[Federal Register Volume 76, Number 72 (Thursday, April 14, 2011)]
[Rules and Regulations]
[Pages 20870-20890]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-9034]
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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.
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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 http://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 http://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 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.htm. The ``Be Whale Wise'' guidelines developed for marine
mammals by the NMFS Northwest Regional Office and partners are also
available at: http://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: http://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
water and it would be difficult to determine at what point they were
engaged in prohibited whale watching. (3) Shipping lane or vessel noise
regulations. Regulatory options, such as rerouting shipping lanes or
imposing noise level standards would have large
[[Page 20879]]
economic impacts and unnecessarily restrict some types of vessels
rarely in close proximity to the whales. (4) Time limits. It would be
difficult to determine when vessels were engaged in whale watching to
enforce limits on viewing time, such as the 30 minute limit suggested
in the Be Whale Wise guidelines or a time of day restriction on whale
watching. (5) Aircraft regulations. Aircraft regulations are beyond the
scope of minimizing impacts from vessels as identified in the EA. (6)
No whale watching during poor weather conditions. It would be difficult
to educate recreational boaters regarding specific weather conditions
and when they could or could not watch whales and what vessel
activities constitute ``whale watching.'' There is currently no
infrastructure to monitor weather conditions with respect to whale
watching and to broadcast the information to alert boaters that
particular weather conditions in a certain area trigger a prohibition
on whale watching.
Comment 8: Scope and Applicability. NMFS received a variety of
comments on the scope and applicability of the regulations including
the geographic area, the species covered by the regulation and the
types of vessels subject to the regulations. Several commenters
suggested applying the proposed regulations throughout the range of the
Southern Resident killer whales, rather than limiting the scope to
inland waters of Washington. Other comments supported regulations that
would apply to other species of whales and marine mammals in addition
to killer whales. We received many comments on the types of vessels to
which the regulations should apply. Commenters suggested that the
regulations should only apply to whale watching vessels and that the
regulations should not apply to kayaks. Commenters also identified
additional exceptions for certain vessels and these are addressed below
under Comment 9: Exceptions.
Response: Establishing regulations in coastal waters is an
alternative that was considered, but not fully analyzed in the final
EA. Most whale watching occurs in inland waters of Washington, with
whale watching vessels originating from nearby ports in the United
States and Canada. The presence of Southern Residents and other killer
whales in inland waters is predictable and reliable, which is the basis
for the success of the local commercial whale watch industry. The
presence of the whales and proximity of the whale watching industry in
inland waters of Washington concentrates whale watch activity in
particular areas. Monitoring groups report a high number of incidents
of vessels not following the current viewing guidelines in these
waters, particularly along the west side of San Juan Island. There are
no monitoring groups observing whale watching activities with killer
whales in coastal waters, nor does there appear to be extensive whale
watching activity in coastal waters, as we have limited sightings of
the whales along the coast, and their presence is not reliable enough
to support an active killer whale watching industry. If new information
in the future indicates that whale watching poses a threat to the
whales in coastal waters, we will consider the need for additional
protections.
The final vessel regulation applies to all killer whales. It would
be difficult for boaters, especially recreational boaters without
expertise and experience with killer whales, to identify Southern
Residents 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
to all killer whales in inland waters of Washington is appropriate
under the MMPA. Including other whale or marine mammal species is
outside the scope of this regulation, which is focused on protecting
killer whales and, in particular, supporting recovery of endangered
Southern Resident killer whales. Wildlife viewing in inland waters of
Washington targets Southern Resident killer whales and while other
marine mammal species are the subject of opportunistic viewing,
particularly when killer whales are not present, vessel impacts have
not been identified as a major threat for other marine mammals in
inland waters of Washington. While the regulations do not apply to
other marine species, we anticipate that other species may benefit as
boaters aware of the regulations may be more likely to know about their
potential impacts and keep their distance from all wildlife.
The regulations are designed to reduce the impact from vessels
including the risk of vessel strikes, behavioral disturbance, and
acoustic masking. Available data on vessel activities indicates that
private and commercial whale watch vessels are most often in close
proximity to the whales, and that other vessels such as government
vessels, commercial and tribal fishing boats, cargo ships, tankers, tug
boats, and ferries represent a small proportion (typically 5-7 percent
in most years) of the vessels that are within one-quarter mile of the
whales. Although not the primary focus of the regulations, vessels
conducting activities other than whale watching (i.e., transport,
fishing, etc.) can impact the whales and are also subject to the
regulations with some exceptions (i.e., shipping lanes, safety).
Because these vessels do not target the whales and are not often in
close proximity, NMFS expects the impacts from adjusting course to
avoid getting within 200 yards (182.9 m) of the whales or to stay out
of their path will be minimal. We have not included exemptions for
Washington State Ferries or vessels associated with oil spill
preparedness or training based on the expectation that the vessels will
rarely have to adjust their course to comply with the regulations and
that the adjustments will be relatively easy to achieve, short-term and
minimal. For example, Washington State Ferries already adhere to the
100-yard (91.4 m) guideline and should similarly be able to adhere to a
200-yard (182.9 m) regulation.
Several commenters stated that kayaks do not disturb whales and
should be exempt from the regulations. While kayaks are small and
quiet, they have the potential to disturb whales as obstacles on the
surface. 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). New information collected and analyzed in 2010
provides a better assessment of the potential for kayak disturbance and
the cumulative effects of large numbers of kayaks in the vicinity of
the whales.
For the summer of 2010, Soundwatch's Kayak Education and Leadership
Program (KELP), San Juan County Parks, and the San Juan Island Kayak
Association worked together to update and refine a Kayaker Code of
Conduct as part of KELP. In 2010, the San Juan County Park implemented
a required launch permit for boaters using the park boat launch. Before
boaters could obtain a permit, they had to attend a required Code of
Conduct Training conducted by KELP educators. Commercial operators were
required to have all their guides trained by KELP educators and have
their guests sign statements acknowledging that they had been trained
on the Code of Conduct by
[[Page 20880]]
their guides. The code of conduct includes information about the
Washington State law prohibiting approach within 100 yards (91.4 m) of
Southern Resident killer whales, the Be Whale Wise guidelines, and
additional guidelines such as staying close together (rafting) when
whales approach, avoiding stopping at headlands to remain out of the
whales path, stopping paddling if whales are within 100 yards (91.4 m)
(91.4 meters), and suggestions for assessing their position and
remaining outside of the path of the whales by moving offshore or
inshore.
In addition to providing the guidelines and training for kayakers
through the KELP education program, Soundwatch also monitored kayak
activity and compliance of kayakers with the recommendations in the
code of conduct to augment the Soundwatch vessel monitoring program.
