Federal Register / Vol. 73, No. 198 / Friday, October 10, 2008 / Rules and Regulations 60173 

October 1, 2009, through December 31, 

2009: Cost submission due January 

30, 2010. 

Federal Communications Commission. 

Nicole McGinnis, 

Deputy Chief, Consumer and Governmental 

Affairs Bureau. 

[FR Doc. E8–24006 Filed 10–9–08; 8:45 am] 

BILLING CODE 6712–01–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 224 

[Docket No. 040506143–7024–03] 

RIN 0648–AS36 

Endangered Fish and Wildlife; Final 

Rule To Implement Speed Restrictions 

to Reduce the Threat of Ship Collisions 

With North Atlantic Right Whales 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: NMFS establishes regulations 

to implement speed restrictions of no 

more than 10 knots applying to all 

vessels 65 ft (19.8 m) or greater in 

overall length in certain locations and at 

certain times of the year along the east 

coast of the U.S. Atlantic seaboard. The 

purpose of the regulations is to reduce 

the likelihood of deaths and serious 

injuries to endangered North Atlantic 

right whales that result from collisions 

with ships. 

DATES: This final rule is effective 

December 9, 2008 through December 9, 

2013. 

ADDRESSES: Copies of this rule and 

Regulatory Impact Review, Final 

Environmental Impact Statement, 

Economic Analysis and Record of 

Decision related to this final rule can be 

obtained from the Web site listed under 

the electronic access portion of this 

document. Written requests for copies of 

these documents should be addressed 

to: Chief, Marine Mammal Conservation 

Division, Attn: Right Whale Ship Strike 

Reduction Rule, Office of Protected 

Resources, NMFS, 1315 East-West 

Highway, Silver Spring, MD 20910. 

Written comments regarding the 

burden-hour estimates or other aspects 

of the collection-of-information 

requirements contained in this final rule 

may be submitted to NMFS, Office of 

Protected Resources. 

FOR FURTHER INFORMATION CONTACT: 

Gregory Silber, PhD, or Shannon 

Bettridge, PhD, Fishery Biologists, 

Office of Protected Resources, NMFS, at 

(301) 713–2322. 

SUPPLEMENTARY INFORMATION: 

Electronic Access 

Several background documents 

related to this final rule, including the 

Regulatory Impact Review, Final 

Environmental Impact Statement, 

Economic Analysis and Record of 

Decision can be downloaded from 

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

Background 

The Western North Atlantic right 

whale (Eubalaena glacialis) was 

severely depleted by commercial 

whaling. The only remaining population 

off North America was reduced to a few 

hundred whales or less by the early 

1900s. Despite protection from 

commercial whaling since 1935, the 

remaining population has failed to fully 

recover. The best current estimate of 

minimum population size is 313 whales 

(Waring et al., 2007), which is 

approximately the same as it was 25 

years ago (Best et al., 2001). At this 

level, with the exception of North 

Pacific right whales, North Atlantic 

right whales are the world’s most 

critically endangered large whale 

species and one of the world’s most 

endangered mammals. 

Population models suggest that their 

abundance may have increased at about 

2 percent per year during the 1980s, but 

that it declined at about the same rate 

in the 1990s (Caswell et al., 1999). Data 

on the minimum number of whales 

alive during 1995–2002 indicate a slight 

increase in the number of catalogued 

whales during the period, but with 

statistically significant inter-annual 

variation in numbers due to declines in 

the minimum number of animals found 

alive during 1998–1999 (Waring et al., 

2007). Such population trends are very 

low compared to trends for populations 

of other large whales that are recovering, 

such as south Atlantic right whales and 

western Arctic bowhead whales, which 

have been recovering steadily at rates of 

4 percent or more per year. Inherently 

low rates of reproduction in large whale 

populations mean that recovery rates for 

large whale populations can be low 

under the best of circumstances. North 

Atlantic right whales may live 60 years 

or more. The age of first reproduction 

for female North Atlantic right whales is 

about 7 to 10 years old and calving 

intervals for the population have been 

estimated to average from about 3.5 to 

more than 5 years over the past three 

decades (Kraus et al., 2001; Kraus et al., 

2007). Considering the high rates of 

natural mortality for calves and 

juveniles compared to adults, 

population projections estimate that 

female right whales must produce at 

least four calves over their lifetime to 

replace themselves. To ensure 

population growth, adult females would 

need to produce more than four calves 

over their lifetime, because half of the 

calves born are male, and the survival 

of female calves to adulthood is less 

than 0.5 (Kraus et al., 2001). 

Between the mid 1980s and late 

1990s, documented calf production for 

the North Atlantic right whale 

population averaged about 11 calves per 

year (Kraus et al., 2001). Since 2000, a 

series of good calving years has 

provided a source of optimism for future 

recovery. Between 2000/01 and 2005/ 

06, calf production increased to an 

average of more than 22 calves per year 

and the average calving interval for 

adult females has declined to close to its 

lowest recorded level (Kraus et al., 

2007). However, the mean number of 

cows recruited into the population was 

3.8 per year (Kraus et al., 2001). 

Because of the species’ low 

reproduction level and small population 

size, even low levels of human-caused 

mortality can pose a significant obstacle 

for North Atlantic right whale recovery. 

Population modeling studies in the late 

1990s (Caswell et al., 1999; Fujiwara 

and Caswell, 2001) indicated that 

preventing the death of two adult 

females per year could be sufficient to 

reverse the slow decline detected in 

right whale population trends in the 

1990s. In this regard, the primary cause 

of the species’ failure to recover is 

believed to be mortality caused by 

collisions with ships and entanglement 

in commercial fishing gear (Kraus, 1990; 

Knowlton and Kraus, 2001; Moore et al., 

2005; NMFS, 2005; MMC, 2006). Since 

1970, there have been more than 73 

confirmed right whale deaths, nearly 

half of which (49 percent) have been 

attributed to ship collisions (29 deaths) 

or entanglements (7 deaths). NOAA 

believes the actual number of deaths is 

almost certainly higher than those 

documented as some deaths likely go 

undetected or unreported, and in many 

cases when deaths are detected or 

reported it is not possible to determine 

the cause of death from recovered 

carcasses. The number of documented 

deaths may be as little as 17 percent of 

the actual number of deaths (Kraus et 

al., 2005). 

The number of human-caused right 

whale deaths and serious injuries may 

be increasing. Since 1990, there have 

been more than 50 confirmed deaths, 56 

percent of which have been attributed to 


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60174 Federal Register / Vol. 73, No. 198 / Friday, October 10, 2008 / Rules and Regulations 

ship strikes (22 deaths) and 

entanglement (6 deaths). Between 2001 

and 2005, the minimum estimate of 

human-caused mortality and serious 

injury to North Atlantic right whales 

from ship strikes and fishery 

entanglements averaged 3.2 per year 

(Waring et al., 2007). This included nine 

known right whale ship strike deaths 

between 1991 and 2001, an average of 

1.8 per year. The number of ship 

collisions appears to be related to an 

overlap between important right whale 

feeding, calving, and migratory habitat 

and shipping corridors along the eastern 

United States and Canada. Most right 

whales that died as a result of ship 

collision were first reported dead in or 

near major shipping channels off east 

cost ports between Jacksonville, Florida 

and New Brunswick, Canada. Based on 

massive injuries found on whales killed 

by ships (e.g., crushed skulls, severed 

tail stocks, and deep, broad propeller 

wounds), it appears that a large majority 

of right whales killed by vessels are 

victims of collisions with large ships. 

The effect of vessel-related deaths on 

right whale recovery is especially 

significant because a disproportionate 

number of ship strike victims are female 

right whales. Of the 22 vessel-related 

deaths for which the sex and size of the 

animals is known, 80 percent are 

females, including at least three that 

were killed carrying full-term fetuses. 

The reasons for this are not clear, but 

one factor may be that pregnant females 

and females with nursing calves may 

spend more time at the surface where 

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 Atlantic 

Right Whale Recovery Plan (NMFS, 

2005) ranks steps to reduce and 

eliminate such deaths among its highest 

priorities, and indicates that developing 

and implementing an effective strategy 

to address this threat is essential to 

recovery of the species. 

In collaboration with other agencies 

and organizations, NMFS has 

undertaken extensive efforts to 

encourage voluntary actions by vessel 

operators to reduce the risk of collisions 

between ships and North Atlantic right 

whales. In part, it has sought to limit 

vessel approaches to right whales, 

increase awareness of east coast 

mariners about the vulnerability of right 

whales to ship strikes, and provide 

mariners with real time right whale 

sighting locations. To reduce 

disturbance and collision risks, NMFS 

published a regulation on February 13, 

1997 (62 FR 6729), prohibiting all 

vessels from approaching closer than 

500 yards (460 m) to any right whale. To 

help vessel operators avoid whales or 

take other appropriate measures, 

extensive aircraft surveys have been 

undertaken in waters off the U.S. 

southeast coast since 1993 and off the 

coast of New England since 1997, to 

inform mariners via various notification 

programs and media when and where 

right whales have been sighted. The 

program is operated in conjunction 

with, and supported by, a number of 

other organizations, including state and 

Federal agencies. In July 1999, the U.S. 

Coast Guard (USCG) and NMFS jointly 

implemented two Mandatory Ship 

Reporting systems (MSRS) that require 

all vessels 300 gross tons and greater 

that enter specified right whale feeding 

and calving habitats to report to a shorebased station for information on right 

whale protection. Incoming reports 

prompt an automated return message 

providing right whale sighting locations 

and information on how vessel/whale 

collisions can be avoided. Reporting 

vessels also must provide their entry 

location, destination, and ship speed to 

help analyze vessel related risks. 

To raise mariner awareness about 

right whale protection needs, NMFS 

also regularly updates navigational aids 

with information on the status of right 

whales, times and areas where they 

occur, threats posed by ships, 

provisions of the MSRS, and advice on 

measures mariners can take to reduce 

the likelihood of hitting right whales. 

One such aid is the U.S. Coast Pilot, a 

set of regionally-specific references on 

marine environmental conditions, 

navigation hazards, and regulations. 

Captains of commercial vessels 1600 

gross tons and above are required to 

carry the Coast Pilot when operating in 

U.S. waters. Current information is also 

provided via the National GeospatialIntelligence Agency’s Notice to 

Mariners, and the United Kingdom’s 

Admiralty Publications, both of which 

provide guidance for mariners traveling 

in international waters. In 2005, NMFS 

began broadcasting advisories over 

NOAA Weather Radio and other media 

urging that ships limit speeds to 12 

knots or less (subsequently lowered to 

10 knots since June 2006) when they are 

in areas where right whales had been 

sighted. Mariner education programs 

also have been established and others 

are under development by a coalition of 

groups and individuals, including the 

Northeast and Southeast Right Whale 

Recovery Plan Implementation Teams, 

to help train and educate professional 

mariners and recreational boaters about 

right whale protection needs. 

In addition, Federal agencies that 

conduct ship operations along the U.S. 

east coast have been advised to modify 

their vessel operating procedures by 

posting extra lookouts in areas where 

whales may occur, limiting transits 

through such areas, and training ship 

crews on ways to detect, identify, and 

avoid large whales. The USCG and U.S. 

Navy have issued speed advisories to 

their respective Atlantic fleets, and in 

2005, NMFS contacted all relevant 

Federal agencies requesting that their 

vessels proceed at 12 knots or less when 

in right whale habitat unless other 

overriding needs (e.g., national security 

or rescue mission) would be 

compromised. The USCG and Navy 

have standing orders to report sightings 

or collisions. Although the NMFS ship 

strike database reflects a 

disproportionately high number of ship 

strikes attributable to USCG and Navy 

vessels, this is likely due to the high 

reporting rate by those agencies relative 

to other mariners and vessels, rather 

than a higher incidence of right whale 

ship strikes by Federal agency vessels. 

Despite measures developed and 

undertaken by agencies, stakeholders, 

partners, and industry to date, right 

whale deaths from ship strikes continue 

and voluntary measures appear to be 

insufficient. For example, a right whale 

was struck by a vessel off Georgia in 

2005. The operator was aware of right 

whale protection needs and 

immediately contacted the USCG and 

stood by the whale until officials 

arrived. He was unable, however, to 

detect and avoid the whale. Given the 

undiminished occurrence of collisions 

with right whales, NMFS has concluded 

that existing measures are insufficient to 

reduce the likelihood of ship strikes and 

allow the species to recover. 

Accordingly, NMFS determined that 

further action is required, and that a 

rule to limit vessel speeds in times and 

areas where right whales are most likely 

to occur is necessary. This rulemaking 

is designed to significantly reduce the 

occurrence and severity of collisions 

with North Atlantic right whales while 

minimizing adverse impacts on ship 

operations. 

NMFS proposed regulations to reduce 

the threat of ship strikes in an Advanced 

Notice of Proposed Rulemaking (ANPR) 

(69 FR 30857; 1 June 2004) and a Notice 

of Proposed Rulemaking (NPRM)(71 FR 

36299; 26 June 2006). As part of the 

proposed rulemaking, NMFS prepared 

and circulated a Draft Environmental 

Impact Statement (DEIS) which 

provided evaluations for a range of 

alternative measures. In the NPRM, 

NMFS identified speed restrictions of 

vessels along the coastal U.S. Atlantic as 

the best way to reduce ship strikes. 

