[Federal Register Volume 71, Number 122 (Monday, June 26, 2006)]
[Proposed Rules]
[Pages 36299-36313]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-5669]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 224

[Docket No. 040506143-6016-02. I.D. 101205B]
RIN 0648-AS36


Endangered Fish and Wildlife; Proposed 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: Proposed rule; request for comments.

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SUMMARY: NMFS proposes regulations to implement speed restrictions on 
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 this proposed rule is to reduce 
the likelihood of deaths and serious injuries to endangered North 
Atlantic right whales that result from collisions with ships. These 
measures are part of NMFS' Ship Strike Reduction Strategy to help 
recover the North Atlantic right whale. NMFS is requesting comments on 
the proposed regulations.

DATES: Written comments must be received at the appropriate address or 
facsimile (fax) number (see ADDRESSES) no later than 5 p.m. local time 
on August 25, 2006.

[[Page 36300]]


ADDRESSES: Written comments should be sent to: Chief, Marine Mammal 
Conservation Division, Attn: Right Whale Ship Strike Strategy, Office 
of Protected Resources, NMFS, 1315 East-West Highway, Silver Spring, MD 
20910. Comments may also be sent via email to 
[email protected] or to the Federal eRulemaking portal: 
http://www.regulations.gov (follow instructions for submitting 
comments).
    Comments regarding the burden-hour estimates, or any other aspect 
of the collection of information requirements contained in this notice 
of proposed rulemaking, should also be submitted in writing to the 
Chief, Marine Mammal Conservation Division, Office of Protected 
Resources, NMFS, 1315 East-West Highway, Silver Spring, MD 20910, and 
to David Rostker, OMB, by e-mail at [email protected] or by 
fax to (202) 395-7285.

FOR FURTHER INFORMATION CONTACT: Gregory Silber, Ph.D., Fishery 
Biologist, Office of Protected Resources, NMFS, at (301) 713-2322 x152.

SUPPLEMENTARY INFORMATION:

Background

    The North Atlantic right whale (Eubalaena glacialis) was severely 
depleted by commercial whaling and, despite protection from commercial 
harvest since 1935, has not recovered. The population is believed to be 
at or less than 300 individuals, making it one of the most critically 
endangered large whale species in the world.
    North Atlantic right whales occur in coastal and nearshore waters 
off the eastern United States and Canada, areas also used by fishing 
and other maritime activities that adversely affect the species. Deaths 
from collisions with ships and entanglement in fishing gear are 
significant impediments to the recovery of the species. Knowlton and 
Kraus (2001) documented 41 right whale deaths from 1970 to 1997, with 
at least 29 attributed to human activities. In the period 1997 to 2001, 
human-caused mortality and serious injury to North Atlantic right 
whales from ship strikes and fishery entanglements was an estimated 
average of 2.0 per year (Waring et al., 2004). Kraus et al. (2005) 
indicated that the overall mortality rate increased between 1980 and 
1998 to a level of at least four percent per year, a rate at which the 
survival of this species is not sustainable. Deaths from human-related 
activities are believed to be the principal reason for a declining 
adult survival rate (Caswell et al., 1999) and the lack of recovery in 
the species.
    One of the greatest known causes of deaths of North Atlantic right 
whales from human activities is ship strikes (Kraus, 1990; Knowlton and 
Kraus, 2001; NMFS, 2005). Waring et al. (2004) reported that 12 known 
right whale ship strike deaths occurred between 1991 and 2001; Kraus et 
al. (2005) reported 19 known ship strike deaths from 1986 to present. 
Three of these (possibly a fourth) occurred since March 2004 (Kraus et 
al., 2005). The actual number of deaths is almost certainly higher than 
those documented as some deaths go undetected or unreported, and in 
many cases it is not possible to determine the cause of death from 
recovered carcasses.
    Another factor in slowed recovery has been inconsistent 
reproduction. Calf production has been highly variable. Since 1980, the 
number of calves has ranged from 1-31 per year, an annual average of 
12.8. However, since 2000, calf production has averaged more than 20 
calves per year. Although recent calf production is encouraging, the 
number of births still is not sufficient to compensate for the number 
of adult deaths over the past two decades (Kraus et al., 2005). Of 
particular significance is the recent loss of breeding females, the 
most important demographic component of the population.
    For the North Atlantic right whale population to recover, death and 
injury from human activities, in particular those resulting from 
interactions with vessels because this is the greatest source of known 
deaths, must be reduced. The recently revised North Atlantic Right 
Whale Recovery Plan (NMFS, 2005) identified reduction or elimination of 
deaths and injuries from ship strikes among its highest priorities, and 
indicated that developing and implementing an effective strategy to 
reduce the threat was essential to recovery of the species.

Summary of Right Whale Protection Measures

    Right whales are protected under the Marine Mammal Protection Act 
(MMPA) and the Endangered Species Act (ESA). The Northern right whale, 
which includes both the North Atlantic and North Pacific right whales, 
was listed as endangered under the Endangered Species Conservation Act 
in June 1970 (35 FR 8495), the precursor to the ESA. The species was 
subsequently listed as endangered under the ESA in 1973, and designated 
as depleted under the MMPA.
    The ESA gives authority to the Secretary of Commerce (Secretary) 
for protecting most endangered marine species, including right whales. 
The ESA also provides authority to the Secretary to develop and 
implement recovery plans for endangered species. The Northern Right 
Whale Recovery Team completed a Final Recovery Plan for the Northern 
Right Whale in December 1991 (NMFS, 1991). A revised Recovery Plan for 
the North Atlantic Right Whale (Eubalaena glacialis) was completed in 
2005 (NMFS, 2005).
    NMFS, in collaboration with other agencies and organizations, has 
taken a number of steps to reduce the threat of ship strikes to North 
Atlantic right whales. Much of this activity involves limiting vessel 
approach to right whales, increasing the awareness of mariners using 
U.S. east coast ports about the vulnerability of right whales to ship 
strikes, and providing right whale sighting locations to mariners. A 
summary of activities follows.
    Right Whale Minimum Approach Regulation: On February 13, 1997, NMFS 
published a regulation (62 FR 6729), prohibiting all approaches within 
500 yards (460m) of any right whale, whether by vessel, aircraft or 
other means. The goal was to limit disturbance of right whales.
    Right Whale Sighting Networks: Beginning in 1993 in waters off the 
U.S. southeast coast, and in 1997 off the coast of New England, NMFS 
has participated in, or supported, an extensive program of aircraft 
surveys for right whales. Surveys are flown over northeast U.S. waters 
year round on virtually every day weather permits. Surveys cover peak 
right whale abundance periods in Cape Cod Bay (principally between 
January and May) and in the Great South Channel (between March and 
July). Sighting information is also provided by U.S. Coast Guard (USCG) 
vessel operators, research and other ships operated by NMFS, the 
Commonwealth of Massachusetts, and other sources. NMFS assembles the 
reports, and ``alerts'' are disseminated to mariners via an automated 
facsimile system, USCG Broadcast Notices to Mariners, broadcasts over 
NOAA Weather Radio, Army Corps of Engineers (ACOE) Cape Cod Canal 
Traffic Controllers, and postings on several web pages. Shipping 
agents, pilots and port authorities disseminate the information to 
inbound and outbound shipping traffic. Further information on this 
program can be found at: http://rwhalesightings.nefsc.noaa.gov/.
    In the southeastern United States, the survey program is a 
cooperative effort by the U.S. Navy (USN), USCG, ACOE, and the States 
of Georgia and Florida. Sighting location information is gathered and 
disseminated by the USN through a number of media, including USCG 
Broadcast Notice to Mariners, NAVTEX (the USCG international

