Finding for a Petition To Exclude Federally-Maintained Dredged Port Channels From New York to Jacksonville From Vessel Speed Restrictions Designed To Reduce Vessel Collisions With North Atlantic Right Whales, 62008-62011 [2015-26225]
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Federal Register / Vol. 80, No. 199 / Thursday, October 15, 2015 / Proposed Rules
SIP’s public participation process, the
authority to advise and consult, and the
PSD SIP’s public participation
requirements. Additionally, the TCAA
also requires initiation of cooperative
action between local authorities and the
TCEQ, between one local authority and
another, or among any combination of
local authorities and the TCEQ for
control of air pollution in areas having
related air pollution problems that
overlap the boundaries of political
subdivisions, and entering into
agreements and compacts with
adjoining states and Indian tribes, where
appropriate. The transportation
conformity component of the Texas SIP
requires that interagency consultation
and opportunity for public involvement
be provided before making
transportation conformity
determinations and before adopting
applicable SIP revisions on
transportation-related issues.
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IV. Proposed Action
EPA is proposing to approve the
October 14, 2011 infrastructure SIP and
the September 14, 2011 interstate
transport submissions from Texas,
which address the requirements of CAA
sections 110(a)(1) and (2) as applicable
to the 2008 Pb NAAQS. Specifically,
EPA is proposing to approve the
following infrastructure elements:
110(a)(2)(A), (B), (C), (D), (E), (F), (G),
(H), (J), (K), (L), and (M). EPA is not
acting on the submittal pertaining to
CAA section 110(a)(2)(I)—
Nonattainment Area Plan or Plan
Revisions because EPA believes these
need not be addressed in the i-SIP.
Based upon review of the state’s
infrastructure and interstate transport
SIP submissions, in light of the relevant
statutory and regulatory authorities and
provisions referenced in these
submissions or referenced in the Texas
SIP, EPA believes that Texas has the
infrastructure in place to address all
applicable required elements of sections
110(a)(1) and (2) (except otherwise
noted) to ensure that the 2008 Pb
NAAQS are implemented in the state.
We also are proposing to approve the
State’s demonstration that it meets the
four statutory requirements for interstate
transport of Pb emissions.
V. Statutory and Executive Order
Reviews
Under the Clean Air Act, the
Administrator is required to approve a
SIP submission that complies with the
provisions of the Act and applicable
Federal regulations. 42 U.S.C. 7410(k);
40 CFR 52.02(a). Thus, in reviewing SIP
submissions, EPA’s role is to approve
state choices, provided that they meet
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the criteria of the CAA. Accordingly,
this action merely proposes to approve
state law as meeting Federal
requirements and does not impose
additional requirements beyond those
imposed by state law. For that reason,
this action:
• Is not a ‘‘significant regulatory
action’’ subject to review by the Office
of Management and Budget under
Executive Orders 12866 (58 FR 51735,
October 4, 1993) and 13563 (76 FR 3821,
January 21, 2011);
• Does not impose an information
collection burden under the provisions
of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.);
• Is certified as not having a
significant economic impact on a
substantial number of small entities
under the Regulatory Flexibility Act (5
U.S.C. 601 et seq.);
• Does not contain any unfunded
mandate or significantly or uniquely
affect small governments, as described
in the Unfunded Mandates Reform Act
of 1995 (Pub. L. 104–4);
• Does not have Federalism
implications as specified in Executive
Order 13132 (64 FR 43255, August 10,
1999);
• Is not an economically significant
regulatory action based on health or
safety risks subject to Executive Order
13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action
subject to Executive Order 13211 (66 FR
28355, May 22, 2001);
• Is not subject to requirements of
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) because
application of those requirements would
be inconsistent with the CAA; and
• Does not provide EPA with the
discretionary authority to address, as
appropriate, disproportionate human
health or environmental effects, using
practicable and legally permissible
methods, under Executive Order 12898
(59 FR 7629, February 16, 1994).
EPA is not proposing to approve this
infrastructure SIP certification to apply
on any Indian reservation land or in any
other area where EPA or an Indian tribe
has demonstrated that a tribe has
jurisdiction. In those areas of Indian
country, this proposed approval of an
infrastructure SIP certification does not
have tribal implications as specified by
Executive Order 13175 (65 FR 67249,
November 9, 2000), nor will it impose
substantial direct costs on tribal
governments or preempt tribal law.
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Incorporation by
reference, Intergovernmental relations,
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Lead (Pb), Reporting and recordkeeping
requirements.
Authority: 42 U.S.C. 7401 et seq.
Dated: September 30, 2015.
Ron Curry,
Regional Administrator, Region 6.