Substantial evidence (Laist et al., 2001; 


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Jensen and Silber, 2003; Vanderlaan and 

Taggart, 2007) indicates that vessel 

speed is an important factor affecting 

the likelihood and lethality of whale/ 

vessel collisions. Therefore, NMFS 

proposed restricting vessel speed at 

certain times and in certain locations to 

reduce this threat. NMFS requested 

public comment on the proposed 

regulations and provided a public 

comment period of 102 days and 

sponsored an extended series of public 

meetings. Below, we summarize the 

comments received, responses to those 

comments, and changes made to the 

proposed regulations in light of the 

comments. 

In addition to the speed restrictions 

identified in this rulemaking, NMFS 

and other agencies are taking other 

steps, as described in the ANPR and 

NPRM, to reduce the likelihood of ship 

strikes. Among these are certain routing 

measures. In November 2006, NOAA 

established a set of recommended 

shipping routes in key right whale 

aggregation areas in Cape Cod Bay and 

at the entrances to three ports in Georgia 

and Florida. The routes are expected to 

reduce the co-occurrence of right whales 

and ships in those areas. Although the 

identified routes are now voluntary, 

NMFS intends to track mariner use of 

the routes and may consider making 

them mandatory. Information on those 

routes can be found at http:// 

www.nmfs.noaa.gov/pr/shipstrike/. In 

addition, the United States prepared 

and submitted to the International 

Maritime Organization (IMO) a proposal 

to reconfigure the ‘‘Traffic Separation 

Scheme’’ (TSS) that services Boston, 

Massachusetts. The realignment— 

involving only a 12 degree shift in the 

northern leg and narrowing the two 

traffic lanes by approximately 1/2 mile 

each—is expected to provide a 

significant reduction in ship strike risk 

to right whales and all baleen whale 

species occurring in the area, with 

minimal concurrent impact to mariners 

using the TSS. The IMO reviewed and 

adopted the proposal, and the 

realignment was implemented in July 

2007. These routing measures are not 

the subject of this rulemaking. 

Comments on the Notice of Proposed 

Rulemaking and Responses 

NMFS received 10,252 comments on 

the June 26, 2006, NPRM from 

governmental entities, individuals, and 

organizations. NMFS received these 

comments in the form of electronic 

mail, letters, website submissions, 

correspondence from action campaigns 

(e-mail and U.S. postal mail), and 

facsimile. Of those, 10,027 were form 

letters expressing general support for 

the proposed regulations; 225 contained 

substantive comments on specific 

measures or components of the 

proposed rule. All comments have been 

compiled and posted at http:// 

www.nmfs.noaa.gov/pr/shipstrike. In 

the text below, NMFS provides a 

summary of the comments, 

recommendations, and issues raised that 

directly relate to the measures in this 

rulemaking, provides responses to them, 

and identifies changes to the proposed 

regulations. 

Comment 1: A number of commenters 

questioned NMFS’s data on the size and 

status of the North Atlantic right whale 

population, its growth rate, and/or 

whether ship collisions are a major 

threat. 

Response: NMFS relies on the best 

available scientific information to assess 

North Atlantic right whale abundance, 

status and threats. Primarily, this 

includes Stock Assessment Reports 

(SAR) required by the Marine Mammal 

Protection Act (MMPA), and the peer 

reviewed scientific literature. The SAR 

for North Atlantic right whales is 

updated annually and reviewed both 

internally and externally by teams of 

scientists. The 2007 SAR for North 

Atlantic right whales (Waring et al., 

2007) indicates that the best estimate of 

minimum population size for the 

species is 313 individually recognized 

whales known to be alive during 2002. 

Because these data are from 

identification photographs and genetic 

samples in all known right whale 

aggregation areas and very few new 

adult whales have been added since the 

mid-1990s, NMFS believes that these 

records represent a nearly complete 

census of the population. Therefore, 

NMFS concludes that they provide an 

accurate representation of the 

population’s minimum size. 

NMFS also considered additional 

population analyses and modeling 

exercises that were conducted and 

published in the peer-reviewed 

literature (e.g., Caswell et al., 1999; 

Fujiwara and Caswell, 2001). Those 

studies cite high mortality rates in the 

1980s and 1990s and conclude that the 

population began to decline in the early 

1990s. They indicate that preventing the 

death of even one adult female could 

significantly affect the population’s 

trend. A 2001 evaluation by the 

International Whaling Commission’s 

Scientific Committee (Best et al., 2001) 

also concluded that the population of 

North Atlantic right whales is not likely 

much greater than 300 individuals. By 

every measure developed in the field of 

conservation biology, wild animal 

populations of this size would be 

considered critically endangered. 

With regard to the population’s 

growth rate, calf production has been 

relatively high in recent years, but on a 

longer scale, calf production is erratic. 

Annual calf production ranged from 1 to 

31 and averaged 11 calves up until 

2000, but totaled 31, 21, 19, 16, 28, and 

19 from 2000/01 to 2005/06, 

respectively. In assessing the impact of 

this production on the long-term 

viability of the population, it is essential 

that calf mortality rates also be 

considered. Documented (others may go 

undetected) calf deaths were: two in 

1993, three in 1996, one in 1997, one in 

1998, four in 2001, and two in 2002; this 

evidence prompted Kraus et al. (2005) 

to conclude that the number of births 

still is not sufficient to compensate for 

the number of adult deaths over the past 

two decades. As indicated above, 

observed mortality, as based on peerreviewed statistical procedures, is 

almost certainly lower than the actual 

mortality. All indications are that the 

population is small, growth in the adult 

population is static or possibly 

declining, and despite recent increases 

in reproduction the premature deaths of 

female right whales due to ship 

collisions have significantly impeded 

the potential population recovery. Of 

particular significance is the recent loss 

of breeding females, the most important 

demographic component of the 

population. 

With regard to threats from human 

activities, the two principal ones are 

entanglement with fishing gear and ship 

strikes. From 1970 to 2005, 67 right 

whale carcasses have been found (Best 

et al., 2001; MMC, 2006). This is only 

a portion of the actual number of deaths 

because the detected fraction is less 

than one-half the total mortality 

assuming a static population of 300 

whales. Of these 67 dead whales, 25 

died as a result of collisions with ships, 

six from entanglement in fishing gear, 

17 were fetuses that either died of 

unknown causes or from the death of its 

mother, and for the remainder the cause 

of death could not be determined (Best 

et al., 2001; Moore et al., 2005; MMC, 

2006). Of the 67 carcasses, 44 were 

recovered between 1990 and 2005. Of 

these, 18 deaths resulted from ship 

strikes, five from entanglement, nine 

were perinatal, and in 12 cases the 

cause of death could not be determined 

(MMC, 2006). In assessments of large 

whale serious injuries and deaths 

occurring in U.S. east coast, Gulf of 

Mexico, and Canadian Maritime waters, 

Nelson et al. (2007) and Glass et al. 

(2008) documented a minimum of an 

annual average rate of 1.8 right whales 

deaths and serious injuries from 2001– 


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60176 Federal Register / Vol. 73, No. 198 / Friday, October 10, 2008 / Rules and Regulations 

2005, and 2.4 from 2002–2006, 

respectively. In an eight-week period 

from mid-November 2004 to midJanuary 2005, four dead right whales 

were found, including one that was 

killed by a ship and two others that had 

wounds from previous ship collisions 

that may have contributed to their 

deaths. All three whales hit by ships 

were adult females, two of them 

carrying full-term fetuses; another adult 

female with a full-term fetus was killed 

by a ship earlier in 2004. Thus, the 

majority of the deaths were caused by 

human activities, and of these the 

majority were from ship strikes. All 

evidence indicates that vessel collisions 

represent a significant cause of 

mortality. 

As a result of low population size for 

North Atlantic right whales, lack of 

observed population growth, and deaths 

from human activities, NMFS 

determined in 2000, and each year 

since, that the North Atlantic right 

whale population’s ‘‘Potential Biological 

Removal’’ (PBR)—defined by the MMPA 

as ‘‘the maximum number of 

individuals, not including natural 

mortalities, that may be removed from a 

marine mammal stock while allowing 

that stock to reach or maintain its 

Optimum Sustainable Population’’—is 

zero. That is, under the MMPA, the 

population can sustain no deaths or 

serious injuries due to human causes if 

its recovery is to be assured. 

The species is listed as Endangered on 

the Endangered Species Act’s (ESA) List 

of Threatened and Endangered Wildlife 

and Plants, and as Depleted under the 

MMPA. Thus, under these statutes, it is 

illegal to strike a right whale with a 

ship. 

Nonetheless, there is a role for 

rigorous and effective measures to 

minimize the risk of illegal takings of 

right whales resulting from ship 

collisions and to promote efforts to 

conserve and recover the population. 

Comment 2: Comments relating to 

vessel speed restrictions fell into several 

categories: (A) Some indicated that it 

was not clear that speed restrictions 

would reduce the threat of ship strikes 

to North Atlantic right whales and 

indicated that NMFS’s evidence and 

justification for proposing vessel speed 

restrictions was not adequate; (B) some 

indicated that a large vessel would lose 

adequate steerage at certain minimum 

speeds (see ‘‘Vessel maneuverability,’’ 

below); (C) some indicated that speed 

restrictions would result in an undue 

economic burden to segments of the 

maritime industry (see ‘‘Potential 

economic impact’’ below); and (D) some 

supported speed restrictions as an 

important conservation measure and 

encouraged NMFS to require vessel 

speed of 10 knots in regulated areas. 

Although NMFS requested specific 

comments with regard to speed 

restrictions of 12 and 14 knots, few were 

received. Some shipping companies or 

trade associations indicated they 

preferred 14 knots over 10 knots as a 

way to reduce the economic burden of 

a 10-knot speed restriction. NMFS also 

received comments indicating that 

records of speeds of vessels involved in 

ship strikes are the same speeds at 

which vessels normally travel, and that 

collision records therefore are merely a 

reflection of speed that the population 

of ocean-going vessels tend to travel. 

Some commenters expressed a belief 

that fast moving vessels would emit 

more noise than vessels under speed 

restrictions, thereby alerting whales in 

the path. Several commenters suggested 

that the likelihood of a serious injury to 

a whale is a function more of vessel 

mass, rather than vessel speed, and that 

a large vessel hitting a whale at any 

speed could cause serious injury. 

Response: (A) Evidence and 

Justification: NMFS examined the best 

available scientific information in 

determining that the use of speed 

restrictions would be an effective means 

to reduce the likelihood and severity of 

ship strikes, and has set the limit for the 

restrictions based upon this evidence. 

Based on inventories of all known 

collisions between ships and large 

whale species, including right whales 

(Knowlton and Kraus, 2001; Laist et al., 

2001; Jensen and Silber, 2003), 

Vanderlaan and Taggart (2007) 

examined all records for which ship 

speed at the time of impact was known. 

Based on their analysis, these authors 

concluded that the probability of a 

collision causing a whale’s death 

increased rapidly and in a non-linear 

manner as vessel speed increased. They 

found that between the speeds of 9 and 

20 knots, the probability of collision 

causing a whale’s death rose from 20 to 

100 percent, respectively. The greatest 

increase occurred between the speeds of 

10 and 14 knots. They determined that 

the probability of death occurring from 

a collision was approximately 35–40 

percent at 10 knots, 45–60 percent at 12 

knots, and 60–80 percent at 14 knots 

(Vanderlaan and Taggart, 2007). This 

analysis did not control for ship size. In 

an independent analysis using 64 

records of ship strikes in which vessel 

speed was known, Pace and Silber 

(2005) tested speed as a predictor of the 

probability of a whale death or serious 

injury. They found strong evidence that 

the probability of death or serious injury 

increased rapidly with increasing vessel 

speed. Specifically, the predicted 

probability of serious injury or death 

increased from 45 percent to 75 percent 

as vessel speed increased from 10 to 14 

knots, and exceeded 90 percent at 17 

knots. 

In a compilation of ship strikes of all 

large whale species that assessed ship 

speed as a factor in ship strikes, Laist et 

al. (2001) concluded that a direct 

relationship existed between the 

occurrence of a whale strike and the 

speed of the vessel. These authors 

indicated that most deaths occurred 

when a vessel was traveling at speeds of 

14 knots or greater and that, as speeds 

declined below 14 knots, whales 

apparently had a greater opportunity to 

avoid oncoming vessels. Adding to the 

Laist et al. (2001) study, Jensen and 

Silber (2003) compiled 292 records of 

known or probable ship strikes of all 

large whale species from 1975 to 2002. 

Vessel speed at the time of the collision 

was reported for 58 of those cases. 

Operating speeds of vessels that struck 

various species of large whales ranged 

from 2–51 knots with an average speed 

of 18.1 knots. A large majority (85.5 

percent) of these strikes occurred at 

vessel speeds of 10 knots or greater. 

