FR Doc E8-24177

From: Subject: FR Doc E8-24177 Date: Fri, 10 Oct 2008 11:26:10 -0400 MIME-Version: 1.0 Content-Type: text/html; charset="Windows-1252" Content-Transfer-Encoding: quoted-printable Content-Location: http://edocket.access.gpo.gov/2008/E8-24177.htm X-MimeOLE: Produced By Microsoft MimeOLE V6.00.2900.3198 FR Doc E8-24177
[Federal Register: October 10, 2008 (Volume 73, Number =
198)]
[Rules and Regulations]              =20
[Page 60173-60191]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr10oc08-10]                        =20

=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=
=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=
=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D
-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 224

[Docket No. 040506143-7024-03]
RIN 0648-AS36

=20
Endangered Fish and Wildlife; Final Rule To Implement Speed=20
Restrictions to Reduce the Threat of Ship Collisions With North=20
Atlantic Right Whales

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and=20
Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: NMFS establishes regulations to implement speed restrictions=20
of no more than 10 knots applying to all vessels 65 ft (19.8 m) or=20
greater in overall length in certain locations and at certain times of=20
the year along the east coast of the U.S. Atlantic seaboard. The=20
purpose of the regulations is to reduce the likelihood of deaths and=20
serious injuries to endangered North Atlantic right whales that result=20
from collisions with ships.

DATES: This final rule is effective December 9, 2008 through December=20
9, 2013.

ADDRESSES: Copies of this rule and Regulatory Impact Review, Final=20
Environmental Impact Statement, Economic Analysis and Record of=20
Decision related to this final rule can be obtained from the Web site=20
listed under the electronic access portion of this document. Written=20
requests for copies of these documents should be addressed to: Chief,=20
Marine Mammal Conservation Division, Attn: Right Whale Ship Strike=20
Reduction Rule, Office of Protected Resources, NMFS, 1315 East-West=20
Highway, Silver Spring, MD 20910. Written comments regarding the=20
burden-hour estimates or other aspects of the collection-of-information=20
requirements contained in this final rule may be submitted to NMFS,=20
Office of Protected Resources.

FOR FURTHER INFORMATION CONTACT: Gregory Silber, PhD, or Shannon=20
Bettridge, PhD, Fishery Biologists, Office of Protected Resources,=20
NMFS, at (301) 713-2322.

SUPPLEMENTARY INFORMATION:

Electronic Access

    Several background documents related to this final rule, including=20
the Regulatory Impact Review, Final Environmental Impact Statement,=20
Economic Analysis and Record of Decision can be downloaded from =
http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=3DleavingFR.html=
&log=3Dlinklog&to=3Dhttp://www/nmfs.noaa.gov/shipstrike.

Background

    The Western North Atlantic right whale (Eubalaena glacialis) was=20
severely depleted by commercial whaling. The only remaining population=20
off North America was reduced to a few hundred whales or less by the=20
early 1900s. Despite protection from commercial whaling since 1935, the=20
remaining population has failed to fully recover. The best current=20
estimate of minimum population size is 313 whales (Waring et al.,=20
2007), which is approximately the same as it was 25 years ago (Best et=20
al., 2001). At this level, with the exception of North Pacific right=20
whales, North Atlantic right whales are the world's most critically=20
endangered large whale species and one of the world's most endangered=20
mammals.
    Population models suggest that their abundance may have increased=20
at about 2 percent per year during the 1980s, but that it declined at=20
about the same rate in the 1990s (Caswell et al., 1999). Data on the=20
minimum number of whales alive during 1995-2002 indicate a slight=20
increase in the number of catalogued whales during the period, but with=20
statistically significant inter-annual variation in numbers due to=20
declines in the minimum number of animals found alive during 1998-1999=20
(Waring et al., 2007). Such population trends are very low compared to=20
trends for populations of other large whales that are recovering, such=20
as south Atlantic right whales and western Arctic bowhead whales, which=20
have been recovering steadily at rates of 4 percent or more per year.=20
Inherently low rates of reproduction in large whale populations mean=20
that recovery rates for large whale populations can be low under the=20
best of circumstances. North Atlantic right whales may live 60 years or=20
more. The age of first reproduction for female North Atlantic right=20
whales is about 7 to 10 years old and calving intervals for the=20
population have been estimated to average from about 3.5 to more than 5=20
years over the past three decades (Kraus et al., 2001; Kraus et al.,=20
2007). Considering the high rates of natural mortality for calves and=20
juveniles compared to adults, population projections estimate that=20
female right whales must produce at least four calves over their=20
lifetime to replace themselves. To ensure population growth, adult=20
females would need to produce more than four calves over their=20
lifetime, because half of the calves born are male, and the survival of=20
female calves to adulthood is less than 0.5 (Kraus et al., 2001).
    Between the mid 1980s and late 1990s, documented calf production=20
for the North Atlantic right whale population averaged about 11 calves=20
per year (Kraus et al., 2001). Since 2000, a series of good calving=20
years has provided a source of optimism for future recovery. Between=20
2000/01 and 2005/06, calf production increased to an average of more=20
than 22 calves per year and the average calving interval for adult=20
females has declined to close to its lowest recorded level (Kraus et=20
al., 2007). However, the mean number of cows recruited into the=20
population was 3.8 per year (Kraus et al., 2001).
    Because of the species' low reproduction level and small population=20
size, even low levels of human-caused mortality can pose a significant=20
obstacle for North Atlantic right whale recovery. Population modeling=20
studies in the late 1990s (Caswell et al., 1999; Fujiwara and Caswell,=20
2001) indicated that preventing the death of two adult females per year=20
could be sufficient to reverse the slow decline detected in right whale=20
population trends in the 1990s. In this regard, the primary cause of=20
the species' failure to recover is believed to be mortality caused by=20
collisions with ships and entanglement in commercial fishing gear=20
(Kraus, 1990; Knowlton and Kraus, 2001; Moore et al., 2005; NMFS, 2005;=20
MMC, 2006). Since 1970, there have been more than 73 confirmed right=20
whale deaths, nearly half of which (49 percent) have been attributed to=20
ship collisions (29 deaths) or entanglements (7 deaths). NOAA believes=20
the actual number of deaths is almost certainly higher than those=20
documented as some deaths likely go undetected or unreported, and in=20
many cases when deaths are detected or reported it is not possible to=20
determine the cause of death from recovered carcasses. The number of=20
documented deaths may be as little as 17 percent of the actual number=20
of deaths (Kraus et al., 2005).
    The number of human-caused right whale deaths and serious injuries=20
may be increasing. Since 1990, there have been more than 50 confirmed=20
deaths, 56 percent of which have been attributed to

[[Page 60174]]

ship strikes (22 deaths) and entanglement (6 deaths). Between 2001 and=20
2005, the minimum estimate of human-caused mortality and serious injury=20
to North Atlantic right whales from ship strikes and fishery=20
entanglements averaged 3.2 per year (Waring et al., 2007). This=20
included nine known right whale ship strike deaths between 1991 and=20
2001, an average of 1.8 per year. The number of ship collisions appears=20
to be related to an overlap between important right whale feeding,=20
calving, and migratory habitat and shipping corridors along the eastern=20
United States and Canada. Most right whales that died as a result of=20
ship collision were first reported dead in or near major shipping=20
channels off east cost ports between Jacksonville, Florida and New=20
Brunswick, Canada. Based on massive injuries found on whales killed by=20
ships (e.g., crushed skulls, severed tail stocks, and deep, broad=20
propeller wounds), it appears that a large majority of right whales=20
killed by vessels are victims of collisions with large ships. The=20
effect of vessel-related deaths on right whale recovery is especially=20
significant because a disproportionate number of ship strike victims=20
are female right whales. Of the 22 vessel-related deaths for which the=20
sex and size of the animals is known, 80 percent are females, including=20
at least three that were killed carrying full-term fetuses. The reasons=20
for this are not clear, but one factor may be that pregnant females and=20
females with nursing calves may spend more time at the surface where=20
they are vulnerable to being struck.
    For the North Atlantic right whale population to recover, vessel-
related deaths and injuries must be reduced. The recently revised North=20
Atlantic Right Whale Recovery Plan (NMFS, 2005) ranks steps to reduce=20
and eliminate such deaths among its highest priorities, and indicates=20
that developing and implementing an effective strategy to address this=20
threat is essential to recovery of the species.
    In collaboration with other agencies and organizations, NMFS has=20
undertaken extensive efforts to encourage voluntary actions by vessel=20
operators to reduce the risk of collisions between ships and North=20
Atlantic right whales. In part, it has sought to limit vessel=20
approaches to right whales, increase awareness of east coast mariners=20
about the vulnerability of right whales to ship strikes, and provide=20
mariners with real time right whale sighting locations. To reduce=20
disturbance and collision risks, NMFS published a regulation on=20
February 13, 1997 (62 FR 6729), prohibiting all vessels from=20
approaching closer than 500 yards (460 m) to any right whale. To help=20
vessel operators avoid whales or take other appropriate measures,=20
extensive aircraft surveys have been undertaken in waters off the U.S.=20
southeast coast since 1993 and off the coast of New England since 1997,=20
to inform mariners via various notification programs and media when and=20
where right whales have been sighted. The program is operated in=20
conjunction with, and supported by, a number of other organizations,=20
including state and Federal agencies. In July 1999, the U.S. Coast=20
Guard (USCG) and NMFS jointly implemented two Mandatory Ship Reporting=20
systems (MSRS) that require all vessels 300 gross tons and greater that=20
enter specified right whale feeding and calving habitats to report to a=20
shore-based station for information on right whale protection. Incoming=20
reports prompt an automated return message providing right whale=20
sighting locations and information on how vessel/whale collisions can=20
be avoided. Reporting vessels also must provide their entry location,=20
destination, and ship speed to help analyze vessel related risks.
    To raise mariner awareness about right whale protection needs, NMFS=20
also regularly updates navigational aids with information on the status=20
of right whales, times and areas where they occur, threats posed by=20
ships, provisions of the MSRS, and advice on measures mariners can take=20
to reduce the likelihood of hitting right whales. One such aid is the=20
U.S. Coast Pilot, a set of regionally-specific references on marine=20
environmental conditions, navigation hazards, and regulations. Captains=20
of commercial vessels 1600 gross tons and above are required to carry=20
the Coast Pilot when operating in U.S. waters. Current information is=20
also provided via the National Geospatial-Intelligence Agency's Notice=20
to Mariners, and the United Kingdom's Admiralty Publications, both of=20
which provide guidance for mariners traveling in international waters.=20
In 2005, NMFS began broadcasting advisories over NOAA Weather Radio and=20
other media urging that ships limit speeds to 12 knots or less=20
(subsequently lowered to 10 knots since June 2006) when they are in=20
areas where right whales had been sighted. Mariner education programs=20
also have been established and others are under development by a=20
coalition of groups and individuals, including the Northeast and=20
Southeast Right Whale Recovery Plan Implementation Teams, to help train=20
and educate professional mariners and recreational boaters about right=20
whale protection needs.
    In addition, Federal agencies that conduct ship operations along=20
the U.S. east coast have been advised to modify their vessel operating=20
procedures by posting extra lookouts in areas where whales may occur,=20
limiting transits through such areas, and training ship crews on ways=20
to detect, identify, and avoid large whales. The USCG and U.S. Navy=20
have issued speed advisories to their respective Atlantic fleets, and=20
in 2005, NMFS contacted all relevant Federal agencies requesting that=20
their vessels proceed at 12 knots or less when in right whale habitat=20
unless other overriding needs (e.g., national security or rescue=20
mission) would be compromised. The USCG and Navy have standing orders=20
to report sightings or collisions. Although the NMFS ship strike=20
database reflects a disproportionately high number of ship strikes=20
attributable to USCG and Navy vessels, this is likely due to the high=20
reporting rate by those agencies relative to other mariners and=20
vessels, rather than a higher incidence of right whale ship strikes by=20
Federal agency vessels.
    Despite measures developed and undertaken by agencies,=20
stakeholders, partners, and industry to date, right whale deaths from=20
ship strikes continue and voluntary measures appear to be insufficient.=20
For example, a right whale was struck by a vessel off Georgia in 2005.=20
The operator was aware of right whale protection needs and immediately=20
contacted the USCG and stood by the whale until officials arrived. He=20
was unable, however, to detect and avoid the whale. Given the=20
undiminished occurrence of collisions with right whales, NMFS has=20
concluded that existing measures are insufficient to reduce the=20
likelihood of ship strikes and allow the species to recover.=20
Accordingly, NMFS determined that further action is required, and that=20
a rule to limit vessel speeds in times and areas where right whales are=20
most likely to occur is necessary. This rulemaking is designed to=20
significantly reduce the occurrence and severity of collisions with=20
North Atlantic right whales while minimizing adverse impacts on ship=20
operations.
    NMFS proposed regulations to reduce the threat of ship strikes in=20
an Advanced Notice of Proposed Rulemaking (ANPR) (69 FR 30857; 1 June=20
2004) and a Notice of Proposed Rulemaking (NPRM)(71 FR 36299; 26 June=20
2006). As part of the proposed rulemaking, NMFS prepared and circulated=20
a Draft Environmental Impact Statement (DEIS) which provided=20
evaluations for a range of alternative measures. In the NPRM, NMFS=20
identified speed restrictions of vessels along the coastal U.S.=20
Atlantic as the best way to reduce ship strikes. Substantial evidence=20
(Laist et al., 2001;

[[Page 60175]]

Jensen and Silber, 2003; Vanderlaan and Taggart, 2007) indicates that=20
vessel speed is an important factor affecting the likelihood and=20
lethality of whale/vessel collisions. Therefore, NMFS proposed=20
restricting vessel speed at certain times and in certain locations to=20
reduce this threat. NMFS requested public comment on the proposed=20
regulations and provided a public comment period of 102 days and=20
sponsored an extended series of public meetings. Below, we summarize=20
the comments received, responses to those comments, and changes made to=20
the proposed regulations in light of the comments.
    In addition to the speed restrictions identified in this=20
rulemaking, NMFS and other agencies are taking other steps, as=20
described in the ANPR and NPRM, to reduce the likelihood of ship=20
strikes. Among these are certain routing measures. In November 2006,=20
NOAA established a set of recommended shipping routes in key right=20
whale aggregation areas in Cape Cod Bay and at the entrances to three=20
ports in Georgia and Florida. The routes are expected to reduce the co-
occurrence of right whales and ships in those areas. Although the=20
identified routes are now voluntary, NMFS intends to track mariner use=20
of the routes and may consider making them mandatory. Information on=20
those routes can be found at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=3DleavingFR.=
html&log=3Dlinklog&to=3Dhttp://www.nmfs.noaa.gov/pr/shipstrike/.=20
In addition, the United States prepared and submitted to the=20
International Maritime Organization (IMO) a proposal to reconfigure the=20
``Traffic Separation Scheme'' (TSS) that services Boston,=20
Massachusetts. The realignment--involving only a 12 degree shift in the=20
northern leg and narrowing the two traffic lanes by approximately 1/2=20
mile each--is expected to provide a significant reduction in ship=20
strike risk to right whales and all baleen whale species occurring in=20
the area, with minimal concurrent impact to mariners using the TSS. The=20
IMO reviewed and adopted the proposal, and the realignment was=20
implemented in July 2007. These routing measures are not the subject of=20
this rulemaking.

