[Federal Register Volume 87, Number 146 (Monday, August 1, 2022)]
[Proposed Rules]
[Pages 46921-46936]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-16211]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 224
[Docket No. 220722-0162]
RIN 0648-BI88
Amendments to the North Atlantic Right Whale Vessel Strike
Reduction Rule
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
[[Page 46922]]
ACTION: Proposed rule.
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SUMMARY: NMFS is proposing changes to the North Atlantic right whale
(Eubalaena glacialis) vessel speed regulations to further reduce the
likelihood of mortalities and serious injuries to endangered right
whales from vessel collisions, which are a leading cause of the
species' decline and a primary factor in an ongoing Unusual Mortality
Event. The proposed rule would: (1) modify the spatial and temporal
boundaries of current speed restriction areas referred to as Seasonal
Management Areas (SMAs), (2) include most vessels greater than or equal
to 35 ft (10.7 m) and less than 65 ft (19.8 m) in length in the size
class subject to speed restriction, (3) create a Dynamic Speed Zone
framework to implement mandatory speed restrictions when whales are
known to be present outside active SMAs, and (4) update the speed
rule's safety deviation provision. Changes to the speed regulations are
proposed to reduce vessel strike risk based on a coast-wide collision
mortality risk assessment and updated information on right whale
distribution, vessel traffic patterns, and vessel strike mortality and
serious injury events. Changes to the existing vessel speed regulation
are essential to stabilize the ongoing right whale population decline
and prevent the species' extinction.
DATES: Submit comments on or before September 30, 2022.
ADDRESSES: You may submit comments on this document, identified by
NOAA-NMFS-2022-0022, by electronic submission. Submit all electronic
public comments via the Federal eRulemaking Portal. Go to https://www.regulations.gov and enter NOAA-NMFS-2022-0022 in the Search box.
Click the ``Comment'' icon, complete the required fields and enter or
attach your comments. You may submit comments on supporting materials
via the same electronic submission process, identified by NOAA-NMFS-
2022-0022.
Instructions: Comments sent by any other method, to any other
address or individual, or received after the end of the comment period,
may not be considered by NMFS. All comments received are a part of the
public record and will generally be posted for public viewing on
https://www.regulations.gov without change. All personal identifying
information (e.g., name, address, etc.), confidential business
information, or otherwise sensitive information submitted voluntarily
by the sender will be publicly accessible. NMFS will accept anonymous
comments (enter ``N/A'' in the required fields if you wish to remain
anonymous). The Draft Environmental Assessment, and the Draft
Regulatory Impact Review/Initial Regulatory Flexibility Analysis
prepared in support of this proposed rule, are available via the
internet at https://www.regulations.gov/ or obtained via email from the
persons listed below.
FOR FURTHER INFORMATION CONTACT: Caroline Good, [email protected],
301-427-8402.
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. Following two decades of growth
between 1990 and 2010, the species has been in decline over the past
decade (Pace et al. 2017; Pace 2021), with a recent preliminary
population estimate of fewer than 350 individuals remaining. North
Atlantic right whale abundance began to decline in 2010 due to a
combination of increased human-caused mortality and decreased
reproductive output (Pace et al. 2017). The decline coincided with
changes in whale habitat use patterns, characterized by the whales'
increasing use of areas with few protections from anthropogenic harm
(Davis et al. 2017; Meyer-Gutbrod and Greene 2018; Record et al. 2019).
The species' decline has been exacerbated by an ongoing Unusual
Mortality Event (UME) that NMFS declared in 2017, pursuant to section
404 of the Marine Mammal Protection Act (MMPA), and includes an
unprecedented 51 known mortalities and serious injuries to date,
impeding the species' recovery. NMFS interprets the regulatory
definition of serious injury as any injury that is ``more likely than
not'' to result in mortality, or any injury that presents a greater
than 50 percent chance of death to a marine mammal (NMFS 2014). Thus,
lethal strike events are those that have or are likely to result in a
mortality.
Entanglement in fishing gear and vessel strikes are the two primary
causes of right whale mortality and serious injury. Human-caused
mortality to adult females, in particular, is limiting recovery of the
species (Moore et al. 2005, 2021; Corkeron et al. 2018; Hayes et al.
2019; Sharp et al. 2019). Anthropogenic trauma was the sole source of
mortality for right whale adults and juveniles for which a cause of
death could be determined between 2003 and 2018 (Sharp et al. 2019).
North Atlantic right whale calving rates dropped from 2017 to 2020,
with zero births recorded during the 2017-2018 season. The 2020-2021
calving season had the first substantial calving increase in five
years, with 20 calves born, followed by 15 calves during the 2021-2022
calving season. However, mortalities continue to outpace births, and
best estimates indicate fewer than 100 reproductively active females
remain in the population.
NMFS has determined that the Potential Biological Removal (PBR) for
the species--defined by the MMPA as ``the maximum number of
individuals, not including natural mortalities, that may be removed
from a marine mammal stock while allowing that stock to reach or
maintain its optimum sustainable population''--is 0.7 whales (NMFS
2021). This means that for the species to recover, the population
cannot sustain, on average over the course of a year, the death or
serious injury of a single individual due to human causes. Observed
human caused mortality far exceeds this level and a recent assessment
of total right whale mortality estimates range-wide indicates that
observed deaths likely captured only about 36 percent of the actual
total deaths between 1990 and 2017 (Pace et al. 2021). Right whale
abundance will continue to decline, imperiling species recovery, unless
human caused mortality is substantially reduced in the near term.
North Atlantic right whales inhabit U.S. waters year-round but
predominate during late fall through early summer. Within U.S. waters,
the whales primarily forage in the greater Gulf of Maine region
(Pershing et al. 2009; Davies et al. 2014). The species' only known
winter calving area lies within the South Atlantic Bight between
northern Florida and North Carolina (Keller et al. 2012; Gowan and
Ortega-Ortiz 2014). The Mid-Atlantic region serves both as a migratory
habitat for whales moving between calving areas and northern foraging
grounds, as well as a foraging habitat. Right whales can be highly
mobile, traveling upwards of 40 nautical miles per day, or, when
engaged in certain behaviors (e.g., foraging), relatively stationary,
remaining within several miles for days (Baumgartner and Mate 2005;
Crowe et al. 2021). The whales' primary distribution includes seasonal
coastal habitats characterized by extensive commercial and recreational
vessel traffic.
North Atlantic right whales are vulnerable to vessel strike due to
their coastal distribution and frequent occurrence at near-surface
depths, and this is particularly true for females with calves. The
proportion of known vessel strike events involving females, calves,
[[Page 46923]]
and juveniles is higher than their representation in the population
(NMFS 2020). Mother/calf pairs are at high risk of vessel strike
because they frequently rest and nurse in nearshore habitats at or near
the water surface, particularly in the Southeast calving area (Cusano
et al. 2018; Dombroski et al. 2021). Calving females have the longest
residence time of any demographic group on the Southeast calving
ground, staying on average about three months in the region before
traveling with their nursing calves to northern foraging areas
(Krzystan et al. 2018). Right whales nurse their calves for up to a
year. This promotes rapid calf growth (Fortune et al. 2012) but also
places mother/calf pairs at increased risk of vessel interactions, not
only within the Southeast calving ground but also along the Mid-
Atlantic and New England coasts, which are important migratory and
foraging areas for right whales.
Numerous studies have indicated that slowing the speed of vessels
reduces the risk of lethal vessel collisions, particularly in areas
where right whales are abundant and vessel traffic is common and
otherwise traveling at high speeds (Vanderlaan and Taggart 2007; Conn
and Silber 2013; Van der Hoop et al. 2014; Martin et al. 2015; Crum et
al. 2019). In 2008, NMFS implemented 10-knot (5.1 meters/second (m/s))
vessel speed restrictions for a five-year period for most vessels
greater than or equal to 65 ft (19.8 m) in overall length within
designated areas commonly referred to as Seasonal Management Areas
(SMAs) along the U.S. East Coast to reduce the risk of mortality and
serious injury from vessel strike (73 FR 60173, October 10, 2008 (50
CFR 224.105)). NMFS later removed the five-year ``sunset'' provision
from the speed rule (78 FR 73726, December 9, 2013; 79 FR 34245, June
16, 2014), and the rule continues in effect today.
Reducing vessel speed is one of the most effective, feasible
options available to reduce the likelihood of lethal outcomes from
vessel collisions with right whales. Previous investigations indicate
that NMFS' speed regulations at 50 CFR 224.105 for most vessels greater
than or equal to 65 ft (19.8 m) in length reduced the risk of lethal
vessel strikes to right whales (Conn and Silber 2013; Laist et al.
2014). In 2021, NMFS released the North Atlantic Right Whale Vessel
Speed Rule Assessment (hereafter ``speed rule assessment'') documenting
a reduction in observed right whale serious injuries and mortalities
resulting from vessel strikes since implementation of the speed rule in
2008 (50 CFR 224.105), but highlighting the need for additional action
to more effectively address the risk of vessel strikes to right whales
(NMFS 2020).
NMFS is addressing risk from fishing gear entanglement through
separate regulatory actions from this proposed rule as informed by the
Atlantic Large Whale Take Reduction Team (ALWTRT) and continues to work
on additional measures to further reduce lethal entanglements. The MMPA
directs NMFS to reduce incidental entanglements in commercial fisheries
that cause mortalities and serious injuries of marine mammal stocks
above a biological reference point (i.e. PBR) through a consensus-based
Take Reduction Process. The ALWTRT is a large stakeholder group NMFS
has convened numerous times since 1996 to develop recommendations to
reduce mortality and serious injury of right whales and other large
whales covered under the Atlantic Large Whale Take Reduction Plan. The
ALWTRT continues to meet regularly to develop recommendations to
further modify the Plan and reduce right whale entanglements in
commercial fisheries.