With regard to right whales 

specifically, the speeds of vessels were 

known with a high degree of certainty 

in two cases; in three other cases 

possibly involving right whales vessel 

speeds are also known. A juvenile right 

whale was killed on January 5, 1993, in 

waters off north Florida by an 82-ft 

(24.9-m) vessel operating at 15 knots. In 

waters off Cumberland Island, Georgia 

in March 2005, a 43-ft (13.1-m) vessel 

struck a right whale and severely 

injured the animal by nearly completely 

severing one lobe of its tail flukes. The 

boat was traveling at 20 knots and based 

on the whale’s poor condition when last 

seen in summer 2005, it is presumed 

that the whale died. In winter 1972–73, 

a bulbous bow container ship traveling 

at 21–23 knots east of Boston, 

Massachusetts collided with and killed 

an unidentified whale thought possibly 

to have been a right whale (Laist et al., 

2001). A whale calf, also possibly a right 

whale, was killed on July 6, 1991, off 

Delaware Bay by a ship traveling at 22 

knots. 

In November 2004, a Federal vessel 

traveling 21 knots outside the mouth of 

the Chesapeake Bay reported hitting a 

whale. A severely injured right whale in 

the area of the collision was reported a 

few hours later and, although not linked 

definitively to the strike, a dead adult 

right whale with massive injuries 

washed ashore in northern North 

Carolina about a week later. 


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Not all ship strikes are detected or 

documented. The right whale records 

identified above are only those in which 

the species, vessel speed, and fate of the 

animal were known. Records of vessel 

collisions with large whales are 

numerous, involve a number of species, 

variety of vessel types, and occur in 

various geographic locations (Jensen 

and Silber, 2003; Van Waerebeek and 

Leaper, 2008). For example, Van 

Waerebeek and Leaper (2008) recently 

identified 763 such records, worldwide. 

As noted above, for North Atlantic right 

whales alone, Nelson et al. (2007) 

determined that there were an average 

of 1.8 known right whale ship strike 

deaths and serious injuries per year in 

U.S. eastern seaboard, adjacent 

Canadian Maritimes, and Gulf of Mexico 

waters between 1999 and 2005. Glass et 

al. (2008) documented an average of 2.4 

per year for the same waters in the years 

2002 to 2006. In a separate analysis, 

Vanderlaan and Taggart (2007) 

concluded that right whales are far more 

vulnerable, per capita, to ship strikes 

than other large whale species. 

Effects of vessel speed on collision 

risks also have been studied using 

computer simulation models to assess 

hydrodynamic forces vessels have on a 

large whale (Knowlton et al., 1995; 

Knowlton et al., 1998). These studies 

found that, in certain instances, 

hydrodynamic forces around a vessel 

can act to pull a whale toward a ship. 

These forces increase with increasing 

speed and thus a whale’s ability to 

avoid a ship in close quarters may be 

reduced with increasing vessel speed. 

Related studies by Clyne (1999) found 

that the number of simulated strikes 

with passing ships decreased with 

increasing vessel speeds, but that the 

number of strikes that occurred in the 

bow region increased with increasing 

vessel speeds. 

In measuring the forces involved in 

whale/ship collisions using whale and 

ship models in a tow tank, Slutsky 

(2007) determined that the magnitude of 

forces exerted on the whale increased 

linearly as vessel speed increased. 

In a modeling study using data from 

actual observed encounters of right 

whales with vessels, Kite-Powell et al. 

(2007) determined that more than half of 

right whales located in or swimming 

into the path of an oncoming ship 

traveling at 15 knots or greater are likely 

to be struck even if the whale takes 

evasive action. However, the strike risk 

posed by a conventional ship moving 20 

to 25 knots could be reduced by 30 

percent by slowing to 12 or 13 knots, 

and by 40 percent at 10 knots, due to the 

whales’ increased ability to detect and 

avoid approaching vessels. 

Campbell-Malone (2007) examined 

the bio-mechanical properties of right 

whale mandibles as related to blunt 

force trauma inflicted by a vessel. Citing 

Kite-Powell et al. (2007), CampbellMalone (2007) indicated that there are 

compound (both behavioral and force of 

impact) benefits to implementing speed 

restrictions, and concluded that both 

studies predict a reduction of right 

whale deaths as a result of vessel speed 

limits in right whale habitat. 

With regard to the comment that 

whales are more likely to move away 

from vessels traveling fast because they 

are emitting more noise than slower 

ships, Nowacek et al. (2003) used a 

multi-sensor acoustic recording tag to 

measure the responses of right whales to 

passing ships and found that right 

whales showed little or no response to 

playback sounds of approaching vessels 

or actual vessels, regardless of vessel 

speed. 

With regard to comments that serious 

injury to a whale is a function more of 

vessel mass, rather than vessel speed, 

and that a large vessel hitting a whale 

at any speed could cause serious injury, 

NMFS believes that the analysis 

conducted by Vanderlaan and Taggart 

(2007) indicates that the force striking a 

whale is likely more a function of vessel 

speed and mass of the whale, rather 

than vessel mass. In an analysis of 

vessel mass versus vessel speed and the 

likelihood and severity of injury to 

manatees, Calleson and Frohlich (2007) 

concluded that vessel speed, not mass, 

was the most critical factor. They 

calculated, for example, that a doubling 

of the speed of a vessel would 

quadruple the amount of impact energy 

to the manatee, while quadrupling the 

speed would increase the amount of 

energy by a factor of 16. 

With regard to the comment that the 

records of vessel speeds at which ship 

strikes occur are a reflection of the 

speeds vessels travel generally, Pace and 

Silber (2005) compared the distribution 

of speeds at which known ship strikes 

occurred with the distribution of speeds 

of ships reporting into the Mandatory 

Ship Reporting systems, which they 

considered representative of speeds that 

ships travel in general. The authors 

found that these two distributions were 

significantly different, suggesting that 

ship strikes involved vessels that were 

traveling faster than vessels tended to 

travel overall. 

Finally, NMFS is not aware of any 

data or studies that would contradict 

those cited above. No data, studies, or 

analyses were provided in the public 

comments demonstrating either that 

high vessel speeds would reduce the 

threat of ship collisions with right 

whales or that slow speeds would not 

reduce the likelihood or severity of a 

strike. 

Vessel speed restrictions have been 

used in efforts to protect endangered 

marine species other than right whales. 

For example, such restrictions have 

been used by the U.S. Fish and Wildlife 

Service to reduce watercraft collisions 

with manatees. In an analysis of the 

effectiveness of one such program, Laist 

and Shaw (2006) concluded that 

manatee deaths were substantially 

reduced after slow speed restrictions 

were imposed throughout a Florida 

waterway that had been one of the 

deadliest areas in the state for watercraft 

related manatee deaths. Whereas 

watercraft-related manatee deaths had 

averaged 2.34 per year in the 42 months 

before the measures went into effect in 

June 2002, they were reduced to 0.29 

per year in the 42 months after they 

went into effect. 

Vessel speed restrictions have also 

been established to protect other 

endangered large whale species. The 

National Park Service adopted 

regulations implementing a 13-knot 

speed limit for vessels in Glacier Bay 

National Park and Monument, Alaska, 

to reduce the likelihood of hitting 

humpback whales (National Park 

Service, 2003). Analyses of its 

effectiveness are not yet available. 

However, owners of a cruise ship that 

killed a humpback whale in Glacier Bay 

while exceeding the speed limit agreed 

to pay a substantial fine for exceeding 

the speed limit there. 

In an experiment to determine the 

effects of vessel speed and the incidence 

of collisions involving marine turtles, 

Hazel et al. (2007) determined that 

vessel speed was a significant factor in 

the likelihood of a strike and concluded 

that mandatory vessel speed restrictions 

were necessary to reduce the risk of 

strikes to sea turtles. 

As a result of a number of ship strike 

deaths of blue whales in waters off 

southern California, vessel speed 

advisories of 10 knots or less were 

provided by the USCG, in collaboration 

with NMFS and the Channel Islands 

National Marine Sanctuary, within 20 

nm of the entrances to the ports of Los 

Angeles and Long Beach. 

Elsewhere, Panigada et al. (2006) 

concluded that vessel speed restrictions 

and the re-location of vessel routes in 

high cetacean density areas would 

reduce the likelihood of ship strikes of 

fin whales in the Mediterranean Sea. 

Based on the analysis indicating the 

conservation value of reduced vessel 

speeds and after considering concerns 

and information submitted in response 

to the ANPR and NPRM, NMFS has 


jlentini on PROD1PC65 with RULES
60178 Federal Register / Vol. 73, No. 198 / Friday, October 10, 2008 / Rules and Regulations 

determined that a 10-knot speed 

restriction would significantly reduce 

the risk of serious or lethal collisions for 

right whales in areas where such speed 

restrictions would apply, also reducing 

potential economic hardship on the 

maritime industry. Therefore, NMFS has 

concluded, based on the best available 

scientific evidence, that a maximum 

speed of 10 knots, as measured as 

‘‘speed over ground’’, in times and 

locations specified below, is the most 

effective and practical approach to 

reducing the threat of ship strikes to 

right whales. Ten knots therefore is the 

speed required by these regulations. 

(B) A number of comments were 

received indicating that large vessels 

lose steerage at low speeds, and that 

navigational safety was at risk at speeds 

of 10 knots or less in adverse wind or 

sea conditions and given the 

characteristics of the vessel. Comments 

from pilots indicated that adequate 

maneuverability was particularly 

important when negotiating a port 

entrance or channel. 

Response: NMFS believes that, based 

on conversations with mariners and 

application of speed restrictions in other 

contexts, except in severe conditions, 

most ocean-going vessels maintain 

adequate steerage at speeds of 10 knots 

or less. For example, NMFS points out 

that, as a result of consultations under 

the Endangered Species Act and the 

National Marine Sanctuaries Act, the 

Maritime Administration (MARAD) now 

requires, as a condition of a Federal 

Deepwater Port license, that carriers of 

liquefied natural gas (LNG) traveling to 

deepwater ports off Boston proceed at 

speeds of 10 knots or less when right 

whales are detected in the area (NMFS, 

2007a; NMFS, 2007b). Thus an 

important segment of the maritime 

industry has agreed to abide by a 10- 

knot speed restriction to protect 

endangered marine mammals, and 

navigational safety with regard to 

maneuverability at that speed was not 

raised as an issue during those 

consultations. 

The USCG also has established 

similar speed limits in some river and 

port entrances ranging from 5–10 knots, 

for purposes other than wildlife 

conservation, primarily to enhance 

national security (e.g., 66 FR 53712; 67 

FR 41337; 68 FR 2201). For example, in 

one rule (66 FR 53712) the USCG 

required vessels 300 gross tons or 

greater to travel at eight knots or less 

near Naval Station Norfolk. Based on 

comments that speeds of eight knots 

might adversely affect large vessel 

maneuverability, the USCG increased 

the limit to 10 knots (68 FR 35173). 

In another example, the ports of Los 

Angeles and Long Beach, two of the 

largest ports in the country, ask that 

vessels voluntarily reduce speed to 12 

knots within 20 nm (37 km) of the bay 

to reduce particulate matter emissions. 

Those ports are considering tariff-based 

incentives and have developed a plan to 

make the speed reductions mandatory. 

Also, in many locations, state pilots 

require that vessels approaching ports 

slow to speeds of 5 to 10 knots to allow 

port pilots to embark and disembark 

vessels. Finally, in June 2007, the 

Government of the Hong Kong Special 

Administrative Region implemented 

vessel speed restrictions of 5 knots, 

applying to all vessels, in numerous 

ports and port entrances throughout 

most of Hong Kong harbor and 

neighboring waters to enhance 

navigational and human safety (Hong 

Kong Special Administrative Region, 

2007). NMFS is not aware of reports of 

increased hazard or vessels losing 

maneuverability at the speeds at the 

locations and regions identified above. 

Further, NMFS is not aware of reports 

of increased hazard or loss of vessel 

maneuverability in any of the cases 

indicated above (i.e., the waters of 

southern California, LNG carriers in 

waters off New England, Hong Kong 

harbor, or Glacier Bay, Alaska) in which 

mandatory or voluntary vessel speed 

limits were imposed. 

Nevertheless, NMFS is concerned 

about human and navigational safety, 

especially when severe conditions exist. 

Therefore, in response to comments, 

NMFS is establishing the following 

exception to speed restrictions being 

established in this rule: A vessel may 

operate at a speed necessary to maintain 

safe maneuvering instead of the 

required ten knots only if justified 

because the vessel is in an area where 

oceanographic, hydrographic and/or 

meteorological conditions severely 

restrict the maneuverability of the vessel 

and the need to operate at such speed 

is confirmed by the pilot on board or, 

when a vessel is not carrying a pilot, the 

master of the vessel. If a deviation from 

the ten-knot speed limit is necessary, 

the reasons for the deviation, the speed 

at which the vessel is operated, the area, 

and the time and duration of such 

deviation shall be entered into the 

logbook of the vessel. The master of the 

vessel shall attest to the accuracy of the 

logbook entry by signing and dating it. 