Comments on the Notice of Proposed Rulemaking and Responses

    NMFS received 10,252 comments on the June 26, 2006, NPRM from=20
governmental entities, individuals, and organizations. NMFS received=20
these comments in the form of electronic mail, letters, website=20
submissions, correspondence from action campaigns (e-mail and U.S.=20
postal mail), and facsimile. Of those, 10,027 were form letters=20
expressing general support for the proposed regulations; 225 contained=20
substantive comments on specific measures or components of the proposed=20
rule. All comments have been compiled and posted at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=3DleavingFR.h=
tml&log=3Dlinklog&to=3Dhttp://www.nmfs.noaa.gov/pr/shipstrike=
. In the text below, NMFS provides a=20
summary of the comments, recommendations, and issues raised that=20
directly relate to the measures in this rulemaking, provides responses=20
to them, and identifies changes to the proposed regulations.
    Comment 1: A number of commenters questioned NMFS's data on the=20
size and status of the North Atlantic right whale population, its=20
growth rate, and/or whether ship collisions are a major threat.
    Response: NMFS relies on the best available scientific information=20
to assess North Atlantic right whale abundance, status and threats.=20
Primarily, this includes Stock Assessment Reports (SAR) required by the=20
Marine Mammal Protection Act (MMPA), and the peer reviewed scientific=20
literature. The SAR for North Atlantic right whales is updated annually=20
and reviewed both internally and externally by teams of scientists. The=20
2007 SAR for North Atlantic right whales (Waring et al., 2007)=20
indicates that the best estimate of minimum population size for the=20
species is 313 individually recognized whales known to be alive during=20
2002. Because these data are from identification photographs and=20
genetic samples in all known right whale aggregation areas and very few=20
new adult whales have been added since the mid-1990s, NMFS believes=20
that these records represent a nearly complete census of the=20
population. Therefore, NMFS concludes that they provide an accurate=20
representation of the population's minimum size.
    NMFS also considered additional population analyses and modeling=20
exercises that were conducted and published in the peer-reviewed=20
literature (e.g., Caswell et al., 1999; Fujiwara and Caswell, 2001).=20
Those studies cite high mortality rates in the 1980s and 1990s and=20
conclude that the population began to decline in the early 1990s. They=20
indicate that preventing the death of even one adult female could=20
significantly affect the population's trend. A 2001 evaluation by the=20
International Whaling Commission's Scientific Committee (Best et al.,=20
2001) also concluded that the population of North Atlantic right whales=20
is not likely much greater than 300 individuals. By every measure=20
developed in the field of conservation biology, wild animal populations=20
of this size would be considered critically endangered.
    With regard to the population's growth rate, calf production has=20
been relatively high in recent years, but on a longer scale, calf=20
production is erratic. Annual calf production ranged from 1 to 31 and=20
averaged 11 calves up until 2000, but totaled 31, 21, 19, 16, 28, and=20
19 from 2000/01 to 2005/06, respectively. In assessing the impact of=20
this production on the long-term viability of the population, it is=20
essential that calf mortality rates also be considered. Documented=20
(others may go undetected) calf deaths were: two in 1993, three in=20
1996, one in 1997, one in 1998, four in 2001, and two in 2002; this=20
evidence prompted Kraus et al. (2005) to conclude that the number of=20
births still is not sufficient to compensate for the number of adult=20
deaths over the past two decades. As indicated above, observed=20
mortality, as based on peer-reviewed statistical procedures, is almost=20
certainly lower than the actual mortality. All indications are that the=20
population is small, growth in the adult population is static or=20
possibly declining, and despite recent increases in reproduction the=20
premature deaths of female right whales due to ship collisions have=20
significantly impeded the potential population recovery. Of particular=20
significance is the recent loss of breeding females, the most important=20
demographic component of the population.
    With regard to threats from human activities, the two principal=20
ones are entanglement with fishing gear and ship strikes. From 1970 to=20
2005, 67 right whale carcasses have been found (Best et al., 2001; MMC,=20
2006). This is only a portion of the actual number of deaths because=20
the detected fraction is less than one-half the total mortality=20
assuming a static population of 300 whales. Of these 67 dead whales, 25=20
died as a result of collisions with ships, six from entanglement in=20
fishing gear, 17 were fetuses that either died of unknown causes or=20
from the death of its mother, and for the remainder the cause of death=20
could not be determined (Best et al., 2001; Moore et al., 2005; MMC,=20
2006). Of the 67 carcasses, 44 were recovered between 1990 and 2005. Of=20
these, 18 deaths resulted from ship strikes, five from entanglement,=20
nine were perinatal, and in 12 cases the cause of death could not be=20
determined (MMC, 2006). In assessments of large whale serious injuries=20
and deaths occurring in U.S. east coast, Gulf of Mexico, and Canadian=20
Maritime waters, Nelson et al. (2007) and Glass et al. (2008)=20
documented a minimum of an annual average rate of 1.8 right whales=20
deaths and serious injuries from 2001-

[[Page 60176]]

2005, and 2.4 from 2002-2006, respectively. In an eight-week period=20
from mid-November 2004 to mid-January 2005, four dead right whales were=20
found, including one that was killed by a ship and two others that had=20
wounds from previous ship collisions that may have contributed to their=20
deaths. All three whales hit by ships were adult females, two of them=20
carrying full-term fetuses; another adult female with a full-term fetus=20
was killed by a ship earlier in 2004. Thus, the majority of the deaths=20
were caused by human activities, and of these the majority were from=20
ship strikes. All evidence indicates that vessel collisions represent a=20
significant cause of mortality.
    As a result of low population size for North Atlantic right whales,=20
lack of observed population growth, and deaths from human activities,=20
NMFS determined in 2000, and each year since, that the North Atlantic=20
right whale population's ``Potential Biological Removal'' (PBR)--
defined by the MMPA as ``the maximum number of individuals, not=20
including natural mortalities, that may be removed from a marine mammal=20
stock while allowing that stock to reach or maintain its Optimum=20
Sustainable Population''--is zero. That is, under the MMPA, the=20
population can sustain no deaths or serious injuries due to human=20
causes if its recovery is to be assured.
    The species is listed as Endangered on the Endangered Species Act's=20
(ESA) List of Threatened and Endangered Wildlife and Plants, and as=20
Depleted under the MMPA. Thus, under these statutes, it is illegal to=20
strike a right whale with a ship.
    Nonetheless, there is a role for rigorous and effective measures to=20
minimize the risk of illegal takings of right whales resulting from=20
ship collisions and to promote efforts to conserve and recover the=20
population.
    Comment 2: Comments relating to vessel speed restrictions fell into=20
several categories: (A) Some indicated that it was not clear that speed=20
restrictions would reduce the threat of ship strikes to North Atlantic=20
right whales and indicated that NMFS's evidence and justification for=20
proposing vessel speed restrictions was not adequate; (B) some=20
indicated that a large vessel would lose adequate steerage at certain=20
minimum speeds (see ``Vessel maneuverability,'' below); (C) some=20
indicated that speed restrictions would result in an undue economic=20
burden to segments of the maritime industry (see ``Potential economic=20
impact'' below); and (D) some supported speed restrictions as an=20
important conservation measure and encouraged NMFS to require vessel=20
speed of 10 knots in regulated areas. Although NMFS requested specific=20
comments with regard to speed restrictions of 12 and 14 knots, few were=20
received. Some shipping companies or trade associations indicated they=20
preferred 14 knots over 10 knots as a way to reduce the economic burden=20
of a 10-knot speed restriction. NMFS also received comments indicating=20
that records of speeds of vessels involved in ship strikes are the same=20
speeds at which vessels normally travel, and that collision records=20
therefore are merely a reflection of speed that the population of=20
ocean-going vessels tend to travel. Some commenters expressed a belief=20
that fast moving vessels would emit more noise than vessels under speed=20
restrictions, thereby alerting whales in the path. Several commenters=20
suggested that the likelihood of a serious injury to a whale is a=20
function more of vessel mass, rather than vessel speed, and that a=20
large vessel hitting a whale at any speed could cause serious injury.
    Response: (A) Evidence and Justification: NMFS examined the best=20
available scientific information in determining that the use of speed=20
restrictions would be an effective means to reduce the likelihood and=20
severity of ship strikes, and has set the limit for the restrictions=20
based upon this evidence. Based on inventories of all known collisions=20
between ships and large whale species, including right whales (Knowlton=20
and Kraus, 2001; Laist et al., 2001; Jensen and Silber, 2003),=20
Vanderlaan and Taggart (2007) examined all records for which ship speed=20
at the time of impact was known. Based on their analysis, these authors=20
concluded that the probability of a collision causing a whale's death=20
increased rapidly and in a non-linear manner as vessel speed increased.=20
They found that between the speeds of 9 and 20 knots, the probability=20
of collision causing a whale's death rose from 20 to 100 percent,=20
respectively. The greatest increase occurred between the speeds of 10=20
and 14 knots. They determined that the probability of death occurring=20
from a collision was approximately 35-40 percent at 10 knots, 45-60=20
percent at 12 knots, and 60-80 percent at 14 knots (Vanderlaan and=20
Taggart, 2007). This analysis did not control for ship size. In an=20
independent analysis using 64 records of ship strikes in which vessel=20
speed was known, Pace and Silber (2005) tested speed as a predictor of=20
the probability of a whale death or serious injury. They found strong=20
evidence that the probability of death or serious injury increased=20
rapidly with increasing vessel speed. Specifically, the predicted=20
probability of serious injury or death increased from 45 percent to 75=20
percent as vessel speed increased from 10 to 14 knots, and exceeded 90=20
percent at 17 knots.
    In a compilation of ship strikes of all large whale species that=20
assessed ship speed as a factor in ship strikes, Laist et al. (2001)=20
concluded that a direct relationship existed between the occurrence of=20
a whale strike and the speed of the vessel. These authors indicated=20
that most deaths occurred when a vessel was traveling at speeds of 14=20
knots or greater and that, as speeds declined below 14 knots, whales=20
apparently had a greater opportunity to avoid oncoming vessels. Adding=20
to the Laist et al. (2001) study, Jensen and Silber (2003) compiled 292=20
records of known or probable ship strikes of all large whale species=20
from 1975 to 2002. Vessel speed at the time of the collision was=20
reported for 58 of those cases. Operating speeds of vessels that struck=20
various species of large whales ranged from 2-51 knots with an average=20
speed of 18.1 knots. A large majority (85.5 percent) of these strikes=20
occurred at vessel speeds of 10 knots or greater.
    With regard to right whales specifically, the speeds of vessels=20
were known with a high degree of certainty in two cases; in three other=20
cases possibly involving right whales vessel speeds are also known. A=20
juvenile right whale was killed on January 5, 1993, in waters off north=20
Florida by an 82-ft (24.9-m) vessel operating at 15 knots. In waters=20
off Cumberland Island, Georgia in March 2005, a 43-ft (13.1-m) vessel=20
struck a right whale and severely injured the animal by nearly=20
completely severing one lobe of its tail flukes. The boat was traveling=20
at 20 knots and based on the whale's poor condition when last seen in=20
summer 2005, it is presumed that the whale died. In winter 1972-73, a=20
bulbous bow container ship traveling at 21-23 knots east of Boston,=20
Massachusetts collided with and killed an unidentified whale thought=20
possibly to have been a right whale (Laist et al., 2001). A whale calf,=20
also possibly a right whale, was killed on July 6, 1991, off Delaware=20
Bay by a ship traveling at 22 knots.
    In November 2004, a Federal vessel traveling 21 knots outside the=20
mouth of the Chesapeake Bay reported hitting a whale. A severely=20
injured right whale in the area of the collision was reported a few=20
hours later and, although not linked definitively to the strike, a dead=20
adult right whale with massive injuries washed ashore in northern North=20
Carolina about a week later.

