[House Hearing, 118 Congress]
[From the U.S. Government Publishing Office]

EXAMINING THE IMPACTS OF THE
NATIONAL OCEANIC AND ATMOSPHERIC
ADMINISTRATION'S PROPOSED CHANGES
TO THE NORTH ATLANTIC RIGHT WHALE
VESSEL STRIKE REDUCTION RULE

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OVERSIGHT HEARING

BEFORE THE

SUBCOMMITTEE ON WATER, WILDLIFE AND
FISHERIES

OF THE

COMMITTEE ON NATURAL RESOURCES
U.S. HOUSE OF REPRESENTATIVES

ONE HUNDRED EIGHTEENTH CONGRESS

FIRST SESSION

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Tuesday, June 6, 2023

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Serial No. 118-34

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Printed for the use of the Committee on Natural Resources

[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]

Available via the World Wide Web: http://www.govinfo.gov
or
Committee address: http://naturalresources.house.gov

__________

U.S. GOVERNMENT PUBLISHING OFFICE
52-520 PDF WASHINGTON : 2023

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COMMITTEE ON NATURAL RESOURCES

BRUCE WESTERMAN, AR, Chairman
DOUG LAMBORN, CO, Vice Chairman
RAUL M. GRIJALVA, AZ, Ranking Member

Doug Lamborn, CO Grace F. Napolitano, CA
Robert J. Wittman, VA Gregorio Kilili Camacho Sablan,
Tom McClintock, CA CNMI
Paul Gosar, AZ Jared Huffman, CA
Garret Graves, LA Ruben Gallego, AZ
Aumua Amata C. Radewagen, AS Joe Neguse, CO
Doug LaMalfa, CA Mike Levin, CA
Daniel Webster, FL Katie Porter, CA
Jenniffer Gonzalez-Colon, PR Teresa Leger Fernandez, NM
Russ Fulcher, ID Melanie A. Stansbury, NM
Pete Stauber, MN Mary Sattler Peltola, AK
John R. Curtis, UT Alexandria Ocasio-Cortez, NY
Tom Tiffany, WI Kevin Mullin, CA
Jerry Carl, AL Val T. Hoyle, OR
Matt Rosendale, MT Sydney Kamlager-Dove, CA
Lauren Boebert, CO Seth Magaziner, RI
Cliff Bentz, OR Nydia M. Velazquez, NY
Jen Kiggans, VA Ed Case, HI
Jim Moylan, GU Debbie Dingell, MI
Wesley P. Hunt, TX Susie Lee, NV
Mike Collins, GA
Anna Paulina Luna, FL
John Duarte, CA
Harriet M. Hageman, WY

Vivian Moeglein, Staff Director
Tom Connally, Chief Counsel
Lora Snyder, Democratic Staff Director
http://naturalresources.house.gov
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SUBCOMMITTEE ON WATER, WILDLIFE AND FISHERIES

CLIFF BENTZ, OR, Chairman
JEN KIGGANS, VA, Vice Chair
JARED HUFFMAN, CA, Ranking Member

Robert J. Wittman, VA Grace F. Napolitano, CA
Tom McClintock, CA Mike Levin, CA
Garret Graves, LA Mary Sattler Peltola, AK
Aumua Amata C. Radewagen, AS Kevin Mullin, CA
Doug LaMalfa, CA Val T. Hoyle, OR
Daniel Webster, FL Seth Magaziner, RI
Jenniffer Gonzalez-Colon, PR Debbie Dingell, MI
Jerry Carl, AL Ruben Gallego, AZ
Lauren Boebert, CO Joe Neguse, CO
Jen Kiggans, VA Katie Porter, CA
Anna Paulina Luna, FL Ed Case, HI
John Duarte, CA Raul M. Grijalva, AZ, ex officio
Harriet M. Hageman, WY
Bruce Westerman, AR, ex officio

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CONTENTS

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Page

Hearing held on Tuesday, June 6, 2023............................ 1

Statement of Members:

Westerman, Hon. Bruce, a Representative in Congress from the
State of Arkansas.......................................... 1
Huffman, Hon. Jared, a Representative in Congress from the
State of California........................................ 3
Bentz, Hon. Cliff, a Representative in Congress from the
State of Oregon............................................ 4

Statement of Witnesses:

Coit, Hon. Janet, Deputy Administrator for the National
Oceanic and Atmospheric Administration, Washington, DC..... 6
Prepared statement of.................................... 8
Questions submitted for the record....................... 9
Hugelmeyer, Frank, President and CEO, National Marine
Manufacturers Association, Washington, DC.................. 19
Prepared statement of.................................... 20
Questions submitted for the record....................... 29
Diamond, Clayton L., Executive Director, American Pilots'
Association, Washington, DC................................ 29
Prepared statement of.................................... 31
Questions submitted for the record....................... 37
Redfern, Jessica, Associate Vice President of Ocean
Conservation Science, Anderson Cabot Center for Ocean Life
at New England Aquarium, Boston, Massachusetts............. 38
Prepared statement of.................................... 39

Gamboa, Fred, Captain, Andreas' Toy Charters, Princeton, New
Jersey..................................................... 48
Prepared statement of.................................... 49

Additional Materials Submitted for the Record:

Submissions for the Record by Representative Bentz

Congressional Sportsmen's Foundation, Letter dated June
5, 2023................................................ 79
Passenger Vessel Association, Statement for the Record... 81

Submissions for the Record by Representative Huffman

19 Environmental Organizations, Statement for the Record. 87
Southern Environmental Law Center, Letter dated June 14,
2023................................................... 90
35 Animal Rights Organizations, Letter dated June 6, 2023 94
Still Photos from NOAA Fisheries Showing Whale Movement.. 96

OVERSIGHT HEARING ON EXAMINING THE IMPACTS OF THE NATIONAL OCEANIC AND
ATMOSPHERIC ADMINISTRATION'S PROPOSED CHANGES TO THE NORTH ATLANTIC
RIGHT WHALE VESSEL STRIKE REDUCTION RULE

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Tuesday, June 6, 2023

U.S. House of Representatives

Subcommittee on Water, Wildlife and Fisheries

Committee on Natural Resources

Washington, DC

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The Subcommittee met, pursuant to notice, at 10:15 a.m. in
Room 1324, Longworth House Office Building, Hon. Cliff Bentz
[Chairman of the Subcommittee] presiding.

Present: Representatives Bentz, Wittman, Graves, LaMalfa,
Webster, Gonzalez-Colon, Carl, Luna, Hageman, Westerman;
Huffman, Peltola, Hoyle, Magaziner, and Porter.
Also present: Representatives Carter, Collins, Mace, and
Rutherford.

Mr. Bentz. The Subcommittee on Water, Wildlife, and
Fisheries will come to order.
Good morning, everyone. I want to welcome our witnesses,
Members, and our guests in the audience to today's hearing.
The Subcommittee is meeting today to hear testimony on a
hearing entitled, ``Examining the Impacts of the National
Oceanic and Atmospheric Administration's Proposed Changes to
the North Atlantic Right Whale Vessel Strike Reduction Rule.''
Without objection, the Chair is authorized to declare a
recess of the Subcommittee at any time.
I ask unanimous consent that all other Members' opening
statements be made part of the hearing record if they are
submitted in accordance with Committee Rule 3(o).
I also ask unanimous consent that the gentlemen from
Georgia, Mr. Collins and Mr. Carter; the gentlewoman from South
Carolina, Ms. Mace; and the gentleman from Florida, Mr.
Rutherford, be allowed to participate at today's hearing.
Without objection, so ordered.
I now recognize Chairman Westerman for his opening
statement.

STATEMENT OF THE HON. BRUCE WESTERMAN, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF ARKANSAS

Mr. Westerman. Thank you, Chairman Bentz, and thank you so
much for holding this very important hearing.
This hearing is, in my opinion, about a lot more than just
a speed restriction rule in the Atlantic. I think this hearing
goes much deeper and gets into the core of a problem in our
system of government today, and that is where we have
bureaucrats who are making laws that Congress never made, low-
level bureaucrats that don't answer to political appointees in
either administration, and this is what happens when you get a
bureaucratic administrative state that is out of control.
I have often said that conservation is an unchosen
obligation to leave our world in a better condition than we
found it. And as a lifelong outdoorsman, I believe that
sportsmen and women are often the greatest conservators,
because we inherently understand what it means to respect God's
creation and to take care of it.
Of course, in order to enjoy the outdoors, we need to be
able to access the incredible natural resources of our planet.
Whether it is for fishing or hiking, Federal lands and waters
belong to every American, and we should all be able to enjoy
the land our creator gave us. That is why the proposed rule we
are examining today is deeply concerning.
I have heard from many stakeholders, some who are
testifying today, about the impacts of the proposed rule and
how that will have negative effects on their families, their
communities, and industry. Instead of engaging with these
communities before drafting the proposed rule, NOAA chose to
ram policies through without any regard for their impacts,
acting like they live in their own little fiefdom over there,
and they can make whatever rule they want without any
consequences. Time and again, the Biden administration has
proven that they would rather use a sledge hammer than a
scalpel.
No one is suggesting that right whales do not deserve
protection. However, there are alternatives to shutting down
the entire East Coast or exposing our boating community to
dangerous situations. And a question I have is, what is
actually happening to the right whales? Because this Committee
had requested a study from GAO because NOAA or nobody else can
tell you what is actually happening. They want to find the
scapegoat and blame it on somebody else, so we actually
commissioned a study to see what is happening to the whales on
the East Coast.
This proposed rule would devastate coastal communities and
harm boating businesses and their workers without even helping
the whale.
To put this issue into perspective, an estimated 63,000
recreational salt water vessels measuring above the length
limit are registered in states across the proposed impact area.
Stakeholders estimate that the economic impact of canceling
boating and fishing trips as a result of the proposed rule
could put 340,000 American jobs and nearly $84 billion in
economic contributions in jeopardy. If there is a job lost over
this rule, it should be the jobs of the people at NOAA that are
proposing the rule.
It is time we figured out how to walk and chew gum at the
same time. We can protect the right whale without resorting to
extreme restrictions that cost Americans and prohibit outdoor
enthusiasts from being on the water. I am glad that we are
conducting an essential oversight of this proposed rule today.
I hope we can have a productive dialogue on how to move forward
while simultaneously stewarding our resources while allowing
access.
I want to thank the witnesses for joining us today to share
your testimony on the matter. I look forward to hearing it, and
look forward to the discussion period.
With that, Mr. Chairman, I yield back.
Mr. Bentz. Thank you, Chairman Westerman. I now recognize
Ranking Member Huffman for his opening statement.

STATEMENT OF THE HON. JARED HUFFMAN, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF CALIFORNIA

Mr. Huffman. Thank you, Mr. Chairman.
The Subcommittee is today examining the proposed amendments
to NMFS' Vessel Speed Rule, which aims to protect the
critically endangered North Atlantic right whale.
Frankly, I am disappointed to hear what we just heard from
the Chairman. You can disagree with a proposed regulation, you
can have a spirited debate about what it ought to look like.
But the kind of extreme hyperbole and highly personalized
invective that we just heard, frankly, does a disservice to
this complicated and vexing issue that we are trying to tackle.
So, I am also confused by what seems like a bit of a split
personality disorder across the aisle. Republicans seem to be
very worried about protecting whales when it serves their
interests, when they want to stop offshore wind. But today we
are hearing fierce opposition to a regulation that NMFS is
trying to develop in a sensible, science-based way to update a
rule that focuses on the leading cause of death of North
Atlantic right whales, the one thing that we have to do
something about if we want to keep this animal from going
extinct on our watch.
Now, no one disputes that the right whale is on the brink
of extinction. There are fewer than 340 individuals left, and
the science points to the importance of two critical concepts
in this conversation. The first is potential biological
removal. The second is documented versus actual mortality.
Regarding the first, the Marine Mammal Protection Act and
the ESA leaves NMFS no choice. They must ensure in this
situation that human-related deaths of right whales stays below
an annual rate of .07. That is less than one per year. This
metric is known as potential biological removal, or PBR. In
plain English, if we don't want the North Atlantic right whale
to go extinct, we must prevent all human-caused whale deaths
every single year until the population recovers.
The second concept, documented versus actual mortality.
Scientists estimate that documented mortalities are just a
fraction, about a third, of the actual whale deaths. We will
never be able to find and record every dead whale, but we do
know there are more deaths than we are able to document, so we
need to err on the side of protection, again, if we want to
avoid extinction of this iconic species.
The current annual loss of right whales is out of balance
with the acceptable PBR level. We know that the deaths are
primarily due to vessel strikes and fishing gear entanglements.
The original 2008 Vessel Speed Rule incorporated at the time
what we thought was best available science on whale presence,
seasonal patterns, the speeds at which vessels pose the
greatest risk. And here we are, 15 years later, and our science
has gotten stronger.
There is a 2021 NMFS study conducted during the Trump
administration that revealed that lower vessel speeds were
effective in reducing lethal vessel strikes and improving the
chances of survival. But that study also highlighted the
insufficiencies of the current rule.
Smaller vessels traveling at higher speeds continue to
cause whale deaths. That is just a fact. And compliance with
larger ships with involuntary slow zones has been low. So,
during this period there were 12 documented whale deaths and
serious injuries from vessel strikes in U.S. waters. And
remember, this likely represents only about a third of what has
actually happened out there, documented versus actual
mortality.
Vessel strikes are particularly damaging because they
disproportionately affect females and mother-calf pairs. So,
again, this is something we have to do something about if we
want to keep this species from going extinct.
And that brings us to the proposed rule, which strengthens
protections for the North Atlantic right whale. It enhances
safety protocols for vessels, incorporates spatial and seasonal
limits, and includes smaller vessels, not because anybody wants
to inconvenience smaller vessels, but because the facts show
that they are known to contribute to whale mortality.
Remember, if we don't act we are looking at the extinction
of one of the planet's largest whale species. Without
additional measures, this whale could be functionally extinct
by 2037. I hope none of us in this room are willing to accept
that fate.
I look forward to the conversation today, Mr. Chairman, and
I yield the balance of my time.
Mr. Bentz. Thank you, Ranking Member Huffman. I now
recognize myself for my opening statement.

STATEMENT OF THE HON. CLIFF BENTZ, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF OREGON

Mr. Bentz. I think the issue we face today, in general, is
how we address a situation where a species is in danger. We all
acknowledge that the right whale is in danger on the one hand,
and what society is going to do about it on the other. I
expressed this to Ms. Coit, Deputy Administrator for NOAA, in
our conversation last week, where I said, ``well, wouldn't the
whale be safer if we just stopped all activity off the coast?
Wouldn't the whale be safest if we just didn't allow any
boating or any marine traffic whatsoever?''
And her answer, of course, was, well, she wasn't suggesting
that. But the issue is how do we balance these two conflicting
goals, both important, and that is what the hearing is about
today. So, I am going to go into a little more detail.
As the title of our hearing states, we are examining the
impacts of NOAA's proposed changes to the current North
Atlantic right whale Vessel Strike Reduction Rule, often called
the Speed Restriction Rule. The North Atlantic right whales
were once hunted nearly to extinction by commercial whalers.
And while whaling is no longer a threat, right whales continue
to be one of the most endangered whale species in the world,
with less than 350 whales left.
Vessel strikes and commercial fishing gear entanglements
are considered the leading cause of whale mortalities and
injuries. Understandably, these whales require protection.
Currently, vessels over 65 feet in length cannot go faster than
10 knots when going through seasonal management areas. These
areas were selected because they are areas known to be
inhabited by right whales.
Last summer, NOAA published proposed changes to this rule,
which significantly expands the type of vessels that are
required to comply with speed restrictions, and more than
doubles the existing area in which speed restrictions apply.
Under the proposed changes, all vessels 35 feet long or longer
cannot travel faster than 10 knots within seasonal geographic
areas that extend from Massachusetts to central Florida. That
is almost the entire East Coast of the United States.
As we will hear today, there is frustration and concern
over the rationale NOAA used in deciding to issue the proposed
changes to its rule to include vessels under 65 feet in length.
I will be the first to admit I am not a boat person. I come
from a very, very dry desert region. But even I have a hard
time understanding how a 35-foot boat has a 32-foot draft. Yet,
as several of our witnesses will discuss today, these are some
of the assumptions made in NOAA's analysis.
More concerning, however, are the proposed changes to the
existing navigation safety ``deviation clause.'' Without an
adequate safety deviation clause, men and women will be
unnecessarily put in dangerous situations that can threaten the
navigational safety of the Federal navigational channels.
Our witnesses here today have decades of experience on the
water, and will be able to explain the impacts those changes
will have on the fishing community and the commercial shipping
industry. The issue is not should these whales be protected,
but rather are NOAA's proposed changes rooted in science and in
practical application, not to mention do these changes take
into consideration the impacts of the safety of boaters
throughout the Eastern Seaboard?
Are there better alternatives than essentially shutting
down ocean commercial activity along the entire East Coast to
commerce to protect the species? I sure hope so.
I look forward to hearing from our Members and witnesses
before us today. And with that, I will now introduce our
witnesses: The Honorable Janet Coit, Deputy Administrator for
the National Oceanic and Atmospheric Administration in
Washington, DC; Mr. Frank Hugelmeyer, President and CEO of
National Marine Manufacturers Association in Washington, DC;
Mr. Clayton Diamond, Executive Director of the American Pilots
Association in Washington, DC; Dr. Jessica Redfern, Associate
Vice President of Ocean Conservation Science, Anderson Cabot
Center for Ocean Science at the New England Aquarium in Boston,
Massachusetts; and Mr. Fred Gamboa, Captain of Andreas' Toy
Charters in Princeton, New Jersey.
Let me remind the witnesses that under Committee Rules, you
must limit your oral statements to 5 minutes, but your entire
statement will appear in the hearing record.
To begin your testimony, please press the talk button on
the microphone.
We use timing lights. When you begin, the light will turn
green. When you have 1 minute remaining, the light will turn
yellow. And at the end of 5 minutes, the light will turn red. I
will ask each of you to please complete your statement. In
fact, I will start tapping on this microphone, and eventually
drown you out. So, please stop when I mention your time is up.
I will also allow all witnesses to testify before Member
questioning.
I now recognize Deputy Administrator Coit for 5 minutes.

STATEMENT OF THE HON. JANET COIT, DEPUTY ADMINISTRATOR FOR THE
NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, WASHINGTON, DC

Ms. Coit. Good morning, Chairman Bentz, Ranking Member
Huffman, and members of the Subcommittee. Thank you for the
opportunity to testify before you on the proposed rule to amend
the existing North Atlantic Right Whale Vessel Strike Reduction
Rule.
Endangered North Atlantic right whales are approaching
extinction, with fewer than 350 whales remaining. Vessel
strikes and entanglements are driving the population's decline.
Urgent action is needed to address these threats and to prevent
extinction. In fact, the potential biological removal that this
population can sustain is less than one whale death per year.
We cannot afford to cause even one mortal take per year of a
North Atlantic right whale and achieve our recovery goals.
As we near the 50th anniversary of the Endangered Species
Act, one of our nation's strongest environmental laws, it is
noteworthy that, since the law was enacted, no listed marine or
anadromous species have gone extinct, and some species have
recovered. Species like the North Pacific population of gray
whales and the distinct population segment of humpback whales
that occur in the waters off of the U.S. Atlantic Coast. In
other words, the Endangered Species Act is an effective law. It
is a law that recognizes the value of biodiversity, and it
directs Federal agencies to seek to conserve endangered and
threatened species.
Addressing the threat of vessel strikes to North Atlantic
right whales is a critical next step to recover these
endangered whales based on the statutory requirements under
both the Endangered Species Act and the Marine Mammal
Protection Act. To protect North Atlantic right whales, most
vessels 65 feet or longer have been subject to seasonal 10-knot
vessel speed restrictions outside every major port between
Boston and Jacksonville, and along certain other portions of
the Atlantic Coast since 2008. And for the past 15 years within
this Atlantic region, nearly every large ocean-going vessel
must pass through seasonal speed-restricted areas to access
major ports. During this same period, oceangoing trade on the
East Coast has thrived.
Unfortunately, following a period of population growth
between 1990 and 2010, right whales have been declining over
the past decade.
In January 2021, NOAA Fisheries released and invited public
comment on an assessment of the 2008 Right Whale Vessel Speed
Rule, which highlighted the need to address several areas of
the existing rule. Last summer, informed by public comments
received on that 2021 assessment, NOAA Fisheries published
proposed changes to the existing vessel speed regulations to
further reduce the risk to North Atlantic right whales. These
proposed changes would broaden the spatial boundaries and
duration of the current seasonal speed restriction areas,
expand the mandatory speed restrictions to include most vessels
between 35 and 65 feet in length, and also include a mandatory
dynamic speed zone program. The proposed rule also updates and
expands the rule's safety provisions.
The public comment period for the proposed rule closed on
October 31, 2022. NOAA received over 90,000 comments, and we
will use these to inform our final action.
It is important to emphasize that this is a proposal. At
this stage, I cannot speak to the final rule. We anticipate
taking final action later this year, based on the input we
received. We appreciate your interest in the proposed changes
to the vessel speed regulations and in NOAA Fisheries' efforts
to prevent the extinction of this critically endangered species
while maintaining port operations and ensuring safety.
Finally, the current and proposed vessel speed restrictions
are part of a larger strategy, known as the North Atlantic
Right Whale Road to Recovery, which describes all of NOAA
Fisheries' efforts to recover this endangered species. In
support of that strategy, I am pleased to announce that earlier
today, NOAA and the Department of Commerce put forth our spend
plan under the Inflation Reduction Act. NOAA's spend plan
includes significant funding to support the application,
development, and evaluation of monitoring technologies like
expanding use of plastic acoustics and using satellite data to
transform North Atlantic right whale monitoring.
In addition, we will devote new funds to working with
industry, partners, and other Federal agencies to develop and
improve vessel detection and avoidance technologies that can
further reduce risk to whales.
We all want to see North Atlantic right whales recover and
thrive. We value the opportunity to continue working with this
Subcommittee on these important issues.
Thank you, members of the Subcommittee and your staff, for
your work to support NOAA's mission. And I am happy to take
your questions after the other witnesses. Thank you.

[The prepared statement of Ms. Coit follows:]
Prepared Statement of National Marine Fisheries Service, National
Oceanic and Atmospheric Administration, U.S. Department of Commerce

Chairman Bentz, Ranking Member Huffman, and members of the
Subcommittee, thank you for the opportunity to testify before you
today. The National Oceanic and Atmospheric Administration (NOAA) is
responsible for the stewardship of the nation's living marine resources
and their habitat. NOAA Fisheries provides vital services for the
nation: sustainable and productive fisheries, safe sources of seafood,
the recovery and conservation of protected species, and healthy
ecosystems--all backed by sound science and an ecosystem-based approach
to management. NOAA Fisheries' work is intrinsically connected to the
mission of the Department of Commerce--to create conditions for
economic growth and opportunity for all communities. The resilience and
economic vitality of our marine ecosystems, and coastal communities
depends on healthy marine species, including protected species such as
whales, sea turtles, salmon, and corals.

Endangered North Atlantic right whales are approaching extinction
with fewer than 350 individuals and fewer than 70 reproductively active
females remaining. While climate-related impacts and prey availability
have contributed to the population's poor health, vessel strikes and
entanglements are driving the population's decline and are the primary
cause of serious injuries and mortalities. North Atlantic right whales
are especially vulnerable to vessel strikes due to their coastal
distribution and frequent occurrence at near-surface depths. This is
particularly true for females with calves. In fact, given the current
population level, the ``potential biological removal'' that can be
sustained is less than one whale death per year. That is, we cannot
afford to cause even one mortal ``take'' per year of a North Atlantic
right whale and achieve our recovery goals.

Since 2008, most vessels 65 ft or longer have been subject to
seasonal 10-knot vessel speed restrictions outside every major port
between Boston and Jacksonville, and along certain portions of the
Atlantic coast. Within this region, nearly every large ocean-going
vessel must pass through seasonal speed restricted areas to access
major ports. The US Coast Guard has no reports of vessel groundings or
other accidents due to the speed restriction. During this period,
ocean-going trade on the East Coast has thrived. For example, the Ports
of New York/New Jersey were recently declared the busiest ports in the
United States, and cargo throughput at the Port of Savannah has
continued to grow year after year.

In January 2021, NOAA Fisheries released and invited public comment
on an assessment \1\ of the 2008 right whale vessel speed rule, which
highlighted the need to address seasonal speed restriction area
boundary and timing changes, strike risk from vessels less than 65 ft
in length, updates to the safety deviation provision, and poor
cooperation with the voluntary Dynamic Management Area program.
---------------------------------------------------------------------------
\1\ https://www.fisheries.noaa.gov/s3/2021-01/
FINAL_NARW_Vessel_Speed_Rule_Report_Jun_ 2020.pdf

In July 2022, NOAA Fisheries announced proposed changes to the
existing vessel speed regulations, which were informed by public
comments received on the 2021 speed rule assessment, to further reduce
the likelihood of North Atlantic right whale deaths and serious
injuries resulting from collisions with vessels. The proposed changes
would broaden the spatial boundaries and duration of the current
seasonal speed restriction areas along the East Coast. They would also
expand the applicability of the mandatory speed restrictions to include
---------------------------------------------------------------------------
most vessels 35-65 feet in length.

These proposed changes to the current speed rule would address two
key problems affecting right whale recovery: (1) misalignment between
areas and periods of high vessel strike risk and the spatial and
temporal bounds of the current seasonal speed restriction areas; and
(2) lack of mandatory speed restriction on vessels less than 65 feet in
length, which have been documented to be a lethal threat to right
whales. Additional proposed changes to the speed rule include the
creation of a mandatory Dynamic Speed Zone program establishing
temporary 10-knot transit zones when right whales are present and
predicted to persist in areas when no seasonal speed zone is in effect;
and updates to the rule's safety provisions, allowing vessels to exceed
the 10-knot restriction in certain circumstances.

We appreciate your interest in the proposed changes to the vessel
speed regulations and NOAA Fisheries' efforts to prevent the extinction
of this critically endangered species while maintaining port operations
and ensuring safety. The public comment period for the proposed rule
closed on October 31, 2022. NOAA received over 90,000 comments and will
use them to inform its final action on the proposed rule, which it
anticipates announcing in 2023.

The North Atlantic Right Whale ``Road to Recovery'' is a strategy
that describes all of NOAA Fisheries' efforts to halt the current
population decline and recover this endangered species. It is built on
the foundation of the statutory requirements that we are charged with
implementing under the Endangered Species Act and the Marine Mammal
Protection Act. It shows how our collective actions, in collaboration
with partners, fit together to save this iconic species. To prevent the
extinction of this species and to enable them to recover, urgent action
is needed to address existing and emerging threats to the species.
Conclusion

NOAA is proud to continue to lead the world in conducting ocean
science, serving the nation's coastal communities and industries,
ensuring responsible stewardship of our ocean and coastal resources,
and fostering economic growth and opportunity. We value the opportunity
to continue working with this Subcommittee on these important issues.
Thank you, Members of the Subcommittee and your staff for your work to
support NOAA's mission. I am happy to take your questions.

______

Questions Submitted for the Record to Janet Coit, Assistant
Administrator, National Oceanic and Atmospheric Administration

Questions Submitted by Representative Westerman

Question 1. How many North Atlantic right whales have been lethally
struck, outside of the current speed zones since 2008, by vessels
between 35 to 65 feet in length?

Answer. Vessels between 35 and 65 feet in length are known to have
accounted for five of the 14 documented lethal strike events in U.S.
waters since the speed rule went into effect in December 2008,
demonstrating the significant risk that vessels of this size class
present to right whales. (Note: Vessel length was unknown for eight of
these lethal events, and likely greater than 65 feet for one of the
events.) Four of the five documented collision events known to involve
a vessel between 35 and 65 feet in length occurred inside active
Seasonal Management Areas, and one was just outside (i.e., less than
100 yards) although all vessels involved were not subject to mandatory
speed restrictions due to their size.
Furthermore, since 2009, operators of vessels less than 65 feet in
length have reported an additional six vessel collisions (including
five serious injuries) with undetermined large whale species in U.S.
waters that may have involved right whales based on the location and
timing of the events (Henry et al. 2017).

Question 2. Based on Mr. Gamboa's testimony, he indicated if the
proposed vessel speed restrictions were to go into effect, he would
lose a third of his business, $140,000. That is just one business. Can
NOAA verify the number of HMS Permits and federal for-hire permits that
have been issued from Florida to Massachusetts?

Answer. Based on 2021 and 2022 data, approximately 1,957 charter/
for-hire fishing vessels, 1,194 commercial vessels, and 3,430
recreational vessels (6,581 vessels total) had a NMFS Atlantic Highly
Migratory Species (HMS) permit or other offshore permit issued by the
Greater Atlantic Regional Fisheries Office (GARFO) or Southeast
Regional Office (SERO), and are potentially impacted by the proposed
rule. This estimate only includes vessels between 35 and 65 feet in
length and a hailing port or principal port in the area from southern
Maine (York, Maine) to South-Central Florida (Port St. Lucie area).
This is not the total number of permits issued in this area, but rather
the number of unique vessels, since many vessels have a combination of
permit types and uses. For example, a vessel may hold HMS, GARFO and
SERO-issued permits, but that vessel would only be counted once.
Additionally, one vessel may have a permit for charter/for-hire and
recreational use, and in that case it was counted as a charter/for-hire
vessel instead of recreational. Also, vessels greater than 65 ft in
length, which are already subject to speed restrictions, may carry a
variety of commercial and recreational fishing permits.

Estimated Number of Impacted Vessels 35-65 ft in Length with NMFS HMS
or Offshore Fishing Permits

----------------------------------------------------------------------------------------------------------------
Vessel Estimated Number
----------------------------------------------------------------------------------------------------------------
For-Hire/Charter 1,957
----------------------------------------------------------------------------------------------------------------
Commercial 1,194
----------------------------------------------------------------------------------------------------------------
Recreational 3,430
----------------------------------------------------------------------------------------------------------------
Total 6,581
----------------------------------------------------------------------------------------------------------------

Question 3. This proposed rule greatly expands static seasonal
management areas, for speed restrictions. However, NOAA already has a
process to identify and put in place dynamic management zones, or
DMA's. These zones are supposed to be responsive to sightings or known
locations. For these DMA's, how does NOAA identify the location of the
North Atlantic Right Whale and promptly communicate that information to
the boating and mariner community? Can you provide details about the
typical timeline from identifying a known or potential location of the
Right Whales to the dissemination of this information to end users on
the water? Furthermore, does NOAA collaborate with any third-party
organizations to gather crowd-sourced whale sightings and publish them
for use to make navigation decisions while under way by the broader
mariner community, and was evaluating or improving those collaborations
part of the rulemaking process?

Answer. NMFS implemented a voluntary Dynamic Management Area
program concurrently with the mandatory speed rule in 2008. Under
current protocols, a Dynamic Management Area is triggered when a group
of three or more right whales are sighted in close proximity. Confirmed
right whale sightings usually come from formal scientific surveys but
can also be reported by members of the public, other government
entities (e.g., U.S. Coast Guard (USCG)), or mariners. NOAA offers
options, including the Whale Alert app. to report both live and
stranded/injured marine mammals and sometimes local research
organizations/aquariums also alert NMFS to reports from the public.
Since 2020, NMFS' Dynamic Management Area program has also included
acoustically triggered Slow Zones. Once the sightings or acoustic
detection trigger is met, NMFS establishes a boundary around the whales
(usually within 24-36 hours) for 15 days and urges vessels to either
avoid the area or transit through at speeds less than 10 knots. Dynamic
Management Areas/Slow Zones may be extended if whales remain in the
area. NMFS alerts mariners to Dynamic Management Area and Slow Zone
declarations through website postings, emails to lists of interested
parties, USCG Local Notices to Mariners, and USCG Broadcast Notices to
Mariners.
Vessel operators or interested parties can sign up for email or
text notifications about the latest Right Whale Slow Zones, or visit
Facebook (@NOAAFisheriesNEMA) and Twitter (@NOAAFish_GARFO) for
announcements. Vessel operators or interested parties can also check
for Dynamic Management Areas/Slow Zones on our online right whale
sightings map or on the free Whale Alert app, which will automatically
notify vessel operators entering one of these areas.
The effectiveness of the voluntary Dynamic Management Area program
was evaluated as part of the NMFS 2020 Vessel Speed Rule Assessment. We
found that mariner cooperation with voluntary speed recommendations in
Dynamic Management Areas is generally low, and as such likely does not
provide a meaningful reduction in vessel strike risk. The 2008 speed
rule stated that the agency would ``monitor voluntary compliance'' and
if cooperation was not satisfactory would ``consider making them
mandatory, through a subsequent rulemaking'' (73 FR 60173, October 10,
2008). The proposed vessel speed rule modifications would replace this
voluntary program with a mandatory Dynamic Speed Zone program that
would improve on the existing Dynamic Management Area program.

Question 4. Marine Cartography and Marine technology for smaller
vessels have advanced substantially since the existing vessel speed
restrictions were put in place in 2008. Chart plotters capable of
updateable cartography are commonplace across the recreational boating
industry now, meaning maps and charts can be updated on a near daily
basis for boats of all classes and sizes. During the drafting process
of the proposed rule, did NOAA actively engage in discussions with
manufacturers of marine vessels and marine electronics to explore and
obtain information about existing technologies that could significantly
enhance its capacity to identify known or potential whale locations in
real-time or near real time, and effectively disseminate that
information to a wide audience? Furthermore, did NOAA assess ways to
enhance its current practices and timelines for identifying known whale
locations and promptly sharing that information?

Answer. NMFS is aware of the wide variety of navigation systems
used on different vessel types. The systems employed on different
vessels use a diversity of chart products, and depending on
capabilities, and the age of the system, have a range of capacities for
updating information. In developing the proposed rule, NMFS focused on
measures that would have the greatest and most immediate impact on
reducing lethal strike events along the U.S. coast given the urgent
need to minimize risk to the species and prevent its extinction. The
current Dynamic Management Area/Slow Zone program serves as a de facto
warning to mariners about the presence of right whales. However, given
the low level of mariner cooperation with voluntary slow downs, the
Agency proposed to ensure any future dynamic management program would
provide meaningful protection to North Atlantic right whales, including
improvements in communication with mariners. In the proposed rule (87
FR 46921; June 29, 2022), we specifically solicited input from mariners
about how best to communicate information, including about the
designation of dynamic zones. During the public comment period, we
received over 90,000 comments and are considering them as we work
toward final action. We believe that providing data on vessel speed
restrictions, voluntary measures, and whale locations directly to
vessel navigational systems (where possible given vessel equipment/
systems) will be an effective and efficient addition to our
communication efforts.
We are working to identify technologies that could be used or
modified to both detect and avoid whales, as well as emerging
technologies possibly capable of detecting whales, and/or enhancing
vessel avoidance capabilities to reduce strikes. To accelerate this
work, we are dedicating $82 million in Inflation Reduction Act (IRA)
funding over the next four years for North Atlantic right whale
conservation, $20 million of which is specifically to reduce vessel
strike risk by developing, testing and ultimately, implementing
effective detection and avoidance technology.
Currently, we conduct aerial surveys and passive acoustic
monitoring along the U.S. East Coast and communicate right whale
detections to mariners through a variety of mechanisms. For example,
the Whale Alert app provides mariners and members of the public a user-
friendly tool that displays whale sightings and detections. Through the
app, users can also report live, dead, or distressed whale sightings to
the appropriate response agency. The NMFS-partnered https://
whalemap.org/ website provides comprehensive information including
historic sightings and acoustic detections.

Questions Submitted by Representative Kiggans

Question 1. At a time of inflation and increasing financial
pressure on families, this proposal will increase costs of shipping
goods and conducting fishing activities, thus increasing costs to
consumers for a variety of goods including sustainable seafood. In
addition, this rule will increase the costs to construct, operate, and
maintain offshore energy projects, thus increasing the costs of
electricity to ratepayers.

1a) Has NOAA conducted a cost benefit analysis of this rule and if
so, what were the results of that analysis?

Answer. In July 2022, NMFS published the Draft Regulatory Impact
Review and Initial Regulatory Flexibility Analysis for its proposed
``Amendments to the North Atlantic Right Whale Vessel Strike Reduction
Rule.'' This draft report evaluated the costs and benefits of the
proposed amendments to the current speed rule to better protect North
Atlantic right whales from lethal collisions with vessels in U.S.
waters.
The benefits of North Atlantic right whale and other endangered
whale protections include tourism benefits accruing from activities
such as commercial whale watching operations. A study by Hoyt (2001)
suggests that roughly half of all commercial whale watching worldwide
occurs in the United States, largely centered in New England. Large
whales also provide ecosystem services, including playing an important
role in carbon cycling in the oceans, and contribute to sense of place,
education, and research. Finally, slowing vessel speeds is expected to
provide ancillary benefits for mariner safety, ocean noise reduction,
and the lowering of polluting emissions.
The draft report estimated the direct costs to vessel operators
from the proposed changes to the speed rule. We estimated that
approximately 15,899 vessels would be potentially affected along the
U.S. Atlantic coast from Maine to Florida, resulting in up to 121,061
additional transit hours annually across all vessel types, size
classes, and regions. The total estimated annual costs associated with
the proposed rule are $46,216,122. Over 86% of the costs are expected
to be incurred by vessels operating in the Northeast and Mid-Atlantic
regions (ME to NC) largely due to the greater proposed expansion of
seasonal speed restrictions in those areas and the higher amount of
commercial traffic overall. The cost estimates provided in the draft
report were based on operating and fuel cost estimates from 2021, and
these estimates can vary year to year. Additionally, it is important to
recognize that not all vessels that would be subject to speed
restriction would actually be impacted, or heavily impacted, by the
proposed changes. For example, many vessels already transit below 10
knots, or close to 10 knots, as part of their regular operations. These
include certain industrial vessels, commercial fishing vessels, sailing
vessels, and others. Finally, the draft economic report does not
address future activities, such as offshore wind development, because
at the time the draft report was written, there was a high degree of
uncertainty about the future location, timing and nature (i.e., vessel
types, speeds, etc.) of associated vessel activity.

