80_FR_62207 80 FR 62008 - Finding for a Petition To Exclude Federally-Maintained Dredged Port Channels From New York to Jacksonville From Vessel Speed Restrictions Designed To Reduce Vessel Collisions With North Atlantic Right Whales

80 FR 62008 - Finding for a Petition To Exclude Federally-Maintained Dredged Port Channels From New York to Jacksonville From Vessel Speed Restrictions Designed To Reduce Vessel Collisions With North Atlantic Right Whales

DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration

Federal Register Volume 80, Issue 199 (October 15, 2015)

Page Range62008-62011
FR Document2015-26225

NMFS received a petition to exclude federally-maintained dredged channels and pilot boarding areas (and the immediately adjacent waters) for ports from New York to Jacksonville from the vessel speed restrictions that were established to reduce the threat of vessel collisions with North Atlantic right whales. After reviewing the information in the petition and public comments thereon, NMFS finds that the petition does not present substantial information indicating that that exclusion of these areas is necessary to address the concerns, and denies the petition. NMFS will review and revise our existing compliance guide to provide clarifying information about the navigational safety exception (i.e., the October 10, 2008, final rule's deviation provision) for the speed restrictions.

Federal Register, Volume 80 Issue 199 (Thursday, October 15, 2015)
[Federal Register Volume 80, Number 199 (Thursday, October 15, 2015)]
[Proposed Rules]
[Pages 62008-62011]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2015-26225]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 224

RIN 0648-XD314


Finding for a Petition To Exclude Federally-Maintained Dredged 
Port Channels From New York to Jacksonville From Vessel Speed 
Restrictions Designed To Reduce Vessel Collisions With North Atlantic 
Right Whales

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Petition finding.

-----------------------------------------------------------------------

SUMMARY: NMFS received a petition to exclude federally-maintained 
dredged channels and pilot boarding areas (and the immediately adjacent 
waters) for ports from New York to Jacksonville from the vessel speed 
restrictions that were established to reduce the threat of vessel 
collisions with North Atlantic right whales. After reviewing the 
information in the petition and public comments thereon, NMFS finds 
that the petition does not present substantial information indicating 
that that exclusion of these areas is necessary to address the 
concerns, and denies the petition. NMFS will review and revise our 
existing compliance guide to provide clarifying information about the 
navigational safety exception (i.e., the October 10, 2008, final rule's 
deviation provision) for the speed restrictions.

DATES: October 15, 2015.

ADDRESSES: Notice of receipt of the petition, information related to 
the previous request for public comment, and related information is 
available at: http://www.nmfs.noaa.gov/pr/shipstrike/.

FOR FURTHER INFORMATION CONTACT: Gregory Silber, Office of Protected 
Resources, Silver Spring, MD (301) 427-8402.

SUPPLEMENTARY INFORMATION: 

[[Page 62009]]

Background

    On October 10, 2008, NMFS published a final rule (73 FR 60173) that 
established a 10-knot vessel speed restriction for vessels 65 feet or 
greater in length in certain locations and at certain times of the year 
along the east coast of the United States to reduce the likelihood of 
deaths and serious injuries to endangered North Atlantic right whales 
from collisions with vessels. Of note here, the 2008 final speed 
regulation included a provision allowing for deviation from the speed 
restriction if weather and/or sea conditions severely restrict the 
vessel's maneuverability, operating at a higher speed is necessary to 
maintain safe maneuvering speed, and the need to operate at a higher 
speed is confirmed by the pilot or, if there is no pilot on board, by 
the master of the vessel. The 2008 regulation also contained a December 
9, 2013, expiration or ``sunset'' date.
    On June 6, 2013, NMFS published a proposed rule to eliminate the 
rule's sunset provision (78 FR 34024). Following a notice and public 
comment period, on December 9, 2013, NMFS published a final rule (78 FR 
73726) that removed the sunset provision. All other aspects of the 
regulation remained the same, including the navigational safety 
exception referenced above.
    During the public comment period on the June 2013 proposed rule to 
remove the sunset provision, some commenters expressed their continuing 
concern that the speed regulation, notwithstanding the navigational 
safety exception noted above, compromised navigational safety through 
reduced vessel maneuverability in some circumstances. In particular, 
the American Pilots' Association indicated that safe navigation is 
hindered by operating at or below ten knots in specific areas and 
recommended that NMFS ``exclude federally-maintained dredged channels 
and pilot boarding areas (and the immediately adjacent waters) for 
ports from New York to Jacksonville''--which they stated is an 
approximate aggregate area of 15 square miles--from the vessel speed 
restrictions.
    NMFS elected to treat the American Pilots' Association's 
recommendation to exclude vessels using federally-maintained dredged 
port entrance channels from the speed restrictions as a petition for 
rulemaking under the Administrative Procedure Act. Accordingly, we 
issued a Notice in the Federal Register announcing receipt of the 
petition and solicited comments on the request (79 FR 4883; January 31, 
2014). The Notice indicated that if we decided to proceed with the 
suggested rulemaking, we would notify the petitioner within 120 days, 
publish a notice in the Federal Register of our decision to engage in 
rulemaking, and thereafter proceed in accordance with the requirements 
for rulemaking. If we decided not to proceed with the petitioned 
rulemaking, we would notify the petitioner, provide a brief statement 
of the grounds for the decision, and publish a notice in the Federal 
Register regarding our decision not to proceed with the petitioned 
action.
    Based on consideration of information in the petition, public 
comments thereon, and related information, NMFS finds that the 
petitioned action is not necessary to address the concerns. The 
petitioner and commenters in favor of the petitioned action maintained 
that vessels navigating federally-maintained port entrance channels are 
faced with hazardous conditions unique to those channels. Commenters, 
including the U.S. Army Corps of Engineers (ACOE) identified incidents 
where vessels lost propulsion and, had the vessel not been travelling 
in excess of 10 knots, it could have created a considerable safety 
risk. ACOE submitted a study that found the speed limit increases the 
likelihood of pilot error. Concerns were also raised that communication 
barriers among foreign vessel masters, owners, and pilots, coupled with 
the need to sometimes make speed adjustments on short time frames, can 
place the vessel in jeopardy.
    The speed regulation, including the navigational safety exception 
provision, has been in effect for over 6 years, and in that time there 
have been no specific reports of navigational safety issues or related 
problems that were not addressed by the existing exception. Recent 
studies indicate that the vessel speed restriction appears to be 
achieving the objective of reducing fatal collisions with North 
Atlantic right whales. NMFS believes that it does not need to exclude 
federally-dredged and maintained navigation channels from the speed 
restrictions in order to effectively address the concerns.
    NMFS will review and revise our existing compliance guide for the 
speed restrictions to provide clarifying information about the 
deviation provision. For these reasons and as further explained in the 
responses to comments, NMFS denies the petition.

