Endangered Fish and Wildlife; Final Rule To Implement Speed Restrictions to Reduce the Threat of Ship Collisions With North Atlantic Right Whales, 60173-60191 [E8-24177]
Download as PDF
Federal Register / Vol. 73, No. 198 / Friday, October 10, 2008 / Rules and Regulations
October 1, 2009, through December 31,
2009: Cost submission due January
30, 2010.
Federal Communications Commission.
Nicole McGinnis,
Deputy Chief, Consumer and Governmental
Affairs Bureau.
[FR Doc. E8–24006 Filed 10–9–08; 8:45 am]
BILLING CODE 6712–01–P
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
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Final rule.
jlentini on PROD1PC65 with RULES
AGENCY:
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.
VerDate Aug<31>2005
17:42 Oct 09, 2008
Jkt 217001
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
https://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.,
PO 00000
Frm 00077
Fmt 4700
Sfmt 4700
60173
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
E:\FR\FM\10OCR1.SGM
10OCR1
jlentini on PROD1PC65 with RULES
60174
Federal Register / Vol. 73, No. 198 / Friday, October 10, 2008 / Rules and Regulations
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
VerDate Aug<31>2005
17:42 Oct 09, 2008
Jkt 217001
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 shorebased 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 GeospatialIntelligence 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.
PO 00000
Frm 00078
Fmt 4700
Sfmt 4700
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;
E:\FR\FM\10OCR1.SGM
10OCR1
Federal Register / Vol. 73, No. 198 / Friday, October 10, 2008 / Rules and Regulations
jlentini on PROD1PC65 with RULES
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 https://
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
VerDate Aug<31>2005
17:42 Oct 09, 2008
Jkt 217001
the proposed regulations; 225 contained
substantive comments on specific
measures or components of the
proposed rule. All comments have been
compiled and posted at https://
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.
PO 00000
Frm 00079
Fmt 4700
Sfmt 4700
60175
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 peerreviewed 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–
E:\FR\FM\10OCR1.SGM
10OCR1
jlentini on PROD1PC65 with RULES
60176
Federal Register / Vol. 73, No. 198 / Friday, October 10, 2008 / Rules and Regulations
2005, and 2.4 from 2002–2006,
respectively. In an eight-week period
from mid-November 2004 to midJanuary 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
VerDate Aug<31>2005
17:42 Oct 09, 2008
Jkt 217001
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
PO 00000
Frm 00080
Fmt 4700
Sfmt 4700
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.
E:\FR\FM\10OCR1.SGM
10OCR1
jlentini on PROD1PC65 with RULES
Federal Register / Vol. 73, No. 198 / Friday, October 10, 2008 / Rules and Regulations
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.
VerDate Aug<31>2005
17:42 Oct 09, 2008
Jkt 217001
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), CampbellMalone (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
PO 00000
Frm 00081
Fmt 4700
Sfmt 4700
60177
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
E:\FR\FM\10OCR1.SGM
10OCR1
jlentini on PROD1PC65 with RULES
60178
Federal Register / Vol. 73, No. 198 / Friday, October 10, 2008 / Rules and Regulations
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 10knot 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).