From June through September 2010, 594 total incidents were observed (66
percent commercial and 28 percent private) when kayakers did not follow
all guidelines, with 171 incidents when kayaks were within 100 yards
(91.4 m) of the whales. The most common incidents were kayaks not
rafted, parked on headland or within kelp bed, parked in the path of
whales and stopped within 100 yards (91.4 m) of whales (Koski 2010b).
Williams et al. (2010) analyzed impacts of kayaks on Northern
Resident killer whales and reported that kayaks can have a significant
impact on killer whale behavior. Killer whales exhibited increased
probability of traveling behavior, which indicates an avoidance tactic,
and decreased feeding activities when kayaks were present (Williams et
al. 2010). For additional information on the scientific assessment of
kayak impacts on killer whales see Comment 10: Scientific basis for
regulations. Based on the best available information, the final
regulations will apply to all vessels including kayaks to reduce
impacts to the whales.
Comment 9: Exceptions. Commenters provided a range of suggestions
for additional exceptions (i.e., kayaks and sail boats, Washington
State Ferries, all vessels except whale watching) and expressed
disagreement with some of the exceptions in the proposed rule (vessels
actively engaged in fishing). Almost all of these comments were
specific to the proposed no-go zone. An exception for kayaks to all
regulations is discussed under Comment 8: Scope and Applicability.
Several commenters suggested wording changes regarding the exception
for ships in the shipping lanes and their support vessels, and the
exception for vessels actively engaged in fishing activities, and other
suggested exempting ferries and vessel engaged in oil spill
preparedness and training.
Response: Almost all of the suggestions for additional exceptions
or fewer exceptions to the rule were specific to the no-go zone. While
the no-go zone is not part of this final rule, NMFS will consider the
information on exceptions and other aspects of a no-go zone (see
Comment 4: No-go zone) and respond at a later date. NMFS has made
changes to the description of the exception for vessels in the
established shipping lanes, known as the Traffic Separation Scheme, to
clarify when and how it applies to certain vessels. NMFS has also
amended the language regarding exceptions for vessels actively engaged
in fishing to include transfer of catch, however, vessels transiting to
or from or scouting fishing areas are not exempt from the regulations.
We expect impacts to these activities associated with fishing to occur
in close proximity to whales only rarely and expect any impacts from
changing course to maintain 200 yards (182.9 m) or to stay out of the
whales' path to be minimal (IEC 2010).
Ferries and vessels associated with oil spill preparedness and
training do not target the whales and are not often in close proximity,
therefore, NMFS expects the impacts from adjusting course to avoid
getting within 200 yards (182.9 m) of the whales and to stay out of
their path on rare occasions will be minimal. We have not included
exemptions for Washington State Ferries or vessels associated with oil
spill preparedness or training based on the expectation that these
vessels will rarely have to adjust their course to comply with the
regulations and that the adjustments will be relatively easy to
achieve, minimal and short-term. For example, Washington State Ferries
already adhere to the 100-yard (91.4 m) guideline and should similarly
be able to adhere to a 200-yard (182.9 m) regulation. Support vessels
associated with booming activities required for fuel transfer or
emergency pollution response would be exempt from the regulations based
on the exemption for safe operation; we amended the safety exception to
include these vessels.
Comment 10: Scientific basis for regulations. Commenters raised
questions about the scientific information used to support the vessel
regulations. Scientific information on the vessel impacts to whales was
called biased, inconclusive, questionable, or wrong. Commenters placed
a higher value on their personal observations than on the results from
published studies and asserted that they have not seen the whales
changing their behavior in response to vessels. Commenters raised
concerns that scientists conducting scientific studies on killer whale
were biased against the whale watch industry. Some commenters
highlighted that results were not conclusive and challenged the
interpretation of specific research results, questioning that increased
energy expenditure form avoiding vessels or engaging in high energy
surface active behaviors, like breaching and tail slapping, would
result in a negative impact on the whales. Other commenters questioned
the use of models to estimate the potential impact of vessel sound on
the whales' ability to use echolocation to find prey in their habitat.
Several commenters questioned the science used to demonstrate the
potential for kayaks to impact killer whales primarily because it
referred to studies on species other than killer whales in other
geographic locations.
Response: NMFS relied on the best available data to develop the
proposed and final regulations. The majority of the information came
from peer reviewed scientific publications. To a lesser extent,
unpublished data, personal accounts and other anecdotal information
also informed development of the regulations. We gave greater weight to
sound peer reviewed studies published in scientific journals than to
personal observation and interpretation. These scientific studies use
established scientific methods, test hypotheses, employ statistical
analysis, and have been peer reviewed and published in scientific
journals. These steps in the scientific process reduce the potential
for bias in results. We reviewed all of the best available information
from multiple independent scientists which also limits the concerns
about potential bias related to one individual researcher.
Several independent scientists have reported behavioral changes in
whale swimming patterns, changes in respiratory patterns, reduced time
spent foraging/feeding, and increased surface active behaviors in the
presence of vessels. These studies provide multiple lines of evidence
regarding the nature and degree of vessel impacts on the behavior of
killer whales. The data from these studies have been rigorously
analyzed and the results are statistically significant. Some of the
reported behavioral changes may not be obvious to casual observers.
We acknowledge that there is some uncertainty involved in
interpretation of the results in the peer reviewed published papers.
While we evaluated the quality, applicability and
[[Page 20881]]
uncertainty in the scientific information, we also relied on a
conservative approach in weighing the severity and likelihood of
impacts from vessels in light of the whales' status as an endangered
species. The Noren et al. (2009) study reported increased energetically
expensive surface active behaviors in the presence of vessels, and we
considered the uncertainty regarding the conclusions. For example, the
function of surface active behaviors is not known for certain. Noren et
al. (2009) suggest these behaviors may serve a role in communication to
promote group coordination, while several commenters speculated that it
was play or that the whales enjoyed showing off for whale watch boats.
Noren et al. (2009) also acknowledged uncertainty based on the limits
of the study to provide details on all of the variables that determine
whether vessel presence elicits a response in the whales. Even with the
uncertainty about the function of the behaviors and some of the
conclusions, we did consider the increased energy expenditure as an
important result. We were conservative in assuming that increased
energy expenditure likely has a negative impact on the whales,
particularly in light of the concerns regarding reduced prey for the
whales and other studies that found short-term behavioral responses can
have long-term consequences for individuals and populations (Lusseau
and Bejder 2007).