[[Page 36301]]

communication system), and NOAA Weather Radio.
    Mandatory Ship Reporting System (MSRS): established in July 1999, 
the MSRS requires all commercial ships 300 gross tons or greater to 
report into a shore-based station when entering two key right whale 
aggregation areas, one each in waters off the U.S. northeastern and 
southeastern coasts. The U.S. northeast system operates year round; the 
U.S. southeast system is in effect from November 15 to April 15, when 
right whales aggregate in these waters. The MSRS requires mariners to 
report such things as entry location, destination, and ship speed. 
Reporting prompts an automated return message providing right whale 
sighting locations and information on how collisions can be avoided, 
thereby providing information on right whales directly to mariners as 
they enter right whale habitat. A compilation of incoming reports also 
provides NMFS with a means to obtain information on ship traffic 
volume, routes, and speed to assist in identifying measures to reduce 
future ship strikes (see, for example, Ward-Geiger et al., 2005). The 
program is jointly funded by the USCG and NMFS, and administered 
primarily by the USCG. Further information can be found at: http://www.nmfs.noaa.gov/pr/shipstrike/msr/
    Updating Navigational Aids and Publications: The U.S. Coast Pilot 
is a set of regionally-specific references on marine environmental 
conditions, navigation hazards, and regulations. Currently, captains of 
commercial vessels 1600 gross tons and above are required to carry the 
Coast Pilot when operating in U.S. waters. Since 1997, NMFS has 
provided updated information for U.S. eastern seaboard Coast Pilot 
guides, including information on the status of right whales, times and 
areas that they occur, threats posed by ships, the MSRS, and advice on 
measures mariners can take to reduce the likelihood of hitting right 
whales. In 2005, NMFS began including ship speed advisories (to transit 
at 12 knots or less). Similarly, NOAA navigational charts are routinely 
updated as they are reprinted to include right whale advisories.
    NOAA provides current information on right whales to National 
Imagery and Mapping Agency's (NIMA) Notice to Mariners. This 
publication, in addition to NIMA's Sailing Directions, provides 
guidance for mariners traveling in international waters. These 
publications are updated annually. Similar language has been provided 
to the United Kingdom's Admiralty Publications.
    Right Whale Recovery Plan Implementation Teams: Following 
completion of the 1991 Right Whale Recovery Plan, NMFS established 
Recovery Plan Implementation Teams, comprised of federal and state 
agencies and other organizations, to advise NMFS on actions to aid in 
the recovery of the species. Many of the Teams' activities have 
centered on reducing ship strikes. Both the Northeast and Southeast 
Implementation Teams were instrumental in developing and operating the 
aircraft survey programs described above. In addition, the Teams have 
developed and disseminated right whale material to mariners including 
brochures, placards, and training videos. The Teams have also funded 
various studies and have been an important conduit for information to 
and from the shipping industry and between Federal agencies.
    Conservation Actions by Federal Agencies: Through consultations 
under section 7(a) (2) of the ESA, Federal agencies conducting ship 
operations have modified vessel operating procedures. For example, the 
USCG is, among other things, providing protected species training for 
USCG personnel and posting lookouts when operating in areas where right 
whales occur, issuing notices to mariners about right whale sighting 
locations, issuing guidance to its vessel operators to proceed with 
caution and at the ``slowest safe speed'' in the vicinity of right 
whales, and supporting NMFS emergency efforts in responding to right 
whale strandings.
    In addition to actions taken as a result of ESA section 7 
consultations, the USN has made efforts to limit interactions between 
its vessels and whales, which include issuing advisories to its fleets 
to ``use extreme caution and use slow safe speed'' when near right 
whales, limiting vessel transits through right whale habitat when not 
adversely affecting a vital mission, and posting trained marine mammal 
lookouts.
    As a result of its numerous ESA consultations, ACOE operators and 
contractors in waters off Georgia and Florida post trained whale 
lookouts and avoid nighttime transits. During periods of low light or 
limited visibility, ACOE dredges are required to slow to 5 knots or 
less when operating in areas where whales have been sighted. In 
addition, NMFS requested that ACOE Cape Cod Canal Traffic Controllers 
notify mariners using the Canal about right whales; as of March 2004, 
Controllers alert ships' masters of right whale locations when right 
whales are detected in areas where Canal traffic may transit.
    In addition, in 2005, NMFS contacted all relevant Federal agencies 
and asked that vessels proceed at 12 knots or less when in right whale 
habitat. Most have voluntarily complied when vital missions are not 
compromised.

The Need for Additional Action

    Despite conservation efforts developed and undertaken by agencies, 
stakeholders, partners and industry throughout the 1990s, right whale 
deaths from ship strikes continue. NMFS believes that existing measures 
have not been sufficient to reduce the threat of ship strikes or 
improve chances for recovery (for example, a study of mariner 
compliance with NOAA-issued speed advisories in the Great South Channel 
reported that 95 percent of ships tracked (38 out of 40) did not slow 
down or route around areas in which right whale sightings occurred 
(Moller et al., 2005)). Accordingly, NMFS determined that further 
action was required. This led to the development of NMFS Ship Strike 
Reduction Strategy.

Development of a Ship Strike Reduction Strategy

    NMFS convened a series of over 20 stakeholder meetings between May 
1999 and April 2001 along the eastern seaboard from Boston, MA to 
Jacksonville, FL to discuss ways to reduce ship strikes. These 
discussions culminated in a report on management options for addressing 
the threat (Russell, 2001).
    Ship Strike Working Group: NMFS formed an internal Working Group in 
November 2001 to develop a strategy to reduce ship strike mortality to 
right whales. To this end, the group reviewed all relevant information 
pertaining to ship strikes, including the distribution and occurrence 
of known ship strikes; data on right whale distribution, aggregations, 
and migrations; vessel traffic patterns; recommendations from 
stakeholder meetings and the management options report; and legal 
precedents and authorities. The group met 11 times from February to 
October 2002. It identified well over 100 measures, both regulatory and 
non-regulatory, for reducing the threat of ship strikes and assessed 
their feasibility and effectiveness with regard to conservation of 
right whales, as well as the projected impact on industry. The group 
completed its draft Right Whale Ship Strike Reduction Strategy 
(Strategy) in January 2003. Since that time, NMFS has presented the 
Strategy at a number of stakeholder and public meetings. A number of 
summary documents providing justification and background for the 
Strategy are posted at http://www.nero.noaa.gov/shipstrike/.

[[Page 36302]]

Elements of the Strategy

    NOAA's Strategy consists of five elements for reducing the threat 
of ship strikes. Elements 1-4 are non-regulatory and are not addressed 
by this proposed rulemaking. Only portions of element 5 - operational 
measures for recreational and commercial mariners - are the subject of 
this proposed rulemaking.
    In short, the elements are: (1) continue ongoing conservation and 
research activities to reduce the threat of ship strikes; (2) develop 
and implement additional mariner education and outreach programs; (3) 
conduct ESA section 7 consultations, as appropriate, with Federal 
agencies that operate or authorize the use of vessels in waters 
inhabited by right whales; (4) develop a Right Whale Conservation 
Agreement with the Government of Canada; and (5) establish new 
operational measures for commercial and recreational mariners. The 
latter includes establishing vessel speed restriction by regulation and 
establishing certain routing measures. A brief description of each the 
five elements of the Strategy follows.
    Element 1. Continue ongoing research and conservation activities: 
NMFS intends to continue its existing right whale conservation 
activities related to ship strikes, and the Strategy is not intended to 
supplant those programs. While these activities alone are not adequate 
to sufficiently reduce the threat of ship strikes, they do have 
conservation value. This program is described in ``Summary of Right 
Whale Protection Measures'' above.
    Element 2. Mariner education and outreach programs: Mariner 
awareness is a key component to reducing this threat. And, while 
indications are that the maritime community is increasingly aware of 
the problem, NMFS intends to develop and implement a comprehensive 
education and outreach program for mariners and the general boating 
public which highlights the severity of the ship strike problem and 
provides steps that can be taken to reduce the threat. This work is 
underway. NMFS has developed a comprehensive list of tasks to raise 
mariner awareness that targets all segments of the recreational and 
commercial shipping industries, other agencies, and the general public. 
Tasks include developing curricula for maritime training academies, 
providing training modules for captain re-licensing, providing advice 
on voyage planning for domestic and foreign-flagged vessels, and 
ensuring all east coast pilots have material to distribute to inbound 
ships. Key groups such as the Right Whale Recovery Plan Implementation 
Teams and others are assisting in reviewing, prioritizing, and 
performing the tasks.
    Element 3. Conduct ESA Section 7 consultations: Because of the 
special missions of Federal agencies vessels owned or operated by, or 
under contract to, federal agencies would be exempt from the proposed 
regulations. This exemption is not intended to relieve Federal agencies 
of their responsibilities under the ESA, including the requirements of 
section 7. NMFS will use ESA section 7 consultations to analyze and 
mitigate impacts of vessel activities authorized, funded or carried out 
by Federal agencies. To that end, NMFS will review actions (including 
those subject to the conditions of existing Biological Opinions) 
involving vessel operations of federal agencies (e.g., the ACOE, 
Environmental Protection Agency, Maritime Administration, Military 
Sealift Command, Minerals Management Service, NOAA Corps, USCG, and 
USN) and determine whether to recommend initiation or re-initiation of 
section 7 consultation to ensure those activities are not jeopardizing 
the continued existence of North Atlantic right whales or destroying or 
adversely modifying their critical habitat.
    Element 4. Development of right whale agreement with Canada: 
Similar conservation issues exist in both U.S. and Canadian waters. In 
this regard, NOAA intends, with the appropriate federal agency or 
agencies, to initiate the negotiation of a bilateral Conservation 
Agreement with Canada to ensure that, to the extent possible, 
protection measures are consistent across the border and as rigorous as 
possible in their protection of right whales. Although specific 
language of such an agreement has not been identified, NOAA has already 
communicated the need for an agreement and cooperative efforts to 
Canadian officials.
    Element 5. New operational measures for commercial and recreational 
mariners: NMFS has developed a set of vessel operational measures. Some 
operational measures would be implemented through regulation and are 
the subject of this proposed rulemaking (see Proposed Regulations 
below). However, several will not require regulations.