[FR Doc. 2015–26122 Filed 10–14–15; 8:45 am]
BILLING CODE 6560–50–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 224
RIN 0648–XD314
Finding for a Petition To Exclude
Federally-Maintained Dredged Port
Channels From New York to
Jacksonville From Vessel Speed
Restrictions Designed To Reduce
Vessel Collisions With North Atlantic
Right Whales
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Petition finding.
AGENCY:
NMFS received a petition to
exclude federally-maintained dredged
channels and pilot boarding areas (and
the immediately adjacent waters) for
ports from New York to Jacksonville
from the vessel speed restrictions that
were established to reduce the threat of
vessel collisions with North Atlantic
right whales. After reviewing the
information in the petition and public
comments thereon, NMFS finds that the
petition does not present substantial
information indicating that that
exclusion of these areas is necessary to
address the concerns, and denies the
petition. NMFS will review and revise
our existing compliance guide to
provide clarifying information about the
navigational safety exception (i.e., the
October 10, 2008, final rule’s deviation
provision) for the speed restrictions.
DATES: October 15, 2015.
ADDRESSES: Notice of receipt of the
petition, information related to the
previous request for public comment,
and related information is available at:
https://www.nmfs.noaa.gov/pr/
shipstrike/.
FOR FURTHER INFORMATION CONTACT:
Gregory Silber, Office of Protected
Resources, Silver Spring, MD (301) 427–
8402.
SUPPLEMENTARY INFORMATION:
SUMMARY:
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Federal Register / Vol. 80, No. 199 / Thursday, October 15, 2015 / Proposed Rules
Background
On October 10, 2008, NMFS
published a final rule (73 FR 60173) that
established a 10-knot vessel speed
restriction for vessels 65 feet or greater
in length in certain locations and at
certain times of the year along the east
coast of the United States to reduce the
likelihood of deaths and serious injuries
to endangered North Atlantic right
whales from collisions with vessels. Of
note here, the 2008 final speed
regulation included a provision
allowing for deviation from the speed
restriction if weather and/or sea
conditions severely restrict the vessel’s
maneuverability, operating at a higher
speed is necessary to maintain safe
maneuvering speed, and the need to
operate at a higher speed is confirmed
by the pilot or, if there is no pilot on
board, by the master of the vessel. The
2008 regulation also contained a
December 9, 2013, expiration or
‘‘sunset’’ date.
On June 6, 2013, NMFS published a
proposed rule to eliminate the rule’s
sunset provision (78 FR 34024).
Following a notice and public comment
period, on December 9, 2013, NMFS
published a final rule (78 FR 73726) that
removed the sunset provision. All other
aspects of the regulation remained the
same, including the navigational safety
exception referenced above.
During the public comment period on
the June 2013 proposed rule to remove
the sunset provision, some commenters
expressed their continuing concern that
the speed regulation, notwithstanding
the navigational safety exception noted
above, compromised navigational safety
through reduced vessel maneuverability
in some circumstances. In particular,
the American Pilots’ Association
indicated that safe navigation is
hindered by operating at or below ten
knots in specific areas and
recommended that NMFS ‘‘exclude
federally-maintained dredged channels
and pilot boarding areas (and the
immediately adjacent waters) for ports
from New York to Jacksonville’’—which
they stated is an approximate aggregate
area of 15 square miles—from the vessel
speed restrictions.
NMFS elected to treat the American
Pilots’ Association’s recommendation to
exclude vessels using federallymaintained dredged port entrance
channels from the speed restrictions as
a petition for rulemaking under the
Administrative Procedure Act.
Accordingly, we issued a Notice in the
Federal Register announcing receipt of
the petition and solicited comments on
the request (79 FR 4883; January 31,
2014). The Notice indicated that if we
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decided to proceed with the suggested
rulemaking, we would notify the
petitioner within 120 days, publish a
notice in the Federal Register of our
decision to engage in rulemaking, and
thereafter proceed in accordance with
the requirements for rulemaking. If we
decided not to proceed with the
petitioned rulemaking, we would notify
the petitioner, provide a brief statement
of the grounds for the decision, and
publish a notice in the Federal Register
regarding our decision not to proceed
with the petitioned action.
Based on consideration of information
in the petition, public comments
thereon, and related information, NMFS
finds that the petitioned action is not
necessary to address the concerns. The
petitioner and commenters in favor of
the petitioned action maintained that
vessels navigating federally-maintained
port entrance channels are faced with
hazardous conditions unique to those
channels. Commenters, including the
U.S. Army Corps of Engineers (ACOE)
identified incidents where vessels lost
propulsion and, had the vessel not been
travelling in excess of 10 knots, it could
have created a considerable safety risk.
