U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

1 

69–010 

" ! SENATE 110TH CONGRESS

2d Session 

REPORT

2008

110–429 

Calendar No. 893 

TO REQUIRE THE SECRETARY OF COMMERCE TO PRESCRIBE REGULATIONS TO 

REDUCE THE INCIDENCE OF VESSELS 

COLLIDING WITH NORTH ATLANTIC RIGHT 

WHALES BY LIMITING THE SPEED OF 

VESSELS, AND FOR OTHER PURPOSES 

R E P O R T 

OF THE

COMMITTEE ON COMMERCE, SCIENCE, AND 

TRANSPORTATION 

ON

S. 2657 

JULY 22, 2008.—Ordered to be printed 


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(II) 

SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION 

ONE HUNDRED TENTH CONGRESS

SECOND SESSION

DANIEL K. INOUYE, Hawaii, Chairman 

TED STEVENS, Alaska, Vice-Chairman 

JOHN D. ROCKEFELLER IV, West Virginia 

JOHN F. KERRY, Massachusetts 

BYRON L. DORGAN, North Dakota 

BARBARA BOXER, California 

BILL NELSON, Florida 

MARIA CANTWELL, Washington 

FRANK R. LAUTENBERG, New Jersey 

MARK PRYOR, Arkansas 

THOMAS CARPER, Delaware 

CLAIRE MCCASKILL, Missouri 

AMY KLOBUCHAR, Minnesota 

JOHN MCCAIN, Arizona 

KAY BAILEY HUTCHISON, Texas 

OLYMPIA J. SNOWE, Maine 

GORDON H. SMITH, Oregon 

JOHN ENSIGN, Nevada 

JOHN E. SUNUNU, New Hampshire 

JIM DEMINT, South Carolina 

DAVID VITTER, Louisiana 

JOHN THUNE, South Dakota 

ROGER F. WICKER, Mississippi 

MARGARET CUMMISKY, Staff Director and Chief Counsel 

LILA HELMS, Deputy Staff Director and Policy Director 

JEAN TOAL EISEN, Senior Advisor and Deputy Policy Director 

CHRISTINE KURTH, Republican Staff Director and General Counsel 

PAUL J. NAGLE, Republican Chief Counsel 

MIMI BRANIFF, Republican Deputy Chief Counsel 


erowe on PROD1PC71 with REPORTS
Calendar No. 893 

110TH CONGRESS REPORT " ! SENATE 2d Session 110–429 

TO REQUIRE THE SECRETARY OF COMMERCE TO PRESCRIBE REGULATIONS TO REDUCE THE INCIDENCE OF 

VESSELS COLLIDING WITH NORTH ATLANTIC RIGHT 

WHALES BY LIMITING THE SPEED OF VESSELS, AND 

FOR OTHER PURPOSES. 

JULY 22, 2008.—Ordered to be printed 

Mr. INOUYE, from the Committee on Commerce, Science, and 

Transportation, submitted the following 

R E P O R T 

[To accompany S. 2657] 

The Committee on Commerce, Science, and Transportation, to 

which was referred the bill (S. 2657) to require the Secretary of 

Commerce to prescribe regulations to reduce the incidence of vessels colliding with North Atlantic right whales by limiting the 

speed of vessels, and for other purposes, having considered the 

same, reports favorably thereon with an amendment (in the nature 

of a substitute) and recommends that the bill (as amended) do 

pass. 

PURPOSE OF THE BILL

The purpose of S. 2657, as amended, is to require the Secretary 

of Commerce to promulgate a final rule, after giving consideration 

to any comments received with respect to the proposed rule, 71 Fed 

Reg. 36299; June 26, 2006 titled, ‘‘Endangered Fish and Wildlife; 

Proposed Rule to Implement Speed Restrictions to Reduce the 

Threat of Ship Collisions with North Atlantic Right Whales’’ (Proposed Rule). The final rule would implement speed restrictions for 

vessels transiting certain waters off of the U.S. Atlantic seaboard 

to reduce the incidence of such vessels colliding with North Atlantic 

right whales. S. 2657 would require these regulations to be prescribed within 30 days after the enactment of the bill and to be no 

weaker than the proposed rule. 


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BACKGROUND AND NEEDS

Of all large whales worldwide, the North Atlantic right whale 

population is among the most endangered. Today’s estimates suggest that the population consists of approximately 350 individuals 

which migrate throughout the waters off the eastern United States 

and Canada in areas that comprise a significant percentage of U.S. 

maritime activities. Despite protections from commercial harvest 

through the 1931 Convention for the Regulation of Whaling, the 

enactment of Federal statutes including the Marine Mammal Protection Act and the Endangered Species Act, and additional protective measures implemented through the National Marine Fisheries 

Service (NMFS), the North Atlantic right whale has been unable 

to rebuild its numbers to sustainable levels. 