VerDate Aug<31>2005
17:42 Oct 09, 2008
Jkt 217001
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
PO 00000
Frm 00082
Fmt 4700
Sfmt 4700
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
E:\FR\FM\10OCR1.SGM
10OCR1
jlentini on PROD1PC65 with RULES
Federal Register / Vol. 73, No. 198 / Friday, October 10, 2008 / Rules and Regulations
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°27′00.0″ N–080°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°45′00.0″ N; thence east to 29°45′00.0″
N–080°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
VerDate Aug<31>2005
17:42 Oct 09, 2008
Jkt 217001
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°56′42.0″ N–077°31′30.0″
W; thence along a NW bearing of
313.26° 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°27′00.0″ N; thence east to 31°27′00.0″
N–080°51′36.0″ W; thence to 31°50′00.0″
N–080°33′12.0″ W; thence to 32°59′06.0″
N–078°50′18.0″ W; thence to 33°28′24.0″
N–078°32′30.0″ W; thence to 33°36′30.0″
N–077°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°29′42.2″ N–073°55′57.6″ W;
(B) Delaware Bay (Ports of
Philadelphia and Wilmington):
38°52′27.4″ N–075°01′32.1″ W;
(C) Entrance to the Chesapeake Bay
(Ports of Hampton Roads and
Baltimore): 37°00′36.9″ N–075°57′50.5″
W; and
(D) Ports of Morehead City and
Beaufort, NC: 34°41′32.0″ N–
076°40′08.3″ W; and
At Block Island Sound, in the area
bounded by the following coordinates:
Beginning at 40°51′53.7″ N–70°36′44.9″
W; thence to 41°20′14.1″ N–70°49′44.1″
W; thence to 41°04′16.7″ N–71°51′21.0″
W; thence to 40°35′56.5″ N–71°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
PO 00000
Frm 00083
Fmt 4700
Sfmt 4700
60179
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°04′56.5″ N–
070°12′00.0″ W; thence north to
42°12′00.0″ N–070°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°30′00.0″ N–
069°45′00.0″ W; thence to 42°30′00.0″
N–070°30′00.0″ W; thence to 42°12′00.0″
N–070°30′00.0″ W; thence to 42°12′00.0″
N–070°12′00.0″ W; thence to 42°04′56.5″
N–070°12′00.0″ W; thence along charted
mean high water line and inshore limits
of COLREGS limit to a latitude of
41°40′00.0″ N; thence due east to
41°41′00.0″ N–069°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°30′00.0″ N–069°45′00.0″ W
41°40′00.0″ N–069°45′00.0″ W
41°00′00.0″ N–069°05′00.0″ W
42°09′00.0″ N–067°08′24.0″ W
42°30′00.0″ N–067°27′00.0″ W
42°30′00.0″ N–069°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.
E:\FR\FM\10OCR1.SGM
10OCR1
jlentini on PROD1PC65 with RULES
60180
Federal Register / Vol. 73, No. 198 / Friday, October 10, 2008 / Rules and Regulations
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 resighted 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
VerDate Aug<31>2005
17:42 Oct 09, 2008
Jkt 217001
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
PO 00000
Frm 00084
Fmt 4700
Sfmt 4700
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
E:\FR\FM\10OCR1.SGM
10OCR1
jlentini on PROD1PC65 with RULES
Federal Register / Vol. 73, No. 198 / Friday, October 10, 2008 / Rules and Regulations
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 https://
www.nefsc.noaa.gov/psb/grantforms/).
VerDate Aug<31>2005
17:42 Oct 09, 2008
Jkt 217001
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 https://
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 lowlight 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.
PO 00000
Frm 00085
Fmt 4700
Sfmt 4700
60181
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
E:\FR\FM\10OCR1.SGM
10OCR1
jlentini on PROD1PC65 with RULES
60182
Federal Register / Vol. 73, No. 198 / Friday, October 10, 2008 / Rules and Regulations
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 noncompliance 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
VerDate Aug<31>2005
17:42 Oct 09, 2008
Jkt 217001
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
PO 00000
Frm 00086
Fmt 4700
Sfmt 4700
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
E:\FR\FM\10OCR1.SGM
10OCR1
jlentini on PROD1PC65 with RULES
Federal Register / Vol. 73, No. 198 / Friday, October 10, 2008 / Rules and Regulations
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: https://
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 reroute 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
VerDate Aug<31>2005
17:42 Oct 09, 2008
Jkt 217001
in implementing the draft strategy.
NMFS indicated it would continue
putting efforts into implementing its
comprehensive strategy as the best longterm 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
PO 00000
Frm 00087
Fmt 4700
Sfmt 4700
60183
and rescue duties; and (6) this final rule
expires on December 9, 2013.
Literature Cited
Best, P.B., J.L. Bannister, R.L. Brownell, Jr.,
and G.P. Donovan. Eds. 2001. Right
whales: worldwide status. J. Cetacean
Res. Manage. (Special Issue) 2. 309
pages.
Calleson, C.S. and R.K. Frolich. 2007. Slower
boat speeds reduce risks to manatees.
Endang. Species Res. 3(3):295–304. 2007.
Campbell-Malone, R., 2007. Biomechanics of
North Atlantic right whale bone:
mandibular fracture as a fatal endpoint
for blunt vessel-whale collision
modeling. Ph.D. dissertation, WoodsHole
Oceanographic Institution, Woods Hole,
MA.
