[Federal Register Volume 72, Number 55 (Thursday, March 22, 2007)]
[Proposed Rules]
[Pages 13464-13467]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-5262]


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

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 216

[Docket No. 070125020-7020-01; I.D. 010907A]
RIN 0648-AV15


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

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Advance notice of proposed rulemaking.

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

SUMMARY: We, the National Marine Fisheries Service (NMFS), listed the 
Southern Resident killer whale distinct population segment (DPS) as 
endangered under the Endangered Species Act (ESA) on November 18, 2005. 
In the final rule announcing the listing, we identified vessel effects, 
including direct interference and sound, as a potential contributing 
factor in the recent decline of this population. Both the Marine Mammal 
Protection Act (MMPA) and the ESA prohibit take, including harassment, 
of killer whales, but these statutes do not prohibit specified acts. We 
are considering whether to propose regulations that would prohibit 
certain acts, under our general authorities under the ESA and MMPA and 
their implementing regulations. The Proposed Recovery Plan for Southern 
Resident killer whales (published November 29, 2006) includes as a 
management action the evaluation of current guidelines and the need for 
regulations and/or protected areas. The scope of this advance notice of 
proposed rulemaking (ANPR) encompasses the activities of any person or 
conveyance that may result in the unauthorized taking of killer whales 
and/or that may cause detrimental individual-level and population-level 
impacts. NMFS requests comments on whether--and if so, what type of--
conservation measures, regulations, or other measures would be 
appropriate to protect killer whales from the effects of these 
activities.

DATES: Comments must be received at the appropriate address (see 
ADDRESSES) no later than June 20, 2007. Public meetings have been 
scheduled for April 18, 2007, 2-4 p.m. in The Grange Hall, Friday 
Harbor, WA and April 19, 2007, 7-9 p.m. at the Seattle Aquarium, 
Seattle, WA. Requests for additional public meetings must be made in 
writing by April 23, 2007.

ADDRESSES: You may submit comments by any of the following methods:
     E-mail: [email protected].
     Federal e-rulemaking Portal: http://www.regulations.gov.
     Mail: Assistant Regional Administrator, Protected 
Resources Division, Northwest Regional Office, National Marine 
Fisheries Service, 7600 Sand Point Way NE, Seattle, WA 98115.

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

SUPPLEMENTARY INFORMATION:

Background

    Viewing wild marine mammals is a popular recreational activity for 
both tourists and locals. In Washington, killer whales (Orcinus orca) 
are the principal target species for the commercial whale watch 
industry--easily surpassing other species, such as gray whales 
(Eschrichtius robustus), porpoises, and pinnipeds (Hoyt, 2001). NMFS is 
concerned that some whale watch activities may cause unauthorized 
taking of killer whales or cause detrimental individual-level and 
population-level impacts.
    Killer whales in the eastern North Pacific have been classified 
into three forms, or ecotypes, termed residents, transients, and 
offshore whales. Resident killer whales in the North Pacific consist of 
the following groups: Southern, Northern, Southern Alaska (includes 
Southeast Alaska and Prince William Sound whales), Western Alaska, and 
Western North Pacific Residents. The Southern Resident killer whale 
population contains three pods--J pod, K pod, and L pod and was 
designated as a depleted stock under the MMPA and listed as endangered 
under the ESA.
    During the spring, summer, and fall, the Southern Residents' range 
includes the inland waterways of Puget Sound, Strait of Juan de Fuca, 
and Southern Strait of Georgia. Their occurrence in the coastal waters 
off Oregon, Washington, Vancouver Island, and more recently off the 
coast of central California in the south and off the Queen Charlotte 
Islands to the north has