[[Page 60177]]

    Not all ship strikes are detected or documented. The right whale=20
records identified above are only those in which the species, vessel=20
speed, and fate of the animal were known. Records of vessel collisions=20
with large whales are numerous, involve a number of species, variety of=20
vessel types, and occur in various geographic locations (Jensen and=20
Silber, 2003; Van Waerebeek and Leaper, 2008). For example, Van=20
Waerebeek and Leaper (2008) recently identified 763 such records,=20
worldwide. As noted above, for North Atlantic right whales alone,=20
Nelson et al. (2007) determined that there were an average of 1.8 known=20
right whale ship strike deaths and serious injuries per year in U.S.=20
eastern seaboard, adjacent Canadian Maritimes, and Gulf of Mexico=20
waters between 1999 and 2005. Glass et al. (2008) documented an average=20
of 2.4 per year for the same waters in the years 2002 to 2006. In a=20
separate analysis, Vanderlaan and Taggart (2007) concluded that right=20
whales are far more vulnerable, per capita, to ship strikes than other=20
large whale species.
    Effects of vessel speed on collision risks also have been studied=20
using computer simulation models to assess hydrodynamic forces vessels=20
have on a large whale (Knowlton et al., 1995; Knowlton et al., 1998).=20
These studies found that, in certain instances, hydrodynamic forces=20
around a vessel can act to pull a whale toward a ship. These forces=20
increase with increasing speed and thus a whale's ability to avoid a=20
ship in close quarters may be reduced with increasing vessel speed.=20
Related studies by Clyne (1999) found that the number of simulated=20
strikes with passing ships decreased with increasing vessel speeds, but=20
that the number of strikes that occurred in the bow region increased=20
with increasing vessel speeds.
    In measuring the forces involved in whale/ship collisions using=20
whale and ship models in a tow tank, Slutsky (2007) determined that the=20
magnitude of forces exerted on the whale increased linearly as vessel=20
speed increased.
    In a modeling study using data from actual observed encounters of=20
right whales with vessels, Kite-Powell et al. (2007) determined that=20
more than half of right whales located in or swimming into the path of=20
an oncoming ship traveling at 15 knots or greater are likely to be=20
struck even if the whale takes evasive action. However, the strike risk=20
posed by a conventional ship moving 20 to 25 knots could be reduced by=20
30 percent by slowing to 12 or 13 knots, and by 40 percent at 10 knots,=20
due to the whales' increased ability to detect and avoid approaching=20
vessels.
    Campbell-Malone (2007) examined the bio-mechanical properties of=20
right whale mandibles as related to blunt force trauma inflicted by a=20
vessel. Citing Kite-Powell et al. (2007), Campbell-Malone (2007)=20
indicated that there are compound (both behavioral and force of impact)=20
benefits to implementing speed restrictions, and concluded that both=20
studies predict a reduction of right whale deaths as a result of vessel=20
speed limits in right whale habitat.
    With regard to the comment that whales are more likely to move away=20
from vessels traveling fast because they are emitting more noise than=20
slower ships, Nowacek et al. (2003) used a multi-sensor acoustic=20
recording tag to measure the responses of right whales to passing ships=20
and found that right whales showed little or no response to playback=20
sounds of approaching vessels or actual vessels, regardless of vessel=20
speed.
    With regard to comments that serious injury to a whale is a=20
function more of vessel mass, rather than vessel speed, and that a=20
large vessel hitting a whale at any speed could cause serious injury,=20
NMFS believes that the analysis conducted by Vanderlaan and Taggart=20
(2007) indicates that the force striking a whale is likely more a=20
function of vessel speed and mass of the whale, rather than vessel=20
mass. In an analysis of vessel mass versus vessel speed and the=20
likelihood and severity of injury to manatees, Calleson and Frohlich=20
(2007) concluded that vessel speed, not mass, was the most critical=20
factor. They calculated, for example, that a doubling of the speed of a=20
vessel would quadruple the amount of impact energy to the manatee,=20
while quadrupling the speed would increase the amount of energy by a=20
factor of 16.
    With regard to the comment that the records of vessel speeds at=20
which ship strikes occur are a reflection of the speeds vessels travel=20
generally, Pace and Silber (2005) compared the distribution of speeds=20
at which known ship strikes occurred with the distribution of speeds of=20
ships reporting into the Mandatory Ship Reporting systems, which they=20
considered representative of speeds that ships travel in general. The=20
authors found that these two distributions were significantly=20
different, suggesting that ship strikes involved vessels that were=20
traveling faster than vessels tended to travel overall.
    Finally, NMFS is not aware of any data or studies that would=20
contradict those cited above. No data, studies, or analyses were=20
provided in the public comments demonstrating either that high vessel=20
speeds would reduce the threat of ship collisions with right whales or=20
that slow speeds would not reduce the likelihood or severity of a=20
strike.
    Vessel speed restrictions have been used in efforts to protect=20
endangered marine species other than right whales. For example, such=20
restrictions have been used by the U.S. Fish and Wildlife Service to=20
reduce watercraft collisions with manatees. In an analysis of the=20
effectiveness of one such program, Laist and Shaw (2006) concluded that=20
manatee deaths were substantially reduced after slow speed restrictions=20
were imposed throughout a Florida waterway that had been one of the=20
deadliest areas in the state for watercraft related manatee deaths.=20
Whereas watercraft-related manatee deaths had averaged 2.34 per year in=20
the 42 months before the measures went into effect in June 2002, they=20
were reduced to 0.29 per year in the 42 months after they went into=20
effect.
    Vessel speed restrictions have also been established to protect=20
other endangered large whale species. The National Park Service adopted=20
regulations implementing a 13-knot speed limit for vessels in Glacier=20
Bay National Park and Monument, Alaska, to reduce the likelihood of=20
hitting humpback whales (National Park Service, 2003). Analyses of its=20
effectiveness are not yet available. However, owners of a cruise ship=20
that killed a humpback whale in Glacier Bay while exceeding the speed=20
limit agreed to pay a substantial fine for exceeding the speed limit=20
there.
    In an experiment to determine the effects of vessel speed and the=20
incidence of collisions involving marine turtles, Hazel et al. (2007)=20
determined that vessel speed was a significant factor in the likelihood=20
of a strike and concluded that mandatory vessel speed restrictions were=20
necessary to reduce the risk of strikes to sea turtles.
    As a result of a number of ship strike deaths of blue whales in=20
waters off southern California, vessel speed advisories of 10 knots or=20
less were provided by the USCG, in collaboration with NMFS and the=20
Channel Islands National Marine Sanctuary, within 20 nm of the=20
entrances to the ports of Los Angeles and Long Beach.
    Elsewhere, Panigada et al. (2006) concluded that vessel speed=20
restrictions and the re-location of vessel routes in high cetacean=20
density areas would reduce the likelihood of ship strikes of fin whales=20
in the Mediterranean Sea.
    Based on the analysis indicating the conservation value of reduced=20
vessel speeds and after considering concerns and information submitted=20
in response to the ANPR and NPRM, NMFS has

[[Page 60178]]

determined that a 10-knot speed restriction would significantly reduce=20
the risk of serious or lethal collisions for right whales in areas=20
where such speed restrictions would apply, also reducing potential=20
economic hardship on the maritime industry. Therefore, NMFS has=20
concluded, based on the best available scientific evidence, that a=20
maximum speed of 10 knots, as measured as ``speed over ground'', in=20
times and locations specified below, is the most effective and=20
practical approach to reducing the threat of ship strikes to right=20
whales. Ten knots therefore is the speed required by these regulations.
    (B) A number of comments were received indicating that large=20
vessels lose steerage at low speeds, and that navigational safety was=20
at risk at speeds of 10 knots or less in adverse wind or sea conditions=20
and given the characteristics of the vessel. Comments from pilots=20
indicated that adequate maneuverability was particularly important when=20
negotiating a port entrance or channel.
    Response: NMFS believes that, based on conversations with mariners=20
and application of speed restrictions in other contexts, except in=20
severe conditions, most ocean-going vessels maintain adequate steerage=20
at speeds of 10 knots or less. For example, NMFS points out that, as a=20
result of consultations under the Endangered Species Act and the=20
National Marine Sanctuaries Act, the Maritime Administration (MARAD)=20
now requires, as a condition of a Federal Deepwater Port license, that=20
carriers of liquefied natural gas (LNG) traveling to deepwater ports=20
off Boston proceed at speeds of 10 knots or less when right whales are=20
detected in the area (NMFS, 2007a; NMFS, 2007b). Thus an important=20
segment of the maritime industry has agreed to abide by a 10-knot speed=20
restriction to protect endangered marine mammals, and navigational=20
safety with regard to maneuverability at that speed was not raised as=20
an issue during those consultations.
    The USCG also has established similar speed limits in some river=20
and port entrances ranging from 5-10 knots, for purposes other than=20
wildlife conservation, primarily to enhance national security (e.g., 66=20
FR 53712; 67 FR 41337; 68 FR 2201). For example, in one rule (66 FR=20
53712) the USCG required vessels 300 gross tons or greater to travel at=20
eight knots or less near Naval Station Norfolk. Based on comments that=20
speeds of eight knots might adversely affect large vessel=20
maneuverability, the USCG increased the limit to 10 knots (68 FR=20
35173).
    In another example, the ports of Los Angeles and Long Beach, two of=20
the largest ports in the country, ask that vessels voluntarily reduce=20
speed to 12 knots within 20 nm (37 km) of the bay to reduce particulate=20
matter emissions. Those ports are considering tariff-based incentives=20
and have developed a plan to make the speed reductions mandatory. Also,=20
in many locations, state pilots require that vessels approaching ports=20
slow to speeds of 5 to 10 knots to allow port pilots to embark and=20
disembark vessels. Finally, in June 2007, the Government of the Hong=20
Kong Special Administrative Region implemented vessel speed=20
restrictions of 5 knots, applying to all vessels, in numerous ports and=20
port entrances throughout most of Hong Kong harbor and neighboring=20
waters to enhance navigational and human safety (Hong Kong Special=20
Administrative Region, 2007). NMFS is not aware of reports of increased=20
hazard or vessels losing maneuverability at the speeds at the locations=20
and regions identified above.
    Further, NMFS is not aware of reports of increased hazard or loss=20
of vessel maneuverability in any of the cases indicated above (i.e.,=20
the waters of southern California, LNG carriers in waters off New=20
England, Hong Kong harbor, or Glacier Bay, Alaska) in which mandatory=20
or voluntary vessel speed limits were imposed.
    Nevertheless, NMFS is concerned about human and navigational=20
safety, especially when severe conditions exist. Therefore, in response=20
to comments, NMFS is establishing the following exception to speed=20
restrictions being established in this rule: A vessel may operate at a=20
speed necessary to maintain safe maneuvering instead of the required=20
ten knots only if justified because the vessel is in an area where=20
oceanographic, hydrographic and/or meteorological conditions severely=20
restrict the maneuverability of the vessel and the need to operate at=20
such speed is confirmed by the pilot on board or, when a vessel is not=20
carrying a pilot, the master of the vessel. If a deviation from the=20
ten-knot speed limit is necessary, the reasons for the deviation, the=20
speed at which the vessel is operated, the area, and the time and=20
duration of such deviation shall be entered into the logbook of the=20
vessel. The master of the vessel shall attest to the accuracy of the=20
logbook entry by signing and dating it.
    (C) A number of comments were received regarding the potential=20
economic impacts to commercial vessel operators arising from the=20
proposed regulations.
    Response: Economic impacts are addressed in the Final Environmental=20
Impact Statement, Regulatory Impact Review, and Regulatory Flexibility=20
Act analysis, below.
    (D) NMFS received a number of comments on the timing and boundaries=20
of the seasonal management areas (SMAs). Many were supportive of the=20
sizes and dates of the areas as being appropriately protective of right=20
whales. Some provided specific recommendations about modifying (either=20
enlarging or diminishing) the size of the areas or length of time in=20
which the restrictions applied. Some comments questioned NMFS's=20
decision to use the upper boundary of the radii around key mid-Atlantic=20
ports described in the ANPR (the ANPR suggested a range of 25-30 nm=20
(46.3-55.6 km); the NPRM proposed 30 nm (55.6 km)). Some comments dealt=20
with economic impact of SMAs, contending that sufficient right whale=20
sighting data were lacking or economic impacts were too great.
    Response: Economic impacts resulting from modifications contained=20
in this final rule relative to the proposed rule are described in the=20
Regulatory Flexibility Act analysis, below. With regard to comments=20
specific to the times and boundaries of SMAs, NMFS provides responses=20
here.
    In its NPRM, NMFS proposed to require vessel speed restrictions in=20
certain times and areas along the U.S. eastern seaboard. NMFS divided=20
waters off the east coast into three regions: Southeast U.S. coast=20
(south of St. Augustine, Florida to north of Brunswick, Georgia), U.S.=20
mid-Atlantic coast (generally, from slightly north of Brunswick,=20
Georgia to, and including, Rhode Island), and northeast U.S. coast=20
(north of Rhode Island), based on differences in right whale=20
distribution and behavior, oceanographic conditions, and ship traffic=20
patterns. The timing, duration, and geographic extent of the speed=20
restrictions were tightly constricted to reflect right whale movement,=20
distribution, and aggregation patterns to minimize potential impacts to=20
ship operations.
    In light of the comments received, NMFS reviewed data on the timing=20
and locations of right whale occurrence. An analysis of sightings data=20
from 1972 through 2000 from the South Carolina/Georgia border to=20
Connecticut (n =3D 290) indicated that approximately 83 percent of all=20
right whale sightings occurred within 20 nm (37 km) of the coast, and=20
approximately 90 percent of all right whale sightings occurred within=20
30 nm (55.6 km) of the coast.
    After weighing the proposed speed limit areas relative to the=20
economic impacts on elements of the shipping

