[Federal Register Volume 73, Number 198 (Friday, October 10, 2008)]
[Rules and Regulations]
[Pages 60173-60191]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-24177]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 224
[Docket No. 040506143-7024-03]
RIN 0648-AS36
Endangered Fish and Wildlife; Final Rule To Implement Speed
Restrictions to Reduce the Threat of Ship Collisions With North
Atlantic Right Whales
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: NMFS establishes regulations to implement speed restrictions
of no more than 10 knots applying to all vessels 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. The
purpose of the regulations is to reduce the likelihood of deaths and
serious injuries to endangered North Atlantic right whales that result
from collisions with ships.
DATES: This final rule is effective December 9, 2008 through December
9, 2013.
ADDRESSES: Copies of this rule and Regulatory Impact Review, Final
Environmental Impact Statement, Economic Analysis and Record of
Decision related to this final rule can be obtained from the Web site
listed under the electronic access portion of this document. Written
requests for copies of these documents should be addressed to: Chief,
Marine Mammal Conservation Division, Attn: Right Whale Ship Strike
Reduction Rule, Office of Protected Resources, NMFS, 1315 East-West
Highway, Silver Spring, MD 20910. Written comments regarding the
burden-hour estimates or other aspects of the collection-of-information
requirements contained in this final rule may be submitted to NMFS,
Office of Protected Resources.
FOR FURTHER INFORMATION CONTACT: Gregory Silber, PhD, or Shannon
Bettridge, PhD, Fishery Biologists, Office of Protected Resources,
NMFS, at (301) 713-2322.
SUPPLEMENTARY INFORMATION:
Electronic Access
Several background documents related to this final rule, including
the Regulatory Impact Review, Final Environmental Impact Statement,
Economic Analysis and Record of Decision can be downloaded from http://
www/nmfs.noaa.gov/shipstrike.
Background
The Western North Atlantic right whale (Eubalaena glacialis) was
severely depleted by commercial whaling. The only remaining population
off North America was reduced to a few hundred whales or less by the
early 1900s. Despite protection from commercial whaling since 1935, the
remaining population has failed to fully recover. The best current
estimate of minimum population size is 313 whales (Waring et al.,
2007), which is approximately the same as it was 25 years ago (Best et
al., 2001). At this level, with the exception of North Pacific right
whales, North Atlantic right whales are the world's most critically
endangered large whale species and one of the world's most endangered
mammals.
Population models suggest that their abundance may have increased
at about 2 percent per year during the 1980s, but that it declined at
about the same rate in the 1990s (Caswell et al., 1999). Data on the
minimum number of whales alive during 1995-2002 indicate a slight
increase in the number of catalogued whales during the period, but with
statistically significant inter-annual variation in numbers due to
declines in the minimum number of animals found alive during 1998-1999
(Waring et al., 2007). Such population trends are very low compared to
trends for populations of other large whales that are recovering, such
as south Atlantic right whales and western Arctic bowhead whales, which
have been recovering steadily at rates of 4 percent or more per year.
Inherently low rates of reproduction in large whale populations mean
that recovery rates for large whale populations can be low under the
best of circumstances. North Atlantic right whales may live 60 years or
more. The age of first reproduction for female North Atlantic right
whales is about 7 to 10 years old and calving intervals for the
population have been estimated to average from about 3.5 to more than 5
years over the past three decades (Kraus et al., 2001; Kraus et al.,
2007). Considering the high rates of natural mortality for calves and
juveniles compared to adults, population projections estimate that
female right whales must produce at least four calves over their
lifetime to replace themselves. To ensure population growth, adult
females would need to produce more than four calves over their
lifetime, because half of the calves born are male, and the survival of
female calves to adulthood is less than 0.5 (Kraus et al., 2001).
Between the mid 1980s and late 1990s, documented calf production
for the North Atlantic right whale population averaged about 11 calves
per year (Kraus et al., 2001). Since 2000, a series of good calving
years has provided a source of optimism for future recovery. Between
2000/01 and 2005/06, calf production increased to an average of more
than 22 calves per year and the average calving interval for adult
females has declined to close to its lowest recorded level (Kraus et
al., 2007). However, the mean number of cows recruited into the
population was 3.8 per year (Kraus et al., 2001).
Because of the species' low reproduction level and small population
size, even low levels of human-caused mortality can pose a significant
obstacle for North Atlantic right whale recovery. Population modeling
studies in the late 1990s (Caswell et al., 1999; Fujiwara and Caswell,
2001) indicated that preventing the death of two adult females per year
could be sufficient to reverse the slow decline detected in right whale
population trends in the 1990s. In this regard, the primary cause of
the species' failure to recover is believed to be mortality caused by
collisions with ships and entanglement in commercial fishing gear
(Kraus, 1990; Knowlton and Kraus, 2001; Moore et al., 2005; NMFS, 2005;
MMC, 2006). Since 1970, there have been more than 73 confirmed right
whale deaths, nearly half of which (49 percent) have been attributed to
ship collisions (29 deaths) or entanglements (7 deaths). NOAA believes
the actual number of deaths is almost certainly higher than those
documented as some deaths likely go undetected or unreported, and in
many cases when deaths are detected or reported it is not possible to
determine the cause of death from recovered carcasses. The number of
documented deaths may be as little as 17 percent of the actual number
of deaths (Kraus et al., 2005).
The number of human-caused right whale deaths and serious injuries
may be increasing. Since 1990, there have been more than 50 confirmed
deaths, 56 percent of which have been attributed to
[[Page 60174]]
ship strikes (22 deaths) and entanglement (6 deaths). Between 2001 and
2005, the minimum estimate of human-caused mortality and serious injury
to North Atlantic right whales from ship strikes and fishery
entanglements averaged 3.2 per year (Waring et al., 2007). This
included nine known right whale ship strike deaths between 1991 and
2001, an average of 1.8 per year. The number of ship collisions appears
to be related to an overlap between important right whale feeding,
calving, and migratory habitat and shipping corridors along the eastern
United States and Canada. Most right whales that died as a result of
ship collision were first reported dead in or near major shipping
channels off east cost ports between Jacksonville, Florida and New
Brunswick, Canada. Based on massive injuries found on whales killed by
ships (e.g., crushed skulls, severed tail stocks, and deep, broad
propeller wounds), it appears that a large majority of right whales
killed by vessels are victims of collisions with large ships. The
effect of vessel-related deaths on right whale recovery is especially
significant because a disproportionate number of ship strike victims
are female right whales. Of the 22 vessel-related deaths for which the
sex and size of the animals is known, 80 percent are females, including
at least three that were killed carrying full-term fetuses. The reasons
for this are not clear, but one factor may be that pregnant females and
females with nursing calves may spend more time at the surface where
they are vulnerable to being struck.
For the North Atlantic right whale population to recover, vessel-
related deaths and injuries must be reduced. The recently revised North
Atlantic Right Whale Recovery Plan (NMFS, 2005) ranks steps to reduce
and eliminate such deaths among its highest priorities, and indicates
that developing and implementing an effective strategy to address this
threat is essential to recovery of the species.
In collaboration with other agencies and organizations, NMFS has
undertaken extensive efforts to encourage voluntary actions by vessel
operators to reduce the risk of collisions between ships and North
Atlantic right whales. In part, it has sought to limit vessel
approaches to right whales, increase awareness of east coast mariners
about the vulnerability of right whales to ship strikes, and provide
mariners with real time right whale sighting locations. To reduce
disturbance and collision risks, NMFS published a regulation on
February 13, 1997 (62 FR 6729), prohibiting all vessels from
approaching closer than 500 yards (460 m) to any right whale. To help
vessel operators avoid whales or take other appropriate measures,
extensive aircraft surveys have been undertaken in waters off the U.S.
southeast coast since 1993 and off the coast of New England since 1997,
to inform mariners via various notification programs and media when and
where right whales have been sighted. The program is operated in
conjunction with, and supported by, a number of other organizations,
including state and Federal agencies. In July 1999, the U.S. Coast
Guard (USCG) and NMFS jointly implemented two Mandatory Ship Reporting
systems (MSRS) that require all vessels 300 gross tons and greater that
enter specified right whale feeding and calving habitats to report to a
shore-based station for information on right whale protection. Incoming
reports prompt an automated return message providing right whale
sighting locations and information on how vessel/whale collisions can
be avoided. Reporting vessels also must provide their entry location,
destination, and ship speed to help analyze vessel related risks.
To raise mariner awareness about right whale protection needs, NMFS
also regularly updates navigational aids with information on the status
of right whales, times and areas where they occur, threats posed by
ships, provisions of the MSRS, and advice on measures mariners can take
to reduce the likelihood of hitting right whales. One such aid is the
U.S. Coast Pilot, a set of regionally-specific references on marine
environmental conditions, navigation hazards, and regulations. Captains
of commercial vessels 1600 gross tons and above are required to carry
the Coast Pilot when operating in U.S. waters. Current information is
also provided via the National Geospatial-Intelligence Agency's Notice
to Mariners, and the United Kingdom's Admiralty Publications, both of
which provide guidance for mariners traveling in international waters.
In 2005, NMFS began broadcasting advisories over NOAA Weather Radio and
other media urging that ships limit speeds to 12 knots or less
(subsequently lowered to 10 knots since June 2006) when they are in
areas where right whales had been sighted. Mariner education programs
also have been established and others are under development by a
coalition of groups and individuals, including the Northeast and
Southeast Right Whale Recovery Plan Implementation Teams, to help train
and educate professional mariners and recreational boaters about right
whale protection needs.
In addition, Federal agencies that conduct ship operations along
the U.S. east coast have been advised to modify their vessel operating
procedures by posting extra lookouts in areas where whales may occur,
limiting transits through such areas, and training ship crews on ways
to detect, identify, and avoid large whales. The USCG and U.S. Navy
have issued speed advisories to their respective Atlantic fleets, and
in 2005, NMFS contacted all relevant Federal agencies requesting that
their vessels proceed at 12 knots or less when in right whale habitat
unless other overriding needs (e.g., national security or rescue
mission) would be compromised. The USCG and Navy have standing orders
to report sightings or collisions. Although the NMFS ship strike
database reflects a disproportionately high number of ship strikes
attributable to USCG and Navy vessels, this is likely due to the high
reporting rate by those agencies relative to other mariners and
vessels, rather than a higher incidence of right whale ship strikes by
Federal agency vessels.
Despite measures developed and undertaken by agencies,
stakeholders, partners, and industry to date, right whale deaths from
ship strikes continue and voluntary measures appear to be insufficient.
For example, a right whale was struck by a vessel off Georgia in 2005.
The operator was aware of right whale protection needs and immediately
contacted the USCG and stood by the whale until officials arrived. He
was unable, however, to detect and avoid the whale. Given the
undiminished occurrence of collisions with right whales, NMFS has
concluded that existing measures are insufficient to reduce the
likelihood of ship strikes and allow the species to recover.
Accordingly, NMFS determined that further action is required, and that
a rule to limit vessel speeds in times and areas where right whales are
most likely to occur is necessary. This rulemaking is designed to
significantly reduce the occurrence and severity of collisions with
North Atlantic right whales while minimizing adverse impacts on ship
operations.
NMFS proposed regulations to reduce the threat of ship strikes in
an Advanced Notice of Proposed Rulemaking (ANPR) (69 FR 30857; 1 June
2004) and a Notice of Proposed Rulemaking (NPRM)(71 FR 36299; 26 June
2006). As part of the proposed rulemaking, NMFS prepared and circulated
a Draft Environmental Impact Statement (DEIS) which provided
evaluations for a range of alternative measures. In the NPRM, NMFS
identified speed restrictions of vessels along the coastal U.S.