With field studies of wild animals there will always be some
uncertainties because it is not possible to control for all of the
variables. In addition, there are some hypotheses that cannot be tested
with wild animals in the field. We routinely use models with inherent
assumptions to help fill these data gaps and inform our decisions. For
example, there is no direct data to measure a reduction in the
efficiency of echolocation in the presence of vessel sound. Instead, we
relied on a model created to estimate the vessel sound under varying
conditions and calculate a reduction in echolocation efficiency. This
model is based on data collected on the whales' hearing capabilities,
sound recordings of vessels, sound propagation models, and some
assumptions about the whales' ability to detect a salmon in the water
column. We believe these assumptions are justified by the available
information.
In the case of assessing the impact of kayaks on killer whales, we
relied on studies done on similar species in other locations and
research results that indicated trends, but were not conclusive.
Several commenters questioned our reliance on studies of the effects of
kayaks on dolphins to support a conclusion that kayaks have the
potential to disturb killer whales. Although we believe the dolphin
studies give insight into effects on killer whales (the largest member
of the dolphin family), in response to these comments, we secured
additional analysis of available data on Northern Resident killer
whales. Williams et al. (2010) assessed the effects of kayak presence
on Northern Resident killer whales and reported that kayaks can have a
significant impact on killer whale behavior. In previous studies,
Williams et al. (2006) reported changes to killer whale behavior from
boat presence, pooling kayaks and motorized vessels together. In their
recent study, the presence of both types of vessels was analyzed
separately for data from 1995-2004. In the presence of only kayaks, the
probability that the whales will shift to travel behavior from other
behavior states (including feeding) significantly increased compared to
situations with no vessels present, which indicates an avoidance
tactic. As a result, the whales spent significantly more time traveling
when in the presence of kayaks than they did under no-boat conditions
(11 percent increase in time spent traveling). Consistent with previous
studies, killer whales significantly reduced overall time spent feeding
in the presence of kayaks and powerboats compared to no-boat conditions
(30 percent decrease in time spent feeding). With respect to both
kayaks and motorized vessels, the duration of feeding decreased and the
overall proportion of time spent feeding decreased when vessels were
present, regardless of the type of vessel. One model suggested that the
effect of kayaks on feeding activity was perhaps less pronounced than
the effect of powerboats on feeding activity. The types of effects
vessels have on foraging activities seem to be similar whether the
boats involved are kayaks or other types of vessels, but the whales may
use different avoidance tactics to deal with the two types of vessels
(Williams et al. 2010).
Comment 11: Economic analysis. Comments from individuals,
commercial whale watch and other industry associations focused on the
economic analysis and disagreed with some conclusions in the EA.
Commenters believed that NMFS did not adequately evaluate potential
economic impacts from new vessel regulations to whale watching
businesses, kayak companies, recreational and commercial fishing
communities, and the local economy in the San Juan Islands. In
addition, several people providing oral comments were concerned that
the economic analysis was conducted by a contractor outside of the
Puget Sound area. Other commenters suggested that the proposed
regulations would have a positive economic impact by protecting the
whales, which draw large numbers of people to the area.
Response: In comments on the ANPR and on the proposed rule, whale
watch operators expressed concerns regarding the economic impacts to
their business from reduced participation in commercial whale watch
trips conducted at 200 yards (182.9 m) from the whales. In the Pacific
Whale Watch Association comments on the proposed rule, they suggested
that at least one company would go out of business and estimated a 30
percent reduction in the number of companies participating in the
industry over three years and a drop in revenue for the remaining 70
percent. No commenters provided data to support this assertion. The
comments summarized information from informal surveys of customers
indicating that they would not book a trip if they would be watching
from 200 yards (182.9 m). The whale watch association also asserted
that one of their most frequently asked questions is ``How close can we
get?'' and 5 percent of bookings are lost when they answer ``100 yards
(91.4 m).'' In the comments, the whale watch association acknowledged
that their informal communications with customers were admittedly not
``scientifically accurate surveys''. The information from the informal
customer surveys also contradicts information from published, peer
reviewed, scientifically conducted surveys about the important features
of trips for customers. Our analysis of the likely impacts to the whale
watch industry relied on the published, peer reviewed, and
scientifically conducted surveys using accepted statistical methods
rather than the anecdotal information provided by the industry. As part
of implementation of new regulations, NMFS will monitor to evaluate
effectiveness of the regulations, as well as identify any unanticipated
impacts in order to inform adaptive changes to the regulation.
To analyze economic impacts of alternative regulations, NMFS
contracted with Industrial Economics, Incorporated (IEC), which has its
headquarters in Massachusetts. IEC also has employees located in the
Pacific Northwest. IEC has extensive expertise conducting economic
analyses regarding actions taking place in Washington State waters,
including Puget Sound. IEC has
[[Page 20882]]
gathered data and worked on multiple projects in the area, including
salmon and killer whale critical habitat designations. In response to
concerns raised in public comments about IEC's lack of local knowledge,
IEC identified local economics experts from the University of
Washington to review the draft economics analysis, help identify
additional data, and contribute to the final economic analysis. The
local economics experts reviewed the data sources, analysis methods,
and assumptions about the study area. They supported the data and
methods used. The local experts provided suggestions for clarifications
of some assumptions, more detailed descriptions of data sources and
methods, and inclusion of additional information on the positive
impacts of protecting the whales (i.e., existence values.) They did not
identify any additional data sources to inform the analysis. IEC
incorporated the results of this additional local review into the final
economic analysis.
The economic analysis considers the potential that the Southern
Resident killer whales could go extinct without regulatory protection
and, therefore, reduce the value of the whale watching industry and
contributions to the local economy. The economic analysis also
indicates that the continued existence of rare species, including
marine mammals, has a broad-based economic benefit separate from the
viability of the whale-watching industry. 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).
Comment 12: Legal issues. Several comments included concerns
regarding the legality of NMFS regulating vessel traffic in the
transboundary area of Haro Strait with respect to the Treaty of 1846
between the United States and the United Kingdom [Canada] regarding
maritime boundaries and rights of navigation. There were also comments
suggesting that all whale watching activity is illegal because it
involves ``pursuit,'' which is prohibited under the Endangered Species
Act. Some comments also questioned our compliance with Executive Order
12866 and the Regulatory Flexibility Act.
Response: Neither the proposed nor the final regulations violate
the 1846 Treaty. NMFS has the authority to establish vessel regulations
(including the proposed no-go zone) to protect killer whales from
vessels in United States waters and related activities under various
domestic laws including the Endangered Species Act (ESA) and the Marine
Mammal Protection Act (MMPA). Both the proposed and the final vessel
regulations are reasonable and consistent with a coastal nation's
ability to regulate the navigation of vessels in its territorial seas
and internal waters under international law.