ACOE submitted a study that found the
speed limit increases the likelihood of
pilot error. Concerns were also raised
that communication barriers among
foreign vessel masters, owners, and
pilots, coupled with the need to
sometimes make speed adjustments on
short time frames, can place the vessel
in jeopardy.
The speed regulation, including the
navigational safety exception provision,
has been in effect for over 6 years, and
in that time there have been no specific
reports of navigational safety issues or
related problems that were not
addressed by the existing exception.
Recent studies indicate that the vessel
speed restriction appears to be
achieving the objective of reducing fatal
collisions with North Atlantic right
whales. NMFS believes that it does not
need to exclude federally-dredged and
maintained navigation channels from
the speed restrictions in order to
effectively address the concerns.
NMFS will review and revise our
existing compliance guide for the speed
restrictions to provide clarifying
information about the deviation
provision. For these reasons and as
further explained in the responses to
comments, NMFS denies the petition.
Comments and Responses
NMFS received over 32,000 public
comments in response to the January 30,
2014, Federal Register notice regarding
this petition that were provided by 88
separate organizations or commenters.
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The majority of these were signed form
letters from members of environmental
groups; 18 commenters provided
substantive or new data or information
(e.g., analysis or synthesis of new or
existing data; legal analyses; draft or
final technical papers or reports; or
information about vessel navigation) not
previously considered in our analysis of
vessel speed restrictions.
All of the signed form letters, and 39
of the commenters that provided
information beyond a signed form letter,
opposed the petitioned action. A total of
46 commenting organizations or
individuals favored the petitioned
action. Several comments were
ambiguous or offered no specific
opinion about the petition. Summaries
of key points in the substantive
comments and responses to these
comments are included below.
Comment 1: Commenters in favor of
the petitioned action indicated that the
vessel speed restrictions create serious
navigational safety concerns,
particularly in areas encompassing
narrow, federally-maintained dredged
channels where two-way traffic, cross
currents, seas and winds impact safe
navigation.
Response: Navigational safety is of
paramount importance to NMFS. The
original 2006 proposed speed regulation
(71 FR 36299; June 26, 2006) did not
contain a navigational safety exception.
During the public comment period for
that proposed rule, NMFS received
comments indicating that large vessels
experience reduced steerage at low
speeds, which is exacerbated in adverse
wind and sea conditions, thereby
compromising navigational safety. At
that time a number of pilots and pilots’
associations indicated that adequate
maneuverability was particularly
important when negotiating a port
entrance or channel.
As a result, in the 2008 final rule,
NMFS instituted a navigational safety
exception to account for severe wind
and sea conditions (73 FR 60173, 60178;
October 10, 2008). Vessels may operate
at a speed greater than 10 knots when
oceanographic, hydrographic or
meteorological conditions restrict the
maneuverability of the vessel to the
point that increased speed is necessary
to ensure the safe operation of the
vessel, as confirmed by the pilot or
master. Any deviation from the speed
restriction must be entered into the
logbook, including the specific
conditions necessitating the deviation,
time and duration of deviation, location
(latitude/longitude) where the deviation
began and ended, and speed at which
vessel was operated. The master of the
vessel must sign and date the logbook
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entry, attesting to its accuracy. The
speed regulation, including the
navigational safety exception provision
(which has been invoked a number of
times), has been in effect for over 6
years, and in that time there have been
no specific reports of navigational safety
issues or related problems that were not
addressed by the existing exception. In
fact, thousands of trips at or below 10
knots have occurred in the period since
the rule was implemented, including in
the port areas identified by the
petitioners, and NMFS is not aware of
any instance in which a vessel was
endangered by a loss of maneuverability
as a result of the speed restrictions. We
continue to believe the navigational
safety exception provides vessel pilots
and masters sufficient discretion to
deviate from the speed regulation when
necessary to ensure vessel safety.
Nonetheless, there may be specific areas
within navigation channels where
conditions supporting a deviation occur
frequently. NMFS is working with the
U.S. Coast Guard to better understand
the specific conditions under which
deviations may frequently occur in
these areas.
Comment 2: Most commenters who
opposed the petitioned action noted that
the rule (73 FR 60173; October 10, 2008)
contains an exception provision for
navigational safety concerns and
encouraged NMFS not to grant the
petition.
Response: NMFS agrees. See our
response to Comment 1, above.
Comment 3: We received comments
that the rule’s (73 FR 60173; October 10,
2008) navigational safety exception is
ambiguous and that some mariners are
confused by the provision; specifically
that communication barriers among
foreign vessel masters, owners, and
pilots make the speed limit
impracticable; that vessel owners and
shipping interests have been
discouraging, or even prohibiting, their
masters from invoking the deviation
authority; and that the lack of
understanding may result in a deviation
not being invoked when necessary,
placing the vessel in jeopardy.