Caswell, H., M. Fujiwara, and S. Brault. 1999.
Declining survival probability threatens
the North Atlantic right whale. Proc. Nat.
Acad. Sci. 96:3308 3313.
Clyne, H. 1999. Computer simulations of
interactions between the North Atlantic
Right Whale (Eubalaena glacialis) and
shipping. MSc Thesis, Napier University.
Edinburgh, Scotland. 53 p.
Fujiwara, M., and H. Caswell. 2001.
Demography of the endangered North
Atlantic right whale. Nature. 414:537–
543.
Glass, A.H., T.V.N. Cole, M. Garron, R.L.
Merrick, and R.M. Pace, III. 2008.
Mortality and Serious Injury
Determinations for Baleen Whale Stocks
along the United States Eastern Seaboard
and Adjacent Canadian Maritimes, 2002–
2006. U.S. Department of Commerce,
Northeast Fisheries Science Center
Reference Document 08–04; 26 p.
Hazel J., I.R. Lawler, H. Marsh and S. Robson.
2007. Vessel speed increases collision
risk for the green turtle Chelonia mydas.
Endang. Species Res. 3:105–113.
Hong Kong Special Administrative Regions.
2006. Marine Department Notice No. 93
of 2007.
Jensen, A.S., and G.K. Silber. 2003. Large
whale ship strike database. U.S.
Department of Commerce, NOAA
Technical Memorandum NMFS–F/OPR
25, 37 p.
Kite-Powell, H.K., A. Knowlton, and M.
Brown. 2007. Modeling the effect of
vessel speed on right whale ship strike
risk. Project report for NOAA/NMFS
Project NA04NMF47202394, April 2007.
Knowlton, A. R., F.T. Korsmeyer, J.E. Kerwin,
H.Y. Wu and B. Hynes. 1995. The
hydrodynamic effects of large vessels on
right whales. NMFS Contract No.
40EANFF400534.
Knowlton, A. R., F.T. Korsmeyer, and B.
Hynes. 1998. The hydrodynamic effects
of large vessels on right whales: phase
two. Final Report—NMFS–NEFSC
contract no. 46ANF60004.
Knowlton, A.R., and S.D. Kraus. 2001.
Mortality and serious injury of northern
right whales (Eubalaena glacialis) in the
western North Atlantic Ocean. J.
Cetacean Res. Manage. (Special Issue) 2:
193 208.
Kraus, S.D. 1990. Rates and potential causes
of mortality in North Atlantic right
E:\FR\FM\10OCR1.SGM
10OCR1
jlentini on PROD1PC65 with RULES
60184
Federal Register / Vol. 73, No. 198 / Friday, October 10, 2008 / Rules and Regulations
whales (Eubalaena glacialis) Mar. Mam.
Sci. 6:278–291.
Kraus, S.D., P.K. Hamilton, R.D. Kenney, A
Knowlton, and C.K. Slay. 2001.
Reproductive parameters of the North
Atlantic right whale. J. Cetacean Res.
Manage. (Special Issue). 2:231–236.
Kraus, S.D., M.W. Brown, H. Caswell, C.W.
Clark, M. Fujiwara, P.K. Hamilton, R.D.
Kenney, A.R. Knowlton, S. Landry, C.A.
Mayo, W.A. McLellan, M.J. Moore, D.P.
Nowacek, D.A. Pabst, A.J. Read, R.M.
Rolland. 2005. North Atlantic Right
Whales in Crisis. Science 309: 561–562.
Kraus, S.D., R.M Pace, and T.R. Frasier. 2007.
High investment, low return: the strange
case of reproduction in Eubalaena
glacialis. Pages 172–199 in: Kraus, S.D.
and R.M. Rolland, (eds.), The Urban
Whale: North Atlantic right whales at the
crossroads. Harvard University Press,
Cambridge, MA. 2007.
Laist, D.W., A.R. Knowlton, J.G. Mead, A.S.
Collet, and M. Podesta. 2001. Collisions
between ships and whales. Mar. Mam.
Sci. 17(1): 35–75.
Laist, D.W., and C. Shaw. 2006. Preliminary
evidence that boat speed restrictions
reduce deaths of Florida manatees. Mar.
Mam. Sci. 22(2):472–479.