Non-Regulatory Operational Measures

    Port Access Route Studies and Recommended Routes: NOAA has proposed 
establishing recommended shipping routes for vessels entering or 
departing the ports of Jacksonville, FL, Fernandina, FL, and Brunswick, 
GA, and in Cape Cod Bay. Recognizing the need for analysis of the 
routes, NMFS asked the USCG to conduct a Port Access Route Study 
(PARS). NMFS's intent was to ensure navigational safety in the routes 
by providing them to USCG for analysis and public comment. 
Subsequently, Congress made the same request under the Coast Guard and 
Maritime Transportation Act enacted in August 2004, and requested that 
the USCG provide a report to Congress within 18 months. The USCG 
announced its intent to initiate a PARS in the Federal Register (70 FR 
8313, February 18, 2005), indicating the geographic description of the 
areas under study, explaining the contemplated actions and their 
possible impacts, and inviting public comment. The PARS report is 
expected in February 2006.
    PARS are conducted under the Ports and Waterways Safety Act (PWSA) 
(33 U.S.C. 1223) to provide safe access routes in designating necessary 
fairways and traffic separation schemes. They are conducted for such 
things as the designation of recommended routes and anchorage/no 
anchorage areas. In so doing, a PARS considers ship traffic density and 
vessel traffic characteristics, types of measures, conflict with 
existing measures, and environmental hazard concerns. With regard to 
the PARS on proposed routes in Cape Cod Bay and the ports of 
Jacksonville, Fernandina, and Brunswick, NMFS and the USCG met 
regularly to exchange information and to work collaboratively on the 
analysis.
    If the USCG's PARS report of the routes determines that the 
proposed shipping routes are free of navigational and environmental 
hazards, recommended routes in Cape Cod Bay and those southeastern U.S. 
ports are intended to be established. A range of routes is being 
considered and the exact locations of the routes have not been 
determined; much depends on the outcome of the PARS report. Again, that 
action is not addressed in this proposed rulemaking. After recommended 
routes have been established, NMFS intends to monitor mariner use of 
the routes. If the routes are not used routinely, consideration will be 
given to making them mandatory through regulation.
    Shifting the Boston Traffic Separation Scheme (TSS): NOAA also 
intends to propose a reconfiguration of the TSS servicing Boston, MA. 
Reconfiguration of the TSS was also analyzed by the USCG's PARS. 
Analysis by NOAA's National Marine Sanctuaries Office indicates that an 
approximate 12 degree shift in the axis of the northern leg of the TSS 
and narrowing the two traffic

[[Page 36303]]

lanes of the TSS by approximately 1/2 nautical mile (nm) (.93 km) each 
would avoid known aggregation locations of right and humpback whales, 
yielding an estimated 58-percent reduction in the risk of ship strikes 
to right whales, while also reducing ship strike risk to other 
endangered large whale species by an estimated 81 percent. The proposed 
change in the TSS was developed after the development of NMFS's Ship 
Strike Reduction Strategy, however, it is fully consistent with the 
purpose and framework of the Strategy. The action requires proposing 
the change to, and endorsement by, the International Maritime 
Organization (IMO). A proposal would have to be submitted by the United 
States in April 2006.
    Area to be Avoided: In addition to the above routing measures, the 
Strategy proposes the creation of an IMO Area To Be Avoided (ATBA), for 
all ships 300 gross tons and greater, in the waters of the Great South 
Channel. Such a proposal would have to be submitted to, and adopted by, 
IMO. A description and map of the ATBA can be found in NOAA's Advance 
Notice of Proposed Rulemaking (69 FR 30857; June 1, 2004).

Advance Notice of Proposed Rulemaking (ANPR) and Public Participation

    The elements of the Strategy, and the vessel operational measures 
being proposed here, were described in the Federal Register as an ANPR 
on June 1, 2004 (69 FR 30857). The ANPR provided for a 60-day comment 
period. During that time (and subsequent extensions of the comment 
period), NMFS convened five public meetings in Boston, MA; New York/New 
Jersey; Wilmington, NC; Jacksonville, FL; and Silver Spring, MD. Public 
comments were provided at these meetings and transcripts of oral 
comments are available from NMFS (see for Further Information Contact).
    NMFS extended the ANPR comment period to November 15, 2004 
(September 13, 2004; 69 FR 55135), to allow for additional meetings to 
maximize public input, to determine concerns regarding practical 
considerations involved in implementing the Strategy, and to determine 
if NMFS was considering an appropriate range of alternatives. NOAA held 
11 stakeholder meetings during the extended comment period in: 
Baltimore, MD; Boston, MA; Jacksonville, FL; Morehead City, NC; Newark, 
NJ; New Bedford, MA; New London, CT; Norfolk, VA; Portland, ME; 
Savannah, GA; and Silver Spring, MD.
    Stakeholder meetings were attended by 142 individuals representing 
40 companies (shipping, passenger vessel, towing, cruise ship 
servicing); 13 industry associations (regional, national, and 
international); 12 Federal (maritime operating and regulatory) and 
state agencies; seven pilots' associations; one labor union; one marine 
architect company; 10 states and city port authorities; six 
environmental organizations; two newspapers; five academic or private 
institutions; and three U.S. Senate and House of Representative staff. 
Presentations made at these meetings, summary reports of the meetings, 
a list of the attendees, the ANPR, public comments, and background 
materials are provided at http://www.nero.noaa.gov/shipstrike.

Comments and Responses to Comments on the ANPR

    NMFS received 5,288 comments on the June 1, 2004, ANPR from 
governmental entities, individuals, and organizations. They were 
received in the form of e-mails, letters, website submissions, 
correspondence from action campaigns (e-mail and U.S. postal mail), 
faxes, and phone calls. Of those, 88 contained substantive comments. 
All comments have been compiled and posted at http://www.nmfs.noaa.gov/pr/shipstrike. Here we address issues that directly relate to the 
measures in this proposed rulemaking.
    Vessel Speed Restrictions: We received a number of comments and 
questions on NMFS's proposal to use speed restrictions in the range of 
10-14 knots as a means to reduce the occurrence of ship strikes. Many 
comments were supportive of speed restrictions and encouraged NOAA to 
use the lower limit of the range. Other comments questioned the value 
of such restrictions in protecting whales from ship strikes.
    NOAA's proposed use of speed restrictions to reduce ship strikes is 
based on several types of evidence. An examination of all known ship 
strikes indicates vessel speed is a principal factor. Records of right 
whale ship strikes (Knowlton and Kraus, 2001) and large whale ship 
strike records (Laist et al., 2001; Jensen and Silber, 2003) have been 
compiled. In assessing records in which vessel speed was known, Laist 
et al. (2001) found ``a direct relationship between the occurrence of a 
whale strike and the speed of the vessel involved in the collision.'' 
The authors concluded that most deaths occurred when a vessel was 
traveling in excess of 13 knots.
    In perhaps the most complete summary to date, Jensen and Silber 
(2003) detailed 292 records of known or probable ship strikes of all 
large whale species from 1975 to 2002. Of these, vessel speed at the 
time of collision was reported for 58 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. The majority (79 percent) of 
these strikes occurred at speeds of 13 knots or greater. When the 58 
reports are grouped by speed, the greatest number of vessels were 
traveling in the ranges of 13 15 knots, followed by speed ranges of 16 
18 knots, and 22-24 knots, respectively (Jensen and Silber 2003).
    Of the 58 cases, 19 (32.8 percent) resulted in serious injury (as 
determined by blood in water, propeller gashes or severed tailstock, 
and fractured skull, jaw, vertebrae, hemorrhaging, massive bruising or 
other injuries noted during necropsy) to the whale and 20 (34.5 
percent) resulted in death. Therefore, in total, 39 (67.2 percent) ship 
strikes in which ship speed was known serious injury or death resulted. 
The average vessel speed that resulted in serious injury or death was 
18.6 knots. Using a total of 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. The authors 
concluded that there was 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 related 
study, Vanderlaan and Taggert (in review) analyzed all published 
historical data on vessels striking large whales. Looking at cases 
where a strike occurred, the authors found that the probability that a 
strike would result in lethal rather than non-lethal injury ranged from 
20 percent at 9 knots, to 80 percent at 15 knots, to 100 percent at 21 
knots or greater. NMFS assumes that the conclusions from pooled data on 
all known large whale ship strikes also apply to right whales ship 
strikes specifically.
    Pace and Silber (2005) also examined the distribution of speeds at 
which known ship strikes occurred versus the speeds of ships reporting 
into the MSRS, which were considered representative of speeds that 
ships travel in general. They found that the two distributions were 
significantly different. That is, these data suggest that vessels that 
struck whales were going faster than ships tend to travel in general.

