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[Senate Report 110-429]
[From the U.S. Government Publishing Office]

110th Congress 
 2d Session                      SENATE                          Report
                                                                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
       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         JOHN McCAIN, Arizona
    Virginia                         KAY BAILEY HUTCHISON, Texas
JOHN F. KERRY, Massachusetts         OLYMPIA J. SNOWE, Maine
BYRON L. DORGAN, North Dakota        GORDON H. SMITH, Oregon
BARBARA BOXER, California            JOHN ENSIGN, Nevada
BILL NELSON, Florida                 JOHN E. SUNUNU, New Hampshire
MARIA CANTWELL, Washington           JIM DeMINT, South Carolina
FRANK R. LAUTENBERG, New Jersey      DAVID VITTER, Louisiana
MARK PRYOR, Arkansas                 JOHN THUNE, South Dakota
THOMAS CARPER, Delaware              ROGER F. WICKER, Mississippi
CLAIRE McCASKILL, Missouri
AMY KLOBUCHAR, Minnesota
          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

                                                       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

                                 REPORT

                         [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.

                          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 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.

                            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 Elizabeth 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 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.

                                  
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