Atlantic as the best way to reduce ship strikes. Substantial evidence
(Laist et al., 2001;
[[Page 60175]]
Jensen and Silber, 2003; Vanderlaan and Taggart, 2007) indicates that
vessel speed is an important factor affecting the likelihood and
lethality of whale/vessel collisions. Therefore, NMFS proposed
restricting vessel speed at certain times and in certain locations to
reduce this threat. NMFS requested public comment on the proposed
regulations and provided a public comment period of 102 days and
sponsored an extended series of public meetings. Below, we summarize
the comments received, responses to those comments, and changes made to
the proposed regulations in light of the comments.
In addition to the speed restrictions identified in this
rulemaking, NMFS and other agencies are taking other steps, as
described in the ANPR and NPRM, to reduce the likelihood of ship
strikes. Among these are certain routing measures. In November 2006,
NOAA established a set of recommended shipping routes in key right
whale aggregation areas in Cape Cod Bay and at the entrances to three
ports in Georgia and Florida. The routes are expected to reduce the co-
occurrence of right whales and ships in those areas. Although the
identified routes are now voluntary, NMFS intends to track mariner use
of the routes and may consider making them mandatory. Information on
those routes can be found at http://www.nmfs.noaa.gov/pr/shipstrike/.
In addition, the United States prepared and submitted to the
International Maritime Organization (IMO) a proposal to reconfigure the
``Traffic Separation Scheme'' (TSS) that services Boston,
Massachusetts. The realignment--involving only a 12 degree shift in the
northern leg and narrowing the two traffic lanes by approximately 1/2
mile each--is expected to provide a significant reduction in ship
strike risk to right whales and all baleen whale species occurring in
the area, with minimal concurrent impact to mariners using the TSS. The
IMO reviewed and adopted the proposal, and the realignment was
implemented in July 2007. These routing measures are not the subject of
this rulemaking.
Comments on the Notice of Proposed Rulemaking and Responses
NMFS received 10,252 comments on the June 26, 2006, NPRM from
governmental entities, individuals, and organizations. NMFS received
these comments in the form of electronic mail, letters, website
submissions, correspondence from action campaigns (e-mail and U.S.
postal mail), and facsimile. Of those, 10,027 were form letters
expressing general support for the proposed regulations; 225 contained
substantive comments on specific measures or components of the proposed
rule. All comments have been compiled and posted at http://www.nmfs.noaa.gov/pr/shipstrike. In the text below, NMFS provides a
summary of the comments, recommendations, and issues raised that
directly relate to the measures in this rulemaking, provides responses
to them, and identifies changes to the proposed regulations.
Comment 1: A number of commenters questioned NMFS's data on the
size and status of the North Atlantic right whale population, its
growth rate, and/or whether ship collisions are a major threat.
Response: NMFS relies on the best available scientific information
to assess North Atlantic right whale abundance, status and threats.
Primarily, this includes Stock Assessment Reports (SAR) required by the
Marine Mammal Protection Act (MMPA), and the peer reviewed scientific
literature. The SAR for North Atlantic right whales is updated annually
and reviewed both internally and externally by teams of scientists. The
2007 SAR for North Atlantic right whales (Waring et al., 2007)
indicates that the best estimate of minimum population size for the
species is 313 individually recognized whales known to be alive during
2002. Because these data are from identification photographs and
genetic samples in all known right whale aggregation areas and very few
new adult whales have been added since the mid-1990s, NMFS believes
that these records represent a nearly complete census of the
population. Therefore, NMFS concludes that they provide an accurate
representation of the population's minimum size.
NMFS also considered additional population analyses and modeling
exercises that were conducted and published in the peer-reviewed
literature (e.g., Caswell et al., 1999; Fujiwara and Caswell, 2001).
Those studies cite high mortality rates in the 1980s and 1990s and
conclude that the population began to decline in the early 1990s. They
indicate that preventing the death of even one adult female could
significantly affect the population's trend. A 2001 evaluation by the
International Whaling Commission's Scientific Committee (Best et al.,
2001) also concluded that the population of North Atlantic right whales
is not likely much greater than 300 individuals. By every measure
developed in the field of conservation biology, wild animal populations
of this size would be considered critically endangered.
With regard to the population's growth rate, calf production has
been relatively high in recent years, but on a longer scale, calf
production is erratic. Annual calf production ranged from 1 to 31 and
averaged 11 calves up until 2000, but totaled 31, 21, 19, 16, 28, and
19 from 2000/01 to 2005/06, respectively. In assessing the impact of
this production on the long-term viability of the population, it is
essential that calf mortality rates also be considered. Documented
(others may go undetected) calf deaths were: two in 1993, three in
1996, one in 1997, one in 1998, four in 2001, and two in 2002; this
evidence prompted Kraus et al. (2005) to conclude that the number of
births still is not sufficient to compensate for the number of adult
deaths over the past two decades. As indicated above, observed
mortality, as based on peer-reviewed statistical procedures, is almost
certainly lower than the actual mortality. All indications are that the
population is small, growth in the adult population is static or
possibly declining, and despite recent increases in reproduction the
premature deaths of female right whales due to ship collisions have
significantly impeded the potential population recovery. Of particular
significance is the recent loss of breeding females, the most important
demographic component of the population.
With regard to threats from human activities, the two principal
ones are entanglement with fishing gear and ship strikes. From 1970 to
2005, 67 right whale carcasses have been found (Best et al., 2001; MMC,
2006). This is only a portion of the actual number of deaths because
the detected fraction is less than one-half the total mortality
assuming a static population of 300 whales. Of these 67 dead whales, 25
died as a result of collisions with ships, six from entanglement in
fishing gear, 17 were fetuses that either died of unknown causes or
from the death of its mother, and for the remainder the cause of death
could not be determined (Best et al., 2001; Moore et al., 2005; MMC,
2006). Of the 67 carcasses, 44 were recovered between 1990 and 2005. Of
these, 18 deaths resulted from ship strikes, five from entanglement,
nine were perinatal, and in 12 cases the cause of death could not be
determined (MMC, 2006). In assessments of large whale serious injuries
and deaths occurring in U.S. east coast, Gulf of Mexico, and Canadian
Maritime waters, Nelson et al. (2007) and Glass et al. (2008)
documented a minimum of an annual average rate of 1.8 right whales
deaths and serious injuries from 2001-
[[Page 60176]]
2005, and 2.4 from 2002-2006, respectively. In an eight-week period
from mid-November 2004 to mid-January 2005, four dead right whales were
found, including one that was killed by a ship and two others that had
wounds from previous ship collisions that may have contributed to their
deaths. All three whales hit by ships were adult females, two of them
carrying full-term fetuses; another adult female with a full-term fetus
was killed by a ship earlier in 2004. Thus, the majority of the deaths
were caused by human activities, and of these the majority were from
ship strikes. All evidence indicates that vessel collisions represent a
significant cause of mortality.
As a result of low population size for North Atlantic right whales,
lack of observed population growth, and deaths from human activities,
NMFS determined in 2000, and each year since, that the North Atlantic
right whale population's ``Potential Biological Removal'' (PBR)--
defined by the MMPA as ``the maximum number of individuals, not
including natural mortalities, that may be removed from a marine mammal
stock while allowing that stock to reach or maintain its Optimum
Sustainable Population''--is zero. That is, under the MMPA, the
population can sustain no deaths or serious injuries due to human
causes if its recovery is to be assured.
The species is listed as Endangered on the Endangered Species Act's
(ESA) List of Threatened and Endangered Wildlife and Plants, and as
Depleted under the MMPA. Thus, under these statutes, it is illegal to
strike a right whale with a ship.
Nonetheless, there is a role for rigorous and effective measures to
minimize the risk of illegal takings of right whales resulting from
ship collisions and to promote efforts to conserve and recover the
population.
Comment 2: Comments relating to vessel speed restrictions fell into
several categories: (A) Some indicated that it was not clear that speed
restrictions would reduce the threat of ship strikes to North Atlantic
right whales and indicated that NMFS's evidence and justification for
proposing vessel speed restrictions was not adequate; (B) some
indicated that a large vessel would lose adequate steerage at certain
minimum speeds (see ``Vessel maneuverability,'' below); (C) some
indicated that speed restrictions would result in an undue economic
burden to segments of the maritime industry (see ``Potential economic
impact'' below); and (D) some supported speed restrictions as an
important conservation measure and encouraged NMFS to require vessel
speed of 10 knots in regulated areas. Although NMFS requested specific
comments with regard to speed restrictions of 12 and 14 knots, few were
received. Some shipping companies or trade associations indicated they
preferred 14 knots over 10 knots as a way to reduce the economic burden
of a 10-knot speed restriction. NMFS also received comments indicating
that records of speeds of vessels involved in ship strikes are the same
speeds at which vessels normally travel, and that collision records
therefore are merely a reflection of speed that the population of
ocean-going vessels tend to travel. Some commenters expressed a belief
that fast moving vessels would emit more noise than vessels under speed
restrictions, thereby alerting whales in the path. Several commenters
suggested that the likelihood of a serious injury to a whale is a
function more of vessel mass, rather than vessel speed, and that a
large vessel hitting a whale at any speed could cause serious injury.
Response: (A) Evidence and Justification: NMFS examined the best
available scientific information in determining that the use of speed
restrictions would be an effective means to reduce the likelihood and
severity of ship strikes, and has set the limit for the restrictions
based upon this evidence. Based on inventories of all known collisions
between ships and large whale species, including right whales (Knowlton
and Kraus, 2001; Laist et al., 2001; Jensen and Silber, 2003),
Vanderlaan and Taggart (2007) examined all records for which ship speed
at the time of impact was known. Based on their analysis, these authors
concluded that the probability of a collision causing a whale's death
increased rapidly and in a non-linear manner as vessel speed increased.
They found that between the speeds of 9 and 20 knots, the probability
of collision causing a whale's death rose from 20 to 100 percent,
respectively. The greatest increase occurred between the speeds of 10
and 14 knots. They determined that the probability of death occurring
from a collision was approximately 35-40 percent at 10 knots, 45-60
percent at 12 knots, and 60-80 percent at 14 knots (Vanderlaan and
Taggart, 2007). This analysis did not control for ship size. In an
independent analysis using 64 records of ship strikes in which vessel
speed was known, Pace and Silber (2005) tested speed as a predictor of
the probability of a whale death or serious injury. They found strong
evidence that the probability of death or serious injury increased
rapidly with increasing vessel speed. Specifically, the predicted
probability of serious injury or death increased from 45 percent to 75
percent as vessel speed increased from 10 to 14 knots, and exceeded 90
percent at 17 knots.
In a compilation of ship strikes of all large whale species that
assessed ship speed as a factor in ship strikes, Laist et al. (2001)
concluded that a direct relationship existed between the occurrence of
a whale strike and the speed of the vessel. These authors indicated
that most deaths occurred when a vessel was traveling at speeds of 14
knots or greater and that, as speeds declined below 14 knots, whales
apparently had a greater opportunity to avoid oncoming vessels. Adding
to the Laist et al. (2001) study, Jensen and Silber (2003) compiled 292
records of known or probable ship strikes of all large whale species
from 1975 to 2002. Vessel speed at the time of the collision was
reported for 58 of those cases. Operating speeds of vessels that struck
various species of large whales ranged from 2-51 knots with an average
speed of 18.1 knots. A large majority (85.5 percent) of these strikes
occurred at vessel speeds of 10 knots or greater.