Summary of Current North Atlantic Right Whale Vessel Strike Reduction
Measures
NMFS has implemented a combination of regulatory requirements and
voluntary programs aimed at modifying mariner behavior and/or
increasing mariner awareness of right whale presence to reduce vessel
collision risk. Together, these efforts address two aspects of reducing
strike risk: (1) reducing the spatial overlap of right whales and
vessels, and (2) reducing the speed of vessels in areas and at times
when right whales are likely to be present. Below is a summary of
vessel strike reduction actions implemented by NMFS and other Federal
partners to date.
Statutory Protections
(1) ``Take'' Prohibitions. Both the Endangered Species Act (ESA)
and the MMPA generally prohibit the unauthorized ``take'' of North
Atlantic right whales. Under the ESA, ``take means to harass, harm,
pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to
attempt to engage in any such conduct.'' (16 U.S.C. 1532(19)). Under
the MMPA, ``take means to harass, hunt, capture, or kill, or attempt to
harass, hunt, capture, or kill.'' (16 U.S.C. 1362(13)).
(2) ESA Section 7 Consultations. As required by Section 7(a)(2) of
the ESA, as amended (ESA; 16 U.S.C. 1531 et seq.), all U.S. Federal
agencies must consult with NMFS to ensure that any actions they
authorize, fund, or carry out that may affect ESA-listed species under
NMFS jurisdiction are not likely to jeopardize the continued existence
of those species or adversely modify or destroy their designated
critical habitat. When Federal agencies authorize vessel activities
potentially co-occurring with right whales and engage in consultations
with NMFS, they often implement measures governing vessel speed
designed to reduce the risk of right whale interactions.
Regulatory Measures
(1) North Atlantic Right Whale Vessel Speed Rule. In 2008, NMFS
implemented a rule requiring most vessels equal to or greater than 65
ft (19.8 m) in length to transit at speeds of 10 knots (5.1 m/s) or
less in designated SMAs (73 FR 60173, October 10, 2008) pursuant to its
authority under the MMPA and ESA. Some vessels are exempt from this
requirement including military vessels, vessels owned, operated or
contracted by the Federal government, and vessels engaged in
enforcement or search and rescue activities (50 CFR 224.105(a)).
Although these vessels are exempt from the speed rule, they are not
exempt from consultation under section 7 of the ESA. During
consultations, mitigation measures, including reduced speeds, may be
recommended or specified to reduce the threat of vessels collisions
with right whales. Regulatory requirements, such as those proposed here
that contain a maximum vessel speed but no minimum, are separate from
any requirements specified as part of ESA section 7 consultations and
are not expected to result in the need to reinitiate existing
consultations (50 CFR 402.16). In addition, subject to specific
requirements, vessels may deviate from the speed restriction (i.e.,
exceed the speed limit), under limited circumstances, to maintain safe
maneuvering speeds (50 CFR 224.105(c)). Vessels employing this safety
deviation must make a notation in the vessel logbook detailing the
event. Ten SMAs were designated along the U.S. East Coast with
seasonally active periods reflective of temporal trends in right whale
habitat use. The locations of the SMAs were informed by vessel traffic
(i.e., port entrances were assumed high traffic areas relative to other
areas) and right whale distribution data at the time the rule was
established. NMFS selected the 10-knot (5.1 m/s) speed limit based on
analyses of large whale vessel strike events where the vessel speed at
the time of impact was known. Researchers found the probability of
whale mortality increased substantially
[[Page 46924]]
with vessel speed, with the greatest increase occurring between speed
of 10 to 14 knots (5.1 to 7.2 m/s; Vanderlaan and Taggert 2007). Based
on these findings, NMFS determined that the use of speed restrictions
was an effective means to reduce the likelihood and severity of vessel
collisions.
(2) 500 Yard (457.2 m) Minimum Approach Distance. In 1997, NMFS
implemented a minimum approach distance for vessels in the vicinity of
North Atlantic right whales in an effort to reduce harassment and risk
of injury (62 FR 6729, February 13, 1997). It is illegal for a vessel
to approach within 500 yards (457.2 m) of a right whale, and if a
vessel finds itself within 500 yards (457.2 m) it ``must steer a course
away from the right whale and immediately leave the area at a slow safe
speed'' (50 CFR 224.103(c)(1-2)). Exceptions are made if ``compliance
would create an imminent or serious threat to a . . . vessel'' (50 CFR
224.103(c)(3)).
Non-Regulatory Measures
(1) Great South Channel Area To Be Avoided (ATBA). An ATBA is an
International Maritime Organization (IMO)-established vessel routing
measure within a specified area to avoid navigational hazards or
environmentally sensitive areas. In June 2009, an ATBA was established
in the Great South Channel to the east of Cape Cod, MA after gaining
approval from the IMO. All vessels greater than or equal to 300 gross
tons are recommended to avoid this area between April 1 and July 31.
(2) Recommended Routes. In 2006, a joint U.S. Coast Guard/NOAA
effort established recommended routes for vessels transiting across
Cape Cod Bay and into/out of ports in Florida and Georgia. The routes
are recommended between January and May in Cape Cod Bay and between
November and April off Florida and Georgia. Mariners are recommended to
follow the routes to minimize their transit distance through important
right whale habitat areas.
(3) Modification to the Boston Traffic Separation Scheme (TSS). In
2007, following a successful application to the IMO led by the
Stellwagen Bank National Marine Sanctuary and NMFS, a modified TSS
(commonly referred to as a shipping lane) was implemented to the north
of Cape Cod, MA for vessel traffic navigating to and from the Port of
Boston. The modification narrowed the TSS and shifted its route to the
north around Cape Cod to reduce the overlap with large whale foraging
grounds.
(4) Dynamic Management Areas (DMAs) and Right Whale Slow Zones.
NMFS implemented a voluntary DMA program concurrently with the
mandatory speed rule in 2008. A DMA is triggered when a group of three
or more right whales are sighted in close proximity. Beginning in 2020,
the NMFS Greater Atlantic Region modified the DMA program to include
acoustically triggered Slow Zones. Once the trigger is met, NMFS
establishes a boundary around the whales for 15 days and encourages
vessels either to avoid the area or transit through at speeds less than
10 knots (5.1 m/s). DMAs/Slow Zones may be extended if whales remain in
the area. The agency alerts mariners to DMA and Slow Zone declarations
through website postings, emails to lists of interested parties, U.S.
Coast Guard Local Notices to Mariners, and U.S. Coast Guard Broadcast
Notices to Mariners.
Need for Additional Action
In January 2021, NMFS released an assessment evaluating the
effectiveness of the North Atlantic right whale speed rule and
associated voluntary DMA program (NMFS 2020) and invited the public to
submit comments. The review found that the speed rule had made progress
in reducing vessel strike risk to right whales but that additional
action is warranted to further reduce the threat of vessel collisions.
While it is not possible to establish a direct causal link between
speed reduction efforts and the relative decline in observed right
whale mortality and serious injury events following implementation of
the speed rule, the preponderance of evidence suggests speed
reductions, as implemented, have helped. NMFS' data on documented
vessel strike events continues to affirm the role of high vessel speeds
(> 10 knots (5.1 m/s)) in lethal collision events and supports existing
studies implicating speed as a factor in lethal strikes events. NMFS
has documented five right whale vessel strike cases in U.S. waters that
resulted in non-serious injuries for which vessel speed is known. Only
one of the five vessels involved was transiting in excess of 10 knots
(5.1 m/s) at the time of the collision. In contrast, of the nine
documented lethal right whale vessel collisions in U.S. waters since
1990 for which vessel speed is known, eight involved vessels transiting
in excess of 10 knots (5.1 m/s).
Since the speed rule first went into effect, NMFS has documented 12
right whale mortality and serious injury events involving vessel
collisions in U.S. waters, along with an additional five mortality and
serious injury events involving unknown whale species, possibly right
whales. These figures likely underestimate the total number of lethal
right whale vessel strikes in U.S. waters. Strikes occurring farther
offshore and/or involving large ocean-going vessels are likely
underreported in the data because most large ships are not able to
detect interactions with large whales, and whales that die well
offshore are less likely to be detected overall. Based on estimates of
total right whale deaths, documented mortalities from all sources
represent approximately one-third of actual annual right whale
mortality range-wide (Pace et al. 2021). Thus, in addition to the
observed events, NMFS recognizes that additional lethal vessel strike
events likely went undetected in U.S. waters.
A detailed examination of documented right whale vessel strike
events in the U.S. further reveals the following:
(1) Vessels less than 65 ft (19.8 m) in length accounted for five
of the 12 documented lethal strike events in U.S. waters since 2008,
demonstrating the significant risk this unregulated vessel size class
can present to right whales.
(2) Vessel strikes continue to occur all along the U.S. coast from
the Gulf of Maine to the Florida coast. There is no indication that
strike events only occur in ``hot spots'' or limited spatial/seasonal
areas.
(3) Strikes occur both inside and outside active SMAs, but in many
cases, the location of the strike event remains unknown. Four of the
five collision events involving vessels less than 65 ft (19.8 m) in
length occurred inside active SMAs, although the vessels involved were
not subject to mandatory speed restrictions due to their size.
(4) Of the six lethal vessel strike cases documented in U.S. waters
and involving right whales since 1999 where vessel speed is known, only
one involved a vessel transiting at under 10 knots (5.1 m/s) (~9 knots
(4.6 m/s)), although in most cases, we lack vessel speed data
associated with collision events.
(5) Females, calves, and juveniles are disproportionately
represented in the vessel strike data. This is concerning given the
paucity of reproductively active females remaining in the population
and their critical role in stabilizing the population decline.
(6) Non-lethal vessel collisions with right whales continue to
occur. NMFS' best estimates indicate that vessel strikes (in U.S.
waters or first seen in U.S. waters) have resulted in at least 26 non-
serious right whale injuries since 2008, although these data do not
account for the possibility of blunt force trauma injuries, which are
not usually visibly detectable and make accurate
[[Page 46925]]
assessments of strike injuries challenging.
Despite NMFS' best efforts, the current speed rule and other vessel
strike mitigation efforts are insufficient to reduce the level of
lethal right whale vessel strikes to sustainable levels in U.S. waters.