(C) A number of comments were 

received regarding the potential 

economic impacts to commercial vessel 

operators arising from the proposed 

regulations. 

Response: Economic impacts are 

addressed in the Final Environmental 

Impact Statement, Regulatory Impact 

Review, and Regulatory Flexibility Act 

analysis, below. 

(D) NMFS received a number of 

comments on the timing and boundaries 

of the seasonal management areas 

(SMAs). Many were supportive of the 

sizes and dates of the areas as being 

appropriately protective of right whales. 

Some provided specific 

recommendations about modifying 

(either enlarging or diminishing) the 

size of the areas or length of time in 

which the restrictions applied. Some 

comments questioned NMFS’s decision 

to use the upper boundary of the radii 

around key mid-Atlantic ports described 

in the ANPR (the ANPR suggested a 

range of 25–30 nm (46.3–55.6 km); the 

NPRM proposed 30 nm (55.6 km)). 

Some comments dealt with economic 

impact of SMAs, contending that 

sufficient right whale sighting data were 

lacking or economic impacts were too 

great. 

Response: Economic impacts resulting 

from modifications contained in this 

final rule relative to the proposed rule 

are described in the Regulatory 

Flexibility Act analysis, below. With 

regard to comments specific to the times 

and boundaries of SMAs, NMFS 

provides responses here. 

In its NPRM, NMFS proposed to 

require vessel speed restrictions in 

certain times and areas along the U.S. 

eastern seaboard. NMFS divided waters 

off the east coast into three regions: 

Southeast U.S. coast (south of St. 

Augustine, Florida to north of 

Brunswick, Georgia), U.S. mid-Atlantic 

coast (generally, from slightly north of 

Brunswick, Georgia to, and including, 

Rhode Island), and northeast U.S. coast 

(north of Rhode Island), based on 

differences in right whale distribution 

and behavior, oceanographic conditions, 

and ship traffic patterns. The timing, 

duration, and geographic extent of the 

speed restrictions were tightly 

constricted to reflect right whale 

movement, distribution, and aggregation 

patterns to minimize potential impacts 

to ship operations. 

In light of the comments received, 

NMFS reviewed data on the timing and 

locations of right whale occurrence. An 

analysis of sightings data from 1972 

through 2000 from the South Carolina/ 

Georgia border to Connecticut (n = 290) 

indicated that approximately 83 percent 

of all right whale sightings occurred 

within 20 nm (37 km) of the coast, and 

approximately 90 percent of all right 

whale sightings occurred within 30 nm 

(55.6 km) of the coast. 

After weighing the proposed speed 

limit areas relative to the economic 

impacts on elements of the shipping 


jlentini on PROD1PC65 with RULES
Federal Register / Vol. 73, No. 198 / Friday, October 10, 2008 / Rules and Regulations 60179 

industry, NMFS has made a number of 

changes to the locations of the SMAs 

relative to the proposed rule, which are 

described below. However, following 

the issuance of these regulations, NMFS 

will continue to monitor right whale 

sighting locations relative to these 

boundaries and may modify them, as 

appropriate, if changes are warranted 

based on shifts in right whale 

occurrence or additional analysis. 

(1) Southeast United States (SEUS) 

Operational Measure: In considering the 

comments and in reviewing sighting 

data regarding the key calving/nursery 

area in waters off Georgia and Florida, 

NMFS has decided not to modify the 

dates nor the boundaries in which the 

vessel speed restrictions apply. 

Therefore, speed restrictions of 10 knots 

or less, over ground, will apply from 

November 15 to April 15 each year in 

an area bounded by the following: 

Beginning at 31°27′00.0′′ N–080°51′36.0′′ 

W; thence west to charted mean high 

water line then south along charted 

mean high water line and inshore limits 

of COLREGS limit to a latitude of 

29°45′00.0′′ N; thence east to 29°45′00.0′′ 

N–080°51′36.0′′ W; thence back to 

starting point (Fig. 1). 

(2) Mid-Atlantic Region of the U.S. 

(MAUS) Operational Measure: This area 

is used by right whales, particularly 

pregnant females and females with 

calves, migrating to and from calving/ 

nursery areas in the SEUS and feeding 

grounds off the northeastern U.S. coast 

and Canada. In the NPRM, NMFS 

proposed vessel speed restrictions 

within half-circles seaward of seven key 

ports or port entrances. 

Commenters contended that the 

economic impact of the SMAs was too 

great without a concurrent and equal 

conservation benefit. NMFS has 

reviewed right whale sighting data and, 

as a result, has decided not to change 

the seasonality and duration of when 

measures apply in this region. 

Therefore, vessel speed restrictions of 

10 knots or less, over ground, will apply 

November 1 through April 30 each year. 

Based on comments and a review of 

sighting data, which includes recurring 

right whale sightings between these 

ports, NMFS has decided to modify the 

size and boundaries of the SMAs in the 

MAUS. NMFS makes this change to 

reduce the economic burden on 

regulated entities while maintaining the 

majority of the conservation benefits of 

the SMA. The southern portion of the 

MAUS is modified to include a 

continuous SMA extending 20 nm (37 

km) from shore (rather than 30 nm (55.6 

km) half-circles) from Wilmington, 

North Carolina, south toward 

Brunswick, Georgia (Fig. 2). Two 

stretches along the South Carolina 

coastline will now be included in a 

continuous SMA. With the new 20-nm 

restriction zones in the MAUS, the 

weighted average coast-wide time 

burden per vessel arrival would be 53 

minutes compared to 73 minutes in the 

proposed rule with the 30-nm zones. By 

changing the speed restriction zones in 

the MAUS, the transit times through the 

20-nm speed restriction zones dropped 

by 18 to 28 minutes (weighted average, 

depending on port) relative to the 30-nm 

restriction zones. Therefore, a 10-knot 

over-ground speed restriction will apply 

from November 1 through April 30 each 

year in the area bounded by the 

following: 33°56′42.0′′ N–077°31′30.0′′ 

W; thence along a NW bearing of 

313.26° True to charted mean high 

water line then south along mean high 

water line and inshore limits of 

COLREGS limit to a latitude of 

31°27′00.0′′ N; thence east to 31°27′00.0′′ 

N–080°51′36.0′′ W; thence to 31°50′00.0′′ 

N–080°33′12.0′′ W; thence to 32°59′06.0′′ 

N–078°50′18.0′′ W; thence to 33°28′24.0′′ 

N–078°32′30.0′′ W; thence to 33°36′30.0′′ 

N–077°47′06.0′′ W; thence back to 

starting point. 

As to the remainder of the SMAs in 

this region, the ten-knot speed 

restrictions will be in effect around each 

of the port or bay entrances identified 

below and the designated area around 

Block Island Sound. The areas are 

defined as the waters within a 20-nm 

(37-km) area (rather than the proposed 

30-nm (55.6-km)) with an epicenter 

located at the midpoint of the COLREG 

demarcation line crossing the entry into 

the following designated ports or bays 

(Fig. 2): 

(A) Ports of New York/New Jersey: 

40°29′42.2′′ N–073°55′57.6′′ W; 

(B) Delaware Bay (Ports of 

Philadelphia and Wilmington): 

38°52′27.4′′ N–075°01′32.1′′ W; 

(C) Entrance to the Chesapeake Bay 

(Ports of Hampton Roads and 

Baltimore): 37°00′36.9′′ N–075°57′50.5′′ 

W; and 

(D) Ports of Morehead City and 

Beaufort, NC: 34°41′32.0′′ N– 

076°40′08.3′′ W; and 

At Block Island Sound, in the area 

bounded by the following coordinates: 

Beginning at 40°51′53.7′′ N–70°36′44.9′′ 

W; thence to 41°20′14.1′′ N–70°49′44.1′′ 

W; thence to 41°04′16.7′′ N–71°51′21.0′′ 

W; thence to 40°35′56.5′′ N–71°38′25.1′′ 

W; thence back to starting point (Fig. 2). 

(3) Northeast United States (NEUS): 

Waters off New England, the NEUS 

(defined here as north of Rhode Island), 

are important foraging and socializing 

areas for right whales. Whales occupy 

and forage in four distinct areas: Cape 

Cod Bay; the area off Race Point (at the 

northern end of Cape Cod); the Great 

South Channel (extending south and 

east of Cape Cod); and the northern Gulf 

of Maine. 

NMFS received comments about the 

duration and boundaries of seasonally 

managed areas in this region. In 

considering the comments and 

reviewing sighting data in this area, 

NMFS has decided not to alter the 

boundaries and times identified in the 

proposed rule. Therefore, restrictions 

will apply as follows. 

(a) Cape Cod Bay Operational 

Measures: Vessel speed restrictions will 

apply from January 1 to May 15 each 

year throughout all of Cape Cod Bay, in 

an area beginning at 42°04′56.5′′ N– 

070°12′00.0′′ W; thence north to 

42°12′00.0′′ N–070°12′00.0′′ W; thence 

due west to charted mean high water 

line; thence along charted mean high 

water within Cape Cod Bay back to 

beginning point. (Fig. 3). 

(b) Off Race Point: In the area defined 

as ‘‘Off Race Point’’, vessel speed 

restrictions will be in effect from March 

1 to April 30 each year in a box 

approximately 50 nm (92.6 km) by 50 

nm (92.6 km) to the north and east of 

Cape Cod, MA (Fig. 3). The area consists 

of all waters bounded by straight lines 

connecting the following points in the 

order stated (Fig. 3): 42°30′00.0′′ N– 

069°45′00.0′′ W; thence to 42°30′00.0′′ 

N–070°30′00.0′′ W; thence to 42°12′00.0′′ 

N–070°30′00.0′′ W; thence to 42°12′00.0′′ 

N–070°12′00.0′′ W; thence to 42°04′56.5′′ 

N–070°12′00.0′′ W; thence along charted 

mean high water line and inshore limits 

of COLREGS limit to a latitude of 

41°40′00.0′′ N; thence due east to 

41°41′00.0′′ N–069°45′00.0′′ W; thence 

back to starting point. 

(c) Great South Channel: In this area, 

vessel speed restrictions will apply from 

April 1 to July 31 (Fig. 3). The area 

consists of all waters bounded by 

straight lines connecting the following 

points in the order stated: 

42°30′00.0′′ N–069°45′00.0′′ W 

41°40′00.0′′ N–069°45′00.0′′ W 

41°00′00.0′′ N–069°05′00.0′′ W 

42°09′00.0′′ N–067°08′24.0′′ W 

42°30′00.0′′ N–067°27′00.0′′ W 

42°30′00.0′′ N–069°45′00.0′′ W 

Comment 3: NMFS received a number 

of comments about the use of 

dynamically managed areas to reduce 

ship strikes. Most comments and 

questions were related to NMFS’ ability 

to quickly establish the areas; 

dedication of resources to adequately 

survey and verify whale locations; the 

size, duration, and criteria used to 

trigger such an event; and economic 

impact resulting from the use of this 

measure. 


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60180 Federal Register / Vol. 73, No. 198 / Friday, October 10, 2008 / Rules and Regulations 

Response: Designating Dynamic 

Management Areas (DMA) is a process 

of restricting activities in areas where 

right whales occur outside the SEUS, 

MAUS, and NEUS areas described 

above, or both within and outside these 

areas when the seasonal management 

measures are not in effect. NMFS 

continues to believe that dynamic 

management is a useful tool in reducing 

ship strikes. Except for areas where right 

whales predictably and consistently 

occur, based on sighting records, they 

can occur at certain times and locations 

that are not predictable when, for 

example, food resources are present. 

Outside certain predictable areas, right 

whale prey concentrations can be 

ephemeral; their occurrence is dictated 

by a confluence of oceanographic 

conditions that may vary annually. As a 

result, right whale aggregations may 

occur outside the specific NEUS, 

MAUS, and SEUS areas and times 

described above. NMFS reiterates that, 

as complementary tools, the use of 

dynamically managed areas allows for 

substantially smaller (in area) and 

shorter (in duration) seasonal 

management measures. Moreover, the 

ability to establish DMAs also addresses 

a comment NMFS has consistently 

received, which is that the management 

measures should be tied directly to the 

known presence of right whales. Thus, 

using DMAs helps accomplish the 

conservation objective of protecting the 

whales while minimizing the burden on 

industry that would be created by larger 

and longer SMAs. 

Therefore, NMFS will establish a 

DMA by surveying right whale habitat 

and, when a specific aggregation is 

sighted, NMFS will create a temporary 

zone (i.e., DMA) around the aggregation 

where the speed limit will apply. 

Mariner action will be voluntary. That 

is, mariners will be expected but not 

required to either avoid the area or 

travel through it at 10 knots or less. The 

zone will be in effect for 15 days and 

automatically expire at the end of that 

period. The period may be extended for 

an additional 15 days if whales are resighted in the same area. 

In addition, NMFS has decided to 

modify, relative to that described in the 

NPRM, the criteria for triggering a DMA. 

Therefore, designation of such an area 

will be established using the criteria and 

procedures identified below. 