Question 2. Environmental regulation is at its best when it
harnesses human ingenuity to come up with innovative solutions-the
Clean Water Act and Clean Air Act have succeeded using this model:
setting performance-based targets and creating the space for new
technologies to meet those targets. We know that there are a range of
promising technologies out there that could monitor and detect whales
in real time and thereby reduce the risk of vessel strikes.

2a) How does the vessel speed rule, with its one-size-fits-all
across-the-board speed restriction, incentivize the development and
implementation of new whale detection and monitoring technologies?

2b) What changes can be made to the proposed vessel strike rule
that can further encourage and incentivize the development and
implementation of this technology?

Answer. Changes to the speed regulations are proposed to reduce
vessel strike risk based on a coast wide collision mortality risk
assessment and updated information on right whale distribution, vessel
traffic patterns, and vessel strike mortality and serious injury
events. These changes are essential to stabilize the ongoing right
whale population decline and prevent the species' extinction. That
said, we remain open to incorporating additional tools in the future
and are working to identify technologies that could be developed or
modified to detect and avoid whales to reduce strikes. To accelerate
this work, we are dedicating $82 million of Inflation Reduction Act
(IRA) funding over the next four years for right whale conservation,
$20 million of which is to reduce vessel strike risk by developing,
testing and ultimately, implementing effective detection and avoidance
technology.
Detecting whale presence is essential but only part of the equation
for reducing the risk of lethal vessel strikes. Since 2008, NMFS has
declared voluntary Dynamic Management Areas/Slow Zones where whales are
recently detected only to have low cooperation from mariners in slowing
down. The agency seeks to harness technologies that will help better
monitor whales but also work with vessel operators to maximize the
value of that information to reduce strike events.

Question 3. In the conlext of offshore wind surveys, construction,
operations, and maintenance, slower vessel speeds will result in more
on-water time and more overall trips conducted by multiple vessels to
complete the same tasks compared to vessels operating at higher speeds.

3a) How do more trips, more vessels, and more overall vessel time
on the water impact the overall collision risk to North Atlantic Right
Whales?

Answer. North Atlantic right whale vessel speed restrictions reduce
the likelihood of lethal collisions between vessels and whales. It is
challenging to predict how different mariner groups might respond,
adjust, or otherwise modify operations to accommodate measures in the
proposed rule. This is especially true for future offshore wind
development. Given that we lack robust predictions of coast-wide vessel
activity for offshore wind surveys, construction, operations, and
maintenance, we cannot quantitatively assess the potential impact of
the proposed rule on these activities.
The proposed changes to the speed rule will impact a wide variety
of vessel types and operators, and we anticipate decisions regarding
changes to vessel operations will vary depending on the unique nature
of a vessel's operations, needs, schedule, flexibility, and cost. We
are carefully considering the public input received on our draft
Regulatory Impact Review and Initial Regulatory Flexibility Analysis
prepared for the proposed ``Amendments to the North Atlantic Right
Whale Vessel Strike Reduction Rule'' as we work toward developing a
final action on the proposed rule.
Irrespective of any existing or proposed speed regulations,
federally permitted or funded activities that may affect an ESA-listed
species (such as offshore wind development projects) must be conducted
in a manner that is not likely to jeopardize the continued existence of
such species. As such, federal permitting agencies often require
measures such as speed restrictions to minimize impacts on listed
species. In addition, any activity that is likely to result in take of
marine mammals as defined under the Marine Mammal Protection Act (MMPA)
is advised to obtain an MMPA incidental take authorization so that any
take is lawful. Such an authorization also requires NMFS to prescribe
mitigation measures that provide the ``means of effecting the least
practicable adverse impact'' on the affected species, which often
includes speed restrictions.

3b) Has NOAA calculated how many additional vessel trips and how
much additional time on water would result from the implementation of
this rule?

Answer. In July 2022, NMFS published its Draft Regulatory Impact
Review and Initial Regulatory Flexibility Analysis for its proposed
``Amendments to the North Atlantic Right Whale Vessel Strike Reduction
Rule.'' The assessment estimated delayed (or additional) transit hours
that would likely accrue to each vessel type in each region as a result
of a 10-knot speed restriction within relevant speed restriction areas
and seasons. We estimate 15,899 vessels would potentially be affected
along the U.S. Atlantic coast from Maine to Florida, resulting in up to
121,061 additional transit hours annually across all vessel types, size
classes, and regions. This analysis evaluated the economic impacts of
10-knot mandatory speed limits for vessels that normally would transit
at speeds greater than 10 knots in active or newly proposed speed
restriction zones. Additionally, it is important to recognize that not
all vessels that would be subject to speed restriction would actually
be impacted, or heavily impacted, by the proposed changes. For example,
many vessels already transit below 10 knots, or close to 10 knots, as
part of their regular operations. These include certain industrial
vessels, commercial fishing vessels, sailing vessels, and others. As
noted above, in our assessment we were not able to quantify impacts to
future vessel operations associated with offshore wind development.

3c) Has NOAA accounted for increased human safety risk from
additional time on the water?

Answer. We considered mariner safety during all aspects of the
proposed rule development, and continue to consider input received
during the public comment period for any final action. In addition to
the existing deviation exception in the current regulation for
navigational safety, the proposed rule would newly allow vessels to
exceed the 10-knot speed limit during emergency situations when the
health, safety, or life of a person is at risk; vessels would have to
submit a safety deviation report if a speed deviation occurs. Vessels
less than 65 ft in length also would be allowed to transit at speeds
greater than 10 knots within areas with a National Weather Service Gale
Warning, or other National Weather Service Warnings greater than gale
force winds (e.g., Storm Warning, Hurricane Warning) without submitting
a safety deviation report. NMFS expects all mariners, as part of
prudent offshore wind vessel operations, to monitor weather and ocean
conditions prior to setting out and be mindful of how a 10-knot speed
restriction may impact their operations, including vessel staffing
needs.

Question 4. If implemented, these vessel speed restrictions may
require offshore hoteling of operations and maintenance crews for
offshore wind energy projects, especially as projects begin to be
developed further from shore. How has NOAA accounted for the
socioeconomic impact of crews being away from family for extended
periods of time?

Answer. As future operations, the socioeconomic impacts from
potentially hoteling crews for offshore wind energy development were
outside of the scope of NMFS' economic assessment for this rule.

Questions Submitted by Representative Buddy Carter

Safety of Life (Pilots, Pilot Boat Crews, and Mariners in General)

Question 1. Prior to publishing its proposed amendments to the
North Atlantic Right Whale (NARW) vessel strike reduction rule in
August 2022, did NOAA conduct any outreach as it relates to the impacts
the proposed amendments to the NARW rule will have on maritime pilots
and pilot-boat crews?

Answer. In January 2021, NMFS released the North Atlantic Right
Whale Vessel Speed Rule Assessment which evaluated several aspects of
the existing right whale speed rule and associated voluntary Dynamic
Management Area program including mariner compliance/cooperation,
biological efficacy and safety considerations. The report also included
recommendations for potential changes to the current speed rule. NMFS
solicited public comment on the report through March 2021 and received
34 unique comments (representing over 21,000 individuals) from
stakeholders and members of the public, including comments from the
American Pilots Association, Brunswick Bar Pilots Association,
Brunswick Pilot Boat Corp, the Savannah Pilots Association, Florida
Harbor Pilots Association, Quoddy Pilots, Charleston Pilots
Association, Delaware Bay Launch, and the Cape Fear Pilots Association.

Question 2. If the answer to the above question is yes, please
provide the details of that outreach to include the dates of the out-
reach and the parties that NOAA talked, met, or consulted with as well
as any pertinent information pertaining to the anticipated impacts that
the proposed rule would have on maritime pilots and pilot-boat crews.

Answer. In addition to the published speed rule assessment report
and solicitation of public comment (described in the previous
response), NMFS staff had additional meetings with relevant
stakeholders regarding the assessment report and pilot operations
including the following:

On February 5, 2021, NMFS staff met with Hope Moorer
representing the Georgia Ports Authority.

On April 22, 2021, NMFS staff met with Clay Diamond and
Jorge Viso representing the American Pilots Association.

On June 10, 2021, NMFS staff met with Trey Thompson
representing the Savannah Bar Pilots Association and
members of Sen. Ossoff and Sen. Warnock's staff.

During these meetings, NMFS staff generally listened to input and
comments from these stakeholders.

Question 3. Prior to publishing the proposed amendments to the NARW
vessel strike reduction rule in August 2022, did NOAA consider the
operational impacts to pilot boats, including the speed at which
various pilot boats must obtain before they are on plane, the impacts
of boat operator visibility and pilot boat stability when a pilot boat
is not operating on plane?

Answer. NMFS considered impacts to pilot boat operations from the
proposed regulations and met with pilot boat stakeholder groups prior
to release of the proposed rule (as described above). NMFS also
considered comments received in response to the North Atlantic Right
Whale Vessel Speed Rule Assessment as described above. None of the
written comments received on the assessment report from the pilots
associations specifically discussed pilot vessel operations on plane.

Question 4. If the answer to the above question is yes, please
provide the pertinent information pertaining to the anticipated impacts
that the proposed rule would have on pilot boat operations.

Answer. The current speed rule already applies to pilot boats
greater than 65 ft in length within active Seasonal Management Areas.
We estimated that the changes to the proposed rule would impact an
additional 26 pilot vessels, with pilot boats less than 35 ft in length
remaining unaffected. Overall, we estimated that pilot vessels likely
impacted by the proposed rule would incur 2927 delayed transit hours
each year. Under the proposed rule, should a pilot boat encounter
oceanographic, hydrographic, and/or meteorological conditions severely
restricting the maneuverability of the vessel, that pilot boat may
exceed the 10-knot speed limit if necessary to maintain safe
maneuvering speed. Additionally, any pilot vessel less than 65 ft in
length may transit at speeds greater than 10 knots (5.1 m/s) within
areas where a National Weather Service Gale Warning, or other National
Weather Service Warning (e.g., Storm Warning, Hurricane Warning) for
wind speeds exceeding those that trigger a Gale Warning is in effect.

Question 5. I understand and appreciate that NOAA took the time to
discuss pilot safety and other concerns with the American Pilots'
Association (APA) in September 2022. Since APA submitted its comments
to NOAA in October 2022, has NOAA had any further discussion with the
APA or consultation with other parties pertaining to the pilot safety
concerns raised in APA comments to the proposed rulemaking and
Questions 1 and 3 above?

Answer. Yes.

Question 6. If the answer to the above question is yes, please
provide the details of that outreach to include the dates of the out-
reach and the parties that NOAA talked, met, or consulted with as well
as any pertinent information pertaining to the anticipated impacts that
the proposed rule would have on maritime pilots, pilot-boat crews, and
pilot boat operations.

Answer. NMFS staff met with Clay Diamond representing the APA again
on June 29, 2023, to gain clarification on certain elements (including
safety matters) of their comments provided during the proposed rule
comment period. Mr. Diamond reiterated certain aspects of the APA
comments. Outreach and communication related matters of relevance to
the current and proposed speed rule were also discussed at the meeting.

Question 7. If the answer to the above question is no, will NOAA
discuss these serious safety concerns with APA and provide any planned
updates to the proposed rule for review before publishing a final rule?

Answer. N/A

Question 8. Prior to publishing its proposed amendments to the NARW
vessel strike reduction in August 2022, did NOAA conduct any outreach
as it relates to the impacts the proposed amendments to the NARW rule
will have on the safety of mariners operating under the new speed
restrictions?

Answer. Please see response to Question #1.

Question 9. If the answer to the above question is yes, please
provide the details of that outreach to include the dates of the out-
reach and the parties that NOAA talked, met, or consulted with as well
as any pertinent information pertaining to the safety of mariners
operating under the new speed restrictions.

Answer. As discussed above, in January 2021, NMFS released the
North Atlantic Right Whale Vessel Speed Rule Assessment and solicited
comments on the report. The agency received 34 unique comments
(representing over 21,000 individuals) from stakeholders and members of
the public, including comments from industry, pilot associations,
ports, environmental NGOs, fishing interests, government and the
public. Some of these comments, which are posted publicly on the NMFS
website. included input regarding mariner and navigational safety
issues.

Question 10. Since APA submitted its comments to NOAA in October
2022, has NOAA had any further discussion with or consultation with
other parties pertaining to the safety of mariners operating under the
new speed restrictions?

Answer. Yes, since the APA submitted comments on 10/28/22, NMFS
staff had additional discussions with external groups regarding mariner
safety.

Question 11. If the answer to the above question is yes, please
provide the details of that outreach to include the dates of the out-
reach and the parties that NOAA talked, met, or consulted with as well
as any pertinent information pertaining to the safety of mariners
operating under the new speed restrictions.

Answer. NMFS staff met with members of Senator Whitehouse's staff
on Oct 31, 2022, regarding sailing races and the proposed speed
regulations, and on Jan 18, 2022, NMFS staff met with the USCG National
Boating Safety Advisory Committee. Safety issues discussed included
vessel passenger safety should a whale strike occur and general impacts
to vessel operations and potential safety issues.

Navigation Safety of Large Vessels in Narrow Restricted Channels

Question 1. Prior to publishing its proposed amendments to the NARW
vessel strike reduction rule, did NOAA conduct any outreach as it
relates to the impacts of the rule on the safe navigation of large
vessels operating in the Federal Navigation Channels (FNC)?
Specifically, did NOAA talk to the U.S. Coast Guard or the Army Corps
of Engineers on the potential impacts to navigational safety to large
vessels in FNCs?

Answer. As noted above (in the response to Question #9), NMFS
solicited public comment on its North Atlantic Right Whale Vessel Speed
Rule Assessment. Neither USCG nor U.S. Army Corps of Engineers (USACE)
provided comment on the Assessment. Both the USCG and USACE had an
opportunity to review the proposed rule prior to publication as part of
the Office of Information and Regulatory Affairs (OIRA) interagency
review process under E.0. 12866. NMFS staff work regularly in
partnership with USCG on outreach and enforcement of the current right
whale speed rule. We are carefully considering the input received from
other Federal agencies as we work toward developing a final action on
the proposed rule. Federal agencies will be provided with an
opportunity to review any final rule via the OIRA review process.

Answer. In early 2021, NMFS conducted outreach on the speed rule in
the form of comment solicitation on the North Atlantic Right Whale
Vessel Speed Rule Assessment. (Those comments are publicly available at
the same website.) NMFS had no specific meeting with external
stakeholders focused on the safe navigation of large vessels in FNCs
prior to publication of the proposed rule but did meet with
stakeholders on related topics (as described earlier). NMFS coordinates
regularly with USCG regarding implementation and enforcement of the
right whale speed rule (and other right whale protection efforts), but
these interactions are too numerous to detail here. NMFS has not met
specifically with USCG or USACE, nor has either agency raised concerns
to NMFS, regarding navigational safety of large vessels in FNCs, except
that USCG has confirmed to NMFS that that they have not had any reports
of a vessel reporting a casualty event which cited the NARW speed
regulations as a contributing factor.

Questionable Support for Proposed Regulations

Question 1. What is the current NOAA estimation of the NARW
population? Please provide details on what NOAA considers to be the
total NARW population.

Answer. As published in the 2022 stock assessment report for North
Atlantic right whales, NMFS' best estimate of the population is 338
individuals (95% Credible Intervals: 325-350). This represents the
population as of November 2020 due to the time necessary to process and
analyze data.

Question 2. Does NOAA count NARW calves in the total NARW
population?

Answer. NMFS does not consider calves part of the population for a
marine mammal stock assessment. Calves (whales less than 1 year of age)
are not counted as part of the population for a year. The population
model using sightings data is only relevant to subadults and adults
because an individual whale needs to be >6 months old to enter the
sightings catalog as a uniquely identifiable individual. For the
purposes of stock assessment and population monitoring, calves are
small and vulnerable to some threats that are not relevant to adults.
However, every year, NMFS and our partners closely monitor the calving
grounds in the southeastern U.S., identifying and counting every unique
mother-calf pair. It is very rare for a new calf to not be documented
as part of these annual surveys. These efforts are crucial for
understanding individual and temporal variation in reproduction, even
though calves are not technically tallied as recruits to the population
during assessments.

Question 3. Please provide the total NARW population for every five
years from current time through when NOAA first tracked such
statistics. For example, what was the NARW population in 2018, 2013,
2008, 2003, etc . . .?

Answer. Under Section 117 of the MMPA, NMFS has published a revised
North Atlantic right whale stock assessment report every year since
1997. Under the ESA, NMFS completes a North Atlantic right whale status
review every five years, with the most recent review completed in
November 2022. Based on current methods and the most up-to-date data,
the total NARW population during the requested time period is below:

------------------------------------------------------------------------
Year Estimated Population
------------------------------------------------------------------------
2022 338
------------------------------------------------------------------------
2017 436
------------------------------------------------------------------------
2012 478
------------------------------------------------------------------------
2007 414
------------------------------------------------------------------------
2002 347
------------------------------------------------------------------------
1997 317
------------------------------------------------------------------------

Failure to Consider Economic Impact as Required by Law

Question 1. Has NOAA updated its estimated economic impact of the
proposed NARW vessel strike reduction rule?

Answer. In July 2022, NMFS published an economic assessment
entitled ``Draft Regulatory Impact Review and Initial Regulatory
Flexibility Analysis'' for the proposed rule for public comment. We are
carefully considering the input received as we work toward developing a
final action on the proposed rule, which will include an updated
economic assessment.

Question 2. If the answer to the above question is yes, please
provide the details of that updated economic impact, including the
impact on maritime commerce on the East Coast.

Answer. Any final rule will be accompanied by an updated economic
assessment.

Question 3. If NOAA has not updated its estimated economic impact,
given that we just heard NOAA's estimated economic impacts might have
failed to consider over $8 Billion in impact, will NOAA update this
estimate before moving forward with a final rule?

Answer. Any final rule will be accompanied by an updated economic
assessment.

Question 4. NOAA held a webinar on August 24, 2022 to discuss the
proposed NARW rulemaking. During this webinar, NOAA Economist, Chao
Zou-Garfo, acknowledged that, regarding the NARW rulemaking, economic
data was not considered and/or needed for small boats (6:57 pm EST),
communities served by high-speed ferries (6:59 pm EST), off-shore
fishing (7:21 pm EST), and ports (7:25 pm EST). The recording for
NOAA's August 16, 2022 webinar is available at the NOAA Fisheries,
Amendments to the North Atlantic Right Whale Vessel Strike Reduction
Rule website at https://www.fisheries.noaa.gov/action/amendments-north-
atlanticright-whale-vessel-strike-reduction-rule. NOAA has not yet
published the recording of the August 24, 2022 webinar. Why is this
recording not yet published? When does NOAA plan on publishing the
recording from its August 24, 2022 webinar?

Answer. NMFS presented three webinars on the proposed vessel speed
rule, on August 10, 2022; August 16, 2022; and August 24, 2022. All
webinars used the same presentation and materials. We recorded the
August 16 webinar presentation and posted it on our website: https://
videos.fisheries.noaa.gov/detail/video/6311444099 112/amendments-to-
the-north-atlantic-right-whale-vessel-strike-reduction-rule-
informational-webinar?autoStart=true&page=6&q=whales
NMFS did not publicly post any recordings of the Q&A portions of
the webinars and does not have plans to do so. Also, please note, that
at the beginning of each webinar, NMFS made it clear that the purpose
of the webinar was to provide clarification regarding the proposed rule
so there was no confusion about what was being proposed. The webinar
was not a formal hearing, and the agency was not taking verbal input as
formally submitted comments.
Every vessel type and size potentially impacted under the proposed
rule was fully considered in the draft economic assessment (including
costs associated with delayed transit). (Please see the Draft
Regulatory Impact Review and Initial Regulatory Flexibility Analysis.)
Any statements by agency staff made during the webinar that may have
suggested otherwise were potentially erroneous, taken out of context,
or misunderstood.

Questions Submitted by Representative Nancy Mace

Safety of Life (Pilots, Pilot Boat Crews, and Mariners in General)

Question 1. Are you aware of studies done by the Army Corps of
Engineers which show 10 knot speeds in channels can reduce safety
margins by 40-50% compared to 15 and 20 knots?

Answer. NMFS is uncertain about which study Rep. Mace is referring
to and as such, cannot comment further. USACE had an opportunity to
review the proposed rule prior to publication as part of the Office of
Information and Regulatory Affairs (OIRA) interagency review process
under E.O. 12866.

Question 2. Did NOAA take potential safety risks like collisions,
grounding, capsizing, and swamping of commercial and recreational
vessels into account in developing this rule?

Answer. Vessel safety is a priority for NMFS, and the agency
considered many aspects of mariner safety. Recent assessments indicate
that reducing the speed of large vessels is associated with a reduction
in marine casualty events (Chang and Park 2019), and the NMFS North
Atlantic Right Whale Vessel Speed Rule Assessment (NMFS 2020) noted a
decline in vessel grounding events within active, existing SMAs
following implementation of the 2008 vessel speed rule. Collisions with
whales are a serious hazard for vessel operators. There are many cases
from the United States and around the world of vessels sustaining
significant damage, and even sinking, following collisions with whales
(NMFS 2020). For example, in March 2009, a 30-foot pleasure craft
collided with a whale off Hilton Head, SC and sustained damage
significant enough to require passenger rescue by the USCG. For small
and mid-sized vessels, avoiding vessel strikes is a matter of safety
for both mariners and whales.
NMFS proposed additions to the current safety deviation provision
(relating to safe maneuvering speed) to also allow vessels less than 65
ft in length to exceed the 10-knot speed limit in areas with a National
Weather Service Gale Warning, or other National Weather Service
Warnings greater than gale force winds (e.g., Storm Warning, Hurricane
Warning) without having to submit a safety deviation report. In
addition, all vessel sizes would be able to exceed 10 knots during
emergency situations when the health, safety, or life of a person is at
risk.

Question 3. Just last year, Charleston became the deepest port on
the east coast after a $600 Million deepening project. The proposed
rulemaking would substantially reduce the impact of this project by
making it impossible to safely let two ships pass in the channel. Did
NOAA consider economic impact on ports in developing this rule?

Answer. For the past 14+ years, the entrance channel to the port of
Charleston has been covered by the current Seasonal Management Area 10-
knot speed restriction (Nov 1-Apr 30 each year), with vessels
regularly, and safely, transiting the entrance channel under two-way
traffic. The USCG has informed NMFS that no mariner casualty events
have been reported by vessels in that area citing right whale speed
restrictions as a factor. Impacts to large ocean-going ships were
included in the draft economic assessment that accompanied the proposed
rule.

Question 4. What is the timeline for NOAA to release a final rule
of 87 FR 46921, Amendments to the North Atlantic Right Whale Vessel
Strike Reduction Rule?

Answer. We anticipate taking final action in 2023.

Question 5. What studies has NOAA conducted or researched to assess
the safety of navigation of large vessels at slow speeds in dredged
channels? Has NOAA considered the work of the Army Corps of Engineers
Research and Development Center, studying the deleterious effects of
slow speed in Charleston's dredged entrance channel?

Answer. Large ocean-going vessels transit at a variety of speeds
within dredged channels outside of speed regulated areas. NMFS 2020
North Atlantic Right Whale Vessel Speed Rule Assessment highlights some
of the work NMFS did to review the safety of dredged channels. From the
report at page 20-21:

``In May 2019, USACE released a navigation study detailing
vessel simulations conducted to evaluate different widening
alternatives proposed as part of the ongoing Charleston Harbor
Deepening and Widening Project (USACE, 2019). Part of this
assessment examined the Fort Sumter Range, a channel segment
often referred to as the ``entrance channel'' to Charleston
harbor. Only one alternative was considered for Fort Sumter
Range, which included no widening to the existing 800 ft (1000
ft overall) channel. Simulations were run for this no-widening
alternative to examine two-way traffic issues, based on an 800
ft wide channel deepened to 54 ft, and an overall 944 ft wide
channel deepened to 49 ft along the sides (Figure 60). The
simulations used an exemplar container ship with the following
dimensions: length 1,201 ft, beam 160 ft and draft 49.9 ft.
This is the maximum size for a Post-Panamax vessel.

Two-way traffic runs (i.e., two ships passing) in the channel were
simulated on ebb and flow tides with a 30-knot crosswind under two
speed conditions: 1) unrestricted speeds, and 2) speeds restricted to
10 knots in keeping with the vessel speed rule. The conditions were
chosen to reflect ``credible worst-case scenarios.'' Pilots conducting
the simulations observed a decrease in steerage and an increase in the
ship's ``effective beam'' during the restricted runs. The pilots also
experienced groundings on some runs while trying to pass each other in
the channel. Two-way traffic was deemed viable at 10 knots but with
poorer handling. In contrast, the pilots reported being able to better
control ships at unrestricted speeds (typically 13-14 knots).
These simulations were designed to test the limits of safe
navigation, using the largest vessels, under poor weather conditions,
with two-way traffic in the channel. Fortunately, the simulated
scenario described in the report is rare. During the active SMA period
in this region (November 1-April 30), 30-knot winds are an uncommon
event. Based on wind data from the National Data Buoy Center (NDBC)
between 2016 and 2018, wind speeds of 30 knots or higher never exceeded
3% of wind speed observations at the NDBC offshore buoy #41004 during
any month the SMA was active. Of the 18 months of data we reviewed, 13
months had no observations of winds 30 knots. Wind speeds of 25 knots
or higher were also infrequent and never exceeded 16% of wind speed
observations at the offshore buoy during any month the SMA was active.
At an inshore station (#FBIS1), closer to the harbor entrance, wind
speeds of 30 knots or higher never exceeded 2% of wind speed
observations during any active month and wind speed events of 25 knots
or higher never exceeded 3% of wind speed observations during any
active month.''

______

Mr. Bentz. Thank you, Deputy Coit.
I now recognize Mr. Hugelmeyer for 5 minutes.

STATEMENT OF FRANK HUGELMEYER, PRESIDENT AND CEO, NATIONAL
MARINE MANUFACTURERS ASSOCIATION, WASHINGTON, DC

Mr. Hugelmeyer. Mr. Chairman and members of the Committee,
thank you for the opportunity to appear. My name is Frank
Hugelmeyer, and I am the President and CEO of National Marine
Manufacturers Association.
I speak on behalf of America's $230 billion recreational
boating fishing industry, which the Commerce Department's
Bureau of Economic Analysis confirms is the top contributor to
our nation's $862 billion outdoor recreation economy. We are a
made-in-America sector, and a driving force for national,
state, local, and coastal economies, supporting 812,000 jobs
and 36,000 businesses across the nation.
One of the most concentrated corridors for boating
activities and the vital jobs and businesses they support is
the Atlantic Seaboard. A core value of our community is
protection of our shared natural resources, ocean ecosystems,
and marine life. Our community contributes nearly $1 billion in
annual conservation funding via the excise tax on boat fuel
sales and fishing gear.
We have a long bipartisan track record of successfully
working with Congress and the executive branch to develop
policies that promote conservation and responsible recreation.
So, we were stunned to learn that NOAA, with no prior
engagement or discussion with the marine industry, proposed
regulations representing the greatest restriction of public
access to our nation's cherished waterways in our time.
Under the proposal, all boats over 35 feet cannot travel
faster than 10 knots, or about 11 miles per hour, within a vast
area extending from Massachusetts to central Florida,
essentially requiring Americans to risk their vessel and their
own lives in unpredictable seas by going the speed of a
bicycle. The speed zones would extend as far out as 90 miles
offshore and last for up to 7 months, deterring citizens and
businesses from venturing out to sea.
This unprecedented expansion is not supported by the data
or NOAA's published facts. One study shows that fatal whale
strikes come from boats over 260 feet, and since 2008, there
has been one documented U.S. instance of a recreational boat
under 65 feet outside of the already-existing speed zones
striking a North Atlantic right whale and causing death. One
whale death in 15 years does not justify transforming the
outdoor recreation economy of 11 states. A question of such
deep economic, societal, political significance should only be
addressed by Congress.
And make no mistake, NOAA's proposal will have broad
economic consequences because the rule lacks serious impact
analysis on the marine economy, including harm to charter
operations, water sports tours, marinas, tackle shops, boat
sales, manufacturing, and more. And there was no impact
analysis on tax revenues critical to local, state, or Federal
coffers. If allowed to proceed, this proposal will have
devastating impacts on thousands of jobs and small businesses
supported by boating-fueled economies.
Now, our community prides itself on being data-driven and
science-based. Due to the complete lack of industry engagement,
NOAA's assumptions are littered with inaccuracies and human
safety concerns. And here are just a few.
NOAA estimates 9,300 boats will be impacted by the rule.
U.S. Coast Guard boat registration data proves that 63,000
registered recreational boats will be impacted.
NOAA casts no distinction between a 35-foot pleasure boat
that drafts only 3 feet versus a massive, ocean-going ship that
drafts 45 feet.
NOAA estimates the annual cost of the rule to be just $46
million. Industry data puts the economic impact of the region
at $84 billion, with an estimated 340,000 American jobs in
jeopardy.
It is a false choice to state that Americans must choose
between saving whales and allowing public access that provides
economic security for small businesses and families. We can do
both.
So, we appreciate the bipartisan support for appropriations
language and legislation that would fund NOAA to fully explore
real-time monitoring and technological options to protect
marine mammals without shutting down public access or coastal
economies. However, if NOAA insists on moving forward with this
profoundly ill-conceived proposal, Congress must act to protect
Americans and their livelihoods.
Thank you for your time.

[The prepared statement of Mr. Hugelmeyer follows:]
Prepared Statement of Frank Hugelmeyer, President & CEO, National
Marine Manufacturers Association
Chairman Bentz, Ranking Member Huffman, and members of the
Subcommittee: Thank you for the opportunity to appear before you today
to discuss the National Marine Fisheries Service (NMFS), National
Oceanic and Atmospheric Administration's (NOAA) proposed rulemaking to
amend the North Atlantic right whale vessel speed regulations.
My name is Frank Hugelmeyer, and I am the President and CEO of the
National Marine Manufacturers Association--the leading recreational
marine trade association in North America, representing nearly 1,300
boat, engine, and accessory manufacturers.
I speak on behalf of America's $230 billion recreational boating
and fishing industry which the Commerce Department's Bureau of Economic
Analysis (BEA) confirms is the top contributor to our nation's $862
billion outdoor recreation economy. We are a made-in-America sector and
a driving force for national, state, local and coastal economies,
supporting 812,000 jobs and 36,000 businesses across the nation. One of
the most concentrated corridors for boating activities and the vital
jobs and businesses they support is the Atlantic seaboard.
A core value of our community is the protection of our shared
natural resources, ocean ecosystems and marine life. Our community
contributes nearly a billion dollars in annual conservation funding via
the excise tax on boat fuel sales and fishing gear. And we have a long
bipartisan track record of successfully working with Congress and the
executive branch to develop policies that promote conservation and
responsible recreation.
As America's original conservationists, our community of boaters
and anglers proactively support science-based efforts to conserve our
marine ecosystems and proudly collaborate with Congress and federal
agencies to develop legislation and policies that strike a balanced
approach between conservation and recreational access. Recent examples
of this include passage of the Modern Fish Act, the Great American
Outdoors Act, and the Driftnet Modernization and Bycatch Reduction Act
and engagement on the administration's America the Beautiful
initiative, and recreation friendly expansions to the nation's National
Marine Sanctuary System.
My organization and our partners in the boating and recreational
fishing advocacy space, for the last dozen years, have enjoyed a
healthy and constructive dialogue when it comes to marine resource
management issues of greatest interest to our businesses and to the
nation's boaters and anglers. I am very sorry to say, we are now ten
months into an experience with NOAA and NMFS that has been the opposite
experience--minimal dialogue and zero interest in collaboration--on an
issue that presents an unprecedented potential blow to boating and
fishing along the entire east coast of the United States.
On July 29th, 2022, NOAA published its proposed North Atlantic
Right Whale Vessel Strike Reduction Rule. This was the first time our
industry had heard of these contemplated speed reduction measures.
Given the sweeping scope of the proposal covering thousands of miles of
coastline across twelve states, and the resulting huge direct and
indirect economic impacts to coastal communities and the maritime
industry, we were shocked. In contrast to our industry's previous
engagements with NOAA on conservation initiatives that involved
thoughtful and collaborative communications, the Federal Register
notice was the first we heard NOAA was considering sweeping new speed
regulations to protect these whales--and that strikes by smaller
recreational boats were being considered a significant cause of lethal
vessel strikes.
Current Right Whale vessel speed restrictions require all vessels
65 feet or longer to travel 10 knots or less in certain limited
locations along the Atlantic Coast at certain times of the year. Under
the proposed changes, all boats 35 feet and greater cannot travel
faster than 10 knots (about 11 mph) within a vastly expanded area
extending from Massachusetts to central Florida--essentially requiring
Americans to risk their vessel and own lives in unpredictable seas by
going the speed of a bicycle. These speed restrictions would apply to
areas up to 90 miles offshore, for up to 7 months out of the year in
some instances.
The proposal contains numerous flaws that will result in disastrous
impacts to coastal communities but little protection for the whales.
The proposed changes lack a data-driven approach, are based on
incorrect assumptions about the number of boats covered by the rule and
where those boats generally travel, and ignores basic ways that boats
of this size operate--namely NOAA's modelling that made no distinction
between a 35 pleasure boat that drafts only 3 feet and enormous
oceangoing ships that draft 45 feet.
These flaws could have been avoided had NOAA engaged with the
boating and fishing industries--a very data rich segment of the
economy--to more accurately understand the proposal's impact on boating
access and coastal economies, and its efficacy in protecting right
whales. To put it another way, how could NOAA possibly have expected to
come up with a workable, well-founded rule that would actually achieve
the goal of helping North Atlantic right whales if the agency never
talked with the very stakeholders most impacted by and responsible for
complying with the new restrictions?
NOAA has miserably failed basic good governance tests in this
instance. We now understand that the proposed rule was in development
for over a year prior to publication, but solely within NOAA's Office
of Protected Resources. It would have been a best practice and
appropriate for NOAA to directly engage with our industry at this time.
If NOAA had pursued such a path, the conversation could have started
with making sure they had accurate intelligence on the actual economic
impacts, the true number of boats affected, and the design basics of
how different boats within the various types and sizes in question
actually move through the water.
The recreational fishing and boating community is highly engaged in
any federal agency management process that impacts our sport and is
highly data driven. In many cases, our industry has offered
policymakers constructive scientific input and technical data that was
ultimately used to develop management solutions that meet conservation
goals and allow for the continued social and economic contributions our
sector provides to the nation.
Unfortunately, the lack of meaningful engagement led to a proposed
rule that ensures we will have excessively severe impacts on fishing
and boating. Many boaters and anglers will forego boating and fishing
trips altogether due to the unreasonable time, cost and restrictions
imposed by the rule. This in turn will negatively impact marinas, dry
dock storage, boats sales, rentals, dealers, maintenance, fishing
tournaments, tour and watersport operators, tackle shops, charter and
party boat operations, and many others. Fellow panelist, Fred Gamboa,
will provide insights into just how hard this proposal will be on his
business and countless others that represent America's small business
economy.
An important aspect of this proposed rule's many flaws is how it
would exacerbate challenges with enforcement of existing vessel speed
restrictions pertaining to larger ships. The U.S. Coast Guard (USCG) is
charged with enforcing vessel speed rules across thousands of miles of
open oceans. Given their current role in national security and maritime
safety, we urge the committee to review whether the USCG has the
necessary resources to undertake enforcement of an expanded vessel
speed program. In fact, NOAA has already acknowledged there is not
sufficient funding or resources to enforce the current 10-knot speed
restrictions for vessels 65 feet and greater. Yet the rule's expansion
to boats 35 feet and greater would task law enforcement agencies with
monitoring tens of thousands of boats and vessels across a larger
section of the Atlantic Ocean. I strongly encourage this committee to
work with your colleagues on the Transportation and Infrastructure
Committee to reach a thorough understanding of how this proposed rule
will impact the USCG's existing enforcement mandates.
While there are a myriad of inaccuracies and unjustifiable negative
consequences to this proposal, the most severe are the extensive damage
to coastal economies, threats posed to boater safety, and a clear lack
of understanding of small recreational boat contributions to right
whale vessel strikes.
NOAA claims the proposed rule changes will have an annual estimated
yearly cost of $46 million. Make no mistake, this figure drastically
understates the impact to even a single state budget or individual
manufacturer. And it's astonishing that NOAA did no impact analysis on
tax revenues critical to local, state, or federal coffers. By making
boating and fishing trips in the Atlantic unsafe and nearly impossible
for as much as seven months of the year, this proposal would result in
the cancellation of countless trips along with the economic activity
they generate. Consequently, the rule would have a devastating impact
on thousands of jobs and small businesses supported by boating-fueled
economies along the eastern seaboard.
The Department of Commerce's own BEA has reported the outdoor
industry is a major economic engine in the U.S. Since BEA began
reporting on the outdoor industry through the Outdoor Recreation
Satellite Account in 2018, boating and fishing have remained the
leading contributor to this critical sector. It is imperative to
underscore with this committee that in Atlantic coastal states alone,
63,000 registered saltwater fishing boats are impacted, and 340,000
American jobs and nearly $84 billion in economic contributions are in
jeopardy if this proposed rule moves forward.
NOAA also grossly underestimated the number of boats impacted,
stipulating the rule changes will have little impact on East Coast
recreational boaters and anglers affecting 9,300 recreational boats.
However, a quick check of easily accessible USCG boat registration data
from 2021 clearly shows 63,000 registered recreational saltwater boats
measuring 35-65 feet in length along the East Coast. Had NOAA engaged
with the recreational marine community, the agency would have had a
better understanding of this data and the rule's potential impact on
coastal economies.
Of the many questions we have presented, that NOAA has not
answered, we are hoping this committee can find out how the Office of
Protected Resources, within NMFS reached its economic impact figures
and who specifically created the projections. The impact figures are so
astonishingly low that they conveniently avoid Office of Budget of
Management and Congressional triggers that demand and require greater
regulatory scrutiny. If NOAA had reached out to colleagues within the
Department of Commerce at BEA, they would have had far more accurate
information in their hands. BEA economists specialize in tracking and
studying outdoor recreation data. Why not consult these experts?
NOAA acknowledges that various factors have contributed to the
increase in right whale mortality, from entanglement in commercial
fishing gear to climate change, which may increase food scarcity and
thus shift migratory patterns. In NOAA's proposed rule, the agency
inaccurately assumes that small boats under the 65-foot threshold are
significantly contributing to right whale mortalities and strikes. I
need to be extremely clear on this point: While large vessel strikes
pose significant risks to the North American right whales, there is
insufficient and conflicting data supporting the conclusion that small
vessels are responsible for the increase in right whale mortality we
have seen in the last several years.
In fact, the Tethys Research Institute found that most lethal
injuries to whales were caused by large vessels greater than 80 meters
or over 260 feet. When questioned, a lead researcher at Tethys
mentioned to NMMA and the global boating community that recreational
boat strikes were ``unlikely to cause a fatality'' and such strikes
would most likely damage a smaller vessel and injure passengers. It is
noteworthy that the boating and angling industry leadership in America
has not heard of reported instances of recreational boats being
disabled by right whale strikes in U.S. waters. And there is scant
evidence from NOAA that proves small vessel strikes are a common
occurrence.
An analysis of NOAA's own data found approximately 5.1 million
recreational fishing trips were taken along the eastern seaboard by
vessels 35-65 feet in length since 2008. Assuming all five right whale
strikes during this time were from smaller recreational boats, and that
those boats were on fishing trips, the chance of a 35-65 foot
recreational boat striking a right whale during an offshore fishing
trip is at most 0.000098%, or less than one-in-a-million. Attempting to
prevent a one-in-a-million chance of a strike from smaller recreational
boats is not an effective management strategy and highlights the
futility of expanding the seasonal speed zones to boats smaller than 65
feet.
Additionally, NOAA fundamentally misunderstands how smaller
recreational boats between 35-65 feet in length operate in the water.
Recreational boats do not have a 10-meter draft (most have a draft of
less than 1 to 2 meters). NOAA also has incorrectly assumed that
smaller recreational boats have the same transit patterns as large
commercial ships (they do not) and, therefore, utilized whale density
estimates that overestimate the risk.
NOAA also did not take into account how small recreational boats
under 65 feet are designed and used. Recreational boats are not large
ocean-going vessels, which are built to cut through choppy waters and
withstand turbulent weather. Requiring small recreational boats to
travel at 10 knots (11 mph) in the open ocean and worsening seas
increases a boat's chance of capsizing or swamping, putting boater
safety at great risk. Put simply, traveling at 10 knots (roughly 11
mph) in the open Atlantic Ocean for long periods is inherently
dangerous for recreational boats. Yet NOAA's proposed ``go-slow zones''
would extend up to 90 miles from shore--including thousands of square
miles of the ocean where North Atlantic right whales have not been
observed in decades, or ever--forcing recreational boaters and anglers
to forego their pastime altogether for fear of their personal safety.
Given the social, health, economic and conservation benefits of
recreational fishing and boating to the nation, and the glaring flaws
that justify the proposed rule, more deliberation and analysis is
needed to a balance conservation goals with measures that protect
boating access, boater safety, and coastal economies. Fortunately,
there are constructive developments outside NOAA's regulatory process
that stand to put us on a balanced path.
First, the James M. Inhofe National Defense Authorization of 2022
included authorization of a pilot project for real-time monitoring
aimed at protecting right whales and directed at identifying core
foraging habits, important feeding breeding, calving, rearing, or
migratory habits that co-occur with areas of high risk of mortality,
serious injury, or other impacts to whales such as vessel strikes.
Within three years, the Coast Guard is directed to design and deploy a
program that 1) comprises the best available detection survey
technologies to detect right whale foraging habits, 2) uses dynamic
habitat suitability models to inform right whale occurrence in core
foraging habitats at any given time, 3) coordinates with the federal
ocean observation and maritime traffic services, 4) integrates
historical data and new near real-time monitoring methods and
technologies as they become available, 5) accurately verifies and
rapidly communicates detection data, 6) creates standards for ocean
users to contribute data to monitoring system, 7) and communicates the
risks of injury or large whales to ocean users to further mitigate the
risk of vessel strikes.
The data and information this program will provide are paramount to
shaping science and data-based policy as it pertains to vessel speeds
and interactions with right whales. NOAA should be required to have
this data in order to move forward with any expansion of the existing
North Atlantic right whale vessel speed restrictions. Our industry is
working attentively to ensure this program is adequately funded in the
FY24 appropriations process to prevent any delays to the implementation
of this critical program.
Second, there are mitigation technologies being tested
internationally that should be considered and utilized before
restricting U.S. waters. The Tethys Research Institute conducted a
study in the Mediterranean Cetacean Sanctuary (located along the
Italian and French coast) that analyzed how best to deal with
threatened whale populations and high levels of maritime traffic and
nautical activities. Strike mitigation strategies being tested in this
region include the use of REPCET software, drones and other detection
devices that notify vessels that they are likely to encounter a
cetacean on their route and then advise slowing down for several miles.
The U.S. Commerce Department would be smart to follow the examples of
Italy and France who are working to protect both the endangered whales
and their dynamic boating, fishing and tourism economies.
Third, since the proposed rule was published last fall, our
industry launched the Whale and Vessel Safety (WAVS) Task Force for the
purpose of identifying, developing and implementing technology and
monitoring tools in the marine industry and boating community with the
goal of mitigating the risk of vessel strikes to all marine mammals,
with special attention to right whales. So far, the task force has
projects underway examining and utilizing risk terrain modeling to
identify places of highest risk for whale strikes and inform actions/
resource based on that risk. The task force is also evaluating how
marine radar algorithms and artificial intelligence can be used to more
accurately detect and alert vessel operators of the presence of whales.
Like in the Mediterranean, technology innovations stand to play an
important role in addressing right whale conservation in the Atlantic,
yet NOAA's proposal did not take into account how technology could be a
valuable tool in minimizing vessel strikes to right whales. WAVS Task
Force representatives have made numerous requests to NOAA for agency
engagement that went unanswered for months.
Ultimately, it is unclear if NOAA has the statutory or
constitutional authority to issue such sweeping regulatory restrictions
impacting the American people. The agency's proposed action would
restrict a significant portion of the American economy and amount to a
total transformation of the Atlantic coast, but NOAA has not pointed to
any clear congressional authorization to regulate in this manner.
Instead, the agency relies on its ability to promulgate regulations
that are ``necessary and appropriate.'' This is not, and cannot be, an
open-ended authorization for the agency to take any action without
limitation. Questions of such deep economic, societal, and public
policy significance, like severely restricting public access rights for
millions of Americans, using satellite safety technology to track and
fine American citizens, or setting expansive regulations that impact
the economic foundations of the entire Atlantic seaboard, should only
be addressed by Congress.
Despite all of the above, the boating industry looks forward to
working collaboratively with the members of this subcommittee, other
committees of jurisdiction, and NOAA toward a balanced solution that
protects right whales while minimizing adverse impacts on recreational
boating access and coastal economies. The marine industry can be
passionate about whale protection and vehemently against this ill-
conceived and over-reaching regulation. It is a false choice to state
that Americans must choose between saving whales and allowing public
access that provides economic security for small businesses. We can do
both. By working together, we can develop data-driven, reasonable
solutions that protect our natural resources and way of life, including
developing and implementing available and/or newly advanced whale-
tracking and monitoring technologies that protect North Atlantic right
whales, without jeopardizing consumer safety, public access or coastal
communities.
However, if NOAA chooses not to stand down on this profoundly ill-
conceived proposal, it will be imperative for Congress to step in. We
appreciate the bipartisan support for appropriations language and
legislation that would fund NOAA to fully explore real time monitoring
and other technological options to protect marine mammals without
needlessly shutting down public access and coastal economies. We hope
NOAA listens and changes course. If that doesn't happen, the American
people will need Congress to act on their behalf.
Thank you for the opportunity to appear before the committee.
Addendum