Comments and Responses

    NMFS received over 32,000 public comments in response to the 
January 30, 2014, Federal Register notice regarding this petition that 
were provided by 88 separate organizations or commenters. The majority 
of these were signed form letters from members of environmental groups; 
18 commenters provided substantive or new data or information (e.g., 
analysis or synthesis of new or existing data; legal analyses; draft or 
final technical papers or reports; or information about vessel 
navigation) not previously considered in our analysis of vessel speed 
restrictions.
    All of the signed form letters, and 39 of the commenters that 
provided information beyond a signed form letter, opposed the 
petitioned action. A total of 46 commenting organizations or 
individuals favored the petitioned action. Several comments were 
ambiguous or offered no specific opinion about the petition. Summaries 
of key points in the substantive comments and responses to these 
comments are included below.
    Comment 1: Commenters in favor of the petitioned action indicated 
that the vessel speed restrictions create serious navigational safety 
concerns, particularly in areas encompassing narrow, federally-
maintained dredged channels where two-way traffic, cross currents, seas 
and winds impact safe navigation.
    Response: Navigational safety is of paramount importance to NMFS. 
The original 2006 proposed speed regulation (71 FR 36299; June 26, 
2006) did not contain a navigational safety exception. During the 
public comment period for that proposed rule, NMFS received comments 
indicating that large vessels experience reduced steerage at low 
speeds, which is exacerbated in adverse wind and sea conditions, 
thereby compromising navigational safety. At that time a number of 
pilots and pilots' associations indicated that adequate maneuverability 
was particularly important when negotiating a port entrance or channel.
    As a result, in the 2008 final rule, NMFS instituted a navigational 
safety exception to account for severe wind and sea conditions (73 FR 
60173, 60178; October 10, 2008). Vessels may operate at a speed greater 
than 10 knots when oceanographic, hydrographic or meteorological 
conditions restrict the maneuverability of the vessel to the point that 
increased speed is necessary to ensure the safe operation of the 
vessel, as confirmed by the pilot or master. Any deviation from the 
speed restriction must be entered into the logbook, including the 
specific conditions necessitating the deviation, time and duration of 
deviation, location (latitude/longitude) where the deviation began and 
ended, and speed at which vessel was operated. The master of the vessel 
must sign and date the logbook

[[Page 62010]]