Response: To facilitate compliance,
NMFS will review our existing
compliance guide for the speed
restrictions and provide clarifying
information about the deviation
provision. We will also investigate other
ways to provide such clarifying
information to the regulated community
(e.g., through the U.S. Coast Pilot).
Further, as noted in the December 9,
2013, final rule that removed the sunset
provision, NMFS will continue to
synthesize, review, and report on
various aspects of the speed regulation,
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including navigational safety impacts,
within 5 years (78 FR 73734).
Comment 4: Some commenters
suggested that any lack of
understanding or confusion about the
deviation would be better addressed
through further outreach and
communication with stakeholders,
rather than excluding some areas from
the restrictions.
Response: NMFS agrees that a
rulemaking is not necessary at this time.
See our response to the previous
comment.
Comment 5: A number of commenters
contended that because the area in
federally-maintained channels is a
fraction of the total area included in
vessel speed restriction zones, the
conservation value would not be
diminished by excluding these areas.
Conversely, commenters indicated that
the vessel speed restrictions are working
as intended—both the probability and
actual number of fatal vessel-related
right whale deaths have been reduced
by the speed restrictions—as
demonstrated by several recent studies.
Commenters also noted that vessel
traffic density is most concentrated in
port entrances and right whale
vulnerability to vessel collisions is
elevated in these areas. They concluded
that the requested exclusions would
increase right whale vulnerability to
vessel strikes in excluded areas.
Response: Recent studies indicate that
the vessel speed restriction appears to
be achieving the objective of reducing
fatal collisions with North Atlantic right
whales. By design, the speed restriction
focuses on those areas where vessels
and whale occurrences overlap,
including port entrance channels.
Therefore, if NMFS were to grant the
petitioned action the conservation value
of the speed regulation would be
diminished.
Comment 6: One commenter noted
that nearly all comments from shipping
industry representatives on the
proposed rule to remove the sunset
provision accepted an extension of the
speed restrictions (for at least a fixed
period) without expressing concern for
vessel safety in federally-maintained
dredged entrance channels.
Response: NMFS acknowledges that
most industry comments regarding our
proposal to remove the rule’s sunset
provision were in favor of extending
(rather than removing) the sunset
provision and most did not discuss
concerns about safety in federally
dredged channels. However, several
pilots’ associations and the U.S. Army
Corps of Engineers (ACOE) submitted
comments citing safety-related
concerns.
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Comment 7: Another commenter
observed that the petitioned action did
not include all the U.S. east coast
federally-maintained channels and
noted, in particular, the U.S. Army
Corps of Engineers (ACOE) imposed
vessel speed restrictions in the Cape
Cod Canal.
Response: NMFS has verified the
existence of an ACOE speed control
regulation in Cape Cod Canal (33 CFR
207.20) and acknowledges that the
Canal is not among the areas included
in the petition.
Comment 8: Several commenters
stated that ship captains were being
issued notices of violation for going
speeds just above the 10-knot limit and,
in particular, after the vessel captain
had invoked the deviation for weather
conditions.
Response: The National Oceanic and
Atmospheric Administration’s (NOAA)
Office of General Counsel, Enforcement
Section (GC) issued a total of 53 Notices
of Violation and Assessment of civil
penalties (NOVAs) between November
2010 and December 2014. In all cases to
date, NOVAs were only issued in cases
in which the vessel exceeded the 10knot speed restriction by a significant
amount and for a significant distance.
Cases involving justified deviations
from the speed restriction, properly
documented in a manner consistent
with 50 CFR 224.105(c), have not
resulted in the imposition of penalties.
In addition, NOAA only began issuing
NOVAs after several years of outreach
and education during the initial phase
of the regulation to ensure that the
regulated community was informed of
and educated regarding the new speed
restriction.
OLE/GC has also changed the way in
which violations are investigated.
Current procedures now include an
opportunity, prior to a NOVA being
issued, for vessel operators to provide
log entries documenting their need to
deviate from the speed restrictions for
incidents under investigation.
Comment 9: A number of commenters
cited analysis and anecdotal
information about hazardous situations
that occurred in several instances when
a vessel’s propulsion system
malfunctioned or a vessel suffered a
complete loss of power. These
commenters maintained that had these
vessels been traveling 10-knots or less at
the time of power loss, the situation
could have been far worse.
Response: NMFS recognizes that
deviating from the speed limit when
necessary to ensure the safety of the
vessel is appropriate and allowed under
our regulations. NMFS will revise its
compliance guide to clarify how and
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when to properly invoke the
regulation’s deviation provision. NMFS
will consult with the ACOE and the
USCG on these revisions. As noted,
NOAA has the utmost concern for the
safety of humans and the safe and
efficient transport of materials.