Below is a list of concerns on numerous aspects of the proposed
rule with additional background. NMMA along with industry stakeholder
partners pointed out these concerns in a letter to NOAA on October 3,
2022, and we have not received a reply. We respectfully request
Congress to require responses from NOAA on these questions.
1. Seasonal Speed Zones (Currently Referred to as Seasonal Management
Areas)

The proposed rule significantly expands the geographic scope of the
existing SSZs to encompass almost the entire East Coast. NOAA justifies
this expansion on shifting right whale migratory patterns and the need
to reduce human induced right whale mortality events from vessel
strikes and uses a complex risk model to justify the scope of the
proposed changes. The risk model simulates the likelihood of a fatal
vessel strike in space and time using various sources of right whale
and vessel traffic data. NOAA risk analysis resulted in a proposed
expansion of SSZs but actual data on real-word mortality supports the
maintenance, not the expansion of the existing SSZs. For example, NOAA
notes that since 2008, four of the five strike mortality events
involving vessels less than 65 feet occurred inside active SSZs.
Therefore, the observed data suggest that an 80% reduction in realized
mortality since 2008 could have been achieved if vessels less than 65
feet were added to existing SSZs. Instead, NMFS opts for a vast
geographic expansion of SSZs from Massachusetts to north Florida based
on projected risk when realized risk indicates existing SSZs would be
an effective management strategy to achieve conservation goals for the
35-65 foot vessel class. To be clear, our industry is not expressing
support for applying the proposed restrictions to the existing SSZs,
but rather pointing out these issues as an example of NOAA's failure to
draw reasonable conclusions from the best data available.
2. Dynamic Speed Zones (Currently Referred to as Dynamic Management
Areas)

To address the potential for vessel strikes in areas outside SSZs,
NOAA is proposing to replace existing voluntary Dynamic Speed Zone
(DSZ) requirements with mandatory DSZs for vessels 35 feet and larger.
DSZs are triggered when right whales are visually or acoustically
observed in a specific, discrete area. Practically speaking, DSZs with
high vessel traffic should have the highest risk of vessel strikes with
right whales because right whales are known to be present. Yet, to our
knowledge, since 2008, none of the 35-65 foot vessel strike mortalities
occurred in a DSZ, despite the higher risk of right whale and vessel
collisions. Voluntary compliance with DSZs by these smaller vessels
could partially explain the lack of mortality events, but NOAA speed
rule assessment determined that vessel cooperation with DSZs is low,
and therefore, the reduction in risk provided by the voluntary DSZs is
minimal (NMFS, 2020). Again, it is contradictory that in areas where
vessel strike probability is highest (in high traffic DMZs) associated
right whale mortality is lowest. This again speaks to the flaws in
NOAA's risk modeling in the unsupported conclusions the agency has
drawn to justify the proposed rule.
3. Estimating Risk of a Recreational Vessel Strike

In an impact analysis for this proposed rule commissioned by the
American Sportfishing Association, Southwick and Associates analyzed
historical data to better characterize the actual risk from
recreational fishing boats in the 35-65 foot size class to right whales
(Appendix A). Using NMFS Marine Recreational Information Program (MRIP)
effort data published by NOAA, they estimated there have been over 92
million offshore fishing trips taken since 2008 in states within the
proposed expanded SSZs. Of these trips, they conservatively estimate
using vessel registration data, that at least 5.1 million were taken by
vessels 35-65 feet in length. Assuming that all five documented right
whale strikes were from recreational vessels, and that all these
vessels were on fishing trips, the chance of a 35-65 foot recreational
vessel striking a right whale during an offshore fishing trip is less
than one in 1,000,000. Furthermore, this analysis only includes
recreational fishing trips and does not include recreational vessel
trips that occur for other reasons. Therefore, it is reasonable to
assume that many more non-fishing trips occurred as well, and non-
recreational vessels may have been responsible for one or more of the
strikes, meaning the actual probability is likely much lower than
Southwick's estimate.
While this analysis demonstrates that the chances of a recreational
boat striking a right whale is exceedingly rare, it also shows that in
general, the recreational fishing and boating sector does not pose a
significant threat on an individual right whale level. Despite
considerable boat activity, recreational boats are not interacting with
right whales at a rate consistent with the NOAA risk model.
Finally, NOAA is using unrepresentative whale density values,
thereby creating a significant bias in the risk model. NOAA's own
technical memo states that, ``the high densities predicted along the
mid-Atlantic may not be realistic.'' These inflated density values feed
the risk assessment model and produce outcomes that are inconsistent
with actual risk and the occurrence of known strikes. The model also
served as a primary tool in the development of the proposed rule, thus,
the density bias is reflected in those expansive measures. NOAA
acknowledges that model development and evaluation is ongoing to
address this source of bias. Noting this inherent bias and the ongoing
work on the model, it would be irresponsible and unreasonable to move
forward with the proposed rule until these issues are fully resolved.
4. Number of Recreational Vessels 35-65 Feet and Fishing Trips Impacted

Further exploration of available datasets underlying NOAA's
proposal indicates its NEPA Environmental Analysis (EA) underestimates
the number of anglers, boaters, and economic impact associated with the
proposed rule. For example, NOAA identifies 9,200 recreational vessels
that will be impacted by the proposed rule. However, based on 2021
vessel registration data analyzed by Southwick Associates, there were
more than 63,000 registered recreational saltwater vessels measuring
35-65 feet in states across the proposed SSZs. Furthermore, an analysis
of MRIP trip data from 2019-2021 reveals that each year more than
70,000 recreational fishing trips in the 35-65 foot size class take
place in the Atlantic Ocean more than 3 miles offshore in states with
proposed SSZs during the months when the speed restrictions would be in
place. NOAA must address the EA's shortcomings through preparation of
an Environmental Impact Statement, and include a more thorough and
accurate investigation of the number of recreational vessels impacted,
speeds needed for offshore trips to be viable, and the true costs and
economic impacts of the lost fishing opportunities associated with the
proposal, as they clearly exceed the $1.2 million claimed (see Appendix
A).
5. Establishing the 35-65 Foot Vessel Size Class

NOAA posits that current right whale speed zones do not address the
threat of strike mortalities involving vessels less than 65 feet and
proposes to extend vessel speed restrictions to a 35-65 foot vessel
size class. However, since 2005, only a total of six fatal vessel
strikes occurred involving vessels 42-54 feet. NOAA additionally
references Canada's expansion of the vessels covered by dynamic
mandatory 10-knot speed restrictions in the Gulf of St. Lawrence in
2019 to include vessels 43 feet or greater in length. Thus, even if one
accepts NOAA's flawed rationale for the proposal, the data suggest a
smaller vessel size class of 42-65 feet is more justifiable than the
proposed 35-65 foot size class. At a minimum, it brings into question
how 35 feet was selected as the low end of the range since vessels
around this size have not been responsible for any right whale vessel
strike mortalities in the U.S. The proposed rule appears to argue that
extending speed restrictions to smaller vessels will help address
safety concerns as vessel strikes pose a threat to human life. As
stated, we value minimizing safety concerns from strike occurrences,
but given the rarity of vessel strikes in the 35-65 foot size class, we
expect more safety concerns and threats to human life will occur from
the proposed vessel speed restrictions, due to forcing boaters to spend
more time on the water in potentially unsafe conditions, than the
highly improbable chances of smaller boats striking a right whale.
6. Misestimate of Draft Depths for 35-65 Foot Recreational Vessels

The NOAA Technical memorandum NMFS-SEFFSC-757, may vastly
overestimate the probability of a recreational vessel 35-65 feet
interacting with a right whale. The model assumes a 10-meter (m) draft
depth criteria when calculating vessel strike risk. Recreational
vessels in this size class rarely have a static draft that exceeds 2 m.
For example, a 35 foot center console has a static draft of 1.01 meters
and a 64 foot sportfish boat has a static 1.7 m draft. Given that most
recreational boats in this size class are planing or semi-planing
hulls, once at speed their draft is further reduced. The result is that
these boats have minimal intrusion beyond the upper 6 feet (2 m) of the
water column. Assuming that this class of boats poses a right whale
vessel strike risk beyond 2 m of depth is simply invalid. Based on this
fact alone, we believe the vessel strike risk attributed to vessels 35-
65 feet is overestimated at a minimum of 80%. Risk posed for right
whales comes not only from the boat and whale being in the same
location, but also the boat being deep enough to strike the whale.
7. Overlap of Speed Rule with Known Recreational Fishing Seasons

The date ranges of the proposed SSZs conflict with many popular
inshore and offshore recreational fishing seasons currently managed by
the three Atlantic regional fishery management councils, NMFS Highly
Migratory Species Division, and the Atlantic States Marine Fisheries
Commission. For example, we evaluated NOAA's MRIP catch data from 2017-
2021 across all waves to determine the proportion of recreational catch
occurring in waves overlapping with the timing of proposed SSZs. As
expected, we found that several recreationally important species,
including but not limited to cod, haddock, bluefish, black sea bass,
striped bass, tautog, Spanish mackerel, dolphinfish, and wahoo, have a
significant amount of catch that overlaps with the timing of proposed
SSZs (see Appendix B). Although these data are not specific to vessel
size class, they demonstrate that NOAA's inaccurate assumption that
colder weather and rougher sea conditions will result in lower boating
activity during the timing of proposed SSZs needs further exploration.
We are concerned that NOAA has failed to directly engage the regional
fishery management bodies to reduce the overlap between proposed
changes to the timing of SSZs and recreational fishing seasons as much
as possible. Additionally, there are other recreational fishing seasons
for highly migratory species that overlap with the proposed SSZs and
are not sampled by MRIP (e.g., bluefin tuna).
8. Draft Regulatory Impact Review and Initial Regulatory Flexibility
Analysis

NMFS is required to conduct a thorough evaluation of impacts of the
proposal to the human environment; however, the Draft Regulatory Impact
Review (RIR) for this proposal provides conflicting economic analyses
for benefits versus impacts. For example, the RIR cites a 2020 NOAA
study that estimated the direct economic output of six whale watching
operations within Stellwagen Bank National Marine Sanctuary at $95.1
million (Schwarzmann, 2020). In contrast, the RIR estimates $46.2
million from the proposed rule cumulative impacts for all vessel size
classes and regions combined. It is difficult to understand how the
economic benefits of six whale watching operations exceeds the economic
impact of 9,200 recreational vessels, a vessel number likely
underestimated based on Southwick's findings. Furthermore, the RIR
includes no indirect impact analysis, but indirect benefits from whale
watch operators is included by reference in the benefits section. We
question that NMFS was unable to compile any indirect economic impact
information for recreational vessels especially when NMFS regularly
publishes a Fisheries Economics of the United States report. These
points call into question the thoroughness and accuracy of NMFS'
analysis. NMFS cannot move forward with the rulemaking without
understanding the true economic impacts of the proposed vessel speed
restrictions.
9. Enforcement Concerns of the Proposed Rule

Currently, right whale speed restrictions are enforced almost
exclusively by evaluating Automatic Identification Systems (AIS) data.
AIS data are analyzed to determine if a vessel has exceeded the speed
limit within a seasonal speed restriction zone. AIS is a piece of
marine electronics equipment made mandatory for certain vessels over 65
feet to improve the navigational safety of the vessel and other vessels
operating in the area. AIS is not required on recreational vessels 35-
65 feet, thereby making the primary enforcement tool of the right whale
speed restrictions unavailable for many boats 35-65 feet. In short,
enforcement of the proposed rule would be impractical, if not
impossible. Additionally, there are no indications that development of
legislation to amend 46 USC 70114 has begun or will be initiated in the
near future. This leaves the proposed rule, as written, with an
extremely low likelihood that it can be enforced.
The technological limitations of AIS make the enforcement of speed
limits based on its data unreliable. Positional information transmitted
through AIS can carry sufficient variation, as a function of the rate
of transmission and sea state, that can produce a range of estimated
speeds. This variability can be particularly considerable during high
seas and heavy weather conditions. Furthermore, certain conditions,
such as a following sea or entering an approach on a flood tide, may
result in a vessel exceeding a 10-knot limit through its AIS data
(speed over ground) but its speed through the water is at or lower than
the 10 knots because of additive vectors in like direction. During
these conditions, a vessel must increase speed to maintain adequate
steerage. The rule would clearly create scenarios where operators may
be forced to run a boat at an unsafe speed in fear of AIS triggering a
speed violation.
It is also important to point out that AIS is a tool that was
developed and mandated for use in certain vessels to improve
navigational safety. It was not designed or intended to be used as a
tool to enforce spatial or fisheries management regulations. Many
vessels under 65 feet voluntarily carry and operate AIS for the added
safety-at-sea benefits gained from the technology. It is a very real
concern that operators of boats less than 65 feet may decide to turn
off their AIS safety systems in fear of triggering a speed restriction
enforcement action.
10. Updates to Safety Deviation Provisions

NOAA provides a safety deviation provision as part of the proposed
rule. The deviation provision is only applicable to vessels less than
65 feet, allowing those vessels to transit at speeds greater than 10
knots within areas where a National Weather Service Gale Warning, or
other National Weather Service Warning for wind speeds exceeding those
that trigger a Gale Warning is in effect. The National Weather Service
defines Gale force wind speeds at 39-46 mph. We question how NOAA
arrived at a Gale force threshold because, from recreational boating
experience, vessels 35-65 feet cannot operate safely at 10 knots during
wind speeds exceeding approximately 25 mph. Therefore, we suggest NOAA
lower the wind speed deviation threshold to at least 25 mph to ensure
safe vessel operation at sea.
It is also important to note that vessel speed is a significant
safety feature on a recreational boat. Most recreational boats lack
high displacement hull design that often provides ocean going and
commercial vessel stability and the ability to operate safely in
significant sea states. Recreational vessels utilize speed to conduct
fishing and other recreational trips during weather windows of
opportunity. To comply with a 10-knot speed limit, recreational boats
could be forced to operate during conditions that would compromise
safety of the passengers and vessel. Speed is also a safety asset in
the event of localized weather events such as thunderstorms where a
vessel could return to port or avoid a line of thunderstorms with the
ability to operate above 10 knots. The proposed rule would unfairly
deprive a primary safety feature of recreational boats 35 feet and
larger.
Operating at speeds that do not exceed 10 knots, for most
recreational boats, forces the vessel to operate at a less than optimal
speed and angle of attack. Operating at these speeds raises the bow
which reduces the visibility of the operator to see and avoid hazards
in the water, including right whales. Most recreational boats have hull
designs that allow the boat to ride level when on plane. Operator
visibility is optimized when a boat is on plane. Thus, the proposed
rule may actually have the unfortunate consequence of reducing operator
visibility and elevating the risk of collisions.
11. Exploring Technological Advancements and Mariner Outreach

Halting the proposed rule would provide opportunity to focus on two
key areas of interest that warrant discussion. First, technology that
can deliver real-time monitoring of individual right whales continues
to advance. From direct observations, aerial surveillance, acoustic
detection, heat signature technology, satellite monitoring and ambient
DNA signatures found in water samples, it is feasible to gather real-
time location information on a significant portion of the right whale
population. Fewer than 350 individual right whales remain, which makes
tagging or other high-value monitoring techniques possible. If all
right whales cannot be tagged or monitored, perhaps efforts could be
focused exclusively on mature female right whales, roughly 100
individuals, to protect the most reproductively valuable segment of the
population. Even if monitoring of all right whales is not possible, we
can expect any real-time monitoring to provide ancillary protection to
non-monitored right whales because of their grouping behavior. This
approach would be consistent with the criteria used to trigger DSZs.
Outreach could also be conducted with the recreational fishing and
boating community on ways they can provide direct observations of right
whales to NOAA.
The second key portion of this effort is the need to disseminate
information to mariners and other vessel operators. Distributing this
information to anglers and boaters and into their marine electronics is
essential. This is something NOAA continues to struggle with given the
lack of outreach to the recreational fishing and boating community
following the implementation of the 2008 measures. As mentioned, on the
rare occasion when recreational boats unintentionally interact with
right whales, the outcome often results in risk to human life. Our
industry would welcome developing ways to provide real-time positioning
on navigational hazards, including right whales, to vessel operators.
12. Need for Stakeholder Engagement

We question why stakeholder engagement was not a significant part
of the process for developing the proposed vessel speed rule,
considering known significant impacts to recreational fishing and
boating. For years, NOAA has used the Take Reduction Team (TRT) model
to work collaboratively with the commercial fishing industry to develop
management solutions that address commercial fishing gear-related whale
mortality. Even if the Marine Mammal Protection Act doesn't require
TRTs for a vessel speed rule, it shows a lack of responsibility that
NOAA did not use the TRT model to engage the recreational fishing and
boating community in the development of this proposed rule.

______

Questions Submitted for the Record to Frank Hugelmeyer, President &
CEO, National Marine Manufacturers Association

Mr. Hugelmeyer did not submit responses to the Committee by the
appropriate deadline for inclusion in the printed record.

Questions Submitted by Representative Nancy Mace
Question 1. Could a recreational boat under 65 feet be in serious
danger of capsizing or swamping if forced to cap its speed at 10 knots?

Question 2. In NMMA's letter to NOAA, you explain the recreational
boating industry alone creates $230 billion in economic impact per
year. On the Eastern seaboard, recreational boating and fishing support
340,000 jobs and nearly $84 billion in economic activity. Do you
believe the proposed rule could put these jobs in danger?

______

Mr. Bentz. Thank you.
I now recognize Mr. Diamond for 5 minutes.

STATEMENT OF CLAYTON L. DIAMOND, EXECUTIVE DIRECTOR, AMERICAN
PILOTS' ASSOCIATION, WASHINGTON, DC

Mr. Diamond. Good morning, and thank you, Mr. Chairman,
Ranking Member Huffman, and Subcommittee members. We appreciate
this opportunity today.
APA has been the national association of the piloting
profession since 1884, and we represent pilots in the coastal
and Great Lakes states. Our members handle well over 90 percent
of all large vessels, ocean-going vessels, moving in U.S.
waters.
While APA strongly opposes the planned changes to the speed
rule, we will continue working to protect the right whales. In
fact, pilot boats have been offered to evaluate whale detection
technologies as we speak.
But I will be blunt: If NOAA's proposed changes are
adopted, it will endanger pilots and pilot boat crews. It will
raise the likelihood of a marine accident involving a large
commercial ship, and it will negatively impact the maritime
supply chain. And this isn't my opinion. This is the opinion of
working pilots. These women and men are the most skilled
mariners in the world, and they know best the challenges of
handling large commercial ships in narrow offshore channels.
NOAA's proposed changes include reducing the size of
vessels from 65 to 35 feet, radically changing the navigation
safety deviation clause and doubling the size of the speed
zones to blanket the entire East Coast. We respectfully ask you
to consider legislation to stop these changes.
I will summarize my opposition now, but my written
testimony goes into much more detail.
Lowering the applicability to 35 feet would capture all of
the offshore pilot boats, and would endanger pilots and the
boat crews. Pilot boats deliver and retrieve the pilots who
navigate these massive commercial ships. Even in the most
benign conditions, transferring pilots between pilot boats and
ships is dangerous: eight pilots in the United States have died
during the transfer process since 2006, and three international
pilots have died this year alone during the transfer process.
Pilot boats must approach large moving ships at speeds
sufficient to provide a stable platform for the transfer.
NOAA's proposal would make an already dangerous operation more
unsafe by forcing pilot boats and the ships to operate at
speeds below safe operating parameters.
And it is not an option to use pilot boats less than 35
feet. It would be unsafe to go 10 to 20 miles off shore in such
small boats, especially in the harsh winter months, when the
speed restrictions are in place.
And significantly, according to NOAA's own data, there has
never been a right whale strike by a pilot boat.
So, the speed regulation with the changes that are proposed
aren't necessary to protect the right whale, but they would
have the unintended consequences of endangering humans.
The application of the speed restrictions to pilot boats
will also delay merchant ships getting in and out of port. Many
East Coast pilot boarding areas are up to 20 miles offshore.
So, while awaiting a pilot in these areas, ships, for safety
reasons, are spaced miles apart. If pilot boats are restricted
to 10 knots while shuttling pilots, ships will be delayed, and
then the supply chain will suffer.
NOAA's proposal would also threaten safe navigation of
large vessels in narrow offshore channels. And I am going to
list the ports that would be impacted, just to illustrate what
an impact this would have on the supply chain. It would be
Boston, New York, New Jersey, Philadelphia, Baltimore, Norfolk,
Wilmington, Charleston, Savannah, Brunswick, Jacksonville, and
Canaveral. These entrance channels were designed by the Army
Corps of Engineers for conventional speeds, and they are simply
too narrow for slower speeds.
Pilots frequently must go faster than 10 knots to combat
the lateral forces of wind and current acting against the
ships, just to keep the ship in the channel. Similarly, speed
is also needed to maintain control of the ship while passing
other large ships. If ships depart the channel and go aground
or lose control and collide, an oil spill or a port closure is
the likely consequence.
These massive, mostly foreign ships are deemed such a high
risk to enter and depart U.S. ports, they are required by law
to take a local pilot to ensure they are safely navigated.
Pilots, in turn, are mandated by law to navigate at safe speeds
and maintain control of their vessels. And pilots do maintain
control of their vessels. NOAA data shows that there has never
been a right whale strike by a piloted ship in a Federal
navigation channel. NOAA's data.
Pilots must always be free to use their judgment to safely
maneuver these massive vessels. This is why in 2007, APA worked
with NOAA to include a navigation safety deviation clause in
the regs. NOAA's proposed changes to this clause are
unworkable, and even suggest criminal charges for good faith
safety decisions.
This is unfair and, as explained in my written testimony,
could impact port and supply chain efficiency.
I want to end by saying that we are committed to working
with NOAA and Congress to protect the maritime environment,
safeguard marine life, keep maritime commerce moving safely and
efficiently, all while keeping pilots and pilot boat crews
safe. Thank you very much.

[The prepared statement of Mr. Diamond follows:]
Prepared Statement of Commander Clayton L. Diamond, U.S. Coast Guard
(retired), Executive Director--General Counsel, American Pilots'
Association
Good morning Chairman Bentz, Ranking Member Huffman and all members
of this subcommittee. I am Clay Diamond, Executive Director-General
Counsel of the American Pilots' Association (APA). APA appreciates the
invitation to testify today before the House Committee on Natural
Resources, Subcommittee on Water, Wildlife, and Fisheries at an
oversight hearing titled, ``Examining the impacts of the National
Oceanic and Atmospheric Administration's proposed changes to the North
Atlantic Right Whale Vessel Strike Reduction Rule.
APA remains committed to working with National Oceanic and
Atmospheric Administration (NOAA) to protect the North Atlantic Right
Whale (NARW), but we strongly oppose and are deeply concerned with the
proposed National Marine Fisheries Service's (NMFS) amendments to the
existing NARW Vessel Strike Reduction Rule. We urge this subcommittee
to consider legislative action to ensure that NOAA does not promulgate
amendments to existing regulations that will endanger maritime pilots,
negatively impact the safe navigation of large-ocean going cargo
vessels in restricted federally improved offshore channels, and reduce
port efficiency along the East Coast.
APA has been the national association of the piloting profession
since 1884. Virtually all of the more than 1,200 State-licensed pilots
working in the coastal ports and approaches of the United States, as
well as all the U.S.-registered pilots operating in the Great Lakes
system under the regulation of the U.S. Coast Guard, belong to APA-
member pilot groups. APA pilots handle well over 90 percent of all
large ocean-going vessels moving in international trade in the
waterways of the United States.
APA and its members have been working closely with NOAA for over 20
years to protect the NARW. In fact, the very purpose of state
compulsory pilotage is protecting the waters and marine environment
while keeping maritime commerce moving safely and efficiently. This is
a duty that every pilot takes to heart. Pilots care immensely about the
waters and the marine environment as they work, live, raise their
families, and recreate on the waters they pilot. It was the APA and
pilots who worked with NOAA in 2007-2008 to include the navigation
safety deviation clause in the original speed regulations. This clause
allows vessel masters and captains to exceed 10 knots if ocean, weather
and other conditions dictate.
Likewise, all of my professional life I have been working to ensure
the safety of navigation and the protection of the marine environment,
including marine wildlife. For the past 15 years, I have worked to
uphold the principal duty of state-pilotage: to protect the waters and
marine environment in compulsory state-pilotage waters while
facilitating the safe and efficient movement of commerce on America's
waterways. Before I joined APA, I was a career U.S. Coast Guard
officer, spending 20 years in the Coast Guard working to protect the
safety of navigation and our marine environment. I have worked in
organizations dedicated to protecting navigation and the marine
environment my entire adult life.
While APA has spent decades working proactively with NOAA, we have
serious concerns over a recent Notice of Proposed Rulemaking (NPRM) \1\
from NOAA that would apply the agency's marine mammal speed
restrictions to pilot vessels and significantly alter the speed
restriction's navigation safety deviation clause.
---------------------------------------------------------------------------
\1\ This NPRM is available at: https://www.govinfo.gov/content/pkg/
FR-2022-08-01/pdf/2022-16211.pdf
---------------------------------------------------------------------------
As you may know, NOAA has used the authority granted under the
Marine Mammal Protection Act to promulgate regulations (see 50 CFR
Sec. 224.105) that impose seasonal speed restrictions along the East
Coast aimed at protecting the NARW from vessel strikes. These
regulations, which currently limit vessels 65 feet and larger to 10 kts
during half of the calendar year, have been in place for many years and
pilot groups on the East Coast have adapted operations and built pilot
vessels to comply with these regulations.
NOAA proposes amendments to existing regulations that would apply
the seasonal 10 knot speed restriction to all vessels greater than or
equal to 35 feet, (the rule currently applies to vessels greater than
65 feet), which would capture all offshore pilot boats on the East
Coast. The proposal would more than double the existing area in which
this speed restriction is applicable to nearly 40,000 square miles,
blanketing the entire U.S. East Coast with Seasonal Speed Zones (SSZ).
Finally, the proposed rule would make significant changes to the
existing navigation safety ``deviation clause,'' (the provision that
allows vessels to exceed the 10 knots speed restriction for navigation
safety). These are radical changes to existing regulations.
The APA strongly opposes the proposed amendments to the NARW speed
restriction regulations because the application of speed restrictions
to pilot boats and the significant expansion of SSZs would increase the
dangers faced by pilots and pilot boat crews, reduce navigation safety
in Federal Navigation Channels and pilot boarding areas, and negatively
impact port operations on the entire East Coast. APA also strongly
opposes the proposed changes to the administration of the navigation
safety ``deviation clause'' because the proposed changes run the risk
of substantially and negatively impacting the master-pilot relationship
that is so critical to navigation safety in pilotage waters.
We, along with numerous members of industry, including the ports,
shipping organizations, and maritime labor--all of the major components
of the U.S. maritime commerce supply chain--have submitted comments to
the rulemaking docket to try to persuade NOAA to rethink parts of its
proposal. We have specifically objected to those NOAA proposals that
would increase the dangers pilots already face, threaten the navigation
safety in the Federal Navigational Channels, and negatively impact
maritime commerce on the East Coast. We are hopeful that this committee
would consider legislative action to preclude NOAA from amending the
existing speed restrictions.

Foremost, the proposed regulations would be dangerous for pilots and
pilot boat crews.

Pilot transfer operations (when a pilot transfers from a pilot
vessel to larger ocean-going vessels) are inherently dangerous. The
proposed rulemaking would make these operations even more dangerous as
it would force both pilot boats and commercial vessels to operate
outside of the ideal safe operational parameters to conduct such pilot
transfers. There have been 8 pilot fatalities during pilot transfer
operations in the U.S. since 2006, and we are aware of 3 international
pilot fatalities during transfer operations in this calendar year
alone. Pilot transfer operations are unavoidably dangerous and there is
no reason to make them even more dangerous.
Pilot boats, many of which on the East Coast were purposefully
designed--in good faith reliance on NOAA's existing NARW speed
restriction regulations \2\--to be just shy of 65 feet in length, must
routinely operate in and among swirling winds and currents and near
dangerous shoals and other hazards to navigation in order to deliver
pilots to waiting or departing commercial vessels that are often great
distances from shore.\3\ These boats must approach moving vessels at
speeds carefully calculated to bring the boat alongside the ship at the
best possible angle and moment to facilitate what is, even in the most
benign of conditions, a dangerous personnel transfer operation. Once
alongside, the pilot boat operator is charged with providing a stable
platform so the pilot is able to reach over and transfer to a pilot
ladder, which is oftentimes hanging over the side of a large ocean
going vessel from 30 to 70 feet.
---------------------------------------------------------------------------
\2\ These pilot associations have--and continue to--carefully
invested tens of millions of dollars in pilot boats that cannot only
meet the necessary and detailed operational requirements, but also
comply with the size threshold provisions in the NMFS speed restriction
regulations. If NOAA follows through with these changes as proposed,
applying the speed restriction regulations to vessels smaller than 65
feet would not only potentially endanger pilots and pilot boat crews
and negatively impact efficiency, but it would also unfairly subject
these pilot associations to crippling financial penalties.
\3\ In many ports along the East Coast, operational requirements
dictate that pilot boats routinely venture more than 10 or even 20
nautical miles offshore. These distances continue to grow as dredging
projects extend the federally improved channels even further offshore
to accommodate ever larger commercial vessels.
---------------------------------------------------------------------------
For many pilot boats, which are designed with semi-displacement
hulls, it takes at least 17 knots to get the boat ``on plane'', and
then 14+ knots to keep the boat planed. When the pilot boat is not on
plane, the bow protrudes higher above the water line and blocks the
pilot boat operators' vision.
This creates a dangerous condition when the pilot boat operator is
steering the pilot boat alongside a much larger vessel so that the
pilot may transfer onto and climb up a ladder to board the vessel to be
piloted. During an already dangerous personnel transfer operation is
not a time to limit the pilot boat operator's vision. Additionally, the
pilot boat is not as maneuverable in the water when it is not on plane.
In many instances, it would not be safe to operate a pilot boat in this
type of environment at 10 knots or less and imposing an artificial--and
arbitrary \4\--speed restriction is imprudent.
---------------------------------------------------------------------------
\4\ Since the NARW speed restrictions became mandatory in 2008,
NMFS has never fully explained nor answered our questions as to why 10
kts is markedly better at reducing the risk of ship strikes of NARWs
than, for example, 12 kts, 15 kts, 18 kts or even faster.
---------------------------------------------------------------------------
It is not a viable option for pilot associations along the East
Coast to use pilot boats that are less than 35 feet in length. It would
be simply unsafe for pilots and pilot boat crews to venture 10-20 miles
offshore, especially in the harsh elements of the winter months when
the seasonal speed restrictions are in place, on vessels smaller than
35 feet.
Finally, according to NOAA's own data, there has never been a NARW
strike by a pilot boat. This is not by happenstance. Pilot boat
operators are licensed professional mariners and among the best small
boat handlers in the world. Including pilot boats in the NARW speed
restriction regulations is not necessary to protect this endangered
species, but, tragically, these proposed changes to the speed reduction
rule could result in less protection for pilots.
Despite concerted efforts by pilots, pilot groups, APA, the Coast
Guard and international organizations, pilot transfer operations are
still unavoidably dangerous. There is no reason to make the pilot
transfer process even more dangerous than it already is, especially
since it will not appreciably improve NMFS's efforts to protect NARWs.

