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10 October 2008


[Federal Register: October 10, 2008 (Volume 73, Number 198)]
[Rules and Regulations]               
[Page 60173-60191]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr10oc08-10]                         

=======================================================================
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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

[[Page 60174]]

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 
shore-based 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 Geospatial-Intelligence 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;

[[Page 60175]]

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 peer-reviewed 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-

[[Page 60176]]

2005, and 2.4 from 2002-2006, respectively. In an eight-week period 
from mid-November 2004 to mid-January 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.

[[Page 60177]]

    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), Campbell-Malone (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

[[Page 60178]]

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

[[Page 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[deg]27'00.0'' N-
080[deg]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[deg]45'00.0'' N; thence east to 
29[deg]45'00.0'' N-080[deg]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[deg]56'42.0'' N-077[deg]31'30.0'' W; thence along a NW bearing of 
313.26[deg] 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[deg]27'00.0'' N; thence east to 31[deg]27'00.0'' N-080[deg]51'36.0'' 
W; thence to 31[deg]50'00.0'' N-080[deg]33'12.0'' W; thence to 
32[deg]59'06.0'' N-078[deg]50'18.0'' W; thence to 33[deg]28'24.0'' N-
078[deg]32'30.0'' W; thence to 33[deg]36'30.0'' N-077[deg]47'06.0'' W; 
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[deg]29'42.2'' N-
073[deg]55'57.6'' W;
    (B) Delaware Bay (Ports of Philadelphia and Wilmington): 
38[deg]52'27.4'' N-075[deg]01'32.1'' W;
    (C) Entrance to the Chesapeake Bay (Ports of Hampton Roads and 
Baltimore): 37[deg]00'36.9'' N-075[deg]57'50.5'' W; and
    (D) Ports of Morehead City and Beaufort, NC: 34[deg]41'32.0'' N-
076[deg]40'08.3'' W; and
    At Block Island Sound, in the area bounded by the following 
coordinates: Beginning at 40[deg]51'53.7'' N-70[deg]36'44.9'' W; thence 
to 41[deg]20'14.1'' N-70[deg]49'44.1'' W; thence to 41[deg]04'16.7'' N-
71[deg]51'21.0'' W; thence to 40[deg]35'56.5'' N-71[deg]38'25.1'' W; 
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[deg]04'56.5'' N-070[deg]12'00.0'' 
W; thence north to 42[deg]12'00.0'' N-070[deg]12'00.0'' W; thence due 
west to charted mean high water line; 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[deg]30'00.0'' N-069[deg]45'00.0'' W; thence 
to 42[deg]30'00.0'' N-070[deg]30'00.0'' W; thence to 42[deg]12'00.0'' 
N-070[deg]30'00.0'' W; thence to 42[deg]12'00.0'' N-070[deg]12'00.0'' 
W; thence to 42[deg]04'56.5'' N-070[deg]12'00.0'' W; thence along 
charted mean high water line and inshore limits of COLREGS limit to a 
latitude of 41[deg]40'00.0'' N; thence due east to 41[deg]41'00.0'' N-
069[deg]45'00.0'' W; thence back to starting point.
    (c) Great South Channel: In this area, vessel speed restrictions 
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[deg]30'00.0'' N-069[deg]45'00.0'' W
41[deg]40'00.0'' N-069[deg]45'00.0'' W
41[deg]00'00.0'' N-069[deg]05'00.0'' W
42[deg]09'00.0'' N-067[deg]08'24.0'' W
42[deg]30'00.0'' N-067[deg]27'00.0'' W
42[deg]30'00.0'' N-069[deg]45'00.0'' W

    Comment 3: NMFS received a number of comments about the use of 
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.

[[Page 60180]]

    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 re-sighted 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

[[Page 60181]]

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 low-light 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

[[Page 60182]]

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 non-compliance 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

[[Page 60183]]