entry, attesting to its accuracy. The speed regulation, including the 
navigational safety exception provision (which has been invoked a 
number of times), has been in effect for over 6 years, and in that time 
there have been no specific reports of navigational safety issues or 
related problems that were not addressed by the existing exception. In 
fact, thousands of trips at or below 10 knots have occurred in the 
period since the rule was implemented, including in the port areas 
identified by the petitioners, and NMFS is not aware of any instance in 
which a vessel was endangered by a loss of maneuverability as a result 
of the speed restrictions. We continue to believe the navigational 
safety exception provides vessel pilots and masters sufficient 
discretion to deviate from the speed regulation when necessary to 
ensure vessel safety. Nonetheless, there may be specific areas within 
navigation channels where conditions supporting a deviation occur 
frequently. NMFS is working with the U.S. Coast Guard to better 
understand the specific conditions under which deviations may 
frequently occur in these areas.
    Comment 2: Most commenters who opposed the petitioned action noted 
that the rule (73 FR 60173; October 10, 2008) contains an exception 
provision for navigational safety concerns and encouraged NMFS not to 
grant the petition.
    Response: NMFS agrees. See our response to Comment 1, above.
    Comment 3: We received comments that the rule's (73 FR 60173; 
October 10, 2008) navigational safety exception is ambiguous and that 
some mariners are confused by the provision; specifically that 
communication barriers among foreign vessel masters, owners, and pilots 
make the speed limit impracticable; that vessel owners and shipping 
interests have been discouraging, or even prohibiting, their masters 
from invoking the deviation authority; and that the lack of 
understanding may result in a deviation not being invoked when 
necessary, placing the vessel in jeopardy.
    Response: To facilitate compliance, NMFS will review our existing 
compliance guide for the speed restrictions and provide clarifying 
information about the deviation provision. We will also investigate 
other ways to provide such clarifying information to the regulated 
community (e.g., through the U.S. Coast Pilot). Further, as noted in 
the December 9, 2013, final rule that removed the sunset provision, 
NMFS will continue to synthesize, review, and report on various aspects 
of the speed regulation, including navigational safety impacts, within 
5 years (78 FR 73734).
    Comment 4: Some commenters suggested that any lack of understanding 
or confusion about the deviation would be better addressed through 
further outreach and communication with stakeholders, rather than 
excluding some areas from the restrictions.
    Response: NMFS agrees that a rulemaking is not necessary at this 
time. See our response to the previous comment.
    Comment 5: A number of commenters contended that because the area 
in federally-maintained channels is a fraction of the total area 
included in vessel speed restriction zones, the conservation value 
would not be diminished by excluding these areas. Conversely, 
commenters indicated that the vessel speed restrictions are working as 
intended--both the probability and actual number of fatal vessel-
related right whale deaths have been reduced by the speed 
restrictions--as demonstrated by several recent studies. Commenters 
also noted that vessel traffic density is most concentrated in port 
entrances and right whale vulnerability to vessel collisions is 
elevated in these areas. They concluded that the requested exclusions 
would increase right whale vulnerability to vessel strikes in excluded 
areas.
    Response: Recent studies indicate that the vessel speed restriction 
appears to be achieving the objective of reducing fatal collisions with 
North Atlantic right whales. By design, the speed restriction focuses 
on those areas where vessels and whale occurrences overlap, including 
port entrance channels. Therefore, if NMFS were to grant the petitioned 
action the conservation value of the speed regulation would be 
diminished.
    Comment 6: One commenter noted that nearly all comments from 
shipping industry representatives on the proposed rule to remove the 
sunset provision accepted an extension of the speed restrictions (for 
at least a fixed period) without expressing concern for vessel safety 
in federally-maintained dredged entrance channels.
    Response: NMFS acknowledges that most industry comments regarding 
our proposal to remove the rule's sunset provision were in favor of 
extending (rather than removing) the sunset provision and most did not 
discuss concerns about safety in federally dredged channels. However, 
several pilots' associations and the U.S. Army Corps of Engineers 
(ACOE) submitted comments citing safety-related concerns.
    Comment 7: Another commenter observed that the petitioned action 
did not include all the U.S. east coast federally-maintained channels 
and noted, in particular, the U.S. Army Corps of Engineers (ACOE) 
imposed vessel speed restrictions in the Cape Cod Canal.
    Response: NMFS has verified the existence of an ACOE speed control 
regulation in Cape Cod Canal (33 CFR 207.20) and acknowledges that the 
Canal is not among the areas included in the petition.
    Comment 8: Several commenters stated that ship captains were being 
issued notices of violation for going speeds just above the 10-knot 
limit and, in particular, after the vessel captain had invoked the 
deviation for weather conditions.
    Response: The National Oceanic and Atmospheric Administration's 
(NOAA) Office of General Counsel, Enforcement Section (GC) issued a 
total of 53 Notices of Violation and Assessment of civil penalties 
(NOVAs) between November 2010 and December 2014. In all cases to date, 
NOVAs were only issued in cases in which the vessel exceeded the 10-
knot speed restriction by a significant amount and for a significant 
distance. Cases involving justified deviations from the speed 
restriction, properly documented in a manner consistent with 50 CFR 
224.105(c), have not resulted in the imposition of penalties. In 
addition, NOAA only began issuing NOVAs after several years of outreach 
and education during the initial phase of the regulation to ensure that 
the regulated community was informed of and educated regarding the new 
speed restriction.
    OLE/GC has also changed the way in which violations are 
investigated. Current procedures now include an opportunity, prior to a 
NOVA being issued, for vessel operators to provide log entries 
documenting their need to deviate from the speed restrictions for 
incidents under investigation.
    Comment 9: A number of commenters cited analysis and anecdotal 
information about hazardous situations that occurred in several 
instances when a vessel's propulsion system malfunctioned or a vessel 
suffered a complete loss of power. These commenters maintained that had 
these vessels been traveling 10-knots or less at the time of power 
loss, the situation could have been far worse.
    Response: NMFS recognizes that deviating from the speed limit when 
necessary to ensure the safety of the vessel is appropriate and allowed 
under our regulations. NMFS will revise its compliance guide to clarify 
how and

[[Page 62011]]

when to properly invoke the regulation's deviation provision. NMFS will 
consult with the ACOE and the USCG on these revisions. As noted, NOAA 
has the utmost concern for the safety of humans and the safe and 
efficient transport of materials.
    Comment 10: Several commenters reiterated earlier public comments 
on the need for modifications to the speed restriction rule (73 FR 
60173; October 10, 2008), in particular the need to: Increase 
management zones to include waters 30 nautical miles from shore; make 
the voluntary Dynamic Management Areas program mandatory; and consider 
making vessels <65 feet in length also subject to the provisions of the 
rule.
    Response: NMFS has addressed comments regarding modification of the 
rule in previous responses to public comments (78 FR 73733, 73734; 
December 9, 2013). While not germane to the petitioned action, NMFS is 
continuing to evaluate and consider these and other suggestions for 
possible future rulemaking. No decisions have been made.
    Comment 11: The ACOE submitted a study concluding that vessel speed 
restrictions can adversely impact the risk of ship grounding accidents 
when a ship loses power in the Charleston, SC, harbor entrance, based 
on the assumption that the restriction increased the ``likelihood of a 
piloting error by 20%'' due to diminished vessel maneuverability.
    Response: NMFS acknowledges the concerns raised by ACOE and others 
regarding the potential safety risk if a pilot does not deviate from 
the speed restrictions when necessary. NMFS is working with ACOE, the 
U.S. Coast Guard, and other relevant agencies to facilitate increased 
awareness and appropriate use of the deviation provision. This 
collaboration will inform NMFS' review and revision of our existing 
compliance guide which provides clarifying information about the 
deviation provision.
    Comment 12: The ACOE commented that NOAA lacks the legal authority 
to establish vessel speed restrictions and the authority lies instead 
with the Secretary of the Army and the ACOE under the 1894 Rivers and 
Harbors Act.
    Response: NMFS does not dispute the ACOE's assertion of authority 
to regulate activity in navigation channels. However, NMFS does not 
believe this equates to an exclusive authority to do so. The 2008 speed 
regulation, which was extended in 2013 through the removal of a sunset 
provision, is a valid exercise of NMFS' own regulatory authority under 
the Endangered Species Act and Marine Mammal Protection Act to further 
the purposes of those laws (in this case, protecting highly endangered 
right whales from injury and death from collisions with ships). NMFS 
notes the U.S. Coast Guard has likewise imposed speed regulations in 
river and port entrances pursuant to their own regulatory authorities 
(some of which are cited in our 2013 final rule).

