(a) Prohibitions. Except as noted in paragraph (b) of this section, it is unlawful for any person subject to the jurisdiction of the United States to commit, to attempt to commit, to solicit another to commit, or to cause to be committed, within 200 nautical miles (370.4 km) of the islands of Hawaii, any of the following acts with respect to humpback whales (Megaptera novaeangliae):

(1) Operate any aircraft within 1,000 feet (304.8 m) of any humpback whale;

(2) Approach, by any means, within 100 yards (91.4 m) of any humpback whale;

(3) Cause a vessel, person, or other object to approach within 100 yards (91.4 m) of a humpback whale;

(4) Approach a humpback whale by interception (i.e., placing an aircraft, vessel, person, or other object in the path of a humpback whale so that the whale approaches within 1,000 feet (304.8 m) of the aircraft or 100 yards (91.4 m) of the vessel, person, or object); or

(5) Disrupt the normal behavior or prior activity of a whale by any other act or omission. A disruption of normal behavior may be manifested by, among other actions on the part of the whale, a rapid change in direction or speed; escape tactics such as prolonged diving, underwater course changes, underwater exhalation, or evasive swimming patterns; interruptions of breeding, nursing, or resting activities, attempts by a whale to shield a calf from a vessel or human observer by tail swishing or by other protective movements; or the abandonment of a previously frequented area.

(b) Exceptions. The prohibitions of paragraph (a) of this section do not apply to:

(1) Federal, State, or local government vessels or persons operating in the course of their official duties such as law enforcement, search and rescue, or public safety;

(2) Vessel operations necessary to avoid an imminent and serious threat to a person, vessel, or the environment;

(3) Vessels restricted in their ability to maneuver, and because of this restriction are not able to comply with approach restrictions; or

(4) Vessels or persons authorized under permit or authorization issued by NMFS to conduct scientific research or response efforts that may result in taking of humpback whales.

(c) Affirmative defense.

(1) In connection with any action alleging a violation of this section, any person claiming the benefit of any exemption, exception, or permit listed in paragraph (b) of this section has the burden of proving that the exemption or exception is applicable, or that the permit was granted and was valid and in force at the time of the alleged violation.

(2) [Reserved]

[81 FR 62017, Sept. 8, 2016]