Second, a speed restriction imposed on pilot vessels would negatively
impact marine and navigation safety by increasing pilot
fatigue.

Another safety concern involves the pilots' trip out to meet these
large ocean-going vessels. Pilot boats were designed so as not to
subject pilots to long, pounding pilot vessel transits that would
significantly add to pilots' and pilot boat operators' workload and
fatigue levels. Rather, pilot boats are meant to transfer pilots to and
from commercial ships quickly, efficiently, and safely. If pilots were
forced to transit at 10 knots or less, this would dramatically increase
the risk of fatigue. The dangers of mariner fatigue are a principal
factor that can negatively impact mariner well-being, marine
operations, and navigation safety. This is a fact that has been noted
by both the U.S. Coast Guard \5\ and the National Transportation Safety
Board.\6\
---------------------------------------------------------------------------
\5\ See U.S. Coast Guard Navigation and Vessel Inspection Circular
No. 02-08 (NVIC 02-08), Criteria for Evaluating the Effectiveness of
Crew Endurance Management System (CEMS) Implementation. ``A large
number of casualties have been specifically attributed to the human
factor of crew fatigue. Fatigue is also known to play a contributing
role in casualties where other types of human factors are present
(e.g., situational awareness, operator decision making).''
\6\ See National Transportation Safety Board Accident Report (NTSB/
MAR-11/04 PB2011-916404), recommending that States that oversee pilot
systems ensure that pilot organization ``implement fatigue mitigation
and prevention programs.''

Third, the proposal to apply the speed restriction in Federal
Navigation Channels and change the deviation clause is a danger
to the safe navigation of large ocean-going vessels and an
unworkable administrative burden during a critical time for
---------------------------------------------------------------------------
vessel safety.

The NMFS's proposal would more than double the existing area in
which this speed restriction is applicable to nearly 40,000 square
miles, blanketing the entire U.S. East Coast with Seasonal Speed Zones
(SSZ), including most of the Federal Navigation Channels (FNC) and
pilot boarding areas on the East Coast. The proposed SSZs would cover
approaches to the major ports of Boston, New York/New Jersey,
Philadelphia, Baltimore, Norfolk, Wilmington, Charleston, Savannah,
Brunswick, Jacksonville, and Canaveral. FNCs are coastal channels and
waterways that are maintained and surveyed by the U.S. Army Corps of
Engineers. These channels are necessary transportation systems that
serve all the East Coast ports, and are vital to the nation's economy,
supply chain, and national security interests. Pilot boarding areas are
locations at sea where pilots familiar with local waters board incoming
vessels to navigate their passage to a destination in port. These areas
are displayed on navigational charts produced by NOAA and are necessary
to support state compulsory pilotage.
The navigational challenges associated with bringing larger and
larger--mostly foreign--ocean-going vessels into and out of port
through narrow and restricted FNCs are immense. In fact, Coastal States
have determined that the risks associated with these massive ships
entering or departing port is so great that these ships must, as a
matter of law, be under the direction and control of state-licensed
compulsory pilots. Safely navigating these ever-growing ships demands
that pilots are free to maneuver these vessels in the best interest of
safe navigation without worrying about artificial constraints.
Unnecessarily limiting the speed of large commercial vessels entering
and departing our Nation's ports will have a devastating impact on the
safe navigation of these vessels. We are aware of no studies or
research directed by NOAA to assess these risks. However, the U.S.
Coast Guard has documented their concern for the deleterious effects of
reduced speed in dredged channels subject to ocean conditions, and the
Army Corps of Engineers' Research and Design Center has commissioned
one formal study and conducted several informal simulations quantifying
the risks identified above. It remains disappointing that NOAA has
proposed this rulemaking apparently without consideration for the
concerns and the research of their partner agencies with whom they
share domain over navigational safety.
The current NOAA speed reduction regulation includes a navigation
safety deviation clause which permits vessels to exceed 10 knots when
safety concerns require it. (see 50 C.F.R. Sec. 224.105(c)). The
proposed changes to the deviation clause are dangerous at worst, and at
best impracticable and unworkable.
a. FNCs are, by definition, Areas of Restricted Navigation

The offshore FNCs already greatly impact safe navigation for large
ocean-going vessels based on restricted drafts and two-way traffic. The
maneuverability of large, deep-draft ocean vessels is already
restricted by the depths and width in the restricted waters of FNCs, so
these vessels are limited in how far they might be able to turn or
alter course based on their deep drafts. The NARW vessel strike rules
compound the dangers of navigating these large vessels by limiting the
ability of pilots to use necessary speed to maintain safe navigation in
these waters.
These entrance channels are perpendicular to the high winds and
currents that are prevalent in the winter months. The perpendicular
winds and currents often demand an increase in speed simply to keep
these vessels on track and safely in the channel. It is in these off-
shore, unsheltered, and restricted channels--with the challenging
combination of strong currents, confused winds, heavy vessel traffic,
and close proximity to dangerous shoal waters--where state-licensed
pilots ply their trade. The Cruise Lines International Association has
clearly stated in their comments NMFS proposed amendments to the speed
restriction regulations that ``large deep-draft vessels operating
without tugs will always need to operate at a minimum speed in order to
navigate safely in a channel, fairway, or Traffic Separation Scheme,
based on the current weather conditions; and in most cases, this speed
will be greater than 10 knots.'' \7\
---------------------------------------------------------------------------
\7\ Letter from Jennifer Williams & Maureen Hayes, Cruise Lines
International Association (CLIA), Comments on NOAA's Report on Reducing
Vessel Strikes on North Atlantic Whales, to Dr. Caroline Good, NOAA
(Mar. 9, 2021).
---------------------------------------------------------------------------
As we have noted in numerous written comments to NMFS regarding the
navigation safety deviation clause found at 50 CFR Sec. 224.105(c),
FNCs are by definition areas where a vessel's maneuverability is
restricted ``based on the oceanographic and hydrographic and/or
meteorological conditions.'' Due to the rapid growth in length, width,
sail area, and draft of vessels calling at U.S. ports, our concerns
about the ability of pilots to safely navigate these vessels in narrow
and challenging FNC waters has only increased since mandatory NARW
speed restrictions began in 2008. In short, given the exponential
growth of the ships calling at U.S. ports, the routine use of the
navigation safety deviation clause is, out of necessity, becoming
increasingly prevalent.
b. Limits Maneuverability

The proposed changes to dramatically expand the areas SSZs along
the East Coast and apply NARW speed restrictions to large vessels
operating in virtually all of the FNCs along the East Coast is
dangerous because it may result in hesitation by the pilot to deviate
from the speed restrictions at the time when such deviations in speed
are most necessary. For example, a pilot may find it necessary--to
alter the vessel's ``crab angle'' to combat the lateral forces of the
winds and currents to keep the vessel safely in the FNC--to quickly
``ring up'' sea speed or faster. ``Crabbing'' requires the pilot to
increase the vessel's speed on a moment's notice and to steer the
vessel into the lateral forces, such as the wind and currents, which
are working to effectively push the vessel off its intended course.
Often the winds and currents are perpendicular to the entrance channels
in the winter months when the NARW speed restrictions are in place. A
significant amount of water flow over the rudder is required to
maintain these crabbing angles and, in many instances, given the size
of the vessels, the only method of ensuring adequate water flow is to
speed up.
Further, many of the large ocean-going vessels transiting FNCs
require more than 10 knots of speed to maintain sufficient steerageway.
If a pilot is forced to reduce speed, there is a need for greater
rudder angle to keep the vessel on its intended course. This greater
rudder angle further reduces the vessel's maneuverability which reduces
the pilot ability to respond to changes in navigation conditions or
other hazards, such as other vessel traffic.
Compounding the calculus of determining safe speed is that speed
increases take longer for larger ships, so the notion of increasing
speed on demand is impractical. Pilots must anticipate the conditions
they are likely to encounter, and be prepared in advance. All of this
adds up to an inherently degraded margin of safety for the safe control
of ships confined to dredged channels when subject to speed
restrictions.
Limiting a pilot's flexibility and ship handling options when these
professionals are trying to focus on navigating a large commercial
vessel in these challenging waterways would certainly jeopardize
navigational safety. This is not prudent when these vessels are already
operating in areas of restricted maneuverability.
Further, according to NOAA's own data, there have been no confirmed
vessel strikes of NARWs in FNCs or Pilot Boarding Areas.

c. Changes to the deviation clause are also unworkable administrative
burdens and threatens criminal liability for masters and pilots
during a critical time for vessel safety.

NOAA's proposed changes to the navigation safety deviation clause
are extremely troublesome, place an enormous administrative burden on a
ship's master and pilot, and have the potential to negatively impact
both the master-pilot relationship and port efficiency in challenging
offshore FNCs that already restrict the maneuverability of these large
vessels.

In these waters pilots must be free to build cooperative and
mutually supportive relationships with vessel masters, exercise their
informed independent judgment, apply their superior local knowledge,
maintain operational flexibility, and have the full range of ship
handling options in order to maximize navigational safety and protect
the marine environment. The proposed changes to the navigation safety
deviation provision threaten pilots' ability to carry out their
responsibilities.

While NOAA characterizes its proposed changes as merely an ``update
the speed rule's safety deviation provision,'' there is much more to
the proposal.

For example, under NMFS' proposal when the deviation clause is
invoked, the vessel operator must complete and electronically submit a
``Safety Deviation Report'' to NMFS within 48 hours of using the
deviation. The Safety Deviation Report must detail ``the circumstances
surrounding the deviation'' and the ``need for the deviation.'' The
detailed reporting requirements are significant, lengthy, detailed, and
extremely cumbersome. As explained below, there are compelling reasons
why this additional administrative recordkeeping and reporting
requirement is unworkable and possibly even dangerous.

First, as a practical matter, the proposed recordkeeping and
reporting requirements will require considerable time to gather the
information (if it, in fact, is even available in some offshore
waters), compile it, fill out the form, and transmit it to NOAA.
Further, if the vessel is under pilotage, ``the pilot must attest to
the accuracy of the information contained in the report.'' Even though
NOAA proposes to allow 48 hours for the Safety Deviation Report to be
submitted, the only practical way to comply with the rule would be for
the master to complete the Report in near real time and the pilot to
remain on the ship to review and ``attest'' to the information on the
form. It is unrealistic to expect that the pilot could depart the ship
to service other ships, the ship would transit off for Europe, Africa,
or South America and then the pilot and master would correspond
electronically over the next two days to complete and submit the form.

These proposed burdensome reporting requirements would also be
distracting at the worst possible time. Under 50 CFR Sec. 224.105(c),
the deviation clause can be invoked when ``oceanographic, hydrographic
and/or meteorological conditions severely restrict the maneuverability
of the vessel.'' When such conditions exist, which is routinely the
case in the offshore channels along the East Coast during the winter
months, the vessel's pilot and ship's master need to be focused on the
navigation of the vessel and not distracted by the significant
administrative burden associated with the proposed reporting scheme.

These proposed reporting requirements are not only disruptive and
distracting but given how NOAA characterizes the reporting requirements
in the criminal context, the requirements will have a dire impact on
the dynamics of the critical Master-Pilot Relationship.

Each pilotage assignment should begin with a conference between the
pilot and the master, often referred to as the Master-Pilot Exchange or
MPX. The MPX is an opportunity not only to exchange information that
the pilot and master each need, but also for the pilot and the master
to establish an appropriate working relationship that will continue
throughout the pilotage assignment. A mutually supportive and trusting
relationship between the pilot and the ship's master/bridge crew is a
critical component of navigation safety in pilotage waters. If this
relationship is damaged or compromised, there will be negative
consequences.

NOAA's proposed language for the amended deviation clause
regulation overtly criminalizes decisions that must be made by vessel
masters and pilots, and potentially recommendations made by pilots to
vessel masters. Specifically, the proposed new regulatory language
provides, ``it is unlawful for any person subject to the jurisdiction
of the U.S. to commit, to attempt to commit, to solicit another to
commit, or to cause to be committed any speed violation with a vessel
subject to the restrictions.'' This proposed provision would cause
masters and pilots, at a critical point when they are considering
whether to increase speed for the safety of the ship--and its crew,
passengers, and cargo--to be worrying about whether or not their
decision could subject them to criminal penalties, including
imprisonment. Because the proposed regulation envisions the master and
pilot agreeing upon the need to deviate from the speed limitation and
concurring on all the details to be submitted in the Safety Deviation
Report, a lack of understanding, hesitation, or unwillingness on the
part of masters to invoke the deviation clause can create tension
between the master and pilot and can negatively impact what should be a
mutually supportive and cooperative relationship.

Fourth, a speed restriction imposed on pilot vessels would negatively
impact merchant vessel and port efficiency up and down the East
Coast.

The application of NARW speed restrictions to pilot boats will
result in delays for merchant vessels waiting to get into and out of
port. Frequently, a pilot boat will depart port with more than one
pilot on board, transit to the pilot boarding area, deliver one pilot
to an awaiting vessel, and then quickly move to deliver pilots to other
vessels. In other scenarios, a pilot boat may retrieve a pilot from a
vessel that has finished its transit out of port and through the
offshore pilotage waters and deliver that pilot to another vessel that
is awaiting a pilot for its inbound transit. These large ocean-going
vessels are well-spaced for safety reasons and may be several miles or
more apart. Pilot boat operations are regularly done at speeds
considerably higher than 10 knots, at times in excess of 30 knots. If a
pilot boat's transit to the pilot boarding areas is restricted to 10
knots or less (again, several East Coast pilot boarding areas are 10,
15 or even 20 or more miles offshore) and then this shuttling of pilots
to awaiting vessels is also restricted to 10 knots, it is easy to see
how ships will be delayed and port efficiency and the flow of maritime
commerce will suffer--and suffer greatly.

Disruption of the flow of commercial shipping traffic into and out
of ports on the East Coast also raises national security concerns since
this rule will impact numerous ports that are vital to our nation's
security. In fact, the Department of Transportation has identified six
ports on the East Coast, (that would also be negatively impacted by the
proposed amendments to the NARW vessel strike rule), as being part of
the National Port Readiness Network (NPRN).\8\ The NPRN is a
``cooperative designed to ensure readiness of commercial ports to
support force deployment during contingencies and other national
defense emergencies.'' \9\ As discussed above, applying this speed
restriction rule to pilot boats will substantially impact port
efficiency, vessel traffic, and the supply chain--all factors that will
negatively impact these ports readiness to support force deployments.
---------------------------------------------------------------------------
\8\ Department of Transportation, National Port Readiness Network
(NPRN), https://www.maritime.dot.gov/ports/strong-ports/national-port-
readiness-network-nprn listing Charleston, SC, Hampton Roads, VA,
Jacksonville, FL, Morehead City, NC, Savannah GA, and Wilmington, NC as
commercial strategic seaports on the East Coast.
\9\ Id.
---------------------------------------------------------------------------
Use technology to better protect the North Atlantic Right Whale

APA has recommended alternative ideas to NOAA that, in our view
would both maintain navigational safety and still protect the NARW.
Specifically, APA recommends that NMFS establish a grant program to
assist in the outfitting of pilot boats with visual and acoustic
equipment designed to detect the presence of NARW and other endangered
marine mammals. While such technology may not be readily available at
present, such a grant program, and government incentives to produce and
use these types of technology, can be a force that will drive research
and development and lead to the development of these types of valuable
technological tools.
APA also believes that NMFS should consider utilizing monitoring
buoys to better track and locate NARWs. For instance, since these
whales migrate north and south on a seasonal basis, NMFS should explore
deploying monitoring buoys (similar to sonobuoys used by naval forces
in anti-submarine warfare efforts), set out in an east-to-west array at
various locations along the East Coast. These sonobuoy ``gates'' could
provide valuable monitoring, tracking and migratory information to
NMFS.
We also recommended that NMFS work with APA to develop an App that
pilots and pilot boat crews could use to provide real-time sighting
information on NARWs. As we have said in the past, pilots and pilot
boats are on the water 24/7/365 and can be critical ``eyes and ears''
to assist NMFS in their important work of protecting endangered marine
mammals, including the NARW. Such a reporting App would significantly
improve NMFS' sighting data on NARWs, including location and timing.
Further, the more reliable and up to date NARW location information
gained by sonobuoys or reporting Apps would allow NMFS to more readily
and effectively establish effective DSZs.
Conclusion
Compulsory pilotage is, at its core, all about navigation safety
and protecting the maritime environment and marine life. As
professionals who make their living on or near the water and who, along
with their families, live and recreate along the shores, pilots have a
deep concern for the health of the marine environment and marine life.
I want to assure the Subcommittee that members of the American Pilots'
Association are committed to working with the federal government--
including with NOAA and Congress--to protect the North Atlantic Right
Whale, but we must do so in a way that protects the safety of pilots
and pilot boat operators and crews, ensures the safety of navigation,
and, considers the detrimental impact to slowing maritime commerce on
the entire Eastern Seaboard for half of the year.

______

Questions Submitted for the Record to Clay Diamond, Deputy Director and
Chief Counsel, American Pilots Association

Mr. Diamond did not submit responses to the Committee by the
appropriate deadline for inclusion in the printed record.

Questions Submitted by Representative Nancy Mace
Question 1. Could the imposition of these speed restrictions make
it more difficult for harbor pilots to safely do their jobs?

Question 2. The Coast Guard and professional mariners raised
concerns for safe navigation at slow speeds in dredged channels, and
the Army Corps of Engineers has validated those concerns. Despite the
success of NOAA's safe speed deviation in eliminating fatal right whale
strikes and ensuring safe navigation, NOAA is still restricting speeds
to ten knots, which is far too slow for ships to maintain control
within safe margins in the Charleston channel. Does the proposed
rulemaking increase the probability of vessel collisions?

Question 3. You've described the pilot transfer process and how
dangerous it can be. What can be done to make the transfer process
safer, if anything?

______

Mr. Bentz. Thank you, Mr. Diamond.
I now recognize Dr. Redfern for 5 minutes.

STATEMENT OF JESSICA REDFERN, ASSOCIATE VICE PRESIDENT OF OCEAN
CONSERVATION SCIENCE, ANDERSON CABOT CENTER FOR OCEAN LIFE AT
NEW ENGLAND AQUARIUM, BOSTON, MASSACHUSETTS

Dr. Redfern. Thank you, Chairman Bentz and Ranking Member
Huffman, for the opportunity to testify today. I am the
Associate Vice President for Ocean Conservation Science in the
Anderson Cabot Center for Ocean Life at the New England
Aquarium.
The New England Aquarium is a catalyst for global change
through innovative scientific research, animal conservation,
education, public engagement, and advocacy for a vital and
vibrant ocean.
I have used statistical models to address wildlife
conservation challenges for more than 20 years, and I have
published scientific papers on a broad range of topics,
including species habitat modeling, vessel traffic patterns,
the risk of vessels striking whales, the risk of fishing gear
entangling whales, and the risk of vessel noise to whales.
On behalf of the New England Aquarium, my testimony is
based on the best available science, and is consistent with the
laws that protect right whales.
The right whale is one of the most endangered large whale
species in the world, and is protected by U.S. laws.
Specifically, the take of a right whale is prohibited under
both the Endangered Species Act and the Marine Mammal
Protection Act. As of 2021, there are less than 350 right
whales and less than 75 reproductive females. The species
recovery has been limited by lethal and sub-lethal effects of
human activities, including vessel strikes. The annual observed
human-caused mortality and serious injury to right whales from
vessel strikes averaged two per year from 2015 through 2019.
This average is higher than the potential biological removal
for right whales, which is less than one.
The Marine Mammal Protection Act defines the potential
biological removal as the maximum number of animals, not
including natural mortalities, that may be removed while
allowing a population to reach or maintain its optimum
sustainable size. Although measures have been implemented to
reduce vessel strikes, mortality and serious injury to right
whales continues. This mortality and serious injury is
inconsistent with the law and the best available science. Even
one human-caused mortality puts the species at risk of
extinction.
Right whale life history data show that the loss of each of
these whales, particularly females, is compounded by the loss
of their reproductive potential. For example, 1 female has
given birth to 7 calves since 1982, and is responsible for at
least 29 whales being added to the population so far. This
whale's contribution to the population emphasizes the effect
that a single reproductive female can have on this small
population.
The 2008 Vessel Strike Rule was an important step toward
risk reduction. However, vessel strikes have continued since
the rule was implemented, and multiple evaluations of the rule
published in the scientific literature have shown that further
action is needed. The proposed changes to the rule are based on
the best available science, and are an essential means of
taking the action required.
The scientific methodology used to develop the proposed
changes is a standard for assessing vessel strike risk, has
been used on the U.S. East and West Coasts, and has been
incorporated in NOAA's marine mammal stock assessment reports
for fin, humpback, and blue whales on the U.S. West Coast.
The changes are necessary for reducing the risk of vessel
strikes. Expanding the seasonal speed zones in space and time
is necessary to ensure that these zones are better aligned with
right whale habitat, cover areas where previous vessel strike
mortalities have been observed, and buffer against climate-
driven changes in right whale habitat.
Expanding the vessels subject to the speed restriction to
most vessels less than 65 feet and greater than 35 feet is
necessary because at least 4 of the 13 documented lethal vessel
strikes in U.S. waters since 2008 involved vessels smaller than
65 feet; 2 of these 4 strikes occurred after 2020.
Implementing mandatory dynamic speed zones is necessary
because the ocean is a dynamic environment, and because over a
decade of research on the U.S. East and West Coasts show low
cooperation with voluntary speed restrictions.
We support NOAA's approach to determining whether, where,
and for how long vessels should be subject to speed
restrictions. This approach recognizes responsible use of the
ocean by establishing the smallest spatial and temporal
footprint needed to protect the species and incorporating the
best available science. Implementation of the proposed changes
to the 2008 Vessel Strike Rule as immediately as possible is an
important step toward preventing the extinction of the
endangered right whale. Thank you.

[The prepared statement of Dr. Redfern follows:]
Prepared Statement of Dr. Jessica Redfern, Associate Vice President,
Ocean Conservation Science, Anderson Cabot Center for Ocean Life,
New England Aquarium
Thank you Chairman Westerman, Committee Ranking Member Grijalva,
Subcommittee Chairman Bentz, and Subcommittee Ranking Member Huffman
for inviting me to testify at this hearing titled ``Examining the
impacts of the National Oceanic and Atmospheric Administration's
proposed changes to the North Atlantic Right Whale Vessel Strike
Reduction Rule.'' I am the Associate Vice President for Ocean
Conservation Science in the Anderson Cabot Center for Ocean Life at the
New England Aquarium. The New England Aquarium is a catalyst for global
change through innovative scientific research, commitment to marine
animal conservation, education, public engagement, and effective
advocacy for vital and vibrant oceans. Our mission is to conduct
research on topics related to ocean conservation and to develop
science-based solutions to marine conservation problems.
I have been using statistical models to address wildlife
conservation challenges for more than 20 years. I studied mathematics
as an undergraduate at Colorado College. I learned how to use my
mathematics training to address wildlife conservation challenges during
my Ph.D. research at the University of California, Berkeley. After
graduating with my Ph.D., I was a National Research Council
Postdoctoral Research Associate at the National Oceanic and Atmospheric
Administration's (NOAA) Southwest Fisheries Science Center. I then
worked as a permanent federal employee at the Southwest Fisheries
Science Center for over a decade before joining the New England
Aquarium in 2019. My research focuses primarily on developing cetacean-
habitat models and using predictions from these models to assess risk
to cetaceans. I have published numerous scientific papers on a broad
range of topics, including species habitat modeling, vessel traffic
patterns, the risk of vessels striking whales, the risk of fishing gear
entangling whales, the risk of chronic vessel noise to baleen whales,
and estimating species diversity to guide designation of marine
protected areas. I am currently an associate editor for Frontiers in
Marine Science, I served as a guest editor for a research topic in
Frontiers in Marine Science about the impacts of shipping on marine
fauna, and I serve as an invited member of numerous committees,
including the International Council for the Exploration of the Sea's
(ICES) Working Group on Shipping Impacts in the Marine Environment,
NOAA's Rice's Whale Recovery Planning Workshop, NOAA's humpback whale
critical habitat team, NOAA's second Protected Species Assessment
Workshop, and the International Whaling Commission (IWC) Scientific
Committee.
The Aquarium has been extensively studying North Atlantic Right
Whales (NARW; Eubalaena glacialis) for more than 40 years. Our
scientists focus on solutions-based work and our research provides the
information needed to evaluate measures that can be combined to protect
this endangered species. For example, we conduct spatial analyses to
assess risk from vessel strikes, facilitate communication across the
maritime industry to reduce vessel strikes, collaborate with fishermen
on new techniques to reduce entanglements in fishing gear, collect the
data and conduct analyses needed to understand and mitigate the
potential impacts of offshore wind energy development, and work with
lawmakers locally, nationally, and internationally to develop science-
based protections for the whales. Action is needed across sectors using
multiple management measures and tools to prevent the extinction of the
statutorily protected NARW.
The Aquarium commends NOAA on recent regulatory steps taken to
protect NARW, including the proposed changes to the North Atlantic
Right Whale Vessel Strike Reduction Rule (hereafter, Proposed Rule).
Our testimony focuses on the Proposed Rule because we believe that the
changes in the Proposed Rule are an important component of preventing
the extinction of the endangered NARW and that these changes are needed
as immediately as possible. While near real-time monitoring is one of
the tools that can be used to reduce vessel strikes, more work is
required to determine whether it can be used to replace, rather than
supplement, vessel speed restrictions. For example, Gende et al. (2019)
found that opportunities to detect whales are often limited and
temporary. Their study also suggests that the time delays that occur in
active whale avoidance must be carefully considered, including the time
needed to evaluate competing risks, determine the appropriate action to
take, and achieve the new operational state after an action is taken.
Finally, near real-time monitoring systems must be rigorously evaluated
to quantify the vessel strike risk reduction that they can achieve,
particularly in comparison to the risk reduction achieved through other
methods, such as speed restrictions and vessel routing changes. The
best way of combining multiple methods, such as speed restrictions and
real-time monitoring, also needs to be evaluated. However, we cannot
afford to wait for further progress on the development of near real-
time monitoring to take action to reduce vessel strikes of NARW.

Reducing the likelihood of deaths and serious injuries to NARW from
vessel strikes requires immediate, decisive, and bold action. If
implemented as immediately as possible, the changes in the Proposed
Rule are an essential means of taking the action required. Below, the
Aquarium provides testimony on three key points about NARW and NOAA's
Proposed Rule:

1. Action is needed now to prevent the extinction of NARW

2. Action is required to reduce the risk of vessels striking NARW

3. NOAA's Proposed Rule is an essential means of taking the action
required

Action is needed now to prevent the extinction of NARW

One of the most endangered large whale species in the world, the
NARW is protected by statutory law in the United States (U.S.).
Specifically, the ``take'' of the NARW is generally prohibited under
both the Endangered Species Act (ESA) and the Marine Mammal Protection
Act (MMPA) (16 U.S.C. 1532(19); 16 U.S.C. 1362(13)). Although protected
from hunting since 1935, the species recovery has been limited by
lethal and sub-lethal effects of human activities (Corkeron et al.,
2018; Sharp et al., 2019), including vessel strikes, which are the
subject of the Proposed Rule. The annual observed human-caused
mortality and serious injury to NARW from vessel strikes averaged 2 per
year from 2015 through 2019, which is higher than the Potential
Biological Removal (PBR) of 0.7 for NARW (Hayes et al., 2022). The
Marine Mammal Protection Act defines PBR as the maximum number of
animals, 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. Although measures have been implemented
to reduce vessel strikes, mortality and serious injury to NARW from
vessel strikes continues. The mortality and serious injury to the
statutorily protected NARW from vessel strikes is inconsistent with the
law and the best available science. Even one human-caused mortality
puts the species at risk of extinction.
The New England Aquarium collates information on NARW mortalities
and injuries from vessel strikes as curators of the North Atlantic
Right Whale Consortium's photo-identification catalog. We provide this
information in annual reports to NOAA (https://www.narwc.org/narw-
catalog-reports.html) and in the annual report card of the Right Whale
Consortium (https://darchive.mblwhoilibrary.org/browse/
title?scope=3afd3800-5620-59b9-8b77-fc901b0c0 fec). From 1972 through
May 2023, a total of 122 cases with blunt trauma or external injuries
(i.e., propeller cuts or gashes) from vessel strikes have been
documented in U.S. and Canadian waters (Moore et al., 2004; Sharp et
al., 2019; NOAA, 2020; NARWC, 2023; NOAA, 2023b). The evidence for
these strikes include observed deaths (determined by the presence of
deep propeller cuts that occurred pre-mortem and/or examining a carcass
and finding evidence of blunt trauma) and sightings of living whales
with cuts or gashes that are categorized as deep, shallow, or
superficial. Pirotta et al. (2023) found that vessel strikes associated
with deep and shallow wounds decreased a NARW's chance of survival.
The life history of every individual NARW that has been
photographed is tracked in the North Atlantic Right Whale Catalog
(rwcatalog.neaq.org). These life history data demonstrate the
consequences of vessel strikes on the NARW population and show how the
loss of each of these whales, particularly females, is compounded by
the loss of their reproductive potential. Female NARW can give birth to
at least 9 calves in their lifetime (Hamilton and Knowlton, 2021). For
example, one whale, Wart, has given birth to seven calves since 1982
and is responsible for at least 29 whales being added to the population
so far (Bishop et al., 2022). Wart's contribution to the NARW
population emphasizes the effect that a single reproductive female can
have on this small population and needs to be considered in the context
of vessel strikes. For example, one strike resulted in the death of
both a female and her dependent calf who could not survive
independently. Another reproductive female, Infinity, was seriously
injured in 2021 when she was struck by a 54-foot vessel; she has not
been sighted again as of submission of this testimony. This vessel also
struck and killed her calf. In 2020, two strikes were also documented
for calves born that year: 1) a calf that was struck on two separate
occasions between April and June in the Mid-Atlantic and died from the
second strike; 2) a calf off the southeastern U.S. that suffered deep
wounds on its head from a propeller and was unable to successfully
nurse (Sharp et al., 2019; NOAA, 2020; 2023b).
NOAA also declared an Unusual Mortality Event for NARW because a
particularly high number of deaths have been observed from Florida,
U.S., to the Gulf of St. Lawrence, Canada, since 2017 (NOAA, 2023b).
This Unusual Mortality Event remains active as of June 2023. In
particular, there have been 36 deaths, 33 serious injuries (defined as
likely to die), and 29 morbidity (sub-lethal injury or illness) cases
documented and 92% of these cases (i.e., 90 cases) were caused by human
activities.
Documented vessel strikes represent minimum numbers of strikes
because not every death or injury is observed. Pace et al. (2021)
showed that documented mortalities accounted for only 36% of all
estimated NARW deaths between 1990 and 2017. Additionally, the lethal
and sub-lethal effects of vessel strikes may be delayed. For example,
one NARW suffered deep propeller wounds from a vessel strike when she
was less than a year old. She survived the strike. However, when she
became pregnant with her first calf at age 14, the growth of the fetus
caused her wounds to reopen and she (and her unborn calf) died from a
resulting infection (Glass et al., 2010).
The estimate for the number of NARW (i.e., the population size
estimate) grew from 264 (+6/-4) in 1990 to a high of 481 individuals
(+/-3) in 2011. As a result of the impacts to the population, the
number of NARW steadily declined from the high in 2011 to 340
individuals (+/-7) in 2021 (Pace et al., 2017; Pettis et al., 2023).
This population decline has been occurring for a decade and the current
population size estimate is one of the lowest in the past 20 years
(Pace et al., 2017; Pettis et al., 2023). Additionally, the pool of
reproductive NARW females has declined to only 72 individuals (Reed et
al., 2022). This decline has been caused by a collapse in the fecundity
of breeding females and a delay in when females start breeding (Reed et
al., 2022), both of which have been linked to increasing levels of
human impacts and changes in prey distribution. The survival of every
individual NARW matters, as evidenced by the fact that the MMPA PBR is
less than one (Hayes et al., 2022). Without immediate and concerted
action to address the human-caused lethal and sub-lethal effects of
vessel strikes on NARW, this endangered species faces a high risk of
extinction.

Action is required to reduce the risk of vessels striking NARW

Reducing the risk of vessel strikes

Vessel strikes of large whales remain a conservation challenge
throughout the world. For example, the International Maritime
Organization (IMO) adopted nine proposals between 1997 and 2009 to
reduce the risk of vessels striking large whales. The proposals focused
on four whale species in three regions: NARW in U.S. and Canadian
waters and fin (Balaenoptera physalus), sperm (Physeter macrocephalus),
and long-finned pilot whales (Globicephala melas) in the Mediterranean
Sea (Silber et al., 2012b). Measures used to reduce vessel-strike risk
typically involve changing vessel routes and slowing vessels down. The
goal of measures that change vessel routes, such as shifting the
location or configuration of traffic separation schemes (i.e., shipping
lanes) or establishing areas to be avoided, is to reduce the co-
occurrence of whales and vessels. The goal of measures that slow
vessels down is to reduce the risk of lethal vessel strikes because
studies have found that the probability of a lethal strike increases
with vessel speed (Vanderlaan and Taggart, 2007; Conn and Silber,
2013). Additionally, slower speeds may allow whales and vessel
operators more time to engage in avoidance behavior (e.g., Vanderlaan
and Taggart, 2007; Gende et al., 2019).
NOAA's 2008 Right Whale Vessel Strike Reduction Rule

In the late 1990s and early 2000s, NOAA recognized that steps were
needed to address the risk of vessel strike to NARW and in 2008 they
established several measures to reduce risk in a final rule to
implement speed restrictions to reduce the threat of vessel collisions
with NARW (hereafter, 2008 Rule; NOAA, 2008). The 2008 Rule was an
important step toward risk reduction. However, multiple evaluations of
the effectiveness of this rule have shown that further action is
needed, and as immediately as possible, to build on that progress.
The 2008 Rule established 10 Seasonal Management Areas (active in
defined areas for specific time periods) and Dynamic Management Areas
(active in areas where whales are observed). Seasonal Management Areas
were established where the risk of a vessel striking a NARW is expected
to be higher due to whale or vessel traffic density. These areas differ
in size (e.g., from approximately 1,500 to 23,000 km2), are
active during different times of year, and are implemented for
different lengths of time (e.g., 2-5 months). When active, all vessels
>65 feet (except vessels owned, operated by, or operated under contract
to the U.S. government and law enforcement vessels engaged in
enforcement or search and rescue) are required to travel at 10 knots or
less in these areas. Smaller vessels are requested, but not required,
to travel at 10 knots or less.
Analyses of the proximity of NARW vessel strikes to Seasonal
Management Areas (Laist et al., 2014) and analyses comparing the number
of NARW struck before and after management measures were implemented
(NOAA, 2020) suggest that the Seasonal Management Areas have helped to
reduce vessel strikes of NARW. However, multiple studies and continued
vessel strikes of NARW since 2008 demonstrate that these areas fall
short of achieving the risk reduction necessary to prevent extinction
of NARW. In particular, multiple studies have shown that these Seasonal
Management Areas are insufficient both in space and time (Schick et
al., 2009; Laist et al., 2014; van der Hoop et al., 2015). The size of
the Seasonal Management Areas was likely insufficient when the 2008
Rule was implemented because nearly one-third of detected NARW vessel
strike mortalities occurred outside of the managed space but within
managed timeframes (van der Hoop et al., 2015). Additionally, analyses
of passive acoustic monitoring data collected from 2004-2014 found
almost year-round habitat use of the U.S. East Coast (Davis et al.,
2017).
To provide protections to NARW outside of the Seasonal Management
Areas, the 2008 Rule established Dynamic Management Areas in real-time
when three or more NARW are seen within close proximity. These areas
remain in effect for 15 days. All mariners are encouraged to avoid
these areas or reduce vessel speeds to 10 knots or less when transiting
through these areas. However, these measures are voluntary and there is
little cooperation with these requests to slow down (Silber et al.,
2012a; NOAA, 2020). These Dynamic Management Areas have not achieved
their intended goal of addressing the spatial and temporal shortcomings
of the Seasonal Management Areas. Specifically, vessel strike
mortalities of NARW have increased outside inactive Seasonal Management
Areas (van der Hoop et al., 2015). Limited cooperation with these
voluntary Dynamic Management Areas likely contributed to their lack of
effectiveness (van der Hoop et al., 2015; NOAA, 2020).
Further evidence that the 2008 Rule does not provide the necessary
reduction in vessel strike risk is provided by the vessel strikes of
NARW that have occurred since the 2008 Rule was implemented.
Specifically, from 2008 through May 2023, there were 13 documented
lethal (mortalities and serious injuries) vessel strikes of NARW in the
U.S. (NOAA, 2020; 2023b). Five of the 13 have occurred since 2020; at
least two of these five strikes involved vessels smaller than 65 feet,
which are not currently subject to the mandatory speed restrictions
(NOAA, 2020; 2023b). The vessel strikes that have been observed since
the 2008 Rule was implemented suggest that further action is required
to ensure that this source of human caused mortality and serious injury
does not exceed the level established as sustainable in U.S. laws.