NMFS has determined that additional action is needed to address gaps in
current management programs and better tailor mitigation efforts. In
evaluating potential changes to the current speed rule NMFS considered
up-to-date strike risk modeling, data on right whale strike events,
species distribution, and vessel traffic characteristics in right whale
habitat, and the extensive and informative comments received in
response to the 2020 speed rule assessment.
Summary of Proposed Changes
NMFS proposes changes to the existing North Atlantic right whale
vessel speed regulations. The proposed measures detailed below seek to
reduce the risk of mortality and serious injury from vessel strike
events in U.S. waters and include the following:
(1) Changes to the spatial boundaries and timing of mandatory SMAs
to better address areas and times where vessel strike risk is high;
(2) Inclusion of most vessels greater than or equal to 35 ft (10.7
m) and less than 65 ft (19.8 m) in length in the vessel size class
subject to the speed restriction;
(3) Implementation of a Dynamic Speed Zone (DSZ) framework to
implement mandatory speed restrictions when whales are known to be
present outside active SMAs; and
(4) Updates to the speed rule's safety deviation provision.
Modification of Seasonal Speed Zones (Currently Referred to as Seasonal
Management Areas)
Since implementation of the speed rule in 2008, the distribution of
right whales has shifted, resulting in a misalignment between areas of
high vessel strike risk and current SMA spatial and temporal bounds.
Improved data on vessel traffic and right whale distribution/habitat
use further highlight this discrepancy and the need to adjust SMA
boundaries to better address the risk of collisions. For example, after
2010, right whales began to frequent the region south of Martha's
Vineyard and Nantucket, MA, and are now regularly observed in large
aggregations foraging in the area (Leiter et al. 2017). Prior to this
period, that region, while part of right whale habitat, was not
identified as an important foraging area. In 2021 alone, 67 voluntary
DMAs and Slow Zones were declared (28 of which were off Martha's
Vineyard and Nantucket), demonstrating the ongoing spatial and temporal
mismatch between whale aggregations and vessel strike protections.
The goal for vessel speed regulation remains unchanged--to reduce
the likelihood of right whale serious injuries and mortalities from
vessel collisions. To maximize the reduction of vessel strike risk,
NMFS developed proposed modifications to the SMAs using a coast-wide
vessel strike mortality risk model, North Atlantic right whale visual
sighting (NARWC 2021) and acoustic detection (NEFSC 2022) data, recent
vessel traffic Automatic Identification System (AIS) data, and
information on other relevant planned ocean activities, including
offshore wind development.
Additional factors were considered when developing proposed SMA
spatial boundaries and timing to optimize effective right whale
protection, including minimizing impacts on the regulated community:
(1) NMFS sought to provide robust protection for right whales over
a 10 to 15 year time horizon, and design built-in adaptivity to climate
change and other factors to ensure that the speed rule remains
resilient to shifts in right whale distribution and habitat use over
time. This timeframe also provides a stable and predictable long-term
regulatory structure for the maritime community.
(2) NMFS aimed to identify the smallest spatial and temporal
footprint possible for speed restricted areas to minimize the extent of
regulatory action while achieving necessary conservation goals. This
assumes a framework will be in place to implement mandatory speed
restrictions dynamically to address right whales outside the proposed
SMAs (see Mandatory Dynamic Speed Zones).
(3) Changes to speed regulation areas/boundaries focused on
reducing vessel traffic operating at speeds in excess of 10 knots (5.1
m/s), since high transit speed is implicated in strike events, and we
have the ability to modify this aspect of vessel operation in right
whale habitats.
Description of the Vessel Strike Mortality Risk Model
NMFS evaluated the risk of right whales being struck and killed by
vessels in U.S. waters along the East Coast using an encounter risk
model (Garrison et al. 2022). This model simulates the likelihood of a
fatal vessel strike based on six sources of information: (1) the
spatial distribution and density of right whales; (2) the spatial
distribution and amount of vessel traffic; (3) the likelihood that a
whale and a particular vessel will be in close proximity; (4) the
likelihood that a whale will be near the surface during the
interaction; (5) the likelihood that a whale will successfully move to
avoid the interaction; and (6) the likelihood of mortality if a
collision occurs. A similar approach was previously applied to large
whales on the U.S. West Coast (Rockwood et al. 2017, 2020) and right
whales occurring off the coast of Florida (Crum et al. 2019).
NMFS modeled the spatial distribution of right whales using a
compilation of aerial survey data collected by the agency and many
different external research groups. The model and approaches are
similar to those described in Roberts et al. (2016) and Gowan and
Ortega-Ortiz (2014) and reflect the distribution of right whales since
2010 (Roberts et al. 2021). Environmental variables were used to
predict the monthly changes in right whale distribution between Florida
and the Nova Scotian shelf.
NMFS characterized vessel traffic using data collected via
satellite and terrestrial based AIS that transmits information on
vessel movements, speed, and characteristics for those vessels that
carry AIS units. For each spatial cell in the right whale distribution
model, NMFS summarized the length of transit, time of transit, and
average speed of each vessel from the available AIS data. These data
were summarized monthly for 2017-2019. Generally, most vessels greater
than or equal to 65 ft (19.8 m) in length are required to carry AIS
transceivers. While many vessels less than 65 ft (19.8 m) in length
also carry AIS, they are likely to be under-represented in these data,
and therefore, the risk of interactions with right whales is under-
represented in the model.
NMFS modeled the likelihood of a whale-vessel encounter using the
approach described in Martin et al. (2015), where the probability of
close encounter between a whale and a vessel within a given spatial
cell is a function of vessel size, whale swimming speed, and vessel
speed. Given a close encounter, the probability that a whale will be
near the surface (in the upper 10 m (32.8 ft) of the water column)
where it would be susceptible to a vessel strike was estimated based on
available data on dive-surface behavior from animal-borne tags from
different regions where whales occur (Baumgartner and Mate 2003;
McGregor and Elizabeth 2010; Parks et al. 2011; Baumgartner et al.
2017; Dombroski et al. 2021).
[[Page 46926]]
It remains unclear how right whales respond to close approaches by
vessels (<1509 ft (460 m)) and the extent to which this allows them to
avoid being struck. Rockwood et al. (2017) and Crum et al. (2019)
examined different ways of accounting for avoidance behaviors within
encounter risk models. Conn and Silber (2013) indicated that encounter
rates were higher with fast-moving vessels than expected, which may be
consistent with successful avoidance of slower vessels by whales. NMFS'
model included a potential avoidance behavior accounting for random
effects of the distance at which a whale reacts, the speed the whale
swims to escape, and the direction the whale chooses to swim. This
approach accounts for the increased likelihood that a whale will escape
a slower moving vessel and includes the large amount of uncertainty in
whale behavioral response to approaching vessels.
In this framework, if a collision between a whale and a vessel
occurs, the likelihood that the collision will be fatal is a function
of vessel speed. NMFS applied the model of Conn and Silber (2013) to
evaluate this probability. It should be noted that the data in this
model are primarily from larger vessels, so it may be less appropriate
for some of the small vessels included in the current analysis.
Application of the Vessel Strike Mortality Risk Model
We used the mortality risk model (Garrison et al. 2022) to evaluate
areas and times with the highest risk of vessel strike mortalities for
right whales. Areas of highest risk are primarily associated with
places where there is both a high density of vessel traffic and high
density of right whales. In U.S. waters, these areas correspond
generally to the Atlantic East Coast region, particularly between late
fall and early spring (November through April). The highest risk areas
occurred in the Mid-Atlantic between Cape Hatteras, North Carolina, and
New York, and in relatively shallow waters over the continental shelf.
High-density vessel traffic areas in approaches to major commercial
ports pose the greatest risk of vessel strike mortalities. While
vessels less than 65 ft (19.8 m) in length are under-represented in the
AIS data, the spatial distribution of the risk of interactions with
these vessels were also examined. In general, the risk of interactions
with vessels less than 65 ft (19.8 m) in length was higher close to
shore. NMFS examined the monthly spatial distribution of vessel strike
risk to identify regions and times where slowing vessel traffic to
speeds less than 10 knots (5.1 m/s) would have the greatest impact on
reducing the overall risk of vessel strike mortalities for right
whales.
Once these spatio-temporal areas were identified, NMFS compared
them with additional opportunistic and survey-based right whale
sightings information, including demographics, acoustic detections of
right whale presence, and additional information, where available, on
possible future activities that might impact vessel traffic, including
proposed and leased wind energy sites and U.S. Coast Guard proposed
vessel safety fairways (85 FR 37034, June 19, 2020). It is important to
note that the risk model is not informed by right whale sightings prior
to 2010, opportunistic sightings, or acoustic detections. Additionally,
as discussed above, vessel traffic from boats less than 65 ft (19.8 m)
in length are under-represented in the model. Comparing these
additional data with areas identified by the risk model informed
optimal revised SMA boundaries based on the totality of information
available.
NMFS then used the risk model to simulate the maximum overall
reduction in risk of lethal right whale strikes that could be achieved
with the revised SMA boundaries. The revised boundaries were identified
based on evaluation of those areas and times with the greatest chance
of reducing lethal strikes to right whales. For the simulation, we
artificially set the speed of transits within the revised SMA time-
space boundary that had an average speed greater than 10 knots (5.1 m/
s) to the 10-knot (5.1 m/s) speed that would be required. We then re-
calculated the total risk of vessel strike mortality for this simulated
dataset and compared to the status quo, thereby providing an estimate
of the lethal strike risk reduction, in time and space, should the SMA
boundaries be revised to be the expanded SSZs.
Based on this analysis of the proposed SMA boundaries and the
additional risk reduction expected to accrue from the use of mandatory
DSZs (see Mandatory Dynamic Speed Zones), NMFS anticipates the proposed
revisions would address over 90% percent of the risk reduction that can
be achieved by reducing vessel speeds to 10 knots (5.1 m/s), relative
to the status quo. While the risk model underestimates the strike risk
associated with traffic from vessels greater than 35 ft (10.7 m) to
less than 65 ft (19.8 m) in length, given the expected coastal
distribution of this traffic based on available data, we anticipate
this component of strike risk will be sufficiently accounted for by the
revised SMA boundaries/timing.