    Authority: 5 U.S.C. 551 et seq.

    Dated: October 7, 2015.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2015-26225 Filed 10-14-15; 8:45 am]
 BILLING CODE 3510-22-P



                                                 62008                 Federal Register / Vol. 80, No. 199 / Thursday, October 15, 2015 / Proposed Rules

                                                 SIP’s public participation process, the                 the criteria of the CAA. Accordingly,                 Lead (Pb), Reporting and recordkeeping
                                                 authority to advise and consult, and the                this action merely proposes to approve                requirements.
                                                 PSD SIP’s public participation                          state law as meeting Federal                            Authority: 42 U.S.C. 7401 et seq.
                                                 requirements. Additionally, the TCAA                    requirements and does not impose
                                                 also requires initiation of cooperative                 additional requirements beyond those                    Dated: September 30, 2015.
                                                 action between local authorities and the                imposed by state law. For that reason,                Ron Curry,
                                                 TCEQ, between one local authority and                   this action:                                          Regional Administrator, Region 6.
                                                 another, or among any combination of                       • Is not a ‘‘significant regulatory                [FR Doc. 2015–26122 Filed 10–14–15; 8:45 am]
                                                 local authorities and the TCEQ for                      action’’ subject to review by the Office              BILLING CODE 6560–50–P
                                                 control of air pollution in areas having                of Management and Budget under
                                                 related air pollution problems that                     Executive Orders 12866 (58 FR 51735,
                                                 overlap the boundaries of political                     October 4, 1993) and 13563 (76 FR 3821,
                                                 subdivisions, and entering into                         January 21, 2011);                                    DEPARTMENT OF COMMERCE
                                                 agreements and compacts with                               • Does not impose an information
                                                 adjoining states and Indian tribes, where               collection burden under the provisions                National Oceanic and Atmospheric
                                                 appropriate. The transportation                         of the Paperwork Reduction Act (44                    Administration
                                                 conformity component of the Texas SIP                   U.S.C. 3501 et seq.);
                                                 requires that interagency consultation                     • Is certified as not having a                     50 CFR Part 224
                                                 and opportunity for public involvement                  significant economic impact on a
                                                 be provided before making                               substantial number of small entities                  RIN 0648–XD314
                                                 transportation conformity                               under the Regulatory Flexibility Act (5
                                                 determinations and before adopting                      U.S.C. 601 et seq.);                                  Finding for a Petition To Exclude
                                                 applicable SIP revisions on                                • Does not contain any unfunded                    Federally-Maintained Dredged Port
                                                 transportation-related issues.                          mandate or significantly or uniquely                  Channels From New York to
                                                                                                         affect small governments, as described                Jacksonville From Vessel Speed
                                                 IV. Proposed Action
                                                                                                         in the Unfunded Mandates Reform Act                   Restrictions Designed To Reduce
                                                    EPA is proposing to approve the                      of 1995 (Pub. L. 104–4);                              Vessel Collisions With North Atlantic
                                                 October 14, 2011 infrastructure SIP and                    • Does not have Federalism                         Right Whales
                                                 the September 14, 2011 interstate                       implications as specified in Executive
                                                 transport submissions from Texas,                       Order 13132 (64 FR 43255, August 10,                  AGENCY:  National Marine Fisheries
                                                 which address the requirements of CAA                   1999);                                                Service (NMFS), National Oceanic and
                                                 sections 110(a)(1) and (2) as applicable                   • Is not an economically significant               Atmospheric Administration (NOAA),
                                                 to the 2008 Pb NAAQS. Specifically,                     regulatory action based on health or                  Commerce.
                                                 EPA is proposing to approve the                         safety risks subject to Executive Order               ACTION: Petition finding.
                                                 following infrastructure elements:                      13045 (62 FR 19885, April 23, 1997);
                                                 110(a)(2)(A), (B), (C), (D), (E), (F), (G),                • Is not a significant regulatory action           SUMMARY:   NMFS received a petition to
                                                 (H), (J), (K), (L), and (M). EPA is not                 subject to Executive Order 13211 (66 FR               exclude federally-maintained dredged
                                                 acting on the submittal pertaining to                   28355, May 22, 2001);                                 channels and pilot boarding areas (and
                                                 CAA section 110(a)(2)(I)—                                  • Is not subject to requirements of                the immediately adjacent waters) for
                                                 Nonattainment Area Plan or Plan                         Section 12(d) of the National                         ports from New York to Jacksonville
                                                 Revisions because EPA believes these                    Technology Transfer and Advancement                   from the vessel speed restrictions that
                                                 need not be addressed in the i-SIP.                     Act of 1995 (15 U.S.C. 272 note) because              were established to reduce the threat of
                                                 Based upon review of the state’s                        application of those requirements would               vessel collisions with North Atlantic
                                                 infrastructure and interstate transport                 be inconsistent with the CAA; and                     right whales. After reviewing the
                                                 SIP submissions, in light of the relevant                  • Does not provide EPA with the                    information in the petition and public
                                                 statutory and regulatory authorities and                discretionary authority to address, as                comments thereon, NMFS finds that the
                                                 provisions referenced in these                          appropriate, disproportionate human                   petition does not present substantial
                                                 submissions or referenced in the Texas                  health or environmental effects, using                information indicating that that
                                                 SIP, EPA believes that Texas has the                    practicable and legally permissible                   exclusion of these areas is necessary to
                                                 infrastructure in place to address all                  methods, under Executive Order 12898                  address the concerns, and denies the
                                                 applicable required elements of sections                (59 FR 7629, February 16, 1994).                      petition. NMFS will review and revise
                                                 110(a)(1) and (2) (except otherwise                        EPA is not proposing to approve this               our existing compliance guide to
                                                 noted) to ensure that the 2008 Pb                       infrastructure SIP certification to apply             provide clarifying information about the
                                                 NAAQS are implemented in the state.                     on any Indian reservation land or in any              navigational safety exception (i.e., the
                                                 We also are proposing to approve the                    other area where EPA or an Indian tribe               October 10, 2008, final rule’s deviation
                                                 State’s demonstration that it meets the                 has demonstrated that a tribe has                     provision) for the speed restrictions.
                                                 four statutory requirements for interstate              jurisdiction. In those areas of Indian                DATES: October 15, 2015.
                                                 transport of Pb emissions.                              country, this proposed approval of an                 ADDRESSES: Notice of receipt of the
                                                                                                         infrastructure SIP certification does not             petition, information related to the
                                                 V. Statutory and Executive Order
                                                                                                         have tribal implications as specified by              previous request for public comment,
                                                 Reviews
                                                                                                         Executive Order 13175 (65 FR 67249,                   and related information is available at:
rmajette on DSK7SPTVN1PROD with PROPOSALS