[[Page 60179]]

industry, NMFS has made a number of changes to the locations of the=20
SMAs relative to the proposed rule, which are described below. However,=20
following the issuance of these regulations, NMFS will continue to=20
monitor right whale sighting locations relative to these boundaries and=20
may modify them, as appropriate, if changes are warranted based on=20
shifts in right whale occurrence or additional analysis.
    (1) Southeast United States (SEUS) Operational Measure: In=20
considering the comments and in reviewing sighting data regarding the=20
key calving/nursery area in waters off Georgia and Florida, NMFS has=20
decided not to modify the dates nor the boundaries in which the vessel=20
speed restrictions apply. Therefore, speed restrictions of 10 knots or=20
less, over ground, will apply from November 15 to April 15 each year in=20
an area bounded by the following: Beginning at 31[deg]27'00.0'' N-
080[deg]51'36.0'' W; thence west to charted mean high water line then=20
south along charted mean high water line and inshore limits of COLREGS=20
limit to a latitude of 29[deg]45'00.0'' N; thence east to=20
29[deg]45'00.0'' N-080[deg]51'36.0'' W; thence back to starting point=20
(Fig. 1).
    (2) Mid-Atlantic Region of the U.S. (MAUS) Operational Measure:=20
This area is used by right whales, particularly pregnant females and=20
females with calves, migrating to and from calving/nursery areas in the=20
SEUS and feeding grounds off the northeastern U.S. coast and Canada. In=20
the NPRM, NMFS proposed vessel speed restrictions within half-circles=20
seaward of seven key ports or port entrances.
    Commenters contended that the economic impact of the SMAs was too=20
great without a concurrent and equal conservation benefit. NMFS has=20
reviewed right whale sighting data and, as a result, has decided not to=20
change the seasonality and duration of when measures apply in this=20
region. Therefore, vessel speed restrictions of 10 knots or less, over=20
ground, will apply November 1 through April 30 each year.
    Based on comments and a review of sighting data, which includes=20
recurring right whale sightings between these ports, NMFS has decided=20
to modify the size and boundaries of the SMAs in the MAUS. NMFS makes=20
this change to reduce the economic burden on regulated entities while=20
maintaining the majority of the conservation benefits of the SMA. The=20
southern portion of the MAUS is modified to include a continuous SMA=20
extending 20 nm (37 km) from shore (rather than 30 nm (55.6 km) half-
circles) from Wilmington, North Carolina, south toward Brunswick,=20
Georgia (Fig. 2). Two stretches along the South Carolina coastline will=20
now be included in a continuous SMA. With the new 20-nm restriction=20
zones in the MAUS, the weighted average coast-wide time burden per=20
vessel arrival would be 53 minutes compared to 73 minutes in the=20
proposed rule with the 30-nm zones. By changing the speed restriction=20
zones in the MAUS, the transit times through the 20-nm speed=20
restriction zones dropped by 18 to 28 minutes (weighted average,=20
depending on port) relative to the 30-nm restriction zones. Therefore,=20
a 10-knot over-ground speed restriction will apply from November 1=20
through April 30 each year in the area bounded by the following:=20
33[deg]56'42.0'' N-077[deg]31'30.0'' W; thence along a NW bearing of=20
313.26[deg] True to charted mean high water line then south along mean=20
high water line and inshore limits of COLREGS limit to a latitude of=20
31[deg]27'00.0'' N; thence east to 31[deg]27'00.0'' N-080[deg]51'36.0''=20
W; thence to 31[deg]50'00.0'' N-080[deg]33'12.0'' W; thence to=20
32[deg]59'06.0'' N-078[deg]50'18.0'' W; thence to 33[deg]28'24.0'' N-
078[deg]32'30.0'' W; thence to 33[deg]36'30.0'' N-077[deg]47'06.0'' W;=20
thence back to starting point.
    As to the remainder of the SMAs in this region, the ten-knot speed=20
restrictions will be in effect around each of the port or bay entrances=20
identified below and the designated area around Block Island Sound. The=20
areas are defined as the waters within a 20-nm (37-km) area (rather=20
than the proposed 30-nm (55.6-km)) with an epicenter located at the=20
midpoint of the COLREG demarcation line crossing the entry into the=20
following designated ports or bays (Fig. 2):
    (A) Ports of New York/New Jersey: 40[deg]29'42.2'' N-
073[deg]55'57.6'' W;
    (B) Delaware Bay (Ports of Philadelphia and Wilmington):=20
38[deg]52'27.4'' N-075[deg]01'32.1'' W;
    (C) Entrance to the Chesapeake Bay (Ports of Hampton Roads and=20
Baltimore): 37[deg]00'36.9'' N-075[deg]57'50.5'' W; and
    (D) Ports of Morehead City and Beaufort, NC: 34[deg]41'32.0'' N-
076[deg]40'08.3'' W; and
    At Block Island Sound, in the area bounded by the following=20
coordinates: Beginning at 40[deg]51'53.7'' N-70[deg]36'44.9'' W; thence=20
to 41[deg]20'14.1'' N-70[deg]49'44.1'' W; thence to 41[deg]04'16.7'' N-
71[deg]51'21.0'' W; thence to 40[deg]35'56.5'' N-71[deg]38'25.1'' W;=20
thence back to starting point (Fig. 2).
    (3) Northeast United States (NEUS): Waters off New England, the=20
NEUS (defined here as north of Rhode Island), are important foraging=20
and socializing areas for right whales. Whales occupy and forage in=20
four distinct areas: Cape Cod Bay; the area off Race Point (at the=20
northern end of Cape Cod); the Great South Channel (extending south and=20
east of Cape Cod); and the northern Gulf of Maine.
    NMFS received comments about the duration and boundaries of=20
seasonally managed areas in this region. In considering the comments=20
and reviewing sighting data in this area, NMFS has decided not to alter=20
the boundaries and times identified in the proposed rule. Therefore,=20
restrictions will apply as follows.
    (a) Cape Cod Bay Operational Measures: Vessel speed restrictions=20
will apply from January 1 to May 15 each year throughout all of Cape=20
Cod Bay, in an area beginning at 42[deg]04'56.5'' N-070[deg]12'00.0''=20
W; thence north to 42[deg]12'00.0'' N-070[deg]12'00.0'' W; thence due=20
west to charted mean high water line; thence along charted mean high=20
water within Cape Cod Bay back to beginning point. (Fig. 3).
    (b) Off Race Point: In the area defined as ``Off Race Point'',=20
vessel speed restrictions will be in effect from March 1 to April 30=20
each year in a box approximately 50 nm (92.6 km) by 50 nm (92.6 km) to=20
the north and east of Cape Cod, MA (Fig. 3). The area consists of all=20
waters bounded by straight lines connecting the following points in the=20
order stated (Fig. 3): 42[deg]30'00.0'' N-069[deg]45'00.0'' W; thence=20
to 42[deg]30'00.0'' N-070[deg]30'00.0'' W; thence to 42[deg]12'00.0''=20
N-070[deg]30'00.0'' W; thence to 42[deg]12'00.0'' N-070[deg]12'00.0''=20
W; thence to 42[deg]04'56.5'' N-070[deg]12'00.0'' W; thence along=20
charted mean high water line and inshore limits of COLREGS limit to a=20
latitude of 41[deg]40'00.0'' N; thence due east to 41[deg]41'00.0'' N-
069[deg]45'00.0'' W; thence back to starting point.
    (c) Great South Channel: In this area, vessel speed restrictions=20
will apply from April 1 to July 31 (Fig. 3). The area consists of all=20
waters bounded by straight lines connecting the following points in the=20
order stated:

42[deg]30'00.0'' N-069[deg]45'00.0'' W
41[deg]40'00.0'' N-069[deg]45'00.0'' W
41[deg]00'00.0'' N-069[deg]05'00.0'' W
42[deg]09'00.0'' N-067[deg]08'24.0'' W
42[deg]30'00.0'' N-067[deg]27'00.0'' W
42[deg]30'00.0'' N-069[deg]45'00.0'' W

    Comment 3: NMFS received a number of comments about the use of=20
dynamically managed areas to reduce ship strikes. Most comments and=20
questions were related to NMFS' ability to quickly establish the areas;=20
dedication of resources to adequately survey and verify whale=20
locations; the size, duration, and criteria used to trigger such an=20
event; and economic impact resulting from the use of this measure.

[[Page 60180]]

    Response: Designating Dynamic Management Areas (DMA) is a process=20
of restricting activities in areas where right whales occur outside the=20
SEUS, MAUS, and NEUS areas described above, or both within and outside=20
these areas when the seasonal management measures are not in effect.=20
NMFS continues to believe that dynamic management is a useful tool in=20
reducing ship strikes. Except for areas where right whales predictably=20
and consistently occur, based on sighting records, they can occur at=20
certain times and locations that are not predictable when, for example,=20
food resources are present. Outside certain predictable areas, right=20
whale prey concentrations can be ephemeral; their occurrence is=20
dictated by a confluence of oceanographic conditions that may vary=20
annually. As a result, right whale aggregations may occur outside the=20
specific NEUS, MAUS, and SEUS areas and times described above. NMFS=20
reiterates that, as complementary tools, the use of dynamically managed=20
areas allows for substantially smaller (in area) and shorter (in=20
duration) seasonal management measures. Moreover, the ability to=20
establish DMAs also addresses a comment NMFS has consistently received,=20
which is that the management measures should be tied directly to the=20
known presence of right whales. Thus, using DMAs helps accomplish the=20
conservation objective of protecting the whales while minimizing the=20
burden on industry that would be created by larger and longer SMAs.
    Therefore, NMFS will establish a DMA by surveying right whale=20
habitat and, when a specific aggregation is sighted, NMFS will create a=20
temporary zone (i.e., DMA) around the aggregation where the speed limit=20
will apply. Mariner action will be voluntary. That is, mariners will be=20
expected but not required to either avoid the area or travel through it=20
at 10 knots or less. The zone will be in effect for 15 days and=20
automatically expire at the end of that period. The period may be=20
extended for an additional 15 days if whales are re-sighted in the same=20
area.
    In addition, NMFS has decided to modify, relative to that described=20
in the NPRM, the criteria for triggering a DMA. Therefore, designation=20
of such an area will be established using the criteria and procedures=20
identified below.
    (a) A circle with a radius of at least 3 nm (5.6 km) will be drawn=20
around each observed group. This radius would be adjusted for the=20
number of right whales seen in the group such that the density of 4=20
right whales per 100 nm² (185.3 km²) is=20
maintained. The length of the radius would be determined by taking the=20
inverse of the 4 right whales per 100 nm² (185.3=20
km²) density, which is 24 nm² (44.5=20
km²) per whale. That figure is equivalent to a radial=20
distance of 2.77 nm (5.13 km) rounded up to 3 nm (5.6 km) for a single=20
right whale sighted (3.91 nm (7.25 km) rounded up to 4 nm (7.41 km) for=20
two whales, 4.79 nm (8.88 km) rounded up to 5 nm (9.27 km) for three=20
whales, etc.).
    (b) If any circle or group of contiguous circles includes 3 or more=20
right whales, this core area and its surrounding waters will be a=20
candidate temporary zone. After NMFS identifies a core area containing=20
3 or more right whales, as described here, it will expand this initial=20
core area to provide a buffer area in which the right whales could move=20
and still be protected.
    NMFS will determine the extent of the DMA zone by:
    (a) Establishing a 15-nm (27.8-km) radius from the sighting=20
location used to draw a larger circular zone around each core area=20
encompassing a concentration of right whales. The sighting location is=20
the geographic center of all sightings on the first day of an event;=20
and
    (b) Identifying latitude and longitude lines drawn outside but=20
tangential to the circular buffer zone(s).
    NMFS will issue announcements of DMAs to mariners via its customary=20
maritime communication media (e.g., NOAA Weather radio, web sites, e-
mail and fax distribution lists) and any other available media outlets.=20
Information on the possibility of establishment of such zones will be=20
provided to mariners through written media such as U.S. Coast Pilots=20
and Notice to Mariners including, in particular, information on the=20
media mariners should monitor for notification of the establishment of=20
a DMA.
    NMFS will monitor voluntary compliance with designated DMAs. If=20
adherence is not satisfactory, NMFS will consider making them=20
mandatory, through a subsequent rulemaking.
    Comment 4: NMFS received comments about the vessel length to which=20
the vessel speed restrictions apply. Among them, commenters suggested=20
the minimum vessel size limit be increased to lengths ranging from 85=20
ft (25.9 m) to over 262 ft (79.9 m) to exclude certain ferries and=20
fishing and whale watching vessels. Other commenters suggested the=20
minimum size for restrictions be lowered to include vessels greater=20
than 40 ft (12.2 m) inasmuch as one known right whale ship strike=20
involved a 43-ft (13.1-m) vessel.
    Response: In considering the comments and reviewing records of=20
right whale and all large whale ship strikes, NMFS has determined that,=20
for the purposes of this rulemaking, the appropriate vessel size is 65=20
ft (19.8 m) and greater. NMFS points out that 65 ft (19.8 m) is a size=20
threshold recognized in the maritime community and commonly used in=20
maritime regulations to distinguish between motorboats and larger=20
vessels; the latter are subject to regulatory requirements (e.g.,=20
Automatic Identification System (AIS) requirements; International=20
Navigational Rules Act, Rules of the Road sections). NMFS decided not=20
to increase the minimum size above 65 ft (19.8 m) or exempt certain=20
sectors of the maritime industry.
    With regard to lowering the threshold, given the known vessel=20
strike of a right whale by a 43-ft (13.1-m) vessel, NMFS agrees that=20
vessels less than 65 ft (19.8 m) may pose a threat to right whales.=20
Thus, it will continue to consider means, including future rulemaking,=20
to address vessel classes below 65 ft (19.8 m). Additionally, in=20
collaboration with other organizations, NMFS will continue to engage in=20
education and outreach programs regarding right whale vulnerability to=20
ship strikes specific to the recreational, fishing, and other coastal=20
maritime activities that involve vessels less than 65 ft (19.8 m).
    Therefore, the restrictions described herein apply to all vessels=20
greater than or equal to 65 ft (19.8 m) in overall length and subject=20
to the jurisdiction of the United States, and all other vessels greater=20
than or equal to 65 ft (19.8 m) in overall length entering or departing=20
a port or place subject to the jurisdiction of the United States.=20
However, these restrictions shall not apply to U.S. vessels owned or=20
operated by, or under contract to, the Federal Government (see below).=20
In addition, these restrictions do not apply to law enforcement vessels=20
of a State, or political subdivision thereof, when engaged in law=20
enforcement or search and rescue duties.
    Comment 5: NMFS received a number of comments about exempting=20
vessels operated by U.S. Federal agencies from required speed=20
restrictions. Most indicated that Federal vessels should be subject to=20
the same restrictions as commercial vessels. One State agency also=20
recommended that State enforcement vessels, when engaged in enforcement=20
and human safety missions, should be exempted.
    Response: NMFS, in consultation with other Federal agencies, has=20
determined that the national security, navigational, and human safety=20
missions of some agencies may be compromised by mandatory vessel speed=20
restrictions. However, this exemption will not relieve Federal