(a) A circle with a radius of at least 

3 nm (5.6 km) will be drawn around 

each observed group. This radius would 

be adjusted for the number of right 

whales seen in the group such that the 

density of 4 right whales per 100 nm2

(185.3 km2) is maintained. The length of 

the radius would be determined by 

taking the inverse of the 4 right whales 

per 100 nm2 (185.3 km2) density, which 

is 24 nm2 (44.5 km2) per whale. That 

figure is equivalent to a radial distance 

of 2.77 nm (5.13 km) rounded up to 3 

nm (5.6 km) for a single right whale 

sighted (3.91 nm (7.25 km) rounded up 

to 4 nm (7.41 km) for two whales, 4.79 

nm (8.88 km) rounded up to 5 nm (9.27 

km) for three whales, etc.). 

(b) If any circle or group of contiguous 

circles includes 3 or more right whales, 

this core area and its surrounding 

waters will be a candidate temporary 

zone. After NMFS identifies a core area 

containing 3 or more right whales, as 

described here, it will expand this 

initial core area to provide a buffer area 

in which the right whales could move 

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 location used to 

draw a larger circular zone around each 

core area encompassing a concentration 

of right whales. The sighting location is 

the geographic center of all sightings on 

the first day of an event; and 

(b) Identifying latitude and longitude 

lines drawn outside but tangential to the 

circular buffer zone(s). 

NMFS will issue announcements of 

DMAs to mariners via its customary 

maritime communication media (e.g., 

NOAA Weather radio, web sites, e-mail 

and fax distribution lists) and any other 

available media outlets. Information on 

the possibility of establishment of such 

zones will be provided to mariners 

through written media such as U.S. 

Coast Pilots and Notice to Mariners 

including, in particular, information on 

the media mariners should monitor for 

notification of the establishment of a 

DMA. 

NMFS will monitor voluntary 

compliance with designated DMAs. If 

adherence is not satisfactory, NMFS will 

consider making them mandatory, 

through a subsequent rulemaking. 

Comment 4: NMFS received 

comments about the vessel length to 

which the vessel speed restrictions 

apply. Among them, commenters 

suggested the minimum vessel size limit 

be increased to lengths ranging from 85 

ft (25.9 m) to over 262 ft (79.9 m) to 

exclude certain ferries and fishing and 

whale watching vessels. Other 

commenters suggested the minimum 

size for restrictions be lowered to 

include vessels greater than 40 ft (12.2 

m) inasmuch as one known right whale 

ship strike involved a 43-ft (13.1-m) 

vessel. 

Response: In considering the 

comments and reviewing records of 

right whale and all large whale ship 

strikes, NMFS has determined that, for 

the purposes of this rulemaking, the 

appropriate vessel size is 65 ft (19.8 m) 

and greater. NMFS points out that 65 ft 

(19.8 m) is a size threshold recognized 

in the maritime community and 

commonly used in maritime regulations 

to distinguish between motorboats and 

larger vessels; the latter are subject to 

regulatory requirements (e.g., Automatic 

Identification System (AIS) 

requirements; International Navigational 

Rules Act, Rules of the Road sections). 

NMFS decided not to increase the 

minimum size above 65 ft (19.8 m) or 

exempt certain sectors of the maritime 

industry. 

With regard to lowering the threshold, 

given the known vessel strike of a right 

whale by a 43-ft (13.1-m) vessel, NMFS 

agrees that vessels less than 65 ft (19.8 

m) may pose a threat to right whales. 

Thus, it will continue to consider 

means, including future rulemaking, to 

address vessel classes below 65 ft (19.8 

m). Additionally, in collaboration with 

other organizations, NMFS will 

continue to engage in education and 

outreach programs regarding right whale 

vulnerability to ship strikes specific to 

the recreational, fishing, and other 

coastal maritime activities that involve 

vessels less than 65 ft (19.8 m). 

Therefore, the restrictions described 

herein apply to all vessels greater than 

or equal to 65 ft (19.8 m) in overall 

length and subject to the jurisdiction of 

the United States, and all other vessels 

greater than or equal to 65 ft (19.8 m) 

in overall length entering or departing a 

port or place subject to the jurisdiction 

of the United States. However, these 

restrictions shall not apply to U.S. 

vessels owned or operated by, or under 

contract to, the Federal Government (see 

below). In addition, these restrictions do 

not apply to law enforcement vessels of 

a State, or political subdivision thereof, 

when engaged in law enforcement or 

search and rescue duties. 

Comment 5: NMFS received a number 

of comments about exempting vessels 

operated by U.S. Federal agencies from 

required speed restrictions. Most 

indicated that Federal vessels should be 

subject to the same restrictions as 

commercial vessels. One State agency 

also recommended that State 

enforcement vessels, when engaged in 

enforcement and human safety 

missions, should be exempted. 

Response: NMFS, in consultation 

with other Federal agencies, has 

determined that the national security, 

navigational, and human safety 

missions of some agencies may be 

compromised by mandatory vessel 

speed restrictions. However, this 

exemption will not relieve Federal 


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agencies of their obligations to consult, 

under section 7 of the ESA, on how 

their activities may affect listed species. 

NMFS acknowledges that a number of 

agencies already provide guidance to 

vessel operators and fleets with regard 

to conservation measures to protect 

right whales and other endangered 

species, as well as contribute to 

conservation efforts generally. 

NMFS will work with other Federal 

agencies regarding their vessel 

operations to determine where ESA 

section 7 consultations would be 

appropriate. Therefore, while these 

restrictions are not mandatory for 

vessels owned or operated by, or under 

contract to, U.S. Federal agencies, 

NMFS has requested all Federal 

agencies to voluntarily observe the 

conditions of the proposed regulations 

when and where their missions are not 

compromised. Therefore, these 

restrictions do not apply to vessels 

owned or operated by, or under contract 

to, U.S. Federal agencies. This 

exemption extends to foreign sovereign 

vessels when they are engaging in joint 

exercises with the U.S. Department of 

the Navy. In addition, and as noted 

above, NMFS has decided to exempt 

State enforcement vessels when they are 

engaged in enforcement or human safety 

missions. 

Comment 6: A number of comments 

pertained to the use of existing or 

developing technologies to address the 

threat of ship strikes by detecting right 

whales and allowing mariners to avoid 

whales or otherwise take appropriate 

‘‘evasive action’’. Several commenters 

indicated that if information was 

provided about where whales were 

occurring, mariners would take evasive 

action. For example, one commenter 

stated, ‘‘We encourage the evaluation of 

an expansion of technology that would 

provide a more effective method of 

spotting whales in our coastal waters 

and then advise the shipping interest in 

the area.’’ Several others indicated that 

if funding had been put to this problem 

years ago, a solution would have been 

found, tested, and applied. 

Response: The use of technological 

solutions to minimize or eliminate a 

problem such as the threat of ship 

strikes to whales is the most desirable 

approach. Employing an innovation or 

technology that can truly mitigate a 

problem is preferable and should be 

pursued. NMFS is committed to 

exploring and testing such technologies, 

and has provided substantial funding 

for research and development of 

technological solutions (for projects 

undertaken, see Right Whale 

Competitive Grants program at http:// 

www.nefsc.noaa.gov/psb/grantforms/). 

However, any technological solution 

must be: (a) Proven as being directly 

effective in reducing the threat, and (b) 

environmentally benign (i.e., not 

adversely affecting right whales, other 

organisms or their habitats). At this 

time, NMFS is not aware of a technology 

that exists, or will be imminently 

available, that satisfies both these 

criteria. Therefore, NMFS believes that 

existing technologies are not currently 

capable of solving the problem or 

meeting the objectives of directly 

minimizing or eliminating the threat. A 

review of present and historic use of, or 

experimentation with, a wide variety of 

technologies applied to this issue can be 

found in ‘‘Technological alternatives to 

the problem of North Atlantic right 

whale ship strikes,’’ posted at http:// 

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

archive.htm. The paper discusses 

technologies that include, but are not 

limited to, the use of underwater 

SONAR, thermal imaging devices, light 

detection and ranging (LIDAR), passive 

listening devices, and night vision 

optics. 

Nearly all technologies considered fall 

into two general categories: (a) Detecting 

whales, and (b) alarm devices to frighten 

whales away from an area or in front of 

a ship. Means to increase the probability 

of determining the occurrence and 

location of whales include, but are not 

limited to, aircraft (visual) surveys, 

acoustic listening devices (i.e., ‘‘passive 

acoustics’’), satellite tagging, enhanced 

low-light optics, and posting trained 

lookouts. However, each method has 

constraints and none can reliably 

identify the location of all whales. 

Certain SONAR devices have been 

developed or existing ones enhanced 

and tested to locate whales. However, 

these devices are limited by: (1) 

Detection ranges that are inadequate to 

provide mariners sufficient time to 

react; (2) resolution inadequate to 

differentiate objects such as whales from 

other objects in the water column (i.e., 

false positives); and (3) the potential 

environmental or ecological impacts 

that will accrue from the sound 

generated by such devices. The ability 

of posted lookouts and enhanced lowlight optical devices to detect whales is 

limited by the difficulty of: (1) 

Observing animals in low/no light 

conditions (e.g., night); (2) observing 

animals in sea states greater than 

Beaufort 3–4; and (3) observing whales 

beneath the surface (where they spend 

most of their time). Right whales rarely 

break the surface and their backs are 

black or dark grey, making them 

difficult to spot even under ideal 

conditions. 

Satellite tagging technology of whales 

has made significant advances in recent 

years, but it faces the perennial 

challenges of tag attachment and 

longevity. In some large whale species, 

tags have been affixed and (in some 

cases) have remained functional for 

days or weeks, and useful tracks have 

been obtained (e.g., see Mate et al., 

1997). However, satellite tracking has 

been tried on North Atlantic right 

whales with mixed success. The longest 

track was for 42 days. In all other cases, 

the tag remained active for only hours 

or a few days. It is believed that the tag 

antennae were rubbed off by the whales 

during socialization or on the sea floor. 

Finding and tagging all whales would be 

a colossal effort, and given that most 

animals are seen no more than once a 

year, it is virtually impossible that all 

animals could be tagged. Even if a tag 

could be designed that would stay on 

and not malfunction, and if all whales 

could be tagged, battery life of the tag 

would not ensure its perpetual 

operation. Therefore, NMFS would need 

to re-tag all animals periodically (after 

the batteries run out). Finally, tagging 

and the tag itself have attendant health 

issues for the whales. Some tags have 

resulted in significant infections at the 

insertion site. Thus, given the 

limitations described here, telemetry 

may remain a useful tool for monitoring 

the movements of individual animals, 

but cannot provide a means for real time 

management of whale-vessel 

interactions. 

Although all current detection 

technologies are limited, passive 

acoustic technologies are a promising 

and maybe relatively cost-effective 

means of improving detection. For this 

reason, NMFS is collaborating with 

others to develop, test, and deploy 

listening devices in areas that are 

critical or frequently used by right 

whales. However, these devices are only 

effective (i.e., detection is only possible) 

when whales are vocalizing. Such a 

system will not detect all whales 

present, and it is not usually possible to 

determine the number of whales or their 

exact location without visual 

verification. Nonetheless, these 

programs make it possible to identify 

the presence of (vocalizing) whales and 

this information can be passed to 

mariners. 

However, in all cases involving 

possible technological solutions, 

knowledge of right whale locations is 

only part of the equation. A mariner 

must still take ‘‘evasive action’’. In 

addition, responding to whales may put 

undue burden on responsible mariners 

who alter course or speed when others 

do not, thus affecting navigational 


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safety. Whereas NMFS appreciates that 

all mariners are interested in avoiding 

whales, merely providing right whale 

locations is not adequate without 

specific expectations of appropriate 

action to take. 

This point is exemplified by actions 

NMFS has taken in U.S. waters. For 

years (since 1993 in waters off the U.S. 

southeast coast; and since 1997 in 

waters off New England), NMFS has 

conducted aircraft surveys for right 

whales and provided sighting 

information to mariners. Sightings are 

provided through various means to 

inbound and outbound shipping traffic. 

In addition, NOAA began providing 

ship speed advisories in 2005 in areas 

and at times where right whales occur, 

particularly when right whales are 

known to be present. Even given these 

efforts to guide mariners regarding 

avoiding a known right whale sighting 

location, it is not always clear if a 

mariner will respond, and if so, what 

that action might be (e.g., slow down, 

change course). A study of mariner 

compliance with NMFS-issued speed 

advisories in the Great South Channel 

found that 95 percent of ships tracked 

(38 out of 40) did not slow down or 

route around areas in which right whale 

sightings locations and speed advisories 

were provided (Moller et al., 2005). 

Whether this was due to mariners 

disregarding the alerts or their ignorance 

that the alert existed is not known. In a 

related study, Wiley et al. (2008) found 

that commercial whale watch vessel 

operators exhibited high noncompliance rates even when aware of 

vessel speed zones around whales. 

Therefore, even when whale locations 

are detected and provided, it is not clear 

how mariners will respond if at all, a 

situation not remedied by improved 

detection technologies. 