                                                   Under the Clean Air Act, the                          November 9, 2000), nor will it impose
                                                 Administrator is required to approve a                                                                        http://www.nmfs.noaa.gov/pr/
                                                                                                         substantial direct costs on tribal                    shipstrike/.
                                                 SIP submission that complies with the                   governments or preempt tribal law.
                                                 provisions of the Act and applicable                                                                          FOR FURTHER INFORMATION CONTACT:
                                                 Federal regulations. 42 U.S.C. 7410(k);                 List of Subjects in 40 CFR Part 52                    Gregory Silber, Office of Protected
                                                 40 CFR 52.02(a). Thus, in reviewing SIP                   Environmental protection, Air                       Resources, Silver Spring, MD (301) 427–
                                                 submissions, EPA’s role is to approve                   pollution control, Incorporation by                   8402.
                                                 state choices, provided that they meet                  reference, Intergovernmental relations,               SUPPLEMENTARY INFORMATION:



                                            VerDate Sep<11>2014   14:31 Oct 14, 2015   Jkt 238001   PO 00000   Frm 00013   Fmt 4702   Sfmt 4702   E:\FR\FM\15OCP1.SGM   15OCP1


                                                                       Federal Register / Vol. 80, No. 199 / Thursday, October 15, 2015 / Proposed Rules                                        62009