With regard to right whales specifically, the speeds of vessels
were known with a high degree of certainty in two cases; in three other
cases possibly involving right whales vessel speeds are also known. A
juvenile right whale was killed on January 5, 1993, in waters off north
Florida by an 82-ft (24.9-m) vessel operating at 15 knots. In waters
off Cumberland Island, Georgia in March 2005, a 43-ft (13.1-m) vessel
struck a right whale and severely injured the animal by nearly
completely severing one lobe of its tail flukes. The boat was traveling
at 20 knots and based on the whale's poor condition when last seen in
summer 2005, it is presumed that the whale died. In winter 1972-73, a
bulbous bow container ship traveling at 21-23 knots east of Boston,
Massachusetts collided with and killed an unidentified whale thought
possibly to have been a right whale (Laist et al., 2001). A whale calf,
also possibly a right whale, was killed on July 6, 1991, off Delaware
Bay by a ship traveling at 22 knots.
In November 2004, a Federal vessel traveling 21 knots outside the
mouth of the Chesapeake Bay reported hitting a whale. A severely
injured right whale in the area of the collision was reported a few
hours later and, although not linked definitively to the strike, a dead
adult right whale with massive injuries washed ashore in northern North
Carolina about a week later.
[[Page 60177]]
Not all ship strikes are detected or documented. The right whale
records identified above are only those in which the species, vessel
speed, and fate of the animal were known. Records of vessel collisions
with large whales are numerous, involve a number of species, variety of
vessel types, and occur in various geographic locations (Jensen and
Silber, 2003; Van Waerebeek and Leaper, 2008). For example, Van
Waerebeek and Leaper (2008) recently identified 763 such records,
worldwide. As noted above, for North Atlantic right whales alone,
Nelson et al. (2007) determined that there were an average of 1.8 known
right whale ship strike deaths and serious injuries per year in U.S.
eastern seaboard, adjacent Canadian Maritimes, and Gulf of Mexico
waters between 1999 and 2005. Glass et al. (2008) documented an average
of 2.4 per year for the same waters in the years 2002 to 2006. In a
separate analysis, Vanderlaan and Taggart (2007) concluded that right
whales are far more vulnerable, per capita, to ship strikes than other
large whale species.
Effects of vessel speed on collision risks also have been studied
using computer simulation models to assess hydrodynamic forces vessels
have on a large whale (Knowlton et al., 1995; Knowlton et al., 1998).
These studies found that, in certain instances, hydrodynamic forces
around a vessel can act to pull a whale toward a ship. These forces
increase with increasing speed and thus a whale's ability to avoid a
ship in close quarters may be reduced with increasing vessel speed.
Related studies by Clyne (1999) found that the number of simulated
strikes with passing ships decreased with increasing vessel speeds, but
that the number of strikes that occurred in the bow region increased
with increasing vessel speeds.
In measuring the forces involved in whale/ship collisions using
whale and ship models in a tow tank, Slutsky (2007) determined that the
magnitude of forces exerted on the whale increased linearly as vessel
speed increased.
In a modeling study using data from actual observed encounters of
right whales with vessels, Kite-Powell et al. (2007) determined that
more than half of right whales located in or swimming into the path of
an oncoming ship traveling at 15 knots or greater are likely to be
struck even if the whale takes evasive action. However, the strike risk
posed by a conventional ship moving 20 to 25 knots could be reduced by
30 percent by slowing to 12 or 13 knots, and by 40 percent at 10 knots,
due to the whales' increased ability to detect and avoid approaching
vessels.
Campbell-Malone (2007) examined the bio-mechanical properties of
right whale mandibles as related to blunt force trauma inflicted by a
vessel. Citing Kite-Powell et al. (2007), Campbell-Malone (2007)
indicated that there are compound (both behavioral and force of impact)
benefits to implementing speed restrictions, and concluded that both
studies predict a reduction of right whale deaths as a result of vessel
speed limits in right whale habitat.
With regard to the comment that whales are more likely to move away
from vessels traveling fast because they are emitting more noise than
slower ships, Nowacek et al. (2003) used a multi-sensor acoustic
recording tag to measure the responses of right whales to passing ships
and found that right whales showed little or no response to playback
sounds of approaching vessels or actual vessels, regardless of vessel
speed.
With regard to comments that serious injury to a whale is a
function more of vessel mass, rather than vessel speed, and that a
large vessel hitting a whale at any speed could cause serious injury,
NMFS believes that the analysis conducted by Vanderlaan and Taggart
(2007) indicates that the force striking a whale is likely more a
function of vessel speed and mass of the whale, rather than vessel
mass. In an analysis of vessel mass versus vessel speed and the
likelihood and severity of injury to manatees, Calleson and Frohlich
(2007) concluded that vessel speed, not mass, was the most critical
factor. They calculated, for example, that a doubling of the speed of a
vessel would quadruple the amount of impact energy to the manatee,
while quadrupling the speed would increase the amount of energy by a
factor of 16.
With regard to the comment that the records of vessel speeds at
which ship strikes occur are a reflection of the speeds vessels travel
generally, Pace and Silber (2005) compared the distribution of speeds
at which known ship strikes occurred with the distribution of speeds of
ships reporting into the Mandatory Ship Reporting systems, which they
considered representative of speeds that ships travel in general. The
authors found that these two distributions were significantly
different, suggesting that ship strikes involved vessels that were
traveling faster than vessels tended to travel overall.
Finally, NMFS is not aware of any data or studies that would
contradict those cited above. No data, studies, or analyses were
provided in the public comments demonstrating either that high vessel
speeds would reduce the threat of ship collisions with right whales or
that slow speeds would not reduce the likelihood or severity of a
strike.
Vessel speed restrictions have been used in efforts to protect
endangered marine species other than right whales. For example, such
restrictions have been used by the U.S. Fish and Wildlife Service to
reduce watercraft collisions with manatees. In an analysis of the
effectiveness of one such program, Laist and Shaw (2006) concluded that
manatee deaths were substantially reduced after slow speed restrictions
were imposed throughout a Florida waterway that had been one of the
deadliest areas in the state for watercraft related manatee deaths.
Whereas watercraft-related manatee deaths had averaged 2.34 per year in
the 42 months before the measures went into effect in June 2002, they
were reduced to 0.29 per year in the 42 months after they went into
effect.
Vessel speed restrictions have also been established to protect
other endangered large whale species. The National Park Service adopted
regulations implementing a 13-knot speed limit for vessels in Glacier
Bay National Park and Monument, Alaska, to reduce the likelihood of
hitting humpback whales (National Park Service, 2003). Analyses of its
effectiveness are not yet available. However, owners of a cruise ship
that killed a humpback whale in Glacier Bay while exceeding the speed
limit agreed to pay a substantial fine for exceeding the speed limit
there.
In an experiment to determine the effects of vessel speed and the
incidence of collisions involving marine turtles, Hazel et al. (2007)
determined that vessel speed was a significant factor in the likelihood
of a strike and concluded that mandatory vessel speed restrictions were
necessary to reduce the risk of strikes to sea turtles.
As a result of a number of ship strike deaths of blue whales in
waters off southern California, vessel speed advisories of 10 knots or
less were provided by the USCG, in collaboration with NMFS and the
Channel Islands National Marine Sanctuary, within 20 nm of the
entrances to the ports of Los Angeles and Long Beach.
Elsewhere, Panigada et al. (2006) concluded that vessel speed
restrictions and the re-location of vessel routes in high cetacean
density areas would reduce the likelihood of ship strikes of fin whales
in the Mediterranean Sea.
Based on the analysis indicating the conservation value of reduced
vessel speeds and after considering concerns and information submitted
in response to the ANPR and NPRM, NMFS has
[[Page 60178]]
determined that a 10-knot speed restriction would significantly reduce
the risk of serious or lethal collisions for right whales in areas
where such speed restrictions would apply, also reducing potential
economic hardship on the maritime industry. Therefore, NMFS has
concluded, based on the best available scientific evidence, that a
maximum speed of 10 knots, as measured as ``speed over ground'', in
times and locations specified below, is the most effective and
practical approach to reducing the threat of ship strikes to right
whales. Ten knots therefore is the speed required by these regulations.
(B) A number of comments were received indicating that large
vessels lose steerage at low speeds, and that navigational safety was
at risk at speeds of 10 knots or less in adverse wind or sea conditions
and given the characteristics of the vessel. Comments from pilots
indicated that adequate maneuverability was particularly important when
negotiating a port entrance or channel.
Response: NMFS believes that, based on conversations with mariners
and application of speed restrictions in other contexts, except in
severe conditions, most ocean-going vessels maintain adequate steerage
at speeds of 10 knots or less. For example, NMFS points out that, as a
result of consultations under the Endangered Species Act and the
National Marine Sanctuaries Act, the Maritime Administration (MARAD)
now requires, as a condition of a Federal Deepwater Port license, that
carriers of liquefied natural gas (LNG) traveling to deepwater ports
off Boston proceed at speeds of 10 knots or less when right whales are
detected in the area (NMFS, 2007a; NMFS, 2007b). Thus an important
segment of the maritime industry has agreed to abide by a 10-knot speed
restriction to protect endangered marine mammals, and navigational
safety with regard to maneuverability at that speed was not raised as
an issue during those consultations.
The USCG also has established similar speed limits in some river
and port entrances ranging from 5-10 knots, for purposes other than
wildlife conservation, primarily to enhance national security (e.g., 66
FR 53712; 67 FR 41337; 68 FR 2201). For example, in one rule (66 FR
53712) the USCG required vessels 300 gross tons or greater to travel at
eight knots or less near Naval Station Norfolk. Based on comments that
speeds of eight knots might adversely affect large vessel
maneuverability, the USCG increased the limit to 10 knots (68 FR
35173).
In another example, the ports of Los Angeles and Long Beach, two of
the largest ports in the country, ask that vessels voluntarily reduce
speed to 12 knots within 20 nm (37 km) of the bay to reduce particulate
matter emissions. Those ports are considering tariff-based incentives
and have developed a plan to make the speed reductions mandatory. Also,
in many locations, state pilots require that vessels approaching ports
slow to speeds of 5 to 10 knots to allow port pilots to embark and
disembark vessels. Finally, in June 2007, the Government of the Hong
Kong Special Administrative Region implemented vessel speed
restrictions of 5 knots, applying to all vessels, in numerous ports and
port entrances throughout most of Hong Kong harbor and neighboring
waters to enhance navigational and human safety (Hong Kong Special
Administrative Region, 2007). NMFS is not aware of reports of increased
hazard or vessels losing maneuverability at the speeds at the locations
and regions identified above.
Further, NMFS is not aware of reports of increased hazard or loss
of vessel maneuverability in any of the cases indicated above (i.e.,
the waters of southern California, LNG carriers in waters off New
England, Hong Kong harbor, or Glacier Bay, Alaska) in which mandatory
or voluntary vessel speed limits were imposed.
Nevertheless, NMFS is concerned about human and navigational
safety, especially when severe conditions exist. Therefore, in response
to comments, NMFS is establishing the following exception to speed
restrictions being established in this rule: A vessel may operate at a
speed necessary to maintain safe maneuvering instead of the required
ten knots only if justified because the vessel is in an area where
oceanographic, hydrographic and/or meteorological conditions severely
restrict the maneuverability of the vessel and the need to operate at
such speed is confirmed by the pilot on board or, when a vessel is not
carrying a pilot, the master of the vessel. If a deviation from the
ten-knot speed limit is necessary, the reasons for the deviation, the
speed at which the vessel is operated, the area, and the time and
duration of such deviation shall be entered into the logbook of the
vessel. The master of the vessel shall attest to the accuracy of the
logbook entry by signing and dating it.