[[Page 60181]]

agencies of their obligations to consult, under section 7 of the ESA,=20
on how their activities may affect listed species. NMFS acknowledges=20
that a number of agencies already provide guidance to vessel operators=20
and fleets with regard to conservation measures to protect right whales=20
and other endangered species, as well as contribute to conservation=20
efforts generally.
    NMFS will work with other Federal agencies regarding their vessel=20
operations to determine where ESA section 7 consultations would be=20
appropriate. Therefore, while these restrictions are not mandatory for=20
vessels owned or operated by, or under contract to, U.S. Federal=20
agencies, NMFS has requested all Federal agencies to voluntarily=20
observe the conditions of the proposed regulations when and where their=20
missions are not compromised. Therefore, these restrictions do not=20
apply to vessels owned or operated by, or under contract to, U.S.=20
Federal agencies. This exemption extends to foreign sovereign vessels=20
when they are engaging in joint exercises with the U.S. Department of=20
the Navy. In addition, and as noted above, NMFS has decided to exempt=20
State enforcement vessels when they are engaged in enforcement or human=20
safety missions.
    Comment 6: A number of comments pertained to the use of existing or=20
developing technologies to address the threat of ship strikes by=20
detecting right whales and allowing mariners to avoid whales or=20
otherwise take appropriate ``evasive action''. Several commenters=20
indicated that if information was provided about where whales were=20
occurring, mariners would take evasive action. For example, one=20
commenter stated, ``We encourage the evaluation of an expansion of=20
technology that would provide a more effective method of spotting=20
whales in our coastal waters and then advise the shipping interest in=20
the area.'' Several others indicated that if funding had been put to=20
this problem years ago, a solution would have been found, tested, and=20
applied.
    Response: The use of technological solutions to minimize or=20
eliminate a problem such as the threat of ship strikes to whales is the=20
most desirable approach. Employing an innovation or technology that can=20
truly mitigate a problem is preferable and should be pursued. NMFS is=20
committed to exploring and testing such technologies, and has provided=20
substantial funding for research and development of technological=20
solutions (for projects undertaken, see Right Whale Competitive Grants=20
program at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=3DleavingF=
R.html&log=3Dlinklog&to=3Dhttp://www.nefsc.noaa.gov/psb/grantform=
s/). However, any=20
technological solution must be: (a) Proven as being directly effective=20
in reducing the threat, and (b) environmentally benign (i.e., not=20
adversely affecting right whales, other organisms or their habitats).=20
At this time, NMFS is not aware of a technology that exists, or will be=20
imminently available, that satisfies both these criteria. Therefore,=20
NMFS believes that existing technologies are not currently capable of=20
solving the problem or meeting the objectives of directly minimizing or=20
eliminating the threat. A review of present and historic use of, or=20
experimentation with, a wide variety of technologies applied to this=20
issue can be found in ``Technological alternatives to the problem of=20
North Atlantic right whale ship strikes,'' posted at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=3D=
leavingFR.html&log=3Dlinklog&to=3Dhttp://www.nmfs.noaa.gov/pr/shi=
pstrike/archive.htm. The paper discusses=20
technologies that include, but are not limited to, the use of=20
underwater SONAR, thermal imaging devices, light detection and ranging=20
(LIDAR), passive listening devices, and night vision optics.
    Nearly all technologies considered fall into two general=20
categories: (a) Detecting whales, and (b) alarm devices to frighten=20
whales away from an area or in front of a ship. Means to increase the=20
probability of determining the occurrence and location of whales=20
include, but are not limited to, aircraft (visual) surveys, acoustic=20
listening devices (i.e., ``passive acoustics''), satellite tagging,=20
enhanced low-light optics, and posting trained lookouts. However, each=20
method has constraints and none can reliably identify the location of=20
all whales.
    Certain SONAR devices have been developed or existing ones enhanced=20
and tested to locate whales. However, these devices are limited by: (1)=20
Detection ranges that are inadequate to provide mariners sufficient=20
time to react; (2) resolution inadequate to differentiate objects such=20
as whales from other objects in the water column (i.e., false=20
positives); and (3) the potential environmental or ecological impacts=20
that will accrue from the sound generated by such devices. The ability=20
of posted lookouts and enhanced low-light optical devices to detect=20
whales is limited by the difficulty of: (1) Observing animals in low/no=20
light conditions (e.g., night); (2) observing animals in sea states=20
greater than Beaufort 3-4; and (3) observing whales beneath the surface=20
(where they spend most of their time). Right whales rarely break the=20
surface and their backs are black or dark grey, making them difficult=20
to spot even under ideal conditions.
    Satellite tagging technology of whales has made significant=20
advances in recent years, but it faces the perennial challenges of tag=20
attachment and longevity. In some large whale species, tags have been=20
affixed and (in some cases) have remained functional for days or weeks,=20
and useful tracks have been obtained (e.g., see Mate et al., 1997).=20
However, satellite tracking has been tried on North Atlantic right=20
whales with mixed success. The longest track was for 42 days. In all=20
other cases, the tag remained active for only hours or a few days. It=20
is believed that the tag antennae were rubbed off by the whales during=20
socialization or on the sea floor. Finding and tagging all whales would=20
be a colossal effort, and given that most animals are seen no more than=20
once a year, it is virtually impossible that all animals could be=20
tagged. Even if a tag could be designed that would stay on and not=20
malfunction, and if all whales could be tagged, battery life of the tag=20
would not ensure its perpetual operation. Therefore, NMFS would need to=20
re-tag all animals periodically (after the batteries run out). Finally,=20
tagging and the tag itself have attendant health issues for the whales.=20
Some tags have resulted in significant infections at the insertion=20
site. Thus, given the limitations described here, telemetry may remain=20
a useful tool for monitoring the movements of individual animals, but=20
cannot provide a means for real time management of whale-vessel=20
interactions.
    Although all current detection technologies are limited, passive=20
acoustic technologies are a promising and maybe relatively cost-
effective means of improving detection. For this reason, NMFS is=20
collaborating with others to develop, test, and deploy listening=20
devices in areas that are critical or frequently used by right whales.=20
However, these devices are only effective (i.e., detection is only=20
possible) when whales are vocalizing. Such a system will not detect all=20
whales present, and it is not usually possible to determine the number=20
of whales or their exact location without visual verification.=20
Nonetheless, these programs make it possible to identify the presence=20
of (vocalizing) whales and this information can be passed to mariners.
    However, in all cases involving possible technological solutions,=20
knowledge of right whale locations is only part of the equation. A=20
mariner must still take ``evasive action''. In addition, responding to=20
whales may put undue burden on responsible mariners who alter course or=20
speed when others do not, thus affecting navigational

[[Page 60182]]

safety. Whereas NMFS appreciates that all mariners are interested in=20
avoiding whales, merely providing right whale locations is not adequate=20
without specific expectations of appropriate action to take.
    This point is exemplified by actions NMFS has taken in U.S. waters.=20
For years (since 1993 in waters off the U.S. southeast coast; and since=20
1997 in waters off New England), NMFS has conducted aircraft surveys=20
for right whales and provided sighting information to mariners.=20
Sightings are provided through various means to inbound and outbound=20
shipping traffic. In addition, NOAA began providing ship speed=20
advisories in 2005 in areas and at times where right whales occur,=20
particularly when right whales are known to be present. Even given=20
these efforts to guide mariners regarding avoiding a known right whale=20
sighting location, it is not always clear if a mariner will respond,=20
and if so, what that action might be (e.g., slow down, change course).=20
A study of mariner compliance with NMFS-issued speed advisories in the=20
Great South Channel found that 95 percent of ships tracked (38 out of=20
40) did not slow down or route around areas in which right whale=20
sightings locations and speed advisories were provided (Moller et al.,=20
2005). Whether this was due to mariners disregarding the alerts or=20
their ignorance that the alert existed is not known. In a related=20
study, Wiley et al. (2008) found that commercial whale watch vessel=20
operators exhibited high non-compliance rates even when aware of vessel=20
speed zones around whales. Therefore, even when whale locations are=20
detected and provided, it is not clear how mariners will respond if at=20
all, a situation not remedied by improved detection technologies.
    With regard to alarm devices, no evidence exists that large whale=20
species would, in fact, respond to such a sound signal by moving away.=20
Acoustic deterrent or harassment devices have been used in certain=20
situations to warn small cetaceans and pinnipeds away from commercial=20
fishing gear and aquaculture operations by emitting loud sound pulses.=20
Their use has received mixed success because some marine mammals grow=20
accustomed to the stimuli (see Reeves et al., 1996). In the only study=20
of alarm sound playback experiments involving right whales, Nowacek et=20
al. (2003) found that right whales exposed to the alarm sounds=20
immediately rose to the surface and remained motionless, where they are=20
more vulnerable to being struck. Furthermore, chronic exposure to alarm=20
or alerting stimuli may result in whales and other marine species=20
abandoning a desired feeding or mating area that could result in=20
significant adverse effects on the population. Therefore, given its=20
mandate to protect and recover endangered marine species, even if such=20
alarm devices were found to be effective, NMFS is not likely to approve=20
a technique that repeatedly or chronically causes an endangered and=20
highly depleted population to disperse from a critical habitat or=20
preferred feeding area.
    Therefore, although NMFS is committed to identifying and developing=20
technological advances proven effective in reducing ship strikes, none=20
exist at this time. As a result, absent specific and reliable=20
technological fixes, NMFS is taking steps to reduce the threat of ship=20
strikes by modifying specific vessel operations in times and locations=20
in which right whales are known or assumed to be present. Though no=20
proven technology to effectively manage the risk to right whales=20
currently exists, NMFS will complete a technology review in 2009, and=20
at appropriate times thereafter, to assess technology-based systems=20
that might be available to reduce the risk of ship strikes to right=20
whales. As part of these reviews, NMFS may engage the maritime industry=20
and the scientific community to research progress in developing=20
technological, efficient, and effective methods to address the threat=20
of ship strikes. NMFS will document any findings and may prepare a=20
draft report for public comment. Should NOAA find a technology that can=20
reduce the risk of ship strike mortalities, NMFS may consider taking=20
appropriate steps to allow the use of such technologies. Further, NMFS=20
will also consider rulemaking to allow the use of such technologies in=20
lieu of compliance with this rule if the technology could be used in a=20
manner that is at least as protective of right whales as this rule.
    Comment 7: NMFS received comments about assessing the effectiveness=20
of the regulations, whether and if they would be lifted or relaxed if=20
they are successful in reducing or eliminating the threat, and whether=20
NMFS had flexibility in these management measures.
    Response: NMFS will monitor compliance with the regulations and=20
take steps to ensure mariners adhere to the regulations. The goal is to=20
reduce or eliminate the threat of ship strikes--the primary source of=20
mortality in the endangered population. NMFS expects to use right whale=20
serious injury and deaths definitively attributed to vessel collisions,=20
and ship strike-related scarring rates to assess the effectiveness of=20
these regulations. Because right whale strandings are rare occurrences=20
and our ability to determine causes of death is limited, determining=20
the effectiveness of protective measures to a high level of statistical=20
significance is difficult and takes many years of data collection.=20
Based on available data, NMFS will consider adjusting the regulations.=20
Such actions would be taken through additional rulemaking. Measures=20
that NMFS could consider may involve vessel size, vessel routing (e.g.,=20
making recommended routes mandatory), vessel speed, making dynamically=20
managed areas mandatory, and the size and duration of the areas where=20
the restrictions apply.
    Comment 8: One comment raised the question of whether the United=20
States can establish speed restrictions in the Exclusive Economic Zone;=20
another questioned whether the United States has the authority to=20
enforce speed limits in international waters.
    Response: NOAA is issuing these regulations pursuant to its=20
rulemaking authority under MMPA section 112(a) (16 U.S.C. 1382(a)), and=20
ESA section 11(f) (16 U.S.C. 1540(f)). These regulations also are=20
consistent with the purpose of the ESA ``to provide a program for the=20
conservation of [...] endangered species'' and ``the policy of Congress=20
that all Federal departments and agencies shall seek to conserve=20
endangered species [...] and shall utilize their authorities in=20
furtherance of the purposes of [the ESA].'' 16 U.S.C. 1531(b),(c). Some=20
provisions of these regulations differ from the ANPR and NPRM based on=20
comments received and additional analysis by NMFS.
    The United States may impose the speed restriction set forth in=20
these regulations, consistent with international law. The international=20
law basis for such restriction is port State authority and the rule=20
applies to ships entering or departing U.S. ports. The United States=20
has always considered that a State has extensive authority to regulate=20
ships entering or departing its ports. As a legal matter, the United=20
States has neither limited this authority geographically nor by the=20
type of legitimate interest being protected. Customary international=20
law recognizes the interest of States in protection of its living=20
marine resources, including rare and endangered species.
    A port State may establish conditions of port entry to ships both=20
inbound to and outbound from its ports. The interests a port State is=20
seeking to protect by the establishment of conditions of port entry=20
remain the same in most cases --including with regard to the protection=20
of right whales