                                                 Background                                              decided to proceed with the suggested                 The majority of these were signed form
                                                    On October 10, 2008, NMFS                            rulemaking, we would notify the                       letters from members of environmental
                                                 published a final rule (73 FR 60173) that               petitioner within 120 days, publish a                 groups; 18 commenters provided
                                                 established a 10-knot vessel speed                      notice in the Federal Register of our                 substantive or new data or information
                                                 restriction for vessels 65 feet or greater              decision to engage in rulemaking, and                 (e.g., analysis or synthesis of new or
                                                 in length in certain locations and at                   thereafter proceed in accordance with                 existing data; legal analyses; draft or
                                                 certain times of the year along the east                the requirements for rulemaking. If we                final technical papers or reports; or
                                                 coast of the United States to reduce the                decided not to proceed with the                       information about vessel navigation) not
                                                 likelihood of deaths and serious injuries               petitioned rulemaking, we would notify                previously considered in our analysis of
                                                 to endangered North Atlantic right                      the petitioner, provide a brief statement             vessel speed restrictions.
                                                                                                         of the grounds for the decision, and                     All of the signed form letters, and 39
                                                 whales from collisions with vessels. Of
                                                                                                         publish a notice in the Federal Register              of the commenters that provided
                                                 note here, the 2008 final speed
                                                                                                         regarding our decision not to proceed                 information beyond a signed form letter,
                                                 regulation included a provision                                                                               opposed the petitioned action. A total of
                                                                                                         with the petitioned action.
                                                 allowing for deviation from the speed                      Based on consideration of information              46 commenting organizations or
                                                 restriction if weather and/or sea                       in the petition, public comments                      individuals favored the petitioned
                                                 conditions severely restrict the vessel’s               thereon, and related information, NMFS                action. Several comments were
                                                 maneuverability, operating at a higher                  finds that the petitioned action is not               ambiguous or offered no specific
                                                 speed is necessary to maintain safe                     necessary to address the concerns. The                opinion about the petition. Summaries
                                                 maneuvering speed, and the need to                      petitioner and commenters in favor of                 of key points in the substantive
                                                 operate at a higher speed is confirmed                  the petitioned action maintained that                 comments and responses to these
                                                 by the pilot or, if there is no pilot on                vessels navigating federally-maintained               comments are included below.
                                                 board, by the master of the vessel. The                 port entrance channels are faced with                    Comment 1: Commenters in favor of
                                                 2008 regulation also contained a                        hazardous conditions unique to those                  the petitioned action indicated that the
                                                 December 9, 2013, expiration or                         channels. Commenters, including the                   vessel speed restrictions create serious
                                                 ‘‘sunset’’ date.                                        U.S. Army Corps of Engineers (ACOE)                   navigational safety concerns,
                                                    On June 6, 2013, NMFS published a                    identified incidents where vessels lost               particularly in areas encompassing
                                                 proposed rule to eliminate the rule’s                   propulsion and, had the vessel not been               narrow, federally-maintained dredged
                                                 sunset provision (78 FR 34024).                         travelling in excess of 10 knots, it could            channels where two-way traffic, cross
                                                 Following a notice and public comment                   have created a considerable safety risk.              currents, seas and winds impact safe
                                                 period, on December 9, 2013, NMFS                       ACOE submitted a study that found the                 navigation.
                                                 published a final rule (78 FR 73726) that               speed limit increases the likelihood of                  Response: Navigational safety is of
                                                 removed the sunset provision. All other                 pilot error. Concerns were also raised                paramount importance to NMFS. The
                                                 aspects of the regulation remained the                  that communication barriers among                     original 2006 proposed speed regulation
                                                 same, including the navigational safety                 foreign vessel masters, owners, and                   (71 FR 36299; June 26, 2006) did not
                                                 exception referenced above.                             pilots, coupled with the need to                      contain a navigational safety exception.
                                                    During the public comment period on                  sometimes make speed adjustments on                   During the public comment period for
                                                 the June 2013 proposed rule to remove                   short time frames, can place the vessel               that proposed rule, NMFS received
                                                 the sunset provision, some commenters                   in jeopardy.                                          comments indicating that large vessels
                                                 expressed their continuing concern that                    The speed regulation, including the                experience reduced steerage at low
                                                 the speed regulation, notwithstanding                   navigational safety exception provision,              speeds, which is exacerbated in adverse
                                                 the navigational safety exception noted                 has been in effect for over 6 years, and              wind and sea conditions, thereby
                                                 above, compromised navigational safety                  in that time there have been no specific              compromising navigational safety. At
                                                 through reduced vessel maneuverability                  reports of navigational safety issues or              that time a number of pilots and pilots’
                                                 in some circumstances. In particular,                   related problems that were not                        associations indicated that adequate
                                                 the American Pilots’ Association                        addressed by the existing exception.                  maneuverability was particularly
                                                 indicated that safe navigation is                       Recent studies indicate that the vessel               important when negotiating a port
                                                 hindered by operating at or below ten                   speed restriction appears to be                       entrance or channel.
                                                 knots in specific areas and                             achieving the objective of reducing fatal                As a result, in the 2008 final rule,
                                                 recommended that NMFS ‘‘exclude                         collisions with North Atlantic right                  NMFS instituted a navigational safety
                                                 federally-maintained dredged channels                   whales. NMFS believes that it does not                exception to account for severe wind
                                                 and pilot boarding areas (and the                       need to exclude federally-dredged and                 and sea conditions (73 FR 60173, 60178;
                                                 immediately adjacent waters) for ports                  maintained navigation channels from                   October 10, 2008). Vessels may operate
                                                 from New York to Jacksonville’’—which                   the speed restrictions in order to                    at a speed greater than 10 knots when
                                                 they stated is an approximate aggregate                 effectively address the concerns.                     oceanographic, hydrographic or
                                                 area of 15 square miles—from the vessel                    NMFS will review and revise our                    meteorological conditions restrict the
                                                 speed restrictions.                                     existing compliance guide for the speed               maneuverability of the vessel to the
                                                    NMFS elected to treat the American                   restrictions to provide clarifying                    point that increased speed is necessary
                                                 Pilots’ Association’s recommendation to                 information about the deviation                       to ensure the safe operation of the
                                                 exclude vessels using federally-                        provision. For these reasons and as                   vessel, as confirmed by the pilot or
                                                 maintained dredged port entrance                        further explained in the responses to                 master. Any deviation from the speed
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                                                 channels from the speed restrictions as                 comments, NMFS denies the petition.                   restriction must be entered into the
                                                 a petition for rulemaking under the                                                                           logbook, including the specific
                                                 Administrative Procedure Act.                           Comments and Responses                                conditions necessitating the deviation,
                                                 Accordingly, we issued a Notice in the                    NMFS received over 32,000 public                    time and duration of deviation, location
                                                 Federal Register announcing receipt of                  comments in response to the January 30,               (latitude/longitude) where the deviation
                                                 the petition and solicited comments on                  2014, Federal Register notice regarding               began and ended, and speed at which
                                                 the request (79 FR 4883; January 31,                    this petition that were provided by 88                vessel was operated. The master of the
                                                 2014). The Notice indicated that if we                  separate organizations or commenters.                 vessel must sign and date the logbook


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                                                 62010                 Federal Register / Vol. 80, No. 199 / Thursday, October 15, 2015 / Proposed Rules