The ESA prohibits the ``take'' of endangered species, which it
defines to mean ``harass, harm, pursue, hunt, shoot, wound, kill, trap,
capture or collect, or to attempt to engage in any such conduct.'' The
statute does not define the term ``pursue'' nor have we adopted
regulations defining pursuit. Under both the ESA and MMPA, there are no
exceptions to the take prohibition for whale watching; therefore
wildlife viewing must be conducted in a manner that does not cause
take. To promote responsible and sustainable marine animal viewing that
avoids take, NMFS has worked with a variety of whale watch industries
in multiple regions to develop numerous education programs, viewing
guidelines and regulations. The agency believes that whale watching
enhances marine mammal conservation by increasing education and
fostering stewardship. The Recovery Plan for Southern Resident killer
whales describes the educational benefits of whale watching and
identifies actions such as supporting naturalist trainings (NMFS 2008).
This is also the case for other species. The Recovery Plan for North
Atlantic Right Whales includes a section on whale watching and includes
actions regarding educating vessel operators about regulations and
guidelines as well as training whale watch naturalists and including
conservation messages to whale watchers (NMFS 2005). For this reason,
we have not sought to curtail responsible viewing by applying an
expansive interpretation to the prohibition on ``pursuit.'' For
additional information on NMFS' nationwide efforts to promote
responsible wildlife viewing, please visit http://www.nmfs.noaa.gov/pr/education/viewing.htm.
We conducted a Regulatory Impact Review/Regulatory Impact
Assessment (RIR/RIA) in accordance with Executive Order 12866 and the
Regulatory Flexibility Act. We incorporate this assessment and the
Final Regulatory Flexibility Analysis into the final EA as Chapter 6.
The RIR/RIA summarizes the costs and benefits of alternative
regulations, including the No-action Alternative of not promulgating
regulations. The final EA, including RIR/RIA analysis, and separate
economic analysis (IEC 2010) contain all the elements required of a
RIR/RIA. The RIR/RIA also serves as a basis for our determination on
whether the proposed action is a ``significant regulatory action''
under the criteria provided in Executive Order 12866.
Comment 13: NMFS should address other threats. Many oral and public
comments cited the threats of pollution and contamination and
insufficient salmon prey for the whales. A small number of comments
raised concerns about use of Navy sonar. Some commenters suggested we
should focus on these threats rather than vessel regulations, while
other commenters supported the regulations and encouraged NMFS to also
address the other threats.
Response: Promulgation of vessel regulations to protect Southern
Resident killer whales is just one part of a comprehensive recovery
program to address all of the major threats to the whales. The Recovery
Plan for Southern Resident Killer Whales includes actions to address
each of the threats and there are many ongoing efforts in the region to
restore depleted salmon populations, clean up the Puget Sound
ecosystem, develop a response plan for oil spills, use existing MMPA
and ESA mechanisms to address sounds like Navy sonar, conduct education
and outreach activities, and implement other actions in the plan (NMFS
2008). For more information on implementation of the recovery plan,
please visit http://www.nwr.noaa.gov/Marine-Mammals/Whales-Dolphins-Porpoise/Killer-Whales/Recovery-Implement/index.cfm. For specific
information on salmon recovery, please visit http://www.salmonrecovery.gov and for more information on efforts to address
pollution and contaminants, please visit http://www.psp.wa.gov/. To the
extent that actions authorized, funded, or carried out by a Federal
agency may affect species listed under the ESA, the agency is required
to consult with NMFS pursuant to ESA section 7, 16 U.S.C. 1536, and its
implementing regulations.
Comment 14: Education about regulations. A number of commenters
suggested that for new regulations to be effective it was essential to
have a strong educational component.
Response: We agree that educating the public and industry is
essential to promote compliance with any new regulations and achieve a
reduction in vessel impacts to the whales. We recognize that adopting
regulations that are different from the current voluntary
[[Page 20883]]
guidelines and State law may present some challenges. The new
regulations, however, are largely extensions or expansions of the
existing guidelines and Washington law. Additionally, the current
infrastructure 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. We have developed an implementation plan for
the new regulations that includes an active education program with our
many partners including WDFW, the U.S. Coast Guard, Soundwatch,
Straitwatch, and the Department of Fisheries and Oceans Canada. As part
of an education program we will continue to work with partners on
guidelines for safe operating procedures in the vicinity of whales.
Comment 15: Enforcement. Many commenters stressed the importance of
enforcement for any new regulations to be effective. While some
comments suggested that enforcing current guidelines and the state law
would be sufficient to protect the whales, others supported the
proposed regulations if there were sufficient resources to enforce new
regulations.
Response: We agree that enforcement is essential to promote
compliance with any new regulations and achieve a reduction in vessel
impacts to the whales. Vessel operators are more likely to adhere to
mandatory specific regulations than to the current voluntary
guidelines. This likelihood for any particular rule would be affected
by the clarity of the rules, motivations to comply, and the level of
monitoring and enforcement. It is reasonable to assume that commercial
operators would know about mandatory regulations, for the same reasons
that they are familiar with the current specific voluntary guidelines,
and would have strong incentives to comply to protect their business
reputation. Recreational boaters are also more likely to comply with
mandatory regulations, although they may be less likely to know the
details of mandatory regulations than are commercial operators.
Regulations with specific distances to the whales provide new tools for
enforcement, so that cases are more straightforward and based on an
objective criteria, like distance, rather than demonstrating changes in
the behavior of the whales with respect to a specific action. Distance
regulations are in place for other marine mammals and the NOAA Office
for Law Enforcement has experience enforcing this type of regulations.
In general, promulgation of specific mandatory regulations is likely to
increase enforcement capability and compliance, which will result in
fewer incidents between vessels and whales than occurs under the
current regime. We have developed an implementation plan for the new
regulations that includes an active education program with our many
partners including WDFW, the U.S. Coast Guard, Soundwatch, Straitwatch,
and the Department of Fisheries and Oceans Canada. See above Comment 1:
Mandatory regulations versus voluntary guidelines and Comment 2:
Enforce state law and maintain current guidelines, for additional
information describing the current guidelines and regulations and our
determination regarding the need for these new Federal regulations to
protect the whales.
Comment 16: Monitoring effectiveness of regulations. Several
commenters who supported the vessel regulations suggested that
monitoring the effectiveness of regulations would be an important step
to assess compliance and the benefit to the whales and identify and
needed changes in the future. Several commenters expressed concern
about the regulations, but were more supportive if there was a periodic
review in place to evaluate the regulations.