[[Page 36304]]

    There are only two definitive strikes to right whales where 
associated vessel speed is known with absolute certainty. One incident 
occurred on July 6, 1991, when a right whale calf was killed east of 
the Delaware Bay by a ship traveling at 22 knots. A second right whale, 
a juvenile, was killed on January 5, 1993, between Mayport and Fort 
Pierce, Florida by an 82-ft. (24.9 m) vessel operating at 15 knots. A 
third collision that may have involved a right whale occurred in the 
winter of 1972-73 east of Boston, Massachusetts. A bulbous bow 
container ship traveling at 21-23 knots collided with an unidentified 
whale, killing it. Laist et al. (2001) listed this case as a possible 
right whale. In November 2004, a Federal vessel traveling 12 knots 
struck a large whale outside the mouth of the Chesapeake Bay. Although 
not linked definitively to the strike, a dead adult right whale washed 
ashore in North Carolina shortly thereafter with massive injuries.
    In addition, computer simulation modeling studies (Clyne, 1999; 
Knowlton et al., 1995) found that the hydrodynamic forces that pull 
whales toward the vessel hull increase with increased speed.
    Similar studies of the occurrence and severity of strikes relative 
to vessel speed have been reported in other species. Laist and Shaw 
(2005) examined the effectiveness of boat speed restrictions to limit 
the number of Florida manatee deaths, in particular as it related to 
enforcement of restrictions. They summarized the locations and 
circumstances of 38 known manatee deaths occurring between 1986 and 
2005, and found that deaths were lower or non-existent in locations 
where enforcement efforts were greatest. The paper concluded that 
``speed restrictions can be effective in reducing collision risks with 
manatees if they are well developed and enforced'' and stated that 
``similar measures may be useful for other marine mammal species 
vulnerable to collision impacts to vessels (e.g., North Atlantic right 
whales).
    The relationship between increasing vehicle speed and wildlife 
mortality is not limited to marine environments. The link between 
terrestrial wildlife mortality and vehicle speed has been documented in 
numerous species (Gunther et al., 1998; Knapp et al., 2004; Groot 
Bruinderink and Hazebroek, 1996). The use of speed restrictions has 
also been successfully implemented in endangered terrestrial species 
such as the Florida Panther (Schaefer et al., 2003) and Florida Key 
deer (Calvo and Silvy, 1996) to protect depleted species from death by 
vehicle strikes.
    Precedents for Speed Restrictions: In several geographic regions 
and for varying purposes, ship speed restrictions have been imposed. 
The National Park Service established a 13 knot speed limit for vessels 
262 ft (80 m) or greater, in Glacier Bay National Park on a year-round 
basis to reduce the likelihood of ship strikes to humpback whales 
(National Park Service, 2003). In Florida state waters, the U.S. Fish 
and Wildlife Service imposes speed restrictions on vessels in certain 
areas to protect manatees.
    In addition, State pilots require that vessels slow their port 
approach speeds ranging from 5-10 knots so a pilot can board a vessel. 
And, the Port of Los Angeles requests that every vessel entering or 
leaving the Port reduce its speed to 12 knots to reduce smog forming 
emissions. Ships have voluntarily observed this speed limit since 2002.
    The USCG has required vessel speed restrictions at various times 
and locations, 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 speeds 
of eight knots or less in the vicinity to 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).
    Ships' Maneuverability: Several commenters indicated that large 
ships would lose steerage at low speeds. Based on conversations with 
shipping industry representatives and the USCG regulations mentioned 
above, NMFS believes that most ocean going vessels maintain steerage at 
speeds of 10 knots and greater. In addition, we note the USCG has 
implemented ship speed restrictions in some river and port entrances 
ranging from five to ten knots (see, for example, 68 FR 66753; 67 FR 
41337; 68 FR 2201; and 66 FR 53712). Based on this information and 
absent evidence to the contrary, NMFS believes that ships operating 
under the proposed regulations will be able to maintain 
maneuverability, but requests further comment on this topic.
    Economic Burden to Vessel Operators: A number of comments were 
received regarding the potential economic impacts to commercial vessel 
operators arising from the proposed regulations. Economic impacts are 
addressed in the Draft Environmental Impact Statement, Regulatory 
Impact Review, and Regulatory Flexibility Act analysis.

Notice of Intent to Prepare a Draft Environmental Impact Statement

    NMFS published a Notice of Intent (NOI) to prepare a Draft 
Environmental Impact Statement (DEIS) on June 22, 2005 (70 FR 36121). 
In the notice, NMFS invited public comment on the various alternatives 
and solicited information bearing on the National Environmental Policy 
Act (NEPA) analyses. In conjunction with preparation of the DEIS, NMFS 
held a number of meetings along the eastern seaboard to discuss 
potential economic impacts of the proposed rule. Further, public 
comment was also solicited through the USCG's PARS of several suggested 
recommended routes. The DEIS will be made available for public comment.
    In sum, NMFS encouraged public comment through an ANPR, a NOI, and 
now proposed rulemaking and the DEIS. As a result, NMFS has conducted 
numerous public meetings, held several rounds of discussions with 
various segments of the shipping community and other stakeholders, and 
described the content and purpose of the ship strike reduction program 
in various public forums.

Proposed Rulemaking

    Current efforts to reduce occurrence of North Atlantic right whale 
deaths and serious injury from ship strikes have not been sufficient to 
alter the trajectory of this species toward extinction. The regulatory 
measures proposed here are part of NOAA's Ship Strike Reduction 
Strategy. They are designed to significantly reduce the likelihood and 
severity of collisions with right whales while also minimizing adverse 
impacts on ship operations.
    NOAA is proposing these regulations pursuant to its rulemaking 
authority under MMPA section 112(a) (16 U.S.C. 1382(a)), and ESA 11(f) 
(16 U.S.C. 1540(f)). These proposed 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 the 
proposed regulations differ from the ANPR based on comments received 
and additional analysis by NMFS.

Requirements and Applicability

    Speed Restrictions: NMFS proposes to establish vessel speed 
restrictions in the areas identified below. NMFS's

[[Page 36305]]