Proposed Boundaries and Effective Periods for Seasonal Speed Zones
NMFS proposes changes to the current boundaries and effective
periods of the areas seasonally subject to the 10-knot (5.1 m/s) speed
restriction along the U.S. East Coast to better address the ongoing
risk of right whale mortality and serious injury from vessel collisions
(Figure 1). To more accurately describe them, we will refer to the
areas as Seasonal Speed Zones (SSZs) (rather than Seasonal Management
Areas or SMAs). The new SSZs include substantial spatial and temporal
changes in the Northeast and Mid-Atlantic regions, and more modest
changes in the Southeast region. The proposed SSZs with effective dates
each year are summarized as follows with geographic coordinates
provided in the proposed regulatory text:
(1) Atlantic Zone (November 1-May 30)
(2) Great South Channel Zone (April 1-June 30)
(3) North Carolina Zone (November 1-April 30)
(4) South Carolina Zone (November 1-April 15)
(5) Southeast Zone (November 15-April 15)
NMFS proposes no active SSZs between July and October, and only the
Great South Channel Zone would be active during the month of June. This
is consistent with data showing fewer right whales present in U.S.
waters during this time period. Proposed SSZs were developed with the
understanding that DSZs would be used to implement mandatory speed
restrictions when appropriate outside of active SSZs. NMFS anticipates
that the combination of SSZs and DSZs will provide the spatial and
temporal coverage necessary to significantly reduce the risk of lethal
strike events attributable to vessel traffic transiting in excess of 10
knots (5.1 m/s).
BILLING CODE 3510-22-P
[[Page 46927]]
[GRAPHIC] [TIFF OMITTED] TP01AU22.021
BILLING CODE 3510-22-C
Regulation of Most Vessels Greater Than or Equal to 35 ft (10.7 m) in
Length
The existing North Atlantic right whale vessel speed rule (50 CFR
224.105) does not address the threat of mortalities and serious
injuries from strike events involving vessels less than 65 ft (19.8 m)
in length. Recent vessel strike events have highlighted the lethality
of collisions involving vessel
[[Page 46928]]
sizes not subject to the existing speed rule. Since 2020 alone, four
right whale vessel strikes in U.S. waters resulted in mortalities and
serious injuries: (1) a calf was seriously injured off Florida/Georgia
in January 2020; (2) a calf was killed off New Jersey in June 2020; (3)
a calf was killed off Florida in February 2021; and (4) its mother was
seriously injured by the same vessel. For three of the four events, the
vessels involved in the collisions were known to be between 35 (10.7 m)
and 65 ft (19.8 m) in length and traveling in excess of 20 knots (10.3
m/s) at the time.
Since 2005, operators of vessels less than 65 ft (19.8 m) in length
have reported eight right whale vessel strikes in U.S. waters. Six
resulted in right whale serious injuries or mortalities. The reporting
vessels ranged in length from 17-54 ft (5.2-16.5 m), with vessels
involved in mortality and serious injury events ranging in size from
42-54 ft (12.8-16.5 m) in overall length. The vessel speeds at the time
of the strike events ranged from less than 5 knots (2.6 m/s) to
approximately 28 knots (14.4 m/s) (Henry et al. 2011, 2021; Wiley et
al. 2016). Of the eight strike events involving vessels less than 65 ft
(19.8 m) since 2005, five (including the recent strikes involving a
mother/calf pair) occurred within active SMAs where most vessels 65 ft
(19.8 m) and over are required to travel at 10 knots (5.1 m/s) or less.
In seven of the eight events involving vessels less than 65 ft
(19.8 m) in length, mariners reported no sighting of the whales prior
to impact with the vessel. Vessel strikes can occur even when
circumstances are seemingly optimal for avoidance as illustrated by two
right whale vessel strikes involving research vessels less than 65 ft
(19.8 m) in length with trained observers aboard that occurred in Cape
Cod Bay during daylight hours (Wiley et al. 2016). These events
demonstrate that mariner experience and vigilance alone can be
insufficient to protect against vessel collisions.
Furthermore, since 2009, operators of vessels less than 65 ft (19.8
m) in length have reported an additional six vessel collisions
(including five serious injuries) with undetermined large whale species
in U.S. waters that may have involved right whales based on the
location and timing of the events (Henry et al. 2017). Documented
vessel strike deaths of Southern right whales (Eubalaena australis) off
Australia and South Africa involving a 34-ft (10.4-m) vessel and 44-ft
(13.4-m) vessel respectively, further demonstrate the lethal risk
vessels less than 65 ft (19.8 m) in length can pose to right whale
species more broadly (Peel et al. 2016; Vermeulen et al. 2021).
Other jurisdictions have instituted speed restrictions for vessels
less than 65 ft (19.8 m) in length to mitigate vessel strike risk for
North Atlantic right whales. Following a series of right whale vessel
strike events, Canada expanded the length of vessels covered by dynamic
mandatory 10-knot (5.1 m/s) speed restrictions in the Gulf of St.
Lawrence in 2019 to include vessels 13 m (42.7 ft) or greater in
length. Also in 2019, the state of Massachusetts introduced regulations
restricting the speed of most vessels less than 65 ft (19.8 m) in
length to 10 knots (5.1 m/s) or less when transiting through waters
within, and to the north of, Cape Cod Bay during the months of March
and April each year to provide protection for foraging right whales
following vessel strike events in the Bay (322 CMR 12.05).
Massachusetts has received no reports of strikes involving vessels less
than 65 ft (19.8 m) in length, nor reports of safety concerns from
mariners in this area since implementation of the regulation. The State
has extended these vessel speed restrictions into the month of May
during years when right whales remained in the Bay.
Collisions with vessels less than 65 ft (19.8 m) in length pose a
danger to both the whale and vessel occupants. There are numerous cases
from around the world of vessels sustaining significant damage, and
even sinking, following collisions with whales (Ritter 2012; Peel et
al. 2018). For example, two vessel-whale collisions that occurred in
March 2009 and February 2021 resulted in vessel damage significant
enough to require passenger rescue by the U.S. Coast Guard. Sailing
vessels can be at particular risk of substantial damage due to their
deliberately light construction (Ritter 2012) even though most transit
at speeds at or under 10 knots (5.1 m/s). Moreover, collisions with
vessels less than 65 ft (19.8 m) in length with whales have resulted in
injuries to vessel occupants (NMFS unpublished data).
For the reasons detailed above, NMFS proposes to expand the size
class of vessels currently subject to speed restrictions to include
most vessels greater than or equal to 35 ft (10.7 m) to less than 65 ft
(19.8 m) in overall length. Most vessels within this size class are not
subject to U.S. Coast Guard AIS carriage requirements, but based on
limited available AIS data and U.S. Coast Guard vessel registration
data (USCG 2021), this change may affect up to 8,500-10,000 vessels
(albeit to varying degrees). Best estimates indicate that approximately
80 percent of these vessels are larger recreational boats, with
commercial fishing (7 percent) and passenger vessels (6 percent) the
next most common types. The remaining vessel types include work boats,
pilot boats, tug and tow vessels, and other commercial vessels. The
total number of affected vessels is likely substantially overestimated,
particularly for recreational boats, since available data lack detail
about where, when, and how frequently a boat operates within areas
subject to speed regulation.
Mandatory Dynamic Speed Zones
Though NMFS' 2006 proposed speed rule included the concept of
mandatory DMA speed restrictions that fall outside active SMAs (71 FR
36299, June 26, 2006), the 2008 final speed rule did not. Instead, the
agency announced it would implement a voluntary DMA program creating
short-term ``dynamic'' areas within which NMFS sought voluntary
compliance with restricted speeds based on sightings of right whale
aggregations. In 2020, NMFS modified the DMA program to include
acoustically triggered Right Whale Slow Zones in the NMFS Greater
Atlantic Region (Maine to Virginia), given the increasing availability
of near-real time acoustic detectors able to accurately identify right
whale presence. If followed, dynamic speed reduction areas provide
vessel strike risk reduction to aggregations of right whales or areas
with persistent right whale presence outside active SMAs in near-real
time. The program was intended to provide protection for right whales
in areas/times not covered by SMAs. As discussed above, shifts in right
whale distribution and habitat use since the current SMAs were
established in 2008 have resulted in a substantial number of DMA and
Slow Zone declarations.
NMFS 2008 speed rule stated the agency would ``monitor voluntary
compliance'' and if cooperation was not satisfactory would ``consider
making them mandatory, through a subsequent rulemaking'' (73 FR 60173,
October 10, 2008). Despite NMFS' best efforts to reach out to vessel
operators about dynamic speed reduction areas and educate the maritime
community about the need for right whale vessel strike mitigation,
NMFS' speed rule assessment determined that vessel cooperation levels
are low, and therefore, the reduction in risk provided by the voluntary
DMAs is minimal (NMFS 2020).
As discussed above, the proposed SSZs boundaries/timing are
designed to address most vessel strike risk attributable to vessels
transiting in excess of 10 knots (5.1 m/s). Based on
[[Page 46929]]
an evaluation of recent voluntary DMAs and acoustically triggered Slow
Zones, 54 of the 67 DMAs/Slow Zones triggered during 2021 (80.6
percent) would fall within the proposed SSZs. In other words, only 13
(19.4 percent) of 2021 DMAs/Slow Zones would have been triggered if the
proposed SSZ boundaries were in effect. This indicates that the
existing misalignment between the current SMA boundaries and elevated
risk areas is substantially, but not wholly, captured by the proposed
SSZs. Thus, even after adjusting the geographic boundaries and timing
of the static SSZs to more accurately reflect the best available data
on right whales and vessel strike risk, there is still a role for
dynamic speed restrictions to protect other areas where right whales
occur less predictably.