[[Page 60183]]

from ship strikes--regardless of whether a ship is inbound or outbound;=20
thus, the restrictions imposed to protect this interest are critical on=20
both portions of a ship's voyage. The exercise of such authority is=20
consistent with United Nations Convention on the Law of the Sea=20
Articles 27(2) and 28(3), as well as State practice.
    Comment 9: Several comments addressed issues related to the=20
enforcement of this regulation. The comments focused on the importance=20
of NMFS and the USCG working together to enforce this regulation and=20
some provided suggestions for enforcement mechanisms. Some comments=20
requested information about the penalties and fines that might apply to=20
violations of this regulation.
    Response: NOAA is committed to implementing an effective=20
enforcement strategy and will continue to work with all of its=20
interagency partners, including the USCG, to do so. In addition, NOAA=20
has identified some available technologies that could be used to=20
supplement existing enforcement capabilities and will further explore=20
the application of these measures.
    The ESA and MMPA identify the statutory maximum civil penalties and=20
criminal fines. NOAA promulgates Civil Administrative Penalty schedules=20
that are available to the public and provide guidance on how civil=20
penalties are assessed and likely penalty ranges for particular=20
violations. NOAA's Civil Administrative penalty schedules can be found=20
online at: http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=3Dleavin=
gFR.html&log=3Dlinklog&to=3Dhttp://www.gc.noaa.gov/enforce-office=
3.html.
    Comment 10: Several commenters made reference to the need to=20
promulgate emergency regulations and cited earlier correspondence and a=20
petition to NMFS about establishing such regulations. In particular, in=20
January 2005, NMFS received a letter from the Marine Mammal Commission=20
recommending that NMFS quickly establish emergency regulations to limit=20
vessel speeds consistent with measures being considered by NMFS. In=20
addition, on May 19, 2005, NMFS received a petition co-signed by nine=20
organizations to issue emergency regulations to re-route vessels in=20
right whale habitat or slow them to 12 knots or less when entering U.S.=20
east coast ports and at distances of 25 nm (46.3 km) from shore.
    Response: NMFS denied the petition (70 FR 56884), indicating=20
promulgating a separate 12-knot speed limit under an emergency=20
regulation would curtail full public notice and environmental analysis,=20
duplicate agency efforts and reduce agency resources for a more=20
comprehensive strategy, and risk delay in implementing the draft=20
strategy. NMFS indicated it would continue putting efforts into=20
implementing its comprehensive strategy as the best long-term solution=20
for curtailing right whale deaths due to vessel strikes. This=20
rulemaking marks a culmination of that effort.
    Comment 11: Some commenters suggested that the rule have a=20
termination date. Proposed end dates for the rule were: (A) When a=20
sustainable population level is reached; (B) if the restrictions prove=20
ineffective; and (C) if no progress is measured after one year.
    Response: There is some uncertainty regarding the manner in which=20
ships and whales interact and the relationship of speed and other=20
factors to whale injuries and mortalities. Some commenters, citing=20
these uncertainties, have raised issues regarding whether this=20
regulation will significantly reduce serious injury and deaths of large=20
whales caused by ship strikes. In view of these uncertainties, and the=20
burdens imposed on vessel operators, this rule will expire five years=20
from the date of effectiveness. During the five-year effectiveness of=20
the rule, to the extent possible with existing resources NOAA will=20
synthesize existing data, gather additional data, or conduct additional=20
research on ship-whale interactions to address those uncertainties.=20
NOAA will also review the economic consequences of this rule. After=20
this analysis is complete, NOAA will determine what further steps to=20
take regarding this rule.

Summary of Changes in the Rule Relative to the Proposed Rule

    Based on comments received, NMFS has made the following changes to=20
the proposed rule: (1) Use of voluntary, rather than mandatory, speed=20
restrictions in DMAs; (2) exceptions to speed restrictions in SMAs in=20
severe conditions where vessel speed must exceed 10 knots to allow for=20
safe maneuvering; (3) a reduction in the size of the area of SMAs in=20
the MAUS from waters within a 30-nm (55.6-km) radius half-circle to=20
within a 20-nm (37-km) radius half-circle at the entrances to: The=20
Ports of New York/New Jersey, Delaware Bay, Chesapeake Bay, and the=20
ports of Morehead City and Beaufort, NC; (4) in waters off the=20
southernmost ports in MAUS, a continuous SMA has been established from=20
20 nm (37 km) north of Wilmington, NC to 20 nm (37 km) north of=20
Brunswick, GA, in lieu of 30 nm (55.6 km) half-circles around these=20
port entrances (Fig. 2); (5) exemption from speed restrictions for law=20
enforcement vessels of a State, or political subdivision thereof, when=20
engaged in law enforcement or search and rescue duties; and (6) this=20
final rule expires on December 9, 2013.

Literature Cited

Best, P.B., J.L. Bannister, R.L. Brownell, Jr., and G.P. Donovan.=20
Eds. 2001. Right whales: worldwide status. J. Cetacean Res. Manage.=20
(Special Issue) 2. 309 pages.
Calleson, C.S. and R.K. Frolich. 2007. Slower boat speeds reduce=20
risks to manatees. Endang. Species Res. 3(3):295-304. 2007.
Campbell-Malone, R., 2007. Biomechanics of North Atlantic right=20
whale bone: mandibular fracture as a fatal endpoint for blunt=20
vessel-whale collision modeling. Ph.D. dissertation, WoodsHole=20
Oceanographic Institution, Woods Hole, MA.
Caswell, H., M. Fujiwara, and S. Brault. 1999. Declining survival=20
probability threatens the North Atlantic right whale. Proc. Nat.=20
Acad. Sci. 96:3308 3313.
Clyne, H. 1999. Computer simulations of interactions between the=20
North Atlantic Right Whale (Eubalaena glacialis) and shipping. MSc=20
Thesis, Napier University. Edinburgh, Scotland. 53 p.
Fujiwara, M., and H. Caswell. 2001. Demography of the endangered=20
North Atlantic right whale. Nature. 414:537-543.
Glass, A.H., T.V.N. Cole, M. Garron, R.L. Merrick, and R.M. Pace,=20
III. 2008. Mortality and Serious Injury Determinations for Baleen=20
Whale Stocks along the United States Eastern Seaboard and Adjacent=20
Canadian Maritimes, 2002-2006. U.S. Department of Commerce,=20
Northeast Fisheries Science Center Reference Document 08-04; 26 p.
Hazel J., I.R. Lawler, H. Marsh and S. Robson. 2007. Vessel speed=20
increases collision risk for the green turtle Chelonia mydas.=20
Endang. Species Res. 3:105-113.
Hong Kong Special Administrative Regions. 2006. Marine Department=20
Notice No. 93 of 2007.
Jensen, A.S., and G.K. Silber. 2003. Large whale ship strike=20
database. U.S. Department of Commerce, NOAA Technical Memorandum=20
NMFS-F/OPR 25, 37 p.
Kite-Powell, H.K., A. Knowlton, and M. Brown. 2007. Modeling the=20
effect of vessel speed on right whale ship strike risk. Project=20
report for NOAA/NMFS Project NA04NMF47202394, April 2007.
Knowlton, A. R., F.T. Korsmeyer, J.E. Kerwin, H.Y. Wu and B. Hynes.=20
1995. The hydrodynamic effects of large vessels on right whales.=20
NMFS Contract No. 40EANFF400534.
Knowlton, A. R., F.T. Korsmeyer, and B. Hynes. 1998. The=20
hydrodynamic effects of large vessels on right whales: phase two.=20
Final Report--NMFS-NEFSC contract no. 46ANF60004.
Knowlton, A.R., and S.D. Kraus. 2001. Mortality and serious injury=20
of northern right whales (Eubalaena glacialis) in the western North=20
Atlantic Ocean. J. Cetacean Res. Manage. (Special Issue) 2: 193 208.
Kraus, S.D. 1990. Rates and potential causes of mortality in North=20
Atlantic right

[[Page 60184]]

whales (Eubalaena glacialis) Mar. Mam. Sci. 6:278-291.
Kraus, S.D., P.K. Hamilton, R.D. Kenney, A Knowlton, and C.K. Slay.=20
2001. Reproductive parameters of the North Atlantic right whale. J.=20
Cetacean Res. Manage. (Special Issue). 2:231-236.
Kraus, S.D., M.W. Brown, H. Caswell, C.W. Clark, M. Fujiwara, P.K.=20
Hamilton, R.D. Kenney, A.R. Knowlton, S. Landry, C.A. Mayo, W.A.=20
McLellan, M.J. Moore, D.P. Nowacek, D.A. Pabst, A.J. Read, R.M.=20
Rolland. 2005. North Atlantic Right Whales in Crisis. Science 309:=20
561-562.
Kraus, S.D., R.M Pace, and T.R. Frasier. 2007. High investment, low=20
return: the strange case of reproduction in Eubalaena glacialis.=20
Pages 172-199 in: Kraus, S.D. and R.M. Rolland, (eds.), The Urban=20
Whale: North Atlantic right whales at the crossroads. Harvard=20
University Press, Cambridge, MA. 2007.
Laist, D.W., A.R. Knowlton, J.G. Mead, A.S. Collet, and M. Podesta.=20
2001. Collisions between ships and whales. Mar. Mam. Sci. 17(1): 35-
75.
Laist, D.W., and C. Shaw. 2006. Preliminary evidence that boat speed=20
restrictions reduce deaths of Florida manatees. Mar. Mam. Sci.=20
22(2):472-479.
Marine Mammal Commission. 2006. Annual Report to Congress 2005.=20
Marine Mammal Commission, Bethesda, Maryland. 204 pp.
Mate, B.R., S.L. Nieukirk, and S.D. Kraus. 1997. Satellite-monitored=20
movements of the northern right whale. J. Wildl. Manage. 61:1393-
1405.
Moller, J.C., D.N. Wiley, T.V.N. Cole, M. Niemeyer, and A. Rosner.=20
2005. Abstract. The behavior of commercial ships relative to right=20
whale advisory zones in the Great South Channel during May of 2005.=20
Sixteenth Biennial Conference on the Biology of Marine Mammals, San=20
Diego, December 2005.
Moore, M.J., A.R. Knowlton, S.D. Kraus, W.A. McLellan, and R.K.=20
Bonde. 2005. Morphometry, gross morphology and available=20
histopathology in North Atlantic right whale (Eubalaena glacialis)=20
mortalities (1970-2002). J. Cetacean Res. Manage. 6(3):199-214.
National Marine Fisheries Service (NMFS). 2005. Recovery Plan for=20
the North Atlantic Right Whale, Revision. U.S. Department of=20
Commerce, National Marine Fisheries Service, Office of Protected=20
Resources.
National Marine Fisheries Service (NMFS). 2007a. Endangered Species=20
Act Section 7 Consultation on issuance of license to Neptune LNG by=20
MARAD to construct, own, and operate an LNG deepwater port. NMFS=20
Northeast Regional Office, Gloucester, MA. January 12, 2007.
National Marine Fisheries Service (NMFS). 2007b. Endangered Species=20
Act Section 7 Reinitiation of Consultation on issuance of license to=20
Northeast Gateway Energy Bridge, LLC by MARAD to construct, own, and=20
operate an LNG deepwater port. NMFS Northeast Regional Office,=20
Gloucester, MA. November 11, 2007.
National Park Service. 2003. Glacier Bay National Park and Preserve,=20
Alaska. Vessel Quotas and Operating Requirements. Final=20
Environmental Impact Statement. U.S. Department of Interior.
Nelson, M., M. Garron, R.L. Merrick, R.M. Pace, III, and T.V.N.=20
Cole. 2007. Mortality and Serious Injury Determinations for Baleen=20
Whale Stocks Along the United States Eastern Seaboard and Adjacent=20
Canadian Maritimes, 2001-2005. U.S. Department of Commerce,=20
Northeast Fisheries Science Center Reference Document 07-05; 18 p.
Nowacek, D.P., M.P. Johnson, and P.L. Tyack. 2003. North Atlantic=20
right whales (Eubalaena glacialis) ignore ships but respond to=20
alerting stimuli. Proc. R. Soc. Lond [Biol]. Vol 271 (1536): 227-
231.
Pace, R.M., and G.K. Silber. 2005 Abstract. Simple analyses of ship=20
and large whale collisions: Does speed kill? Sixteenth Biennial=20
Conference on the Biology of Marine Mammals, San Diego, December=20
2005.
Panigada, S., G. Pesante, M. Zanardelli, F. Capoulade, A. Gannier,=20
and M.T. Weinrich. 2006. Mediterranean fin whales at risk from fatal=20
ship strikes. Marine Poll. Bull. 52:1287-1298.
Reeves, R.R, R.J. Hofman, G.K. Silber, and D. Wilkinson. 1996.=20
Acoustic deterrence of harmful marine mammal-fishery interactions:=20
proceedings of a workshop held in Seattle, Washington, 20-22 March=20
1996. NOAA Technical Memorandum, NMFS-OPR-10. 70 pages.
Slutsky, J. 2007. Model scale simulation of a ship-whale encounter.=20
Naval Surface Warfare Center Carderock Division, West Bethesda, MD.=20
Report No. NSWCCD-50-TR-2007/053.
Van Waerebeek, K., and R. Leaper. 2008. Second Report of the IWC=20
Vessel Strike Data Standardisation Working Group. Report to the=20
International Whaling Commission's Scientific Committee at the IWC's=20
60th Annual Meeting, Santiago, Chile, June 2008. Report No. SC/60/
BC5.
Vanderlaan, A.S.M., and C.T. Taggart. 2007. Vessel Collisions with=20
whales: the probability of lethal injury based on vessel speed. Mar.=20
Mam. Sci. 23(1):144-156.
Waring, G.T., E. Josephson, C.P. Fairfield-Walsh, and K. Maze-Foley,=20
editors. 2007. U.S. Atlantic and Gulf of Mexico Marine Mammal Stock=20
Assessments--2007. NOAA Tech Memo NMFS NE 205; 415 p.
Wiley, D.N., J.C. Moller, R.M. Pace, and C. Carlson. 2008.=20
Effectiveness of voluntary conservation agreements: case study of=20
endangered whales and commercial whale watching. Conserv. Biol.=20
2(2): 450-457.