NOAA's Proposed Rule is an essential means of taking the action
required

Proposed Rule

In 2022, NOAA proposed changes to the 2008 Rule (hereafter,
Proposed Rule; NOAA, 2022) to further reduce the likelihood of
mortalities and serious injuries to NARW from vessel collisions. The
proposed changes for reducing the risk of vessel strikes to the
statutorily protected NARW are necessary and based on the best
available science. Specifically, Garrison et al. (2022) used the most
up-to-date data available about NARW distributions and vessel traffic
patterns to develop an encounter risk model for the U.S. East Coast.
The methodology used by Garrison et al. (2022) has become a standard
for assessing vessel-strike risk for large whales and has been used on
the U.S. East and West Coasts (e.g., Martin et al., 2016; Rockwood et
al., 2017; Crum et al., 2019; Rockwood et al., 2020). Mortality
estimates from encounter risk models developed for fin, humpback, and
blue whales have been included in NOAA's marine mammal stock assessment
reports (Carretta et al., 2022). Garrison et al. (2022) used the
encounter risk model to estimate the reduction in NARW mortalities that
could be achieved by implementing speed restrictions in broad areas
along the U.S. East Coast. Their broad areas were defined as the areas
of highest risk to NARW. They found an approximately 28% reduction in
NARW vessel strike risk when 10 knot speed restrictions were
implemented in their broad areas.

Below we address three of the four specific changes in the Proposed
Rule based on the Aquarium's long-standing expertise and study of the
species:

1. Expanding the spatial and temporal extent of Seasonal Speed Zones

2. Expanding the vessels subject to the speed restrictions to most
vessels greater than or equal to 35 feet (10.7 m) and less
than 65 feet (19.8 m)

3. Implementing mandatory speed restrictions in Dynamic Speed Zones,
which are established when whales are detected outside of
Seasonal Speed Zones

The fourth proposed change updates the safety deviation provisions
in the 2008 Rule. We do not have expertise in this area; consequently,
we do not address this change.
Expanding the Seasonal Speed Zones

The Aquarium reviewed the proposed Seasonal Speed Zones (SSZ) and
associated best available science, which supports the expansion of the
size of the SSZ and the length of time the SSZ are active. We support
NOAA's approach to determining whether, where, and for how long speed
restrictions should be in place, which recognizes responsible use of
the ocean by establishing the smallest spatial and temporal footprint
needed to protect the species. Vessel speed restrictions have been used
to mitigate vessel-strike risk because studies (Vanderlaan and Taggart,
2007; Conn and Silber, 2013) have shown that the probability of a
lethal vessel strike increases at higher vessel speeds. The SSZ, which
are larger and active longer than the Seasonal Management Areas
established in the 2008 Rule, address the shortcomings identified in
the 2008 Rule's Seasonal Management Areas. In particular, the spatial
and temporal expansion of the SSZ ensure that they are better aligned
with NARW habitat, cover areas where previous vessel strike mortalities
have been detected, and buffer against climate-driven changes in NARW
habitat.
U.S. East Coast waters represent year-round NARW habitat (Davis et
al., 2017) and contain historic NARW feeding grounds, where water
temperatures have warmed faster than most of the world's oceans
(Pershing et al., 2015). As a result, NARW distributions have shifted
to new areas and there have been changes in the time periods over which
they use different areas (Record et al., 2019). For example, NARW have
returned to historically important areas, such as southern New England
shelf waters. Southern New England shelf waters were formerly a whaling
ground and these waters have reemerged as an important NARW habitat
(O'Brien et al., 2022). Additionally, studies have shown that climate
change has resulted in the peak usage of Cape Cod Bay by NARW occurring
later in the season (Pendleton et al., 2022) and in a higher abundance
of NARW in Cape Cod Bay (Ganley et al., 2022). The expanded SSZ help to
ensure that vessel strike risk is addressed in these areas with
documented, climate-driven changes in NARW habitat use.
Additionally, the Proposed Rule will likely benefit other baleen
whale species. For example, NOAA declared an Unusual Mortality Event
for humpback whales because of an elevated number of humpback whale
mortalities along the U.S. East Coast from Maine through Florida since
2016 (NOAA, 2023a). This Unusual Mortality Event remains active as of
June 2023. A total of 198 humpback whale mortality cases through May
2023 are included in the UME, with 93% of these cases (184 cases)
detected between Massachusetts and North Carolina. Determination of
cause of death for recent cases is ongoing. However, half of the 20
mortality events examined from 2016 through April 2017 were attributed
to vessel strikes (NOAA, 2023a). The Proposed Rule establishes a SSZ in
waters off these states, which would reduce the risk of a lethal vessel
strike for humpback whales.
Expanding the vessels subject to the speed restriction

The Aquarium supports the Proposed Rule's expansion of the vessels
subject to the speed restriction to most vessels greater than or equal
to 35 feet (10.7 m) and less than 65 feet (19.8 m). The 2008 Rule was
focused on reducing risk in U.S. waters from vessels over 65 feet in
size, which were the vessel sizes thought to be the main threat to NARW
at that time. However, at least four of the 13 documented lethal vessel
strikes in U.S. waters since 2008 (two before 2019 and two after 2020)
involved vessels smaller than 65 feet, which are not subject to the
mandatory speed restrictions in the 2008 Rule. Specifically, a 46-foot
vessel struck a NARW off Georgia in 2012, resulting in a serious injury
(NOAA, 2020). Additionally, a 39-foot vessel struck a whale off
Massachusetts in 2014, resulting in propeller cuts and serious injury
(NOAA, 2020). These whales could not be identified because they were
not photographed; consequently, the ultimate outcome of these strikes
are not known. In 2021, a reproductive female, Infinity, was seriously
injured and her calf was killed when they were struck by a 54-foot
vessel. Infinity was last sighted four days after the strike with deep
propeller wounds to her side and has not been sighted again as of
submission of this testimony (NOAA, 2023b).
Mandatory speed restrictions in Dynamic Speed Zones

Static speed management is not sufficient as a sole strategy to
reduce vessel strike risk because of variability in species
distributions. Consequently it is necessary to include Dynamic Speed
Zones in the Proposed Rule and for speed restrictions in these Dynamic
Speed Zones to be mandatory. Over a decade of research on the U.S. East
and West Coasts shows low compliance with voluntary speed restrictions
(e.g., McKenna et al., 2012; Silber et al., 2012a; Freedman et al.,
2017; Morten et al., 2022). Consequently, alternative strategies must
be used to reduce vessel speeds. Mandatory speed restrictions were
found to achieve high compliance when they were implemented and
enforced on the U.S. East Coast (Silber et al., 2014). This research
suggests that implementing mandatory speed restrictions in areas of
high risk identified using the best available science will reduce the
risk of lethal vessel strikes for NARW. To ensure that the Dynamic
Speed Zones provide the protection needed to reduce vessel strike risk
requires the continued use of both visual sightings and acoustic
detections. Both monitoring methods require sufficient effort (e.g.,
surveillance flights and acoustic monitoring stations) to ensure that
whales are detected and Dynamic Speed Zones are established.

Conclusion

On behalf of the New England Aquarium, the above testimony is
submitted as grounded in the best available science, consistent with
the laws that protect the North Atlantic right whales (NARW), and
necessary given the potential extinction of NARW. The Aquarium commends
the National Oceanic and Atmospheric Administration (NOAA) on recent
steps taken to protect NARW, including the proposed changes to its 2008
Vessel Strike Reduction Rule (Proposed Rule), which represents the bold
and decisive action needed to reduce vessel strikes of NARW as one
major contributor to individual deaths and the potential for the
extinction of this species. The annual observed human-caused mortality
and serious injury to NARW from vessel strikes averaged 2 per year from
2015 through 2019, which is higher than the Potential Biological
Removal (PBR) of 0.7 for NARW (Hayes et al., 2022). Consequently, the
level of vessel strikes to the statutorily protected NARW is
inconsistent with the law and the best available science. Even one
human-caused mortality puts the species at risk of extinction. While
the 2008 Rule represented an important step in preventing vessel
strikes of NARW, vessel strikes have continued since the 2008 Rule was
implemented and further action is required.
NOAA's Proposed Rule is an essential means of taking the action
required based on the best available science. The scientific
methodology (Garrison et al., 2022) used to develop the Proposed Rule
has become a standard for assessing vessel-strike risk for large
whales, has been used on the U.S. East and West Coasts (e.g., Martin et
al., 2016; Rockwood et al., 2017; Crum et al., 2019; Rockwood et al.,
2020), and has been incorporated in NOAA's marine mammal stock
assessment reports for fin, humpback, and blue whales on the U.S. West
Coast (Carretta et al., 2022). Expanding the Seasonal Speed Zones in
space and time is necessary to ensure that these zones are better
aligned with NARW habitat (e.g., Davis et al., 2017), cover areas where
previous vessel strike mortalities have been detected (e.g., van der
Hoop et al., 2015), and buffer against climate-driven changes in NARW
habitat (e.g., Ganley et al., 2022; O'Brien et al., 2022; Pendleton et
al., 2022). Expanding the vessels subject to the speed restriction to
most vessels greater than or equal to 35 feet (10.7 m) and less than 65
feet (19.8 m) is necessary because at least four of the 13 documented
lethal vessel strikes in U.S. waters since 2008 (two before 2019 and
two after 2020) involved vessels smaller than 65 feet (NOAA, 2020;
2023b). Implementing mandatory Dynamic Speed Zones is necessary because
of variability in species distributions and over a decade of research
on the U.S. East and West Coasts shows low cooperation with voluntary
speed restrictions (e.g., McKenna et al., 2012; Silber et al., 2012a;
Freedman et al., 2017; Morten et al., 2022). Mandatory speed
restrictions were found to achieve high compliance when they were
implemented and enforced on the U.S. East Coast (Silber et al., 2014).
Finally, the Proposed Rule will likely benefit other baleen whale
species, such as humpback whales which have been undergoing an Unusual
Mortality Event since 2016 (NOAA, 2023a). We support NOAA's approach to
determining whether, where, and for how long certain vessel sizes
should be subject to speed restrictions. This approach recognizes
responsible use of the ocean by establishing the smallest spatial and
temporal footprint needed to protect the species and incorporating the
best available science on the reduction of vessel strike risk.
Implementation of the proposed rule as immediately as possible is an
important step toward preventing the extinction of the endangered NARW.

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Silber, G.K., Adams, J.D., and Fonnesbeck, C.J. (2014). Compliance with
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Silber, G.K., Vanderlaan, A.S.M., Tejedor Arceredillo, A., et al.
(2012b). The role of the International Maritime Organization in
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10.1016/j.marpol.2012.03.008.

van der Hoop, J.M., Vanderlaan, A.S.M., Cole, T.V.N., et al. (2015).
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______

Mr. Bentz. Thank you, Dr. Redfern.
I now recognize Mr. Gamboa for 5 minutes.

STATEMENT OF FRED GAMBOA, CAPTAIN, ANDREAS' TOY CHARTERS,
PRINCETON, NEW JERSEY

Mr. Gamboa. Chairman Bentz, Ranking Member Huffman, and
members of the Subcommittee, it is an honor to appear before
you today, and a privilege to speak to the Subcommittee on this
issue.
My name is Captain Fred Gamboa, and I am the Owner-Operator
of Andreas' Toy Charters, a charter boat operation based out of
Point Pleasant, New Jersey. I have been in operation for 17
years, and my business consists of three boats, four licensed
captains, and support crew, and I have run over 1,000 fishing
trips in that time, and taken countless people fishing. I have
also served as an advisor to the International Commission for
the Conservation of Atlantic Tunas, ICCAT. I am committed to
being an active partner in conservation management, and have a
vested interest in the health and future of the recreational
fishing industry and the marine resources.
Today, I will discuss how NOAA's proposed Vessel Speed Rule
would impact my business, and I want to offer suggestions for a
more balanced approach.
I take my customers fishing in waters adjacent to the most
densely populated region of the country. We share those waters
with marine mammals, including whales. And when we see one, it
makes a good trip a great trip. Without well-managed and
productive oceans, I don't have a job. I am committed to
protecting whales, but I am also for my business. Both my
livelihood and the future of my business depends on how we
approach this conservation challenge.
My testimony focuses on four areas of concern with the
proposed rule, as well as recommended alternatives that seek to
achieve a balance on this issue.
First, safety. Vessel speed plays a crucial role in
ensuring the safety of recreational boats. The boats I use for
my business are center-console boats and, therefore, their
usage, especially for charter trips, is limited by weather and
sea conditions. As a licensed U.S. Coast Guard mariner, safety
is of paramount importance in my operation. My 17-year track
record speaks to this fact. Line of sight and maneuverability
are optimized when my boats are on a plane which occurs well
above 10 knots. Speed provides me with the ability to monitor
approaching weather conditions and react by returning to the
dock before conditions become hazardous.
Two, I also have concerns regarding privacy implications of
NOAA's intended use of the AIS systems to enforce the Vessel
Speed Rule on recreational boats. AIS is a tool to enhance
safety at sea and mitigate vessel collisions, not used to
enforce an unrelated statute such as Vessel Speed Rule. When my
customers and I embark on recreational fishing trips, we should
rightfully possess a reasonable expectation of privacy as we
enjoy our time on the water. Utilizing AIS, a navigational
safety tool, for enforcement purposes undermines this
expectation.
Three, a gross misrepresentation of the economic impacts of
this rule is another concern. The imposition of a 10-knot
vessel speed limit would render my charter trips impossible to
conduct. NOAA's technical analysis of the economic impacts fail
to acknowledge that I cannot take people fishing at a speed of
10 knots. It is simply not feasible. And as a result, these
trips would have to be canceled. A 10-knot speed limit will
result in a direct loss of over 70 trips, with an estimated
economic loss of over $140,000.
Four, the last concern I would raise is the impact on
access. A substantial portion of my customer base consists of
individuals who do not own their own boats. If the ability to
operate my boat at speeds above 10 knots is taken away, I would
no longer be able to provide the public access to important and
sustainable U.S. fisheries.
As a demonstration of our willingness to work with NOAA
Fisheries to advance marine mammal conservation while also
allowing my business to succeed, I offer in my written
testimony possible solutions such as public outreach,
education, collaboration with stakeholders, technology,
innovative solutions, and utilization of reporting mechanisms.
The consequences of the proposed rule demand thoughtful
evaluation and exploration of alternative approaches to protect
our marine ecosystems, support our economy, and ensure the
long-term sustainability of recreational boating and fishing
through businesses like mine. I urge Congress to halt this
proposal from moving forward to grant us the necessary time to
develop comprehensive, effective solutions.
Thank you for affording me the opportunity to address this
critical matter. I am happy to answer any questions.

[The prepared statement of Mr. Gamboa follows:]
Prepared Statement of Captain Fred Gamboa, Owner/Operator,
Andreas' Toy Charters
INTRODUCTION

Chairman Bentz, Ranking Member Huffman and Members of the
Subcommittee, it is an honor to appear before you today and a privilege
to speak to the subcommittee on the proposed rule that would limit the
speed of vessels 35' and larger to 10 knots or less along the Atlantic
coast for up to 7 months of the year.
My name is Captain Fred Gamboa and I am the owner and operator of
Andreas' Toy Charters, a charter boat operation based out of Point
Pleasant, NJ. I have been in operation for 17 years and my business
consists of 3 Contender boats, 4 licensed captains and support crew. I
have run over 1,000 fishing trips in that time and taken countless
people fishing. I have also served as an advisor to the International
Commission for the Conservation of Atlantic Tunas (ICCAT). I am a top
tagging boat for the Gray's FishTag Research Northeast Striped Bass
Tagging Program. I am committed to being an active partner in
conservation management and have a vested interest in the health and
future of the recreational fishing industry and the marine resources.
I am not an outsider speculating on how the proposed rule may
impact charter boat operations like mine and many others up and down
the coast. I know how I operate my business and what my customers want
from a trip on one of my boats. Both my livelihood and the future of my
business depend on how we approach this conservation challenge.
It is my intention today to discuss how the proposed vessel speed
rule would impact my business and the public, and offer some
suggestions for a more balanced approach. It is important to note that
I make my living on the water. Catching fish and bringing home
something for dinner is an important part of what I do and why
customers pay to go on my boat, but it is not the only reason. I take
my customers fishing in waters adjacent to the most densely populated
region of the country. Despite that, we fish in some of the most
beautiful and productive waters. We share those waters with marine
mammals including whales and when we see one, it makes a good trip a
great trip. Myself and others who enjoy or make a living on the water
are the true conservationists when it comes to marine resources.
Without well managed and productive oceans, I don't have a job. I view
this issue as one where we don't have to pick a side, boats versus
whales. I am committed to protecting whales. I am also for my business
and the workers I employ. The proposed rule, as written, does not
accommodate those two opinions. I will propose several recommendations
that seek to achieve this balance.
My testimony focuses on four areas of concern with the proposed
rule.
SAFETY

Vessel speed plays a crucial role in ensuring the safety of
recreational boats. While Contender builds boats that are renowned for
their seaworthiness, being open boats, they are not specifically
designed to operate comfortably in conditions above a strong breeze
(31mph+) and a developed sea. Therefore, their usage, especially for
charter trips, is limited by weather and sea conditions. Speed enables
us to take advantage of favorable weather conditions and escape from
inclement weather. Under the proposed rules, our boats over 35 feet
would essentially be unusable for approximately seven months of the
year. I simply can't cover the ground to access the targeted fisheries
when limited to 10 knots. This would amount to the loss of no less than
70 trips with an estimated economic cost of $140,000.
As a licensed United States Coast Guard Mariner, safety is of
paramount importance to my operation. Not only does my United States
Coast Guard Mariner license require me to pass strict safety and
physical training, but I also take pride in running an extremely safe
operation and maintaining a loyal base of returning customers because
of my safety record. Throughout my many years on the water, I have
never collided with a whale. While I may not be an expert in marine
mammals, spending extensive time on the water has granted me a keen
understanding of the oceans and the waters in which I fish. Whales are
not the sole threat on the water; there are a variety of floating
objects that can cause catastrophic damage to a boat of my size, from
shipping containers to floating wood debris that can easily puncture a
fiberglass boat. Contrary to what the National Oceanic and Atmospheric
Administration (NOAA) may believe, I can operate my vessel most safely
when it is traveling at speeds above 10 knots and on a plane. My 17-
year track record speaks to this fact. Line of sight and
maneuverability are optimized when my boats are on a plane.
I can provide two examples where the proposed rule would compromise
safety on my boats. First, speed provides me with the ability to
monitor approaching weather conditions and react by returning to the
dock before conditions become hazardous. Weather in New Jersey can
change rapidly, and even on the clearest days, thunderstorms can
develop within a few hours, posing significant risks to boaters even
with informed weather forecasting. However, it would be impractical and
challenging to run a business if we had to cancel trips every time
there is a chance of thunderstorms. Speed allows me to avoid being
caught in storms should they develop. If I observe the development of
storms, I can make the decision to run at high speeds while conditions
are still favorable and return to port before severe weather strikes.
Likewise, I can chart a course to avoid the most intense areas of the
storms. Imposing a 10-knot vessel speed restriction would strip away
this ability, potentially endangering my boat, crew, and passengers. In
preparation for this hearing, I reviewed the National Weather Service
database and found that three out of the top five tornado outbreaks in
New Jersey occurred between November 1 and May 30. Severe weather does
occur often during the fall, winter, and spring months in New Jersey.
Limiting my speed to 10 knots would force me to subject my boat and
passengers to being caught at sea in unfavorable and dangerous weather
conditions.
Secondly, speed allows me to operate my boat during ideal weather
windows. I often schedule my charters to align with these favorable
conditions. If my boats are restricted to a maximum speed of 10 knots,
my ability to take advantage of such weather windows becomes severely
limited. I would be compelled to run trips in less than desirable
conditions, potentially compromising safety. Again, operating at higher
speeds also allows for optimized visibility on the water and provides
greater opportunity to see and avoid whales.
Enforcing such a low-speed limit would force me to prolong
journeys, significantly increasing the time spent on the water. This
would expose my passengers, crew, and vessels to various other risks
besides adverse weather including fatigue leading to higher risks of
accidents and emergencies. Furthermore, the extended duration at sea
would necessitate additional safety precautions and resources, placing
a strain on the overall safety infrastructure of my business.
PRIVACY

I have concerns regarding NOAA's intended use of Automated
Information Systems (AIS) to enforce the vessel speed rule on
recreational boats. As a charter boat operator in the recreational
fishing industry, our industry does not fall within the realm of
``highly or closely regulated industries'' necessitating constant
government surveillance. This distinction has already been recognized
by the courts, making it highly unlikely that operating a recreational
boat exceeds the threshold warranting continuous NOAA surveillance for
boats of certain sizes. This highlights yet another instance where the
proposed rule lacks careful consideration.
AIS is internationally acknowledged by the International Maritime
Organization (IMO) and domestically by the US Coast Guard as an
invaluable tool for enhancing safety at sea and mitigating vessel
collisions. Its intended purpose should not be compromised to enforce
an unrelated statute such as the vessel speed rule. Even though my
boats do not meet the criteria requiring Class A AIS, I have
voluntarily equipped them with AIS to prioritize the safety of my
passengers and crew and using AIS has contributed to my long-standing
safety record.
Employing AIS as a means to enforce the vessel speed rule raises
significant concerns regarding the protection of fourth amendment
rights against warrantless searches. The courts have acknowledged the
presence of ``serious constitutional problems'' when it comes to
warrantless government surveillance and the reasonable expectation of
privacy in individuals' movements. Given that charter boats do not fall
under the category of highly regulated industries, we should be
entitled to this expectation of privacy. The collection of time-stamped
position information on individuals for enforcement purposes without a
warrant constitutes unwarranted government surveillance, conflicting
with the principles established in landmark cases such as Carpenter v.
U.S.
When my customers and I embark on recreational fishing trips, we
should rightfully possess a reasonable expectation of privacy as we
enjoy our time on the water. Utilizing AIS, a navigational and safety
tool, for enforcement purposes undermines this expectation.
ECONOMIC IMPACTS

In a typical offshore charter, my primary objective is to cover a
substantial distance, often exceeding 200 miles. These trips are
marketed as expansive and thrilling adventures, and I achieve such
coverage by operating at high speeds. Unfortunately, the imposition of
a 10-knot vessel speed limit would render these trips impossible to
conduct.
NOAA has conducted a technical analysis, estimating the economic
impacts of this rule by factoring in additional transit time for
affected boats. That additional transit time would result in an average
of $3,000 in economic impacts per vessel per year. However, this
analysis fails to acknowledge a critical point: I cannot take people
fishing at a speed of 10 knots. It is simply not feasible, and as a
result, these trips would have to be canceled. NOAA did not consider
the cancelation of trips in their analysis. As mentioned previously,
the proposed rule would force the cancelation of the charter trips
booked on my boats which would amount to $140,000 in lost income. The
figures that I present are not speculation, these are actual figures
based on what I charge and the number of trips that I conduct during
the months that would be affected by the proposed rule. The discrepancy
between my actual losses and what NOAA projects to be losses must be
corrected.
Speed is not only essential for the safety of myself and my
customers, but it is also what provides value to my trips. Running a
trip that covers a distance of 200 miles at 10 knots would require a
staggering 20 hours of run time. I must emphasize that spending such a
prolonged period in an open center console boat is not safe or
marketable. The repercussions would be the cancellation of these trips
and a substantial loss of income.
To illustrate the gravity of the situation, I would like to
highlight that two out of my three boats would become unusable from
November 1 through May 30 every year. This period accounts for a
minimum of 70 trips or two-thirds of my total income. However, my
situation is not unique. According to NOAA, upwards of 25% of New
Jersey's recreational fishing trips conducted on a boat and take place
within this time frame. It is also important to recognize that the
months from November to May have become increasingly more important to
my business and for fishermen as peak seasons are lasting longer into
the fall and starting early in the spring.
If these regulations were to be enacted, the ripple effect would be
felt throughout the entire community. Local businesses heavily reliant
on the influx of visitors and tourists, including restaurants, tackle
shops, and hotels, would suffer a substantial decline in revenue.
Consequently, the economic vitality of the entire region would be
compromised, leading to job losses and a decline in the quality of life
for many residents.
ACCESS

A substantial portion of my customer base consists of individuals
who do not own their own boats. These individuals rely on my charter
services to access the diverse fish species found off our coast.
Recreational fishing holds numerous values, but one crucial aspect is
its role in providing the public with sustainably caught, domestic
seafood.
Allow me to focus on the impact this rule would have on fishing for
highly migratory species, such as tuna. Fishing for these species
constitutes a significant portion of my business. Under the current
regulations, targeting or harvesting these fish is only permitted on a
boat that holds an HMS Angling permit. Consequently, for individuals
who do not own a boat, my charter operation represents their sole
opportunity to access these important fisheries.
If the ability to operate my boat at speeds above 10 knots is taken
away, I would no longer be able to provide access to the highly
migratory species fisheries. This, in turn, means that a portion of the
public will be excluded from benefiting from these sustainable U.S.
fisheries. The consequences of such exclusion extend beyond the
immediate loss of recreational opportunities; it affects the societal
values of our marine resources and our ability to enjoy the benefits of
sustainable, domestically sourced seafood.
In considering the proposed rule, it is crucial to recognize the
significant role charter operators like myself play in facilitating
public access to our marine resources. By providing the opportunity to
individuals who do not own boats to participate in recreational
fishing, we contribute to the broader goal of promoting sustainability,
supporting local economies, and reducing reliance on imported seafood.
ALTERNATIVES

I find it unfortunate that the development of this rule occurred
without any prior engagement or consultation with stakeholders within
our industry, particularly considering that we are an inherently
conservation-minded industry and community. Had we been given the
opportunity to participate in the process, we would have gladly offered
to collaborate with the NOAA to find effective ways of mitigating the
risks associated with vessel strikes.
Engagement between NOAA and our industry would have allowed for a
meaningful exchange of ideas and perspectives. We possess valuable
expertise and insights gained from years of firsthand experience on the
water. Regulating us without our input is unamerican. By working
together, we could have explored various alternatives and strategies
that would address the concerns at hand while ensuring the continued
viability of my business.

I offer the following possible solutions as a demonstration of my
willingness to work with NOAA fisheries to advance marine mammal
conservation while also allowing my business to succeed.

1. Public Outreach and Education: Launch a comprehensive public
outreach campaign to raise awareness among all mariners
about the importance of conservation and the potential
impact of vessel speeds on North Atlantic Right Whales with
the intention of improving compliance with existing
regulations.

2. Collaboration with Stakeholders: Foster collaboration between
government agencies, charter boat operators, and the marine
industry to explore and share ideas to mitigate risk of
vessel strikes and other sources of mortality on North
Atlantic Right Whales. This collaborative approach ensures
that all perspectives are considered, and the resulting
guidelines are practical, enforceable, and effective.

3. Technology and Innovation: Invest in research and development of
technological solutions that can assist in monitoring and
tracking whales and then push that information out to
vessel operators. Public and private partnerships are the
best approach.

4. Reporting and Feedback Mechanisms: Establish a user-friendly
reporting system that allows boaters to report observations
of North Atlantic Right Whales. This feedback loop provides
valuable data for assessing the effectiveness of
conservation measures and making necessary adjustments.

As I have previously explained, the proposed rule, in its current
form, would impose an overwhelming burden on my operations. Its
implementation would have a crushing impact on not only my livelihood
but also the clients that rely on my services. Therefore, I strongly
believe that additional time is needed to thoroughly evaluate the
potential impacts and explore alternative approaches that can
effectively achieve conservation objectives while minimizing adverse
effects on boaters and the public who cherish America's well managed
fishery resources.
I firmly believe that there are alternative approaches that can
effectively address the challenge at hand. The government needs to work
with its people to generate sophisticated solutions to these marine
mammal conservation challenges. One such approach is to harness the
power of commercial innovation using a public/private partnership
hackathon, which would bring together industry and government
stakeholders, including not only NOAA but also the Department of
Defense and other relevant agencies to work on innovative solutions
together.
By pooling our collective resources and expertise, we can foster an
environment of collaboration and creativity to develop solutions that
protect endangered whales while minimizing adverse impacts on boaters.
This is not a binary problem where we must choose one side over the
other.
In conclusion, I urge you to recognize the gravity of this issue
and grant us the necessary time to develop comprehensive solutions. The
consequences of the proposed rule demand thoughtful evaluation and
exploration of alternative approaches. By doing so, we can protect our
marine ecosystems, support our economy, and ensure the long-term
sustainability of recreational boating and fishing through businesses
like mine.
Thank you for affording me the opportunity to address this critical
matter. I am happy to answer any questions.