[[Page 13465]]

been documented. Little is known about the winter movements and range 
of Southern Residents.
    Scientific studies have documented human disturbance of Southern 
Resident killer whales by vessels engaged in whale watching in the 
inland waters of Washington. 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; Foote et al., 2004; Bain et al., 2006), although it is not well 
understood whether it is the presence and activity of the vessel, the 
sounds the vessel makes, or a combination of these factors that 
disturbs the animals. Individual animals can react in a variety of 
different ways to whale watching, including swimming faster, adopting 
less predictable travel paths, making shorter or longer dive times, 
moving into open water, and altering normal patterns of behavior at the 
surface (Kruse, 1991; Williams et al., 2002a; Bain et al., 2006). High 
frequency sound generated from recreational and commercial vessels 
moving at high speed in the vicinity of whales may mask echolocation 
and other signals the species rely on for foraging, communication 
(Foote et al., 2004) and navigation.
    In rare instances, killer whales are injured or killed by 
collisions with passing ships and powerboats, primarily from being 
struck by the turning propeller blades (Visser, 1999c; Ford et al., 
2000; Visser and Fertl, 2000; Baird, 2001; Carretta et al., 2001, 
2004). Some animals with severe injuries eventually make full 
recoveries, such as a female described by Ford et al. (2000) that 
showed healed wounds extending almost to her backbone. One resident 
whale mortality from a vessel collision was previously reported for 
Washington and British Columbia from the 1960s to 1990s (Baird, 2002). 
However, two additional mortalities have recently been reported. In 
March of 2006 the lone Southern Resident killer whale, L98, residing in 
Nootka Sound for several years was killed by a tug boat. While L98 
exhibited unusual behavior and often interacted with vessels, his death 
demonstrates the risk of vessel accidents. In July 2006, the death of a 
stranded Northern Resident female was attributed to blunt trauma, 
probably from a vessel strike (M. Joyce, pers. comm.) Five additional 
accidents between vessels and killer whales have been documented in the 
region since the 1990s (Baird, 2001; DFO, unpubl. data, NMFS, unpubl. 
data). One took place on the Washington side of Haro Strait in 1998 and 
involved a slow moving boat that apparently did not injure the whale. 
In 1995, a Northern Resident was struck by a speedboat, causing a wound 
to the dorsal fin that quickly healed. Another Northern Resident was 
injured by a high-speed boat in 2003, but also recovered. A 2005 
collision of a Southern Resident with a commercial whale watch vessel 
resulted in a minor injury to the whale, which subsequently healed. An 
additional Northern Resident calf was struck by a vessel in July 2006.
    We are concerned about the potential for individual-level and 
population-level effects because of vessel activities. Vessel effects 
were identified as a factor in the ESA listing of the Southern 
Residents and are addressed in the recovery plan which is available on 
our web page at http://www.nwr.noaa.gov/. NMFS has received an 
increasing number of complaints from the public alleging that killer 
whales in the core summer area along the west side of San Juan Island 
are routinely being disturbed by people attempting to closely approach 
and interact with the whales by vessel (motor powered or kayak). 
Concerns have been expressed by the U.S. Marine Mammal Commission, as 
well as members of the scientific community, researchers, wildlife 
conservation organizations, and some commercial tour operators.