North Atlantic right whale deaths resulting from collisions with 

ships are a significant factor contributing to the low population levels and are believed to be a principal reason for a declining adult 

survival rate. In fact, the National Oceanic and Atmospheric Administration (NOAA) asserts that collisions with ships are the 

greatest threat to North Atlantic right whales. Despite conservation efforts undertaken by the Federal government, stakeholders, 

and industry throughout the 1990s, right whale deaths from ship 

strikes continue. To address the population’s failure to recover, the 

NMFS convened more than twenty meetings along the eastern seaboard between May 1999 and April 2001 to discuss ways to reduce 

ship strikes. These meetings culminated in the publication of a report delineating management options to address this threat to the 

North Atlantic right whale. This report was used to develop the 

NMFS Ship Strike Reduction Strategy and the foundation for the 

2004 Advanced Notice of Proposed Rulemaking (2004 ANPR). 

The 2004 ANPR proposed reducing ships’ speed to ten to fourteen 

knots when approaching ports where North Atlantic right whales 

were expected to be present. Additionally, the 2004 ANPR would 

have established three regions on the eastern seaboard, with seasonal management measures including speed limits, possible routing directions, and designated lanes. The 2004 ANPR provided a 

60-day comment period, during which time the NMFS convened 

five public meetings along the east coast. Subsequently, the NFMS 

extended the 2004 ANPR comment period to allow for additional 

meetings in an effort to maximize public input, delineate concerns, 

and ascertain whether or not the NMFS was considering adequate 

alternative approaches. The extended comment period included 

eleven stakeholder meetings attended by 142 individuals and allowed NMFS the opportunity to receive 5,288 comments from relevant stakeholders, companies, associations, individuals, and organizations. Of those 5,288 comments, 88 were deemed substantive. 

The two years of additional scientific research and public outreach enabled by the 2004 ANPR process resulted in the NMFS’s 

issuance in 2006 of the Proposed Rule that would affect vessels 65 

feet or greater. Like the 2004 ANPR, the Proposed Rule would divide the U.S. east coast into three subareas: Southeast United 

States; Mid-Atlantic United States; and Northeast United States, 

within which affected vessels would be required to reduce their 

speed to 10 knots during certain times correlated with seasonal 

right whale occurrences. In addition to the three defined regions on 


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the east coast, the proposed rule would establish temporary ‘‘Dynamic Management Areas’’ that would require affected vessels to 

either slow to ten knots or route around the area when North Atlantic right whale sightings and aggregations have been confirmed. 

There are minor differences between the 2004 ANPR and the 

Proposed Rule including: extension of the seasonally managed 

areas out to 30 miles along the mid-Atlantic coast; modification of 

the times in which the regulations would be in effect; and updates 

of the economic impact to reflect that incurred costs would be a 

fraction of the overall value of the U.S. east coast maritime industry. Under both the 2004 ANPR and the Proposed Rule, vessels operated by Federal agencies would be exempt from these regulations; however, Federal vessels are expected to adhere to guidance 

provided under the Endangered Species Act Section 7 consultations. 

The Committee is aware that the Proposed Rule would include 

and be applicable to ferry vessels and commercial whalewatching 

vessels. In Massachusetts, Maine, and other northeast states and 

Canadian provinces, ferries provide essential transportation services to locations such as Martha’s Vineyard, Nantucket Island, 

Provincetown on Cape Cod, and Block Island, and also across Long 

Island Sound between New York and Connecticut. Comments to 

the regulatory docket by operators of ferries and commercial 

whalewatching vessels make clear that a single aspect of the proposed rule, the Dynamic Management Area (DMA) of 36 miles or 

more in diameter and two weeks or more in duration, has the potential to severely disrupt their operations and could jeopardize the 

commercial existence of several companies. NMFS has acknowledged in the Federal Register that the proposed rule could have disproportionate impacts on several operators of ferries and commercial whalewatching vessels. Consequently, the Committee intends 

that S. 2657, as reported, be interpreted as allowing NMFS the 

freedom and flexibility to reduce the geographic size and temporal 

duration of a DMA or even to determine that DMAs for ferries and 

commercial whalewatching vessels need not be included at all in 

the final rule. S. 2657, as reported, is not intended to proscribe any 

particular management measure and simply intends to maintain a 

level of protection for the North Atlantic right whale at least as 

strong as that contained in the Proposed Rule. 

LEGISLATIVE HISTORY

S. 2657 was introduced in the Senate on February 15, 2008, by 

Senator Kerry and is co-sponsored by Senator Snowe. The bill was 

referred to the Committee on Commerce, Science, and Transportation. On April 24, 2008, the Committee considered the bill in an 

open executive session. Senators Kerry and Snowe offered a substitute amendment to clarify the intent of legislation, and the Committee, without objection, ordered S. 2657 reported as amended by 

the substitute amendment. 

Staff assigned to this legislation include Amanda Hallberg, 

Democratic professional staff, and Todd Bertoson, Republican senior counsel. 


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ESTIMATED COSTS

In accordance with paragraph 11(a) of rule XXVI of the Standing 

Rules of the Senate and section 403 of the Congressional Budget 

Act of 1974, the Committee provides the following cost estimate, 

prepared by the Congressional Budget Office: 

MAY 7, 2008. 