With regard to alarm devices, no 

evidence exists that large whale species 

would, in fact, respond to such a sound 

signal by moving away. Acoustic 

deterrent or harassment devices have 

been used in certain situations to warn 

small cetaceans and pinnipeds away 

from commercial fishing gear and 

aquaculture operations by emitting loud 

sound pulses. Their use has received 

mixed success because some marine 

mammals grow accustomed to the 

stimuli (see Reeves et al., 1996). In the 

only study of alarm sound playback 

experiments involving right whales, 

Nowacek et al. (2003) found that right 

whales exposed to the alarm sounds 

immediately rose to the surface and 

remained motionless, where they are 

more vulnerable to being struck. 

Furthermore, chronic exposure to alarm 

or alerting stimuli may result in whales 

and other marine species abandoning a 

desired feeding or mating area that 

could result in significant adverse 

effects on the population. Therefore, 

given its mandate to protect and recover 

endangered marine species, even if such 

alarm devices were found to be 

effective, NMFS is not likely to approve 

a technique that repeatedly or 

chronically causes an endangered and 

highly depleted population to disperse 

from a critical habitat or preferred 

feeding area. 

Therefore, although NMFS is 

committed to identifying and 

developing technological advances 

proven effective in reducing ship 

strikes, none exist at this time. As a 

result, absent specific and reliable 

technological fixes, NMFS is taking 

steps to reduce the threat of ship strikes 

by modifying specific vessel operations 

in times and locations in which right 

whales are known or assumed to be 

present. Though no proven technology 

to effectively manage the risk to right 

whales currently exists, NMFS will 

complete a technology review in 2009, 

and at appropriate times thereafter, to 

assess technology-based systems that 

might be available to reduce the risk of 

ship strikes to right whales. As part of 

these reviews, NMFS may engage the 

maritime industry and the scientific 

community to research progress in 

developing technological, efficient, and 

effective methods to address the threat 

of ship strikes. NMFS will document 

any findings and may prepare a draft 

report for public comment. Should 

NOAA find a technology that can 

reduce the risk of ship strike mortalities, 

NMFS may consider taking appropriate 

steps to allow the use of such 

technologies. Further, NMFS will also 

consider rulemaking to allow the use of 

such technologies in lieu of compliance 

with this rule if the technology could be 

used in a manner that is at least as 

protective of right whales as this rule. 

Comment 7: NMFS received 

comments about assessing the 

effectiveness of the regulations, whether 

and if they would be lifted or relaxed if 

they are successful in reducing or 

eliminating the threat, and whether 

NMFS had flexibility in these 

management measures. 

Response: NMFS will monitor 

compliance with the regulations and 

take steps to ensure mariners adhere to 

the regulations. The goal is to reduce or 

eliminate the threat of ship strikes—the 

primary source of mortality in the 

endangered population. NMFS expects 

to use right whale serious injury and 

deaths definitively attributed to vessel 

collisions, and ship strike-related 

scarring rates to assess the effectiveness 

of these regulations. Because right 

whale strandings are rare occurrences 

and our ability to determine causes of 

death is limited, determining the 

effectiveness of protective measures to a 

high level of statistical significance is 

difficult and takes many years of data 

collection. Based on available data, 

NMFS will consider adjusting the 

regulations. Such actions would be 

taken through additional rulemaking. 

Measures that NMFS could consider 

may involve vessel size, vessel routing 

(e.g., making recommended routes 

mandatory), vessel speed, making 

dynamically managed areas mandatory, 

and the size and duration of the areas 

where the restrictions apply. 

Comment 8: One comment raised the 

question of whether the United States 

can establish speed restrictions in the 

Exclusive Economic Zone; another 

questioned whether the United States 

has the authority to enforce speed limits 

in international waters. 

Response: NOAA is issuing these 

regulations pursuant to its rulemaking 

authority under MMPA section 112(a) 

(16 U.S.C. 1382(a)), and ESA section 

11(f) (16 U.S.C. 1540(f)). These 

regulations also are consistent with the 

purpose of the ESA ‘‘to provide a 

program for the conservation of [...] 

endangered species’’ and ‘‘the policy of 

Congress that all Federal departments 

and agencies shall seek to conserve 

endangered species [...] and shall utilize 

their authorities in furtherance of the 

purposes of [the ESA].’’ 16 U.S.C. 

1531(b),(c). Some provisions of these 

regulations differ from the ANPR and 

NPRM based on comments received and 

additional analysis by NMFS. 

The United States may impose the 

speed restriction set forth in these 

regulations, consistent with 

international law. The international law 

basis for such restriction is port State 

authority and the rule applies to ships 

entering or departing U.S. ports. The 

United States has always considered 

that a State has extensive authority to 

regulate ships entering or departing its 

ports. As a legal matter, the United 

States has neither limited this authority 

geographically nor by the type of 

legitimate interest being protected. 

Customary international law recognizes 

the interest of States in protection of its 

living marine resources, including rare 

and endangered species. 

A port State may establish conditions 

of port entry to ships both inbound to 

and outbound from its ports. The 

interests a port State is seeking to 

protect by the establishment of 

conditions of port entry remain the 

same in most cases —including with 

regard to the protection of right whales 


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from ship strikes—regardless of whether 

a ship is inbound or outbound; thus, the 

restrictions imposed to protect this 

interest are critical on both portions of 

a ship’s voyage. The exercise of such 

authority is consistent with United 

Nations Convention on the Law of the 

Sea Articles 27(2) and 28(3), as well as 

State practice. 

Comment 9: Several comments 

addressed issues related to the 

enforcement of this regulation. The 

comments focused on the importance of 

NMFS and the USCG working together 

to enforce this regulation and some 

provided suggestions for enforcement 

mechanisms. Some comments requested 

information about the penalties and 

fines that might apply to violations of 

this regulation. 

Response: NOAA is committed to 

implementing an effective enforcement 

strategy and will continue to work with 

all of its interagency partners, including 

the USCG, to do so. In addition, NOAA 

has identified some available 

technologies that could be used to 

supplement existing enforcement 

capabilities and will further explore the 

application of these measures. 

The ESA and MMPA identify the 

statutory maximum civil penalties and 

criminal fines. NOAA promulgates Civil 

Administrative Penalty schedules that 

are available to the public and provide 

guidance on how civil penalties are 

assessed and likely penalty ranges for 

particular violations. NOAA’s Civil 

Administrative penalty schedules can 

be found online at: http:// 

www.gc.noaa.gov/enforce-office3.html. 

Comment 10: Several commenters 

made reference to the need to 

promulgate emergency regulations and 

cited earlier correspondence and a 

petition to NMFS about establishing 

such regulations. In particular, in 

January 2005, NMFS received a letter 

from the Marine Mammal Commission 

recommending that NMFS quickly 

establish emergency regulations to limit 

vessel speeds consistent with measures 

being considered by NMFS. In addition, 

on May 19, 2005, NMFS received a 

petition co-signed by nine organizations 

to issue emergency regulations to reroute vessels in right whale habitat or 

slow them to 12 knots or less when 

entering U.S. east coast ports and at 

distances of 25 nm (46.3 km) from 

shore. 

Response: NMFS denied the petition 

(70 FR 56884), indicating promulgating 

a separate 12-knot speed limit under an 

emergency regulation would curtail full 

public notice and environmental 

analysis, duplicate agency efforts and 

reduce agency resources for a more 

comprehensive strategy, and risk delay 

in implementing the draft strategy. 

NMFS indicated it would continue 

putting efforts into implementing its 

comprehensive strategy as the best longterm solution for curtailing right whale 

deaths due to vessel strikes. This 

rulemaking marks a culmination of that 

effort. 

Comment 11: Some commenters 

suggested that the rule have a 

termination date. Proposed end dates for 

the rule were: (A) When a sustainable 

population level is reached; (B) if the 

restrictions prove ineffective; and (C) if 

no progress is measured after one year. 

Response: There is some uncertainty 

regarding the manner in which ships 

and whales interact and the relationship 

of speed and other factors to whale 

injuries and mortalities. Some 

commenters, citing these uncertainties, 

have raised issues regarding whether 

this regulation will significantly reduce 

serious injury and deaths of large 

whales caused by ship strikes. In view 

of these uncertainties, and the burdens 

imposed on vessel operators, this rule 

will expire five years from the date of 

effectiveness. During the five-year 

effectiveness of the rule, to the extent 

possible with existing resources NOAA 

will synthesize existing data, gather 

additional data, or conduct additional 

research on ship-whale interactions to 

address those uncertainties. NOAA will 

also review the economic consequences 

of this rule. After this analysis is 

complete, NOAA will determine what 

further steps to 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 the 

proposed rule: (1) Use of voluntary, 

rather than mandatory, speed 

restrictions in DMAs; (2) exceptions to 

speed restrictions in SMAs in severe 

conditions where vessel speed must 

exceed 10 knots to allow for safe 

maneuvering; (3) a reduction in the size 

of the area of SMAs in the MAUS from 

waters within a 30–nm (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 Bay, Chesapeake Bay, and the 

ports of Morehead City and Beaufort, 

NC; (4) in waters off the southernmost 

ports in MAUS, a continuous SMA has 

been established from 20 nm (37 km) 

north of Wilmington, NC to 20 nm (37 

km) north of Brunswick, GA, in lieu of 

30 nm (55.6 km) half-circles around 

these port entrances (Fig. 2); (5) 

exemption from speed restrictions for 

law enforcement vessels of a State, or 

political subdivision thereof, when 

engaged in law enforcement or search 

and rescue duties; and (6) this final rule 

expires on December 9, 2013. 

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Warfare Center Carderock Division, West 

Bethesda, MD. Report No. NSWCCD–50– 

TR–2007/053. 

Van Waerebeek, K., and R. Leaper. 2008. 

Second Report of the IWC Vessel Strike 

Data Standardisation Working Group. 

Report to the International Whaling 

Commission’s Scientific Committee at 

the IWC’s 60th Annual Meeting, 

Santiago, Chile, June 2008. Report No. 

SC/60/BC5. 

Vanderlaan, A.S.M., and C.T. Taggart. 2007. 

Vessel Collisions with whales: the 

probability of lethal injury based on 

vessel speed. Mar. Mam. Sci. 23(1):144– 

156. 

Waring, G.T., E. Josephson, C.P. FairfieldWalsh, and K. Maze-Foley, editors. 2007. 

U.S. Atlantic and Gulf of Mexico Marine 

Mammal Stock Assessments—2007. 

NOAA Tech Memo NMFS NE 205; 415 

p. 

Wiley, D.N., J.C. Moller, R.M. Pace, and C. 

Carlson. 2008. Effectiveness of voluntary 

conservation agreements: case study of 

endangered whales and commercial 

whale watching. Conserv. Biol. 2(2): 

450–457. 

Classification 

This final rule has been determined to 

be economically significant for purposes 

of Executive Order 12866. 

This final rule does not have 

Federalism implications as that term is 

defined in Executive Order 13132. 

This final rule contains a collection of 

information subject to the Paperwork 

Reduction Act (PRA). This requirement, 

the obligation in section 224.105(c) to 

log deviations from the 10 knot speed 

limit for safe operations, was not in the 

proposed rule and therefore not 

submitted to OMB for review at that 

time. Therefore, NMFS will submit this 

new information collection to OMB for 

emergency review under 44 U.S.C. 

3507(j). NMFS also requests comment 

on this information 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 deviation from 

speed restrictions is estimated to 

average five minutes per response, 

including time for reviewing 

instructions, searching existing data 

sources, gathering and maintaining the 

data needed, and completing and 

reviewing the collection information. 

There is no additional cost to the 

affected public. 

NMFS requests comments from the 

public to: 

(i) Evaluate whether the proposed 

collection of information is necessary 

for the proper performance of the 

functions of the agency, including 

whether the information shall have 

practical utility; 

(ii) Evaluate the accuracy of the 

agency’s estimate of the burden of the 

proposed collection of information; 

(iii) Enhance the quality, utility, and 

clarity of the information to be 

collected; and 

(iv) Minimize the burden of the 

collection of information on those who 

are to respond, including through the 

use of automated collection techniques 

or other forms of information 

technology. 

Send comments on these or any other 

aspects of the collection of information 

to the NMFS, Office of Protected 

Resources at the address above. 

Notwithstanding any other provisions 

of the law, no person is required to, and 

no person shall be subject to penalty for 

failure to comply with, a collection of 

information subject to the requirements 

of the PRA, unless the collection of 

information displays a currently valid 

Office of Management and Budget 

(OMB) control number. 

Final Regulatory Flexibility Analysis 

Pursuant to section 604 of the 

Regulatory Flexibility Act (RFA), NMFS 

prepared the following Final Regulatory 

Flexibility Analysis (FRFA) in support 

of the final rule to implement speed 

restrictions to reduce the threat of ship 

collisions with North Atlantic Right 

Whales. The FRFA describes the 


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economic impact that this final rule will 

have on small entities. 

The FRFA incorporates the economic 

impacts summarized in the initial RFA 

(IRFA) for the proposed rule to 

implement speed restrictions (71 FR 

36299) and the corresponding economic 

analysis prepared for the final rule (the 

FEIS, the Regulatory Impact Review 

(RIR), and the Economic Analysis for 

the FEIS). For the most part, those 

impacts are not repeated here. A copy 

of the IRFA, the RIR, the FEIS, and the 

Economic Analysis for the FEIS are 

available from NMFS, Office of 

Protected Resources and on the Office of 

Protected Resources Web site (see 

ADDRESSES). 