Current MMPA and ESA Prohibitions and NMFS Guidelines and Regulations

    The Marine Mammal Protection Act, 16 U.S.C. 1361 et seq., contains 
a general prohibition on take of marine mammals. Section 3(13) of the 
MMPA defines the term take as ``to harass, hunt, capture, or kill, or 
attempt to harass, hunt, capture, or kill any marine mammal.'' Except 
with respect to military readiness activities and certain scientific 
research activities, the MMPA defines the term harassment as ``any act 
of pursuit, torment, or annoyance which--(i) has the potential to 
injure a marine mammal or marine mammal stock in the wild, [Level A 
harassment]; or (ii) has the potential to disturb a marine mammal or 
marine mammal stock in the wild by causing disruption of behavioral 
patterns, including, but not limited to, migration, breathing, nursing, 
breeding, feeding, or sheltering [Level B harassment].''
    In addition, NMFS regulations implementing the MMPA further 
describe the term take to include: ``the negligent or intentional 
operation of an aircraft or vessel, or the doing of any other negligent 
or intentional act which results in disturbing or molesting a marine 
mammal; and feeding or attempting to feed a marine mammal in the wild'' 
(50 CFR 216.3).
    The MMPA provides limited exceptions to the prohibition on take for 
activities such as scientific research, public display, and incidental 
take in commercial fisheries. Such activities require a permit or 
authorization, which may be issued only after a thorough agency review.
    The ESA generally prohibits the taking of endangered species. The 
ESA defines take to mean ``harass, harm, pursue, hunt, shoot, wound, 
kill, trap, capture, or collect, or to attempt to engage in any such 
conduct.'' Both the ESA and MMPA require wildlife viewing to be 
conducted in a manner that does not cause take.
    NMFS has regulated close vessel approaches to large whales in 
Hawaii, Alaska, and the North Atlantic. In 1995, NMFS published a final 
rule to establish a 100-yard (91.4-m) approach limit for humpback 
whales in Hawaii (60 FR 3775, January 19, 1995). In 2001, NMFS 
published a final rule (66 FR 29502, May 31, 2001) to establish a 100-
yard (91.4-m) approach limit for humpback whales in Alaska that 
included a speed limit for when a vessel is near a whale. In 1997, an 
interim final rule was published to prohibit approaching critically 
endangered North Atlantic right whales closer than 500 yards (457.2 m) 
(62 FR 6729, February 13, 1997).
    In addition to these specific regulations, NMFS has provided 
general guidance for wildlife viewing that does not cause take. This is 
consistent with the philosophy of responsible wildlife viewing 
advocated by many federal and state agencies to unobtrusively observe 
the natural behavior of wild animals in their habitats without causing 
disturbance (see http://www.watchablewildlife.org/.
    Each of the six NMFS Regions has developed recommended viewing 
guidelines to educate the general public on how to responsibly view 
marine mammals in the wild and avoid causing a take. These guidelines 
are available on line at: http://www.nmfs.noaa.gov/prot_res/MMWatch/
MMViewing.html
    The ``Be Whale Wise'' guidelines developed for marine mammals by 
the NMFS Northwest Regional Office and partners are also available at: 
http://www.nwr.noaa.gov/Marine-Mammals/upload/BeWhaleWise.pdf
    Be Whale Wise is a transboundary effort to develop and revise 
guidelines for viewing marine wildlife. NMFS has partnered with 
commercial operators, whale advocacy groups, U.S. and Canadian 
government agencies and enforcement divisions over the past

[[Page 13466]]

