New Development
The National Oceanic and Atmospheric Administration ("NOAA"), through the National Marine Fisheries Service ("NMFS"), issued the Final Rule on October 10, 2008 concerning speed restrictions on the east coast of the United States in an effort to reduce the mortality rate of the North Atlantic right whale. The 10-knot speed restriction established in this Final Rule is applicable to all vessels 65 feet in length or greater that operate in specific U.S. waters and will be effective, seasonally, from December 8, 2008 through December 9, 2013. See http://www.nmfs.noaa.gov/pr/pdfs/ fr/fr73-60173.pdf.
Background
The Notice of Proposed Rulemaking ("NPRM") was issued on June 26, 2006 (71 Fed. Reg. 36299), after protracted litigation, and was followed by both a Draft Environmental Impact Statement ("EIS") and a Final EIS, which was just made available for public comment in August 2008. Based on several years of investigation and study, including the review of over 10,000 comments, this Final Rule is intended to reduce the threats to right whales posed by increased vessel traffic along the east coast of the United States. According to NOAA's data, right whales live for approximately 70 years, range from 45 to 60 feet in length, and weigh between 30 and 80 tons. They are currently the most endangered large whales in the world and NOAA estimates that they could become extinct in less than 200 years unless protective steps are taken. NOAA's best estimate is that there are about 313 of these whales known to live in the major shipping corridors off the U.S. and Canadian eastern coasts during much of the year as they transit from the warm birthing grounds of Florida and Georgia in the winter to the North Atlantic in the summer. Approximately one third of all right whale deaths apparently result from ship strikes and entanglement in fishing gear. In addition to the speed restrictions contained in this Final Rule, NOAA has undertaken extensive efforts over the last several years to encourage voluntary actions by vessel operators, such as limiting approaches to right whales, increasing the awareness of east coast mariners about the vulnerability of the right whales, and providing mariners with realtime sightings to reduce the risk of disturbance and collision.
Seasonal Management Areas
Based on the seasonal migration of the right whales, the speed restrictions involve three Seasonal Management Areas ("SMA"), the Southeastern Atlantic region ("SEUS"), the Mid-Atlantic region ("MAUS") and the Northeast United States region ("NEUS").
SEUS: This SMA will be in effect from November 15 to April 15 of each year and will be a continuous SMA that runs from St. Augustine, Florida to New Brunswick, Georgia extending out 20NM from shore.
MAUS: This SMA will be a combination of both continuous areas and half circles drawn with 20NM radii around the entrances to certain bays and ports, and runs from November 1 through April 30. In particular, the MAUS's continuous SMA will run from Wilmington, North Carolina, to New Brunswick, Georgia. The Port of New York/New Jersey, Delaware Bay (Ports of Wilmington and Philadelphia), the entrance to the Chesapeake Bay (Ports of Hampton Roads and Baltimore), Ports of Morehead City and Beaufort, North Carolina, and Block Island Sound will have a half circle drawn around them with an epicenter located at the midpoint of the COLREG demarcation line crossing the entry into each of these areas.
NEUS: This SMA is comprised of specifically drawn areas. From January 1 through May 15 of each year, all of Cape Cod Bay will have a 10- knot restriction, a 50NM by 50NM box off Race Point will have the 10-knot restriction from March 1 to April 30 of each year, and, finally, the speed restriction will apply in all of the South Great Channel from April 1 through July 31.
Enforcement
NMFS states in the Final Rule that it will work closely with the U.S. Coast Guard to implement an effective enforcement strategy. Given the expansive area encompassed by the SMAs, it may be difficult for the Coast Guard to effectively enforce this rule given the country's current homeland security focus, as well as the Coast Guard's numerous other maritime-related missions. NMFS suggests in the Final Rule that it is aware that some existing technologies could assist in the enforcement effort, but does not provide any details. Given the fact that any deviation from the 10-knot speed restriction in the SMAs must be logged in the ship's logbook and signed by the Master, it is more likely that most enforcement actions will based on logbook entries rather than real time violations. Fines can be assessed up to $8,500 for a first time violation. It is important to note, however, that the falsification of a logbook entry can be criminally prosecuted.
Conclusions and Recommendations
This Final Rule will significantly affect vessel operations on the east coast of the United States and owners and operators are encouraged to factor these restrictions into their voyage planning. Given the effective date of December 8, 2008, the SEUS and MAUS speed management areas will be the first ones implemented and, therefore, vessel owners and operators in these areas should be extra mindful of the 10- knot restriction.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.