______

Mr. Bentz. Thank you, Mr. Gamboa. I thank the witnesses for
their testimony. I will now recognize Members for 5 minutes of
questions. We will begin with Representative Wittman.
Mr. Wittman. Thank you, Mr. Chairman. I would like to thank
our witnesses for joining us today.
Dr. Redfern, I would like to start with you. Going to the
New England Aquarium website, I want to read this. It says,
``Large whales do not have many predators, and predation was
not previously thought to be a serious threat to right whales.
However, four cases of such attacks, three resulting in death
and one bite mark on a live calf are detailed in an article
recently published in Marine Mammal Science: `Shark Predation
on North Atlantic Right Whales in the Southeastern United
States Calving Grounds'.''
Do you acknowledge that there are whale deaths of right
whales from predation from orcas and white sharks? Yes or no.
Dr. Redfern. I have not studied that issue. What I have
focused on is human mortalities.
Mr. Wittman. Will you acknowledge that this scientific
journal study that was quoted on your website is correct?
Dr. Redfern. I am just saying I haven't read that article.
Mr. Wittman. You haven't read it. Are you saying that you
don't believe it is true?
Dr. Redfern. No, I am not saying that. If it has been
published, it has gone through the peer review process, and
should stand as best available science, and I clearly should go
and check that out.
Mr. Wittman. Do you acknowledge that there are deaths from
non-anthropogenic causes?
Dr. Redfern. What is important is that the----
Mr. Wittman. Do you acknowledge----
Dr. Redfern. Yes, there can be sources from that, but the
Marine Mammal Protection----
Mr. Wittman. Thank you. All right, Administrator Coit, I
would like to go to you.
As you look at this and your projection of mortality from
right whales, your projection is that 100 percent of
mortalities are from ship strikes and gear entanglements. Is
that correct?
Ms. Coit. Thank you for the question. The predation that
you referred to, I believe, affects calves when they are small.
Mr. Wittman. Are calves also right whales?
Ms. Coit. Yes, they are, and they are the ones subject to
predation.
Mr. Wittman. OK, thank you, let me go to my question.
You are projecting that 100 percent of mortality from right
whales, calves, youth, mature whales, are 100 percent from
anthropogenic causes.
Ms. Coit. We are projecting that 100 percent of adult whale
mortalities are from anthropogenic----
Mr. Wittman. You are talking about the total population of
right whales, though, correct?
And we just heard some very compelling testimony about how
incredibly important the young whales that are produced by the
females are to the total population. So, if you have a
reduction in a young calf, is that not also impactful on right
whale populations?
Ms. Coit. Yes, sir, it is. And until those calves reach one
year of age, they sort of linger on the outside of our
population estimates because the odds of them growing up----
Mr. Wittman. So, if we are looking at managing right whale
populations, and we completely discount natural predation as a
cause of death for the total population, is that not unfair in
how we actually look at managing it?
And I want to ask this question, too: Has NOAA completed
the 5-year study it is supposed to be doing on the impacts on
right whale populations?
Ms. Coit. Thank you. Are you talking about our stock
assessment report?
Mr. Wittman. Yes.
Ms. Coit. I need to double check on that. I believe we
recently completed----
Mr. Wittman. Yes, I don't think it has been completed yet.
So, we are going down the rulemaking path to create a rule
before we fully understand the population dynamics and all of
the aspects that affect right whale populations, including non-
anthropogenic causes of mortality. You are making an assumption
that 100 percent of mortality is due to human impact. We see
that is not indeed the case, or even scientific journal
articles that say that that is indeed the case. So, you are
going down the road of policy.
Under rulemaking from NOAA, can you give me an example
where, based upon public input, you have either stopped a
regulatory process or made significant changes to a regulatory
process based on input such as what you have heard today? Yes
or no.
Ms. Coit. Thank you again for the question. I can tell you
that we consider the public input, and make changes to the
rules based on that----
Mr. Wittman. Have you made a change to a regulation or
stopped a regulation due to public input?
Ms. Coit. Recently, the 2021 rules for the fishing industry
in regard to right whales, we took public input on aspects of
that and changed the proposed rule. So, that would be an
example.
Mr. Wittman. OK. So then, in this instance, would you take
into consideration the impact that this will have on coastal
communities?
I want to speak on behalf of recreational and commercial
fishermen in the Virginia and Carolina areas. When you are
talking about a 90-mile range, 10 knots of limitation in speed,
and a charter boat that has a 10-hour charter that now is going
to take 9 hours to get to the fishing grounds where they fish
90 miles offshore, would you acknowledge that that would have
an impact on that industry?
Ms. Coit. Yes, I would acknowledge both the impact and the
importance of those industries, and that we received many, many
comments on these issues that we are considering now at NOAA.
Mr. Wittman. Thank you, Mr. Chairman. I yield back.
Mr. Bentz. Thank you. The Chair recognizes Ranking Member
Huffman for 5 minutes.
Mr. Huffman. Thank you, Mr. Chairman.
And Ms. Coit, we have heard a lot of information from
Members of Congress here and some of the witnesses that seems
to differ from what I have read. I have read, for example, that
we have had in the last 3 years four vessel strikes causing
death and serious injury to right whales from smaller vehicles.
Is that your understanding of the data?
Ms. Coit. Thank you for the question. Yes, that is correct.
We have had 14 lethal strikes since we issued the rule in 2008,
at least 5 of which are from vessels less than 65 feet. And
from June 2020 to August 2022, when we proposed the rule, we
have documented an additional 4 lethal whale strikes, of which
3 involved unregulated vessels less than 65 feet.
Mr. Huffman. Thank you for that. And, again, nobody wants
to inconvenience boaters in any way. But Ms. Coit, NOAA is
required--I would really appreciate it if our colleagues, you
get your time, I get my time. I didn't interrupt you.
Voice. I am just making a comment. Not to you.
Mr. Huffman. Yes. I would also like a little extra time for
the interruption.
Mr. Bentz. You will get it. Go ahead.
Mr. Huffman. Thank you. So, Ms. Coit, you are required by
law to take action, given the threat of extinction to the North
Atlantic right whale under the current facts, right? I mean,
this is not something where you can just, as some witnesses
have said, give us a little more time, give us a few more years
to try to figure out other alternatives. Talk about why you
have very limited discretion in this situation.
Ms. Coit. Thank you for the question. As you know, Congress
vested in NOAA the authority and the requirement that we
implement the Endangered Species Act and the Marine Mammal
Protection Act, and that we prevent extinction and recover
listed species.
Given the known causes of mortality for right whales and
their critically endangered status, we have to take action to
reduce the risk from vessel strikes if we are to prevent what
now is up to 30 mortalities per year from vessel strikes and
entanglements. So, we really have no choice if we are going to
prevent extinction than doing more.
Mr. Huffman. And we have tried for years to have a more
dynamic type of restriction, more of a real-time, flexible
system. How has that been working?
Ms. Coit. I think we have high hopes for improving
technology. But right at this moment we don't have existing
technology that can track and monitor and detect and avoid
vessel strikes sufficient to prevent the fatalities.
Mr. Huffman. Yes, I think all of us would love to see that
technology come online, and maybe give you some tools that
might be a little bit less restrictive. Is there any reason
that, if that technology ripened and became a viable
alternative, you couldn't revisit the rule?
Ms. Coit. Thank you. We will be pleased to revisit the rule
if we had better technological solutions to prevent the risk to
right whales.
Mr. Huffman. All right, thank you.
Dr. Redfern, you have been providing some clarity and
scientific grounding to the impact of vessel strikes on North
Atlantic right whales. In your opinion, are NOAA's models based
on the best available science, and supported by independent
research studies?
Dr. Redfern. They are. The methods that NOAA used when they
were looking at the proposed changes have become a standard for
assessing vessel strike risk. I think it is important to note
that mortality estimates from this methodology are incorporated
in NOAA's annual marine mammal stock assessment reports for
fin, blue, and humpback whales on the U.S. West Coast.
I also want to highlight, though, that we know models make
assumptions. One thing I think it is really important to note
that NOAA did when they were drawing their seasonal areas, they
used the predictions from the models, but then they cross-
validated those against where right whales had been seen. And
they used more data than were incorporated in the model. They
used acoustic detections, they used opportunistic sightings.
So, they really did what they could to pull in all the best
available data and make sure that those speed zones represented
areas where right whales occurred.
Mr. Huffman. All right, thank you. And could you speak to
why vessel strikes are an especially important consideration
when it comes to females and calves, which is, I think
everybody understands, critically important if we are going to
recover the population?
Dr. Redfern. Yes, females and calves are particularly
vulnerable because they are spending time resting at the
surface, and that is where they are going to be at greatest
risk of strike, as well, as I mentioned in my testimony,
females have this incredible reproductive potential. They are
what are extending the population. That one whale had
contributed 29 offspring and grandchildren to this population.
It is what gives me hope. If we can stop killing them, they can
come back, and we can prevent their extinction.
Mr. Huffman. Thank you.
And Mr. Hugelmeyer, last question. I understand that you
don't like this Vessel Speed Rule applied to smaller boats, but
we have data suggesting smaller boats do occasionally present a
threat to right whales, especially females and calves. Is there
any speed reduction for the smaller vessels that we are talking
about, or is it your view on behalf of the industry that they
should just be completely exempted and left alone?
Mr. Hugelmeyer. Thank you for that question. Two points:
One, I don't believe that the risk assessments are accurate.
NOAA has it wrong on the economics, they have it wrong on the
number of vessels, they have it wrong on the nature and the
engineering of the vessels----
Mr. Huffman. OK, but to my question, is it your position
that there should be just a complete exemption of these boats,
or is there any speed restriction that you could live with on
behalf of the industry?
Mr. Hugelmeyer. It has to do with safety. The way the----
Mr. Huffman. So, what is the speed?
Mr. Bentz. I am sorry----
Mr. Huffman. What is the speed?
Mr. Bentz. We are done. Next, the Chair recognizes Mr.
LaMalfa for 5 minutes.
Mr. LaMalfa. Thank you, Mr. Chairman.
Mr. Gamboa, I didn't quite catch, what are the size of your
vessels?
Mr. Gamboa. I have a 39-footer and a 44-footer.
Mr. LaMalfa. So, you are right in that small range.
Mr. Gamboa. Correct.
Mr. LaMalfa. OK. And what is the draft on them? Is this
poster behind me pretty accurate?
Mr. Gamboa. I am 2 feet on the 39, and 3 feet on the 44-
footer.
Mr. LaMalfa. So, the bottom of the prop only sticks down 2
to 3 feet, right?
Mr. Gamboa. Correct.
Mr. LaMalfa. OK. And what is the speed you would go the
fastest when you are out there doing your thing?
Mr. Gamboa. It all depends on what I am doing, conditions
of the sea----
Mr. LaMalfa. Well, for any activities: showing off, racing,
whatever.
Mr. Gamboa. From 40 to 70 miles per hour. My top end is 72
miles per hour.
Mr. LaMalfa. And what is typical for cruising?
Mr. Gamboa. Thirty to forty, cruising.
Mr. LaMalfa. Thirty to forty? OK. And do you have any fish
spotting equipment on there?
Mr. Gamboa. Well, besides tower and visual, we have
binoculars that stabilize at sea. So, we have a 7-mile radius.
Mr. LaMalfa. And do you have folks that are spotting
obstacles, including whales?
Mr. Gamboa. Absolutely.
Mr. LaMalfa. All right.
Mr. Gamboa. Because there are a lot of other potential
factors involved: submerged shipping containers, all kinds of
stuff on the surface that we want to avoid besides whales.
Mr. LaMalfa. OK. So, it is said in my notes here, and I
think it was in testimony, as well, that the odds of a boat
that size hitting a whale is about one in a million. Does that
seem----
Mr. Gamboa. Pretty much, pretty much.
Mr. LaMalfa. And nobody wants this stuff to happen.
Mr. Gamboa. I have to tell you. To be part of this life, we
have a symbiotic relationship with whales. We need the whales.
I need them to find fish. They help me find the tuna. There are
certain ways that these things travel in the water, and they
are very easy to predict, especially when they are around the
prey species that we are looking for.
Mr. LaMalfa. Do people in your line of work do much night
work, or is it primarily----
Mr. Gamboa. Mostly daytime.
Mr. LaMalfa. Is there a greater threat of hitting a whale
at night or day?
Mr. Gamboa. We don't travel at night at those speeds, so it
is mostly daytime for us.
Mr. LaMalfa. OK. For Administrator Coit, having heard what
has been talked about here today a little bit, do you believe
that the people from industry--in other words, the pilots, the
recreation, whatever--that they have legitimate concerns, don't
you think, when we are talking about, again, look at what we
saw here on the small draft on the smaller boats. They have a
legitimate concern that the rule is kind of maybe a little
wide-ranging, wouldn't you think?
Ms. Coit. Thank you for that comment and question.
Certainly, my experience has been that the recreational boating
community and the charter boat captains truly appreciate the
wonder of nature and whales, and I completely believe that we
all want to work together to protect whales.
These issues that have been raised are really difficult
issues. And, yes, I do think that they are consequential. And
there are things that we are considering as part of the input
that we got on the proposed rule.
Mr. LaMalfa. Mr. Diamond, what are the typical speeds of
the larger vessels above 65 or the biggest ships we are talking
about? What is their normal speed that they are being subject
to the 10-knot rule?
Mr. Diamond. Thank you, sir. It would certainly depend on
the size of the vessel, and the wind, and which particular
channel.
But, generally, as they are coming in these federally
improved offshore navigation channels, which is what I was
referring to, the ships that I am talking about that are being
piloted aren't transiting up and down the East Coast. The ones
that we are mostly focused on are the large vessels that are
moving in and out of the federally improved, dredged channels.
So, the speeds there would be anywhere from 15 to 17 knots,
perhaps faster, perhaps slower.
Mr. LaMalfa. So, we are talking a reduction in speed of no
more than half, right?
Mr. Diamond. It is a significant change, because that drop
from, say, 15 or 16 knots to 9 knots would dramatically
influence the ability----
Mr. LaMalfa. But when you are out in an ocean-going area,
you are still going about 17 knots. Is that about the most----
Mr. Diamond. In a complete open ocean area, going much
faster than that, up to 30 knots, perhaps.
Mr. LaMalfa. Up to 30? All right. What is the situation you
could live with here? Just give me a recipe for--you know,
there is great concern here, legitimate concerns. What would be
your recipe?
I want to bring in that there is the whale safe alert
process they have in the San Francisco Bay, which seems to be
working pretty good with that technology. Is that technology
part of the thought? What would be your prescription for how we
could do better here?
Mr. Diamond. Yes, sir. There would be three things that we
have specifically recommended to NOAA over and over again,
including in writing.
One would be to better utilize technology. And we have
offered pilot boats to test this whale detection technology.
Pilot boats are on the water 24/7/365 days a year. These are
the perfect eyes and ears on the water to help detect this. And
we have offered that up.
But the other two things that we have suggested are the
Federal navigation channels, which I am referring to, are these
critical strategic and economically important channels into and
out of East Coast ports. If you exempted all of those channels
from the speed restriction--which, again, there has never been,
according to NOAA data, a strike in these channels--it would
represent 0.002 of 1 percent of the entire area. So, if you
exempted the channels, ships would be free to maneuver as
safety required, and it wouldn't be a threat to the right
whale.
Similarly, we have asked them to exempt pilot boats from
the rule. And, again, these are operated by professional
mariners, the best small boat handlers in the world. And they
have lookouts, and there has never been a strike by a pilot
boat.
Mr. Bentz. Thank you.
Mr. LaMalfa. Thank you, Mr. Chairman. I yield back.
Mr. Bentz. Thank you. The Chair recognizes Mrs. Peltola for
5 minutes.
Mrs. Peltola. Thank you, Mr. Chairman. My questions are for
Deputy Administrator Coit.
Thank you for your testimony today. Like all of my
colleagues, I support protecting endangered wildlife. But I am
very concerned about the proposed rule limiting vessel speeds,
which could cause severe unintended consequences, especially in
Alaska, if they are adopted on a broad basis. Alaska is very
dependent on fishing and tourism, with many small charter
operators whose operations can be disrupted by slower or
unclear speed limits.
I really appreciated what Commander Diamond was talking
about in terms of safety. When you are out in the tides, and
currents, and winds, you really have to have some amount of
speed in order to maintain control of your vessel.
I am just wondering, Deputy Coit, if NOAA intends to apply
these speed limiting standards to other species or regions of
the Pacific.
Right now, we have a lawsuit regarding orcas in Washington
that is affecting our trollers in Sitka in southeast Alaska.
So, I am concerned about this trend, and I am wondering if you
are considering applying it to other places in the United
States.
Ms. Coit. Thank you for that question. And I do believe I
met you first in this very hearing room.
Mrs. Peltola. Deja vu, yes.
Ms. Coit. This rule is specific to North Atlantic right
whales, and it regards their protection and what is needed to
do to reduce risk to them. It doesn't affect the Pacific Coast.
There are no speed restrictions outside of Glacier Bay National
Park in Alaskan waters. And this rule in our current
consideration doesn't apply to Alaska.
I would like to add that mariners' safety is, of course, a
top priority. And we have included in this rule in the Atlantic
Coast some expansion, and have had fruitful conversations with
the Pilots Association and others, but want to just agree with
all that that is a top priority.
Mrs. Peltola. All right. And just as a follow-up question,
Mr. Chairman, if I may, could you provide more detail on how
marine businesses and particularly shipping companies and
charter fishing operators have been consulted on the proposed
rules, and how they would be included in any further regulatory
development?
Ms. Coit. Thank you for the question. It is important to
note that in January 2021, NOAA released for public comment an
assessment and a comprehensive report that talked about the
need to align the areas where speeds were being reduced with
where the whales are and are likely to be. And it talked about
the lethal impact from smaller vessels going at high speeds.
So, that document was released, and we received 20,000 comments
on that. And that informed this rule.
When this proposed rule was released, we have had many
conversations and meetings, presentations, including with the
folks in this room throughout the comment period. At this point
the comment period is closed, and we are reviewing all of that
input.
Mrs. Peltola. OK. And I guess I would just ask Mr.
Hugelmeyer if you felt the comment period was extensive or
inclusive.
Mr. Hugelmeyer. Not at all. We were not engaged whatsoever.
We were taken by surprise. As the community that is having the
biggest impact, and being asked to take on the biggest burden
here, and to not have been communicated with at all, and then
in arrears, and before the comment period we were told we
couldn't talk because we are about to issue, and then after we
couldn't talk because we are in now the comment period, it has
been, to be quite honest, not the way we have been working with
NOAA historically, and we are shocked.
And as far as the expansion of these rules, we fear that
same threat that you do. There is already a petition for NOAA
to expand this across the entire Gulf of Mexico. And we see
this as a campaign to remove boaters and boating around major
sea areas around the country, and we expect it to metastasize
to the Pacific.
So, right now there are groups trying to petition NOAA, as
we speak right now, on this issue to move it to the Gulf.
Mrs. Peltola. Thank you, Mr. Chairman.
Mr. Bentz. Thank you, Mrs. Peltola. The Chair recognizes
Mr. Graves for 5 minutes.
Mr. Graves. Thank you, Mr. Chairman. I want to thank the
witnesses for being here today. I appreciate you all being
here.
This weekend I actually had a chance to go out fishing for
the first time in a while. And you all can admire my nice legs
for just a minute.
[Slide.]
Mr. Graves. But, yes, these are called red snapper, Jerry.
I know you all don't know how to catch these in Alabama.
[Laughter.]
Mr. Graves. But Madam Administrator, we were about 80 miles
off, all right? We were about 80 miles offshore. And according
to my math, which there is an excellent chance I am wrong, but
it would take me about 7 hours to get out to this spot going at
10 knots, which is very concerning.
And the reality in a situation like that is that what is
going to happen is that most boaters aren't going to go. I will
tell you I wouldn't have gone out. In fact, there was weather
that was over to our west that was moving in. There was not a
chance I would have gone out, which has an impact on the number
of folks who go out boating, it would have an impact on the
economy, on tourism, bait shops, hotels, and everything else
that happens.
[Slide.]
Mr. Graves. So, look, here is my concern. My concern is
that you had people who put this thing together that are not
boaters, they are not in a boat, not on a boat, and don't
understand this issue.
[Slide.]
Mr. Graves. The reality is that, even when you go through--
and I can take some other NOAA data that, unfortunately, I am
incredibly familiar with, Saffir-Simpson Scale, a scale that
NOAA puts together that rates the wind speed of hurricanes 1
through 5. Of course, you also have tropical storms and
tropical depressions.
I know, from being out there in the water, that some of the
wind speeds that are contemplated in the rule, they do not
reflect boating reality. I have been out in wind speeds of 10
miles an hour, where we have had 5-foot swells, 6-foot swells,
and greater that I would not ever, ever recommend that anybody
go ride 10 knots because it is just unsafe. It is unsafe to be
in those types of conditions.
Now, we have talked about some solutions because I think I
can speak for everybody here that there is no one on this
Committee that wants to go out there and trash whale
populations. There is no one. But what we want to do is we want
to find realistic solutions.
[Slide.]
Mr. Graves. Now, this right here, the red up there actually
shows where there are whales. So, you can see the right whale.
In fact, you know what? Actually, you probably can't see the
right whale. Let me point it out to you. It is right there, all
right? That is the right whale. Everything else is boat
traffic. So, effectively, what you are doing under your
proposed rule is you are telling everybody in the blue, the
boat traffic, that they have to stop, or that they have to go
10 knots whenever the whale is up there.
Look, this is 2023. We can do better than this. And as a
matter of fact, we actually have.
[Slide.]
Mr. Graves. There are technologies that exist today, we
have done it with sharks, where we do real-time monitoring.
Let me let me say it again. There is no one on this
Committee that wants to go out there and trash an endangered
species. But I think what we need to be doing is looking at
more realistic compliance opportunities, and I think technology
provides a good one.
I understand from the IRA you have programmed some dollars
into some type of monitoring. Is that real-time monitoring?
[Nonverbal response.]
Mr. Graves. It is. So, does something like we have done
with sharks, is that a proposed solution here or a possible
solution here?
Ms. Coit. Thank you, Congressman. I really appreciate your
perspective. And, yes, I think we are planning to put more----
Mr. Graves. And you can give accolades to my red snapper
catch, too, if you want to.
[Laughter.]
Ms. Coit. We are planning to put $82 million of our IRA
money into right whale mitigation and monitoring, including
using funds to expand the near-real-time monitoring systems
that we have.
Right now, there is an app and a whale-safe map where we
record all sightings, and we work with aerial passive acoustic
monitoring, and there are some other technologies we are
talking to NASA and MITRE about with the use of radar and
infrared. So, I think there is an opportunity in the future to
really know where the whales are and have avoidance technology.
Mr. Graves. Got it. And that would fundamentally change the
structure of the rule.
[Slide.]
Mr. Graves. Look, the last thing I have, and there are
different versions of this one, but you have to look at the
draft of these vessels. This is, I think, a 37-foot center
console over there. The thing is pulling 2 feet of draft. And I
think that even a cabin cruiser here--what is this, a Freeman
or whatever that is going--that one has about 4 feet of draft.
So, to treat every vessel as though it is a deep draft post-
Panamax, that is just not reality.
I am over time, so let me just say this. I think it is
really important that you engage the private boating community
to understand the characteristics and how they would respond to
a proposed rule like that. Real-time monitoring is the right
approach.
I apologize, Mr. Chairman, and yield back.
Mr. Bentz. Thank you, Mr. Graves. The Chair recognizes Mr.
Magaziner for 5 minutes.
Mr. Magaziner. Thank you, Chairman.
NOAA has a vital role to play in protecting endangered
species like the North Atlantic right whale, while also
crafting regulations that will minimize the impact on the
industries that Americans in coastal communities rely on for
their livelihoods.
And I just want to say to the Administrator and to everyone
in her office, I don't envy the work that you have to do. It is
a challenging thing to craft a rule that will save this
endangered species, but also protect maritime industries. It is
not an easy thing to do.
And I want to thank Mr. Hugelmeyer, Mr. Diamond, Mr. Gamboa
for your work, as well. You are doing a good job advocating for
your industries, for the people who are employed by them, and
this is exactly the way the process should work.
What I am perplexed by, though, is that we are having a
hearing on a rule that hasn't even been finalized yet. So, the
way this works is an agency comes out with a draft rule. There
is a public comment period where stakeholders have the
opportunity to provide input. The agency looks at that feedback
and incorporates it into a final rule. Correct me if I am
wrong, but where we are in this process is the comment period
has just closed, the agency is still evaluating the comments
that have been submitted, and the final rule hasn't even come
out yet.
So, we are here talking about a rule that none of us have
actually seen, and we have the ability, through the
Congressional Review Act, and I know that my colleagues are
familiar with this because we have been doing it a lot lately,
to vote to overturn rules after they are finalized. But that is
not where we are in the process yet.
So, I just once again remind everyone the conversations we
are having here are important. The stakeholder feedback is
important. It is important that we find the right balance
between protecting maritime life, endangered species, and also
protecting key industries that employ our constituents. But we
are putting the cart before the horse here, in my opinion,
evaluating a rule that none of us have seen the final version
of. We have seen a draft before the public comments have been
incorporated and evaluated.
Administrator Coit, I just want to make sure that I
understand the process here. Am I correct that your agency is
still evaluating the public comments that you have received to
develop the rule that we are discussing today?
Ms. Coit. Thank you, Congressman. Yes, that is correct. We
are evaluating the 90,000 comments, and the comment period is
closed, and we are in that deliberative process right now.
Mr. Magaziner. Right. So, again, with respect, members of
this Committee are getting worked up about a rule that none of
us have seen, that hasn't actually been written or finalized
yet.
Is it your intention, though, Administrator, to implement a
rule that will save the North Atlantic right whale from
extinction, but also at the same time impact coastal industries
as minimally as possible? Is that the balance that you and your
staff are trying to achieve?
Ms. Coit. Thank you. Yes, that is the balance that we are
trying to achieve. And we also put out for public comment the
economic assessment, and got a lot of good comments on that,
too.
Mr. Magaziner. Thank you.
I also just want to flag we are now heading into
appropriations season, and your agency, along with all of the
others across the Federal Government, are being evaluated for
appropriations. Can you speak to the importance of adequate
staffing levels in developing rules like this, and in making
sure that the public comments and the feedback that you receive
from impacted industries and stakeholders are adequately
represented and considered in the final rulemaking process?
I think it is important that everyone in this Congress
understand the importance of staffing for your agency so that
you can do this work.
Ms. Coit. Thank you, Congressman. Yes, that is right. We
have a tremendous workload around endangered species and
fisheries, and staffing is needed to carry that out. As you
might have heard, we are taking some of the funding from the
Inflation Reduction Act to devote to this important issue. And
the National Defense Authorization Act, new authorities where
we didn't get any funding, we are also working to do our best
to follow through with those, as well.
Mr. Magaziner. Yes. So, listen, this is an important issue.
But, again, I am just sort of perplexed by the timing here.
This seems to be our week for trying to overturn rules
before we have even seen them. On the Floor this week, we are
going to be considering rules that the Administration is
developing to limit gas leaks in home appliances. But, once
again, our colleagues across the aisle are trying to overturn
these rules before they have even been written, before they
have even seen them. And here, once again, we are having a
hearing on a rule that no one has actually seen. It is
disappointing, I think, that my colleagues across the aisle are
so eager to overturn anything the Biden administration does
that they do it before they even see it. And I would just
suggest that this conversation, while very important, is
premature.
Thank you. With that, I yield back.
Mr. Bentz. Thank you, Mr. Magaziner. The Chair recognizes
Chairman Westerman for 5 minutes.
Mr. Westerman. Thank you, Chairman Bentz. Thank you to the
witnesses.
Mr. Hugelmeyer, you said in your testimony that NOAA's
proposed rule is not supported by international research, and I
think Mr. Garret's research is probably more in depth than the
technical basis for NOAA's proposed rule. But can you speak to
the research findings you were referring to?
Mr. Hugelmeyer. Yes. The Tethys Research Institute in
Italy, which has actually conducted extensive research on ship
traffic, high-density ship traffic in relation to both sperm
and fin whales, they are looking at how can they use technology
to monitor the whales to keep their endangered species from
being impacted, while also continuing to keep their very strong
recreational market. It is one of the most dense recreational
markets in the world in that Italian Riviera region.
They have found that the majority of whale strikes come
from boats over 260 feet. And I think this is a key piece,
because small recreational boats are being conflated very
intentionally in a lot of the language in press, in stories, in
visuals. This is the depth of a recreational boat. It is the
length of my arm. The depth of the boats we are being compared
to are twice the height of this ceiling. That just isn't an
accurate conflation.
So, when you take all of your data and assumptions and
inputs, and you are comparing our segment of the industry with
the wrong engineering data, and this is all part of your
modeling of the risk assessment, your risk assessment is off
because it is not in the same planet at all. And that is really
why looking at external research groups like Tethys and what
they have been finding, there are some real lessons that we can
adopt in the United States.
And technology is definitely the solution, I agree with
Representative Graves.
Mr. Westerman. And Deputy Administrator, would you like to
comment on how substantive NOAA's research is compared to the
research that Mr. Hugelmeyer was talking about?
Ms. Coit. Thank you for the opportunity and the question.
What makes right whales so vulnerable is they spend so much
time on the surface or just below the surface, so blunt force
trauma from vessels hitting them directly is one if the major
causes.
Mr. Westerman. Do you have documented cases of these small
vessels hitting these whales?
Ms. Coit. We do have documented cases. I could give you
some examples, or I could send it to you.
But I think we have a lot of good information, and are
using that information to update our science. But we are
working internationally on the best available science.
And it is both. It is not just the running over the
propellers, but it is the direct hits, the blunt force trauma
that is killing a lot of the whales. And, in fact, of the 45
whales that have been stranded on the Atlantic Coast and died
this year that we have been able to do necropsies, that blunt
force trauma from vessel strikes is the major cause of the
mortality.
Mr. Westerman. Do you know which vessels were striking
them?
Ms. Coit. Sometimes we do and sometimes we don't.
Mr. Westerman. How much can you quantify ``sometimes''?
Like, 5 percent, 10 percent?
Ms. Coit. Yes, the scientists believe that one-third of the
time we get reported documented cases, and two-thirds of the
time, as you said, like, with a great, big ocean-going vessel,
they wouldn't even know they struck a whale.
Mr. Westerman. Mr. Diamond, your organization provided
written comments to NOAA's June 2020 Vessel Rule Assessment,
and the assessment made several recommendations that were
included in the proposed rule, such as expansion of the
management areas and expanding the speed restrictions to small
vessels. APA's comments raised similar concerns to the
testimony you provided today.
Did NOAA engage with APA when it provided comments to
Vessel Speed Rule Assessment?
Mr. Diamond. When the assessment was published in 2020, and
we submitted our comments, we had one phone call with them. But
we certainly didn't hear from NOAA at all during the publishing
of this prior to, during, or after the publishing of this rule
that we are discussing today.
Mr. Westerman. All right. Ms. Coit, you talked about using
Inflation Reduction Act funds to hire more people. Can you
explain how in the world using taxpayer money to hire more
people from an administrative agency that is proposing
unreasonable restrictions on economic growth will help reduce
inflation? How do you justify that?
Ms. Coit. Thank you for that question. Some of the things
that we are talking about in regard to our responsibility to
conserve biodiversity, which you talked about eloquently in
your opening remarks, and the acceleration of new technologies,
those are things that we need expertise to work on. So, I
think, in terms of accomplishing our mission, we need the
people and the experts to do that work.
Mr. Westerman. So, spending more money on the
Administration attacking the private sector is going to somehow
reduce inflation would be your justification for using IRA
dollars?
Ms. Coit. We are looking to use IRA dollars on the top-
priority issues under NOAA's authority.
Mr. Westerman. I yield back.
Mr. Bentz. Thank you. The Chair recognizes Mr. Webster for
5 minutes.
Mr. Webster. Thank you, Mr. Chairman.
Mr. Diamond, I think you mentioned in your testimony that,
I believe it was over a 15-year period, there was one right
whale that was killed. Is that true?
Mr. Diamond. I believe that statistic may have come from
Mr. Hugelmeyer. But from what our written testimony was, we
made the point that within the navigation channels on the East
Coast, NOAA's data show there has never been a ship strike in
these federally improved navigation channels, zero.
Mr. Webster. So, what is the size boat you are talking
about?
Mr. Diamond. Well, we have had issue with this rule in two
perspectives.
One, by lowering the application of the rule from 65 feet
to 35 feet, it is going to capture all of the offshore pilot
boats on the entire East Coast. These are purpose-built vessels
that are meant for high speed to shuttle pilots 20 or 25 miles
offshore to get aboard a commercial ship to bring it in. So, it
is not feasible to do those operations. It is unsafe to do
those operations at less than 10 knots. It is also unsafe to go
that far offshore in the winter months on vessels smaller than
35 feet.
But this rule also impacts the navigation safety of large
commercial cargo ships coming into and out of port. So, we are
concerned for two reasons: it impacts the pilot boats and
endangers pilots and crews, but it also impacts the navigation
safety of large commercial vessels coming in and out of port.
Mr. Webster. Is that because they are going too slow?
Mr. Diamond. Yes, sir. These improved channels were
designed and built by the Army Corps of Engineers for a certain
size of ship. The ships transiting these channels now are far
bigger than the channels intended. So, the only way to keep
these large ships in the channels, especially at the times of
the year when the winds and currents are perpendicular to the
channel, the only way to keep the ship into port is to have
what is called a crab angle, increased speed, so you are
actually moving through the water like this, not like this.
That takes speed and water over the rudder. And the only way to
have adequate control of the vessel in heavy conditions like we
are talking about is to increase speed. Ten knots is not safe
in many, many conditions for a large commercial vessel.
Mr. Webster. OK. Are you familiar with the manatee?
Mr. Diamond. Yes, sir.
Mr. Webster. So, one of the solutions for saving the
manatee is some sort of propeller protection. Is that available
for these ships that you are talking about?
Mr. Diamond. Well, certainly for pilot boats. The smaller
boats that are used, there are certainly encasings around the
propellers that can help. A number of pilot boats on the East
Coast are moving to jet boats, where there are no propellers at
all. So, yes, for the pilot boats, absolutely. There is
technology, and the technology is being used.
Mr. Webster. So, your concern is for the smaller boat, and
yet the larger boats are endangered because of the speed
limits. Is that correct?
Mr. Diamond. Yes, sir. We have a twofold concern.
Mr. Webster. Is it a safety concern for both sizes?
Mr. Diamond. Yes.
Mr. Webster. And both is a maneuverability concern?
Mr. Diamond. Yes. So, in order to transfer a pilot from the
pilot boat to the ship, the ship is moving, and generally has
to move fast enough to ensure the ship is stable. And then the
pilot boat goes alongside the moving ship, again, at speeds
carefully calculated to make sure that the transfer is done
safely. You can't do it stopped. The ships are moving like
this; you just can't do it. So, you have to maintain an
adequate speed to get next to the ship, have a stable platform,
and then the pilot boards the ship by climbing up a rope
ladder. That is the only way to do this. And as I said, eight
pilots have been killed in the transfer process since 2006.
This is a dangerous operation.
And I am certainly not implying that NOAA has done this on
purpose, I am not. But the unintended consequences of what they
are proposing will make an already dangerous operation more
dangerous.
Mr. Webster. Thank you very much. I yield back.
Mr. Bentz. Thank you. The Chair recognizes Ms. Hageman for
5 minutes.
Ms. Hageman. Thank you, Mr. Chairman. I am grateful to be
here today, and I want to thank each of the witnesses for their
willingness to come to Washington to testify.
The Biden administration has initiated an unprecedented
attack on outdoor recreation, making it harder for everyday
Americans to recreate on public lands and waters. While the
types of activities we enjoy vary depending upon our geography,
me being from Wyoming, we share the negative consequences of
over-burdensome regulations related to recreation that is being
imposed by this Administration.
And I hate to tell you this, but it is going to be very
difficult to ultimately protect the right whale, and not
because of your industry, but because the Biden administration,
the activist bureaucrats at the NOAA, and the so-called
scientists refuse to acknowledge perhaps the most significant
threat to the species at issue: the construction and operation
of the multiple wind energy projects in the Atlantic Ocean. And
their obsession with global warming will ultimately make it
impossible to protect the right whale and other species because
they refuse to acknowledge that their cure is not only
wrongheaded, but so environmentally destructive.
The fact is that they don't care about the right whale, or
the millions of birds that are being killed, or the poor little
children mining cobalt in the Congo. They care about destroying
disfavored industries and furthering a radical agenda that
threatens important food and other industries. Now, we are
seeing an attack on thousands of recreational vehicle owners.
And with more than 63,000 registered recreational saltwater
vessels measuring 35 to 65 feet in states across the proposed
impacted area, this proposed rule has the potential to impact
more than 340,000 American jobs and the destruction of nearly
$84 billion in economic contributions.
I particularly appreciated the testimony of Captain Fred
Gamboa, who said, ``I am not an outsider speculating on how the
proposed rule may impact charter boat operations like mine and
many others up and down the coast. I know how to operate my
business and what my customers want from a trip on one of my
boats.'' The bureaucrats in Washington either don't know what
Mr. Gamboa knows, or they simply don't care about the facts,
and neither answer is acceptable.
Captain Gamboa, can you describe for us the ripple effects
in your coastal community's economy if charter captains have to
start canceling fishing trips?
And what I mean by that is that I would assume that there
are going to be many other businesses that are affected because
of this rule. Am I correct?
Mr. Gamboa. Yes. Well, my community of Point Pleasant, New
Jersey, it starts from the restaurants, tourism, the town
itself, which relies on all the boats. I mean, I have a tour
set up this week with some people that want to come and see me
and spend the day in my shoes--from the marina operators, fuel,
oh, my goodness, it just----
Ms. Hageman. It is just going to devastate the economy, in
other words, if this rule were to go into effect.
Mr. Gamboa. Absolutely.
Ms. Hageman. But what is interesting is I am curious to
understand a little bit more about the analysis that NOAA used
to estimate the economic impacts that could result from the
proposed rule. NOAA estimates that boats like yours would still
conduct business under a 10-knot speed limit that includes
waters from the beaches out 90 miles for up to 7 months of the
year. NOAA assumes your boats would still sail, but would just
have to go slower, and NOAA also estimates that the increased
time on the water results in only a $3,000 impact per vessel
per year. That number seems a bit off, compared to what you
have described in your testimony.
Can you explain how the NOAA analysis is flawed, and why
your boats that are over 35 feet could not be used to run
charters with a 10-knot vessel speed restriction in place?
Mr. Gamboa. One particular trip that we offer is a trip out
for tuna, which is anywhere from 70 to 100 miles. It would take
us 8 hours to get there. No customer would ever pay the money.
The trip would be canceled.
Ms. Hageman. I imagine that you occasionally experience
weather that is not very calm, perhaps with winds that create
sizable waves. What would happen if you had to stay below 10
knots in unfavorable weather conditions?
Mr. Gamboa. We have been in situations when we are out 70,
80 miles, and the wind comes up out of the east. It just
happens. And if we don't get out of there in time, those 1- to
2-foot seas become 9- to 10-foot seas within an hour.
Ms. Hageman. Did anyone from NOAA contact you personally
about the potential impact of this proposed rule on your
business?
Mr. Gamboa. No, ma'am.
Ms. Hageman. OK. I yield back. Thank you.
Mr. Bentz. Thank you. The Chair recognizes Mrs. Luna for 5
minutes.
Mrs. Luna. According to NOAA, between 2017 and 2023 there
were about 98 documented dead, serious, or sub-lethal injuries
or illnesses that impacted the North American right whale. But
this means about 70 percent of those documented deaths, serious
injuries, or sub-lethal injuries or illnesses have impacted
that whale. This proposed rule, though, will impact an
estimated 63,000 registered saltwater boaters, 340,000 American
jobs, and nearly $84 billion in economic contributions.
And like all Americans, I think that we believe in
protecting endangered species and wildlife. However, when you
are looking at the impacts that it is going to have on human
beings--which I am sure every single person here would agree
that a human being is obviously more important than an animal--
I think that it is kind of an elitist perspective to propose a
rule that is going to actually hurt people and, I believe in
some cases, keep people in poverty.
If the Biden administration was so concerned about marine
life, and some great points that were brought up by my
colleague to the right of me, I believe that they would be
working on studying the impact of windmills on whales, which
our own Chairman, Chairman Westerman, has so graciously asked
for a study to be conducted on, because we are seeing that in
areas like off the coast of New Jersey, many whales are washing
up dead, and they have no reasoning why this is happening. And
we have a hunch that it is because of those windmills.
My question is for you, Ms. Coit. I have heard that
stakeholders presented the idea of having a whale vessel safety
task force, but NOAA was unwilling to engage with them. Why is
that?
Ms. Coit. Thank you for your question. Actually, Jon Hare,
who is the head of our Northeast Fisheries Science Center, is
going to be engaging with that task force. And Frank and I made
sure he was connected to that a few weeks ago.
Mrs. Luna. Is that something new?
Ms. Coit. We will be participating.
Mrs. Luna. OK. So, you guys are going to be doing that now.
Because I know that, if you guys are proposing rules and it is
impacting people, and then you don't want to meet with them or
hear their ideas, it kind of makes you guys look bad.
What information did NOAA rely on for the determination of
placing this restriction on vessels between 35 and 65 feet?
Ms. Coit. Thank you for the question. It was based on
science and information that we had about vessels less than 65
feet striking and killing right whales and other whales. So, we
have several instances just in the last few years of vessels of
that size going at speeds greater than 10 knots striking and
killing right whales, one off the coast of Saint Augustine,
Florida that killed a calf, and then the----
Mrs. Luna. OK. So, just based on some of the data that you
are receiving?
Ms. Coit. Based on the data----
Mrs. Luna. Per an off-record conversation with the Coast
Guard, they annotated that you guys did not speak with them
before dropping the proposed rule. And this would expand the
mission and requirement of the U.S. Coast Guard. Why is it that
NOAA did not consult the Coast Guard before proposing this?
Ms. Coit. Thank you for the question. We are in touch with
the Coast Guard regularly, and work closely with them on
enforcement issues. And I can't speak to the conversations we
had specific to the rule. I can tell you that we interact with
them on a daily basis.
Mrs. Luna. OK, I am just letting you know what they told
us. And the reason I bring that up is because, obviously, you
know that we had a huge issue with drug interdiction off the
coast and bad people trying to bring bad things into the
country. When you guys are proposing that speed limit, I mean,
I am sure the cartels don't really care about your 35-whatever
requirement, speed limit. That is why I asked that question.
Mr. Gamboa, my next question is for you. What months do you
consider prime boating months?
Mr. Gamboa. May through December.
Mrs. Luna. If this rule takes effect, what economic impacts
would it have on your business?
Mr. Gamboa. Oh, I will lose over 70 trips. That is a third
of my business.
Mrs. Luna. Would that put you in a position of struggle?
Mr. Gamboa. Selling the boats. They would have to go.
Mrs. Luna. Did NOAA engage with you in a conversation about
how the fishing industry and agency would work together to
conserve the right whale prior to publishing this proposed
rule?
Mr. Gamboa. No.
Mrs. Luna. Do you think that that is fair, for a government
agency to tell you, a private individual, what to do?
Mr. Gamboa. Absolutely not.
Mrs. Luna. OK. I am just going to sit here and speak for
all the fishing community that I have back home. It is pretty
messed up to have a Federal agency come in and then tell people
how to run their businesses without talking to them first. But
it is even more messed up when you realize that it is very
possible that this rule could put people on the streets, and we
are already seeing record-high inflation right now.
So, Chairman, I yield my time.
Mr. Bentz. Thank you. The Chair recognizes Mr. Collins for
5 minutes.
Mr. Collins. Thank you, Mr. Chairman.
Ms. Coit, when was the North Atlantic right whale placed on
the endangered species list?
Ms. Coit. The North Atlantic right whale has been on the
list since the Endangered Species Act was enacted in 1973.
Mr. Collins. 1973?
Ms. Coit. It was put on a list in 1970 of endangered
species prior to the enactment of ESA.
Mr. Collins. And just in my investigating, looking at the
population, it has pretty much remained constant, since you all
have been doing some good reporting since the 1980s, somewhere
between that 300 to 450 range, give or take 50, right now.
So, when you look at this, it is either going to be
something that is either internal forces or external forces
that are keeping the population from growing, because we know
it has been pretty much consistent, according to the data that
you all are putting out.
Do you know what the calving cycles are for the right
whale?
Ms. Coit. Excuse me, did you say the calving cycles?
Mr. Collins. Yes.
Ms. Coit. Yes. So, first, if you will, the population was
growing, and was on its way up, up to 450 individuals, up
until----
Mr. Collins. Well, we are getting to that. What is the
calving cycle?
Ms. Coit. So, the calving cycle is--because of poor
conditions, it is actually being extended----
Mr. Collins The calving cycles used to be between 5 and 7
years for one calf. Now it is up to 7 to 9 years. You might as
well say 8. So, they are having less calves per female,
according to all the documentation that I keep reading from
NOAA and from some of the other people that are out there.
Ms. Coit. That is correct.
Mr. Collins So, we can say that that is internal, for the
calving cycles to be going down, and them having less calves
per female over the life span of the female.
Now, according to other data, we have had 15 whales that
have been killed in 18 years. And according to Dr. Redfern, 4
of them came from 35- to 65-foot boats. And, also, according to
what I have been able to tell, according to what Dr. Redfern
has reported, that you all know how deep these whales actually
stay or hang out at, for a lack of better words, through the
tagging.
So, the strike zone on these right whales are 10 meters, is
that correct? Is that what we have been saying, Ms. Coit?
Ms. Coit. I am sorry. The females and the calves spend a
lot of time on the surface, and----
Mr. Collins. Well, first of all, you don't even count a
calf as a population until they are over a year old.
Ms. Coit. Correct.
Mr. Collins. And as my colleague, Mr. Wittman, said, you
all aren't even counting the shark strikes on that, because you
don't count the calves. So, it is really a goofy type of
population count that you have there, but that is OK.
The average right whale strike zone, according to NOAA, is
10 meters.
[Pause.]
Mr. Collins. This is your data.
Ms. Coit. I didn't know if it was a question. Yes.
Mr. Collins. I have already had this conversation with the
Administrator, so now I am going to have it with you. It is 10
meters.
And your area that you have this 10-knot rule in is
basically around the Boston area, if I am right, just up in
that little northeastern area, right in that little corridor. I
had some charts, but I didn't bring them out.
Gosh, my time is going down fast. I am from the south, talk
real slow.
[Laughter.]
Mr. Collins. How many registered boats do we have 35- to
65-foot? How many registered boats?
[No response.]
Mr. Collins. You should know this.
Ms. Coit. Yes.
Mr. Collins. You are impacting them.
Ms. Coit. I would have to get back to you with that number.
I don't have it in front of me.
Mr. Collins. There are 63,000 boats. Now, if we have had 15
killed in 18 years, 4 of them came from 35- to 65-foot boats,
ma'am, that is over 1 in 1 million odds that you are going to
hit this whale. Would you agree?
I mean, you can sit there and that is common sense,
correct?
So, now you are going to expand the area from right up
there in that little northeast area all the way down the
eastern coast, and as far out as 100 miles. I don't even know
how we get to saying that this is anywhere near common sense.
I mean, Mr. Gamboa, I have to apologize to you. This is
what we fight every week up here, every week. It is just
another example, glaring example, of government over-reach. And
this time it is really absurd. I mean, let me put it to you in
a different--I am sorry, I have to go over, but this
Administration has been so hung up on teaching sex education,
maybe you should focus on teaching sex education to the right
whale, get them back on their calving cycles that they need to.
Ms. Coit, your agency has two options.
Mr. Bentz. The gentleman's time has expired.
Mr. Rutherford, you are recognized for 5 minutes.
Mr. Rutherford. Thank you, Mr. Chairman.
Ms. Redfern, you conducted this assessment that the rules
are based on, correct?
Dr. Redfern. No, I did not. I have just reviewed it
carefully, because we have done some of our own vessel strike
risk modeling on the East Coast.
Mr. Rutherford. So, Ms. Coit, who actually conducted the
assessment that made the recommendations that we needed to
increase enforcement, modify safety deviation, expand the speed
restrictions to small vessels, and change the deviation
provision to only include less than 65-foot vessels in gale
force winds? Who developed that?
Ms. Coit. Thank you for the question. The lead author on
that was a scientist who works for NOAA Fisheries, and it was
developed with a team of people looking at the best available
science.
Mr. Rutherford. OK. Are these the same people that said in
the regulatory impact, and that came out of the regulatory
impact review, or no?
Ms. Coit. No. The assessment came first, and was released
in January 2021, and the regulatory impact review was released
as part of the proposed rule----
Mr. Rutherford. OK. It was based on the rule that you
anticipate deploying.
Ms. Coit. The regulatory impact review was issued with the
proposed rule and the draft economic impact analysis.
Mr. Rutherford. Right. So, the idea that we don't need to
be talking about this now because it is not even a rule yet is,
I hate to say it, but I think it is ridiculous. This is exactly
the time we need to be talking about these things, because I
think some huge mistakes have been made in the study of the
issue.
For example, it was just mentioned that the regulatory
impact review said 9,200 recreational vehicles would be
impacted out of 15,899 total vessels that were going to be
impacted. But we know there are 63,000, as you just heard from
Mr. Collins, 63,000. So, the math is bad. And NOAA always seems
to get the math bad, but move forward and charge forward
anyway. I don't understand it.
So, in the study, apparently, nobody looked at draft. How
low does the ship sit in the water? I mean, we have heard that
10 meters is where the strikes are occurring. So, I would like
to ask Ms. Redfern.
My understanding is there have been four strikes by vessels
less than 65 feet in the last 8 years, something like that.
Dr. Redfern. Since the 2008 rule was implemented, and two
since 2020.
Mr. Rutherford. OK. Can you tell me the length of those
four vessels and the draft of those four vessels?
Dr. Redfern. I can tell you the length. Would you like me
to tell you----
Mr. Rutherford. The length doesn't matter. It is how deep
it is sitting in the water. That is what is going to matter.
You all aren't even looking at draft.
Dr. Redfern. The model used to develop where risk is
highest, to predict where the risk is going to be the highest,
what is important about understanding that is NOAA used that
model to get the prediction. It does take into account drafts
of vessels based on AIS data and the type of ship. Then they
cross-validated those predictions using other information about
where right whales occur that weren't included in the model to
cross-check that they had gotten their area right. And that is
how you can overcome any potential issues with parameters in
the models, because you are using other data to support it.
Mr. Rutherford. Well, but when you start off with the wrong
numbers to begin with, it is garbage in, garbage out.
Let me move on. So, the conversations that we are having
now about what really is important in trying to determine how
we can best protect the right whale, Ms. Coit, going back to
you, can you tell me the conversations that you had with the
industry, with the boating public about this?
My understanding is there was no conversation before the
assessment and the impact review came out. Is that true?
Ms. Coit. There were conversations after the assessment
came out, and----
Mr. Rutherford. Yes, afterwards. I would have thought you
would want their input so that they could help you come up with
better findings that are really based on the evidence.
With that, I see, Mr. Chairman, my time is expired, and I
yield back.
Mr. Bentz. Thank you. The Chair recognizes Ms. Hoyle for 5
minutes.
Ms. Hoyle. Thank you, Mr. Chair. I yield my time to Mr.
Huffman.
Mr. Huffman. I thank the gentlelady.
Deputy Administrator Coit, I just wanted to give you a
chance to expand on any of the answers where maybe you were cut
off, or didn't have a complete chance to finish your sentence.
That happens a lot in these hearings.
Ms. Coit. Thank you for that opportunity. I just wanted to
be clear for the record that the current rule includes seasonal
speed restrictions in the southeast, for example, where there
are the important calving grounds now. So, I just wanted to
correct that.
And the proposed rule, of course, is suggesting an
expansion in some areas, not off the coast of much of the
southeast, but an expansion in the northeast, but is not in
place during the summer months, when a lot of the recreational
boating occurs. So, I just wanted to make sure, because it
didn't seem to come through----
Mr. Huffman. And why is that? Why would you tailor the rule
to those time periods?
Ms. Coit. Because of where the whales are.
Mr. Huffman. Right.
Ms. Coit. The calving grounds and the calving season in the
late fall is critical. Everyone has talked about the importance
of reproductive females. There are only an estimated 70 left,
and they are critical if we are going to stabilize this
population and increase this population.
So, the rule starts with the restricted areas in the late
fall, where the calving areas are, and then those are in place
for 5 months in largely the same area that they are in now, off
the coast of the southeast. And then, as the whales migrate
north, the rule covers where we have confirmed whale sightings.
In the Mid-Atlantic, for instance, it is not in place now.
And even the proposal wouldn't extend beyond May. And the
whales are now going north into Canadian waters. And we are
working closely with Canada, who also has vessel speed
restriction, and is taking other measures. And that is an
important part of our strategy.
Mr. Huffman. And that is because you want to minimize the
impact to boating, right?
Ms. Coit. Correct. We tried to tailor this to minimize the
economic impacts while reducing the threat to whales.
Mr. Huffman. Dr. Redfern, same thing. Did you want to
expand on anything that you didn't get a chance to, previously?
Dr. Redfern. Yes, I thought the question about natural
mortality was really important. The point there is, if natural
mortality is occurring, we have to stop the human-caused
mortality to prevent the extinction of the species. And that
is----
Mr. Huffman. Natural mortality kind of occurs in nature.
Dr. Redfern. Exactly. So, we need to control what we have
the power over, which is human-caused mortality, which is what
the proposed rule--it is about reducing vessel strike risk.
Mr. Huffman. All right. Anything else that you didn't get a
chance to fully articulate?
Dr. Redfern. I think I appreciated what Janet said about
going on the record. And I want to go on record that the
proposed changes were based on the best available science, not
just the model, but looking at where previous strikes of whales
have occurred, and making sure those areas are now protected.
That is what the expanded seasonal speed zones do.
We know we need to make speed rules mandatory. I think that
was another question that was asked earlier. Over a decade of
research shows low cooperation with voluntary measures. So, I
think that these proposed changes are critically important, as
well as extending to smaller vessels, because we know that they
have hit whales, and as recently as since 2020.
Mr. Huffman. All right, I appreciate it. I want to really
associate myself with the comments that Mr. Magaziner made
earlier. This is not an easy assignment to do this rulemaking.
I think there has been some over-simplification of what this is
all about, a little bit of gratuitous attacks on the scientists
and officials at NOAA that are trying to do this, and a
complete lack of recognition that you are in the middle of a
pending proceeding and we haven't seen your final product yet.
So, many of the things that have been stated today,
presumably, will be taken into account when the final rule is
issued, and I think we should give NOAA the opportunity to do
its job. And then if folks want to pounce all over this rule
and accuse it of shutting down all boating up and down the East
Coast, I suppose we can have that conversation then. But I want
to see what they produce.
And I also want to keep in mind the context for this
conversation. The science is telling us that vessel strikes, if
we don't do something about them, are going to cause this whale
to go functionally extinct in just a few years, on our watch.
The law requires NOAA then to do something about this issue. We
can't just offer thoughts and prayers, and act like we care
about whales, and are discharging our duty under the Marine
Mammal Protection Act and the ESA. The law requires something.
And I think we ought to give NOAA a chance to come up with the
most thoughtful, but effective rulemaking that they possibly
can.
With that, I yield back.
Mr. Bentz. Thank you. The Chair recognizes Mr. Carter for 5
minutes.
Mr. Carter. Thank you, Mr. Chairman, and thank you for
allowing me to waive on to this Committee.
I don't have the pleasure of serving on this Committee, but
I do represent the entire coast of Georgia, over 100 miles of
pristine coastline. It is my home. It is where I have lived all
my life, where I intend to live the rest of my life. I care
deeply about the coast of Georgia. I care deeply about our
economy.
And we have two major seaports, the Port of Savannah, the
No. 3 container port in the country, the Port of Brunswick, the
No. 2 roll-on/roll-off port in the country. And that is why I
am here today, is because these proposed rules are going to
have a big impact on those ports.
They are also going to have a big impact on our blue
economy--that is, our fishing. I mean, aside from the fact that
we only get 2 days a year to fish for red snapper, we do fish a
lot down there, and we enjoy it, and it brings a lot to our
economy. And that is why this is so very important to us. It is
one of the reasons why we have a thriving economy down here.
But I am really worried. I am very worried about the speed
restrictions that are imposed by NOAA's rule that would shut
down all these thriving communities and kill our blue economy
all up and down the coast, not just in the Savannah area, but
also in the 100 miles of the coastline there.
And, look, we all want to protect the right whale. The
right whale is the state mammal of Georgia. We love the right
whale. We want to protect it. We don't want to see it become
extinct. But we have only had six lethal strikes off the coast
of Georgia since 1999. Do we need policies? Yes, we need
policies, there is no question about that. But we need smart
policies that are going to work, and that aren't going to
destroy our economy.
And that is what we want to do. We want this. And we are in
bipartisan agreement. I don't think there is anyone on the
other side of the aisle who wants to hurt our ports or our
economy, and I don't think there is anyone on my side of the
aisle who wants to see the right whales go extinct. So, there
has to be a sweet spot there. There has to be somewhere where
we can find some kind of common ground, if you will.
One area that I am concerned about is our harbor pilots.
And I know we have some from my district here today, and they
have to be considered in crafting this rule. And I know, Deputy
Administrator Coit, you and I have talked, and I appreciate
your engagement, and I appreciate your input. But I am very
concerned about our harbor pilots, and their safety, and the
ports' overall operation. You stop the ports, and we have major
economic problems in my area, not just for the Savannah area,
not just for the coast, but the whole southeast United States.
It is the economic engine of the southeast United States.
I want to ask you, Mr. Diamond, you mentioned that NOAA is
attempting to overtly introduce criminal sanctions to the North
Atlantic right whale speed regulations. Can you elaborate
somewhat on that?
Mr. Diamond. Thank you, Mr. Carter. Yes, this is a big
concern that we have.
In the proposed regulation, NOAA chose to very clearly
state that there are potential criminal sanctions, including
prison, to violate the speed limit, attempt to violate the
speed limit, solicit another to violate the speed limit, or
cause the speed limit to be violated.
And why we are so concerned about that is pilots have to be
free to use their judgment, split-second judgment, in
maneuvering, as you point out, massive container ships. And
limiting a pilot's flexibility right at the time that they need
it most is really unsafe. And this language really will cause
pilots, at the most critical point in the navigation of the
vessel, to be second-guessing themselves with this kind of aura
of criminality hanging over their head, and they may be
hesitant to make a decision.
And it is unfair and it is unnecessary to criminalize what
is, at its heart, a prudent navigation safety----
Mr. Carter. I had the opportunity to ride on one of the
harbor pilot boats before. And I am telling you, talk about
stressful.
We just finished the deepening of the Savannah Harbor
Expansion Project. We went from 42 feet to 47 feet depth in
order to accommodate the post-Panamax ships, the bigger ships.
Those ships that are coming through now are enormous. And the
pressure that is on those harbor pilots, in the back of their
mind they are going to be thinking about criminal prosecution
if they do something wrong, or if they exceed a speed limit.
You can't do that.
Anyway, Mr. Chairman, again, I appreciate you letting me
waive on to this Committee. This is important. Just because you
are not on Natural Resources doesn't mean that you are not
interested in it. We are interested in it very much so in
Georgia and on the coast of Georgia. So, please keep that in
mind.
Thank you all. I appreciate it, Mr. Chairman, and I yield
back.
Mr. Bentz. Thank you. The Chair recognizes himself for 5
minutes.
Ms. Coit, it is a bit of a surprise to see the huge
difference between the amount of economic impact estimated by
your agency on the one hand of this rule, and that which we
have been hearing. I think, as I understand it to be, around
$40-$50 million, do I have that right?
Ms. Coit. Thank you, Mr. Chair. Yes, the draft economic
impact analysis is at $46 million, approximately.
Mr. Bentz. Right. And what we have been hearing today is
something closer to $84 billion, that is billion, with a B.
The reason I bring this up is because I am from Oregon, and
I watched the spotted owl situation. The owl had nothing to do
with it, other than being the tool that was used to take
everyone out of the millions of acres of woods on the West
Coast, about 90 million acres, to be exact. And Oregon has
never recovered. And the challenge is now for those small
towns, whether it is drug addiction, or whether it is suicide,
or whether it is other things that happened once those jobs
were removed, have an enormous, enormous cost.
And I am thinking now that we know that the reduction in
population was the barred owl, we kind of want to get these
things right. And to see this huge difference suggest $84
billion on the one hand versus $40-some-odd million on the
other seems to reflect a miscalculation that we simply can't
allow to happen.
I want to mention also in the middle of my little state is
a situation that involves a spotted frog. It has been estimated
that the cost of recovering the spotted frog is $2.8 billion.
And that is not necessarily the economic impact. So, the
challenge here is to call out exactly what the cost of these
activities is.
And I would hope that in the revised rule that we would see
something more inclusive of the type of challenges that Mr.
Gamboa has been talking about, because I understand them
absolutely clearly looking back into Oregon, and looking at the
huge, even today, amount of damage that folks are still trying
unsuccessfully to recover from. So, this is certainly something
we want to try to get right, and I am glad you are working at
it.
That brings me to the amount of money that you are taking
from the Inflation Reduction Act, so-called, to try to figure
out an electronic means perhaps of addressing this issue. Can
you share with us how you reach the number that you have come
up with, and what chances you think of success actually are out
there somewhere in the, I hope, near future?
Ms. Coit. Thank you, Mr. Chairman, and I really appreciate
you sharing your perspectives on these issues.
The funding in the Inflation Reduction Act, we had a lot of
competing priorities, but we had fortunately already been
looking at how much money we needed to expand the passive
acoustic monitoring system and other monitoring for right
whales. It is something that we had already taken a look at and
assessed, so we were able to direct funding to that effort
based on an assessment that we had already been doing because
we knew it was such a priority, and we were looking for funding
and, frankly, talking to House and Senate appropriators about
what we would need for that.
Mr. Bentz. The question is, is it enough to get this
situation resolved, or is it just throwing money at the problem
and then coming back and asking for more later?
Ms. Coit. I think, as with all of these issues, it is not
just the Federal Government alone. So, it will be partnerships
with industry, partnerships with other Federal agencies like
NASA and the Navy that are already working on this type of
technology that will be required, not just our funding and our
effort. And we look forward to that collaboration.
Mr. Bentz. I suppose the proper question would be how many
other actions proposed by the agency are going to possibly cost
$84 billion, and I would think that there is warranted an
investment, certainly, of the amount that you are suggesting.
So, I am happy you are doing it, and I hope for a quick and
speedy outcome.
I want to thank the witnesses for their valuable testimony
today, and the Members for their questions.
The members of the Committee may have some additional
questions for the witnesses, and we will ask you to respond to
these in writing. Under Committee Rule 3, members of the
Committee must submit questions to the Subcommittee Clerk by 1
p.m. Eastern Time on Friday, June 9. The hearing record will be
held open for 10 business days for these responses.
I ask unanimous consent that the testimony from the
Congressional Sportsmen's Foundation expressing concerns and
opposition to the proposed changes be entered into the hearing
record.
Without objection, so ordered.
If there is no further business, without objection, this
Subcommittee stands adjourned.