(C) A number of comments were received regarding the potential
economic impacts to commercial vessel operators arising from the
proposed regulations.
Response: Economic impacts are addressed in the Final Environmental
Impact Statement, Regulatory Impact Review, and Regulatory Flexibility
Act analysis, below.
(D) NMFS received a number of comments on the timing and boundaries
of the seasonal management areas (SMAs). Many were supportive of the
sizes and dates of the areas as being appropriately protective of right
whales. Some provided specific recommendations about modifying (either
enlarging or diminishing) the size of the areas or length of time in
which the restrictions applied. Some comments questioned NMFS's
decision to use the upper boundary of the radii around key mid-Atlantic
ports described in the ANPR (the ANPR suggested a range of 25-30 nm
(46.3-55.6 km); the NPRM proposed 30 nm (55.6 km)). Some comments dealt
with economic impact of SMAs, contending that sufficient right whale
sighting data were lacking or economic impacts were too great.
Response: Economic impacts resulting from modifications contained
in this final rule relative to the proposed rule are described in the
Regulatory Flexibility Act analysis, below. With regard to comments
specific to the times and boundaries of SMAs, NMFS provides responses
here.
In its NPRM, NMFS proposed to require vessel speed restrictions in
certain times and areas along the U.S. eastern seaboard. NMFS divided
waters off the east coast into three regions: Southeast U.S. coast
(south of St. Augustine, Florida to north of Brunswick, Georgia), U.S.
mid-Atlantic coast (generally, from slightly north of Brunswick,
Georgia to, and including, Rhode Island), and northeast U.S. coast
(north of Rhode Island), based on differences in right whale
distribution and behavior, oceanographic conditions, and ship traffic
patterns. The timing, duration, and geographic extent of the speed
restrictions were tightly constricted to reflect right whale movement,
distribution, and aggregation patterns to minimize potential impacts to
ship operations.
In light of the comments received, NMFS reviewed data on the timing
and locations of right whale occurrence. An analysis of sightings data
from 1972 through 2000 from the South Carolina/Georgia border to
Connecticut (n = 290) indicated that approximately 83 percent of all
right whale sightings occurred within 20 nm (37 km) of the coast, and
approximately 90 percent of all right whale sightings occurred within
30 nm (55.6 km) of the coast.
After weighing the proposed speed limit areas relative to the
economic impacts on elements of the shipping
[[Page 60179]]
industry, NMFS has made a number of changes to the locations of the
SMAs relative to the proposed rule, which are described below. However,
following the issuance of these regulations, NMFS will continue to
monitor right whale sighting locations relative to these boundaries and
may modify them, as appropriate, if changes are warranted based on
shifts in right whale occurrence or additional analysis.
(1) Southeast United States (SEUS) Operational Measure: In
considering the comments and in reviewing sighting data regarding the
key calving/nursery area in waters off Georgia and Florida, NMFS has
decided not to modify the dates nor the boundaries in which the vessel
speed restrictions apply. Therefore, speed restrictions of 10 knots or
less, over ground, will apply from November 15 to April 15 each year in
an area bounded by the following: Beginning at 31[deg]27'00.0'' N-
080[deg]51'36.0'' W; thence west to charted mean high water line then
south along charted mean high water line and inshore limits of COLREGS
limit to a latitude of 29[deg]45'00.0'' N; thence east to
29[deg]45'00.0'' N-080[deg]51'36.0'' W; thence back to starting point
(Fig. 1).
(2) Mid-Atlantic Region of the U.S. (MAUS) Operational Measure:
This area is used by right whales, particularly pregnant females and
females with calves, migrating to and from calving/nursery areas in the
SEUS and feeding grounds off the northeastern U.S. coast and Canada. In
the NPRM, NMFS proposed vessel speed restrictions within half-circles
seaward of seven key ports or port entrances.
Commenters contended that the economic impact of the SMAs was too
great without a concurrent and equal conservation benefit. NMFS has
reviewed right whale sighting data and, as a result, has decided not to
change the seasonality and duration of when measures apply in this
region. Therefore, vessel speed restrictions of 10 knots or less, over
ground, will apply November 1 through April 30 each year.
Based on comments and a review of sighting data, which includes
recurring right whale sightings between these ports, NMFS has decided
to modify the size and boundaries of the SMAs in the MAUS. NMFS makes
this change to reduce the economic burden on regulated entities while
maintaining the majority of the conservation benefits of the SMA. The
southern portion of the MAUS is modified to include a continuous SMA
extending 20 nm (37 km) from shore (rather than 30 nm (55.6 km) half-
circles) from Wilmington, North Carolina, south toward Brunswick,
Georgia (Fig. 2). Two stretches along the South Carolina coastline will
now be included in a continuous SMA. With the new 20-nm restriction
zones in the MAUS, the weighted average coast-wide time burden per
vessel arrival would be 53 minutes compared to 73 minutes in the
proposed rule with the 30-nm zones. By changing the speed restriction
zones in the MAUS, the transit times through the 20-nm speed
restriction zones dropped by 18 to 28 minutes (weighted average,
depending on port) relative to the 30-nm restriction zones. Therefore,
a 10-knot over-ground speed restriction will apply from November 1
through April 30 each year in the area bounded by the following:
33[deg]56'42.0'' N-077[deg]31'30.0'' W; thence along a NW bearing of
313.26[deg] True to charted mean high water line then south along mean
high water line and inshore limits of COLREGS limit to a latitude of
31[deg]27'00.0'' N; thence east to 31[deg]27'00.0'' N-080[deg]51'36.0''
W; thence to 31[deg]50'00.0'' N-080[deg]33'12.0'' W; thence to
32[deg]59'06.0'' N-078[deg]50'18.0'' W; thence to 33[deg]28'24.0'' N-
078[deg]32'30.0'' W; thence to 33[deg]36'30.0'' N-077[deg]47'06.0'' W;
thence back to starting point.
As to the remainder of the SMAs in this region, the ten-knot speed
restrictions will be in effect around each of the port or bay entrances
identified below and the designated area around Block Island Sound. The
areas are defined as the waters within a 20-nm (37-km) area (rather
than the proposed 30-nm (55.6-km)) with an epicenter located at the
midpoint of the COLREG demarcation line crossing the entry into the
following designated ports or bays (Fig. 2):
(A) Ports of New York/New Jersey: 40[deg]29'42.2'' N-
073[deg]55'57.6'' W;
(B) Delaware Bay (Ports of Philadelphia and Wilmington):
38[deg]52'27.4'' N-075[deg]01'32.1'' W;
(C) Entrance to the Chesapeake Bay (Ports of Hampton Roads and
Baltimore): 37[deg]00'36.9'' N-075[deg]57'50.5'' W; and
(D) Ports of Morehead City and Beaufort, NC: 34[deg]41'32.0'' N-
076[deg]40'08.3'' W; and
At Block Island Sound, in the area bounded by the following
coordinates: Beginning at 40[deg]51'53.7'' N-70[deg]36'44.9'' W; thence
to 41[deg]20'14.1'' N-70[deg]49'44.1'' W; thence to 41[deg]04'16.7'' N-
71[deg]51'21.0'' W; thence to 40[deg]35'56.5'' N-71[deg]38'25.1'' W;
thence back to starting point (Fig. 2).
(3) Northeast United States (NEUS): Waters off New England, the
NEUS (defined here as north of Rhode Island), are important foraging
and socializing areas for right whales. Whales occupy and forage in
four distinct areas: Cape Cod Bay; the area off Race Point (at the
northern end of Cape Cod); the Great South Channel (extending south and
east of Cape Cod); and the northern Gulf of Maine.
NMFS received comments about the duration and boundaries of
seasonally managed areas in this region. In considering the comments
and reviewing sighting data in this area, NMFS has decided not to alter
the boundaries and times identified in the proposed rule. Therefore,
restrictions will apply as follows.
(a) Cape Cod Bay Operational Measures: Vessel speed restrictions
will apply from January 1 to May 15 each year throughout all of Cape
Cod Bay, in an area beginning at 42[deg]04'56.5'' N-070[deg]12'00.0''
W; thence north to 42[deg]12'00.0'' N-070[deg]12'00.0'' W; thence due
west to charted mean high water line; thence along charted mean high
water within Cape Cod Bay back to beginning point. (Fig. 3).
(b) Off Race Point: In the area defined as ``Off Race Point'',
vessel speed restrictions will be in effect from March 1 to April 30
each year in a box approximately 50 nm (92.6 km) by 50 nm (92.6 km) to
the north and east of Cape Cod, MA (Fig. 3). The area consists of all
waters bounded by straight lines connecting the following points in the
order stated (Fig. 3): 42[deg]30'00.0'' N-069[deg]45'00.0'' W; thence
to 42[deg]30'00.0'' N-070[deg]30'00.0'' W; thence to 42[deg]12'00.0''
N-070[deg]30'00.0'' W; thence to 42[deg]12'00.0'' N-070[deg]12'00.0''
W; thence to 42[deg]04'56.5'' N-070[deg]12'00.0'' W; thence along
charted mean high water line and inshore limits of COLREGS limit to a
latitude of 41[deg]40'00.0'' N; thence due east to 41[deg]41'00.0'' N-
069[deg]45'00.0'' W; thence back to starting point.
(c) Great South Channel: In this area, vessel speed restrictions
will apply from April 1 to July 31 (Fig. 3). The area consists of all
waters bounded by straight lines connecting the following points in the
order stated:
42[deg]30'00.0'' N-069[deg]45'00.0'' W
41[deg]40'00.0'' N-069[deg]45'00.0'' W
41[deg]00'00.0'' N-069[deg]05'00.0'' W
42[deg]09'00.0'' N-067[deg]08'24.0'' W
42[deg]30'00.0'' N-067[deg]27'00.0'' W
42[deg]30'00.0'' N-069[deg]45'00.0'' W
Comment 3: NMFS received a number of comments about the use of
dynamically managed areas to reduce ship strikes. Most comments and
questions were related to NMFS' ability to quickly establish the areas;
dedication of resources to adequately survey and verify whale
locations; the size, duration, and criteria used to trigger such an
event; and economic impact resulting from the use of this measure.
[[Page 60180]]
Response: Designating Dynamic Management Areas (DMA) is a process
of restricting activities in areas where right whales occur outside the
SEUS, MAUS, and NEUS areas described above, or both within and outside
these areas when the seasonal management measures are not in effect.
NMFS continues to believe that dynamic management is a useful tool in
reducing ship strikes. Except for areas where right whales predictably
and consistently occur, based on sighting records, they can occur at
certain times and locations that are not predictable when, for example,
food resources are present. Outside certain predictable areas, right
whale prey concentrations can be ephemeral; their occurrence is
dictated by a confluence of oceanographic conditions that may vary
annually. As a result, right whale aggregations may occur outside the
specific NEUS, MAUS, and SEUS areas and times described above. NMFS
reiterates that, as complementary tools, the use of dynamically managed
areas allows for substantially smaller (in area) and shorter (in
duration) seasonal management measures. Moreover, the ability to
establish DMAs also addresses a comment NMFS has consistently received,
which is that the management measures should be tied directly to the
known presence of right whales. Thus, using DMAs helps accomplish the
conservation objective of protecting the whales while minimizing the
burden on industry that would be created by larger and longer SMAs.