Response: We agree that monitoring effectiveness of the regulations
is an important part of an adaptive management process to ensure the
regulations are effective in protecting the whales and to identify any
unforeseen impacts to local communities. The success of a regulatory
program to address vessel impacts is vital to recovery of the Southern
Resident killer whales. Therefore, we will monitor the effectiveness of
the final regulations and consider altering the measures or
implementing additional measures if appropriate. We will continue to
collect data on vessel activities in the vicinity of the whales to
assess the anticipated increase in compliance with mandatory
regulations and reduction in impacts to the whales. As described above
(see Comment 3: Approach regulation, Comment 4: No-go zone, and Comment
11: Economic analysis) we will also continue to gather information and
further consider the proposed no-go zone as an additional measure to
protect the whales.
Comment 17: Consistent regulations in the United States and Canada.
Several commenters supported consistent regulations in both United
States and Canadian waters to assist with educating boaters and provide
adequate protection for the whales.
Response: Southern and Northern Resident killer whales are listed
as endangered and threatened, respectively, under the Species at Risk
Act in Canada. We have coordinated for several years with the Canadian
Department of Fisheries and Oceans to develop consistent guidelines for
boaters operating in the waters of both countries. We will continue
coordinating on guidelines and provide support for any efforts in
Canada to also consider 200-yard (182.9 m) approach guidelines or
regulations to maintain consistency and provide a benefit to the
whales. Even without similar regulations in Canada, this rulemaking
will provide substantial benefits to the Southern Residents because the
whales spend considerable time in United States waters.
Comment 18: Technical changes. Several commenters including the
U.S. Coast Guard suggested technical wording changes to ensure accuracy
with other regulations or improve clarity of the rule.
Response: NMFS agreed with a number of the suggestions for small
technical changes and made appropriate changes to the final rule and EA
to ensure accuracy and improve clarity. In some cases we eliminated
wording to simplify the regulations, such as removing the second
sentence describing the 200-yard (182.9 m) approach prohibition.
Final 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 (See Need for New Regulations). These regulatory
measures are designed to protect killer whales from vessel impacts and
will support recovery of Southern Resident killer whales. We are
issuing 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 final 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 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).
As part of the rulemaking process, we first published an ANPR and
then a proposed rule that included proposed
[[Page 20884]]
regulations with three elements 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. Based on
public comments we are issuing final regulations with only two of the
elements that were in the proposed rule.
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.
The following sections pertain to the final regulations prohibiting
motorized, non-motorized, and self-propelled vessels in inland waters
of Washington from: (1) Causing a vessel to approach, in any manner,
within 200 yards (182.9 m) of any killer whale, and (2) intercepting
the path of any killer whale in inland waters of Washington. Below we
describe the scope and applicability, requirements and rationale for
the final regulations.
Scope and Applicability
Application to All Killer Whales: Under the MMPA and ESA the final
regulations will 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. 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. Providing protection for all killer whales is a
practical consideration because boaters cannot tell different types of
killer whales apart and will also reduce the risk of disturbance or
injury for all types of killer whales which is consistent with the
purpose of the MMPA.
Geographic Area: Regulations will apply to vessels in inland waters
of Washington under U. S. 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). These regulations will apply to an
area similar to designated critical habitat, including inland waters of
the United States 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./
Canada international boundary. The shoreline boundary is the charted
mean high water line cutting across the mouths of all rivers and
streams.
Vessels Subject to Final Rule: The regulations apply to all
motorized and non-motorized vessels in the inland waters of the United
States described above. All vessels in U.S. waters, including foreign
flag vessels, and persons not citizens of the United States are subject
to the jurisdiction of the United States to the extent consistent with
recognized principles of international law, including treaties and
international agreements to which the United States is signatory.
Commercial and recreational whale watch vessels include both motorized
and non-motorized vessels (i.e., kayaks and sail boats), both of which
can cause disturbances to whales. While kayaks are small and quiet,
they have the potential to disturb whales as obstacles on the surface.
Kayaks may startle marine mammals by approaching them without being
heard (Mathews 2000). Data indicate that substantial numbers of
kayakers failed to follow existing voluntary guidelines, and in a study
of sea lions, Mathews (2000) found that kayakers were significantly
more likely to approach wildlife closely. Kayakers may approach
wildlife more closely because they may be more apt to overestimate
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, 2009).
In response to public comments regarding our reliance on studies of
kayak impacts involving other species, NMFS secured additional analysis
of available data on Northern Resident killer whales and behavioral
responses to kayaks. Williams et al. (2010) analyzed the effects of
kayak presence on Northern Resident killer whales and reported that
kayaks can have a significant impact on killer whale behavior. In
previous studies, Williams et al. (2006) reported changes to killer
whale behavior from boat presence, pooling kayaks and motorized vessels
together. In their recent study, the presence of both types of vessels
was analyzed separately for data from 1995-2004. In the presence of
only kayaks, the probability that the whales will shift to travel
behavior from other behavior states (including feeding) significantly
increased compared to no-boat conditions, which indicates an avoidance
tactic. As a result, the whales spent significantly more time traveling
when in the presence of kayaks than they did under no-boat conditions
(11 percent increase in time spent traveling). Consistent with previous
studies, killer whales significantly reduced overall time spent feeding
in the presence of kayaks and powerboats compared to no-boat conditions
(30 percent decrease in time spent feeding). With respect to both
kayaks and motorized vessels, the duration of feeding decreased and the
overall proportion of time spent feeding decreased when vessels were
present, regardless of the type of vessel. One model suggested that the
effect of kayaks on feeding activity was perhaps less pronounced than
the effect of
[[Page 20885]]
powerboats on feeding activity. The types of effects vessels have on
foraging activities seem to be similar whether the boats involved are
kayaks or other types of vessels, but the whales may use different
avoidance tactics to deal with the two types of vessels (Williams et
al. 2010).
While the specific information on impacts to killer whales from
kayaks is preliminary at this time, we have taken a conservative
approach in assessing this information in light of the endangered
status of the Southern Residents. We have considered the information
with respect to cumulative impacts as well as the other threats to
killer whale survival and recovery. Even if the effects are small for
individual kayakers, there are large numbers of kayakers targeting the
whales and the cumulative impacts of both kayaks and other types of
vessels are significant. In June to September 2010, Soundwatch
monitored zones out to \1/2\ mile from shore and observed over 2,100
kayaks in the monitoring zones with the whales and up to 41 kayaks with
the whales at one time. Soundwatch observed 594 incidents of kayakers
not following recommended guidelines. The cumulative impact of kayaks
and all vessels and their effect on feeding behavior is particularly
important because we are concerned about the whales' ability to get
sufficient prey to maintain their health. Based on all of the
information available and a conservative approach to protect endangered
Southern Residents, NMFS' final regulations protect killer whales from
both motorized and non-motorized vessels.