several years to promote safe and responsible wildlife viewing 
practices through the development of outreach materials, training 
workshops, on-water education and public service announcements. The 
2006 version of the Be Whale Wise guidelines recommends that boaters 
parallel whales no closer than 100 yards (91.4 m), approach animals 
slowly from the side rather than from the front or rear, and avoid 
putting the vessel within 400 yards (365 m) in front of or behind the 
whales. Vessels are also recommended to reduce their speed to less than 
7 knots (13 km/h) within 400 meters of the whales, and to remain on the 
outer side of the whales near shore. Two voluntary no-boat areas off 
San Juan Island are recognized by San Juan County although this is 
separate from the Be Whale Wise guidelines. The first is a \1/2\-mile 
(800 m)-wide zone along a 3-km stretch of shore centered on the Lime 
Kiln lighthouse. The second is a 1/4-mile (400 m)-wide zone along much 
of the west coast of San Juan Island from Eagle Point to Mitchell 
Point. These areas were established to facilitate shore-based viewing 
and to reduce vessel presence in an area used by the whales for 
feeding, traveling, and resting.
    NMFS supports the Soundwatch program, an on-water stewardship and 
monitoring group, to promote the Be Whale Wise guidelines and monitor 
vessel activities in the vicinity of whales. Soundwatch reports (Koski, 
2004, 2006) characterize trends in incidents when the guidelines are 
not followed and there is the potential for disturbance of the whales. 
Incidents are frequently observed involving both recreational and 
commercial whale watching vessels. Soundwatch also serves as a crucial 
education component, providing information on the viewing guidelines to 
boaters that are approaching areas with whales.
    Despite the regulations, guidelines and outreach efforts, 
interactions between vessels and killer whales continue to occur in the 
waters of Puget Sound and the Georgia Basin. Advertisements on the 
Internet and in local media in the Pacific Northwest promote activities 
that appear inconsistent with what is recommended in the NMFS 
guidelines. NMFS has received letters from the Marine Mammal 
Commission, members of the scientific research community, environmental 
groups, and members of the general public expressing the view that some 
types of interactions with wild marine mammals have the potential to 
harass and/or disturb the animals by causing injury or disruption of 
normal behavior patterns. NMFS has also received inquiries from members 
of the public and commercial tour operators requesting clarification of 
NMFS' policy on these matters.
    In 2002, NMFS published an ANPR requesting comments from the public 
on what types of regulations and other measures would be appropriate to 
prevent harassment of marine mammals in the wild caused by human 
activities directed at the animals (67 FR 4379, January 30, 2002). The 
2002 ANPR was national in scope and covered all species of marine 
mammals under NMFS' jurisdiction (whales, dolphins, porpoises, seals 
and sea lions), and requested comments on ways to address concerns 
about the public and commercial operators closely approaching, swimming 
with, touching or otherwise interacting with marine mammals in the 
wild. Several potential options were proposed for consideration and 
comment, including: (1) codifying the current NMFS Regional marine 
mammal viewing guidelines into regulations; (2) codifying the 
guidelines into regulations with additional improvements; (3) 
establishing minimum approach regulations similar to the ones for 
humpback whales in Hawaii and Alaska and North Atlantic right whales; 
and (4) restricting activities of concern similar to the MMPA 
regulation prohibiting the public from feeding or attempting to feed 
wild marine mammals. The 2002 ANPR specifically mentioned the 
complaints received from researchers and members of the public 
concerning close vessel approaches to killer whales in the Northwest. 
Over 500 comments were received on the 2002 ANPR regarding human 
interactions with wild marine mammals in United States waters and along 
the nation's coastlines.

Request for Information and Comments

    NMFS is requesting information and comments on whether -- and if 
so, what type of -- conservation measures, regulations, or other 
measures would be appropriate to protect killer whales in inland waters 
of Washington from human activities that result in the unauthorized 
taking of killer whales and/or that may cause detrimental individual-
level and population-level impacts.
    NMFS has received input on potential measures to address vessel 
impacts during the ESA listing and recovery planning process. 
Suggestions included regulations governing all vessels (including 
aircraft) or only commercial whale watch vessels. Suggestions included 
a moratorium on all whale watching, prohibiting whale watching for one 
or more days per week, developing a permit program for commercial 
operators, and requiring whale watch vessels to purchase and install 
Vessel Monitoring System (VMS) equipment to allow for monitoring their 
activities. Based on the comments received, and the regulations 
implemented for other marine mammals, NMFS has developed a preliminary 
list of options for consideration and comment:
    Codify the current Be Whale Wise marine mammal viewing guidelines - 
Codifying the guidelines, in whole or in part, as regulations would 
make them requirements rather than recommendations, and would allow 
enforcement of these provisions and penalties for violations.
    Establish minimum approach rule - Similar to the minimum approach 
rules for humpback whales in Hawaii and Alaska, and right whales in the 
North Atlantic (50 CFR 224.103; 66 FR 29502, May 31, 2001), a limit 
could be established by regulation to accommodate killer whale viewing 
opportunities while minimizing the potential detrimental impacts from 
humans. If establishing a minimum approach rule is appropriate, then we 
would have to consider whether the current guideline of 100 yards 
(approximately 100 m) is appropriate for this regulation. We would 
consider exceptions for situations in which marine mammals approach 
vessels as well as other situations in which approach is not reasonably 
avoidable.
    Prohibit vessel activities of concern - The current guidelines 
address specific activities of concern. A regulation could prohibit 
vessel operators from engaging in these activities or others of 
concern. Activities of concern include using vessels to herd whales, 
surrounding whales or otherwise preventing a reasonable means of 
escape, leapfrogging whales or positioning a vessel in their 
predictable path, separating calves from attending adults, approaching 
whales at or above specified speeds, or running a vessel through a 
group of whales.
    Establish time-area closures - Similar to the prohibitions used to 
protect fish stocks or habitat, we could establish a regulation 
restricting human access to specific areas. These restrictions could 
restrict all human entry to the area or restrict only specified acts 
within an area; they could be full-time or limited to certain seasons 
when killer whales are likely to be present; or a closure could be any 
combination of the above.
    Operator permit or certification program - We could adopt approach 
rules or establish closed areas that applied to all vessels except 
those