Comment 10: Several commenters
reiterated earlier public comments on
the need for modifications to the speed
restriction rule (73 FR 60173; October
10, 2008), in particular the need to:
Increase management zones to include
waters 30 nautical miles from shore;
make the voluntary Dynamic
Management Areas program mandatory;
and consider making vessels <65 feet in
length also subject to the provisions of
the rule.
Response: NMFS has addressed
comments regarding modification of the
rule in previous responses to public
comments (78 FR 73733, 73734;
December 9, 2013). While not germane
to the petitioned action, NMFS is
continuing to evaluate and consider
these and other suggestions for possible
future rulemaking. No decisions have
been made.
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Comment 11: The ACOE submitted a
study concluding that vessel speed
restrictions can adversely impact the
risk of ship grounding accidents when
a ship loses power in the Charleston,
SC, harbor entrance, based on the
assumption that the restriction
increased the ‘‘likelihood of a piloting
error by 20%’’ due to diminished vessel
maneuverability.
Response: NMFS acknowledges the
concerns raised by ACOE and others
regarding the potential safety risk if a
pilot does not deviate from the speed
restrictions when necessary. NMFS is
working with ACOE, the U.S. Coast
Guard, and other relevant agencies to
facilitate increased awareness and
appropriate use of the deviation
provision. This collaboration will
inform NMFS’ review and revision of
our existing compliance guide which
provides clarifying information about
the deviation provision.
Comment 12: The ACOE commented
that NOAA lacks the legal authority to
establish vessel speed restrictions and
the authority lies instead with the
Secretary of the Army and the ACOE
under the 1894 Rivers and Harbors Act.
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Response: NMFS does not dispute the
ACOE’s assertion of authority to
regulate activity in navigation channels.
However, NMFS does not believe this
equates to an exclusive authority to do
so. The 2008 speed regulation, which
was extended in 2013 through the
removal of a sunset provision, is a valid
exercise of NMFS’ own regulatory
authority under the Endangered Species
Act and Marine Mammal Protection Act
to further the purposes of those laws (in
this case, protecting highly endangered
right whales from injury and death from
collisions with ships). NMFS notes the
U.S. Coast Guard has likewise imposed
speed regulations in river and port
entrances pursuant to their own
regulatory authorities (some of which
are cited in our 2013 final rule).
Authority: 5 U.S.C. 551 et seq.
Dated: October 7, 2015.
Donna S. Wieting,
Director, Office of Protected Resources,
National Marine Fisheries Service.
[FR Doc. 2015–26225 Filed 10–14–15; 8:45 am]
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]]>Agencies
[Federal Register Volume 80, Number 199 (Thursday, October 15, 2015)]
[Proposed Rules]
[Pages 62008-62011]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-26225]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 224
RIN 0648-XD314
Finding for a Petition To Exclude Federally-Maintained Dredged
Port Channels From New York to Jacksonville From Vessel Speed
Restrictions Designed To Reduce Vessel Collisions With North Atlantic
Right Whales
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Petition finding.
-----------------------------------------------------------------------
SUMMARY: NMFS received a petition to exclude federally-maintained
dredged channels and pilot boarding areas (and the immediately adjacent
waters) for ports from New York to Jacksonville from the vessel speed
restrictions that were established to reduce the threat of vessel
collisions with North Atlantic right whales. After reviewing the
information in the petition and public comments thereon, NMFS finds
that the petition does not present substantial information indicating
that that exclusion of these areas is necessary to address the
concerns, and denies the petition. NMFS will review and revise our
existing compliance guide to provide clarifying information about the
navigational safety exception (i.e., the October 10, 2008, final rule's
deviation provision) for the speed restrictions.
DATES: October 15, 2015.
ADDRESSES: Notice of receipt of the petition, information related to
the previous request for public comment, and related information is
available at: https://www.nmfs.noaa.gov/pr/shipstrike/.
FOR FURTHER INFORMATION CONTACT: Gregory Silber, Office of Protected
Resources, Silver Spring, MD (301) 427-8402.
SUPPLEMENTARY INFORMATION:
[[Page 62009]]
Background
On October 10, 2008, NMFS published a final rule (73 FR 60173) that
established a 10-knot vessel speed restriction for vessels 65 feet or
greater in length in certain locations and at certain times of the year
along the east coast of the United States to reduce the likelihood of
deaths and serious injuries to endangered North Atlantic right whales
from collisions with vessels. Of note here, the 2008 final speed
regulation included a provision allowing for deviation from the speed
restriction if weather and/or sea conditions severely restrict the
vessel's maneuverability, operating at a higher speed is necessary to
maintain safe maneuvering speed, and the need to operate at a higher
speed is confirmed by the pilot or, if there is no pilot on board, by
the master of the vessel. The 2008 regulation also contained a December
9, 2013, expiration or ``sunset'' date.