Therefore, NMFS will establish a DMA by surveying right whale
habitat and, when a specific aggregation is sighted, NMFS will create a
temporary zone (i.e., DMA) around the aggregation where the speed limit
will apply. Mariner action will be voluntary. That is, mariners will be
expected but not required to either avoid the area or travel through it
at 10 knots or less. The zone will be in effect for 15 days and
automatically expire at the end of that period. The period may be
extended for an additional 15 days if whales are re-sighted in the same
area.
In addition, NMFS has decided to modify, relative to that described
in the NPRM, the criteria for triggering a DMA. Therefore, designation
of such an area will be established using the criteria and procedures
identified below.
(a) A circle with a radius of at least 3 nm (5.6 km) will be drawn
around each observed group. This radius would be adjusted for the
number of right whales seen in the group such that the density of 4
right whales per 100 nm2 (185.3 km2) is
maintained. The length of the radius would be determined by taking the
inverse of the 4 right whales per 100 nm2 (185.3
km2) density, which is 24 nm2 (44.5
km2) per whale. That figure is equivalent to a radial
distance of 2.77 nm (5.13 km) rounded up to 3 nm (5.6 km) for a single
right whale sighted (3.91 nm (7.25 km) rounded up to 4 nm (7.41 km) for
two whales, 4.79 nm (8.88 km) rounded up to 5 nm (9.27 km) for three
whales, etc.).
(b) If any circle or group of contiguous circles includes 3 or more
right whales, this core area and its surrounding waters will be a
candidate temporary zone. After NMFS identifies a core area containing
3 or more right whales, as described here, it will expand this initial
core area to provide a buffer area in which the right whales could move
and still be protected.
NMFS will determine the extent of the DMA zone by:
(a) Establishing a 15-nm (27.8-km) radius from the sighting
location used to draw a larger circular zone around each core area
encompassing a concentration of right whales. The sighting location is
the geographic center of all sightings on the first day of an event;
and
(b) Identifying latitude and longitude lines drawn outside but
tangential to the circular buffer zone(s).
NMFS will issue announcements of DMAs to mariners via its customary
maritime communication media (e.g., NOAA Weather radio, web sites, e-
mail and fax distribution lists) and any other available media outlets.
Information on the possibility of establishment of such zones will be
provided to mariners through written media such as U.S. Coast Pilots
and Notice to Mariners including, in particular, information on the
media mariners should monitor for notification of the establishment of
a DMA.
NMFS will monitor voluntary compliance with designated DMAs. If
adherence is not satisfactory, NMFS will consider making them
mandatory, through a subsequent rulemaking.
Comment 4: NMFS received comments about the vessel length to which
the vessel speed restrictions apply. Among them, commenters suggested
the minimum vessel size limit be increased to lengths ranging from 85
ft (25.9 m) to over 262 ft (79.9 m) to exclude certain ferries and
fishing and whale watching vessels. Other commenters suggested the
minimum size for restrictions be lowered to include vessels greater
than 40 ft (12.2 m) inasmuch as one known right whale ship strike
involved a 43-ft (13.1-m) vessel.
Response: In considering the comments and reviewing records of
right whale and all large whale ship strikes, NMFS has determined that,
for the purposes of this rulemaking, the appropriate vessel size is 65
ft (19.8 m) and greater. NMFS points out that 65 ft (19.8 m) is a size
threshold recognized in the maritime community and commonly used in
maritime regulations to distinguish between motorboats and larger
vessels; the latter are subject to regulatory requirements (e.g.,
Automatic Identification System (AIS) requirements; International
Navigational Rules Act, Rules of the Road sections). NMFS decided not
to increase the minimum size above 65 ft (19.8 m) or exempt certain
sectors of the maritime industry.
With regard to lowering the threshold, given the known vessel
strike of a right whale by a 43-ft (13.1-m) vessel, NMFS agrees that
vessels less than 65 ft (19.8 m) may pose a threat to right whales.
Thus, it will continue to consider means, including future rulemaking,
to address vessel classes below 65 ft (19.8 m). Additionally, in
collaboration with other organizations, NMFS will continue to engage in
education and outreach programs regarding right whale vulnerability to
ship strikes specific to the recreational, fishing, and other coastal
maritime activities that involve vessels less than 65 ft (19.8 m).
Therefore, the restrictions described herein apply to all vessels
greater than or equal to 65 ft (19.8 m) in overall length and subject
to the jurisdiction of the United States, and all other vessels greater
than or equal to 65 ft (19.8 m) in overall length entering or departing
a port or place subject to the jurisdiction of the United States.
However, these restrictions shall not apply to U.S. vessels owned or
operated by, or under contract to, the Federal Government (see below).
In addition, these restrictions do not apply to law enforcement vessels
of a State, or political subdivision thereof, when engaged in law
enforcement or search and rescue duties.
Comment 5: NMFS received a number of comments about exempting
vessels operated by U.S. Federal agencies from required speed
restrictions. Most indicated that Federal vessels should be subject to
the same restrictions as commercial vessels. One State agency also
recommended that State enforcement vessels, when engaged in enforcement
and human safety missions, should be exempted.
Response: NMFS, in consultation with other Federal agencies, has
determined that the national security, navigational, and human safety
missions of some agencies may be compromised by mandatory vessel speed
restrictions. However, this exemption will not relieve Federal
[[Page 60181]]
agencies of their obligations to consult, under section 7 of the ESA,
on how their activities may affect listed species. NMFS acknowledges
that a number of agencies already provide guidance to vessel operators
and fleets with regard to conservation measures to protect right whales
and other endangered species, as well as contribute to conservation
efforts generally.
NMFS will work with other Federal agencies regarding their vessel
operations to determine where ESA section 7 consultations would be
appropriate. Therefore, while these restrictions are not mandatory for
vessels owned or operated by, or under contract to, U.S. Federal
agencies, NMFS has requested all Federal agencies to voluntarily
observe the conditions of the proposed regulations when and where their
missions are not compromised. Therefore, these restrictions do not
apply to vessels owned or operated by, or under contract to, U.S.
Federal agencies. This exemption extends to foreign sovereign vessels
when they are engaging in joint exercises with the U.S. Department of
the Navy. In addition, and as noted above, NMFS has decided to exempt
State enforcement vessels when they are engaged in enforcement or human
safety missions.
Comment 6: A number of comments pertained to the use of existing or
developing technologies to address the threat of ship strikes by
detecting right whales and allowing mariners to avoid whales or
otherwise take appropriate ``evasive action''. Several commenters
indicated that if information was provided about where whales were
occurring, mariners would take evasive action. For example, one
commenter stated, ``We encourage the evaluation of an expansion of
technology that would provide a more effective method of spotting
whales in our coastal waters and then advise the shipping interest in
the area.'' Several others indicated that if funding had been put to
this problem years ago, a solution would have been found, tested, and
applied.
Response: The use of technological solutions to minimize or
eliminate a problem such as the threat of ship strikes to whales is the
most desirable approach. Employing an innovation or technology that can
truly mitigate a problem is preferable and should be pursued. NMFS is
committed to exploring and testing such technologies, and has provided
substantial funding for research and development of technological
solutions (for projects undertaken, see Right Whale Competitive Grants
program at http://www.nefsc.noaa.gov/psb/grantforms/). However, any
technological solution must be: (a) Proven as being directly effective
in reducing the threat, and (b) environmentally benign (i.e., not
adversely affecting right whales, other organisms or their habitats).
At this time, NMFS is not aware of a technology that exists, or will be
imminently available, that satisfies both these criteria. Therefore,
NMFS believes that existing technologies are not currently capable of
solving the problem or meeting the objectives of directly minimizing or
eliminating the threat. A review of present and historic use of, or
experimentation with, a wide variety of technologies applied to this
issue can be found in ``Technological alternatives to the problem of
North Atlantic right whale ship strikes,'' posted at http://www.nmfs.noaa.gov/pr/shipstrike/archive.htm. The paper discusses
technologies that include, but are not limited to, the use of
underwater SONAR, thermal imaging devices, light detection and ranging
(LIDAR), passive listening devices, and night vision optics.
Nearly all technologies considered fall into two general
categories: (a) Detecting whales, and (b) alarm devices to frighten
whales away from an area or in front of a ship. Means to increase the
probability of determining the occurrence and location of whales
include, but are not limited to, aircraft (visual) surveys, acoustic
listening devices (i.e., ``passive acoustics''), satellite tagging,
enhanced low-light optics, and posting trained lookouts. However, each
method has constraints and none can reliably identify the location of
all whales.
Certain SONAR devices have been developed or existing ones enhanced
and tested to locate whales. However, these devices are limited by: (1)
Detection ranges that are inadequate to provide mariners sufficient
time to react; (2) resolution inadequate to differentiate objects such
as whales from other objects in the water column (i.e., false
positives); and (3) the potential environmental or ecological impacts
that will accrue from the sound generated by such devices. The ability
of posted lookouts and enhanced low-light optical devices to detect
whales is limited by the difficulty of: (1) Observing animals in low/no
light conditions (e.g., night); (2) observing animals in sea states
greater than Beaufort 3-4; and (3) observing whales beneath the surface
(where they spend most of their time). Right whales rarely break the
surface and their backs are black or dark grey, making them difficult
to spot even under ideal conditions.
Satellite tagging technology of whales has made significant
advances in recent years, but it faces the perennial challenges of tag
attachment and longevity. In some large whale species, tags have been
affixed and (in some cases) have remained functional for days or weeks,
and useful tracks have been obtained (e.g., see Mate et al., 1997).
However, satellite tracking has been tried on North Atlantic right
whales with mixed success. The longest track was for 42 days. In all
other cases, the tag remained active for only hours or a few days. It
is believed that the tag antennae were rubbed off by the whales during
socialization or on the sea floor. Finding and tagging all whales would
be a colossal effort, and given that most animals are seen no more than
once a year, it is virtually impossible that all animals could be
tagged. Even if a tag could be designed that would stay on and not
malfunction, and if all whales could be tagged, battery life of the tag
would not ensure its perpetual operation. Therefore, NMFS would need to
re-tag all animals periodically (after the batteries run out). Finally,
tagging and the tag itself have attendant health issues for the whales.
Some tags have resulted in significant infections at the insertion
site. Thus, given the limitations described here, telemetry may remain
a useful tool for monitoring the movements of individual animals, but
cannot provide a means for real time management of whale-vessel
interactions.
Although all current detection technologies are limited, passive
acoustic technologies are a promising and maybe relatively cost-
effective means of improving detection. For this reason, NMFS is
collaborating with others to develop, test, and deploy listening
devices in areas that are critical or frequently used by right whales.
However, these devices are only effective (i.e., detection is only
possible) when whales are vocalizing. Such a system will not detect all
whales present, and it is not usually possible to determine the number
of whales or their exact location without visual verification.
Nonetheless, these programs make it possible to identify the presence
of (vocalizing) whales and this information can be passed to mariners.
However, in all cases involving possible technological solutions,
knowledge of right whale locations is only part of the equation. A
mariner must still take ``evasive action''. In addition, responding to
whales may put undue burden on responsible mariners who alter course or
speed when others do not, thus affecting navigational
[[Page 60182]]
safety. Whereas NMFS appreciates that all mariners are interested in
avoiding whales, merely providing right whale locations is not adequate
without specific expectations of appropriate action to take.