A description of the action, why it is 

being considered, the objectives of, and 

legal basis for this action are contained 

in the preamble to this final rule. This 

final rule does not duplicate, overlap, or 

conflict with other Federal rules. 

Description and Estimate of the Number 

of Small Entities to Which the Final 

Rule Will Apply 

The final rule implements changes to 

vessel operations affecting vessels that 

are 65 feet (19.8 m) or greater in overall 

length. Seven industries are directly 

affected by this rulemaking: Commercial 

shipping, high-speed passenger ferries, 

regular-speed passenger ferries, highspeed whale watching vessels, regularspeed whale watching vessels, 

commercial fishing vessels, and charter 

fishing vessels. This analysis uses small 

business size standards prescribed by 

the Small Business Administration 

(SBA). Specifically, for international 

and domestic shipping operations, the 

SBA size standard for a small business 

is 500 employees or fewer. The same 

threshold applies for international 

cruise operations and domestic ferry 

services. All ferry, commercial fishing, 

and charter fishing operations were 

assumed to be small entities. All but one 

whale watching operation were 

assumed to be small entities. The 

number of small entities expected to be 

affected by the final rulemaking by 

industry are: 362 commercial shipping 

(with various vessel classifications), 345 

commercial fishing, 40 charter fishing, 

13 passenger ferry, and 8 whale 

watching. More detailed information on 

small entities, other than commercial 

shipping, can be found on pages 143 

through 147 and in Tables 4–45 

(commercial fishing), 4–46 (passenger 

ferries), and 4–49 (whale watching) of 

the Economic Analysis for the FEIS. 

Note that for passenger ferry category, a 

small entity may operate both regularspeed and high-speed vessels. More 

detailed information on small entities in 

the commercial shipping sector is 

contained on pages 162 through 163 of 

the Economic Analysis for the FEIS. 

Description of the Projected Reporting, 

Recordkeeping, and Other Compliance 

Requirements of the Final Rule 

There are no compliance 

requirements other than the 

management actions contained in the 

final rule. Recordkeeping requirements 

associated with this final rule include 

logbook entries in the event of deviation 

from speed restrictions. These entries 

are estimated to average five minutes 

per response, including time for 

reviewing instructions, searching 

existing data sources, gathering and 

maintaining the data needed, and 

completing and reviewing the collection 

information. 

A Summary of the Significant Issues 

Raised by the Public Comments in 

Response to the IRFA, a Summary of 

the Assessment of the Agency of Such 

Issues, and a Statement of Any Changes 

Made to the Proposed Rule as a Result 

of Such Comments 

NMFS received 10,252 comments on 

the proposed rule. Of these, 73 

comments pertained to the IRFA or 

dealt with economic impacts specific to 

small entities resulting from the 

management actions presented in the 

proposed rule. 

Numerous commenters raised a 

concern that the speed restrictions 

would increase steam time for charter 

fishing vessels, resulting in a much 

shorter time to fish and/or longer trips 

overall. This could reduce the number 

of trips taken, curtail available fishing 

grounds, reduce the number of 

customers willing to pay, increase 

operating expenses, or hinder other 

operations. 

Response: These concerns are valid 

and have been analyzed in the 

Economic Analysis for the FEIS, which 

also analyzes economic impact to small 

entities. In response, NMFS has decided 

that compliance with DMAs will be 

voluntary, further reducing potential to 

lengthen fishing trips should captains 

choose not to comply. Similarly, the 

SMAs are generally not in place during 

the summer peak tourism and fishing 

season, with the exception of the Great 

South Channel. See, for example, pages 

147–148 of the Economic Analysis for 

the FEIS regarding concerns expressed 

by passenger ferry operators in timing 

speed restrictions during peak summer 

season. 

Numerous commenters suggested that 

the rule will affect tourism industries 

due to restrictions placed on whale 

watching vessels or passenger ferries. 

Other industries that support or work 

along with vessels affected by the rule 

would also bear adverse economic 

impact. 

Response: The IRFA that NMFS 

prepared for the proposed rule analyzes 

the direct economic impacts to small 

entities resulting from implementing 

regulations. While NMFS did not 

analyze the expected economic impacts 

on small entities indirectly affected by 

the agency’s actions in the RFA, it did 

analyze these impacts in the Economic 

Analysis for the FEIS (See Chapter 4, 

within the section entitled ‘‘Estimated 

Economic Impact on Other Market 

Segments’’). 

Many commenters expressed concern 

about speed restrictions within DMAs, 

which are likely to occur during peak 

summer months, which commenters 

maintained would seriously hinder, and 

perhaps shut down, ferries and whalewatching operations. 

Response: NMFS has decided that 

compliance with speed restrictions 

within DMAs will be voluntary. This 

will provide some measure of relief to 

those small entities concerned with 

going out of business as a result of 

DMAs. 

A few commenters noted that 

increased fuel consumption would 

result from increased vessel speed 

(outside of SMAs and DMAs) to stay on 

schedule. The IRFA provided an 

assessment of likely compliance costs or 

benefits associated with changes in fuel 

consumption from speed restriction 

measures. Increased fuel consumption 

for vessels increasing speed to make up 

time is not included in the economic 

analysis because the cost of the delays 

themselves—far greater costs than 

increased fuel consumption to 

compensate for delays—is calculated 

and included in the IRFA. See for 

example, Table 4–45 and accompanying 

text, for a discussion on the increased 

roundtrip travel time for commercial 

fishing vessels. Given an hourly fishing 

vessel operating cost of $300, the 

average additional travel time of 38 

minutes would translate to an 

additional operating cost of $190 per 

trip. Even if the fishing vessel sped up 

outside the speed restricted area to help 

offset the increase in travel time and 

operating costs, the incremental 

increase in operating cost due to 

increased fuel consumption would only 

be a portion of the overall hourly 

operating costs recovered when 

speeding up outside the speed restricted 

area. Therefore, the economic analysis 

conservatively assumes that vessels will 

not speed up to make up time and hence 

includes the maximum estimate of delay 

that would be incurred. 


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Some commenters stated that the 

regulations seem unwarranted or 

excessive given that many boaters had 

rarely, if ever, encountered a right whale 

or that out of thousands of boat trips on 

the east coast, only a dozen or so right 

whale deaths are attributable to ship 

strikes. Some questioned the notion of 

incurring considerable economic burden 

to businesses for right whale protection. 

Response: Right whales are difficult to 

see, especially in less than ideal (e.g., 

Beaufort Scale Sea State 3 or greater, or 

low light) conditions. But, they have 

historically and regularly occurred in 

the areas identified in this rule. 

Mariners’ difficulty in seeing right 

whales in the water is likely one 

contributing factor in the occurrence of 

ship strikes. Ship strike deaths are rare 

events and yet each is highly significant 

to the depleted population. NMFS has 

endeavored to reduce the economic 

impacts of this rule by minimizing, in 

time and 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 various 

components of the proposed rule. These 

are: (1) Use of voluntary, rather than 

mandatory, speed restrictions in DMAs; 

(2) exceptions to speed restrictions in 

SMAs in severe conditions where vessel 

speed must exceed 10 knots to allow for 

safe maneuvering and provisions to 

improve enforcement of these 

regulations; (3) a reduction in the size 

of the area of SMAs in the MAUS from 

waters within a 30-nm (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 Bay, Chesapeake Bay, and the 

ports of Morehead City and Beaufort, 

NC; (4) in waters off the southernmost 

ports in MAUS, a continuous SMA has 

been established from 20 nm (37 km) 

north of Wilmington, NC to 20 nm (37 

km) north of Brunswick, GA, in lieu of 

30 nm (55.6 km) half-circles around 

these port entrances (Fig. 2); (5) 

exemption from speed restrictions for 

law enforcement vessels of a State, or 

political subdivision thereof, when 

engaged in law enforcement or search 

and rescue duties; and (6) this final rule 

expires on December 9, 2013. The 

estimated economic impacts in the IRFA 

have been updated here, using recent 

(June 2008) fuel prices, to reflect these 

modifications to the proposed rule. 

With regard to vessel speed 

restrictions within DMAs that are not 

mandatory, NMFS has calculated 

economic impacts based on 100-percent 

compliance, although the actual 

compliance rate will likely be lower. 

That is, whereas NMFS is hopeful that 

adherence to a voluntary measure is 

high, it likely will not be 100 percent. 

Therefore, NMFS has calculated the 

most extreme case with regard to 

economic impact. Assuming 100- 

percent compliance with all measures of 

the rule, this action would reduce 

annual revenues to vessels as follows: 

Commercial shipping 0.15 percent of 

annual receipts, high-speed passenger 

ferries 4.9 percent, regular-speed 

passenger ferries 7.9 percent, high-speed 

whale watching vessels 4.2 percent, 

regular-speed whale watching vessels 

3.8 percent, commercial fishing vessels 

0.5 percent, and charter fishing vessels 

3.9 percent. See Table 5–7 of the 

Economic Report for the FEIS. 

Economic impacts will correspondingly 

be lower with any compliance rate less 

than 100 percent. 

Description of the Steps the Agency Has 

Taken To Minimize the Significant 

Economic Impact on Small Entities 

Consistent With the Stated Objectives of 

Applicable Statutes 

NMFS carefully weighed the speed 

restriction provisions contained in this 

final rule in light of right whale 

protection as well as economic impact. 

As a result, NMFS tightly constrained in 

time and place seasonal management 

areas to correspond only to known right 

whale occurrence. NMFS determined 

that creating larger SMAs than those 

being enacted would provide greater 

protection for right whales that may 

occur outside historical aggregation 

areas or where densities are lower. 

However, the potential economic 

impacts increase as SMAs grow in size, 

even as the relative conservation 

benefits become increasingly smaller. 

As a result, the SMAs have been made 

as small as practicable while still 

providing conservation value. In 

addition, by creating DMAs, NMFS was 

able to maintain SMAs at minimal sites, 

further reducing economic impact. 

The use of DMAs allows for 

establishing protective measures when 

right whales are sighted outside 

locations and times of SMAs. Current 

limitations in agency resources make it 

difficult to verify and subsequently 

establish DMAs quickly. Furthermore, 

the duration of the DMAs may continue 

past the time in which whales are 

present. Therefore, NMFS will establish 

a DMA program as an action 

complementary to SMAs, although not 

through rulemaking. NMFS will 

announce DMAs to mariners through its 

customary maritime communication 

media and any other appropriate media 

channels. NMFS hopes vessel operators 

will avoid the area or proceed through 

the area at 10 knots, but understands 

that many will not. Nonetheless, 

operators remain liable under MMPA 

and ESA if they do strike a whale. 

Operators of whale-watching vessels 

and passenger vessels had indicated 

during the public comment period that 

requiring speed restrictions in DMAs 

during peak season would result in 

economic hardship. One consequence of 

administering DMAs with speed 

restrictions that are not mandatory is 

that it alleviates further economic 

burden, particularly to those vessels 

operating during peak summer months 

in areas where no SMA is in place. 

NMFS is allowing an exemption to 

speed restrictions contained in this final 

rule in response to navigational safety 

concerns. This exemption allows for a 

vessel, under severe conditions, to 

operate at a speed above the required 10 

knots to maneuver safely. This 

exemption has been incorporated into 

the final rule in response to comments 

from small entities, the larger universe 

of vessel operators, and port authorities. 

A vessel may operate at a speed 

necessary to maintain safe maneuvering 

speed instead of the required ten knots 

only if justified because the vessel is in 

an area where oceanographic, 

hydrographic and/or meteorological 

conditions severely restrict the 

maneuverability of the vessel and the 

need to operate at such speed is 

confirmed by the pilot on board or, 

when a vessel is not carrying a pilot, the 

master of the vessel. If a deviation from 

the ten-knot speed limit is necessary, 

the reasons for the deviation, the speed 

at which the vessel is operated, the 

latitude and longitude of the area, and 

the time and duration of such deviation 

shall be entered into the logbook of the 

vessel. The master of the vessel shall 

attest to the accuracy of the logbook 

entry by signing and dating it. 

The final rule is subject to a ‘‘sunset 

clause’’ in which this final rule is set to 

expire five years from date of 

effectiveness. This provides some 

measure of relief to all affected entities, 

including small entities, in that any 

future action will be subject to 

applicable rulemaking procedures, 

including RFA and NEPA. 

NMFS analyzed a number of 

alternatives to reduce ship strikes, in 

addition to the ‘‘no action’’ alternative. 

The ‘‘no action’’ alternative was rejected 

because NMFS has determined that 

specific action (i.e., vessel speed 

restrictions) is needed to reduce the 

threat of ship collisions with right 

whales. 