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 re-route 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 long-term 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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Calleson, C.S. and R.K. Frolich. 2007. Slower boat speeds reduce 
risks to manatees. Endang. Species Res. 3(3):295-304. 2007.
Campbell-Malone, R., 2007. Biomechanics of North Atlantic right 
whale bone: mandibular fracture as a fatal endpoint for blunt 
vessel-whale collision modeling. Ph.D. dissertation, WoodsHole 
Oceanographic Institution, Woods Hole, MA.
Caswell, H., M. Fujiwara, and S. Brault. 1999. Declining survival 
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North Atlantic Right Whale (Eubalaena glacialis) and shipping. MSc 
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Fujiwara, M., and H. Caswell. 2001. Demography of the endangered 
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of northern right whales (Eubalaena glacialis) in the western North 
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whales (Eubalaena glacialis) Mar. Mam. Sci. 6:278-291.
Kraus, S.D., P.K. Hamilton, R.D. Kenney, A Knowlton, and C.K. Slay. 
2001. Reproductive parameters of the North Atlantic right whale. J. 
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Kraus, S.D., M.W. Brown, H. Caswell, C.W. Clark, M. Fujiwara, P.K. 
Hamilton, R.D. Kenney, A.R. Knowlton, S. Landry, C.A. Mayo, W.A. 
McLellan, M.J. Moore, D.P. Nowacek, D.A. Pabst, A.J. Read, R.M. 
Rolland. 2005. North Atlantic Right Whales in Crisis. Science 309: 
561-562.
Kraus, S.D., R.M Pace, and T.R. Frasier. 2007. High investment, low 
return: the strange case of reproduction in Eubalaena glacialis. 
Pages 172-199 in: Kraus, S.D. and R.M. Rolland, (eds.), The Urban 
Whale: North Atlantic right whales at the crossroads. Harvard 
University Press, Cambridge, MA. 2007.
Laist, D.W., A.R. Knowlton, J.G. Mead, A.S. Collet, and M. Podesta. 
2001. Collisions between ships and whales. Mar. Mam. Sci. 17(1): 35-
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Laist, D.W., and C. Shaw. 2006. Preliminary evidence that boat speed 
restrictions reduce deaths of Florida manatees. Mar. Mam. Sci. 
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Marine Mammal Commission. 2006. Annual Report to Congress 2005. 
Marine Mammal Commission, Bethesda, Maryland. 204 pp.
Mate, B.R., S.L. Nieukirk, and S.D. Kraus. 1997. Satellite-monitored 
movements of the northern right whale. J. Wildl. Manage. 61:1393-
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Moller, J.C., D.N. Wiley, T.V.N. Cole, M. Niemeyer, and A. Rosner. 
2005. Abstract. The behavior of commercial ships relative to right 
whale advisory zones in the Great South Channel during May of 2005. 
Sixteenth Biennial Conference on the Biology of Marine Mammals, San 
Diego, December 2005.
Moore, M.J., A.R. Knowlton, S.D. Kraus, W.A. McLellan, and R.K. 
Bonde. 2005. Morphometry, gross morphology and available 
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mortalities (1970-2002). J. Cetacean Res. Manage. 6(3):199-214.
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the North Atlantic Right Whale, Revision. U.S. Department of 
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Northeast Fisheries Science Center Reference Document 07-05; 18 p.
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right whales (Eubalaena glacialis) ignore ships but respond to 
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and M.T. Weinrich. 2006. Mediterranean fin whales at risk from fatal 
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Assessments--2007. NOAA Tech Memo NMFS NE 205; 415 p.
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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

[[Page 60185]]

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, high-speed whale watching vessels, regular-speed 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 regular-speed 
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 whale-watching 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.

[[Page 60186]]

    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

[[Page 60187]]

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 stand-alone 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, regular-speed 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.

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

PART 224--ENDANGERED MARINE AND ANADROMOUS SPECIES

0
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.

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


Sec.  224.105  Speed restrictions to protect North Atlantic Right 
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[deg]27'00.0'' N-
080[deg]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[deg]45'00.0'' N thence east to 
29[deg]45'00.0'' N-080[deg]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[deg]56'42.0'' N-
077[deg]31'30.0'' W; thence along a NW bearing of 313.26[deg] 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[deg]27'00.0'' N; 
thence east to 31[deg]27'00.0'' N-080[deg]51'36.0'' W; thence to 
31[deg]50'00.0''

[[Page 60188]]

N-080[deg]33'12.0'' W; thence to 32[deg]59'06.0'' N-078[deg]50'18.0'' 
W; thence to 33[deg]28'24.0'' N-078[deg]32'30.0'' W; thence to 
33[deg]36'30.0'' N-077[deg]47'06.0'' W; 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[deg]29'42.2'' N-
073[deg]55'57.6'' W;
    (B) Delaware Bay (Ports of Philadelphia and Wilmington): 
38[deg]52'27.4'' N-075[deg]01'32.1'' W;
    (C) Entrance to the Chesapeake Bay (Ports of Hampton Roads and 
Baltimore): 37[deg]00'36.9'' N-075[deg]57'50.5'' W; and
    (D) Ports of Morehead City and Beaufort, NC: 34[deg]41'32.0'' N-
076[deg]40'08.3'' W; and
    (iii) In Block Island Sound, in the area bounded by the following 
coordinates: Beginning at 40[deg]51'53.7'' N-70[deg]36'44.9'' W; thence 
to 41[deg]20'14.1'' N-70[deg]49'44.1'' W; thence to 41[deg]04'16.7'' N-
71[deg]51'21.0'' W; thence to 40[deg]35'56.5'' N-71[deg]38'25.1'' W; 
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[deg]04'56.5'' N-
070[deg]12'00.0'' W; thence north to 42[deg]12'00.0'' N-
070[deg]12'00.0'' W; thence due west to charted mean high water line; 
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[deg]30'00.0'' N-069[deg]45'00.0'' W; thence 
to 42[deg]30'00.0'' N-070[deg]30'00.0'' W; thence to 42[deg]12'00.0'' 
N-070[deg]30'00.0'' W; thence to 42[deg]12'00.0'' N-070[deg]12'00.0'' 
W; thence to 42[deg]04'56.5'' N-070[deg]12'00.0'' W; thence along 
charted mean high water line and inshore limits of COLREGS limit to a 
latitude of 41[deg]40'00.0'' N; thence due east to 41[deg]41'00.0'' N-
069[deg]45'00.0'' W; thence back to starting point.
    (iii) Great South Channel: Vessels shall travel at a speed of 10 
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[deg]30'00.0'' N-069[deg]45'00.0'' W
41[deg]40'00.0'' N-069[deg]45'00.0'' W
41[deg]00'00.0'' N-069[deg]05'00.0'' W
42[deg]09'00.0'' N-067[deg]08'24.0'' W
42[deg]30'00.0'' N-067[deg]27'00.0'' W
42[deg]30'00.0'' N-069[deg]45'00.0'' W

    (b) Except as noted in paragraph (c) of this section, it is 
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.
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BILLING CODE 3510-22-C