This point is exemplified by actions NMFS has taken in U.S. waters.
For years (since 1993 in waters off the U.S. southeast coast; and since
1997 in waters off New England), NMFS has conducted aircraft surveys
for right whales and provided sighting information to mariners.
Sightings are provided through various means to inbound and outbound
shipping traffic. In addition, NOAA began providing ship speed
advisories in 2005 in areas and at times where right whales occur,
particularly when right whales are known to be present. Even given
these efforts to guide mariners regarding avoiding a known right whale
sighting location, it is not always clear if a mariner will respond,
and if so, what that action might be (e.g., slow down, change course).
A study of mariner compliance with NMFS-issued speed advisories in the
Great South Channel found that 95 percent of ships tracked (38 out of
40) did not slow down or route around areas in which right whale
sightings locations and speed advisories were provided (Moller et al.,
2005). Whether this was due to mariners disregarding the alerts or
their ignorance that the alert existed is not known. In a related
study, Wiley et al. (2008) found that commercial whale watch vessel
operators exhibited high non-compliance rates even when aware of vessel
speed zones around whales. Therefore, even when whale locations are
detected and provided, it is not clear how mariners will respond if at
all, a situation not remedied by improved detection technologies.
With regard to alarm devices, no evidence exists that large whale
species would, in fact, respond to such a sound signal by moving away.
Acoustic deterrent or harassment devices have been used in certain
situations to warn small cetaceans and pinnipeds away from commercial
fishing gear and aquaculture operations by emitting loud sound pulses.
Their use has received mixed success because some marine mammals grow
accustomed to the stimuli (see Reeves et al., 1996). In the only study
of alarm sound playback experiments involving right whales, Nowacek et
al. (2003) found that right whales exposed to the alarm sounds
immediately rose to the surface and remained motionless, where they are
more vulnerable to being struck. Furthermore, chronic exposure to alarm
or alerting stimuli may result in whales and other marine species
abandoning a desired feeding or mating area that could result in
significant adverse effects on the population. Therefore, given its
mandate to protect and recover endangered marine species, even if such
alarm devices were found to be effective, NMFS is not likely to approve
a technique that repeatedly or chronically causes an endangered and
highly depleted population to disperse from a critical habitat or
preferred feeding area.
Therefore, although NMFS is committed to identifying and developing
technological advances proven effective in reducing ship strikes, none
exist at this time. As a result, absent specific and reliable
technological fixes, NMFS is taking steps to reduce the threat of ship
strikes by modifying specific vessel operations in times and locations
in which right whales are known or assumed to be present. Though no
proven technology to effectively manage the risk to right whales
currently exists, NMFS will complete a technology review in 2009, and
at appropriate times thereafter, to assess technology-based systems
that might be available to reduce the risk of ship strikes to right
whales. As part of these reviews, NMFS may engage the maritime industry
and the scientific community to research progress in developing
technological, efficient, and effective methods to address the threat
of ship strikes. NMFS will document any findings and may prepare a
draft report for public comment. Should NOAA find a technology that can
reduce the risk of ship strike mortalities, NMFS may consider taking
appropriate steps to allow the use of such technologies. Further, NMFS
will also consider rulemaking to allow the use of such technologies in
lieu of compliance with this rule if the technology could be used in a
manner that is at least as protective of right whales as this rule.
Comment 7: NMFS received comments about assessing the effectiveness
of the regulations, whether and if they would be lifted or relaxed if
they are successful in reducing or eliminating the threat, and whether
NMFS had flexibility in these management measures.
Response: NMFS will monitor compliance with the regulations and
take steps to ensure mariners adhere to the regulations. The goal is to
reduce or eliminate the threat of ship strikes--the primary source of
mortality in the endangered population. NMFS expects to use right whale
serious injury and deaths definitively attributed to vessel collisions,
and ship strike-related scarring rates to assess the effectiveness of
these regulations. Because right whale strandings are rare occurrences
and our ability to determine causes of death is limited, determining
the effectiveness of protective measures to a high level of statistical
significance is difficult and takes many years of data collection.
Based on available data, NMFS will consider adjusting the regulations.
Such actions would be taken through additional rulemaking. Measures
that NMFS could consider may involve vessel size, vessel routing (e.g.,
making recommended routes mandatory), vessel speed, making dynamically
managed areas mandatory, and the size and duration of the areas where
the restrictions apply.
Comment 8: One comment raised the question of whether the United
States can establish speed restrictions in the Exclusive Economic Zone;
another questioned whether the United States has the authority to
enforce speed limits in international waters.
Response: NOAA is issuing these regulations pursuant to its
rulemaking authority under MMPA section 112(a) (16 U.S.C. 1382(a)), and
ESA section 11(f) (16 U.S.C. 1540(f)). These 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). Some
provisions of these regulations differ from the ANPR and NPRM based on
comments received and additional analysis by NMFS.
The United States may impose the speed restriction set forth in
these regulations, consistent with international law. The international
law basis for such restriction is port State authority and the rule
applies to ships entering or departing U.S. ports. The United States
has always considered that a State has extensive authority to regulate
ships entering or departing its ports. As a legal matter, the United
States has neither limited this authority geographically nor by the
type of legitimate interest being protected. Customary international
law recognizes the interest of States in protection of its living
marine resources, including rare and endangered species.
A port State may establish conditions of port entry to ships both
inbound to and outbound from its ports. The interests a port State is
seeking to protect by the establishment of conditions of port entry
remain the same in most cases --including with regard to the protection
of right whales
[[Page 60183]]
from ship strikes--regardless of whether a ship is inbound or outbound;
thus, the restrictions imposed to protect this interest are critical on
both portions of a ship's voyage. The exercise of such authority is
consistent with United Nations Convention on the Law of the Sea
Articles 27(2) and 28(3), as well as State practice.
Comment 9: Several comments addressed issues related to the
enforcement of this regulation. The comments focused on the importance
of NMFS and the USCG working together to enforce this regulation and
some provided suggestions for enforcement mechanisms. Some comments
requested information about the penalties and fines that might apply to
violations of this regulation.
Response: NOAA is committed to implementing an effective
enforcement strategy and will continue to work with all of its
interagency partners, including the USCG, to do so. In addition, NOAA
has identified some available technologies that could be used to
supplement existing enforcement capabilities and will further explore
the application of these measures.
The ESA and MMPA identify the statutory maximum civil penalties and
criminal fines. NOAA promulgates Civil Administrative Penalty schedules
that are available to the public and provide guidance on how civil
penalties are assessed and likely penalty ranges for particular
violations. NOAA's Civil Administrative penalty schedules can be found
online at: http://www.gc.noaa.gov/enforce-office3.html.
Comment 10: Several commenters made reference to the need to
promulgate emergency regulations and cited earlier correspondence and a
petition to NMFS about establishing such regulations. In particular, in
January 2005, NMFS received a letter from the Marine Mammal Commission
recommending that NMFS quickly establish emergency regulations to limit
vessel speeds consistent with measures being considered by NMFS. In
addition, on May 19, 2005, NMFS received a petition co-signed by nine
organizations to issue emergency regulations to re-route vessels in
right whale habitat or slow them to 12 knots or less when entering U.S.
east coast ports and at distances of 25 nm (46.3 km) from shore.
Response: NMFS denied the petition (70 FR 56884), indicating
promulgating a separate 12-knot speed limit under an emergency
regulation would curtail full public notice and environmental analysis,
duplicate agency efforts and reduce agency resources for a more
comprehensive strategy, and risk delay in implementing the draft
strategy. NMFS indicated it would continue putting efforts into
implementing its comprehensive strategy as the best long-term solution
for curtailing right whale deaths due to vessel strikes. This
rulemaking marks a culmination of that effort.
Comment 11: Some commenters suggested that the rule have a
termination date. Proposed end dates for the rule were: (A) When a
sustainable population level is reached; (B) if the restrictions prove
ineffective; and (C) if no progress is measured after one year.
Response: There is some uncertainty regarding the manner in which
ships and whales interact and the relationship of speed and other
factors to whale injuries and mortalities. Some commenters, citing
these uncertainties, have raised issues regarding whether this
regulation will significantly reduce serious injury and deaths of large
whales caused by ship strikes. In view of these uncertainties, and the
burdens imposed on vessel operators, this rule will expire five years
from the date of effectiveness. During the five-year effectiveness of
the rule, to the extent possible with existing resources NOAA will
synthesize existing data, gather additional data, or conduct additional
research on ship-whale interactions to address those uncertainties.
NOAA will also review the economic consequences of this rule. After
this analysis is complete, NOAA will determine what further steps to
take regarding this rule.
Summary of Changes in the Rule Relative to the Proposed Rule
Based on comments received, NMFS has made the following changes to
the proposed rule: (1) Use of voluntary, rather than mandatory, speed
restrictions in DMAs; (2) exceptions to speed restrictions in SMAs in
severe conditions where vessel speed must exceed 10 knots to allow for
safe maneuvering; (3) a reduction in the size of the area of SMAs in
the MAUS from waters within a 30-nm (55.6-km) radius half-circle to
within a 20-nm (37-km) radius half-circle at the entrances to: The
Ports of New York/New Jersey, Delaware Bay, Chesapeake Bay, and the
ports of Morehead City and Beaufort, NC; (4) in waters off the
southernmost ports in MAUS, a continuous SMA has been established from
20 nm (37 km) north of Wilmington, NC to 20 nm (37 km) north of
Brunswick, GA, in lieu of 30 nm (55.6 km) half-circles around these
port entrances (Fig. 2); (5) exemption from speed restrictions for law
enforcement vessels of a State, or political subdivision thereof, when
engaged in law enforcement or search and rescue duties; and (6) this
final rule expires on December 9, 2013.
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McLellan, M.J. Moore, D.P. Nowacek, D.A. Pabst, A.J. Read, R.M.
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return: the strange case of reproduction in Eubalaena glacialis.
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Classification
This final rule has been determined to be economically significant
for purposes of Executive Order 12866.
This final rule does not have Federalism implications as that term
is defined in Executive Order 13132.
This final rule contains a collection of information subject to the
Paperwork Reduction Act (PRA). This requirement, the obligation in
section 224.105(c) to log deviations from the 10 knot speed limit for
safe operations, was not in the proposed rule and therefore not
submitted to OMB for review at that time. Therefore, NMFS will submit
this new information collection to OMB for emergency review under 44
U.S.C. 3507(j). NMFS also requests comment on this information
collection for 60 days as required under 44 U.S.C. 3506(c)(2)(A).
Public reporting burden for logbook entries in the event of
deviation from speed restrictions is estimated to average five minutes
per response, including time for reviewing instructions, searching
existing data sources, gathering and maintaining the data needed, and
completing and reviewing the collection information. There is no
additional cost to the affected public.
NMFS requests comments from the public to:
(i) Evaluate whether the proposed collection of information is
necessary for the proper performance of the functions of the agency,
including whether the information shall have practical utility;
(ii) Evaluate the accuracy of the agency's estimate of the burden
of the proposed collection of information;
(iii) Enhance the quality, utility, and clarity of the information
to be collected; and
(iv) Minimize the burden of the collection of information on those
who are to respond, including through the use of automated collection
techniques or other forms of information technology.
Send comments on these or any other aspects of the collection of
information to the NMFS, Office of Protected Resources at the address
above.
Notwithstanding any other provisions of the law, no person is
required to, and no person shall be subject to penalty for failure to
comply with, a collection of information subject to the requirements of
the PRA, unless the collection of information displays a currently
valid Office of Management and Budget (OMB) control number.