proposed rulemaking will impose vessel speed restrictions of 10 knots 
or less. However, NMFS also invites comments on vessel speed 
restrictions of 12 knots or less, and 14 knots or less, in light of 
data, summarized here and in the D[deg]IS, about the additional 
reduction in risk to the right whale population and increased costs of 
incrementally stricter speed limits. The proposed regulations seek to 
reduce the likelihood and severity of ship strikes through restrictions 
on vessel speed. Given the lower costs of relatively higher speed 
limits under the same mix of management measures (preferred alternative 
6 in the D[deg]IS), comments should address the degree to which the 
lower speed limits will serve this purpose.
    Vessels Subject to Proposed Rule: These proposed regulations apply 
to all vessels subject the jurisdiction of the United States 65 ft 
(19.8 m) and greater in overall length, except U.S. vessels owned or 
operated by, or under contract to, the Federal Government; and all 
other vessels 65 ft (19.8 m) and greater in overall length entering or 
departing a port or place under the jurisdiction of the United States. 
NMFS examined sizes of vessels involved in known North Atlantic right 
whale ship strike deaths to determine vessel size classes that should 
be subject to the requirements. Available data indicate that most 
lethal collisions are caused by large vessels (Laist et al., 2001; 
Jensen and Silber, 2003). In this proposed rulemaking, NMFS proposes 65 
ft (19.8m) as the vessel size threshold for speed restrictions. NMFS is 
aware that right whale collisions can occur with vessels smaller than 
65 ft (19.8 m) and result in serious injury or death. Sixty-five feet 
(19.8m) is a size threshold recognized in the maritime community and 
commonly used in maritime regulations to distinguish between motorboats 
and larger vessels, of which the latter are subject to additional 
regulatory requirements (e.g., Automatic Identification System (AIS) 
requirements; International Navigational Rules Act, Rules of the Road 
sections).
    Exemption of Federal vessels: The proposed regulations described 
herein will not apply to vessels owned or operated by, or under 
contract to, Federal agencies. This exemption would also extend to 
foreign sovereign vessels when they are engaging in joint exercises 
with the U.S. Department of the Navy. NMFS believes that the national 
security, navigational, and human safety missions of some agencies may 
be compromised by mandatory vessel speed restrictions. As noted above, 
however, this exemption would not relieve Federal agencies of their 
obligations under the ESA, including section 7. NMFS will be reviewing 
Federal actions involving vessel operations to determine where ESA 
section 7 consultations would be appropriate. NMFS also requests all 
Federal agencies to voluntarily observe the conditions of the proposed 
regulations when and where their missions are not compromised.
    Regional and Seasonal Implementation of the Speed Restrictions: Due 
to regional differences in right whale distribution and behavior, 
oceanographic conditions, and ship traffic patterns, NMFS's proposed 
speed restrictions would apply only in certain areas and at certain 
times of the year, or under certain conditions. These are roughly 
divided into: (a) waters off the Southeast U.S. coast, (b) waters off 
the U.S. mid-Atlantic coast, (c) waters off the northeast U.S. coast, 
and (d) dynamically managed areas. These proposed regulations were 
developed to be consistent with right whale movement, distribution, and 
aggregation patterns. The timing, duration, and geographic extent of 
the speed restrictions have been tightly defined to take into account 
the biological data while also minimizing potential impacts to ship 
operations.
Southeast United States (SEUS)
    Waters off the SEUS coast are a vital aggregation area for North 
Atlantic right whales, and reducing impacts from human activities in 
this area is essential to the species' recovery. Mature females and 
their calves, key reproductive components of the population, use these 
shallow, relatively benign waters in winter. The loss of one of these 
individuals represents a significant impact to the recovery of the 
population. In addition, certain behavior patterns of cow/calf pairs 
(e.g. relatively greater amounts of time at the surface due to limited 
diving ability and agility of the calf) make them particularly 
susceptible to ship collisions. The area also hosts substantial ship 
traffic.
    SEUS Operational Measure: NMFS proposes to restrict vessel speed 
(see above) from November 15 to April 15 each year in the area bounded 
by: the shoreline, 31[deg]27'N. lat. (i.e., the northern edge of the 
MSRS boundary) to the north, 29[deg]45'N. lat. to the south, and 
80[deg]51.6'W. long. (i.e., the eastern edge of the MSRS boundary) 
(Fig. 1). This area corresponds to the calving/nursery area off 
Georgia/Florida.
Mid-Atlantic Region of the U.S. (MAUS)
    The MAUS is used heavily by right whales migrating to and from 
calving/nursery areas in the SEUS and feeding grounds off the 
northeastern U.S. coast and Canada. Satellite tagging data, 
opportunistic sighting data, and historical records of right whale 
takes in the commercial whaling industry indicate that right whales 
often occur within 30 nm (56 km) of the coast and in waters less than 
25 fathoms. Ship traffic entering ports in this area, or transiting 
through it, crosses the whales' north-south migratory path. Two right 
whale calves were found dead in the mid-Atlantic region in 2001 and 
there is a high probability that these deaths were caused by ship 
strikes. A dead mature female right whale was observed floating off 
Virginia (subsequently stranded on the coast of North Carolina in 2004) 
and almost certainly died as a result of a vessel collision.

MAUS Operational Measure

    NMFS proposes to restrict vessel speed from November 1 through 
April 30 each year 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 30 nm area 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;
    (b) Delaware Bay (Ports of Philadelphia and Wilmington);
    (c) Entrance to the Chesapeake Bay (Ports of Hampton Roads and 
Baltimore);
    (d) Ports of Morehead City and Beaufort, NC;
    (e) Port of Wilmington, NC;
    (f) Port of Georgetown, SC;
    (g) Port of Charleston, SC; and
    (h) Port of Savannah, GA.
    At Block Island Sound, the designated area is a box with a 30-nm 
width extending south and east of the mouth of the Sound (reference 
points: Montauk Point and the western end of Martha's Vineyard) (Fig. 
2).

Northeast United States (NEUS)

    Right whales occupy and forage in four distinct areas in the NEUS: 
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 (Fig. 3).
    Right whales feed in Cape Cod Bay in winter and spring. Right whale 
food resources in Cape Cod Bay wane by the end of April, causing right 
whales to

[[Page 36306]]

leave the area in search of resources elsewhere. At that time, many of 
these whales travel to the Great South Channel, where they are found in 
large aggregations in spring and early summer. Before entering the 
Great South Channel, right whales commonly transit or reside in other 
nearby areas; these include Stellwagen Bank, areas to the east of 
Stellwagen Bank, and the northern end of the Provincetown Slope (the 
area on the ocean side of Cape Cod that extends to the Great South 
Channel). The Boston Traffic Separation Scheme (TSS) concentrates ship 
traffic through this region, and hundreds of ships' transits occur here 
annually (Ward-Geiger et al., 2005). Therefore, right whales are 
vulnerable to ship strikes in these areas.
    The Great South Channel is one of the most important habitats for 
right whales. Right whales aggregate in the Channel in spring and early 
summer to feed on dense prey patches. In some years, more than one-
third of the North Atlantic right whale population can be found in this 
area, and it is likely that well over half the population feeds in, or 
at least passes through, this area during the course of the year. Some 
individually identified right whales observed in the Great South 
Channel are seen rarely or not at all in other areas, further 
indicating the importance of this area to the population. For much of 
the time in the Great South Channel, whale distribution overlaps with 
those of commercial ship traffic, exposing them to risk of collision.
    Right whales use the Gulf of Maine in summer and fall, primarily 
observed as feeding or socializing aggregations, or en route to 
aggregation areas in Canadian waters. However, whale occurrence in this 
area often is not consistently or predictably in high densities. 
Moreover, vessel traffic in this area, other than transits into 
Portland, ME, does not exhibit predictable patterns.
    Cape Cod Bay Operational Measures: NMFS proposes to restrict vessel 
speed from January 1 - May 15 each year throughout all of Cape Cod Bay. 
The proposed area consists of all waters in Cape Cod Bay, extending to 
all shorelines of the Bay, with a northern boundary of 42[deg]12' N. 
lat. (Fig. 3).
    Off Race Point: NMFS proposes to restrict vessel speed from March 1 
to April 30 each year in a box approximately 50 nm by 50 nm to the 
north and east of Cape Cod, MA (Fig. 3). The proposed area consists of 
all waters bounded by straight lines connecting the following points in 
the order stated:

------------------------------------------------------------------------
                         N. Lat.                             W. Long.
------------------------------------------------------------------------
                  42[deg]30'                                  70[deg]30'
                  42[deg]30'                                  69[deg]45'
                  41[deg]40'                                  69[deg]45'
                  41[deg]40'                                  69[deg]57'
                  42[deg]04.8'                                70[deg]10'
                  42[deg]12'                                  70[deg]15'
                  42[deg]12'                                  70[deg]30'
                  42[deg]30'                                  70[deg]30'
------------------------------------------------------------------------

    Great South Channel: NMFS proposes to restrict vessel speed from 
April 1 to July 31 in the Great South Channel (Fig 3). The proposed 
area consists of all waters bounded by straight lines connecting the 
following points in the order stated:

------------------------------------------------------------------------
                         N. Lat.                             W. Long.
------------------------------------------------------------------------
                  42[deg]30'                                 69[deg] 45'
                  42[deg]30'                                  67[deg]27'
                  42[deg]09'                                67[deg]08.4'
                  41[deg]00'                                  69[deg]05'
                  41[deg]40'                                  69[deg]45'
                  42[deg]30'                                  69[deg]45'
------------------------------------------------------------------------