On June 6, 2013, NMFS published a proposed rule to eliminate the
rule's sunset provision (78 FR 34024). Following a notice and public
comment period, on December 9, 2013, NMFS published a final rule (78 FR
73726) that removed the sunset provision. All other aspects of the
regulation remained the same, including the navigational safety
exception referenced above.
During the public comment period on the June 2013 proposed rule to
remove the sunset provision, some commenters expressed their continuing
concern that the speed regulation, notwithstanding the navigational
safety exception noted above, compromised navigational safety through
reduced vessel maneuverability in some circumstances. In particular,
the American Pilots' Association indicated that safe navigation is
hindered by operating at or below ten knots in specific areas and
recommended that NMFS ``exclude federally-maintained dredged channels
and pilot boarding areas (and the immediately adjacent waters) for
ports from New York to Jacksonville''--which they stated is an
approximate aggregate area of 15 square miles--from the vessel speed
restrictions.
NMFS elected to treat the American Pilots' Association's
recommendation to exclude vessels using federally-maintained dredged
port entrance channels from the speed restrictions as a petition for
rulemaking under the Administrative Procedure Act. Accordingly, we
issued a Notice in the Federal Register announcing receipt of the
petition and solicited comments on the request (79 FR 4883; January 31,
2014). The Notice indicated that if we decided to proceed with the
suggested rulemaking, we would notify the petitioner within 120 days,
publish a notice in the Federal Register of our decision to engage in
rulemaking, and thereafter proceed in accordance with the requirements
for rulemaking. If we decided not to proceed with the petitioned
rulemaking, we would notify the petitioner, provide a brief statement
of the grounds for the decision, and publish a notice in the Federal
Register regarding our decision not to proceed with the petitioned
action.
Based on consideration of information in the petition, public
comments thereon, and related information, NMFS finds that the
petitioned action is not necessary to address the concerns. The
petitioner and commenters in favor of the petitioned action maintained
that vessels navigating federally-maintained port entrance channels are
faced with hazardous conditions unique to those channels. Commenters,
including the U.S. Army Corps of Engineers (ACOE) identified incidents
where vessels lost propulsion and, had the vessel not been travelling
in excess of 10 knots, it could have created a considerable safety
risk. ACOE submitted a study that found the speed limit increases the
likelihood of pilot error. Concerns were also raised that communication
barriers among foreign vessel masters, owners, and pilots, coupled with
the need to sometimes make speed adjustments on short time frames, can
place the vessel in jeopardy.
The speed regulation, including the navigational safety exception
provision, has been in effect for over 6 years, and in that time there
have been no specific reports of navigational safety issues or related
problems that were not addressed by the existing exception. Recent
studies indicate that the vessel speed restriction appears to be
achieving the objective of reducing fatal collisions with North
Atlantic right whales. NMFS believes that it does not need to exclude
federally-dredged and maintained navigation channels from the speed
restrictions in order to effectively address the concerns.
NMFS will review and revise our existing compliance guide for the
speed restrictions to provide clarifying information about the
deviation provision. For these reasons and as further explained in the
responses to comments, NMFS denies the petition.
Comments and Responses
NMFS received over 32,000 public comments in response to the
January 30, 2014, Federal Register notice regarding this petition that
were provided by 88 separate organizations or commenters. The majority
of these were signed form letters from members of environmental groups;
18 commenters provided substantive or new data or information (e.g.,
analysis or synthesis of new or existing data; legal analyses; draft or
final technical papers or reports; or information about vessel
navigation) not previously considered in our analysis of vessel speed
restrictions.
All of the signed form letters, and 39 of the commenters that
provided information beyond a signed form letter, opposed the
petitioned action. A total of 46 commenting organizations or
individuals favored the petitioned action. Several comments were
ambiguous or offered no specific opinion about the petition. Summaries
of key points in the substantive comments and responses to these
comments are included below.
Comment 1: Commenters in favor of the petitioned action indicated
that the vessel speed restrictions create serious navigational safety
concerns, particularly in areas encompassing narrow, federally-
maintained dredged channels where two-way traffic, cross currents, seas
and winds impact safe navigation.
Response: Navigational safety is of paramount importance to NMFS.
The original 2006 proposed speed regulation (71 FR 36299; June 26,
2006) did not contain a navigational safety exception. During the
public comment period for that proposed rule, NMFS received comments
indicating that large vessels experience reduced steerage at low
speeds, which is exacerbated in adverse wind and sea conditions,
thereby compromising navigational safety. At that time a number of
pilots and pilots' associations indicated that adequate maneuverability
was particularly important when negotiating a port entrance or channel.