Final Regulatory Flexibility Analysis
Pursuant to section 604 of the Regulatory Flexibility Act (RFA),
NMFS prepared the following Final Regulatory Flexibility Analysis
(FRFA) in support of the final rule to implement speed restrictions to
reduce the threat of ship collisions with North Atlantic Right Whales.
The FRFA describes the
[[Page 60185]]
economic impact that this final rule will have on small entities.
The FRFA incorporates the economic impacts summarized in the
initial RFA (IRFA) for the proposed rule to implement speed
restrictions (71 FR 36299) and the corresponding economic analysis
prepared for the final rule (the FEIS, the Regulatory Impact Review
(RIR), and the Economic Analysis for the FEIS). For the most part,
those impacts are not repeated here. A copy of the IRFA, the RIR, the
FEIS, and the Economic Analysis for the FEIS are available from NMFS,
Office of Protected Resources and on the Office of Protected Resources
Web site (see ADDRESSES).
A description of the action, why it is being considered, the
objectives of, and legal basis for this action are contained in the
preamble to this final rule. This final rule does not duplicate,
overlap, or conflict with other Federal rules.
Description and Estimate of the Number of Small Entities to Which the
Final Rule Will Apply
The final rule implements changes to vessel operations affecting
vessels that are 65 feet (19.8 m) or greater in overall length. Seven
industries are directly affected by this rulemaking: Commercial
shipping, high-speed passenger ferries, regular-speed passenger
ferries, high-speed whale watching vessels, regular-speed whale
watching vessels, commercial fishing vessels, and charter fishing
vessels. This analysis uses small business size standards prescribed by
the Small Business Administration (SBA). Specifically, for
international and domestic shipping operations, the SBA size standard
for a small business is 500 employees or fewer. The same threshold
applies for international cruise operations and domestic ferry
services. All ferry, commercial fishing, and charter fishing operations
were assumed to be small entities. All but one whale watching operation
were assumed to be small entities. The number of small entities
expected to be affected by the final rulemaking by industry are: 362
commercial shipping (with various vessel classifications), 345
commercial fishing, 40 charter fishing, 13 passenger ferry, and 8 whale
watching. More detailed information on small entities, other than
commercial shipping, can be found on pages 143 through 147 and in
Tables 4-45 (commercial fishing), 4-46 (passenger ferries), and 4-49
(whale watching) of the Economic Analysis for the FEIS. Note that for
passenger ferry category, a small entity may operate both regular-speed
and high-speed vessels. More detailed information on small entities in
the commercial shipping sector is contained on pages 162 through 163 of
the Economic Analysis for the FEIS.
Description of the Projected Reporting, Recordkeeping, and Other
Compliance Requirements of the Final Rule
There are no compliance requirements other than the management
actions contained in the final rule. Recordkeeping requirements
associated with this final rule include logbook entries in the event of
deviation from speed restrictions. These entries are estimated to
average five minutes per response, including time for reviewing
instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection information.
A Summary of the Significant Issues Raised by the Public Comments in
Response to the IRFA, a Summary of the Assessment of the Agency of Such
Issues, and a Statement of Any Changes Made to the Proposed Rule as a
Result of Such Comments
NMFS received 10,252 comments on the proposed rule. Of these, 73
comments pertained to the IRFA or dealt with economic impacts specific
to small entities resulting from the management actions presented in
the proposed rule.
Numerous commenters raised a concern that the speed restrictions
would increase steam time for charter fishing vessels, resulting in a
much shorter time to fish and/or longer trips overall. This could
reduce the number of trips taken, curtail available fishing grounds,
reduce the number of customers willing to pay, increase operating
expenses, or hinder other operations.
Response: These concerns are valid and have been analyzed in the
Economic Analysis for the FEIS, which also analyzes economic impact to
small entities. In response, NMFS has decided that compliance with DMAs
will be voluntary, further reducing potential to lengthen fishing trips
should captains choose not to comply. Similarly, the SMAs are generally
not in place during the summer peak tourism and fishing season, with
the exception of the Great South Channel. See, for example, pages 147-
148 of the Economic Analysis for the FEIS regarding concerns expressed
by passenger ferry operators in timing speed restrictions during peak
summer season.
Numerous commenters suggested that the rule will affect tourism
industries due to restrictions placed on whale watching vessels or
passenger ferries. Other industries that support or work along with
vessels affected by the rule would also bear adverse economic impact.
Response: The IRFA that NMFS prepared for the proposed rule
analyzes the direct economic impacts to small entities resulting from
implementing regulations. While NMFS did not analyze the expected
economic impacts on small entities indirectly affected by the agency's
actions in the RFA, it did analyze these impacts in the Economic
Analysis for the FEIS (See Chapter 4, within the section entitled
``Estimated Economic Impact on Other Market Segments'').
Many commenters expressed concern about speed restrictions within
DMAs, which are likely to occur during peak summer months, which
commenters maintained would seriously hinder, and perhaps shut down,
ferries and whale-watching operations.
Response: NMFS has decided that compliance with speed restrictions
within DMAs will be voluntary. This will provide some measure of relief
to those small entities concerned with going out of business as a
result of DMAs.
A few commenters noted that increased fuel consumption would result
from increased vessel speed (outside of SMAs and DMAs) to stay on
schedule. The IRFA provided an assessment of likely compliance costs or
benefits associated with changes in fuel consumption from speed
restriction measures. Increased fuel consumption for vessels increasing
speed to make up time is not included in the economic analysis because
the cost of the delays themselves--far greater costs than increased
fuel consumption to compensate for delays--is calculated and included
in the IRFA. See for example, Table 4-45 and accompanying text, for a
discussion on the increased roundtrip travel time for commercial
fishing vessels. Given an hourly fishing vessel operating cost of $300,
the average additional travel time of 38 minutes would translate to an
additional operating cost of $190 per trip. Even if the fishing vessel
sped up outside the speed restricted area to help offset the increase
in travel time and operating costs, the incremental increase in
operating cost due to increased fuel consumption would only be a
portion of the overall hourly operating costs recovered when speeding
up outside the speed restricted area. Therefore, the economic analysis
conservatively assumes that vessels will not speed up to make up time
and hence includes the maximum estimate of delay that would be
incurred.
[[Page 60186]]
Some commenters stated that the regulations seem unwarranted or
excessive given that many boaters had rarely, if ever, encountered a
right whale or that out of thousands of boat trips on the east coast,
only a dozen or so right whale deaths are attributable to ship strikes.
Some questioned the notion of incurring considerable economic burden to
businesses for right whale protection.
Response: Right whales are difficult to see, especially in less
than ideal (e.g., Beaufort Scale Sea State 3 or greater, or low light)
conditions. But, they have historically and regularly occurred in the
areas identified in this rule. Mariners' difficulty in seeing right
whales in the water is likely one contributing factor in the occurrence
of ship strikes. Ship strike deaths are rare events and yet each is
highly significant to the depleted population. NMFS has endeavored to
reduce the economic impacts of this rule by minimizing, in time and
space, the areas in which the restrictions apply.
Economic Impacts Resulting From Changes to the Proposed Rule
As discussed in the preamble of this final rule, NMFS has modified
various components of the proposed rule. These are: (1) Use of
voluntary, rather than mandatory, speed restrictions in DMAs; (2)
exceptions to speed restrictions in SMAs in severe conditions where
vessel speed must exceed 10 knots to allow for safe maneuvering and
provisions to improve enforcement of these regulations; (3) a reduction
in the size of the area of SMAs in the MAUS from waters within a 30-nm
(55.6-km) radius half-circle to within a 20-nm (37-km) radius half-
circle at the entrances to: The Ports of New York/New Jersey, Delaware
Bay, Chesapeake Bay, and the ports of Morehead City and Beaufort, NC;
(4) in waters off the southernmost ports in MAUS, a continuous SMA has
been established from 20 nm (37 km) north of Wilmington, NC to 20 nm
(37 km) north of Brunswick, GA, in lieu of 30 nm (55.6 km) half-circles
around these port entrances (Fig. 2); (5) exemption from speed
restrictions for law enforcement vessels of a State, or political
subdivision thereof, when engaged in law enforcement or search and
rescue duties; and (6) this final rule expires on December 9, 2013. The
estimated economic impacts in the IRFA have been updated here, using
recent (June 2008) fuel prices, to reflect these modifications to the
proposed rule.
With regard to vessel speed restrictions within DMAs that are not
mandatory, NMFS has calculated economic impacts based on 100-percent
compliance, although the actual compliance rate will likely be lower.
That is, whereas NMFS is hopeful that adherence to a voluntary measure
is high, it likely will not be 100 percent. Therefore, NMFS has
calculated the most extreme case with regard to economic impact.
Assuming 100-percent compliance with all measures of the rule, this
action would reduce annual revenues to vessels as follows: Commercial
shipping 0.15 percent of annual receipts, high-speed passenger ferries
4.9 percent, regular-speed passenger ferries 7.9 percent, high-speed
whale watching vessels 4.2 percent, regular-speed whale watching
vessels 3.8 percent, commercial fishing vessels 0.5 percent, and
charter fishing vessels 3.9 percent. See Table 5-7 of the Economic
Report for the FEIS. Economic impacts will correspondingly be lower
with any compliance rate less than 100 percent.
Description of the Steps the Agency Has Taken To Minimize the
Significant Economic Impact on Small Entities Consistent With the
Stated Objectives of Applicable Statutes
NMFS carefully weighed the speed restriction provisions contained
in this final rule in light of right whale protection as well as
economic impact. As a result, NMFS tightly constrained in time and
place seasonal management areas to correspond only to known right whale
occurrence. NMFS determined that creating larger SMAs than those being
enacted would provide greater protection for right whales that may
occur outside historical aggregation areas or where densities are
lower. However, the potential economic impacts increase as SMAs grow in
size, even as the relative conservation benefits become increasingly
smaller. As a result, the SMAs have been made as small as practicable
while still providing conservation value. In addition, by creating
DMAs, NMFS was able to maintain SMAs at minimal sites, further reducing
economic impact.
The use of DMAs allows for establishing protective measures when
right whales are sighted outside locations and times of SMAs. Current
limitations in agency resources make it difficult to verify and
subsequently establish DMAs quickly. Furthermore, the duration of the
DMAs may continue past the time in which whales are present. Therefore,
NMFS will establish a DMA program as an action complementary to SMAs,
although not through rulemaking. NMFS will announce DMAs to mariners
through its customary maritime communication media and any other
appropriate media channels. NMFS hopes vessel operators will avoid the
area or proceed through the area at 10 knots, but understands that many
will not. Nonetheless, operators remain liable under MMPA and ESA if
they do strike a whale.
Operators of whale-watching vessels and passenger vessels had
indicated during the public comment period that requiring speed
restrictions in DMAs during peak season would result in economic
hardship. One consequence of administering DMAs with speed restrictions
that are not mandatory is that it alleviates further economic burden,
particularly to those vessels operating during peak summer months in
areas where no SMA is in place.