In examining the totality of information available to inform
changes to the location and timing of SSZ boundaries, it became clear
that for some areas and seasons, static speed management may not be
sufficient as a sole strategy to reduce vessel strike risk. This is
primarily the case in areas where right whale presence is less
predictable or more ephemeral and/or where elevated strike risk is more
moderate.
Static speed restrictions best serve areas with reliable right
whale presence and elevated strike risk. For example, right whales
reliably occur within the South Atlantic Bight calving ground each and
every season (November through April). The total number of individuals
present will vary from year to year (Krzystan et al. 2018), but this
calving, and likely mating, habitat is an essential area for right
whale reproduction and is designated (81 FR 4837, January 27, 2016) as
critical habitat under the ESA. The consistency of right whale presence
(especially vulnerable mothers/calf pairs) combined with high levels of
vessel traffic along the Southeast coast are the primary reasons vessel
strike risk in this region is best managed via a static SSZ.
In other times/areas, however, right whale presence may be less
predictable and/or elevated vessel strike risk more moderate. For
example, during late fall and winter, right whales have been documented
over many years in the central Gulf of Maine, frequently engaged in
foraging. Right whales have been visually or acoustically detected in
this area during most, but not every fall/winter season, and vessel
strike risk is lower in this area, relative to other parts of the U.S.
East Coast, due to lower levels of vessel traffic transiting at high
speeds. Vessel strike risk modeling indicates a benefit to right whales
from vessel speed restriction in this area but to a lesser degree than
other places/times. With adequate seasonal monitoring for right whale
presence, a dynamic area speed restriction is ideally positioned to
provide vessel strike protection in this area when and where it will be
most beneficial to right whale conservation.
To address elevated vessel strike risk in areas outside SSZs, NMFS
is proposing to implement a mandatory DSZ framework to replace the
current voluntary DMA/Slow Zone program. Under this proposed framework
protocol, as described below, a mandatory DSZ would be created for an
area outside an active SSZ, within U.S. waters from Maine to Florida,
based on (1) a confirmed visual sighting of a right whale aggregation
(three or more whales in close proximity) or a confirmed right whale
acoustic detection (since it is not possible to quantify the number of
individual whales present) and (2) NMFS determination that the area to
be designated as a DSZ has a greater than 50 percent likelihood of
right whale presence during a minimum effective period of 10 days
(periods shorter than this may present practical challenges for
implementation).
Existing protocols for the current voluntary DMA/Slow Zone program
are proposed as a minimum trigger threshold to inform a new DSZ. Under
these protocols, NMFS establishes voluntary 15-day DMAs when three or
more right whales are sighted within close proximity. Depending on the
size and geographic spread of the right whale aggregation, the spatial
extent of the DMA is determined based on a local density method as
outlined in Clapham and Pace (2001), with most zones approximately 400
square nautical miles (sq nm; 1,372 sq kilometers (sq km)). NMFS
declares voluntary Slow Zones in the NMFS Greater Atlantic Region when
a right whale acoustic detection is confirmed. Acoustically triggered
Slow Zones extend approximately 20 nm from the detection source and
remain effective for 15 days. DMAs/Slow Zones may be extended if
additional sightings or acoustic detections meeting the thresholds
above are detected within the latter half of the 15 day effective
period. Once the initial detection trigger has been met, NMFS would
then determine whether the potential DSZ has a greater than 50 percent
likelihood that right whales would continue to be present within the
zone (not to exceed 2,500 sq nm (8,575 sq km) commensurate with the
size of the aggregation for visual detections or 400 sq nm (1,372 sq
km) for acoustic detections). As with the current voluntary DMA/Slow
Zone program, DSZs may be extended if additional sightings or acoustic
detections meeting the minimum thresholds occur within the effective
period.
Drawing upon the agency's long-time expertise implementing
voluntary dynamic areas over the last 13 years, NMFS' process for
determining and implementing DSZs would follow an objective, rigorous
and replicable protocol, informed by inputs such as the number of right
whales detected, the dispersion of the aggregation, and whale behavior
(if known). Furthermore, NMFS would provide details of the DSZ
determination when providing public notice of a DSZ designation.
Ensuring that DSZs meet a minimum trigger threshold and a greater than
50 percent likelihood of continued right whale presence standard would
provide confidence that these zones will effectively achieve the goal
of providing targeted protection to right whales (in areas not
protected by static zones) from elevated vessel strike risk while
avoiding unnecessary regulation of vessel speed.
The boundaries and timing of temporary DSZs for right whales are by
their very nature uncertain until the conditions that trigger one are
present. Once those conditions are determined to be in place, however,
the need for those DSZs to be effective to protect right whales is
immediate. Implementing DSZs through publication of Federal Register
notices does not allow for timely implementation of a DSZ and could
result in unnecessary avoidable risk of both vessel strikes of right
whales and potentially mariner safety. The time normally required to
file and publish a DSZ's boundaries and effective period in the Federal
Register would delay implementation and diminish the value and
effectiveness. Thus, this proposed rule allows NMFS to implement timely
DSZs without prior publication in the Federal Register as follows.
When NMFS determines that the criteria for establishing a DSZ, or
DSZ extension, have been met, NMFS will announce notice of the DSZ or
DSZ extension through publication on the agency's website, via U.S.
Coast Guard Notices to Mariners, NOAA Weather Radio announcements, and
through other practicable appropriate means, as well as by Notice in
the Federal Register as soon as practicable. NMFS requests public
comment on other effective means for notifying the public, including
social media, smartphone apps, email notifications and text alerts to
which mariners, harbormasters, port officials, pilots, and the public
can subscribe. As stated earlier, the proposed SSZs will accrue a net
[[Page 46930]]
expansion of vessel strike risk coverage compared to the areas in the
current speed regulation, including many areas/times where voluntary
DMAs and Slow Zones have been common. NMFS anticipates that under the
proposed DSZs framework, the prevalence of these zones will be less
frequent, given the more rigorous coverage provided by the proposed SSZ
boundaries. Additionally, since 2008, nearly all voluntary DMAs and
Slow Zones were triggered on the continental shelf, with 93 percent
occurring in the NMFS Greater Atlantic Region (Maine to Virginia).
Accordingly, NMFS anticipates that proposed DSZs would continue to be
most common north of North Carolina and within coastal and shelf
waters.
NMFS requests public comment on the proposed DSZ framework for the
proposed mandatory DSZ program. NMFS particularly invites comment on:
(1) the geographic areas that should be subject to mandatory DSZs; (2)
the appropriate design of trigger thresholds using confirmed right
whale acoustic and/or visual detections as well as the appropriate
methodology for determining spatial extent as it relates to the greater
than 50 percent likelihood standard for presence; and (3) the forms of
notice mariners would find most practicable for receiving timely
declarations of new DSZs.
The use of dynamic strategies to manage vessel speed for right
whale protection is already customary, and employed in U.S. waters. The
State of Massachusetts dynamically extends the effective period of its
small vessel speed restrictions in Cape Cod Bay if the continued
presence of right whales is detected in the Bay, as the State did in
2021 (Massachusetts Division of Marine Fisheries 2021). NMFS' long-time
(since 1997) approach regulations also require mariners to modify their
vessel operations (including speed and/or direction of travel) in real-
time if they encounter right whales while transiting. Mariners must
remain 500 yards (457.2 m) away from right whales unless compliance
would create a serious threat to vessel safety. This strategy is also
used in Canadian waters. Since 2018, Canada has implemented a seasonal
system of mandatory dynamic right whale speed restrictions within the
Gulf of St Lawrence shipping lanes and during the summer, creates a
dynamic Restricted Area to further protect foraging aggregations, as
needed, based on right whale detections, and announced through
Transport Canada Ship Safety Bulletins (Transport Canada 2021a, 2021b).
Year-round visual and acoustic monitoring of right whale habitat
outside proposed active SSZs will be essential to the effectiveness of
the proposed mandatory DSZs. NMFS' coast-wide vessel strike mortality
risk model indicates where and when elevated strike risk is present,
and can serve as a resource for identifying monitoring needs (Garrison
et al. 2022). In 2019, NMFS convened an expert working group to provide
recommendations to enhance right whale monitoring along the U.S. East
Coast. The effort culminated in a detailed report that included
recommendations for monitoring right whale distribution (Oleson et al.
2020). NMFS continues to review recommendations from the monitoring
report and is taking monitoring needs for proposed mandatory DSZs into
consideration as it works with external partners to optimize right
whale monitoring efforts.
Updates to Safety Deviation Provisions
NMFS established a safety deviation provision within the 2008 speed
rule (50 CFR 224.105) to accommodate situations where transit at speeds
of 10 knots (5.1 m/s) or less during severe conditions would threaten
human or navigational safety. Following a review of vessel transit data
and compliance information as part of the speed rule assessment (NMFS
2020), NMFS investigated options to better understand the extent of
safety impacts from the speed rule and to monitor use of the safety
deviation provision. Current regulations lack a mechanism by which the
agency can efficiently identify which vessels are employing the safety
deviation and when and where use of the safety deviation may be common.
Existing information collection protocols lack sufficient detail to
determine the circumstances surrounding a deviation and to assess
situations where a vessel may lack reasonable grounds to employ the
safety deviation. NMFS further recognizes that the current safety
deviation language lacks recognition of emergency situations that do
not involve a maneuverability issue, when a vessel may have immediate
cause to exceed the 10-knot (5.1 m/s) speed restriction due to a
medical or other emergency involving the health or life of a vessel
passenger.
The proposed inclusion of vessels less than 65 ft (19.8 m) in
length within the vessel size class subject to speed regulation
presents a new safety issue unique to smaller and lighter boats. During
severe weather conditions, vessels less than 65 ft (19.8 m) in length
may face maneuverability and associated safety issues. While some
vessel operators can easily avoid such conditions, others may need to
be out on the water during severe weather events to provide essential
maritime services, or as a part of other work obligations.