Atlantic Ocean
    The specific speed limit areas proposed above are based on known 
recurring North Atlantic right whale aggregations and behavioral 
patterns in those particular areas and times of year. These areas are 
tightly bounded both temporally and spatially based on predictable 
right whale movement and occurrence as well as existing vessel traffic 
patterns. However, right whales also occur at other, less predictable, 
times and locations when, for example, food resources are present. 
Right whale prey concentrations are 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. In 
addition, certain right whale behavior patterns may increase the chance 
of a fatal strike. Actively feeding or socializing right whales are 
highly focused on the activity and perhaps less aware of oncoming 
ships. Other social group types or activities may also render right 
whales vulnerable to ship strikes. For example, mother calf pairs may 
be at risk due to the limited swimming or diving ability of the calf. 
And, right whales lingering in the vicinity of shipping lanes or high 
vessel traffic areas are susceptible to ship strikes. Therefore, NMFS 
proposes to restrict vessel speed in areas or times outside the above-
mentioned seasonal restrictions when whale groups are sighted.
Dynamic Management Areas
    NMFS proposes to establish temporary ``dynamic management areas'' 
(DMAs) in areas where right whales occur outside the SEUS, MAUS, and 
NEUS areas described above or during such times both within as well as 
outside these areas when the seasonal management measures are not 
operational. Designation of such an area would be triggered by (a) a 
concentration of three or more right whales, or (b) one or more whales 
within a Traffic Separation Scheme (TSS), designated shipping lane, or 
within a Mid-Atlantic 30 nm port entrance zone and the whales show no 
evidence of continued coast-wise transiting (e.g., they appear to be 
non-migratory or feeding). In the designated area, mariners will have 
the option to traverse at a speed no greater than 10 knots, or route 
around the area.
    NMFS' decision to trigger a DMA and the size of the DMA will be 
based a number of considerations, including, but not limited to: the 
experience, training and qualifications of the person(s) sighting the 
right whale(s); the reliability of the sighting; and the aggregation 
and behavior of whales. In addition to these considerations, NMFS will 
also consider criteria developed by Clapham and Pace (2001), which 
provided a description and analysis of triggering criteria for 
temporary fisheries closures, to help determine the size of the DMA. 
Those criteria suggest that for each individual sighting event, NMFS 
will plot the sighting and draw a circle with a radius of at least 2.8 
nm around the sighting. The radius would emanate from the geographic 
center of all whales included in the sighting event. This radius would 
be adjusted for the number of whales such that a density of 0.04 whales 
per square nm (i.e., a density of 4 whales per 100 square nm) is 
maintained. That is, the radius would be 2.8 nm for a single right 
whale, 3.9 nm for two whales, 4.8 nm for three whales, etc. In 
addition, a larger circular zone will be designated that will extend an 
additional 15 nm beyond the core area to allow for possible whale 
movement.
    A DMA will remain in effect for 15 days from the date of the 
initial designation and automatically expire after that period if NMFS 
does not modify the duration of the DMA. The period may be changed if 
subsequent surveys within the 15-day period demonstrate that: (a) 
whales are no longer present in the zone, in which case the DMA zone 
will expire immediately upon providing notice of this determination; or 
(b) the

[[Page 36307]]

aggregation has persisted (as indicated by subsequent sightings in the 
same zone), in which case NMFS would extend the period for an 
additional 15 days from the date of the most recent sighting in the 
zone.
    NMFS would notify ship operators of a DMA, including location(s), 
dimensions, and dates, through publication in the Federal Register, 
actual notice through USCG broadcast notice to mariners and other 
commonly used marine communication channels (e.g., NOAA Weather Radio 
alerts, and any available media outlets). NMFS is considering making 
DMAs effective from the date specified in the actual notice (USCG 
broadcast notice to mariners) of the DMA and seeks comment on that 
proposal as well.
    While DMAs can be a logistical challenge and may involve a heavy 
resource commitment (i.e., due to the need for extensive aircraft 
surveys, flights to verify sighting locations, and infrastructure to 
process and issue the restrictions and monitor compliance), they allow 
NMFS to minimize the size of the seasonally managed areas as well as 
the time when these seasonal management measures are operational, while 
allowing for real-time protection of right whales by establishing 
protection measures in areas where right whales appear unexpectedly.

Evaluation of the Effectiveness and Enhancing the Rigor of the Measures

    The success of this program is vital to the recovery of the 
species. Therefore, NMFS will monitor the effectiveness of the ship 
strike reduction measures and consider implementing larger seasonally 
managed areas, further reducing ship speed, or other measures if 
appropriate.

Literature Cited

    Calvo, R.N., and N.J. Silvy. 1996. Key deer mortality, U.S. 1 in 
the Florida Keys. Pp. 311-321 in G.L. Evink, P. Garrett, D. Zeigler and 
J. Berry, eds., Trends in Addressing Transportation Related Wildlife 
Mortality: proceedings of the transportation related wildlife mortality 
seminar. State of Florida Department of Transportation, Tallahassee, 
FL. FLER-58-96.
    Caswell, H., M. Fujiwara, and S. Brault. 1999. Declining survival 
probability threatens the North Atlantic right whale. Proc. Nat. Acad. 
Sci. 96:3308 3313.
    Clapham, P., and R. Pace. 2001. Defining Triggers for Temporary 
Area Closures to Protect Right Whales from Entanglements: Issues and 
Options. NMFS, NEFSC Reference Document 01-06.
    Clyne, H. 1999. Computer simulations of interactions between the 
North Atlantic Right Whale Eubalaena glacialis) and shipping.
    Groot Bruinderink, G.W.T.A., and E. Hazebroek. 1996. Ungulate 
traffic collisions in Europe. Conservation Biology 10(4):1059-1067.
    Gunther, K.A., M.J. Biel, and H.L. Robison. 1998. Factors 
influencing the frequency of road-killed wildlife in Yellowstone 
National Park. Pp. 32-42 in G.L. Evink, ed., Proceedings of the 
International Conference on Wildlife Ecology and Transportation, 
February 9-12, 1998. Fort Myers, FL: State of Florida Department of 
Transportation.
    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.
    Knapp, K.K., X. Yi, T. Oakasa, W. Thimm, E. Hudson, and C. 
Rathmann. 2004. Deer-vehicle crash countermeasure toolbox: a decision 
and choice resource. Deer-Vehicle Crash Information Clearinghouse 
Initiation Project for the Wisconsin Department of Transportation, SPR 
Project No. 0092-01-11, Report No. DVCIC 02. Available from: http://www.deercrash.com/toolbox/finalreport.pdf.
    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., and S.D. Kraus. 2001. Mortality and serious injury 
of northern right whales (Eubalaena glacialis) in the western North 
Atlantic Ocean. Journal of Cetacean Research and Management (Special 
Issue) 2: 193 208.
    Kraus, S.D. 1990. Rates and potential causes of mortality in North 
Atlantic right whales (Eubalaena glacialis) Marine Mammal Science 
6:278-291.
    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.
    Laist, D.W., A.R. Knowlton, J.G. Mead, A.S. Collet, and M. Podesta. 
2001. Collisions between ships and whales. Mar. Mamm. Sci. 17(1): 35-
75.
    Laist, D.W., and C. Shaw. 2005. Preliminary evidence that boat 
speed restrictions reduce deaths of Florida manatees. Marine Mammal 
Science. 22(2):472-479.
    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.
    National Marine Fisheries Service (NMFS). 1991. Final Recovery Plan 
for the Northern Right Whale, Eubalaena glacialis. U.S. Department of 
Commerce, National Oceanic and Atmospheric Administration, National 
Marine Fisheries Service, Office of Protected Resources. 86 pp.
    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 Park Service. 2003. Glacier Bay National Park and 
Preserve, Alaska. Vessel Quotas and Operating Requirements. Final 
[deg]nvironmental Impact Statement. U.S. Department of Interior.
    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.
    Russell, B.A. 2001. Recommended Measures to Reduce Ship Strikes of 
North Atlantic Right Whales. Contract report to NMFS. 37pp.
    Schaefer, J., F.J. Mazzotti, and C. Huegel. 2003. Highways and 
wildlife: problems and solutions. Department of Wildlife [deg]cology 
and Conservation, Florida Cooperative [deg]xtension Service, Institute 
of Food and Agricultural Sciences, University of Florida W[deg]C-172, 7 
pp. Available: http://edis.ifas.ufl.edu/UW158
    Vanderlaan, A.S.M., and C.T. Taggert. In review. Vessel Collisions 
with whales: the probability of lethal injury based on vessel speed. 
Marine Mammal Science.
    Ward-Geiger, L.I., G.K. Silber, R.D. Baumstark and T.L. Pulfer. 
2005. Characterization of Ship Traffic in Right Whale Critical Habitat. 
Coastal Management 33: 263 278.
    Waring, G.T., J.M. Quintal, and C.P. Fairfield. 2004. U.S. Atlantic 
and Gulf of Mexico Stock Assessment Reports. U.S. Department of 
Commerce, National Oceanic and Atmospheric Administration Technical 
Memorandum. National Marine Fisheries Service, Northeast Fisheries 
Science Center.

Classification

    This proposed rule has been determined to be economically 
significant for purposes of Executive Order 12866.

