideration of a no-go area discussed in more detail 
below. If subsequent analysis suggests either a disproportionate impact 
on segments of the business, or that certain kinds of whale watching, 
such as the non-motorized business, has less of an effect on whale 
behavior, we will consider modifying or relaxing restrictions. We will 
conduct such analysis as the new rulemaking requirements are being 
implemented over the next two whale watching seasons.
    Comment 4: No-go zone. There were a large number of oral and 
written comments from the public, recreational fishing community, whale 
watch operators and kayakers in opposition to the proposed no-go zone. 
Some reasons expressed for opposition to the no-go zone included 
concerns about setting a precedent for closing additional areas to 
fishing, impacts to commercial and recreational fishing, elimination of 
kayaking opportunities, and safety concerns. A number of comments 
suggested creation of a go-slow zone in the place of a proposed no-go 
zone. We also received comments supporting the proposed seasonal no-go 
zone (May-September), as well as suggestions to create a larger no-go 
zone along the west side of San Juan Island, to include other shoreline 
areas, and to identify the no-go zone based on feeding ``hot spots.''
    Additional comments on the proposed no-go zone included support for 
more or fewer exceptions. Several commenters opposed the proposed 
exception for treaty fishing. Suggestions for additional exceptions 
were for recreational and commercial fishing, and a corridor near shore 
in the zone to allow for kayakers, and property owners using the zone 
for recreational purposes.
    Both oral and written commenters expressed concern that NMFS 
underestimated the economic impacts in the assessment of the proposed 
no-go zone. One specific concern was that the economic analysis did not 
adequately address impacts to the recreational and commercial fishing 
communities and impacts would be greater that what was considered in 
the EA.
    Several commenters suggested creating a public process to receive 
additional feedback on the concept of

[[Page 20878]]

the no-go zone and engage the community in developing an appropriate 
protected area. Others commented that NMFS should select the site based 
on the best available science and should consider use of areas by the 
three separate pods of Southern Resident killer whales.
    We received several comments specific to the status of the boat 
launch at the San Juan County Park (within the proposed no-go zone) as 
a resource supported by grants from the Washington Recreation and 
Conservation Office and whether it would be ``converted'' to uses other 
than those for which it was funded if the no-go zone was implemented.
    Response: Public comments on the no-go zone raised several 
suggested alternatives that we had not fully analyzed in the draft EA. 
In addition, we recognize that to be effective, regulations must be 
understood by the public and have a degree of public acceptance. 
Because of the many alternatives suggested by the public, and because 
of the degree of public opposition, we have decided to gather 
additional information and conduct further analysis and public outreach 
on the concept of a no-go zone. Therefore, the final rule does not 
adopt a no-go zone. We will pursue this additional work expeditiously 
because the best available information indicates there would be a 
significant conservation benefit to the whales if they were free of all 
vessel disturbance in their core foraging area.
    Comment 5: Park in the path. Some commenters supported adoption of 
a regulation that all vessels must keep clear of the whales' path. 
Others commented that a prohibition on parking in the path of the 
whales would be difficult to enforce and raised questions about 
situations where whales approach vessels. Commenters also suggested 
that a single approach distance would be easier for boaters to 
understand compared to a combination of a 200 yard approach distance 
and a parking in the path prohibition out to 400 yards.
    Response: The risks of both vessel strikes and acoustic masking are 
both most severe when vessels are directly in front of the whales. In 
addition researchers have reported behavioral responses from vessels 
out to 400 yards (365.8 m) and beyond and have expressed concern about 
impacts to important behaviors, such as prey sharing and nursing that 
occur as the whales move forward. The final regulations include a 
prohibition on parking in the path because it provides the best 
management tool for reducing these risks. Increasing the overall 
approach distance to mitigate for the specific impacts that can occur 
from vessels in the whales' path (i.e., a 300 or 400 yard (274.3 or 
365.8 m) approach rule) would increase the viewing distance for all 
whale watchers and could impact the experience of whale watchers and 
potentially the whale watch businesses (see Comment 3: Approach 
Regulation). NMFS believes that a 200 yard approach distance in 
combination with a prohibition on parking in the path of the whales 
within 400 yards (365.8 m) provides for meaningful and economically 
viable whale watching and provides additional protection from vessels 
out in front of the whales. We acknowledge that enforcement of the 
prohibition on parking in the path of the whales will be challenging 
and recognize that whales can be unpredictable and can approach vessels 
unexpectedly. A regulation prohibiting parking in the path of killer 
whales will be clear to whale watch operators and is consistent with 
the current guidelines. These operators would likely know about such a 
regulation and would have some experience in judging the travel path of 
the whales and estimating a 400 yard (365.8 m) distance. Under certain 
conditions, however, whale movements can be unpredictable (i.e., 
foraging whale pod spread out over a large area) even for experienced 
whale watchers. The prohibition on parking in the path is intended to 
address specific situations observed by monitoring groups where 
operators repeatedly position themselves to intercept the whales and do 
not get out of the way, rather than unexpected situations where whales 
are moving erratically and boaters find themselves in the path 
unexpectedly.
    Comment 6: Speed restriction. There were comments in support of 
codifying the current guideline, which suggests a speed of less than 7 
knots when within 400 yards (365.8 m) of the nearest whale. There was 
also support for go-slow zones in combination with or instead of the 
proposed no-go zone.
    Response: The draft EA concluded that risks of vessel strikes and 
acoustic masking would be reduced if vessels traveled at a slow speed 
within 400 yards (365.8 m) of the whales, consistent with the current 
guidelines. We have not included such a provision in the final 
regulation because it would be difficult to enforce. We will continue 
to work with partners on the Be Whale Wise campaign to promote a speed 
guideline and encourage voluntary compliance to reduce impacts from 
fast moving vessels in close proximity to the whales. We will also 
consider go-slow zones when we further evaluate a no-go zone as 
described above under Comment 4: No-go zone.
    Comment 7: Other suggested alternatives. Similar to comments we 
received in response to the ANPR, comments on the proposed rule 
included a variety of alternatives to the proposed regulations and the 
alternatives analyzed in the EA. The suggested alternatives included: 
Permit programs, stand-by zones, time limits for whale watching, time 
off from whale watching (days of the week or hours of the day), and a 
prohibition on whale watching during unsafe weather conditions. 
Comments suggesting variations on the alternatives fully analyzed have 
been addressed in Comments 3 through 6.
    Response: Some of the alternatives suggested during the public 
comment period on the proposed rule were similar to alternatives 
suggested in response to the ANPR and these were considered, but not 
fully analyzed in the draft EA. The comments on stand-by zones and 
prohibiting whale watching under certain weather conditions were two 
new suggestions which were not included in the draft EA. The two new 
alternatives have been included in the alternatives considered but not 
analyzed in detail in the final EA. There were several reasons why we 
did not fully analyze or further consider a number of the alternatives 
suggested in public comments, including difficulties in enforcing them, 
changes to infrastructure needed to implement them, or a lack of 
sufficient science to support them. Alternatives considered but not 
analyzed in detail in the final EA include: (1) Permit or certification 
program. A permit or certification program, including stand-by zones, 
was not fully analyzed because it would require a large infrastructure 
to administer, monitor and enforce. There would also be equity issues 
in determining who is permitted or certified and who is not. (2) 
Moratorium on vessel-based whale watching. A moratorium on all vessel-
based whale watching, or protected areas along all shorelines, would be 
challenging to enforce and are not supported by available scientific 
information. Both commercial and recreational vessels engage in a 
variety of wildlife and scenic viewing and other activities on the 
wat