[Whereupon, at 12:16 p.m., the Subcommittee was adjourned.]

[ADDITIONAL MATERIALS SUBMITTED FOR THE RECORD]

Submissions for the Record by Rep. Bentz

Congressional Sportsmen's Foundation

June 5, 2023

Hon. Cliff Bentz, Chairman
Hon. Jared Huffman, Ranking Member
House Committee on Natural Resources
Subcommittee on Water, Wildlife and Fisheries
1324 Longworth House Office Building
Washington, DC 20515

Dear Chair Bentz and Ranking Member Huffman:

In advance of the Subcommittee's June 6, 2023, oversight hearing on
``Examining the impacts of the National Oceanic and Atmospheric
Administration's proposed changes to the North Atlantic Right Whale
Vessel Strike Reduction Rule'', the Congressional Sportsmen's
Foundation (CSF) would like to offer the following written testimony
for the record. While we fully support meaningful efforts to conserve
whales and other marine species, we would like to express our strong
concerns and opposition to the proposed changes to the North Atlantic
right whale vessel speed regulations as published in the Federal
Register on August 1, 2022 (Docket No. 220722-0162). Specifically, we
were disappointed by the National Marine Fisheries Service's (NMFS)
lack of engagement with the angling and boating community in the
development of the proposed rule, the egregious assumptions made in the
vessel strike risk modeling regarding vessels 35-65 feet in length, and
the rule's focus on a draconian regulation that avoids meaningful
mitigation measures while causing significant and unnecessary harm to
angling and boating access and coastal economies along the Atlantic
seaboard.
The proposed North Atlantic right whale vessel strike reduction
rule would amend current vessel speed regulations in the Atlantic by
requiring boats 35 feet and longer to travel at no more than 10 knots,
from the shoreline to as far as 90 miles offshore, for up to 7 months
of the year. The new proposed slow speed zone stretches from
Massachusetts to Florida, as opposed to discreate speed reduction areas
currently in effect for vessels 65 feet and larger.
The recreational marine industry accounts for $203 billion in
national economic contributions, supporting over 800,000 U.S. jobs and
36,000 businesses. In Atlantic coastal states alone, recreational
boating and fishing is a crucial economic driver, supporting 340,000
American jobs and nearly $84 billion in economic activity. Recreational
fishing is an important cultural pastime across the United States,
including along the Atlantic Coast. In fact, according to a query of
the Marine Recreational Information Program (MRIP), Atlantic states
anglers took nearly 6.4 million trips in federal waters in 2022. It is
difficult to understand how representatives and stakeholders of this
important component of the American economy and culture were not
consulted or given an opportunity to be part of meaningful solutions to
the conservation challenges facing North Atlantic right whales, but
instead are facing a devastating rule created in a vacuum that will
have far reaching negative implications for recreational access and
coastal economies.
The vessel strike risk assessment modeling used to justify the
proposed rule relied on several inaccurate assumptions. For instance,
the NMFS Technical Memorandum (TM) noted that ``. . . the high
densities predicted along the mid-Atlantic may not be realistic.'' The
admittedly high whale density bias likely produced model outcomes that
are inconsistent with actual risk. However, this assumption ultimately
led to the drastically expanded seasonal management zones in the
proposed rule.
Another example of an erroneous assumption used in the risk
assessment model centers on vessel draft depth. The model assumed a
draft depth of 10 meters for all vessels, which is 32.8 feet or 394
inches. Yet, a 35-feet center console fishing boat typically drafts
only 36 inches with engines down, or 9.1% of the assumed draft depth.
Essentially, a 90% reduction in the modeled probability of a 35-feet
center console striking a North Atlantic right whale could be achieved
simply by correcting the model to reflect realistic draft depths.
Furthermore, NMFS failed to consider safety at sea for vessels
under 65 feet, and particularly center consoles and those powered by
outboards, which are designed to run on a level plane at higher speeds
with less hull in the water column. Operating at 10 knots or less is
below planning speed, forcing the bow to ride high, blocking visibility
for the operator and potentially leading to collisions with hazards in
the water, including North Atlantic right whales or other vessels. In
addition, the proposed rule would take away a primary safety feature of
recreational boats 35 feet and larger, which often must use speed to
avoid weather events such as thunderstorms where a vessel could return
to port or avoid a line of thunderstorms. Finally, the safety deviation
provision only in the case of a gale-force wind advisory by the
National Weather Service is a clear indication that the authors of the
rule are not familiar with the vessels they intend to regulate. By the
time a gale-force wind advisory (39-46 mph) is issued, the sea
conditions, in almost all circumstances, will have deteriorated to a
point that most vessels in the 35-64 feet class caught at sea will
unlikely be able to achieve planning speed and return to safe harbor in
a reasonable amount of time.
While significant questions remain as to the validity of the
modeling exercises used to arrive at the proposed rule, ultimately the
overly precautionary expansion of the seasonal management zones will do
little for whale conservation. Based on the number of suspected North
Atlantic right whale strikes by boats 35-64 feet in length over the
last 15 years, versus the number of fishing vessel trips taken during
that same time, there is less than 1 in 1,000,000 chance of
recreational fishing boats in this category fatally striking a whale
under existing regulations.
Instead, NMFS should work with the fishing and boating community on
technologically based solutions that involve real-time monitoring and
vessel notifications as to the presence of whales before implementing
changes to current regulations. In fact, Congress has already
authorized such a solution in the James M. Inhofe National Defense
Authorization Act (NDAA) for Fiscal Year 2023 (Public Law 117-263) by
directing NMFS to implement a pilot program involving real-time
monitoring of whales, and following implementation of the pilot
program, to provide a report on how the program was used to, ``. . .
direct sector-specific mitigation measures that avoid and significantly
reduce risk of serious injury and mortality to North Atlantic right
whales.'' Unfortunately, this program received no funding as part of
the NDAA authorization level ($5 million), however, CSF and our
partners are advocating for funding for this program in the upcoming
appropriations bills. CSF maintains that funding this program will
provide real-time data and information on the movement of right whales
to help guide reasonable and calculated conservation efforts that will
not devastate the recreational fishing and boating industry.
CSF stands ready and willing to work with NMFS on real-time
monitoring and vessel notification technologies that provide meaningful
conservation measures to conserve North Atlantic right whales while
maintaining access to our Atlantic fisheries resources and protecting
coastal economies.

Sincerely,

Chris Horton,
Senior Director, Fisheries Policy

______

Statement for the Record
Passenger Vessel Association
Edmund B. Welch
Legislative Director

The Passenger Vessel Association (PVA) is the national trade
association representing owners and operators of U.S.-flagged passenger
vessels of all types, including ferries and commercial whalewatching
vessels. PVA respectfully submits this statement for the record
concerning the proposed revision of the current rule on speed limits
for certain vessels to protect North Atlantic Right Whales. PVA
submitted a comment to the regulatory docket on October 31, 2022; that
comment is attached.

No PVA vessel has ever collided with a right whale.
The existing rule has been successful
More than 15 years ago, NOAA put into effect the current rule
imposing 10-knot speed limits for most vessels of 65 feet or more in
length in designated places and times along the U.S. East Coast.
According to NOAA's own statistics, the rule has proven to be
successful. Vessel strikes of right whales are down considerably,
although they have not been eliminated.
During the 15 years since the inception of the rule, NOAA says that
there have been 10 confirmed or assumed instances of vessel strikes
that resulted in deaths of or serious injuries to a North Atlantic
right whale. See the Draft Environmental Assessment at 9.1 Appendix A
Table 1 (pages 1-2). The table lists 12 whales struck but NOAA's
explanation reveals that in two separate instances, a single vessel
strike killed a mother and young whale in the same incident. Thus, in
the 15-year period, there have been 10 vessel strikes causing death or
serious injury.
Of these 10 vessel strike incidents, four involved a vessel
determined to be of less than 65 feet in length. In other words, the
existing rule did not apply to these four vessels.
Of the remaining six vessel strike incidents, five involved vessels
of unknown length, and only one involved a vessel known to be 65 feet
or more in length (thereby subject to the rule). Thus, no more than
six, and perhaps as few as one, vessel strikes involved a vessel of 65
feet or more in length.
Of these six strikes, it appears likely that three of them took
place in a location and time during which a Seasonal Management Area
was in effect, and three took place in a location and time when neither
a Seasonal Management Area nor a Dynamic Management Area was active.
During the 15-year period of the existing rule, there have been but
three documented or assumed instances of a vessel of 65 feet in length
or more striking a right whale in an active Seasonal Management Area.
There seems to be no indication of a covered vessel striking a right
whale in a declared Dynamic Management Area.
One can draw the reasonable conclusion that the existing rule,
coupled with other protective management measures, education, and
vigilance by mariners, has been highly successful in preventing ship
strikes of right whales. It has targeted the places and seasons that
ship strikes are most likely to occur. It has accomplished this success
without imposing an unreasonable burden on maritime interests or the
general public.
The proposed rule will impose dramatic impacts for diminishing returns
The proposed rule dramatically expands the geographic reach of the
mandatory 10-knot speed limit. Speed zones will be put in place, either
seasonally or temporarily, from Maine to Florida. They will extend from
the coastal shoreline to perhaps 75 miles offshore. They will affect
thousands of vessels not currently covered by the mandatory speed
limits.
Accepting the estimates of the Draft Regulatory Impact Review and
Initial Regulatory Flexibility Analysis, the proposed rule will affect
nearly 16,000 vessels and have an annual economic impact of over $46
million. Not only will the proposed rule directly impact thousands of
additional vessels, it will also indirectly affect many more
individuals. Recreational boaters by the thousands will have to adjust
their behavior. Members of the public who recreate by patronizing the
many small businesses that offer charter fishing opportunities and
whalewatching cruises will likely find their recreational experiences
degraded. The vessel operators engaged in these businesses face the
distinct possibility that their customers, confronted with longer and
more inconvenient voyages, will take their business and dollars
elsewhere. Island communities that depend on reliable and predictable
ferry services could see difficulties imposed on their residents and
visitors alike.
To achieve very incremental progress regarding potential vessel
strikes, the proposed rule imposes sweeping changes on the East Coast
maritime sector and the customers and communities that the vessel
operators serve.
PVA vessel members are moderately affected by the current rule but will
be severely impacted by the proposed rule--especially ferries
serving important Northeastern routes and commercial
whalewatching companies.
The current vessel speed limit rule affects PVA members that
operate vessels of 65 feet or more in length. The PVA vessel operators
now primarily affected have routes in the waters of Cape Cod Bay and in
and around the waters of the Stellwagen Bank National Marine Sanctuary.
Three PVA members provide ferry service across Cape Cod Bay to
Provincetown. Several PVA members offer commercial whalewatching
cruises from various ports in Massachusetts to the waters of the nearby
national marine sanctuary. Since the existing Seasonal Management Area
speed limit in these waters is lifted as of May 15 of each year, the
speed limit is not in effect during the bulk of these operators'
seasons. As for Dynamic Management Areas, very few have been imposed on
routes served by PVA vessel members. PVA members have been able to
adjust their operations to meet the current regulations without too
much adverse economic impact.
In contrast, the proposed rule will more dramatically impact many
more PVA vessel operators. It will make it difficult to provide
reliable and speedy ferry service to locations such as Fire Island,
Martha's Vineyard, Nantucket Island, Block Island, and more. The
extension of the Atlantic Speed Zone to May 30 will more severely
impact PVA members offering ferry service across Cape Cod Bay, as well
as whalewatching vessels transiting this body of water to reach the
Stellwagen Bank National Marine Sanctuary. The establishment of Dynamic
Speed Zones with a mandatory speed limit of 1O knots with a duration of
at least 1O days could affect operators in the Atlantic Speed Zone at
times of the year when the Seasonal Speed Limit is not in effect and
could also affect operators in waters outside that zone (in Maine, for
example). PVA members that operate offshore charter fishing trips from
New Jersey and elsewhere will be affected by the Atlantic Speed Zone
and potentially by Dynamic Speed Zones.
NOAA should undertake a full Environmental Impact Statement
To accompany the proposed rule, NOAA has posted a Draft
Environmental Assessment. That document states that the National Marine
Fisheries Service ``considers this action to be a major federal action
subject to NEPA [the National Environment Policy Act].'' Section 1500.1
of title 40 Code of Federal Regulations reads: ``Purpose and policy.
(a) The National Environmental Policy Act (NEPA) is a procedural
statute intended to ensure Federal agencies consider the environmental
impacts of their actions in the decision-making process . . .. Section
102(2) of NEPA . . . requires Federal agencies to provide a detailed
statement on proposals for major Federal actions significantly
affecting the quality of the human environment.''
Section 1501.6 of title 40 Code of Federal Regulations states that
the purpose of an Environmental Assessment is to enable the federal
agency to decide whether to prepare an Environmental Impact Statement
or to issue a FONSI (Finding of No Significant Impact).
The Draft Environmental Assessment states: ``The purpose of
developing an environmental assessment is to determine if the impacts
of the proposed action are likely to be significant.'' It further says
that the provisions of the proposed rule ``are expected to affect
thousands of mariners along the U.S. East Coast, and thus NMFS
considers this action to be a major federal action subject to NEPA.
Therefore, NMFS is assessing the environmental effects associated with
this proposed action to determine if the impacts of this action are
likely to be significant.''
Prior to issuing the current vessel speed limit rule in 2008, NOAA
prepared and published a full Environmental Impact Statement, preceded
by at least one public hearing. With regard to the proposed amendment
to the existing rule, NOAA has produced only a more limited Draft
Environmental Assessment and has conducted no public hearing, even
though the proposed rule will cover a vastly larger geographic area
along the East Coast from Maine to Florida and even though it will
affect a far larger population of recreational and commercial vessel
operators, as well as the persons and communities that they serve.
At no point in the various documents filed to accompany the
proposed rule is there any discussion of the likely impact that longer-
duration trips will have on ferry passengers or the communities served
by the ferries. Nor is there any examination of how customers of
charter fishing vessels or whalewatching vessels will react to trips of
longer duration or last-minute schedule disruptions because of the
declaration of a Dynamic Speed Zone. These are significant impacts
affecting the quality of the human environment. These are glaring
omissions from the Draft Environmental Assessment. They should be
addressed before NOAA finalizes the proposed rule.
For a proposal of this impact and significance, it is not
acceptable for the agency to figuratively ``throw up its hands'' and
weakly say, ``It is challenging to predict how different marine groups
might respond, adjust, or otherwise modify operations to accommodate
measures in the proposed rule. Further, it is unclear how these
measures may impact vessel passengers or clients. The proposed changes
to the measures may impact vessel passengers or clients. The proposed
changes to the speed rule will impact a wide variety of vessel types
and operators, and we anticipate decisions regarding changes to vessel
operations will vary depending on the unique nature of a vessel's
operations, needs, schedule, flexibility, and cost.'' Under NEPA, it is
the agency's job to analyze these aspects of the proposed rule's
impacts more fully.
Given that the Draft Environmental Assessment has already
characterized the proposed rule as ``a major Federal action subject to
NEPA'' and that the agency prepared a full Environmental Impact
Statement on the current rule, which is more limited in scope and
impact than is the proposed rule, the agency would be hard-pressed to
issue a Finding of No Significant Impact (FONSI).
The Passenger Vessel Association urges NOAA to comply with the
letter and spirit of the National Environmental Policy Act and its
associated regulations by preparing and submitting for public comment a
full Environmental Impact Statement. The EIS should more carefully
analyze impacts on vessel passengers and on communities and islands
served by ferries. Once a Draft Environmental Impact Statement is
prepared, NOAA should convene at least two public hearings in the
Northeast and Southeast.
Commercial whalewatching vessels should be exempted from the speed
limit if they undertake alternative measures to protect whales

PVA includes within its membership 12 companies that operate
commercial whalewatching voyages on the U.S. East Coast. These include
three in Maine, five in Massachusetts, two in New York, and two in New
Jersey. There are other commercial whalewatching operators on the East
Coast that are not members of the Passenger Vessel Association.
All commercial whalewatching companies on the East Coast fall
within the category of a small business as set by the U.S. Small
Business Administration. Nevertheless, they are important economically.
A November study issued by NOAA's Office of Marine Sanctuaries
(entitled ``Whale Watching in Stellwagen Bank National Marine
Sanctuary: Understanding Passengers and their Economic Contributions'')
found that six commercial whalewatching companies reported carrying
more than 347,000 passengers each year to the national marine sanctuary
and adjacent waters. It further stated, ``Whale watching contributes
$182 million in output, $107 million in value added, $76 million in
income, and 1,400 full- and part-time jobs to the local economy.''
Also, NOAA has posted on a website a Socioeconomic Fact Sheet for the
national marine sanctuary that states: ``Virtually all of Massachusetts
whale watching occurs in Stellwagen Bank National Marine Sanctuary, one
of the top-ten premiere whale watching locations in the world, as
identified by USA Today. A study completed in 2000 [note--more than 20
years ago!] estimated that Massachusetts alone accounted for nearly 80
percent of New England whale watching tour totals in passengers and
revenues, generating $24 million per year.
Whalewatching vessel operators differ from all other vessel
operators (commercial and recreational) in one critical aspect--their
business model and reason for existence is to seek out marine mammals
of all species, thereby enabling their passengers to observe and learn
about them. On a commercial whalewatching vessel, not only are the
captain and members of the crew actively looking for whales, so are the
dozens or hundreds of passengers! Furthermore, crew members are trained
to know the characteristics of whale so as to identify the species by
sight and behavior. The chances of a commercial whalewatching vessel
failing to observe a right whale and unknowingly striking it are
infinitesimally small. In fact, examining NOAA's data, it doesn't
appear that a commercial whalewatching vessel has ever struck a right
whale since the inception of the 2008 vessel speed limit rule.
Whalewatching vessels attract many customers that book their trips
days or even weeks in advance. If a Dynamic Speed Zone is imposed on a
vessel's route with little or no advance notice, the impact of the
vessel's operations can be severe. Rather than accept a voyage of
considerably longer duration, passengers may wish to be re-booked to a
future beyond the period of the DSZ (assuming that it fits their
schedule) or they may cancel altogether and demand refunds of any funds
paid in advance.

Given these facts, the Passenger Vessel Association urges that NOAA
amend the proposed rule to exempt from the 10-knot speed limit
requirement a commercial whalewatching vessel under the following
circumstances:

the vessel must be actively participating in NOAA's
WhaleSense program;

the vessel must at all times have one or more
knowledgeable crew members actively serving as observers to
look out for right whales. Perhaps NOAA or its designee
could implement a training and certification program for
such observers--if so, the presence of a certified observer
would be required;

the vessel must adhere to the existing requirement to stay
at least 500 yards away from the right whale; and

if the vessel's crew identifies or suspect the presence of
a right whale, the vessel would be required to slow to 10
knots for an appropriate period of time.

Changes to the proposed rule can greatly ease adverse impacts on ferry
vessels, their passengers, and the communities and islands that
they serve
PVA's membership includes operators of ferry vessels from North
Carolina to Maine. Some ferry systems are operated by state and other
governmental agencies. Other ferry routes (for example, across Long
Island Sound and Cape Cod Bay) are served by private companies.
It is disappointing that NOAA failed to consult the Bureau of
Transportation Statistic's National Census of Ferry Operators. See
https://www.bts.gov/NCFO. None of the documents associated with the
proposed rule make reference to this valuable resource. Updated
regularly after a census performed every two years, it is the most
comprehensive source of information about the nation's ferry companies,
vessels, routes, and characteristics.
NOAA's materials have no suggestion that a ferry vessel of 65 feet
or more in length has struck a right whale during the 15 years during
which the existing vessel speed limit rule has been in force. However,
the Atlantic Speed Zone of the proposed rule will definitely impose 10-
knot speed limits on ferry vessels for more than half of the year. It
is also possible that Dynamic Speed Zones could be declared on ferry
routes from Maine to Florida.
Some ferry operators operate specialized high-speed passenger
vessels, traveling at 25 knots or more. Imposition of a 10-knot speed
limit will eliminate a high-speed ferry's competitive advantage
compared to a ferry vessel of more traditional speed.
Even a traditional-speed ferry typically sails at more than 10
knots. If it must adhere to a 10-knot speed limit, whether because it
operates within the Atlantic Seasonal Speed Zone or because a Dynamic
Speed Zone has been imposed on its route, its travel time per trip will
increase, often dramatically. The ferry operator will either have to
reduce the number of daily trips or incur substantially higher labor
and other costs in order to operate more hours of the day to maintain
their expected number of voyages.
Incidentally, at no point in the various documents filed to
accompany the proposed rule is there any discussion of the likely
impact that longer-duration trips will have on ferry passengers or the
communities served by the ferries. This is a glaring omission in NOAA's
examination of the effect of the proposed rule.

Most (but not all) negative impacts on ferries can be eased by:

adjusting the Atlantic Seasonal Speed Zone so that it does
not embrace bays and estuaries on the mainland side of
offshore island and instead having it begin on the seaward
sides of the islands;

altering the Dynamic Speed Zone provision so that DMZs
would not be declared in these nearshore waters (see
further discussion below);

as discussed later, lifting the speed limit in Cape Cod
Bay on May 15, as in the current rule.