To address the issues stated above, NMFS proposes to retain the
current safety deviation provision with several changes:
(1) Expansion of the safety deviation provision to include
emergency situations that present a threat to the health, safety, or
life of a person;
(2) Inclusion of a new provision, applicable only to vessels less
than 65 ft (19.8 m) in length, which allows such vessels to transit at
speeds greater than 10 knots (5.1 m/s) within areas where a National
Weather Service Gale Warning, or other National Weather Service Warning
(e.g., Storm Warning, Hurricane Warning) for wind speeds exceeding
those that trigger a Gale Warning is in effect. No reporting of these
speed deviations would be required; and
(3) Modification of the safety deviation reporting protocols to
eliminate the vessel logbook entry requirement in favor of a new
requirement for vessels to submit an online report to NMFS within 48
hours of employing a safety deviation detailing the circumstances and
need for the deviation.
The proposed regulations would require a vessel operator to submit,
via a NMFS website, the same information currently contained in the
logbook entry along with new information relevant to the deviation
event, including:
(1) Vessel name, length overall, draft (at the time of the
deviation) and where applicable, the vessel IMO number and Maritime
Mobile Service Identity (MMSI) number;
(2) Reason for the deviation: (a) maneuverability constraints, or
(b) emergency;
(3) Date, time, latitude, and longitude where deviation began;
(4) Date, time, latitude, and longitude where deviation ended;
(5) Speed or average speed at which the vessel transited during the
deviation;
(6) Wind speed and direction at the time of the deviation;
(7) Information on water current speed and direction at the time of
the deviation, including measurements from the vessel acoustic doppler
current profiler (ADCP), if the vessel is equipment with this device;
(8) If the vessel was operating within a restricted/dredged
channel, indicate
[[Page 46931]]
whether one-way or two-way vessel traffic was present within the
channel at the time the deviation was employed;
(9) The vessel master, and, if the vessel was under pilotage, the
pilot, must attest to the accuracy of the information contained within
the Report. If the vessel was under pilotage, indicate the name of the
harbor pilot;
(10) Opportunity to briefly provide additional narrative (300 word
limit), if desired, to explain the circumstances of a safety deviation.
NMFS specifically invites comment on the proposed reporting
requirements, including comments on whether a web-based reporting
mechanism is practicable for mariners, who should be responsible for
completing and attesting to reports (for example, whether pilots should
be responsible for completing and attesting to reports when a vessel is
under pilotage), and on requiring more robust logbook recordkeeping in
lieu of the new reporting requirements proposed herein.
NMFS recognizes that under certain conditions, vessel
maneuverability and/or navigational safety may be hampered by
transiting at reduced speeds, especially within port entrance areas.
NMFS' current and proposed speed regulations acknowledge this through
the safety deviation provision that is available when vessel
maneuverability is compromised by the speed restriction. Given the
totality of changes proposed herein, particularly the expanded size
class of vessels subject to regulation, most pilot vessels operating
within port entrance areas will likely be newly subject to speed
regulation. NMFS solicits comments on options for alternative speed
reduction programs specifically within port entrance areas that best
maintain navigational safety while providing comparable vessel strike
protections to right whales. Alternative programs would be conducted
and resourced by external partners, include comprehensive monitoring of
right whale presence, and provide a level of vessel strike risk
reduction equivalent to that achieved through the measures described in
this rule.
Additional Enforcement Clarifications
NMFS is also clarifying that the prohibitions set forth in Section
9(g) of the ESA would apply to the speed restrictions and reporting
requirements set forth in this rule. Additionally, consistent with
Section 10(g) of the ESA, NMFS clarifies that any person claiming the
benefit of an exception to this rule has the burden of proving that the
exception applies. Sections 9(g) and 10(g) of the ESA would apply
irrespective of these changes. However, NMFS believes it is appropriate
to provide additional notice to the public of how these provisions
would apply under the proposed rule. This clarification would also
provide consistency with other rules designed to protect North Atlantic
right whales. With limited exception, regulations at 50 CFR 224.103(c)
currently provide that it is unlawful ``to commit, attempt to commit,
to solicit another to commit, or cause to be committed'' an approach
within 500 yard of a North Atlantic right whale. The approach
regulation also makes clear that a person claiming the applicability of
an exception has the burden of proving that the exception applies.
Vessel Exemptions
The proposed rule includes one change to the exemptions for certain
vessels at 50 CFR 224.105(a). Currently the speed regulations exempt
vessels that are owned or operated by, or under contract to, the
Federal Government, and that exemption extends to foreign sovereign
vessels when they are engaging in joint exercises with the U.S.
Department of the Navy. This proposed rule would extend the exemption
to foreign sovereign vessels engaging in joint exercises with the U.S.
Coast Guard. All other exemptions remain unchanged. As stated earlier,
an exemption from the speed regulations does not affect a federal
agency's consultation requirement under section 7 of the ESA, and
reduced speeds may be recommended or specified as part of a section 7
consultation to reduce the threat of vessels collisions with right
whales. Federal action agencies should continue to monitor their
actions to determine if reinitiation of a consultation is warranted
based on triggers specified at 50 CFR 402.16. This proposed action,
however, does not provide a basis for reinitiation.
Stakeholder Considerations
NMFS designed the proposed changes to provide necessary enhanced
protection for endangered right whales while minimizing impacts on
human use of ocean resources for commerce and recreation. NMFS
recognizes that vessels regularly operating at speeds in excess of 10
knots within areas/times designated for speed restriction in this
proposed rule will likely experience delayed transit times within these
areas, although there will be no restrictions on when or where a vessel
may transit.
In addition to considering public comments from stakeholders
regarding impacts of the proposed rule, NMFS will continue to work with
key federal partners, including the U.S. Coast Guard, Bureau of Ocean
Energy Management, U.S. Army Corps of Engineers, and Marine Mammal
Commission, to ensure mariner safety and address stakeholder concerns
regarding the proposed changes. For example, NMFS is aware of the
nascent offshore wind energy industry and the substantial overlap of
likely future wind energy development with the proposed Seasonal Speed
Zones, possible Dynamic Speed Zones, and right whale habitat generally.
The proposed changes would provide a stable regulatory landscape for
companies as they plan future vessel-based operations for offshore
energy construction and long-term management, while providing necessary
protection for right whales throughout the U.S. portions of their
habitat.
NMFS anticipates the proposed rule will impact a larger number of
recreational boaters and anglers than the current rule, due mostly to
the inclusion of vessels equal to or greater than 35 ft in length.
Recreational fishing is widely enjoyed and generates billions of
dollars in overall economic contribution along the U.S. East Coast
(Lovell et al. 2020). To better understand the impacts of the proposed
rule on recreational angling, NMFS invites public comment on the degree
to which the mandatory speed limit (for most vessels equal to or
greater than 35 ft in length) may impact recreational angling within
the active proposed Seasonal Speed Zones and Dynamic Speed Zones. NMFS
anticipates that the seasonal nature of most speed restrictions will
minimize the impacts of the proposed rule on recreational activities.
In the Southeast and Mid-Atlantic, the proposed restrictions will be in
effect during seasons with less recreational angler activity. In the
greater New England area, most seasonal speed restrictions occur during
periods of colder weather, when recreational activity is low, although
this region is most likely to see Dynamic Speed Zones triggered during
seasons of higher recreational activity based on right whale
distribution data.
Other Considerations
In addition to the proposed vessel speed measures herein, NMFS
plans to continue an ongoing review of vessel routing measures to
examine the effectiveness of such measures and investigate
opportunities to further reduce the spatial and temporal overlap of
vessels and right whales through routing measures, if warranted.
Effective outreach to the mariner community remains an important means
of ensuring speed regulations are understood and
[[Page 46932]]
adhered to by the regulated community. NMFS is engaged in ongoing
research to identify effective means to communicate with this
community.
NMFS also recognizes the role whale avoidance technologies may one
day play in preventing vessel collisions, and remains open to the
future application of these technologies, if proven safe and effective.
The use of onboard marine mammal observers is another strategy employed
to reduce vessel strike events. For some activities and vessel types,
the addition of marine mammal observers can provide an added mechanism
to prevent vessel strikes in conjunction with other conservation
measures; however, documented right whale vessel strikes involving
vessels with trained observers demonstrate the inconsistency of this
tool.
While the proposed rule is designed to address lethal right whale
vessel strike risk, NMFS anticipates ancillary benefits, including
reduced vessel strike risk, will accrue to other marine species.
Endangered and protected cetaceans, pinnipeds, sea turtles, and certain
fish species inhabit the regions/seasons covered by the proposed
action. Vessel strikes are an ongoing threat to all large whale species
and are contributing to two ongoing Unusual Mortality Events involving
minke (Balaenoptera acutorostrata) and humpback whales (Megaptera
novaeangliae). Researchers have found that the majority of large whale
vessel strike mortalities involve vessels transiting at speeds greater
than 10 knots (Laist et al. 2001; Jensen and Silber 2004; Vanderlaan
and Taggart 2007; Conn and Silber 2013). NMFS expects both the spatial
and temporal expansion of SSZs and inclusion of vessels equal to or
greater than 35 ft in length will provide additional beneficial vessel
strike risk reduction to other large whale species.
Numerous studies have linked reduced vessel transit speeds with a
reduction in ocean noise (McKenna et al. 2012, 2013; Leaper et al.
2014; Gassmann et al. 2017; MacGillivray et al. 2019; Duarte et al.
2021). The proposed rule is expected to reduce radiated underwater
ocean noise particularly in areas where substantial numbers of vessels
would slow their speeds to 10 knots (5.1 m/s) or less. This change in
speed would subsequently reduce noise disturbances, such as sound
masking, for marine species occurring in overlapping areas/seasons.
Additionally, for certain vessel types, the proposed rule is expected
to result in reduced fuel use, and thus emissions, by slowing more
vessels over a larger net spatial and temporal area compared to current
conditions. NMFS anticipates these reductions would contribute to
enhanced air quality, and support lower fossil fuel emissions, a
priority for climate change mitigation, benefiting both human health
and marine species.