Marine Mammal Commission. 2006. Annual
Report to Congress 2005. Marine
Mammal Commission, Bethesda,
Maryland. 204 pp.
Mate, B.R., S.L. Nieukirk, and S.D. Kraus.
1997. Satellite-monitored movements of
the northern right whale. J. Wildl.
Manage. 61:1393–1405.
Moller, J.C., D.N. Wiley, T.V.N. Cole, M.
Niemeyer, and A. Rosner. 2005. Abstract.
The behavior of commercial ships
relative to right whale advisory zones in
the Great South Channel during May of
2005. Sixteenth Biennial Conference on
the Biology of Marine Mammals, San
Diego, December 2005.
Moore, M.J., A.R. Knowlton, S.D. Kraus, W.A.
McLellan, and R.K. Bonde. 2005.
Morphometry, gross morphology and
available histopathology in North
Atlantic right whale (Eubalaena
glacialis) mortalities (1970–2002). J.
Cetacean Res. Manage. 6(3):199–214.
National Marine Fisheries Service (NMFS).
2005. Recovery Plan for the North
Atlantic Right Whale, Revision. U.S.
Department of Commerce, National
Marine Fisheries Service, Office of
Protected Resources.
National Marine Fisheries Service (NMFS).
2007a. Endangered Species Act Section 7
Consultation on issuance of license to
Neptune LNG by MARAD to construct,
own, and operate an LNG deepwater
port. NMFS Northeast Regional Office,
Gloucester, MA. January 12, 2007.
National Marine Fisheries Service (NMFS).
2007b. Endangered Species Act Section
7 Reinitiation of Consultation on
issuance of license to Northeast Gateway
Energy Bridge, LLC by MARAD to
construct, own, and operate an LNG
deepwater port. NMFS Northeast
Regional Office, Gloucester, MA.
November 11, 2007.
National Park Service. 2003. Glacier Bay
National Park and Preserve, Alaska.
VerDate Aug<31>2005
17:42 Oct 09, 2008
Jkt 217001
Vessel Quotas and Operating
Requirements. Final Environmental
Impact Statement. U.S. Department of
Interior.
Nelson, M., M. Garron, R.L. Merrick, R.M.
Pace, III, and T.V.N. Cole. 2007.
Mortality and Serious Injury
Determinations for Baleen Whale Stocks
Along the United States Eastern
Seaboard and Adjacent Canadian
Maritimes, 2001–2005. U.S. Department
of Commerce, Northeast Fisheries
Science Center Reference Document 07–
05; 18 p.
Nowacek, D.P., M.P. Johnson, and P.L. Tyack.
2003. North Atlantic right whales
(Eubalaena glacialis) ignore ships but
respond to alerting stimuli. Proc. R. Soc.
Lond [Biol]. Vol 271 (1536): 227–231.
Pace, R.M., and G.K. Silber. 2005 Abstract.
Simple analyses of ship and large whale
collisions: Does speed kill? Sixteenth
Biennial Conference on the Biology of
Marine Mammals, San Diego, December
2005.
Panigada, S., G. Pesante, M. Zanardelli, F.
Capoulade, A. Gannier, and M.T.
Weinrich. 2006. Mediterranean fin
whales at risk from fatal ship strikes.
Marine Poll. Bull. 52:1287–1298.
Reeves, R.R, R.J. Hofman, G.K. Silber, and D.
Wilkinson. 1996. Acoustic deterrence of
harmful marine mammal-fishery
interactions: proceedings of a workshop
held in Seattle, Washington, 20–22
March 1996. NOAA Technical
Memorandum, NMFS–OPR–10. 70
pages.
Slutsky, J. 2007. Model scale simulation of a
ship-whale encounter. Naval Surface
Warfare Center Carderock Division, West
Bethesda, MD. Report No. NSWCCD–50–
TR–2007/053.
Van Waerebeek, K., and R. Leaper. 2008.
Second Report of the IWC Vessel Strike
Data Standardisation Working Group.
Report to the International Whaling
Commission’s Scientific Committee at
the IWC’s 60th Annual Meeting,
Santiago, Chile, June 2008. Report No.
SC/60/BC5.
Vanderlaan, A.S.M., and C.T. Taggart. 2007.
Vessel Collisions with whales: the
probability of lethal injury based on
vessel speed. Mar. Mam. Sci. 23(1):144–
156.
