[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.

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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: http://www.nmfs.noaa.gov/pr/shipstrike/.

FOR FURTHER INFORMATION CONTACT: Gregory Silber, Office of Protected 
Resources, Silver Spring, MD (301) 427-8402.

SUPPLEMENTARY INFORMATION: 

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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