As with the current speed regulation, NMFS recognizes that vessel
compliance and effective enforcement is critical to the effectiveness
of the proposed rule. Overall vessel compliance with the current speed
rule is monitored based on protocols and procedures outlined in the
2020 vessel speed rule assessment (NMFS 2020). NMFS uses the distance
weighted average vessel speed to identify sections of transits that
exceed 10 knots and considers the total distance at or under 10 knots
as the best metric of apparent compliance. NMFS has seen increasing
levels of vessel compliance over time since the speed rule first went
into effect in 2008.
NOAA has already taken steps to address ongoing enforcement
challenges and prepare for new challenges resulting from the inclusion
of vessels equal to or greater than 35 ft in length. Specifically, the
Office of Law Enforcement has upgraded capabilities for tracking vessel
speed at sea, initiated research of new vessel tracking technologies,
and started investigating land-based and aerial monitoring options.
NMFS has also commenced staff level discussions with the U.S. Coast
Guard regarding possible modification of current AIS carriage
requirements to include additional vessel types and sizes. Furthermore,
as discussed above, NMFS is proposing changes to the speed rule
specifically designed to enhance monitoring and enforcement.
The inclusion of vessels equal to or greater than 35 ft in length
under the proposed rule will involve some increased enforcement costs
since many vessels in this size class are not equipped with AIS and
cannot be monitored in the same way as AIS-equipped vessels. Moving
forward, NOAA believes a diversified enforcement approach is needed.
This would involve expanding at-sea operations in appropriate
locations, using additional technologies to monitor vessel speed,
providing compliance assistance to the regulated community, including
outreach, and bringing enforcement cases in appropriate circumstances.
These enhancements to NOAA's enforcement efforts are not expected
to substantially raise costs. NOAA intends to efficiently and
effectively enforce the proposed rule building upon ongoing at-sea
enforcement efforts, and we anticipate receiving continued assistance
from enforcement partners such as the U.S. Coast Guard and State law
enforcement agencies. The increase in potentially affected vessels
under the proposed rule is not necessarily commensurate with an
increase in enforcement costs. While more vessels may be subject to
speed regulation under the proposed rule, enforcement will focus on
those vessels posing the greatest risk to right whales. Proposed
changes to the safety deviation reporting protocols should also
streamline enforcement.
NOAA brings civil administrative enforcement cases to achieve both
specific and general deterrence. Violations of the current speed rule
can result in significant monetary penalties, which serve as a
deterrent to other potential violators. Outreach can also be an
effective tool to improve compliance. This year, NOAA sent
approximately 400 letters to vessels suspected of violating the speed
limit to encourage compliance. NOAA is committed to continuing and
expanding outreach efforts under the proposed rule.
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Classification
NMFS is proposing this rule pursuant to its rulemaking authority
under MMPA section 112(a) (16 U.S.C. 1382(a)), and ESA section 11(f)
(16 U.S.C. 1540(f)).
A Draft Environmental Assessment for this proposed action was
prepared and is available at https://www.fisheries.noaa.gov/national/endangered-species-conservation/reducing-vessel-strikes-north-atlantic-right-whales.
An informal consultation under ESA section 7 is currently underway
for this proposed action. Consultation will be completed before a final
rule is issued.
This proposed rule has been determined to be significant under E.O.
12866 and NMFS has prepared a draft Regulatory Impact Review (RIR).
NMFS estimates that approximately 15,899 vessels would be affected by
the proposed revisions to the current speed rule at an estimated cost
of just over $46 million per year. Affected vessels include those that
are: (1) subject to speed regulation and (2) documented or estimated to
transit in excess of 10 knots (5.1 m/s) within the proposed SSZs and
potential DSZs. Of the 15,899 vessels identified, 9,220 (59 percent)
are recreational/pleasure boats, 3,575 (22 percent) are ocean-going
commercial ships, and 3,124 (19 percent) are commercial, industrial and
other vessel types, although the number of affected vessels less than
65 ft (19.8 m) is likely overestimated. The largest proportion of the
overall estimated cost of the proposed changes is borne by ocean-going
commercial ships (35 percent) followed by passenger vessels (26
percent) and industrial work vessels (18 percent). NMFS invites public
comment on potential economic, operational or safety impacts from the
proposed changes.
NMFS prepared an Initial Regulatory Flexibility Analysis (IRFA) as
required by section 603 of the Regulatory Flexibility Act. The IRFA
describes the economic impact this proposed rule, if adopted, would
have on small entities. We anticipate a total of 2,524 small entities
(individual vessels) would be affected by the proposed rule with an
estimated annual cost, as a percentage of revenue, ranging from 0.06%
to 2.09%, depending on the vessel type, with passenger and pilot
vessels most impacted. Commercial fishing and passenger vessel entities
make up a combined 60% of the total small entities affected by the
rule, although as a proportion of revenue the cost of this impact is
substantially lower for commercial fishing vessels. A full description
of the proposed action, and the legal basis and objectives of the
action, are discussed above and are not repeated here.
[[Page 46935]]
The proposed action includes no day-to-day reporting requirements.
A vessel operator only needs to submit a brief electronic report to
NMFS if they use the safety deviation provision due to limited
maneuverability affecting vessel safety or an emergency. Since these
safety/emergency situations are expected to be rare, the impact on
small entities should be minimal. No special professional skills are
needed to submit the report other than knowledge of the vessel and the
conditions relevant to the safety deviation.
NMFS considered a number of alternatives in its Draft RIR and Draft
Environmental Assessment but did not identify any significant
alternatives which would accomplish the stated objective of this
proposed rule. Alternatives considered included:
(1) Alternative 1 (No Action Alternative) would maintain the status
quo. No action would be taken and vessel traffic along the U.S. East
Coast would continue as is under 50 CFR 224.105.
(2) Alternative 2 would restrict the speed of most vessels greater
than or equal to 35 ft (10.7 m) and less than 65 ft (19.8 m) in length
to 10 knots (5.1 m/s) or less within existing SMAs.
(3) Alternative 3 would modify the spatial and temporal boundaries
of the existing SMAs to create newly proposed SSZs. The size class of
vessels subject to speed regulation would remain unchanged.
(4) Alternative 4 would restrict the speed of most vessels greater
than or equal to 35 ft (10.7 m) and less than 65 ft (19.8 m) in length
to 10 knots (5.1 m/s) or less within existing SMAs, and establish a
mandatory DSZ program.
(5) Alternative 5 (Preferred Alternative) would modify the spatial
and temporal boundaries of the existing SMAs to create newly proposed
SSZs, add vessels greater than or equal to 35 ft (10.7 m) and less than
65 ft (19.8 m) in length to the vessel size class subject to speed
regulation, and establish a mandatory DSZ program.
The changes proposed in this action are designed to significantly
reduce the risk of lethal vessel strike events involving right whales
in support of broader efforts to stabilize the rapid, unsustainable
decline in population. Maintaining the status quo (Alternative 1) would
not result in any additional reduction in strike risk. Alternative 2
would address strike risk from most vessels greater than or equal to 35
ft (10.7 m) and less than 65 ft (19.8 m) in length but fails to fix the
spatial and temporal misalignment of current SMAs, leaving right whales
vulnerable to vessel collision in many areas. Alternative 4 partially
addresses this issue by further extending mandatory protections through
the DSZ framework, but given the broad spatial/temporal extent of the
areas NMFS has identified as high risk outside the current SMAs, the
use of a dynamic framework would be inadequate to mitigate the constant
strike risk in certain areas/seasons, and would create a cumbersome and
less predictable regulatory environment. Alternative 3 successfully
addresses much of the spatial and temporal misalignment of current SMAs
but fails to address the risk from vessels less than 65 ft (19.8 m) in
length, which account for at least 42% of documented lethal strike
events in U.S. waters since the speed rule was implemented in 2008.
Only Alternative 5, (the action proposed herein) provides a high
likelihood (>90%) of substantial reduction in lethal strike events
involving most vessels greater than or equal to 35 ft (10.7 m)
transiting at speeds greater than 10 knots (5.1 m/s), assuming full
compliance with the proposed rule.
The proposed action is not expected to have a disproportionately
high effect on minority populations or low-income populations under
E.O. 12898.
The proposed action does not contain policies with federalism
implications under E.O. 13132.
This proposed action contains a revision to the existing
collection-of-information authorization (OMB Control number 0648-0580)
for this rule under the Paperwork Reduction Act (PRA). The appropriate
PRA documents will be submitted following publication of the proposed
rule.
List of Subjects in 50 CFR 224
Administrative practice and procedure, Boats and boating safety,
Endangered and threatened species, Marine mammals, Transportation,
Vessels, Whales.
Dated: July 25, 2022,
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the preamble, the National Oceanic and
Atmospheric Administration proposes to amend 50 CFR part 224 as
follows:
PART 224--ENDANGERED MARINE AND ANADROMOUS SPECIES
0
1. The authority citation for part 224 continues to read as follows:
Authority: 16 U.S.C. 1531-1543 and 16 U.S.C. 1361 et seq.
0
2. Revise Sec. 224.105 to read as follows:
Sec. 224.105 Speed restrictions to protect North Atlantic Right
Whales.