As a result, in the 2008 final rule, NMFS instituted a navigational
safety exception to account for severe wind and sea conditions (73 FR
60173, 60178; October 10, 2008). Vessels may operate at a speed greater
than 10 knots when oceanographic, hydrographic or meteorological
conditions restrict the maneuverability of the vessel to the point that
increased speed is necessary to ensure the safe operation of the
vessel, as confirmed by the pilot or master. Any deviation from the
speed restriction must be entered into the logbook, including the
specific conditions necessitating the deviation, time and duration of
deviation, location (latitude/longitude) where the deviation began and
ended, and speed at which vessel was operated. The master of the vessel
must sign and date the logbook
[[Page 62010]]
entry, attesting to its accuracy. The speed regulation, including the
navigational safety exception provision (which has been invoked a
number of times), has been in effect for over 6 years, and in that time
there have been no specific reports of navigational safety issues or
related problems that were not addressed by the existing exception. In
fact, thousands of trips at or below 10 knots have occurred in the
period since the rule was implemented, including in the port areas
identified by the petitioners, and NMFS is not aware of any instance in
which a vessel was endangered by a loss of maneuverability as a result
of the speed restrictions. We continue to believe the navigational
safety exception provides vessel pilots and masters sufficient
discretion to deviate from the speed regulation when necessary to
ensure vessel safety. Nonetheless, there may be specific areas within
navigation channels where conditions supporting a deviation occur
frequently. NMFS is working with the U.S. Coast Guard to better
understand the specific conditions under which deviations may
frequently occur in these areas.
Comment 2: Most commenters who opposed the petitioned action noted
that the rule (73 FR 60173; October 10, 2008) contains an exception
provision for navigational safety concerns and encouraged NMFS not to
grant the petition.
Response: NMFS agrees. See our response to Comment 1, above.
Comment 3: We received comments that the rule's (73 FR 60173;
October 10, 2008) navigational safety exception is ambiguous and that
some mariners are confused by the provision; specifically that
communication barriers among foreign vessel masters, owners, and pilots
make the speed limit impracticable; that vessel owners and shipping
interests have been discouraging, or even prohibiting, their masters
from invoking the deviation authority; and that the lack of
understanding may result in a deviation not being invoked when
necessary, placing the vessel in jeopardy.
Response: To facilitate compliance, NMFS will review our existing
compliance guide for the speed restrictions and provide clarifying
information about the deviation provision. We will also investigate
other ways to provide such clarifying information to the regulated
community (e.g., through the U.S. Coast Pilot). Further, as noted in
the December 9, 2013, final rule that removed the sunset provision,
NMFS will continue to synthesize, review, and report on various aspects
of the speed regulation, including navigational safety impacts, within
5 years (78 FR 73734).
Comment 4: Some commenters suggested that any lack of understanding
or confusion about the deviation would be better addressed through
further outreach and communication with stakeholders, rather than
excluding some areas from the restrictions.
Response: NMFS agrees that a rulemaking is not necessary at this
time. See our response to the previous comment.
Comment 5: A number of commenters contended that because the area
in federally-maintained channels is a fraction of the total area
included in vessel speed restriction zones, the conservation value
would not be diminished by excluding these areas. Conversely,
commenters indicated that the vessel speed restrictions are working as
intended--both the probability and actual number of fatal vessel-
related right whale deaths have been reduced by the speed
restrictions--as demonstrated by several recent studies. Commenters
also noted that vessel traffic density is most concentrated in port
entrances and right whale vulnerability to vessel collisions is
elevated in these areas. They concluded that the requested exclusions
would increase right whale vulnerability to vessel strikes in excluded
areas.
Response: Recent studies indicate that the vessel speed restriction
appears to be achieving the objective of reducing fatal collisions with
North Atlantic right whales. By design, the speed restriction focuses
on those areas where vessels and whale occurrences overlap, including
port entrance channels. Therefore, if NMFS were to grant the petitioned
action the conservation value of the speed regulation would be
diminished.
Comment 6: One commenter noted that nearly all comments from
shipping industry representatives on the proposed rule to remove the
sunset provision accepted an extension of the speed restrictions (for
at least a fixed period) without expressing concern for vessel safety
in federally-maintained dredged entrance channels.
Response: NMFS acknowledges that most industry comments regarding
our proposal to remove the rule's sunset provision were in favor of
extending (rather than removing) the sunset provision and most did not
discuss concerns about safety in federally dredged channels. However,
several pilots' associations and the U.S. Army Corps of Engineers
(ACOE) submitted comments citing safety-related concerns.