                                                 entry, attesting to its accuracy. The                   including navigational safety impacts,                   Comment 7: Another commenter
                                                 speed regulation, including the                         within 5 years (78 FR 73734).                         observed that the petitioned action did
                                                 navigational safety exception provision                    Comment 4: Some commenters                         not include all the U.S. east coast
                                                 (which has been invoked a number of                     suggested that any lack of                            federally-maintained channels and
                                                 times), has been in effect for over 6                   understanding or confusion about the                  noted, in particular, the U.S. Army
                                                 years, and in that time there have been                 deviation would be better addressed                   Corps of Engineers (ACOE) imposed
                                                 no specific reports of navigational safety              through further outreach and                          vessel speed restrictions in the Cape
                                                 issues or related problems that were not                communication with stakeholders,                      Cod Canal.
                                                 addressed by the existing exception. In                 rather than excluding some areas from                    Response: NMFS has verified the
                                                 fact, thousands of trips at or below 10                 the restrictions.                                     existence of an ACOE speed control
                                                 knots have occurred in the period since                    Response: NMFS agrees that a                       regulation in Cape Cod Canal (33 CFR
                                                 the rule was implemented, including in                  rulemaking is not necessary at this time.             207.20) and acknowledges that the
                                                 the port areas identified by the                        See our response to the previous                      Canal is not among the areas included
                                                 petitioners, and NMFS is not aware of                   comment.                                              in the petition.
                                                 any instance in which a vessel was                         Comment 5: A number of commenters                     Comment 8: Several commenters
                                                 endangered by a loss of maneuverability                 contended that because the area in                    stated that ship captains were being
                                                 as a result of the speed restrictions. We               federally-maintained channels is a                    issued notices of violation for going
                                                 continue to believe the navigational                    fraction of the total area included in                speeds just above the 10-knot limit and,
                                                 safety exception provides vessel pilots                 vessel speed restriction zones, the                   in particular, after the vessel captain
                                                 and masters sufficient discretion to                    conservation value would not be                       had invoked the deviation for weather
                                                 deviate from the speed regulation when                  diminished by excluding these areas.                  conditions.
                                                 necessary to ensure vessel safety.                      Conversely, commenters indicated that                    Response: The National Oceanic and
                                                 Nonetheless, there may be specific areas                the vessel speed restrictions are working             Atmospheric Administration’s (NOAA)
                                                 within navigation channels where                        as intended—both the probability and                  Office of General Counsel, Enforcement
                                                 conditions supporting a deviation occur                 actual number of fatal vessel-related                 Section (GC) issued a total of 53 Notices
                                                 frequently. NMFS is working with the                    right whale deaths have been reduced                  of Violation and Assessment of civil
                                                 U.S. Coast Guard to better understand                   by the speed restrictions—as                          penalties (NOVAs) between November
                                                 the specific conditions under which                     demonstrated by several recent studies.               2010 and December 2014. In all cases to
                                                 deviations may frequently occur in                      Commenters also noted that vessel                     date, NOVAs were only issued in cases
                                                 these areas.                                            traffic density is most concentrated in               in which the vessel exceeded the 10-
                                                    Comment 2: Most commenters who                       port entrances and right whale                        knot speed restriction by a significant
                                                 opposed the petitioned action noted that                vulnerability to vessel collisions is                 amount and for a significant distance.
                                                 the rule (73 FR 60173; October 10, 2008)                elevated in these areas. They concluded               Cases involving justified deviations
                                                 contains an exception provision for                     that the requested exclusions would                   from the speed restriction, properly
                                                 navigational safety concerns and                        increase right whale vulnerability to                 documented in a manner consistent
                                                 encouraged NMFS not to grant the                        vessel strikes in excluded areas.                     with 50 CFR 224.105(c), have not
                                                 petition.                                                  Response: Recent studies indicate that             resulted in the imposition of penalties.
                                                    Response: NMFS agrees. See our                       the vessel speed restriction appears to               In addition, NOAA only began issuing
                                                 response to Comment 1, above.                           be achieving the objective of reducing                NOVAs after several years of outreach
                                                    Comment 3: We received comments                      fatal collisions with North Atlantic right            and education during the initial phase
                                                 that the rule’s (73 FR 60173; October 10,               whales. By design, the speed restriction              of the regulation to ensure that the
                                                 2008) navigational safety exception is                  focuses on those areas where vessels                  regulated community was informed of
                                                 ambiguous and that some mariners are                    and whale occurrences overlap,                        and educated regarding the new speed
                                                 confused by the provision; specifically                 including port entrance channels.                     restriction.
                                                 that communication barriers among                       Therefore, if NMFS were to grant the                     OLE/GC has also changed the way in
                                                 foreign vessel masters, owners, and                     petitioned action the conservation value              which violations are investigated.
                                                 pilots make the speed limit                             of the speed regulation would be                      Current procedures now include an
                                                 impracticable; that vessel owners and                   diminished.                                           opportunity, prior to a NOVA being
                                                 shipping interests have been                               Comment 6: One commenter noted                     issued, for vessel operators to provide
                                                 discouraging, or even prohibiting, their                that nearly all comments from shipping                log entries documenting their need to
                                                 masters from invoking the deviation                     industry representatives on the                       deviate from the speed restrictions for
                                                 authority; and that the lack of                         proposed rule to remove the sunset                    incidents under investigation.
                                                 understanding may result in a deviation                 provision accepted an extension of the                   Comment 9: A number of commenters
                                                 not being invoked when necessary,                       speed restrictions (for at least a fixed              cited analysis and anecdotal
                                                 placing the vessel in jeopardy.                         period) without expressing concern for                information about hazardous situations
                                                    Response: To facilitate compliance,                  vessel safety in federally-maintained                 that occurred in several instances when
                                                 NMFS will review our existing                           dredged entrance channels.                            a vessel’s propulsion system
                                                 compliance guide for the speed                             Response: NMFS acknowledges that                   malfunctioned or a vessel suffered a
                                                 restrictions and provide clarifying                     most industry comments regarding our                  complete loss of power. These
                                                 information about the deviation                         proposal to remove the rule’s sunset                  commenters maintained that had these
                                                 provision. We will also investigate other               provision were in favor of extending                  vessels been traveling 10-knots or less at
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                                                 ways to provide such clarifying                         (rather than removing) the sunset                     the time of power loss, the situation
                                                 information to the regulated community                  provision and most did not discuss                    could have been far worse.
                                                 (e.g., through the U.S. Coast Pilot).                   concerns about safety in federally                       Response: NMFS recognizes that
                                                 Further, as noted in the December 9,                    dredged channels. However, several                    deviating from the speed limit when
                                                 2013, final rule that removed the sunset                pilots’ associations and the U.S. Army                necessary to ensure the safety of the
                                                 provision, NMFS will continue to                        Corps of Engineers (ACOE) submitted                   vessel is appropriate and allowed under
                                                 synthesize, review, and report on                       comments citing safety-related                        our regulations. NMFS will revise its
                                                 various aspects of the speed regulation,                concerns.                                             compliance guide to clarify how and