Hon. DANIEL K. INOUYE

Chairman, Committee on Commerce, Science, and Transportation, 

U.S. Senate, Washington, DC. 

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for S. 2657, a bill to require the 

Secretary of Commerce to prescribe regulations to reduce the incidence of vessels colliding with North Atlantic right whales by limiting the speed of vessels, and for other purposes. 

If you wish further details on this estimate, we will be pleased 

to provide them. The CBO staff contacts for this estimate are Deborah Reis (for federal costs), Amy Petz (for the private-sector impact), and Elizabeth Cove (for the state and local impact). 

Sincerely, 

PETER R. ORSZAG. 

Enclosure. 

S. 2657—A bill to require the Secretary of Commerce to prescribe 

regulations to reduce the incidence of vessels colliding with 

North Atlantic right whales by limiting the speed of vessels, 

and for other purposes 

S. 2657 would require the National Oceanic and Atmospheric Administration (NOAA) to issue—within 30 days of the bill’s enactment—a final rule on speed restrictions for vessels operating in the 

North Atlantic that would provide protection for North Atlantic 

right whales that is at least as stringent as a previously proposed 

rule would have provided. Based on information from NOAA, CBO 

estimates that implementing S. 2657 would have no significant effect on discretionary outlays and no effect on revenues or direct 

spending. The agency is already processing the proposed rule, and 

complying with S. 2657 would probably have minimal effect on the 

rulemaking procedure. 

By requiring the Secretary of Commerce to issue a rule that imposes speed restrictions on certain vessels, including publicly 

owned ferries, the bill could impose both a private-sector and an 

intergovernmental mandate as defined in the Unfunded Mandates 

Reform Act (UMRA). The bill would impose a mandate on certain 

vessels (both public and private) if the required rule establishes 

speed restrictions on those vessels that are more stringent than the 

restrictions that would have been included in the final rule in the 

absence of the bill. Based on information from NOAA, CBO estimates that the cost of any mandate would fall below the annual 

thresholds established in UMRA for private-sector and intergovernmental mandates ($136 million and $68 million in 2008, respectively, adjusted annually for inflation). 

The CBO staff contacts for this estimate are Deborah Reis (for 

federal costs), Amy Petz (for the private-sector impact), and ElizaVerDate Aug 31 2005 05:10 Jul 23, 2008 Jkt 069010 PO 00000 Frm 00006 Fmt 6659 Sfmt 6601 E:\HR\OC\SR429.XXX SR429

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beth Cove (for the state and local impact). The estimate was approved by Peter H. Fontaine, Assistant Director for Budget Analysis. 

REGULATORY IMPACT STATEMENT

In accordance with paragraph 11(b) of rule XXVI of the Standing 

Rules of the Senate, the Committee provides the following evaluation of the regulatory impact of the legislation, as reported: 

NUMBER OF PERSONS COVERED

S. 2657, as reported by the Committee, is likely to result in regulation of the speed of non-Federal vessels 65 feet or greater in overall length in limited geographic locations along the East Coast, at 

limited times. According to the Proposed Rule, it is likely to impact 

fewer than 1,000 vessels. By contrast, U.S. East Coast ports receive 

approximately 25,000 vessels a year, more than half of which are 

container ships and tankers. 

ECONOMIC IMPACT

The reported bill will have little impact on the overall economy. 

The Congressional Budget Office estimates that private sector economic impacts will be less than the threshold established under the 

unfunded Mandates Reform Act, $136 million in 2008. 

PRIVACY

The reported bill would have little, if any, impact on the personal 

privacy of U.S. citizens. 

PAPERWORK

The reported bill may increase paperwork requirements for the 

ports and shipping industry on the U.S. Atlantic Seaboard when 

sending out notices of the lower speed limit for vessels transiting 

in that area. 

CONGRESSIONALLY DIRECTED SPENDING

In compliance with paragraph 4(b) of rule XLIV of the Standing 

Rules of the Senate, the Committee provides that no provisions 

contained in the bill, as reported, meet the definition of congressionally-directed spending items under the rule. 

SECTION-BY-SECTION ANALYSIS

Section 1. Regulations to Protect North Atlantic Right Whales from 

Ship Strikes 

This section would require the Secretary of Commerce to promulgate a final rule that would require vessels transiting along the 

eastern seaboard to adhere to speed restrictions during certain 

times and in certain areas, based on and after duly considering all 

comments received regarding the Proposed Rule titled ‘‘Endangered 

Fish and Wildlife; Proposed Rule to Implement Speed Restrictions 

to Reduce the Threat of Ship Collisions with North Atlantic Right 

Whales’’ (71 Fed. Reg. 36299; June 26, 2006). Additionally, this section would require the Secretary to promulgate such final rule 

within 30 days after the enactment of this Act, and would mandate 


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that the final rule provide a level of protection for right whales 

against vessel collisions that is the same or greater to that afforded 

by the Proposed Rule. 

CHANGES IN EXISTING LAW

In compliance with paragraph 12 of rule XXVI of the Standing 

Rules of the Senate, the Committee states that the bill as reported 

would make no change to existing law. 

Æ 


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