Exceptions: Five specific categories of vessels will be exempt 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, and (5) vessels limited in their
ability to maneuver safely. 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, 2008, 2009, 2010a), Bain (2007) and Giles and Cendak (2010)
indicate that commercial and recreational whale watch vessels are more
likely 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, 2008, 2009, 2010a) 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 from 2006-
2009. In 2010 there was a higher percent of commercial fishing vessels
observed within \1/2\ mile of the whales which was likely due to
increased fishery openings coinciding with presence of whales (Koski
2010b). In 2007-2008, Giles and Cendak (2010) recorded the distance of
vessels from the whales using an integrated GPS, range finder and
compass and reported only 21 ferries and 22 shipping vessels out of
11,710 vessels observed within 1,000 yards of the whales (0.4 percent).
In addition, these vessels generally move slowly and usually in a
predictable straight path, 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 based on
available information is the sound from small, fast moving vessels
moving in close proximity to the whales and targeting the whales.
Ferries and vessels associated with oil spill preparedness and
training do not target the whales and are not often in close proximity;
therefore, NMFS expects the impacts from adjusting course to avoid
getting within 200 yards (182.9 m) of the whales and to stay out of
their path on rare occasions will be minimal. We have not included
exemptions for Washington State Ferries, other publicly operated
ferries, or vessels associated with oil spill preparedness or training
based on the expectation that these vessels will rarely have to adjust
their course to comply with the regulations and that the adjustments
will be relatively easy to achieve, minimal and short-term. For
example, Washington State Ferries already adhere to the 100-yard (91.4
m) guideline and should similarly be able to adhere to a 200-yard
(182.9 m) regulation.
Vessels engaged in scientific research do closely approach killer
whales to obtain photographs, collect a variety of samples, and observe
behavior. Researchers must obtain permission from NMFS before they may
legally closely approach the whales. Before permitting research, NMFS
evaluates the potential effects of these activities under both the ESA
and MMPA. Expertise of researchers, operating procedures, and permit
terms and conditions reduce the potential impacts to whales. In issuing
permits, NMFS weighs the benefit of the research to the whales'
survival and recovery against the harmful impacts of close approaches.
Regulating some categories of vessels could cause adverse impacts.
Government vessels are often critical to safety missions, such as
search and rescue operations, enforcement, pollution response and
activities critical to national security. The movement of large
commercial vessels in U.S. and Canadian waters in the area are managed
by the Puget Sound Vessel Traffic Service and the Cooperative Vessel
Traffic Service, which are designed to efficiently and safely manage
vessel transits in the shared waters of the U.S. and Canada. U.S.
regulations require power-driven vessels 40 meters or greater in
length, while navigating or towing vessels eight or more meters in
length, and vessels certificated to carry 50 or more passengers for
hire when engaged in trade to participate in the Vessel Movement
Reporting System (VMRS) (Navigation and Navigable Waters, 33 CFR 161).
These ships generally follow well-defined navigation lanes established
by the International Maritime Organization (IMO), known as Traffic
Separation Schemes (TSS) (rules for vessel conduct is established by
U.S. Coast Guard Navigation Rule 10). If large ships following traffic
lanes or making their way to or from the lanes were required to make
sudden or unpredictable movements to avoid close approaches to whales,
it may impact the good order and predictability of maritime traffic, as
well as adversely affect navigation safety, thus increasing the risk of
collision and groundings. For the safety of vessel navigation, large
ships are sometimes escorted or assisted by smaller vessels such as tug
boats, which sometimes navigate just outside the designated lanes.
Sudden or unpredictable movements by these escort vessels, in order to
avoid close approaches to whales, could also increase the risk of
collisions and pose safety hazards. Support vessels associated with
booming activities required for fuel transfer or emergency pollution
response would also be exempt from the regulations based on the
exemption for safe operation.
Commercial fishing vessels, in which the fish harvested are
intended to enter commerce, when actively engaged in fishing are exempt
from the new regulatory requirements. If they were required to follow
regulations while actively engaged in fishing, it could compromise gear
or catch. Also, treaty Indian fishing vessels actively engaged
[[Page 20886]]
in fishing are exempt from the new regulatory requirements. Exempting
treaty Indian fishing vessels is consistent with treaty fishing rights
and use of Usual and Accustomed fishing areas. NMFS is also exempting
vessels from any regulations if the exemption is required for the safe
operation of a vessel to avoid adverse effects to public safety.
Based on these considerations, NMFS' final regulations include
several exceptions. 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. Federal government vessels
would not be exempt from consultation requirements under Section 7 of
the ESA. The following exceptions apply to all regulations:
(1) The regulations would not apply to Federal Government vessels
operating in the course of official duty or to state and local
government vessels engaged in official duties involving law
enforcement, search and rescue, or public safety.
(2) The regulations would not apply to vessels participating with a
Vessel Traffic Service (VTS) and following a Traffic Separation Scheme
or complying with a VTS Measure of Direction. This also includes boats
escorting vessels in the traffic lanes, such as tug boats.
(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 National Marine
Fisheries Service authorization.
(4) The regulations would not apply to treaty Indian and commercial
fishing vessels lawfully engaged in actively setting, retrieving, or
closely tending fishing gear or transferring catch. (Note: The
regulations would apply to all fishing vessels, including treaty Indian
and non-treaty vessels, transiting to or from fishing areas.)
(5) The regulations would not apply to vessel operations necessary
for safety to avoid an imminent and serious threat to a person or
vessel, including when necessary for overall safety of navigation, to
comply with the Navigation Rules, or in direct support of environmental
protection.
Requirements
Approach Restrictions: The final regulations prohibit vessels from
approaching any killer whale in the inland waters of Washington closer
than 200 yards (182.9 m). This includes approaching, in any manner,
including by interception (i.e., placing a vessel in the path of an
oncoming killer whale, so that the whale surfaces within 200 yards
(182.9 m) of the vessel, or positioning a vessel so that wind or
currents carry the vessel to within 200 yards (182.9 m) of a whale).
Prohibition against parking in the whales' path: The final
regulations require vessels to keep clear of the whales' path within
400 yards (365.8 m) of the whales. Parking in the path includes
interception (positioning a vessel so that whales surface within 200
yards (182.9 m) of the vessel, or so that wind or water 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 86 whales in the population at the end of 2010.
The Southern Residents underwent an almost 20 percent decline from 1996
to 2001, and while there were several years of population increases
following 2001, there have also been recent years with declines.