[[Page 36308]]

    Based on the most recently available data, the annual direct and 
indirect economic impacts are estimated to be $116 million for the 
preferred alternative at the 10 knot speed restriction. This estimate 
is based on the following direct economic impacts: shipping industry 
vessels ($49.4 million), cumulative effect of multi-port strings ($5.8 
million), rerouting of southbound coastwise shipping ($2.5 million), 
commercial fishing vessels ($1.0 million), charter fishing vessels 
($1.2 million), passenger ferries ($5.6 million), whale watching 
vessels ($0.9 million); it also includes the indirect economic impact 
of port diversions ($49.7 million). The estimated annual economic 
impact exceeds $100 million. Therefore, the proposed rule would be 
considered an economically significant regulatory action for the 
purposes of E.O. 12866.
    NMFS estimates of the costs of this propoed rule focus on direct 
economic costs to ships and the indirect costs to ports of diverted 
ship traffic and do not include the costs to passengers for the 
additional time spent in transit. NMFS requests comment on these costs 
as well.
    The benefits of this proposed rule would be the reduction of right 
whale ship strikes. Data suggest that there is an average of about two 
known ship strikes per year with at least one resulting in death. The 
actual number of ship strike related deaths is almost certainly higher 
than those documented as some deaths go undetected or unreported. This 
rule will reduce the risk of both ship strikes and ship strike 
mortality.
    In the DEIS, NMFS analyzed the costs of a series of alternatives to 
the rule, including three different speed limits for each alternative 
set of management measures. This analysis is summarized in the 
Regulatory Impact Analysis. Under the preferred alternative, NMFS 
estimated the costs of a 12 knot speed restriction to be $62.4 million 
annually and a 14 knot speed restriction to be $34.6 million annually. 
NMFS believes that these alternative speed limits would not be as 
effective in reducing the risks of ship strikes as a 10 knot speed 
limit.
    Endangered Species Act consultation under section 7 will be 
completed prior to the issuance of any final rule.
    NMFS has prepared a Draft Environmental Impact Statement (D[deg]IS) 
pursuant to the requirements of the National Environmental Policy Act. 
Notice of Availability of the D[deg]IS will be published in the Federal 
Register.
    Pursuant to the Regulatory Flexibility Act, NMFS prepared the 
following Initial Regulatory Flexibility Analysis (IRFA).

IRFA

    A description of the action, why it is being considered, and the 
legal basis for this action are contained in the preamble to this 
proposed rule. This proposed rule does not duplicate, overlap, or 
conflict with other Federal rules. This IRFA analyzes the proposed 
alternatives and other alternatives described in the preamble to the 
rule and does not address alternatives previously considered and 
subsequently dismissed in the DEIS. There are no recordkeeping or 
reporting requirements associated with this proposed rule. There most 
likely will be a compliance cost or benefit associated with changes in 
fuel consumption from speed restrictions measures. These changes are 
likely to be small given that they would occur only in a 20-30 nm (37-
55.6 km) area. However, given the heterogeneous characteristics of the 
many types, lengths, gross tonnages, and horsepower equivalents of 
vessels impacted by this rule, it is not possible to make this estimate 
on a vessel, firm, or aggregate basis.
    As discussed below, NMFS believes that there may be 
disproportionate economic impacts among types of small entities within 
the same industry as well as between large and small entities of 
different vessel types occurring within different industries. While the 
economic impacts discussed in this IRFA would reflect the impact on the 
typical vessel within each classification, NMFS recognizes that there 
may be variation of impacts among different vessels within each 
classification from the implementation of this proposed rule. NMFS 
recognizes that there may be disproportionate impacts between or among 
vessels servicing different areas or ports. However, there is no hard 
data or evidence to indicate that this is the case. In addition, 
changes in annual revenues are used as a proxy for changes in 
profitability since cost data is not readily available. For the most 
part, NMFS does not expect any small entity to cease operation as a 
result of this rulemaking, regardless of the alternative implemented by 
the agency. There are, however, two cases where small entities might 
cease operation if no adjustments are made to the composition of their 
operations. They include small entities comprised entirely of fast-
speed ferry services and fast-speed whale watching vessels. Without the 
ability to pick up the increased demand for regular-speed ferry or 
regular-speed whale watching trips as a result of temporary cessation 
of high-speed vessel operations whenever a DMA is in place, these 
entities might cease operations under any alternative containing DMAs. 
The economic impacts of the proposed rule as it relates to small 
entities are as follows.

Description of Affected Small Entities

    There are seven industries directly affected by this proposed 
rulemaking as follows: commercial shipping, high-speed passenger 
ferries, regular-speed passenger ferries, high-speed whale watching 
vessels, regular-speed whale watching vessels, commercial fishing 
vessels, and charter fishing vessels. This analysis uses size standards 
prescribed by the Small Business Administration (SBA). Specifically, 
for international and domestic shipping operators, the SBA size 
standard for a small business is 500 employees or less. The same 
threshold applies for international cruise operators and domestic ferry 
service operators. For whale watching operators and charter fishing 
commercial fish harvesters, the SBA threshold is $6.0 million of 
average annual receipts. For commercial fishing operators, the SBA 
threshold is $3.5 million of average annual receipts. The number of 
small entities affected by the proposed rule-making by industry are as 
follows: 372 commercial shipping vessels of various classifications, 33 
passenger ships, 345 commercial fishing vessels, 40 charter fishing 
vessels, 9 high-speed passenger ferries, 8 regular-speed passenger 
ferries, 3 high-speed whale watching vessels and 5 regular-speed whale 
watching vessels.

Economic Impacts

Proposed Alternative (Right Whale Ship Strike Reduction Strategy)

    The proposed alternative is comprised of management measures that 
would define specific areas on a seasonal basis and requires vessels to 
reduce speed to avoid right whale strikes. In addition, the proposed 
alternative would implement dynamic management areas (DMAs) on a case-
by-case basis outside of designated areas specified in this proposed 
rule. In addressing the speed reduction option, NMFS analyzed impacts 
of a speed restriction of 10, 12, and 14 knots.
    The proposed option of a speed restriction of 10 knots would reduce 
annual revenues to vessels as follows. Commercial shipping 0.18 percent 
of annual receipts, passenger cruise vessels 0.20 percent, high-speed 
passenger ferries 9.8 percent, regular-speed passenger ferries 7.9 
percent, high-speed whale watching vessels 8.3 percent, regular-speed 
whale watching vessels

[[Page 36309]]

3.8 percent, commercial fishing vessels 0.4 percent, charter fishing 
vessels 8.9 percent.
    At a speed of 12 knots, all vessels defined as small entities, with 
the exception of high-speed passenger ferries and high-speed whale-
watching vessels, show less adverse economic impact than the proposed 
option ranging from less than 0.1 percent of annual receipts for 
commercial fishing vessels to 5.2 percent for regular-speed passenger 
ferries. The economic impact to high-speed passenger ferries and whale-
watching vessels are estimated to be the same as the proposed option, 
9.8 percent and 8.3 percent, respectively.
    For the 14-knot option, with the exception of the high-speed 
passenger ferries and high-speed whale-watching vessels which incur the 
same economic impact as compared with the proposed option, 9.8 percent 
and 8.3 percent, all vessels show less adverse economic impacts than 
the proposed option from less than 0.1 percent reduction in annual 
receipts for commercial fishing vessels to 2.6 percent for regular-
speed passenger ferries.
    Based on this analysis, NMFS concludes that operators of regular-
speed passenger ferries, regular-speed whale-watching vessels, and 
charter fishing vessels would prefer either the 12- or 14-knot options. 
However, NMFS' scientists and other independent scientists have 
determined that a higher speed restriction increases likelihood of a 
ship striking a right whale. Furthermore, scientists have shown that 
only a small percentage of ship strikes occur at 10 knots, and those 
that do usually result in injury rather than death. Therefore, among 
the three speed restriction options, the 10-knots option would afford 
the preferred option for right whale recovery and from a biological 
standpoint, a speed restriction of either 12 or 14 knots are not 
preferred options for protecting the critically endangered right whale.
    NMFS concludes that there would be disproportionate impacts from 
implementation of this proposed option between the group consisting of 
passenger ferries, high-speed whale watching vessels, and charter 
fishing vessels and all other types of vessels included in this IRFA. 
In addition, NMFS has determined that there may be disproportionate 
impacts between large commercial shipping and large passenger vessels, 
such as Chevron, Maersk, Carnival Cruise Lines, etc., and the group 
consisting of passenger ferries, high-speed whale watching vessels, and 
charter fishing vessels. This conclusion is based on the assumption 
these large vessels would be less adversely affected than their 
companion small commercial and shipping vessels which were found to be 
adversely affected, on average, by the 0.18 percent for the 10-knot 
speed restriction, whereas, reductions to revenues for small passenger 
ferries, high-speed whale watching vessels, and charter fishing vessels 
would range from 7.9 percent to 9.8 percent.