Classification

    This final rule has been determined to be economically significant=20
for purposes of Executive Order 12866.
    This final rule does not have Federalism implications as that term=20
is defined in Executive Order 13132.
    This final rule contains a collection of information subject to the=20
Paperwork Reduction Act (PRA). This requirement, the obligation in=20
section 224.105(c) to log deviations from the 10 knot speed limit for=20
safe operations, was not in the proposed rule and therefore not=20
submitted to OMB for review at that time. Therefore, NMFS will submit=20
this new information collection to OMB for emergency review under 44=20
U.S.C. 3507(j). NMFS also requests comment on this information=20
collection for 60 days as required under 44 U.S.C. 3506(c)(2)(A).
    Public reporting burden for logbook entries in the event of=20
deviation from speed restrictions is estimated to average five minutes=20
per response, including time for reviewing instructions, searching=20
existing data sources, gathering and maintaining the data needed, and=20
completing and reviewing the collection information. There is no=20
additional cost to the affected public.
    NMFS requests comments from the public to:
    (i) Evaluate whether the proposed collection of information is=20
necessary for the proper performance of the functions of the agency,=20
including whether the information shall have practical utility;
    (ii) Evaluate the accuracy of the agency's estimate of the burden=20
of the proposed collection of information;
    (iii) Enhance the quality, utility, and clarity of the information=20
to be collected; and
    (iv) Minimize the burden of the collection of information on those=20
who are to respond, including through the use of automated collection=20
techniques or other forms of information technology.
    Send comments on these or any other aspects of the collection of=20
information to the NMFS, Office of Protected Resources at the address=20
above.
    Notwithstanding any other provisions of the law, no person is=20
required to, and no person shall be subject to penalty for failure to=20
comply with, a collection of information subject to the requirements of=20
the PRA, unless the collection of information displays a currently=20
valid Office of Management and Budget (OMB) control number.

Final Regulatory Flexibility Analysis

    Pursuant to section 604 of the Regulatory Flexibility Act (RFA),=20
NMFS prepared the following Final Regulatory Flexibility Analysis=20
(FRFA) in support of the final rule to implement speed restrictions to=20
reduce the threat of ship collisions with North Atlantic Right Whales.=20
The FRFA describes the

[[Page 60185]]

economic impact that this final rule will have on small entities.
    The FRFA incorporates the economic impacts summarized in the=20
initial RFA (IRFA) for the proposed rule to implement speed=20
restrictions (71 FR 36299) and the corresponding economic analysis=20
prepared for the final rule (the FEIS, the Regulatory Impact Review=20
(RIR), and the Economic Analysis for the FEIS). For the most part,=20
those impacts are not repeated here. A copy of the IRFA, the RIR, the=20
FEIS, and the Economic Analysis for the FEIS are available from NMFS,=20
Office of Protected Resources and on the Office of Protected Resources=20
Web site (see ADDRESSES).
    A description of the action, why it is being considered, the=20
objectives of, and legal basis for this action are contained in the=20
preamble to this final rule. This final rule does not duplicate,=20
overlap, or conflict with other Federal rules.

Description and Estimate of the Number of Small Entities to Which the=20
Final Rule Will Apply

    The final rule implements changes to vessel operations affecting=20
vessels that are 65 feet (19.8 m) or greater in overall length. Seven=20
industries are directly affected by this rulemaking: Commercial=20
shipping, high-speed passenger ferries, regular-speed passenger=20
ferries, high-speed whale watching vessels, regular-speed whale=20
watching vessels, commercial fishing vessels, and charter fishing=20
vessels. This analysis uses small business size standards prescribed by=20
the Small Business Administration (SBA). Specifically, for=20
international and domestic shipping operations, the SBA size standard=20
for a small business is 500 employees or fewer. The same threshold=20
applies for international cruise operations and domestic ferry=20
services. All ferry, commercial fishing, and charter fishing operations=20
were assumed to be small entities. All but one whale watching operation=20
were assumed to be small entities. The number of small entities=20
expected to be affected by the final rulemaking by industry are: 362=20
commercial shipping (with various vessel classifications), 345=20
commercial fishing, 40 charter fishing, 13 passenger ferry, and 8 whale=20
watching. More detailed information on small entities, other than=20
commercial shipping, can be found on pages 143 through 147 and in=20
Tables 4-45 (commercial fishing), 4-46 (passenger ferries), and 4-49=20
(whale watching) of the Economic Analysis for the FEIS. Note that for=20
passenger ferry category, a small entity may operate both regular-speed=20
and high-speed vessels. More detailed information on small entities in=20
the commercial shipping sector is contained on pages 162 through 163 of=20
the Economic Analysis for the FEIS.

Description of the Projected Reporting, Recordkeeping, and Other=20
Compliance Requirements of the Final Rule

    There are no compliance requirements other than the management=20
actions contained in the final rule. Recordkeeping requirements=20
associated with this final rule include logbook entries in the event of=20
deviation from speed restrictions. These entries are estimated to=20
average five minutes per response, including time for reviewing=20
instructions, searching existing data sources, gathering and=20
maintaining the data needed, and completing and reviewing the=20
collection information.

A Summary of the Significant Issues Raised by the Public Comments in=20
Response to the IRFA, a Summary of the Assessment of the Agency of Such=20
Issues, and a Statement of Any Changes Made to the Proposed Rule as a=20
Result of Such Comments

    NMFS received 10,252 comments on the proposed rule. Of these, 73=20
comments pertained to the IRFA or dealt with economic impacts specific=20
to small entities resulting from the management actions presented in=20
the proposed rule.
    Numerous commenters raised a concern that the speed restrictions=20
would increase steam time for charter fishing vessels, resulting in a=20
much shorter time to fish and/or longer trips overall. This could=20
reduce the number of trips taken, curtail available fishing grounds,=20
reduce the number of customers willing to pay, increase operating=20
expenses, or hinder other operations.
    Response: These concerns are valid and have been analyzed in the=20
Economic Analysis for the FEIS, which also analyzes economic impact to=20
small entities. In response, NMFS has decided that compliance with DMAs=20
will be voluntary, further reducing potential to lengthen fishing trips=20
should captains choose not to comply. Similarly, the SMAs are generally=20
not in place during the summer peak tourism and fishing season, with=20
the exception of the Great South Channel. See, for example, pages 147-
148 of the Economic Analysis for the FEIS regarding concerns expressed=20
by passenger ferry operators in timing speed restrictions during peak=20
summer season.
    Numerous commenters suggested that the rule will affect tourism=20
industries due to restrictions placed on whale watching vessels or=20
passenger ferries. Other industries that support or work along with=20
vessels affected by the rule would also bear adverse economic impact.
    Response: The IRFA that NMFS prepared for the proposed rule=20
analyzes the direct economic impacts to small entities resulting from=20
implementing regulations. While NMFS did not analyze the expected=20
economic impacts on small entities indirectly affected by the agency's=20
actions in the RFA, it did analyze these impacts in the Economic=20
Analysis for the FEIS (See Chapter 4, within the section entitled=20
``Estimated Economic Impact on Other Market Segments'').
    Many commenters expressed concern about speed restrictions within=20
DMAs, which are likely to occur during peak summer months, which=20
commenters maintained would seriously hinder, and perhaps shut down,=20
ferries and whale-watching operations.
    Response: NMFS has decided that compliance with speed restrictions=20
within DMAs will be voluntary. This will provide some measure of relief=20
to those small entities concerned with going out of business as a=20
result of DMAs.
    A few commenters noted that increased fuel consumption would result=20
from increased vessel speed (outside of SMAs and DMAs) to stay on=20
schedule. The IRFA provided an assessment of likely compliance costs or=20
benefits associated with changes in fuel consumption from speed=20
restriction measures. Increased fuel consumption for vessels increasing=20
speed to make up time is not included in the economic analysis because=20
the cost of the delays themselves--far greater costs than increased=20
fuel consumption to compensate for delays--is calculated and included=20
in the IRFA. See for example, Table 4-45 and accompanying text, for a=20
discussion on the increased roundtrip travel time for commercial=20
fishing vessels. Given an hourly fishing vessel operating cost of $300,=20
the average additional travel time of 38 minutes would translate to an=20
additional operating cost of $190 per trip. Even if the fishing vessel=20
sped up outside the speed restricted area to help offset the increase=20
in travel time and operating costs, the incremental increase in=20
operating cost due to increased fuel consumption would only be a=20
portion of the overall hourly operating costs recovered when speeding=20
up outside the speed restricted area. Therefore, the economic analysis=20
conservatively assumes that vessels will not speed up to make up time=20
and hence includes the maximum estimate of delay that would be=20
incurred.

[[Page 60186]]

    Some commenters stated that the regulations seem unwarranted or=20
excessive given that many boaters had rarely, if ever, encountered a=20
right whale or that out of thousands of boat trips on the east coast,=20
only a dozen or so right whale deaths are attributable to ship strikes.=20
Some questioned the notion of incurring considerable economic burden to=20
businesses for right whale protection.
    Response: Right whales are difficult to see, especially in less=20
than ideal (e.g., Beaufort Scale Sea State 3 or greater, or low light)=20
conditions. But, they have historically and regularly occurred in the=20
areas identified in this rule. Mariners' difficulty in seeing right=20
whales in the water is likely one contributing factor in the occurrence=20
of ship strikes. Ship strike deaths are rare events and yet each is=20
highly significant to the depleted population. NMFS has endeavored to=20
reduce the economic impacts of this rule by minimizing, in time and=20
space, the areas in which the restrictions apply.

Economic Impacts Resulting From Changes to the Proposed Rule

    As discussed in the preamble of this final rule, NMFS has modified=20
various components of the proposed rule. These are: (1) Use of=20
voluntary, rather than mandatory, speed restrictions in DMAs; (2)=20
exceptions to speed restrictions in SMAs in severe conditions where=20
vessel speed must exceed 10 knots to allow for safe maneuvering and=20
provisions to improve enforcement of these regulations; (3) a reduction=20
in the size of the area of SMAs in the MAUS from waters within a 30-nm=20
(55.6-km) radius half-circle to within a 20-nm (37-km) radius half-
circle at the entrances to: The Ports of New York/New Jersey, Delaware=20
Bay, Chesapeake Bay, and the ports of Morehead City and Beaufort, NC;=20
(4) in waters off the southernmost ports in MAUS, a continuous SMA has=20
been established from 20 nm (37 km) north of Wilmington, NC to 20 nm=20
(37 km) north of Brunswick, GA, in lieu of 30 nm (55.6 km) half-circles=20
around these port entrances (Fig. 2); (5) exemption from speed=20
restrictions for law enforcement vessels of a State, or political=20
subdivision thereof, when engaged in law enforcement or search and=20
rescue duties; and (6) this final rule expires on December 9, 2013. The=20
estimated economic impacts in the IRFA have been updated here, using=20
recent (June 2008) fuel prices, to reflect these modifications to the=20
proposed rule.
    With regard to vessel speed restrictions within DMAs that are not=20
mandatory, NMFS has calculated economic impacts based on 100-percent=20
compliance, although the actual compliance rate will likely be lower.=20
That is, whereas NMFS is hopeful that adherence to a voluntary measure=20
is high, it likely will not be 100 percent. Therefore, NMFS has=20
calculated the most extreme case with regard to economic impact.=20
Assuming 100-percent compliance with all measures of the rule, this=20
action would reduce annual revenues to vessels as follows: Commercial=20
shipping 0.15 percent of annual receipts, high-speed passenger ferries=20
4.9 percent, regular-speed passenger ferries 7.9 percent, high-speed=20
whale watching vessels 4.2 percent, regular-speed whale watching=20
vessels 3.8 percent, commercial fishing vessels 0.5 percent, and=20
charter fishing vessels 3.9 percent. See Table 5-7 of the Economic=20
Report for the FEIS. Economic impacts will correspondingly be lower=20
with any compliance rate less than 100 percent.