Waring, G.T., E. Josephson, C.P. FairfieldWalsh, and K. Maze-Foley, editors. 2007.
U.S. Atlantic and Gulf of Mexico Marine
Mammal Stock Assessments—2007.
NOAA Tech Memo NMFS NE 205; 415
p.
Wiley, D.N., J.C. Moller, R.M. Pace, and C.
Carlson. 2008. Effectiveness of voluntary
conservation agreements: case study of
endangered whales and commercial
whale watching. Conserv. Biol. 2(2):
450–457.
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.
PO 00000
Frm 00088
Fmt 4700
Sfmt 4700
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
E:\FR\FM\10OCR1.SGM
10OCR1
Federal Register / Vol. 73, No. 198 / Friday, October 10, 2008 / Rules and Regulations
jlentini on PROD1PC65 with RULES
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, highspeed whale watching vessels, regularspeed 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 regularspeed and high-speed vessels. More
detailed information on small entities in
VerDate Aug<31>2005
17:42 Oct 09, 2008
Jkt 217001
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.
PO 00000
Frm 00089
Fmt 4700
Sfmt 4700
60185
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 whalewatching 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.
E:\FR\FM\10OCR1.SGM
10OCR1
60186
Federal Register / Vol. 73, No. 198 / Friday, October 10, 2008 / Rules and Regulations
jlentini on PROD1PC65 with RULES
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
VerDate Aug<31>2005
17:42 Oct 09, 2008
Jkt 217001
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 100percent 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
PO 00000
Frm 00090
Fmt 4700
Sfmt 4700
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
E:\FR\FM\10OCR1.SGM
10OCR1
jlentini on PROD1PC65 with RULES
Federal Register / Vol. 73, No. 198 / Friday, October 10, 2008 / Rules and Regulations
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 standalone 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
VerDate Aug<31>2005
17:42 Oct 09, 2008
Jkt 217001
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, regularspeed 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.
PO 00000
Frm 00091
Fmt 4700
Sfmt 4700
60187
Dated: October 6, 2008.
Samuel D. Rauch,
Deputy Assistant Administrator for
Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the
preamble, 50 CFR part 224 is amended
as follows:
■
PART 224—ENDANGERED MARINE
AND ANADROMOUS SPECIES
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.
2. In part 224, a new § 224.105 is
added to read as follows:
■
§ 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°27′00.0″ N–
080°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°45′00.0″ N thence east to
29°45′00.0″ N–080°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°56′42.0″ N–077°31′30.0″
W; thence along a NW bearing of
313.26° 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°27′00.0″ N; thence east to 31°27′00.0″
N–080°51′36.0″ W; thence to 31°50′00.0″
E:\FR\FM\10OCR1.SGM
10OCR1
60188
Federal Register / Vol. 73, No. 198 / Friday, October 10, 2008 / Rules and Regulations
jlentini on PROD1PC65 with RULES
N–080°33′12.0″ W; thence to 32°59′06.0″
N–078°50′18.0″ W; thence to 33°28′24.0″
N–078°32′30.0″ W; thence to 33°36′30.0″
N–077°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°29′42.2″ N–073°55′57.6″ W;
(B) Delaware Bay (Ports of
Philadelphia and Wilmington):
38°52′27.4″ N–075°01′32.1″ W;
(C) Entrance to the Chesapeake Bay
(Ports of Hampton Roads and
Baltimore): 37°00′36.9″ N–075°57′50.5″
W; and
(D) Ports of Morehead City and
Beaufort, NC: 34°41′32.0″ N–
076°40′08.3″ W; and
(iii) In Block Island Sound, in the area
bounded by the following coordinates:
Beginning at 40°51′53.7″ N–70°36′44.9″
W; thence to 41°20′14.1″ N–70°49′44.1″
W; thence to 41°04′16.7″ N–71°51′21.0″
W; thence to 40°35′56.5″ N–71°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°04′56.5″ N–070°12′00.0″
W; thence north to 42°12′00.0″ N–
070°12′00.0″ W; thence due west to
VerDate Aug<31>2005
17:42 Oct 09, 2008
Jkt 217001
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°30′00.0″ N–069°45′00.0″ W; thence to
42°30′00.0″ N–070°30′00.0″ W; thence to
42°12′00.0″ N–070°30′00.0″ W; thence to
42°12′00.0″ N–070°12′00.0″ W; thence to
42°04′56.5″ N–070°12′00.0″ W; thence
along charted mean high water line and
inshore limits of COLREGS limit to a
latitude of 41°40′00.0″ N; thence due
east to 41°41′00.0″ N–069°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°30′00.0″ N–069°45′00.0″ W
41°40′00.0″ N–069°45′00.0″ W
41°00′00.0″ N–069°05′00.0″ W
42°09′00.0″ N–067°08′24.0″ W
42°30′00.0″ N–067°27′00.0″ W
42°30′00.0″ N–069°45′00.0″ W
(b) Except as noted in paragraph (c) of
this section, it is unlawful under this
section:
PO 00000
Frm 00092
Fmt 4700
Sfmt 4700
(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.