NMFS is allowing an exemption to speed restrictions contained in
this final rule in response to navigational safety concerns. This
exemption allows for a vessel, under severe conditions, to operate at a
speed above the required 10 knots to maneuver safely. This exemption
has been incorporated into the final rule in response to comments from
small entities, the larger universe of vessel operators, and port
authorities. A vessel may operate at a speed necessary to maintain safe
maneuvering speed instead of the required ten knots only if justified
because the vessel is in an area where oceanographic, hydrographic and/
or meteorological conditions severely restrict the maneuverability of
the vessel and the need to operate at such speed is confirmed by the
pilot on board or, when a vessel is not carrying a pilot, the master of
the vessel. If a deviation from the ten-knot speed limit is necessary,
the reasons for the deviation, the speed at which the vessel is
operated, the latitude and longitude of the area, and the time and
duration of such deviation shall be entered into the logbook of the
vessel. The master of the vessel shall attest to the accuracy of the
logbook entry by signing and dating it.
The final rule is subject to a ``sunset clause'' in which this
final rule is set to expire five years from date of effectiveness. This
provides some measure of relief to all affected entities, including
small entities, in that any future action will be subject to applicable
rulemaking procedures, including RFA and NEPA.
NMFS analyzed a number of alternatives to reduce ship strikes, in
addition to the ``no action'' alternative. The ``no action''
alternative was rejected because NMFS has determined that specific
action (i.e., vessel speed restrictions) is needed to reduce the threat
of ship collisions with right whales.
One alternative required use of DMAs only as a single regulatory
action. Small
[[Page 60187]]
businesses may prefer this alternative to the provisions of the final
rule, which includes SMAs. However, relying solely on DMAs would not
provide the needed protection to right whales, since this measure
requires being able to identify right whale aggregations to trigger
DMAs. In addition, one consistent comment NMFS has received is that the
shipping industry relies on predictability to meet timetables, coincide
with maximum tides in some ports, and to schedule longshoremen. The use
of DMAs exclusively and no other measures (e.g., SMAs) would render the
protection measures highly unpredictable, confounding shipping
schedules. Moreover, identification of right whale aggregations is not
always possible in practice (e.g., due to poor weather or other
logistical constraints), thus relying on this measure alone may not
reduce ship strikes sufficiently to promote population recovery.
Dynamic management is used to reduce fishery gear entanglements when
right whales aggregations are discovered. The approach is used in
conjunction with fishing gear modifications. Therefore, this system,
when used in concert with other actions, can be an important management
tool. It is not a flawless system inasmuch as it is limited by
constraints inherent to aircraft surveys (e.g., darkness, weather). One
significant difference between the fishing gear Dynamic Area Management
program and dynamic management as it pertains to other maritime
industries is that fishers are required to change out gear, a rather
burdensome task. The shipping industry could be notified real-time by
electronic media and with relatively minor modifications to voyage
planning can route around the area or travel through it at reduced
speed.
Another alternative analyzed was the implementation of SMAs as a
single regulatory action, where the SMAs were substantially larger in
size and in duration than those contained in the final rule. This
alternative as a stand-alone measure was determined to be unlikely to
aid in the recovery of right whales, since as a single measure, it does
not allow for responding to situations when right whales are sighted
outside of predictable or historic aggregation areas. In addition,
because the SMAs were larger than those being enacted, the added
economic burden would be substantial. Vessels would be required to
travel at 10 knots farther from shore and on more days than will be
required by the provisions of the final rule.
One alternative consisted of proposed vessel routing measures in
lieu of speed restrictions. However, NMFS determined that changes in
routing procedures alone would not provide adequate protection from
ship strikes for right whales. Another alternative analyzed was the use
of both DMAs and large-scale SMAs as regulatory actions. This
alternative would have provided the greatest protection to the right
whale population. Impacts to small entities would also have been
greatest under this alternative, since the SMAs in this alternative
were substantially larger geographically and longer temporally than
those prescribed in the final rule.
Other significant alternatives to the final rule included speed
restrictions at 12 or 14 knots, rather than the 10-knot speed
restriction in the final rule. Based on the analysis provided in the
IRFA, NMFS recognizes that operators of regular-speed passenger
ferries, regular-speed whale-watching vessels, and charter fishing
vessels would prefer the 12-or 14-knot options. However, NMFS
scientists and other independent scientists have determined that as
vessel speed increases, the likelihood of serious injury and death to
whales increases. Therefore, among the three speed restriction options,
the ten-knot option provides the greatest protection for right whales
and the greatest likelihood of allowing recovery of this critically
endangered species.
Section 212 of the Small Business Regulatory Enforcement Fairness
Act of 1996 states that for each rule or group of related rules for
which an agency is required to prepare a FRFA, the agency shall publish
one or more guides to assist small entities in complying with the rule,
and shall designate such publications as ``small entity compliance
guides.'' The agency shall explain the actions a small entity is
required to take to comply with a rule or group of rules. A small
entity compliance guide was prepared as part of this rulemaking
process. The guide will be sent to all holders of permits issued for NE
and SE fisheries, ferry operators, whale watching vessel operators, and
shipping companies. Guides will also be provided to port authorities,
port pilots, and the USCG, and others as appropriate, for distribution
to the maritime industry. In addition, copies of this final rule and
guide are available from NMFS, Office of Protected Resources and on the
Office of Protected Resources Web site (see ADDRESSES).
List of Subjects in 50 CFR Part 224
Endangered marine and anadromous species.
Dated: October 6, 2008.
Samuel D. Rauch,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
0
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 part 224, a new Sec. 224.105 is added to read as follows:
Sec. 224.105 Speed restrictions to protect North Atlantic Right
Whales.
(a) The following restrictions apply to: All vessels greater than
or equal to 65 ft (19.8 m) in overall length and subject to the
jurisdiction of the United States, and all other vessels greater than
or equal to 65 ft (19.8 m) in overall length entering or departing a
port or place subject to the jurisdiction of the United States. These
restrictions shall not apply to U.S. vessels owned or operated by, or
under contract to, the Federal Government. This exemption extends to
foreign sovereign vessels when they are engaging in joint exercises
with the U.S. Department of the Navy. In addition, these restrictions
do not apply to law enforcement vessels of a State, or political
subdivision thereof, when engaged in law enforcement or search and
rescue duties.
(1) Southeast U.S. (south of St. Augustine, FL to north of
Brunswick, GA): Vessels shall travel at a speed of 10 knots or less
over ground during the period of November 15 to April 15 each year in
the area bounded by the following: Beginning at 31[deg]27'00.0'' N-
080[deg]51'36.0'' W; thence west to charted mean high water line then
south along charted mean high water line and inshore limits of COLREGS
limit to a latitude of 29[deg]45'00.0'' N thence east to
29[deg]45'00.0'' N-080[deg]51'36.0'' W; thence back to starting point.
(Fig. 1).
(2) Mid-Atlantic U.S. (from north of Brunswick, Georgia to Rhode
Island): Vessels shall travel 10 knots or less over ground in the
period November 1 to April 30 each year:
(i) In the area bounded by the following: 33[deg]56'42.0'' N-
077[deg]31'30.0'' W; thence along a NW bearing of 313.26[deg] True to
charted mean high water line then south along mean high water line and
inshore limits of COLREGS limit to a latitude of 31[deg]27'00.0'' N;
thence east to 31[deg]27'00.0'' N-080[deg]51'36.0'' W; thence to
31[deg]50'00.0''
[[Page 60188]]
N-080[deg]33'12.0'' W; thence to 32[deg]59'06.0'' N-078[deg]50'18.0''
W; thence to 33[deg]28'24.0'' N-078[deg]32'30.0'' W; thence to
33[deg]36'30.0'' N-077[deg]47'06.0'' W; thence back to starting point.;
(ii) Within a 20-nm (37 km) radius (as measured seaward from
COLREGS delineated coast lines and the center point of the port
entrance) (Fig. 2) at the
(A) Ports of New York/New Jersey: 40[deg]29'42.2'' N-
073[deg]55'57.6'' W;
(B) Delaware Bay (Ports of Philadelphia and Wilmington):
38[deg]52'27.4'' N-075[deg]01'32.1'' W;
(C) Entrance to the Chesapeake Bay (Ports of Hampton Roads and
Baltimore): 37[deg]00'36.9'' N-075[deg]57'50.5'' W; and
(D) Ports of Morehead City and Beaufort, NC: 34[deg]41'32.0'' N-
076[deg]40'08.3'' W; and
(iii) In Block Island Sound, in the area bounded by the following
coordinates: Beginning at 40[deg]51'53.7'' N-70[deg]36'44.9'' W; thence
to 41[deg]20'14.1'' N-70[deg]49'44.1'' W; thence to 41[deg]04'16.7'' N-
71[deg]51'21.0'' W; thence to 40[deg]35'56.5'' N-71[deg]38'25.1'' W;
thence back to starting point. (Fig. 2).
(3) Northeast U.S. (north of Rhode Island):
(i) In Cape Cod Bay, MA: Vessels shall travel at a speed of 10
knots or less over ground during the period of January 1 to May 15 in
Cape Cod Bay, in an area beginning at 42[deg]04'56.5'' N-
070[deg]12'00.0'' W; thence north to 42[deg]12'00.0'' N-
070[deg]12'00.0'' W; thence due west to charted mean high water line;
thence along charted mean high water within Cape Cod Bay back to
beginning point. (Fig. 3).
(ii) Off Race Point: Vessels shall travel at a speed of 10 knots or
less over ground during the period of March 1 to April 30 each year in
waters bounded by straight lines connecting the following points in the
order stated (Fig. 3): 42[deg]30'00.0'' N-069[deg]45'00.0'' W; thence
to 42[deg]30'00.0'' N-070[deg]30'00.0'' W; thence to 42[deg]12'00.0''
N-070[deg]30'00.0'' W; thence to 42[deg]12'00.0'' N-070[deg]12'00.0''
W; thence to 42[deg]04'56.5'' N-070[deg]12'00.0'' W; thence along
charted mean high water line and inshore limits of COLREGS limit to a
latitude of 41[deg]40'00.0'' N; thence due east to 41[deg]41'00.0'' N-
069[deg]45'00.0'' W; thence back to starting point.
(iii) Great South Channel: Vessels shall travel at a speed of 10
knots or less over ground during the period of April 1 to July 31 each
year in all waters bounded by straight lines connecting the following
points in the order stated (Fig. 3):
42[deg]30'00.0'' N-069[deg]45'00.0'' W
41[deg]40'00.0'' N-069[deg]45'00.0'' W
41[deg]00'00.0'' N-069[deg]05'00.0'' W
42[deg]09'00.0'' N-067[deg]08'24.0'' W
42[deg]30'00.0'' N-067[deg]27'00.0'' W
42[deg]30'00.0'' N-069[deg]45'00.0'' W
(b) Except as noted in paragraph (c) of this section, it is
unlawful under this section:
(1) For any vessel subject to the jurisdiction of the United States
to violate any speed restriction established in paragraph (a) of this
section; or
(2) For any vessel entering or departing a port or place under the
jurisdiction of the United States to violate any speed restriction
established in paragraph (a) of this section.
(c) A vessel may operate at a speed necessary to maintain safe
maneuvering speed instead of the required ten knots only if justified
because the vessel is in an area where oceanographic, hydrographic and/
or meteorological conditions severely restrict the maneuverability of
the vessel and the need to operate at such speed is confirmed by the
pilot on board or, when a vessel is not carrying a pilot, the master of
the vessel. If a deviation from the ten-knot speed limit is necessary,
the reasons for the deviation, the speed at which the vessel is
operated, the latitude and longitude of the area, and the time and
duration of such deviation shall be entered into the logbook of the
vessel. The master of the vessel shall attest to the accuracy of the
logbook entry by signing and dating it.
(d) This final rule expires on December 9, 2013.
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[FR Doc. E8-24177 Filed 10-7-08; 4:15 pm]
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