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 15-20 boats
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). 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. From 2006-
2010, there were between 1,085 (2007) and 2,527 (2009) reported
incidents per year where vessels did not follow the guidelines during
the time the observers were present (Koski 2007, 2008, 2009, 2010a,
2010b). Since observers were not present during all days and all hours,
it is likely that there were more incidents than those reported. In
2009, there were 2,527 incidents, and the majority 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) (Koski 2010a, 2010b). The most common incidents also reflect
this pattern and are most often committed by private boaters and
Canadian commercial whale watch vessels. The four most commonly
observed incidents in 2010, and for the last several years, were
parking in the path, vessels motoring inshore of whales, vessels
motoring within 100 yards (91.4 m) of whales, and vessels motoring fast
within 400 yards (365.8 m) of the whales (Koski 2008, 2009, 2010a,
2010b).
For the summer of 2010, Soundwatch's Kayak Education and Leadership
Program (KELP), San Juan County Parks, and the San Juan Island Kayak
Association worked together to update and refine a Kayaker Code of
Conduct as part of KELP. In addition to providing the guidelines and
training for kayakers through the KELP education program, Soundwatch
also monitored kayak activity and compliance of kayakers with the
recommendations in the code of conduct to augment the Soundwatch vessel
monitoring program. From June through September 2010, 594 incidents
were observed (66 percent commercial and 28 percent private) and the
most common incidents were kayaks not rafted, parked on headland or
within kelp bed, parked in the path of whales and stopped within 100
yards (91.4 m) of whales.
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
[[Page 20887]]
2000; Baird 2001; Carretta et al. 2001, 2004, Gaydos and Raverty 2007).
As described in the background section of this final rule and in
the EA, it is well documented that killer whales in the Pacific
Northwest respond to vessels engaged in whale watching (including
kayaks) 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, 2009;
Williams et al. 2009). Southern Residents also spend less time foraging
in the presence of vessels (Bain et al. 2006, Lusseau et al. 2009;
Giles and Cendak 2010; Williams et al. 2010). 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
2009), 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 (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. 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 and
a recent study also found similar increased durations for a larger
number of calls (Wieland et al. 2010). Holt et al. (2009) found that
killer whales increase their call amplitude in response to vessel
noise.
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. Researchers in other
regions have also reported low compliance with voluntary guidelines
designed to protect other endangered whales (Wiley et al. 2008).
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 and a prohibition on parking in
the path. We recognize that adopting regulations that are different
from the current voluntary guidelines and State law 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 two 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 final EA contains a full analysis of a No-action
alternative, six individual alternatives, the proposed regulations
combining three elements and the final regulation combining two
elements, described below.
200-yard (182.9 m) approach regulation. A regulation prohibiting
approaches closer than 200 yards (182.9 m) will be clear to whale watch
operators. These operators will 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 (91.4 m) 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 (182.9 m) 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 estimated a
considerable potential for masking from vessels at 100 yards (91.4 m).
These effects are reduced at 200 yards (182.9 m) and greater distances.
Some effects are observed up to 400 yards (365.8 m) from the whales.
While an approach regulation at a distance greater than 200 yards
(182.9 m) 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 (182.9 m)
approach regulation.
Parking in the path prohibition. As described above, parking in the
path of a whale is a common violation of the current guidelines by
commercial whale watch operators and an increasing number of private
boaters. 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 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
(182.9 m) of the
[[Page 20888]]
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 final 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 final rule.
We did not propose some of the regulatory options suggested in the
ANPR and in public comments on the proposed rule 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 (365.8 m) 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 final
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 some 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 included 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, and allowing us to fulfill our treaty
trust responsibilities.
The costs of implementing vessel regulations to protect the whales
will likely be greatest for 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. Other
impacts to boaters are expected to be minor and include slight
deviations of a vessel's path in order to comply with the regulations.
Additionally, due to the need for these regulations to facilitate
recovery of the Southern Resident population, we anticipate that the
continued recovery of the population will result in broad-based benefit
to the general public.
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 makes it appropriate to take all reasonable actions
to improve their chances of survival and recovery. We are issuing
appropriate final 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 two which provide benefits. All of the options have relatively low
socioeconomic and recreation costs. In contrast, the cost of extinction
of Southern Residents is incalculable. The final regulations will have
a net benefit 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 and Regulatory Flexibility Act
NMFS has prepared a final EA and Finding of No Significant Impact
(FONSI) pursuant to NEPA to support this final 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 final EA also includes a
Regulatory Impact Review. An economic report and Regulatory Impact
Review, including an analysis under the Regulatory Flexibility Act,
were prepared to support the regulation. The Final Regulatory
Flexibility Analysis (FRFA) is included in Chapter 6 of the final EA.
IEC (2010) identified a total of 283 small business entities that
may be affected by the vessel regulations to protect killer whales
implemented by this final rule. This includes 23 small businesses in
the whale watching industry, 248 in fishing related industry, and 12 in
freight transportation. NMFS considered 9 alternatives for this
rulemaking, which are:
Alternative 1: No-action;
Alternative 2: 100-Yard (91.4 m) Approach Regulation;
Alternative 3: 200-Yard (182.9 m) Approach Regulation;
Alternative 4: Protected Area--Current Voluntary No-go Zone;
Alternative 5: Protected Area--Expanded No-go Zone;
Alternative 6: Speed Limit of 7 Knots Within 400 Yards (365.8 m) of
Killer Whales;
Alternative 7: Keep Clear of the Whales' Path;
Alternative 8: Proposed Action (Package of Alternatives 3, 5, and
7); and
[[Page 20889]]
Alternative 9: Preferred Alternative (Package of Alternatives 3 and
7).
Chapter 2 of the final EA describes each of the 9 alternatives that
were analyzed. A summary of the impacts of each of the 9 alternatives
is provided below. For detailed information on the costs of each
alternative, see Chapter 4 of the final EA. For a summary of the costs
and benefits of each alternative, see Table 6-1 found in Chapter 6 of
the final EA. The cost of the No Action Alternative is the potential
loss of the whale watch industry based on an increased extinction risk
for the whales. While operations of the whale watch industry may be
affected to different degrees by Alternatives 2 through 9, it is the
customers and not necessarily the whale watching companies (i.e., small
entities for the purposes of RFA) who may bear impacts. The economic
analysis (IEC 2010) projects no change in revenue for whale watching
operations or other industries, but rather the potential diminished
value of the customers' experience as a result of greater viewing
distances and displacement of vessels.