One alternative required use of DMAs 

only as a single regulatory action. Small 


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businesses may prefer this alternative to 

the provisions of the final rule, which 

includes SMAs. However, relying solely 

on DMAs would not provide the needed 

protection to right whales, since this 

measure requires being able to identify 

right whale aggregations to trigger 

DMAs. In addition, one consistent 

comment NMFS has received is that the 

shipping industry relies on 

predictability to meet timetables, 

coincide with maximum tides in some 

ports, and to schedule longshoremen. 

The use of DMAs exclusively and no 

other measures (e.g., SMAs) would 

render the protection measures highly 

unpredictable, confounding shipping 

schedules. Moreover, identification of 

right whale aggregations is not always 

possible in practice (e.g., due to poor 

weather or other logistical constraints), 

thus relying on this measure alone may 

not reduce ship strikes sufficiently to 

promote population recovery. Dynamic 

management is used to reduce fishery 

gear entanglements when right whales 

aggregations are discovered. The 

approach is used in conjunction with 

fishing gear modifications. Therefore, 

this system, when used in concert with 

other actions, can be an important 

management tool. It is not a flawless 

system inasmuch as it is limited by 

constraints inherent to aircraft surveys 

(e.g., darkness, weather). One significant 

difference between the fishing gear 

Dynamic Area Management program 

and dynamic management as it pertains 

to other maritime industries is that 

fishers are required to change out gear, 

a rather burdensome task. The shipping 

industry could be notified real-time by 

electronic media and with relatively 

minor modifications to voyage planning 

can route around the area or travel 

through it at reduced speed. 

Another alternative analyzed was the 

implementation of SMAs as a single 

regulatory action, where the SMAs were 

substantially larger in size and in 

duration than those contained in the 

final rule. This alternative as a standalone measure was determined to be 

unlikely to aid in the recovery of right 

whales, since as a single measure, it 

does not allow for responding to 

situations when right whales are sighted 

outside of predictable or historic 

aggregation areas. In addition, because 

the SMAs were larger than those being 

enacted, the added economic burden 

would be substantial. Vessels would be 

required to travel at 10 knots farther 

from shore and on more days than will 

be required by the provisions of the 

final rule. 

One alternative consisted of proposed 

vessel routing measures in lieu of speed 

restrictions. However, NMFS 

determined that changes in routing 

procedures alone would not provide 

adequate protection from ship strikes for 

right whales. Another alternative 

analyzed was the use of both DMAs and 

large-scale SMAs as regulatory actions. 

This alternative would have provided 

the greatest protection to the right whale 

population. Impacts to small entities 

would also have been greatest under 

this alternative, since the SMAs in this 

alternative were substantially larger 

geographically and longer temporally 

than those prescribed in the final rule. 

Other significant alternatives to the 

final rule included speed restrictions at 

12 or 14 knots, rather than the 10-knot 

speed restriction in the final rule. Based 

on the analysis provided in the IRFA, 

NMFS recognizes that operators of 

regular-speed passenger ferries, regularspeed whale-watching vessels, and 

charter fishing vessels would prefer the 

12-or 14-knot options. However, NMFS 

scientists and other independent 

scientists have determined that as vessel 

speed increases, the likelihood of 

serious injury and death to whales 

increases. Therefore, among the three 

speed restriction options, the ten-knot 

option provides the greatest protection 

for right whales and the greatest 

likelihood of allowing recovery of this 

critically endangered species. 

Section 212 of the Small Business 

Regulatory Enforcement Fairness Act of 

1996 states that for each rule or group 

of related rules for which an agency is 

required to prepare a FRFA, the agency 

shall publish one or more guides to 

assist small entities in complying with 

the rule, and shall designate such 

publications as ‘‘small entity 

compliance guides.’’ The agency shall 

explain the actions a small entity is 

required to take to comply with a rule 

or group of rules. A small entity 

compliance guide was prepared as part 

of this rulemaking process. The guide 

will be sent to all holders of permits 

issued for NE and SE fisheries, ferry 

operators, whale watching vessel 

operators, and shipping companies. 

Guides will also be provided to port 

authorities, port pilots, and the USCG, 

and others as appropriate, for 

distribution to the maritime industry. In 

addition, copies of this final rule and 

guide are available from NMFS, Office 

of Protected Resources and on the 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 

Fisheries Service. 

■ For the reasons set out in the 

preamble, 50 CFR part 224 is amended 

as follows: 

PART 224—ENDANGERED MARINE 

AND ANADROMOUS SPECIES 

■ 1. The authority citation for 50 CFR 

part 224 continues to read as follows: 

Authority: 16 U.S.C. 1531–1543 and 16 

U.S.C. 1361 et seq. 

■ 2. In part 224, a new § 224.105 is 

added to read as follows: 

§ 224.105 Speed restrictions to protect 

North Atlantic Right Whales. 

(a) The following restrictions apply to: 

All vessels greater than or equal to 65 

ft (19.8 m) in overall length and subject 

to the jurisdiction of the United States, 

and all other vessels greater than or 

equal to 65 ft (19.8 m) in overall length 

entering or departing a port or place 

subject to the jurisdiction of the United 

States. These restrictions shall not apply 

to U.S. vessels owned or operated by, or 

under contract to, the Federal 

Government. This exemption extends to 

foreign sovereign vessels when they are 

engaging in joint exercises with the U.S. 

Department of the Navy. In addition, 

these restrictions do not apply to law 

enforcement vessels of a State, or 

political subdivision thereof, when 

engaged in law enforcement or search 

and rescue duties. 

(1) Southeast U.S. (south of St. 

Augustine, FL to north of Brunswick, 

GA): Vessels shall travel at a speed of 10 

knots or less over ground during the 

period of November 15 to April 15 each 

year in the area bounded by the 

following: Beginning at 31°27′00.0′′ N– 

080°51′36.0′′ W; thence west to charted 

mean high water line then south along 

charted mean high water line and 

inshore limits of COLREGS limit to a 

latitude of 29°45′00.0′′ N thence east to 

29°45′00.0′′ N–080°51′36.0′′ W; thence 

back to starting point. (Fig. 1). 

(2) Mid-Atlantic U.S. (from north of 

Brunswick, Georgia to Rhode Island): 

Vessels shall travel 10 knots or less over 

ground in the period November 1 to 

April 30 each year: 

(i) In the area bounded by the 

following: 33°56′42.0′′ N–077°31′30.0′′ 

W; thence along a NW bearing of 

313.26° True to charted mean high 

water line then south along mean high 

water line and inshore limits of 

COLREGS limit to a latitude of 

31°27′00.0′′ N; thence east to 31°27′00.0′′ 

N–080°51′36.0′′ W; thence to 31°50′00.0′′ 


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N–080°33′12.0′′ W; thence to 32°59′06.0′′ 

N–078°50′18.0′′ W; thence to 33°28′24.0′′ 

N–078°32′30.0′′ W; thence to 33°36′30.0′′ 

N–077°47′06.0′′ W; thence back to 

starting point.; 

(ii) Within a 20-nm (37 km) radius (as 

measured seaward from COLREGS 

delineated coast lines and the center 

point of the port entrance) (Fig. 2) at the 

(A) Ports of New York/New Jersey: 

40°29′42.2′′ N–073°55′57.6′′ W; 

(B) Delaware Bay (Ports of 

Philadelphia and Wilmington): 

38°52′27.4′′ N–075°01′32.1′′ W; 

(C) Entrance to the Chesapeake Bay 

(Ports of Hampton Roads and 

Baltimore): 37°00′36.9′′ N–075°57′50.5′′ 

W; and 

(D) Ports of Morehead City and 

Beaufort, NC: 34°41′32.0′′ N– 

076°40′08.3′′ W; and 

(iii) In Block Island Sound, in the area 

bounded by the following coordinates: 

Beginning at 40°51′53.7′′ N–70°36′44.9′′ 

W; thence to 41°20′14.1′′ N–70°49′44.1′′ 

W; thence to 41°04′16.7′′ N–71°51′21.0′′ 

W; thence to 40°35′56.5′′ N–71°38′25.1′′ 

W; 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 knots or less over 

ground during the period of January 1 

to May 15 in Cape Cod Bay, in an area 

beginning at 42°04′56.5′′ N–070°12′00.0′′ 

W; thence north to 42°12′00.0′′ N– 

070°12′00.0′′ W; thence due west to 

charted mean high water line; thence 

along charted mean high water within 

Cape Cod Bay back to beginning point. 

(Fig. 3). 

(ii) Off Race Point: Vessels shall travel 

at a speed of 10 knots or less over 

ground during the period of March 1 to 

April 30 each year in waters bounded by 

straight lines connecting the following 

points in the order stated (Fig. 3): 

42°30′00.0′′ N–069°45′00.0′′ W; thence to 

42°30′00.0′′ N–070°30′00.0′′ W; thence to 

42°12′00.0′′ N–070°30′00.0′′ W; thence to 

42°12′00.0′′ N–070°12′00.0′′ W; thence to 

42°04′56.5′′ N–070°12′00.0′′ W; thence 

along charted mean high water line and 

inshore limits of COLREGS limit to a 

latitude of 41°40′00.0′′ N; thence due 

east to 41°41′00.0′′ N–069°45′00.0′′ W; 

thence back to starting point. 

(iii) Great South Channel: Vessels 

shall travel at a speed of 10 knots or less 

over ground during the period of April 

1 to July 31 each year in all waters 

bounded by straight lines connecting 

the following points in the order stated 

(Fig. 3): 

42°30′00.0′′ N–069°45′00.0′′ W 

41°40′00.0′′ N–069°45′00.0′′ W 

41°00′00.0′′ N–069°05′00.0′′ W 

42°09′00.0′′ N–067°08′24.0′′ W 

42°30′00.0′′ N–067°27′00.0′′ W 

42°30′00.0′′ N–069°45′00.0′′ W 

(b) Except as noted in paragraph (c) of 

this section, it is unlawful under this 

section: 

(1) For any vessel subject to the 

jurisdiction of the United States to 

violate any speed restriction established 

in paragraph (a) of this section; or 

(2) For any vessel entering or 

departing a port or place under the 

jurisdiction of the United States to 

violate any speed restriction established 

in paragraph (a) of this section. 

(c) A vessel may operate at a speed 

necessary to maintain safe maneuvering 

speed instead of the required ten knots 

only if justified because the vessel is in 

an area where oceanographic, 

hydrographic and/or meteorological 

conditions severely restrict the 

maneuverability of the vessel and the 

need to operate at such speed is 

confirmed by the pilot on board or, 

when a vessel is not carrying a pilot, the 

master of the vessel. If a deviation from 

the ten-knot speed limit is necessary, 

the reasons for the deviation, the speed 

at which the vessel is operated, the 

latitude and longitude of the area, and 

the time and duration of such deviation 

shall be entered into the logbook of the 

vessel. The master of the vessel shall 

attest to the accuracy of the logbook 

entry by signing and dating it. 

(d) This final rule expires on 

December 9, 2013. 

BILLING CODE 3510–22–P 


jlentini on PROD1PC65 with RULES
Federal Register / Vol. 73, No. 198 / Friday, October 10, 2008 / Rules and Regulations 60189 


jlentini on PROD1PC65 with RULESER10OC08.036</GPH>
60190 Federal Register / Vol. 73, No. 198 / Friday, October 10, 2008 / Rules and Regulations 


jlentini on PROD1PC65 with RULESER10OC08.037</GPH>
Federal Register / Vol. 73, No. 198 / Friday, October 10, 2008 / Rules and Regulations 60191 

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

BILLING CODE 3510–22–C 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 660 

[Docket No. 0809301285-81289-01] 

RIN 0648–AX31 

Fisheries Off West Coast States; 

Coastal Pelagic Species Fisheries; 

Reporting Requirements and 

Conservation Measures 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule; notice of 

effectiveness of information collection. 

SUMMARY: NMFS is announcing that the 

information collection and reporting 

requirement was approved by the Office 

of Management and Budget (OMB). 

DATES: The information collection 

requirements in 50 CFR 660.520 are 

effective November 10, 2008. 

FOR FURTHER INFORMATION CONTACT: 

Joshua Lindsay, Southwest Region, 

NMFS, (562) 980–4034. 

SUPPLEMENTARY INFORMATION: On May 

30, 2007, NMFS published a final rule 

(72 FR 29891) implementing new 

reporting requirements and 

conservation measures under the 

Coastal Pelagic Species (CPS) Fishery 

Management Plan (FMP). This final rule 

contained information collection 

requirements that at the time of 

publication had not yet been approved 

by OMB. This included the requirement 

to report any interactions that may 

occur between a CPS vessel and/or 

fishing gear and sea otters. The final 

rule stated that NMFS would publish a 

subsequent Federal Register notice 

announcing the effectiveness of those 

requirements. Therefore NMFS 

announces that OMB approved the 

collection of information requirements 

contained in the May 30, 2007, final 

rule under Control Number 0648-0566 

with an expiration date of August 31, 

2010. 

Authority: 16 U.S.C. 1801 et seq. 

Dated: October 7, 2008. 

Samuel D. Rauch III, 

Deputy Assistant Administrator For 

Regulatory Programs, National Marine 

Fisheries Service. 

[FR Doc. E8–24201 Filed 10–9–08; 8:45 am] 

BILLING CODE 3510–22–S 


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