Hill Heat

On Tuesday, June 6, 2023, at 10:15 a.m., in room 1324 Longworth House Office Building, the Committee on Natural Resources, Subcommittee on Water, Wildlife and Fisheries will hold an oversight budget 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.”

Hearing memo

Witnesses:

• Janet Coit, Deputy Administrator for the National Oceanic and Atmospheric Administration
• Clayton L. Diamond, Executive Director, American Pilots’ Association
• Fred Gamboa, Captain, Andreas’ Toy Charters, Princeton, NJ
• Frank Hugelmeyer, President and CEO, National Marine Manufacturers Association
• Dr. Jessica Redfern, Associate Vice President of Ocean Conservation Science, Anderson Cabout Center for Ocean Life at New England Aquarium

The North Atlantic right whale (right whale) is an endangered large whale species. The right whale’s name originates from the fact that, as early as the 11th century, whalers considered right whales the “right” whale to hunt. Right whales migrate seasonally along the east coast, spending summer and fall in New England and Canadian waters. During winter months, right whales migrate to the southeastern United States for calving. Protections for right whales began in 1935 with the ratification of the League of Nation’s Convention for Regulation of Whaling. While the 1935 Convention was criticized for being ineffective, it paved the way for the establishment of the International Whaling Commission (IWC). The IWC was established by the International Convention for the Regulation of Whaling in 1946 as the global body responsible for the management of whaling and conservation of whales. This included: catch limits by species and area, designating specified areas as whale sanctuaries, protection of calves and females accompanied by calves, and restrictions on hunting methods. Currently, the IWC has 88 signatory governments, including the United States. In 1986, the IWC adopted a global moratorium on commercial whaling due to the depleting whale stocks. In the United States, right whales are protected under the Endangered Species Act of 1973 (ESA) and the Marine Mammal Protection Act of 1972 (MMPA). In fact, right whales were considered endangered in 1970, before the enactment on the ESA. Due to population concerns, the National Oceanic and Atmospheric Administration (NOAA) developed a species recovery plan in 1991 and updated the plan in 2005. Recovery strategies focus on: reducing death and injuries from vessel strikes and commercial fishing operations, identifying important habitat, monitoring the health of the stock, conducting studies on potential threats, and assessing the population. In 2017, NOAA declared an unusual mortality event (UME) for the right whale due to the number of mortalities and serious injuries in the population. While the exact cause of the UME is unknown, vessel strikes and entanglements with commercial fishing gear continue to be considered the leading causes of whale mortalities and injuries.

In 2008, to address vessel strikes, NOAA proposed speed restrictions for vessels over sixty- five feet in length when going through seasonal management areas. In 2013, NOAA made the speed restriction rule permanent. NOAA’s speed restriction rule also stated that NOAA would publish and seek comment on a report evaluating the conservation value and economic and navigational safety impacts of right whale vessel speed regulations, including any recommendations to minimize the burden of such impacts. In January 2021, NOAA released the assessment and initiated a public comment period until the end of March 2021. The assessment made several recommendations, including increasing enforcement, modifying the safety deviation provision so it could not be used as frequently, and expanding the speed restrictions to small vessels. NOAA received over thirty comments. Notably, the American Pilots’ Association, one of the Republican witnesses at today’s hearing, provided comments expressing concerns with requiring “contemporaneous electronic notification” to decrease the number of vessels using the speed restriction exemption to maneuver safely. In addition, their comments strongly opposed expanding the speed restriction rule to vessels smaller than 65 feet, stating that “could be dangerous for our member pilots and the crews that operate their pilot boats.”

On August 1, 2022, NOAA published the proposed rule amending the North Atlantic Right Whale Vessel Strike Reduction Rule. The proposed rule extends the applicability of the speed restriction rule to include boats measuring 35 feet and longer, expands the seasonal management areas, makes dynamic management areas mandatory (renamed as dynamic speed zones), and changes how the current safety deviations can be used.

While the proposed rule says the actions are “significant” under Executive Order 12866, something that would normally require review by the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget, this rule was not reviewed by OIRA. It was determined that NOAA’s draft Regulatory Impact Review estimated that only approximately 15,899 vessels would be affected by the rule and the cost of $46 million per year was not high enough to warrant review.

NOAA is currently reviewing the over 20,000 public comments submitted for the proposed rule. While there is no official timeline, NOAA anticipates a final rule by the end of the year.