No-Action Alternative

    The no-action option would be preferable to all small entities, 
particularly to all passenger ferries, high-speed whale watching 
vessels, and charter fishing vessels. This determination is based on 
the fact that the reduction in annual revenues as a percentage of total 
revenue for these three classes of vessels under the proposed 
alternative and proposed speed restriction would exceed approximately 8 
percent annually.

Dynamic Management Areas (DMA) Only Alternative

    One alternative considered in the DEIS is the use of DMAs as 
described in the preamble, excluding all other options that are part of 
the proposed rule. NMFS has determined that this alternative would be 
preferable to small businesses as compared to the proposed alternative 
because vessels would not be required to reduce speeds in seasonally 
managed areas as described in the preamble. Vessels would simply be 
required to follow speed restrictions for shorter time frames in a 
smaller DMA in response to right whale sightings. However, relying 
solely on this alternative would not afford the needed protection to 
right whales. This measure calls for being able to identify right whale 
aggregations in order to trigger DMAs, but as identification of right 
whale aggregations is not always possible in practice, relying on this 
measure would have only a minor, positive effect on right whale 
population size and may not reduce ship strikes sufficiently to promote 
population recovery. In addition, relying on this alternative would 
impose substantial costs on government resources in terms of the 
monitoring and assessment activities needed to implement the DMAs.

Speed Restrictions in Designated Areas Only Alternative

    An alternative considered in this proposed rule is the use of speed 
restrictions in designated areas that are more extensive than those 
prescribed in the proposed rule. The designated areas considered under 
this alternative are both larger in size and would extend for a greater 
length of time, with the exception of those located in the southeastern 
part of the United States where speed restriction would be in place for 
a shorter length of time. This would require vessels to travel at 
slower speed for a greater period of time and throughout a greater 
range, which may cause greater adverse economic impacts to small 
entities when compared to the proposed alternative. However, this 
alternative does not attempt to route ships away from high-density 
areas of right whales through identified shipping lanes. Furthermore, 
right whales that are sighted outside of these areas are not protected 
under this alternative because DMAs are not included. Therefore, as a 
stand-alone measure, this alternative is less likely to aid the 
recovery of the right whale population when compared to the proposed 
alternative.

Use of Recommended Shipping Routes Alternative

    This alternative would simply designate recommended shipping lanes 
away from areas where right whales are known to congregate without any 
other measures. NMFS has not yet designated port access routes; 
therefore the economic impact of this alternative on small entities is 
indeterminate at this time. If, in the future, NMFS decides to 
implement this alternative, an IRFA will be conducted when all port 
access routes are known and analyzed. This alternative would not 
provide sufficient protection to effectively reduce the occurrence and 
severity of ship strikes because right whales still may occur in the 
designated lanes; therefore it is also less likely to aid in the 
recovery of right whale populations when compared with the proposed 
alternative.

``Combination of Alternatives'' Alternative

    This alternative combines the more restrictive designated areas, 
DMAs, and recommended shipping routes (the previous three alternatives 
considered in this IRFA). Impacts to small entities are expected to be 
greater under this alternative when compared to the proposed 
alternative, due to the use of designated areas that are generally 
greater in size and greater in length of time as compared to those 
prescribed in the proposed alternative. Therefore, NMFS has determined 
that this alternative will be less preferable to small businesses since 
it has more adverse economic impacts. This alternative would provide a 
higher level of protection to the right whale population since it would 
reduce the amount and/or severity of ship strikes

[[Page 36310]]

when compared with the proposed alternative.

List of Subjects in 50 CFR Part 224

    Endangered marine and anadromous species.

    Dated: June 21, 2006.
James W. Balsiger,
Acting Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
    For the reasons set out in the preamble, 50 CFR part 224 is 
proposed to be 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 Sec.  224.105 is added to read as follows:


Sec.  224.105  Speed restrictions to protect North Atlantic right 
whales.

    (a) The following restrictions apply to: all vessels subject to the 
jurisdiction of the United States greater than or equal to 65 ft (19.8 
m) in overall length, except those owned or operated by, or under 
contract to, Federal agencies; and all other vessels greater than or 
equal to 65 ft (19.8 m) in overall length entering or departing a port 
or place under the jurisdiction of the United States. These 
restrictions do not apply to foreign sovereign vessels engaging in 
joint exercises with the U.S. Department of the Navy.
    (1) Southeast U.S.: Vessels shall travel at a speed of 10 knots or 
less during the period of November 15 to April 15 each year in the area 
bounded by: the shoreline, 31[deg]27'N lat., 29[deg]45'N lat., and 
80[deg]51.6'W long.
    (2) Mid-Atlantic U.S.: Vessels shall travel 10 knots or less in the 
period November 1 to April 30 each year.
    (i) Within a 30-nautical mile (nm) (55.6 km) radius (as measured 
from COLR[deg]G delineated coast lines and the center point of the port 
entrance) (Fig. 2) at the
    (A) Ports of New York/New Jersey;
    (B) Delaware Bay (Ports of Philadelphia and Wilmington);
    (C) Entrance to the Chesapeake Bay (Ports of Hampton Roads and 
Baltimore);
    (D) Ports of Morehead City and Beaufort, NC;
    (E) Port of Wilmington, NC;
    (F) Port of Georgetown, SC;
    (G) Port of Charleston, SC; and
    (H) Port of Savannah, GA; and
    (ii) In Block Island Sound, in the area with a 30-nm (55.6 km) 
width extending south and east of the mouth of the Sound (reference 
points: Montauk Point and the western end of Martha's Vineyard) (Fig. 
2).
    (3) Northeast U.S.:
    (i) In Cape Cod Bay, MA: Vessels shall travel at a speed of 10 
knots or less during the period of January 1 to May 15 in Cape Cod Bay, 
in an area that includes all waters of Cape Cod Bay, extending to all 
shorelines of the Bay, with a northern boundary of 42[deg]12' N. lat. 
(Fig. 3).
    (ii) Off Race Point: Vessels shall travel at a speed of 10 knots or 
less 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):

------------------------------------------------------------------------
                         N. Lat.                             W. Long.
------------------------------------------------------------------------
                  42[deg]30'                                  70[deg]30'
                  42[deg]30'                                  69[deg]45'
                  41[deg]40'                                  69[deg]45'
                  41[deg]40'                                  69[deg]57'
                  42[deg]04.8'                                70[deg]10'
                  42[deg]12'                                  70[deg]15'
                  42[deg]12'                                  70[deg]30'
                  42[deg]30'                                  70[deg]30'
------------------------------------------------------------------------

    (iii) Great South Channel: Vessels shall travel at a speed of 10 
knots or less 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):

------------------------------------------------------------------------
                         N. Lat.                             W. Long.
------------------------------------------------------------------------
                  42[deg]30'                                 69[deg] 45'
                  42[deg]30'                                  67[deg]27'
                  42[deg]09'                                67[deg]08.4'
                  41[deg]00'                                  69[deg]05'
                  41[deg]40'                                  69[deg]45'
                  42[deg]30'                                  69[deg]45'
------------------------------------------------------------------------

    (4) Atlantic Ocean: At all times of the year and in all waters 
along the Atlantic seaboard, including the entire U.S. [deg]xclusive 
[deg]conomic Zone, that are not otherwise specified in the regulations 
above, a dynamic management area will be designated when NMFS 
determines that there exists
    (i) A concentration of three or more right whales, or
    (ii) One or more right whales within a Traffic Separation Scheme, 
designated shipping lane, or within a Mid-Atlantic 30 nm port entrance 
zone which show no evidence of continued coast-wise transiting. Upon 
such a determination, NMFS will establish an area, which will be 
adjusted for the number of right whales in the sighting such that a 
density of no more than 0.04 right whales per square nm is maintained 
within an inner circle. A larger circle will be designated to extend 15 
nm (27.8 km) from the perimeter of the circle around each core area. 
NMFS will require mariners in that area to travel at speeds of 10 knots 
or less. Notice of the specific location of the area will be published 
in the Federal Register. Restrictions within the area will be in effect 
for 15 days from the initial designation or lifted by subsequent 
publication in the Federal Register. At the conclusion of the 15-day 
period the area will expire automatically, unless extended.
    (b) It is unlawful under this section:
    (1) For any vessel subject to the jurisdiction of the United States 
to violate any speed restriction established in paragraph (a) of this 
section; or
    (2) For any vessel entering or departing a port or place under the 
jurisdiction of the United States to violate any speed restriction 
established in paragraph (a) of this section.



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