The economic analysis and final EA quantify the number of trips and
participating individuals for different types of vessels (commercial
whale watch, private whale watching, kayaking, and fishing) that would
be potentially affected by Alternatives 2 through 9. A small number of
commercial and private whale watching trips, kayak and fishing trips
would have to adjust their operations to comply with Alternative 2 (a
100-yard (91.4 m) Approach Regulation). Under Alternative 3 (a 200-yard
(182.9 m) Approach Regulation) there was a range of estimated trips and
individuals that would experience greater viewing distance which
included up to all participants in commercial and private whale
watching trips. There was some uncertainty regarding the potential
effects of Alternatives 4 and 5 (Current and Expanded No-go Zones),
which included increased viewing distances for a small percent of all
commercial and private whale watching trips and displacement of a large
number of commercial and recreational kayaks from the San Juan County
boat launch and a smaller number of commercial fishing vessels from the
no-go zone. A small number of commercial and private whale watching
trips, kayak and fishing trips would be affected by having to comply
with Alternative 6 (a Speed Limit of 7 Knots Within 400 Yards (365.8 m)
of Killer Whales) similar to the numbers for Alternative 2 (the 100-
Yard (91.4 m) Approach Regulation). A larger number of commercial whale
watching trips and similar small number of private whale watching trips
would be affected by Alternative 7 (Keep Clear the Whales' Path)
compared to Alternatives 2 and 6. Alternative 8 is a combination of
Alternatives 3, 5 and 7 and would have the greatest impacts of all the
action alternatives. Alternative 9 is a combination of Alternatives 3
and 7 and would have fewer impacts than Alternative 8, but greater
impacts than the individual alternatives (Alternatives 2 through 7).
The benefits of two alternatives, Alternatives 3 and 7, are high
and Alternative 9 combines these individual regulations into an action
with high benefit. The expected costs are minimal for each alternative.
The costs associated with Alternatives 2 through 9, as estimated by the
number of commercial and recreational trips and passengers affected
vary, and in some cases the overall number of trips and passengers
affected are small (Alternatives 2, 4, 6, and 7). For other
alternatives (Alternatives 3, 5, 8 and 9) there is some uncertainty as
to the number of trips and passengers affected. Even if all
participants in recreational and commercial whale watching are
affected, the impact itself (based on an increased viewing distance) is
small. Alternative 8 with the highest benefit and small costs provides
the highest net benefit. Alternative 9 also has a high benefit and
small costs, providing a net benefit. Alternative 9 does not include
Alternative 5 (the Expanded No-go Zone). However, NMFS recognizes the
increased benefit to the whales of reducing vessel impacts in a core
foraging area and will collect additional information and seek public
input to further evaluate the concept of a no-go zone. While there may
be some economic cost to various industry groups under Alternative 9,
particularly commercial whale watching, overall this cost is likely to
be minimal and outweighed by the conservation benefits of regulations.
NMFS does not expect any small entity to cease operation as a result of
any of the alternatives, including the Preferred Alternative
(Alternative 9). The primary costs under the Preferred Alternative
(Alternative 9) are a diminished value to individuals engaged in whale
watching at greater distances and would not be borne by these small
entities. Additional information on selection of the Preferred
Alternative (Alternative 9) is included in the Rationale for
Regulations section of this final rule. The final EA including the
FONSI and FRFA, Regulatory Impact Review, and supporting documents are
available for review and can be found on the NMFS Northwest Region Web
site at http://www.nwr.noaa.gov/.
Clarity of This 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 believe that we have not met these requirements, send us
comments (see ADDRESSES section). To better help us revise rules in the
future, your comments should be as specific as possible.
Required Determinations
Paperwork Reduction Act
This final rule will not impose any new requirements for collection
of information that requires approval by the Office of Management and
Budget under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.) This
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 Final 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 final 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
[[Page 20890]]
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. The Lummi Tribe and the Northwest Indian Fisheries Commission
provided comments on the proposed rule regarding the exception for
treaty Indian fishing vessels. In response to the comments, NMFS
included additional clarification regarding the specific treaty fishing
activities to which the exception applies. See Comment 9: Exceptions.
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 (WDFW) 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
(182.9 m) of killer whales is more protective than the state law (RCW
15.77.740), which prohibits approach within 100 yards (91.4 m) of
Southern Resident killer whales in state waters, and therefore may
preempt the state law. In their comments on the proposed rule, WDFW
supported federal regulations prohibiting approach within 200 yards
(182.9 m) of killer whales. Inclusion of the WDFW 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: April 8, 2011.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the preamble, 50 CFR part 224 is amended
as follows:
PART 224--ENDANGERED MARINE AND ANADROMOUS SPECIES
0
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.
0
2. In Sec. 224.103, a new paragraph (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)
Applicability. The following restrictions apply to all motorized and
non-motorized vessels in inland waters of the United States 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./Canada
international boundary. The shoreline boundary is the charted mean high
water line cutting across the mouths of all rivers and streams.
(2) Prohibitions. Except as provided in paragraph (e)(3) of this
section, it is unlawful for any person subject to the jurisdiction of
the United States to:
(i) Cause a vessel to approach, in any manner, within 200 yards
(182.9 m) of any killer whale.
(ii) Position a vessel to be in the path of any killer whale at any
point located within 400 yards (365.8 m) of the whale. This includes
intercepting a killer whale by positioning a vessel so that the
prevailing wind or water current carries the vessel into the path of
the whale.
(3) Exceptions. The following exceptions apply to this section:
(i) The prohibitions of paragraph (e)(2) of this section do not apply
to
(A) Federal Government vessels operating in the course of their
official duty or state and local government vessels when engaged in
official duties involving law enforcement, search and rescue, or public
safety.
(B) Vessels participating with a Vessel Traffic Service (VTS) and
following a Traffic Separation Scheme or complying with a VTS Measure
of Direction. This also includes support vessels escorting ships in the
traffic lanes, such as tug boats.
(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 National Marine Fisheries Service
authorization.
(D) Vessels lawfully engaged in commercial or treaty Indian fishing
that are actively setting, retrieving, or closely tending fishing gear.
(E) Vessel operations necessary to avoid an imminent and serious
threat to a person, vessel or the environment, including when necessary
for overall safety of navigation and to comply with the Navigation
Rules.
(ii) [Reserved]
(4) Affirmative defense. In connection with any action alleging a
violation of the prohibitions of paragraph (e)(2) of this section, any
person claiming the benefit of any exception listed in paragraph (e)(3)
of this section has the burden of raising, pleading, and proving such
affirmative defense.
(b) [Reserved]
[FR Doc. 2011-9034 Filed 4-13-11; 8:45 am]
BILLING CODE 3510-22-P