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                                                                       Federal Register / Vol. 80, No. 199 / Thursday, October 15, 2015 / Proposed Rules                                              62011

                                                 when to properly invoke the                                Comment 11: The ACOE submitted a                      Response: NMFS does not dispute the
                                                 regulation’s deviation provision. NMFS                  study concluding that vessel speed                    ACOE’s assertion of authority to
                                                 will consult with the ACOE and the                      restrictions can adversely impact the                 regulate activity in navigation channels.
                                                 USCG on these revisions. As noted,                      risk of ship grounding accidents when                 However, NMFS does not believe this
                                                 NOAA has the utmost concern for the                     a ship loses power in the Charleston,                 equates to an exclusive authority to do
                                                 safety of humans and the safe and                       SC, harbor entrance, based on the                     so. The 2008 speed regulation, which
                                                 efficient transport of materials.                       assumption that the restriction                       was extended in 2013 through the
                                                    Comment 10: Several commenters                       increased the ‘‘likelihood of a piloting              removal of a sunset provision, is a valid
                                                 reiterated earlier public comments on                   error by 20%’’ due to diminished vessel               exercise of NMFS’ own regulatory
                                                 the need for modifications to the speed                 maneuverability.
                                                                                                                                                               authority under the Endangered Species
                                                                                                            Response: NMFS acknowledges the
                                                 restriction rule (73 FR 60173; October                                                                        Act and Marine Mammal Protection Act
                                                                                                         concerns raised by ACOE and others
                                                 10, 2008), in particular the need to:                                                                         to further the purposes of those laws (in
                                                                                                         regarding the potential safety risk if a
                                                 Increase management zones to include                                                                          this case, protecting highly endangered
                                                                                                         pilot does not deviate from the speed
                                                 waters 30 nautical miles from shore;                                                                          right whales from injury and death from
                                                                                                         restrictions when necessary. NMFS is
                                                 make the voluntary Dynamic                                                                                    collisions with ships). NMFS notes the
                                                                                                         working with ACOE, the U.S. Coast
                                                 Management Areas program mandatory;                                                                           U.S. Coast Guard has likewise imposed
                                                                                                         Guard, and other relevant agencies to
                                                 and consider making vessels <65 feet in                                                                       speed regulations in river and port
                                                                                                         facilitate increased awareness and
                                                 length also subject to the provisions of                appropriate use of the deviation                      entrances pursuant to their own
                                                 the rule.                                               provision. This collaboration will                    regulatory authorities (some of which
                                                    Response: NMFS has addressed                         inform NMFS’ review and revision of                   are cited in our 2013 final rule).
                                                 comments regarding modification of the                  our existing compliance guide which                     Authority: 5 U.S.C. 551 et seq.
                                                 rule in previous responses to public                    provides clarifying information about
                                                 comments (78 FR 73733, 73734;                           the deviation provision.                                Dated: October 7, 2015.
                                                 December 9, 2013). While not germane                       Comment 12: The ACOE commented                     Donna S. Wieting,
                                                 to the petitioned action, NMFS is                       that NOAA lacks the legal authority to                Director, Office of Protected Resources,
                                                 continuing to evaluate and consider                     establish vessel speed restrictions and               National Marine Fisheries Service.
                                                 these and other suggestions for possible                the authority lies instead with the                   [FR Doc. 2015–26225 Filed 10–14–15; 8:45 am]
                                                 future rulemaking. No decisions have                    Secretary of the Army and the ACOE
                                                                                                                                                               BILLING CODE 3510–22–P
                                                 been made.                                              under the 1894 Rivers and Harbors Act.
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Document Created: 2018-02-27 08:52:21
Document Modified: 2018-02-27 08:52:21
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionProposed Rules
ActionPetition finding.
DatesOctober 15, 2015.
ContactGregory Silber, Office of Protected Resources, Silver Spring, MD (301) 427-8402.
FR Citation80 FR 62008 
RIN Number0648-XD31

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