BILLING CODE 3510–22–P
E:\FR\FM\10OCR1.SGM
10OCR1
VerDate Aug<31>2005
17:42 Oct 09, 2008
Jkt 217001
PO 00000
Frm 00093
Fmt 4700
Sfmt 4725
E:\FR\FM\10OCR1.SGM
10OCR1
60189
ER10OC08.036
jlentini on PROD1PC65 with RULES
Federal Register / Vol. 73, No. 198 / Friday, October 10, 2008 / Rules and Regulations
VerDate Aug<31>2005
Federal Register / Vol. 73, No. 198 / Friday, October 10, 2008 / Rules and Regulations
17:42 Oct 09, 2008
Jkt 217001
PO 00000
Frm 00094
Fmt 4700
Sfmt 4725
E:\FR\FM\10OCR1.SGM
10OCR1
ER10OC08.037
jlentini on PROD1PC65 with RULES
60190
Federal Register / Vol. 73, No. 198 / Friday, October 10, 2008 / Rules and Regulations
BILLING CODE 3510–22–C
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 660
[Docket No. 0809301285-81289-01]
RIN 0648–AX31
Fisheries Off West Coast States;
Coastal Pelagic Species Fisheries;
Reporting Requirements and
Conservation Measures
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
jlentini on PROD1PC65 with RULES
AGENCY:
VerDate Aug<31>2005
17:42 Oct 09, 2008
Jkt 217001
Final rule; notice of
effectiveness of information collection.
ACTION:
SUMMARY: NMFS is announcing that the
information collection and reporting
requirement was approved by the Office
of Management and Budget (OMB).
DATES: The information collection
requirements in 50 CFR 660.520 are
effective November 10, 2008.
FOR FURTHER INFORMATION CONTACT:
Joshua Lindsay, Southwest Region,
NMFS, (562) 980–4034.
SUPPLEMENTARY INFORMATION: On May
30, 2007, NMFS published a final rule
(72 FR 29891) implementing new
reporting requirements and
conservation measures under the
Coastal Pelagic Species (CPS) Fishery
Management Plan (FMP). This final rule
contained information collection
requirements that at the time of
publication had not yet been approved
PO 00000
Frm 00095
Fmt 4700
Sfmt 4700
by OMB. This included the requirement
to report any interactions that may
occur between a CPS vessel and/or
fishing gear and sea otters. The final
rule stated that NMFS would publish a
subsequent Federal Register notice
announcing the effectiveness of those
requirements. Therefore NMFS
announces that OMB approved the
collection of information requirements
contained in the May 30, 2007, final
rule under Control Number 0648-0566
with an expiration date of August 31,
2010.
Authority: 16 U.S.C. 1801 et seq.
Dated: October 7, 2008.
Samuel D. Rauch III,
Deputy Assistant Administrator For
Regulatory Programs, National Marine
Fisheries Service.
[FR Doc. E8–24201 Filed 10–9–08; 8:45 am]
BILLING CODE 3510–22–S
E:\FR\FM\10OCR1.SGM
10OCR1
ER10OC08.038
[FR Doc. E8–24177 Filed 10–7–08; 4:15 pm]
60191
Agencies
[Federal Register Volume 73, Number 198 (Friday, October 10, 2008)]
[Rules and Regulations]
[Pages 60173-60191]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-24177]
=======================================================================
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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 https://
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 https://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 https://
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 https://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 https://
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