(a) The following restrictions apply to: All vessels greater than
or equal to 35 ft (10.7 m) in overall length and subject to the
jurisdiction of the United States (U.S.), and all other vessels greater
than or equal to 35 ft (10.7 m) in overall length entering or departing
a port or place subject to the jurisdiction of the U.S. These
restrictions shall not apply to U.S. vessels owned or operated by, or
under contract to, the Federal Government. This exemption extends to
foreign sovereign vessels when they are engaging in joint exercises
with the U.S. Department of the Navy or the U.S. Coast Guard. In
addition, these restrictions do not apply to law enforcement vessels of
a State, or political subdivision thereof, when engaged in law
enforcement or search and rescue duties. Vessels subject to the
jurisdiction of the U.S. or entering or departing a port or place
subject to the jurisdiction of the U.S. shall travel at a speed of 10
knots (5.1 m/s) or less over ground within Seasonal Speed Zones (SSZs)
described in paragraphs (a)(1) through (5) of this section and Dynamic
Speed Zones (DSZs) established under paragraph (a)(6) of this section:
(1) Atlantic Zone (north of Kill Devil Hills, NC, to north of
Gloucester, MA): During the period of November 1 to May 30 each year,
includes marine waters beginning at the charted mean high water line
within the area bounded by straight lines connecting the following
points in the table in the order stated from north to south;
Table 1 to Paragraph (a)(1)
------------------------------------------------------------------------
Latitude Longitude
------------------------------------------------------------------------
42[deg]38'23'' N.......................... 070[deg]34'21'' W.
42[deg]20'10'' N.......................... 069[deg]59'30'' W.
40[deg]21'0'' N........................... 068[deg]38'54'' W.
40[deg]21'0'' N........................... 071[deg]51'21'' W.
39[deg]56'53'' N.......................... 072[deg]52'28'' W.
38[deg]30'46'' N.......................... 074[deg]12'12'' W.
36[deg]50'21'' N.......................... 075[deg]6'15'' W.
36[deg]6'00'' N........................... 075[deg]15'00'' W.
36[deg]6'00'' N........................... at shoreline.
------------------------------------------------------------------------
thence bounded on the west by the shoreline and the Convention on
the International Regulations for Preventing Collisions at Sea
(COLREGS) Demarcation Lines, from 36[deg]6'00'' N north to
40[deg]21'0'' N; thence bounded by the following point 41[deg]04'16''
N, 71[deg]51'21'' W; thence to the shoreline at 71[deg]51'21'' W;
thence bounded on the north by the shoreline and the COLREGS
Demarcation Lines to 70[deg]39'23'' W, 41[deg]30'54'' N; thence bounded
by the shoreline to 70[deg]52'54'' W, 42[deg]18'37'' N; thence bounded
by the
[[Page 46936]]
following point 70[deg]54'3''W, 42[deg]25'14''N; thence bounded by the
shoreline and the COLREGS Demarcation Lines back to the starting point.
(2) Great South Channel Zone (east of Cape Cod, MA): During the
period of April 1 to June 30 each year, in all waters bounded by
straight lines connecting the following points in Table 2 in the order
stated.
Table 2 to Paragraph (a)(2)
------------------------------------------------------------------------
Latitude Longitude
------------------------------------------------------------------------
41[deg]44'08'' N.......................... 069[deg]34'50'' W.
42[deg]10'00'' N.......................... 068[deg]31'00'' W.
41[deg]24'53'' N.......................... 068[deg]31'00'' W.
40[deg]50'28'' N.......................... 068[deg]58'40'' W.
------------------------------------------------------------------------
(3) North Carolina Zone (Wilmington, NC, to north of Kill Devil
Hills, NC): During the period of November 1 to April 30 each year,
includes marine waters beginning at the charted mean high water line
within the area bounded on the west by the shoreline and the COLREGS
Demarcation Lines, and on the east by straight lines connecting the
following points in Table 3 in the order stated from north to south.
Table 3 to Paragraph (a)(3)
------------------------------------------------------------------------
Latitude Longitude
------------------------------------------------------------------------
36[deg]06'00'' N.......................... at shoreline
36[deg]06'00'' N.......................... 075[deg]15'00'' W.
35[deg]36'30'' N.......................... 075[deg]03'00'' W.
35[deg]15'10'' N.......................... 075[deg]06'30'' W.
34[deg]59'10'' N.......................... 075[deg]14'40'' W.
34[deg]53'30'' N.......................... 075[deg]32'40'' W.
34[deg]39'00'' N.......................... 075[deg]59'10'' W.
34[deg]15'50'' N.......................... 076[deg]27'30'' W.
34[deg]21'25'' N.......................... 076[deg]49'15'' W.
34[deg]11'50'' N.......................... 077[deg]13'50'' W.
33[deg]56'40'' N.......................... 077[deg]31'30'' W.
34[deg]10'30'' N.......................... at shoreline.
------------------------------------------------------------------------
(4) South Carolina Zone (north of Brunswick, GA, to Wilmington,
NC): During the period of November 1 to April 15 each year, includes
marine waters beginning at the charted mean high water line within the
area bounded on the west by the shoreline and the COLREGS Demarcation
Lines, and on the east by straight lines connecting the following
points in Table 4 in the order stated from north to south.
Table 4 to Paragraph (a)(4)
------------------------------------------------------------------------
Latitude Longitude
------------------------------------------------------------------------
34[deg]10'30'' N.......................... at shoreline
33[deg]56'40'' N.......................... 077[deg]31'30'' W.
29[deg]45'00'' N.......................... 080[deg]51'36'' W.
33[deg]36'30'' N.......................... 077[deg]47'06'' W.
33[deg]28'24'' N.......................... 078[deg]32'30'' W.
32[deg]59'06'' N.......................... 078[deg]50'18'' W.
31[deg]50'00'' N.......................... 080[deg]33'12'' W.
31[deg]27'00'' N.......................... 080[deg]51'36'' W.
31[deg]27'00'' N.......................... at shoreline.
------------------------------------------------------------------------
(5) Southeast Zone (south of Cape Canaveral, FL, to north of
Brunswick, GA): During the period of November 15 to April 15 each year,
includes marine waters beginning at the charted mean high water line
within the area bounded on the west by the shoreline and the COLREGS
Demarcation Lines, and on the east by straight lines connecting the
following points in Table 5 in the order stated from north to south.
Table 5 to Paragraph (a)(5)
------------------------------------------------------------------------
Latitude Longitude
------------------------------------------------------------------------
31[deg]27'00'' N.......................... at shoreline.
31[deg]27'00'' N.......................... 080[deg]51'36'' W.
29[deg]45'00'' N.......................... 080[deg]51'36'' W.
29[deg]45'00'' N.......................... 081[deg]01'00'' W.
29[deg]15'00'' N.......................... 080[deg]55'00'' W.
29[deg]08'00'' N.......................... 080[deg]51'00'' W.
28[deg]50'00'' N.......................... 080[deg]39'00'' W.
28[deg]38'00'' N.......................... 080[deg]30'00'' W.
28[deg]28'00'' N.......................... 080[deg]26'00'' W.
28[deg]24'00'' N.......................... 080[deg]27'00'' W.
28[deg]21'00'' N.......................... 080[deg]31'00'' W.
28[deg]16'00'' N.......................... 080[deg]31'00'' W.
28[deg]11'00'' N.......................... 080[deg]33'00'' W.
28[deg]00'00'' N.......................... 080[deg]29'00'' W.
28[deg]00'00'' N.......................... At shoreline.
------------------------------------------------------------------------
(6) Dynamic Speed Zones (DSZs):
(i) Designation. At all times of year and in all waters along the
U.S. Atlantic seaboard, including the entire U.S. Exclusive Economic
Zone, except SSZs specified in paragraphs (a)(1) through (5) of this
section, a DSZ will be designated upon a determination by NMFS that
there exists:
(A) At a minimum, a confirmed visual sighting of three or more
North Atlantic right whales within close proximity or confirmed
acoustic detection of a North Atlantic right whale; and
(B) A greater than 50 percent likelihood that North Atlantic right
whales will remain within the designated DSZ while it is in effect.
(C) A DSZ shall have a minimum effective period of 10 days and
shall not exceed 2500 sq nm (8575 sq km) in size for visually triggered
DSZs and 400 sq nm (1372 sq km) for acoustically triggered DSZs. The
DSZ may be extended for additional periods provided that NMFS makes the
required determinations for designating a DSZ specified in this
paragraph.
(ii) Notice of DSZ. Notice of a DSZ or DSZ extension will be posted
at https://www.fisheries.noaa.gov and disseminated via U.S. Coast Guard
Notice to Mariners, NOAA Weather Radio announcements, and through other
practicable appropriate means, as well as by Notice in the Federal
Register as soon as practicable.
(b) A vessel may operate at a speed in excess of 10 knots (5.1 m/s)
in an active designated SSZ or DSZ only if:
(1) Justified because an emergency situation presents a threat to
the health, safety, or life of a person;
(2) Necessary to maintain safe maneuvering speed and justified
because the vessel is in an area where oceanographic, hydrographic,
and/or meteorological conditions severely restrict the maneuverability
of the vessel and the need to operate at such speed is confirmed by the
pilot on board or, when a vessel is not carrying a pilot, the master of
the vessel; or
(3) A vessel less than 65 ft (19.8 m) in length is transiting
within areas where a National Weather Service Gale Warning, or other
National Weather Service Warning (e.g., Storm Warning, Hurricane
Warning) for wind speeds exceeding those that trigger a Gale Warning is
in effect.
(c) If a deviation from the requirements in paragraph (a) of this
section is necessary under paragraph (b)(1) or (2) of this section, the
vessel operator must complete and electronically submit an accurate and
complete Safety Deviation Report to NMFS at https://www.fisheries.noaa.gov within 48 hours of the deviation. The Safety
Deviation Report shall describe, in detail, the circumstances
surrounding the deviation and need for the deviation on forms provided
by NMFS. The vessel operator and, if the vessel is under pilotage at
the time of the deviation, the pilot on board shall attest to the
accuracy of the information in the Safety Deviation Report before it is
submitted.
(d) Except as provided under paragraph (b) of this section, it is
unlawful for any person subject to the jurisdiction of the U.S. to
commit, to attempt to commit, to solicit another to commit, or to cause
to be committed any speed violation with a vessel subject to the
restrictions established in paragraph (a) of this section or a
reporting violation described in paragraph (c) of this section.
(e) Any person or vessel claiming the applicability of any
exception under paragraph (b) of this section has the burden of proving
that the exception applies.
[FR Doc. 2022-16211 Filed 7-29-22; 8:45 am]
BILLING CODE 3510-22-P