Comment 7: Another commenter observed that the petitioned action
did not include all the U.S. east coast federally-maintained channels
and noted, in particular, the U.S. Army Corps of Engineers (ACOE)
imposed vessel speed restrictions in the Cape Cod Canal.
Response: NMFS has verified the existence of an ACOE speed control
regulation in Cape Cod Canal (33 CFR 207.20) and acknowledges that the
Canal is not among the areas included in the petition.
Comment 8: Several commenters stated that ship captains were being
issued notices of violation for going speeds just above the 10-knot
limit and, in particular, after the vessel captain had invoked the
deviation for weather conditions.
Response: The National Oceanic and Atmospheric Administration's
(NOAA) Office of General Counsel, Enforcement Section (GC) issued a
total of 53 Notices of Violation and Assessment of civil penalties
(NOVAs) between November 2010 and December 2014. In all cases to date,
NOVAs were only issued in cases in which the vessel exceeded the 10-
knot speed restriction by a significant amount and for a significant
distance. Cases involving justified deviations from the speed
restriction, properly documented in a manner consistent with 50 CFR
224.105(c), have not resulted in the imposition of penalties. In
addition, NOAA only began issuing NOVAs after several years of outreach
and education during the initial phase of the regulation to ensure that
the regulated community was informed of and educated regarding the new
speed restriction.
OLE/GC has also changed the way in which violations are
investigated. Current procedures now include an opportunity, prior to a
NOVA being issued, for vessel operators to provide log entries
documenting their need to deviate from the speed restrictions for
incidents under investigation.
Comment 9: A number of commenters cited analysis and anecdotal
information about hazardous situations that occurred in several
instances when a vessel's propulsion system malfunctioned or a vessel
suffered a complete loss of power. These commenters maintained that had
these vessels been traveling 10-knots or less at the time of power
loss, the situation could have been far worse.
Response: NMFS recognizes that deviating from the speed limit when
necessary to ensure the safety of the vessel is appropriate and allowed
under our regulations. NMFS will revise its compliance guide to clarify
how and
[[Page 62011]]
when to properly invoke the regulation's deviation provision. NMFS will
consult with the ACOE and the USCG on these revisions. As noted, NOAA
has the utmost concern for the safety of humans and the safe and
efficient transport of materials.
Comment 10: Several commenters reiterated earlier public comments
on the need for modifications to the speed restriction rule (73 FR
60173; October 10, 2008), in particular the need to: Increase
management zones to include waters 30 nautical miles from shore; make
the voluntary Dynamic Management Areas program mandatory; and consider
making vessels <65 feet in length also subject to the provisions of the
rule.
Response: NMFS has addressed comments regarding modification of the
rule in previous responses to public comments (78 FR 73733, 73734;
December 9, 2013). While not germane to the petitioned action, NMFS is
continuing to evaluate and consider these and other suggestions for
possible future rulemaking. No decisions have been made.
Comment 11: The ACOE submitted a study concluding that vessel speed
restrictions can adversely impact the risk of ship grounding accidents
when a ship loses power in the Charleston, SC, harbor entrance, based
on the assumption that the restriction increased the ``likelihood of a
piloting error by 20%'' due to diminished vessel maneuverability.
Response: NMFS acknowledges the concerns raised by ACOE and others
regarding the potential safety risk if a pilot does not deviate from
the speed restrictions when necessary. NMFS is working with ACOE, the
U.S. Coast Guard, and other relevant agencies to facilitate increased
awareness and appropriate use of the deviation provision. This
collaboration will inform NMFS' review and revision of our existing
compliance guide which provides clarifying information about the
deviation provision.
Comment 12: The ACOE commented that NOAA lacks the legal authority
to establish vessel speed restrictions and the authority lies instead
with the Secretary of the Army and the ACOE under the 1894 Rivers and
Harbors Act.
Response: NMFS does not dispute the ACOE's assertion of authority
to regulate activity in navigation channels. However, NMFS does not
believe this equates to an exclusive authority to do so. The 2008 speed
regulation, which was extended in 2013 through the removal of a sunset
provision, is a valid exercise of NMFS' own regulatory authority under
the Endangered Species Act and Marine Mammal Protection Act to further
the purposes of those laws (in this case, protecting highly endangered
right whales from injury and death from collisions with ships). NMFS
notes the U.S. Coast Guard has likewise imposed speed regulations in
river and port entrances pursuant to their own regulatory authorities
(some of which are cited in our 2013 final rule).
Authority: 5 U.S.C. 551 et seq.
Dated: October 7, 2015.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2015-26225 Filed 10-14-15; 8:45 am]
BILLING CODE 3510-22-P