The Atlantic Speed Zone should not include certain nearshore bodies of
water
The proposed rule, if approved, will establish several Seasonal
Speed Zones. The Atlantic Speed Zone is the area of vessel operations
for nearly all of the affected members of the Passenger Vessel
Association. The South Carolina Speed Zone (and perhaps the North
Carolina Speed Zone) is the area of vessel operation of a single member
of the PVA (a company that offers gaming cruises in international
waters three miles from shore).
Island communities from Maine to North Carolina depend upon ferries
operated by public and private operators. Not only are these ferries
the primary method by which residents and visitors (and their vehicles)
travel between the islands and the mainland, they also transport
essentials such as food, fuel, medical supplies, etc. Nearly all of
these ferries operate pursuant to fixed schedules, and the vessels
typically travel at speeds above 10 knots. However, with the exception
of ferries traveling across Cape Cod Bay to Provincetown,
Massachusetts, the existing rule's Seasonal Management Areas do not
overlap with the ferry routes to Fire Island, Martha's Vineyard,
Nantucket Island, Block Island, and more. Even in Cape Cod Bay, the
lifting of the SMA and its 10-knot speed limit as of May 15 each year
means that the bulk of the season for ferry traffic is not affected by
the speed limit.
This situation would change dramatically should the proposed rule
be approved in its current form. The proposed Atlantic Speed Zone would
impact nearly all of the ferry routes described above.
PVA ferry operators serving these routes report that they know of
no instances of right whales being observed, much less being struck.
PVA's review of NOAA's data showing right whale occurrences leads to
the conclusion that the animals are not typically found in these
locations.
To address the negative impact on essential ferry routes and the
passengers and communities served by them, the proposed rule should be
amended to ensure that the Atlantic Speed Zone does not include Raritan
Bay, Upper and Lower New York Bay, Jamaica Bay, the Great South Bay out
to Fire Island, Long Island Sound, Fishers Island Sound, Rhode Island
Sound, Narragansett Bay, Vineyard Sound, Nantucket Sound, and Buzzards
Bay.
Dynamic Speed Zones should not be declared in certain nearshore bodies
of water, nor should they extend onto and across landmasses

NOAA should amend the proposed rule to eliminate the possibility
that a Dynamic Speed Zone is declared in Albemarle, Pamlico, and other
North Carolina Sounds; Chesapeake Bay and Hampton Roads; Delaware Bay;
Raritan Bay; Upper and Lower New York Bay; Jamaica Bay; Great South Bay
out to Fire Island; Long Island Sound; Fishers Island Sound; Rhode
Island Sound; Narragansett Bay; Vineyard Sound; Nantucket Sound;
Buzzards Bay; Casco Bay; and other waters out to offshore islands
served by ferries in Maine.
A review of the map of the Dynamic Management Areas and Slow Zones
declared in 2021 (Figure 2 of Appendix 9.B of the Draft Environmental
Assessment at page 10) makes clear that only a few of the DMAs covered
these nearshore bodies of water. It is highly improbable that right
whales will enter these waters, thereby making the declaration of a
Dynamic Speed Zone in them a rare event. Nonetheless, even if such a
possibility is remote, the consequences for the ferry operators and the
island communities that they serve would be severe. Please refer to the
comments filed by the Steamship Authority and Interstate Navigation of
Rhode Island for a fuller description of these detrimental disruptions
of ferry schedules.
The proposed rule should be amended so that only those waters
seaward of the North Carolina Outer Banks, the mouth of Delaware Bay,
New York Harbor, Fire Island, Block Island, Martha's Vineyard,
Nantucket Island, and certain Maine islands will be potentially subject
to the declaration of a Dynamic Speed Zone.
The final rule should be amended to make clear that a Dynamic Speed
Zone does not embrace islands, peninsulas, or other land bodies, and
does not extend into waters on the other side of these land masses from
which the right whales have been located.
The map of the Dynamic Management Areas and Slow Zones declared in
2021 (Figure 2 of Appendix 9.B of the Draft Environmental Assessment)
shows that a few of them appear to have covered land masses (North
Carolina Outer Banks, Fire Island, Cape Cod) and then intrude upon
waters on the other side of the land masses. This makes no sense, as
the whales cannot travel across the land into the opposite side waters.
In Cape Cod Bay, the 10-knot speed limit should be lifted on May 15, as
in the current rule
Ferry operators that traverse Cape Cod Bay serving Provincetown,
Massachusetts, conformed to the existing vessel speed limit rule when
it went into effect by simply eliminating their prior service that
occurred before May 15. This compliance came with a financial cost to
the companies. For example, see the description of this impact in the
comment filed by Bay State Cruise Company.
The proposed rule will extend the temporal period for the 10-knot
speed limit in all of the Atlantic Speed Zone, including in Cape Cod
Bay, from May 15 to May 31. This change will cover the extended
Memorial Day weekend. It will be infeasible for a ferry operator to
offer service during this extended time because the travel time will
increase so much that passengers will not patronize the ferry. See the
explanation filed by Bay State Cruise Company. Not only will this
deprive the passengers of the option of ferry service, it will also
impact the business and tourist industries of Provincetown during this
important holiday. It will also financially harm the ferry companies.
As there is no or little evidence that right whales remain in Cape
Cod Bay past May 15, the proposed rule should be amended so that the
May 15 termination date for the 10-knot speed limit should be retained,
as least for Cape Cod Bay.
Recommendations by the Passenger Vessel Association

Before finalizing the proposed rule, NOAA must prepare a
full Environmental Impact Statement and conduct at least
two public hearings;

The revised rule should provide an exemption from the 10-
knot vessel speed limit requirement for a commercial
whalewatching vessel that adheres to certain mandates;

NOAA should remove from the Atlantic Speed Zone waters of
certain bays and estuaries between the mainland and certain
islands such as Fire Island, Block Island, Martha's
Vineyard, Nantucket, etc.;

The revised rule should retain the existing May 15 date
for lifting the 10-knot vessel speed limit in Cape Cod Bay,
Stellwagen Bank National Marine Sanctuary, and adjacent
waters;

NOAA should alter the provisions for Dynamic Speed Zones
so that they cannot be declared for bodies of water such as
North Carolina's sounds, Delaware Bay, Chesapeake Bay, Long
Island Sound, Fire Island Sound, etc.;

The revised rule should be changed so that Dynamic Speed
Zones do not extend over landmasses and the waters opposite
from where right whales are identified;

The proposed language for Dynamic Speed Zones should be
amended to enable NOAA to lift the designation more quickly
than the proposed 10 days minimum duration if the agency
determines that the whales have moved away;

NOAA should create a program overseen by NOAA or its
designee whereby vessel crew members can be instructed in
right whale identification, detection, and avoidance with
the issuance of a certification upon completion; and

The federal government should create a program whereby
NOAA can communicate directly with participating mariners
and companies regarding the location right whales by means
of email, text, apps, etc.

The Passenger Vessel Association appreciates the opportunity to
submit this statement for the record in response to the Subcommittee's
hearing. PVA stands ready to consult with the Subcommittee as desired
to elaborate on any of the points of this document and to devise
solutions that protect right whales while preserving passenger vessel
operations.

______

Submissions for the Record by Rep. Huffman

Statement for the Record
On behalf of 19 environmental organizations listed below

Thank you, Chair Bentz, Ranking Member Huffman, and members of the
Subcommittee for this opportunity to submit testimony related to the
North Atlantic right whale (herein ``right whale'') proposed Vessel
Speed Rule. Vessel strikes and fishing gear entanglement are the two
leading causes for the ongoing rapid collapse of the North Atlantic
right whale population.\1\ Vessel strikes cause close to half of all
documented right whale deaths, with five reported vessel strikes
resulting in mortalities or serious injuries of right whales since 2020
alone.\2\ We are strongly in favor of these improvements from the
previous rule and ask that you support these common sense changes that
are the best tool for reducing death and injury to right whales from
being struck by vessels.
---------------------------------------------------------------------------
\1\ S.M. Sharp et al., Gross and Histopathologic Diagnoses From
North Atlantic Right Whale Eubalaena glacialis Mortalities Between 2003
and 2018, 135 Diseases of Aquatic Organisms 1, at 1 (2019). https://
www.intres.com/articles/feature/d135p001.pdf (July 3, 2019).
\2\ Amendments to the North Atlantic Right Whale Vessel Strike
Reduction Rule, 87 Fed. Reg. 46,921 at 46928 (August 1,2022); S.M.
Sharp et al., Gross and Histopathologic Diagnoses From North Atlantic
Right Whale Eubalaena glacialis Mortalities Between 2003 and 2018, 135
Diseases of Aquatic Organisms 1, at 1.
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The 2022 proposed rule is based on the best available science and
evidence, and these National Marine Fisheries Service (NMFS)
regulations required under federal will give this species a fighting
chance for survival. Among other key federal laws related to right
whales, the Endangered Species Act (ESA) was intended to allow federal
agencies to issue rules that carry out the ESA's primary purpose of
protecting endangered species. And the Marine Mammal Protection Act's
(MMPA) ``major objective'' is to stop marine mammal populations from
declining and ensure that they remain a functioning part of their
marine ecosystems.\3\ For both statutes, NMFS is the lead agency tasked
with issuing regulations on marine mammals, including right whales.\4\
The agency is obligated to act based on the best available science and
evidence, and its Congressionally-mandated authority, to protect this
entire species from injury, death, and potentially extinction in this
case.
---------------------------------------------------------------------------
\3\ 16 U.S.C. Sec. 1531(c)(1); 16 U.S.C. Sec. 1361(6)
\4\ Id. Sec. 1361(2).
---------------------------------------------------------------------------
On August 1, 2022, the NMFS released a proposed Vessel Speed Rule
that aims to reduce the risk of vessel strikes to critically endangered
North Atlantic right whales.\5\ Right whales have been listed as
endangered since 1970 and are currently classified as critically
endangered according to the International Union for Conservation of
Nature.\6\ The species has been in nonstop decline for over a decade,
with only about 340 individual right whales remaining today.\7\
---------------------------------------------------------------------------
\5\ International Union for Conservation of Nature Red List
categories and criteria, version 3.1, IUCN Species Survival Commission
(SSC) available at https://portals.iucn.org/library/node/7977 (Last
accessed March 6, 2023)
\6\ Id.
\7\ North Atlantic right whales' downward trend continues as
updates population numbers released (October 24, 2022) New England
Aquarium https://www.neaq.org/about-us/news-media/press-kit/press-
releases/north-atlantic-right-whales-downward-trend-continues-as-
updated-population-numbers-released/.
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Collisions with vessels are one of the two leading causes of injury
and death for right whales. At high speeds, vessels cannot safely
maneuver to avoid right whales, leaving insufficient time for vessel
operators and whales to avoid a collision. Because they do not have a
dorsal fin, and they spend much of their time at shallow depths, right
whales are particularly susceptible to collisions with vessels.\8\
Since 2017, there have been 16 likely vessel strikes causing whale
mortalities or serious injuries.\9\ The true impact of vessel strikes
on right whales may be much higher, as scientists estimate that
observed deaths only represent around one third of total right whale
mortalities.\10\
---------------------------------------------------------------------------
\8\ Julia A. Dombroski, Susan E. Parks, & Douglas P. Nowacek, Dive
behavior of North Atlantic right whales on the calving ground in the
Southeast USA: implications for conservation, 46 ENDANG. SPECIS. RSCH.,
at 43 (2021)
\9\ 2017-2023 North Atlantic Right Whale Unusual Mortality Event
(n.d.) NOAA Fisheries. https://www.fisheries.noaa.gov/national/marine-
life-distress/2017-2023-north-atlantic-right-whale-unusual-mortality-
event
\10\ Pace, R., Williams, R., Kraus, S.D., et al. (2021) Cryptic
mortality of North Atlantic right whales, Conservation Science and
Practice. 3(2) available at https://doi.org/10.1111/csp2.346
---------------------------------------------------------------------------
The proposed rule outlines updates to the current rule that was
promulgated in 2008. The proposed changes to the rule include expanding
the vessels covered by the rule with the addition of vessels 35 feet or
greater in length (compared to the previous 65 feet), expanding the
network of Seasonal Management Areas (called Seasonal Speed Zones in
the proposed role) to key areas for right whales based on updated
information, and upgrading current voluntary speed zones to mandatory
in areas where whales are seen. The main areas where the whales are
found are busy commercial and recreational vessel traffic areas along
the East Coast.
While our organizations support the proposed rule, there is room
for improvement in an even stronger final rule on vessel speed
regulations for the U.S. Atlantic. The agency could improve the rule by
removing exemptions for government vessels, requiring use of Automatic
Identification System (AIS) devices for vessel tracking, and improving
enforcement of speed limits.
The current vessel speed regulations only apply to vessels 65 feet
or greater in length. However, boats of all sizes can cause fatal
injuries to right whales. As the agency points out in the proposed
rule, there have been four reported strikes from 2020 to August 2022.
Three out of the four involved vessels were traveling more than 20
knots at the time.\11\ Of the 12 known right whale-vessel collisions in
U.S. waters between 2013 and 2021, at least eight of the vessels
involved were confirmed or suspected to have been under 65 feet in
length, demonstrating the deadly risk of smaller vessels to right
whales.\12\ And there have been additional likely deaths from vessel
strikes since 2021. In February 2021, a calf died from propeller
wounds, broken ribs, and a fractured skull after a collision with a 54-
foot recreational fishing vessel that was not subject to the speed
requirements. Although the captain was not operating illegally, this
collision caused not only the tragic loss of a critically endangered
whale, but also resulted in sinking the $1.2 million vessel and
endangering all passengers on board.\13\
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\11\ Amendments to the North Atlantic Right Whale Vessel Strike
Reduction Rule at 46298.
\12\ Whale and Dolphin Conservation, Defenders of Wildlife,
Conservation Law Foundation, and Center for Biological Diversity v.
National Marine Fisheries Service and Wilbur Ross (2021) available at
https://www.biologicaldiversity.org/species/mammals/
North_Atlantic_right_whale/pdfs/WDC-v-NMFS-right-whale-vessel-strike-
unreasonable-delay-complaint.pdf (Last accessed June 6, 2023).
\13\ ``Looking Back: Capt. Recalls Whale Collision,'' Georgia
Department of Natural Resources (2/11/2022) available at https://
georgiawildlife.blog/2022/02/11/looking-back-capt-recalls-whale-
collision/.
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With so few whales left, every vessel strike is detrimental to the
potential recovery of this species. In fact, NMFS has determined that
less than one right whale can die from anthropogenic causes per year
for the species to reach its optimum sustainable population.\14\
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\14\ National Marine Fisheries Service (NMFS) 2021. Draft U.S.
Atlantic and Gulf of Mexico Marine Mammal Stock Assessment available at
https://www.fisheries.noaa.gov/action/2021-draft-marine-mammal-stock-
assessment-reports
---------------------------------------------------------------------------
Should a collision occur, studies have found that slowing vessel
speeds to 10 knots reduces their risk of death from vessel strikes by
80% to 90%. Slowing vessels down in key areas and times is currently
the most effective management tool for reducing vessel strikes.
Additionally, the experience and careful tendencies of mariners are not
enough to reduce risks to marine mammals. A 2016 study showed that even
trained observers and ideal conditions cannot properly protect right
whales against vessel strikes.\15\ By expanding the regulation to
include boats between 35 and 65 feet in length, bolstering slow zones,
and more, right whales will be better protected from these potentially
fatal interactions.
---------------------------------------------------------------------------
\15\ Wiley, D.N., C.A. Mayo, E.M. Maloney, and M.J. Moore. 2016.
Vessel strike mitigation lessons from direct observations involving two
collisions between noncommercial vessels and North Atlantic right
whales (Eubalaena glacialis). Marine Mammal Science 32(4):1501-1509.
---------------------------------------------------------------------------
Since the release of the proposed rule, there has been pushback
from the recreational boating and fishing industries, as well as the
pilot operator sector, citing concerns of safety and economic harm.
NMFS recognizes that mariner safety is extremely important and has
included safety deviation provisions since the initial rule in 2008.
The new proposed rule only improves these provisions, including
expansion of exceptions to include emergency situations that present a
threat to the health, safety, or life of a person; allowing vessels
under 65 feet in length to transit at speeds greater than 10 knots when
certain weather conditions are detected; and updated reporting
protocols. Overall, the proposed regulatory changes continue to
emphasize mariner safety as well as preventing right whale injury and
mortality.
When discussing the economic impact of this rule, some groups have
claimed that this new rule would have significant economic impacts.
However, the proposed seasonal speed zones would only impact boat
traffic for the months of the year when the whales are in the affected
area. It is absolutely vital to slow down vessels when mothers and
calves are migrating in the Southeast during calving season and when
the whales are aggregating in New England. And many of these seasonal
slow zones fall outside of the heart of boating and recreational
fishing seasons. While implementing speed limits on recreational
vessels may add some travel time to trips, these zones do not prohibit
fishing, boating, or other activities and still allow mariners to
utilize the areas.
Saving this species from extinction will take a collective effort
from the fishing, boating, and shipping industries to effectively
reduce the risk of deadly collisions. The federal government has an
obligation to protect these whales from this clear threat by
implementing stronger regulations and enforcement procedures.

Thank you again for the opportunity to submit this testimony,
Animal Welfare Institute International Marine Mammal
Project of Earth Island Institute

Center for Biological
Diversity Natural Resources Defense Council

Cetacean Society
International Oceana

Conservation Law Foundation Oceanic Preservation Society

Defenders of Wildlife Whale and Dolphin Conservation
(WDC)

Earthjustice Sanctuary Education Advisory
Specialists (SEAS)

Endangered Species
Coalition Southern Environmental Law Center
(SELC)

Environment America Wildlife Conservation Society

Environmental Investigation
Agency World Wildlife Fund

International Fund for
Animal Welfare

______

Southern Environmental Law Center

Washington, DC

June 14, 2023

Dear Chair Bentz and Ranking Member Huffman:

The Southern Environmental Law Center (``SELC'') submits this
statement to the House Natural Resources Committee's Water, Wildlife,
and Fisheries Subcommittee regarding its June 6, 2023 oversight
hearing, Examining the Impacts of the National Oceanic and Atmospheric
Administration's Proposed Changes to the North Atlantic Right Whale
Vessel Strike Reduction Rule. As an organization working to protect the
wildlife and natural resources of the Southeast, we write to reiterate
our strong support for the ``Proposed Rule'' to amend the 2008 North
Atlantic Right Whale Vessel Strike Reduction Rule (``Vessel Speed
Rule''), 87 Fed. Reg. 46,921 (Aug. 1, 2022), and to provide additional
information to be considered by the Subcommittee.
North Atlantic right whales are rapidly declining toward
extinction, with only about 340 individuals remaining in the
population, including fewer than 70 reproductive females.\1\ The
population has been in decline since 2010 due to increased human-caused
mortality and decreased reproduction, coinciding with climate-change
driven shifts in right whale distribution.\2\ Anthropogenic trauma is
the leading cause of death for right whales.\3\ Outside their first
year of life, natural death of a right whale has not been observed in
the last two decades because they succumb to human-caused mortality
before they can die of old age or other natural causes.\4\ The
population is now sufficiently small that it cannot sustain the loss of
even one whale per year to human causes.\5\
---------------------------------------------------------------------------
\1\ Heather M. Pettis et al., North Atlantic Right Whale Consortium
2022 Annual Report Card, N. Atl. Right Whale Consortium (Feb. 2023),
available at https://www.narwc.org/report-cards.html, at 1.
\2\ Richard M. Pace, III et al., State-space mark-recapture
estimates reveal a recent decline in abundance of North Atlantic right
whales, Ecology & Evolution (Sept. 18, 2017); Sarah M. Sharp et al.,
Gross and histopathologic diagnoses from North Atlantic right whale
Eubalaena glacialis mortalities between 2003 and 2018, Diseases of
Aquatic Organisms (June 20, 2019); Nicholas R. Record et al., Rapid
climate-driven circulation changes threaten conservation of endangered
North Atlantic right whales, Oceanography (June 2019); Erin L. Meyer-
Gutbrod et al., Marine species range shifts necessitate advanced policy
planning: The case of the North Atlantic right whale, Oceanography
(June 11, 2018).
\3\ Peter Corkeron et al., The recovery of North Atlantic right
whales, Eubalaena glacialis, has been constrained by human-caused
mortality, Royal Soc'y Open Sci. (Nov. 7, 2018); Sharp et al., supra
note 2.
\4\ Nat'l Marine Fisheries Serv. (NMFS), Draft Environmental
Assessment for Amendments to the North Atlantic Right Whale Vessel
Strike Reduction Rule (July 2022), available at https://
www.fisheries.noaa.gov/action/amendments-north-atlantic-right-whale-
vessel-strike-reduction-rule [hereinafter ``Draft EA''], at 12.
\5\ Sean A. Hayes et al., U.S. Atlantic and Gulf of Mexico Marine
Mammal Stock Assessments--2021, NMFS (May 2022), available at https://
www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-
stock-assessment-reports, at 23 (showing the Potential Biological
Removal at 0.7).

Collisions with vessels are one of the two leading causes of injury
and death for right whales. Right whales are particularly prone to
vessel strikes, given their slow speeds, extended time spent at or near
the surface, and primary habitat overlapping highly trafficked coastal
waters.\6\ Calves, juveniles, and females, which are essential to the
future viability of the population, are disproportionately vulnerable
to vessel strikes.\7\ Since 2017, vessels have killed, seriously
injured, or sub-lethally impacted 16 right whales, an average of about
three per year.\8\ However, research shows that actual mortality and
serious injury rates are likely more than three times higher, as more
than two-thirds of right whale deaths go undetected.\9\ At a time when
the population cannot stand to lose even one whale per year to human
causes, these numbers plainly demonstrate that without addressing this
threat, the species faces a real prospect of extinction.
---------------------------------------------------------------------------
\6\ See Susan E. Parks et al., Dangerous dining: Surface foraging
of North Atlantic right whales increases risk of vessel collisions,
Biology Letters (Aug. 3, 2011).
\7\ Dana A. Cusano et al., Implementing conservation measures for
the North Atlantic right whale: Considering the behavioral ontogeny of
mother-calf pairs, Animal Conservation (Oct. 19, 2018).
\8\ NMFS, 2017-2023 North Atlantic Right Whale Unusual Mortality
Event (last visited May 31, 2023), https://www.fisheries.noaa.gov/
national/marine-life-distress/2017-2023-north-atlantic-right-whale-
unusual-mortality-event.
\9\ Richard M. Pace, III et al., Cryptic mortality of North
Atlantic right whales, Conservation Sci. & Practice (Feb. 2, 2021).
---------------------------------------------------------------------------
On August 1, 2022, the National Marine Fisheries Service (``NMFS'')
released a much-needed Proposed Rule that aims to substantially reduce
the risk of vessel strikes to right whales, 87 Fed. Reg. 46,921.
Unfortunately, since the release of the Proposed Rule, misinformation
about these changes has proliferated, citing incorrect data about the
impacts to the recreational boating and fishing industries, as well as
the pilot operator sector. It is important to correct these
inaccuracies which are putting the implementation of these important
protections at risk.

Myth: The Proposed Rule is not necessary and would not help save right
whales.

The scientific community is in unanimous agreement that without
urgent action to stop mortalities from both vessel strikes and fishing
gear entanglements, right whales will be functionally extinct in our
lifetime. The right whale population cannot sustain the loss of one
whale per year to human causes; yet annual mortalities and serious
injuries from vessel strikes alone consistently exceed this level. To
make matters worse, in the last three years, three calves and one
nursing mother have been lost to vessel strikes.\10\ Despite the grim
situation, there is strong evidence that recovery is attainable. Right
whales have been rescued from the brink before: after being hunted to
near extinction in the 1900s, the population saw two decades of growth
between 1990 and 2010.\11\ Put simply, these measures are essential to
once again prevent the collapse of the right whale population.
---------------------------------------------------------------------------
\10\ Dead North Atlantic Right Whale Sighted off New Jersey, NMFS
(June 29, 2020), https://www.fisheries.noaa.gov/feature-story/dead-
north-atlantic-right-whale-sighted-new-jersey; North Atlantic Right
Whale Calf Injured by Vessel Strike, NMFS (Jan. 13, 2020), https://
www.fisheries.noaa.gov/feature-story/north-atlantic-right-whale-calf-
injured-vessel-strike; North Atlantic Right Whale Calf Stranded Dead in
Florida, NMFS (Feb. 14, 2021), https://www.fisheries.noaa.gov/feature-
story/north-atlantic-right-whale-calf-stranded-dead-florida.
\11\ Richard M. Pace, III et al., supra note 2.
---------------------------------------------------------------------------
While NMFS's 2008 Vessel Speed Rule represented a significant step
in reducing deadly vessel strikes, the best available science now shows
that it must be expanded to help bring serious injuries and mortalities
to a sustainable level. The Proposed Rule is based on years of
extensive, sound scientific analysis and, if adopted, would address 90
percent of fatal and injurious vessel strike risk for right whales.\12\
For example, the proposed change to include vessels 35 feet and longer
is long overdue and reflects years of data demonstrating the known risk
smaller vessels pose to right whales, 87 Fed. Reg. at 46,928. The three
most recent known incidents of vessel collisions with calves all
involved vessels either confirmed or suspected to be smaller than 65 ft
long. Id. Although the risk of striking a right whale may seem low to
an individual boater, the risk to each right whale is dangerously high.
With so few whales left, every vessel strike is detrimental to the
potential recovery of this species.
---------------------------------------------------------------------------
\12\ Draft EA at 18.

Myth: The Proposed Rule would decimate coastal economies and severely
---------------------------------------------------------------------------
restrict ocean access.

Public perceptions of the economic impacts of the Proposed Rule
have been dramatically inflated. Contrary to misinformation, the
Proposed Rule is still limited in when, where, where, and to what
vessels it will apply. First, the proposed seasonal speed zones would
only impact boat traffic during months when right whales are known to
be at elevated risk. 87 Fed. Reg. at 46,931. For the majority of the
East Coast, this applies only to winter months, which fortunately
coincide with most ``off-seasons for recreational boating. Id. These
measures are vital to protect right whales during their calving season
in the Southeast, their migration season in the Mid-Atlantic, and their
foraging season in New England. Second, the Proposed Rule only extends
20-30 nautical miles from shore along most of the East Coast, well
below the distance that is required for many offshore recreational
fishing trips. Id. While these measures may add some travel time to
trips, these zones do not prohibit fishing, boating, or any other
activities. Third, the Proposed Rule only covers vessels down to 35
feet and longer--a small segment of the overall boating population. The
thousands of boats that are shorter than 35 feet will not be subject to
any new speed limits.

Myth: The Proposed Rule would threaten mariner safety and put human
life at risk.

NMFS has long valued the importance of mariner safety when crafting
its Vessel Speed Rule. In 2008, the agency incorporated myriad safety
provisions into the initial rule, and in fact found that boating safety
increased after the rule went into effect.\13\ The Proposed Rule does
not change any of those provisions, and in fact strengthens them, by
expanding the types of exemptions for emergency situations such as
inclement weather, as well as updating reporting protocols. 87 Fed.
Reg. at 46,930. The Proposed Rule continues to prioritize human safety
while increasing species protections, meaning that whale safety and
mariner safety can continue to co-exist.
---------------------------------------------------------------------------
\13\ NMFS, North Atlantic Right Whale (Eubalaena Glacialis) Vessel
Speed Rule Assessment (June 2020), available at https://
www.fisheries.noaa.gov/national/endangered-species-conservation/
reducing-vessel-strikes-north-atlantic-right-whales [hereinafter ``2021
Vessel Speed Rule Assessment''], at 20.

Myth: There are alternatives available to protect right whales from
---------------------------------------------------------------------------
vessel strikes.

While opponents are quick to critique the Proposed Rule, they offer
few realistic solutions to these critiques, if any at all. The fact is,
short of eliminating vessels from an area, slowing vessel speeds is the
most effective strategy available to prevent vessel collisions with
right whales in U.S. waters. Slowing speeds to 10 knots or less reduces
the risk of serious injury and mortality from vessel collisions by 80
to 90 percent.\14\ In addition to reducing the severity of impact, slow
speeds reduce the probability of a collision by allowing both vessels
and whales more maneuverability to avoid one another.\15\
---------------------------------------------------------------------------
\14\ See, e.g., Gregory K. Silber et al., Hydrodynamics of a ship/
whale collision, J. Experimental Marine Biology & Ecology (Aug. 2010);
Angela S.M. Vanderlaan & Christopher T. Taggart, Vessel collisions with
whales: The probability of lethal injury based on vessel speed, Marine
Mammal Sci. (Dec. 21, 2006); Paul B. Conn & Gregory K. Silber, Vessel
speed restrictions reduce risk of collision-related mortality for North
Atlantic right whales, Ecosphere (Apr. 3, 2013); Julien Martin et al.,
A quantitative framework for investigating risk of deadly collisions
between marine wildlife and boats, Methods in Ecology & Evolution (July
27, 2015).
\15\ Scott M. Gende et al., A Bayesian approach for understanding
the role of ship speed in whale-ship encounters, Ecological
Applications (Sept. 1, 2011); Conn & Silber, id.
---------------------------------------------------------------------------
There are currently no technological alternatives that are proven
effective as vessel speed limits. Unlike other large whale species,
right whales are notoriously difficult to visually detect on the water
due to their lack of dorsal fin and extended time spent at sub-surface
depth. Studies show that even the most trained observers in perfect
conditions cannot spot right whales 100 percent of the time.\16\ In
addition, unlike other large species like sharks, right whales cannot
be permanently tagged and tracked in real time to avoid vessel
collisions. While future possibilities for near real-time technologies
show promise, unfortunately without these available, even the
experience and careful tendencies of mariners are not enough to reduce
vessel strike risk to right whales.
---------------------------------------------------------------------------
\16\ David N. Wiley et al., Vessel strike mitigation lessons from
direct observations involving two collisions between noncommercial
vessels and North Atlantic right whales (Eubalaena glacialis), Marine
Mammal Sci. (July 2016).

Myth: NOAA did not consult with affected stakeholders before issuing
---------------------------------------------------------------------------
the Proposed Rule.

Past rulemakings as far back as 2006 show that NMFS has been
publicly considering and soliciting feedback from the regulated
community on plans to regulate smaller vessels over larger areas for
decades. 73 Fed. Reg. 60,173 (Oct. 10, 2008), 78 Fed. Reg. 73,726 (Dec.
9, 2013). Most recently, in 2021, the agency solicited public comment
on a Vessel Speed Rule Assessment which included, among other things,
scientific evidence showing that expansions of speed zone areas and
regulated vessel classes were necessary to protect right whales from
ongoing deaths and serious injuries from vessel collisions.\17\ NMFS is
presently considering public comments on the Proposed Rule, in
accordance with all proper policies.
---------------------------------------------------------------------------
\17\ 2021 Vessel Speed Rule Assessment, supra note 13.
---------------------------------------------------------------------------
In conclusion, we strongly support the Proposed Rule, which would
give right whales a fighting chance for survival and recovery. Saving
this species from extinction will take a collective effort from the
fishing, boating, and shipping industries to effectively reduce the
risk of deadly vessel collisions. The federal government has an
obligation to protect these whales from this clear threat by
implementing stronger regulations and enforcement procedures.

Sincerely,

Anders Reynolds, Melissa L. Edmonds,
Federal Legislative
Director Science & Policy Analyst

______

June 6, 2023

Dear Chair Bentz and Ranking Member Huffman:

Our groups are writing to you and members of the Subcommittee to
voice our support for the much-needed 2022 proposed changes to the
North Atlantic right whale (``right whale'') vessel speed regulations
issued back in 2008. We are strongly in favor of these improvements
from the previous rule and ask that you support these common sense
changes that are the best tool for reducing death and injury to right
whales from being struck by vessels.\1\
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\1\ The National Marine Fisheries Service should also consider
requiring vessels covered by this rule to carry and continuously
transmit Automatic Identification System (AIS) devices for public
vessel tracking, improving monitoring and enforcement of speed limits,
designate Dynamic Speed Zones (DSZs) following the visual confirmation
of a single North Atlantic right whale, and including an exemption for
permitted disentanglement vessels who are actively engaged in a
response.
---------------------------------------------------------------------------
The species has been in nonstop decline for over a decade, with
only about 340 right whales remaining.\2\ Collisions with vessels are
one of the two leading causes of injury and death for the North
Atlantic right whale. The 2008 vessel speed rule was promulgated to
establish speed limits for vessels 65 feet or greater in length in
seasonal areas along the right whale's migration route. Although the
2008 rule helped decrease vessel strike mortalities,\3\ it is
insufficiently protective based on updated information on where right
whales are found and where threats are greatest. The agency's data on
vessel activity and right whale distribution has been updated with
essential changes that informed the 2022 rule. The expansions of the
seasonal zones now more closely overlap with the location of right
whales.
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\2\ North Atlantic right whales' downward trend continues as
updates population numbers released (October 24, 2022) New England
Aquarium. https://www.neaq.org/about-us/news-media/press-kit/press-
releases/north-atlantic-right-whales-downward-trend-continues-as-
updated-population-numbers-released/ (Last accessed June 6, 2023).
\3\ Nat'l Oceanic and Atmospheric Admin., Nat'l Marine Fisheries
Service, Office of Protected Resources, North Atlantic Right Whale
(Eubalaena glacialis) Vessel Speed Rule Assessment--June 2020.
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The National Oceanic and Atmospheric Administration (NOAA) has
found 16 likely vessel strikes just since 2017, the beginning of the
current and ongoing Unusual Mortality Event in 2017.\4\ Additionally,
known right whale deaths likely only represent about one-third of
actual right whale deaths because the majority go unobserved or
unreported.\5\ Each human-caused North Atlantic right whale death
exceeds the level that federal government scientists have determined
would allow this species to recover.\6\
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\4\ Nat'l Oceanic and Atmospheric Admin., Nat'l Marine Fisheries
Service, ``2017-2023 North Atlantic Right Whale Unusual Mortality
Event'' available at https://www.fisheries.noaa.gov/national/marine-
life-distress/2017-2023-north-atlantic-right-whale-unusual-mortality-
event (Last accessed June 6, 2023).
\5\ Pace, R.M., R. Williams, S.D. Kraus, A.R. Knowlton, and H.M.
Pettis. 2021. Cryptic mortality of North Atlantic right whales.
Conservation Science and Practice 3(2):e346; NOAA Fisheries, Stock
Assessment Report for North Atlantic Right Whale (Eubalaena glacialis):
Western Atlantic Stock (2021) available at https://
media.fisheries.noaa.gov/2022-08/N%20Atl%20Right %20Whale-
West%20Atl%20Stock_SAR%202021.pdf
\6\ Pettis, H.M., Pace, R.M. III, Hamilton, P.K. 2022. North
Atlantic Right Whale Consortium Annual Report Cards 2006-2021. Report
to the North Atlantic Right Whale Consortium available at https://
www.rightwhalec.org/report-cards.html
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In the proposed rulemaking, NMFS is updating the current 2008 rule
in several crucial ways. The agency is proposing the expansion of
seasonal slow zones and adjusting their timing to account for areas
where these whales are found and the risk of being struck by a vessel
is highest. As they stand, the revised regulations would also increase
the number of vessels covered by speed limits. While the current rule
covers vessels 65 feet or greater in length, the proposed revisions
would apply to vessels 35 feet or greater. The agency based this
analysis on known instances of vessels striking large whales and
current scientific consensus on risk to whales from vessel strikes.
Studies have found that slowing vessel speeds to 10 knots reduces a
North Atlantic right whale's risk of death from vessel strikes by 80 to
90 percent.\7\
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\7\ Laist, D.W., A.R. Knowlton, and D. Pendleton. 2014.
Effectiveness of mandatory vessel speed limits for protecting North
Atlantic right whales. Endangered Species Research 23(2):133-147; North
Atlantic Right Whale (Eubalaena glacialis) Vessel Speed Rule
Assessment--June 2020.
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The agency is also proposing a new Dynamic Speed Zone framework
that lays out mandatory vessel slow zones where whales are visually or
acoustically detected. Previously, these dynamic slow zones were
voluntary, and vessels rarely complied with them. These updates are
vital to further reducing the likelihood of mortalities and serious
injuries to endangered right whales from vessel collisions in areas
outside of Seasonal Speed Zones. This part of the proposed rule would
be further strengthened if Dynamic Speed Zones were triggered by either
an acoustic detection or a visual confirmation of a single right whale,
rather than an aggregation of three or more right whales, in order to
protect mothers with calves and pregnant females. Additionally, the
requirement of a 50% likelihood that whales will remain in the
management area, with no area definition and no minimum length of time
for the area, are potentially problematic.
Based on sound, informed decision making, the agency has said that
these proposed changes ``are essential to stabilize the ongoing right
whale population decline and prevent the species' extinction.'' \8\
North Atlantic right whales need strong action from the U.S. government
to protect them from vessel strikes. Incorporating these additional
modifications into the final vessel speed regulations, approving the
final rule quickly, and allocating adequate resources for monitoring
and enforcement will be vital to preventing additional deaths and
protecting the species.
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\8\ ``Amendments to the North Atlantic Right Whale Vessel Strike
Reduction Rule,'' Nat'l Oceanic and Atmospheric Admin., Nat'l Marine
Fisheries Service available at https://www.fisheries.noaa.gov/action/
amendments-north-atlantic-right-whale-vessel-strike-reduction-rule
(Last accessed June 6, 2023).
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We look forward to your leadership on this important issue to
support the recovery of this iconic species.

Sincerely,

Animal Welfare Institute Kettle Range Conservation Group

Animal Wellness Action National Wolfwatcher Coalition

Association of Zoos and
Aquariums Natural Resources Defense Council

Azul New Hampshire Audubon

California Environmental
Voters NH Audubon

Center for a Humane Economy NY4WHALES

Christian Council of
Delmarva NYC Plover Project

Coastal Plains Institute Ocean Alliance

Conservation Law Foundation Ocean Defense Initiative

Endangered Habitats League Predator Defense

Endangered Species
Coalition Resource Renewal Institute

Great Old Broads for
Wilderness PNW WIT Sierra Club

Healthy Ocean Coalition Virginia Aquarium & Marine
Science Center
Heartwood Washington Wildlife First

Humane Action Pennsylvania Wildlife Conservation Society

Humane Action Pittsburgh Wolf Conservation Center

Inland Ocean Coalition World Wildlife Fund

International Fund for
Animal Welfare

______

Still Photos from NOAA Fisheries Showing Whale Movement

The photos can be viewed on the Committee Repository at:

https://docs.house.gov/meetings/II/II13/20230606/116041/HHRG-
118-II13-20230606-SD006.pdf

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