[[Page 13467]]

operated under a whale watching permit or certification. Issuance of a 
permit or certification could be based on the operator's knowledge of 
whale behavior and proper procedures for operating vessels around 
whales. A permit or certification could allow the whale watch operator 
to get closer to the whales than those who do not have one. For 
example, a general approach limit of 200 m could be implemented for all 
non-permitted or uncertified operators, and only operators who are 
permitted or certified would be allowed to approach to 100 m of the 
whales. Sanctions, up to and including loss of permit or certification 
for noncompliance with applicable regulations, would be possible. The 
issuance of permits or certifications could be directly related to an 
assessment of the appropriate level of whale watching in Puget Sound. 
This would require us to evaluate the current level of whale watching 
effort and limit the maximum number of vessels that can be engaged in 
whale watching activity. The limit could be adjusted based on 
monitoring and ongoing evaluation of what is appropriate to protect the 
whales.
    We recognize that the most appropriate regulations may be some 
combination of the above measures, or that additional possibilities may 
exist.
    Regulations adopted under the MMPA could apply to all three killer 
whale ecotypes - residents, transients, and offshores. To the average 
wildlife viewer, these whales are difficult to differentiate between 
visually, and all three could potentially be found in the inland waters 
of Washington State where whale watching occurs.
    The geographic scope of regulations, if proposed, would likely be 
the inland waters of the State of Washington, since this is where 
vessel interactions are concentrated. The coastal waters off Washington 
and Oregon do not currently have a significant level of documented 
vessel interactions, and the small number of killer whale sightings in 
these areas makes it unlikely that they will develop whale watching 
operations at significant levels in the future.
    NMFS invites information and comment from the public on the 
advisability of regulations, on the above options, and on other 
possible measures that will help the agency decide what type of 
regulations, if any, would be most appropriate to consider for 
protecting killer whales in the Pacific Northwest. In particular, we 
are seeking information and comments concerning:
    (1) The advisability of and need for regulations;
    (2) The geographic scope of regulations;
    (3) Management options for regulating vessel interactions with 
killer whales, including but not limited to the options listed in this 
notice;
    (4) Scientific and commercial information regarding the effects of 
vessels on killer whales and their habitat;
    (5) Information regarding potential economic effects of regulating 
vessel interactions; and
    (6) Any additional relevant information that NMFS should consider 
should it undertake rulemaking.
    You may submit information and comments concerning this ANPR by any 
one of several methods (see ADDRESSES). Materials related to this 
notice can be found on the NMFS Northwest Region Web site at http://www.nwr.noaa.gov/. We will consider all comments and information 
received during the comment period in preparing a proposed rule.

References Cited

    A complete list of all references cited in this advanced notice of 
proposed rulemaking can be found on our Web site at http://www.nwr.noaa.gov/ and is available upon request from the NMFS office in 
Seattle, Washington (see ADDRESSES).

Public Hearings

    Based on the level of interest in killer whales and whale watching, 
public meetings have been scheduled for April 18, 2007, 2-4 p.m. in The 
Grange Hall, Friday Harbor, WA and April 19, 2007, 7-9 p.m. at the 
Seattle Aquarium, Seattle, WA. Requests for additional public hearings 
or special accommodations must be made in writing (see ADDRESSES) by 
April 23, 2007.

Classification

    This ANPR was determined to be significant for purposes of E.O. 
12866.

    Dated: March 15, 2007.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. E7-5262 Filed 3-21-07; 8:45 am]
BILLING CODE 3510-22-S