Description of the Steps the Agency Has Taken To Minimize the=20
Significant Economic Impact on Small Entities Consistent With the=20
Stated Objectives of Applicable Statutes

    NMFS carefully weighed the speed restriction provisions contained=20
in this final rule in light of right whale protection as well as=20
economic impact. As a result, NMFS tightly constrained in time and=20
place seasonal management areas to correspond only to known right whale=20
occurrence. NMFS determined that creating larger SMAs than those being=20
enacted would provide greater protection for right whales that may=20
occur outside historical aggregation areas or where densities are=20
lower. However, the potential economic impacts increase as SMAs grow in=20
size, even as the relative conservation benefits become increasingly=20
smaller. As a result, the SMAs have been made as small as practicable=20
while still providing conservation value. In addition, by creating=20
DMAs, NMFS was able to maintain SMAs at minimal sites, further reducing=20
economic impact.
    The use of DMAs allows for establishing protective measures when=20
right whales are sighted outside locations and times of SMAs. Current=20
limitations in agency resources make it difficult to verify and=20
subsequently establish DMAs quickly. Furthermore, the duration of the=20
DMAs may continue past the time in which whales are present. Therefore,=20
NMFS will establish a DMA program as an action complementary to SMAs,=20
although not through rulemaking. NMFS will announce DMAs to mariners=20
through its customary maritime communication media and any other=20
appropriate media channels. NMFS hopes vessel operators will avoid the=20
area or proceed through the area at 10 knots, but understands that many=20
will not. Nonetheless, operators remain liable under MMPA and ESA if=20
they do strike a whale.
    Operators of whale-watching vessels and passenger vessels had=20
indicated during the public comment period that requiring speed=20
restrictions in DMAs during peak season would result in economic=20
hardship. One consequence of administering DMAs with speed restrictions=20
that are not mandatory is that it alleviates further economic burden,=20
particularly to those vessels operating during peak summer months in=20
areas where no SMA is in place.
    NMFS is allowing an exemption to speed restrictions contained in=20
this final rule in response to navigational safety concerns. This=20
exemption allows for a vessel, under severe conditions, to operate at a=20
speed above the required 10 knots to maneuver safely. This exemption=20
has been incorporated into the final rule in response to comments from=20
small entities, the larger universe of vessel operators, and port=20
authorities. A vessel may operate at a speed necessary to maintain safe=20
maneuvering speed instead of the required ten knots only if justified=20
because the vessel is in an area where oceanographic, hydrographic and/
or meteorological conditions severely restrict the maneuverability of=20
the vessel and the need to operate at such speed is confirmed by the=20
pilot on board or, when a vessel is not carrying a pilot, the master of=20
the vessel. If a deviation from the ten-knot speed limit is necessary,=20
the reasons for the deviation, the speed at which the vessel is=20
operated, the latitude and longitude of the area, and the time and=20
duration of such deviation shall be entered into the logbook of the=20
vessel. The master of the vessel shall attest to the accuracy of the=20
logbook entry by signing and dating it.
    The final rule is subject to a ``sunset clause'' in which this=20
final rule is set to expire five years from date of effectiveness. This=20
provides some measure of relief to all affected entities, including=20
small entities, in that any future action will be subject to applicable=20
rulemaking procedures, including RFA and NEPA.
    NMFS analyzed a number of alternatives to reduce ship strikes, in=20
addition to the ``no action'' alternative. The ``no action''=20
alternative was rejected because NMFS has determined that specific=20
action (i.e., vessel speed restrictions) is needed to reduce the threat=20
of ship collisions with right whales.
    One alternative required use of DMAs only as a single regulatory=20
action. Small

[[Page 60187]]

businesses may prefer this alternative to the provisions of the final=20
rule, which includes SMAs. However, relying solely on DMAs would not=20
provide the needed protection to right whales, since this measure=20
requires being able to identify right whale aggregations to trigger=20
DMAs. In addition, one consistent comment NMFS has received is that the=20
shipping industry relies on predictability to meet timetables, coincide=20
with maximum tides in some ports, and to schedule longshoremen. The use=20
of DMAs exclusively and no other measures (e.g., SMAs) would render the=20
protection measures highly unpredictable, confounding shipping=20
schedules. Moreover, identification of right whale aggregations is not=20
always possible in practice (e.g., due to poor weather or other=20
logistical constraints), thus relying on this measure alone may not=20
reduce ship strikes sufficiently to promote population recovery.=20
Dynamic management is used to reduce fishery gear entanglements when=20
right whales aggregations are discovered. The approach is used in=20
conjunction with fishing gear modifications. Therefore, this system,=20
when used in concert with other actions, can be an important management=20
tool. It is not a flawless system inasmuch as it is limited by=20
constraints inherent to aircraft surveys (e.g., darkness, weather). One=20
significant difference between the fishing gear Dynamic Area Management=20
program and dynamic management as it pertains to other maritime=20
industries is that fishers are required to change out gear, a rather=20
burdensome task. The shipping industry could be notified real-time by=20
electronic media and with relatively minor modifications to voyage=20
planning can route around the area or travel through it at reduced=20
speed.
    Another alternative analyzed was the implementation of SMAs as a=20
single regulatory action, where the SMAs were substantially larger in=20
size and in duration than those contained in the final rule. This=20
alternative as a stand-alone measure was determined to be unlikely to=20
aid in the recovery of right whales, since as a single measure, it does=20
not allow for responding to situations when right whales are sighted=20
outside of predictable or historic aggregation areas. In addition,=20
because the SMAs were larger than those being enacted, the added=20
economic burden would be substantial. Vessels would be required to=20
travel at 10 knots farther from shore and on more days than will be=20
required by the provisions of the final rule.
    One alternative consisted of proposed vessel routing measures in=20
lieu of speed restrictions. However, NMFS determined that changes in=20
routing procedures alone would not provide adequate protection from=20
ship strikes for right whales. Another alternative analyzed was the use=20
of both DMAs and large-scale SMAs as regulatory actions. This=20
alternative would have provided the greatest protection to the right=20
whale population. Impacts to small entities would also have been=20
greatest under this alternative, since the SMAs in this alternative=20
were substantially larger geographically and longer temporally than=20
those prescribed in the final rule.
    Other significant alternatives to the final rule included speed=20
restrictions at 12 or 14 knots, rather than the 10-knot speed=20
restriction in the final rule. Based on the analysis provided in the=20
IRFA, NMFS recognizes that operators of regular-speed passenger=20
ferries, regular-speed whale-watching vessels, and charter fishing=20
vessels would prefer the 12-or 14-knot options. However, NMFS=20
scientists and other independent scientists have determined that as=20
vessel speed increases, the likelihood of serious injury and death to=20
whales increases. Therefore, among the three speed restriction options,=20
the ten-knot option provides the greatest protection for right whales=20
and the greatest likelihood of allowing recovery of this critically=20
endangered species.
    Section 212 of the Small Business Regulatory Enforcement Fairness=20
Act of 1996 states that for each rule or group of related rules for=20
which an agency is required to prepare a FRFA, the agency shall publish=20
one or more guides to assist small entities in complying with the rule,=20
and shall designate such publications as ``small entity compliance=20
guides.'' The agency shall explain the actions a small entity is=20
required to take to comply with a rule or group of rules. A small=20
entity compliance guide was prepared as part of this rulemaking=20
process. The guide will be sent to all holders of permits issued for NE=20
and SE fisheries, ferry operators, whale watching vessel operators, and=20
shipping companies. Guides will also be provided to port authorities,=20
port pilots, and the USCG, and others as appropriate, for distribution=20
to the maritime industry. In addition, copies of this final rule and=20
guide are available from NMFS, Office of Protected Resources and on the=20
Office of Protected Resources Web site (see ADDRESSES).

List of Subjects in 50 CFR Part 224

    Endangered marine and anadromous species.

    Dated: October 6, 2008.
Samuel D. Rauch,
Deputy Assistant Administrator for Regulatory Programs, National Marine=20
Fisheries Service.

0
For the reasons set out in the preamble, 50 CFR part 224 is amended as=20
follows:

PART 224--ENDANGERED MARINE AND ANADROMOUS SPECIES

0
1. The authority citation for 50 CFR part 224 continues to read as=20
follows:

    Authority: 16 U.S.C. 1531-1543 and 16 U.S.C. 1361 et seq.

0
2. In part 224, a new Sec.  224.105 is added to read as follows:


Sec.  224.105  Speed restrictions to protect North Atlantic Right=20
Whales.

    (a) The following restrictions apply to: All vessels greater than=20
or equal to 65 ft (19.8 m) in overall length and subject to the=20
jurisdiction of the United States, and all other vessels greater than=20
or equal to 65 ft (19.8 m) in overall length entering or departing a=20
port or place subject to the jurisdiction of the United States. These=20
restrictions shall not apply to U.S. vessels owned or operated by, or=20
under contract to, the Federal Government. This exemption extends to=20
foreign sovereign vessels when they are engaging in joint exercises=20
with the U.S. Department of the Navy. In addition, these restrictions=20
do not apply to law enforcement vessels of a State, or political=20
subdivision thereof, when engaged in law enforcement or search and=20
rescue duties.
    (1) Southeast U.S. (south of St. Augustine, FL to north of=20
Brunswick, GA): Vessels shall travel at a speed of 10 knots or less=20
over ground during the period of November 15 to April 15 each year in=20
the area bounded by the following: Beginning at 31[deg]27'00.0'' N-
080[deg]51'36.0'' W; thence west to charted mean high water line then=20
south along charted mean high water line and inshore limits of COLREGS=20
limit to a latitude of 29[deg]45'00.0'' N thence east to=20
29[deg]45'00.0'' N-080[deg]51'36.0'' W; thence back to starting point.=20
(Fig. 1).
    (2) Mid-Atlantic U.S. (from north of Brunswick, Georgia to Rhode=20
Island): Vessels shall travel 10 knots or less over ground in the=20
period November 1 to April 30 each year:
    (i) In the area bounded by the following: 33[deg]56'42.0'' N-
077[deg]31'30.0'' W; thence along a NW bearing of 313.26[deg] True to=20
charted mean high water line then south along mean high water line and=20
inshore limits of COLREGS limit to a latitude of 31[deg]27'00.0'' N;=20
thence east to 31[deg]27'00.0'' N-080[deg]51'36.0'' W; thence to=20
31[deg]50'00.0''

[[Page 60188]]

N-080[deg]33'12.0'' W; thence to 32[deg]59'06.0'' N-078[deg]50'18.0''=20
W; thence to 33[deg]28'24.0'' N-078[deg]32'30.0'' W; thence to=20
33[deg]36'30.0'' N-077[deg]47'06.0'' W; thence back to starting point.;
    (ii) Within a 20-nm (37 km) radius (as measured seaward from=20
COLREGS delineated coast lines and the center point of the port=20
entrance) (Fig. 2) at the
    (A) Ports of New York/New Jersey: 40[deg]29'42.2'' N-
073[deg]55'57.6'' W;
    (B) Delaware Bay (Ports of Philadelphia and Wilmington):=20
38[deg]52'27.4'' N-075[deg]01'32.1'' W;
    (C) Entrance to the Chesapeake Bay (Ports of Hampton Roads and=20
Baltimore): 37[deg]00'36.9'' N-075[deg]57'50.5'' W; and
    (D) Ports of Morehead City and Beaufort, NC: 34[deg]41'32.0'' N-
076[deg]40'08.3'' W; and
    (iii) In Block Island Sound, in the area bounded by the following=20
coordinates: Beginning at 40[deg]51'53.7'' N-70[deg]36'44.9'' W; thence=20
to 41[deg]20'14.1'' N-70[deg]49'44.1'' W; thence to 41[deg]04'16.7'' N-
71[deg]51'21.0'' W; thence to 40[deg]35'56.5'' N-71[deg]38'25.1'' W;=20
thence back to starting point. (Fig. 2).
    (3) Northeast U.S. (north of Rhode Island):
    (i) In Cape Cod Bay, MA: Vessels shall travel at a speed of 10=20
knots or less over ground during the period of January 1 to May 15 in=20
Cape Cod Bay, in an area beginning at 42[deg]04'56.5'' N-
070[deg]12'00.0'' W; thence north to 42[deg]12'00.0'' N-
070[deg]12'00.0'' W; thence due west to charted mean high water line;=20
thence along charted mean high water within Cape Cod Bay back to=20
beginning point. (Fig. 3).
    (ii) Off Race Point: Vessels shall travel at a speed of 10 knots or=20
less over ground during the period of March 1 to April 30 each year in=20
waters bounded by straight lines connecting the following points in the=20
order stated (Fig. 3): 42[deg]30'00.0'' N-069[deg]45'00.0'' W; thence=20
to 42[deg]30'00.0'' N-070[deg]30'00.0'' W; thence to 42[deg]12'00.0''=20
N-070[deg]30'00.0'' W; thence to 42[deg]12'00.0'' N-070[deg]12'00.0''=20
W; thence to 42[deg]04'56.5'' N-070[deg]12'00.0'' W; thence along=20
charted mean high water line and inshore limits of COLREGS limit to a=20
latitude of 41[deg]40'00.0'' N; thence due east to 41[deg]41'00.0'' N-
069[deg]45'00.0'' W; thence back to starting point.
    (iii) Great South Channel: Vessels shall travel at a speed of 10=20
knots or less over ground during the period of April 1 to July 31 each=20
year in all waters bounded by straight lines connecting the following=20
points in the order stated (Fig. 3):

42[deg]30'00.0'' N-069[deg]45'00.0'' W
41[deg]40'00.0'' N-069[deg]45'00.0'' W
41[deg]00'00.0'' N-069[deg]05'00.0'' W
42[deg]09'00.0'' N-067[deg]08'24.0'' W
42[deg]30'00.0'' N-067[deg]27'00.0'' W
42[deg]30'00.0'' N-069[deg]45'00.0'' W

    (b) Except as noted in paragraph (c) of this section, it is=20
unlawful under this section:
    (1) For any vessel subject to the jurisdiction of the United States=20
to violate any speed restriction established in paragraph (a) of this=20
section; or
    (2) For any vessel entering or departing a port or place under the=20
jurisdiction of the United States to violate any speed restriction=20
established in paragraph (a) of this section.
    (c) A vessel may operate at a speed necessary to maintain safe=20
maneuvering speed instead of the required ten knots only if justified=20
because the vessel is in an area where oceanographic, hydrographic and/
or meteorological conditions severely restrict the maneuverability of=20
the vessel and the need to operate at such speed is confirmed by the=20
pilot on board or, when a vessel is not carrying a pilot, the master of=20
the vessel. If a deviation from the ten-knot speed limit is necessary,=20
the reasons for the deviation, the speed at which the vessel is=20
operated, the latitude and longitude of the area, and the time and=20
duration of such deviation shall be entered into the logbook of the=20
vessel. The master of the vessel shall attest to the accuracy of the=20
logbook entry by signing and dating it.
    (d) This final rule expires on December 9, 2013.
BILLING CODE 3510-22-P

[[Page 60189]]

[GRAPHIC] [TIFF OMITTED] TR10OC08.036


[[Page 60190]]


[GRAPHIC] [TIFF OMITTED] TR10OC08.037


[[Page 60191]]


[GRAPHIC] [TIFF OMITTED] TR10OC08.038

 [FR Doc. E8-24177 Filed 10-7-08; 4:15 pm]

BILLING CODE 3510-22-C