$82 million in Inflation Reduction Act funding for North Atlantic Right Whales

RE: $82 million in Inflation Reduction Act funding for North Atlantic right whales

You can also read the full letter here.

September 27, 2023

The Honorable Gina Raimondo
Secretary of Commerce
1401 Constitution Avenue, NW
Washington, DC 20230

RE: $82 million in Inflation Reduction Act funding for North Atlantic right whales

Dear Secretary Raimondo:

The undersigned, representing America’s millions of recreational anglers and boaters, the sporting conservation community and the marine recreation industry, submit the following request in response to the National Oceanic and Atmospheric Administration (NOAA) notifying the public of its intention to provide funding for the purpose of reducing mortality to North Atlantic right whales (NARW). We appreciate NOAA’s commitment to provide $82 million in funding, a portion of which will be aimed at reducing the risk of vessel strikes to the critically endangered NARW. Properly directed, this funding could represent a significant step toward meeting long-term conservation goals for this species while accommodating the concerns of our industry. Our industries bring substantial expertise to the very tasks that NOAA has outlined, and we strongly recommend that NOAA designate BoatUS Foundation to administer critical elements of the funding plan as set forth below. BoatUS Foundation, which administers ocean debris program funds for NOAA, would disburse these funds in the most expeditious and effective manner.

Monitoring and Modeling: $5.2 million to advance modeling using AI and historic/live data to predict whale locations. This would be distinct from the passive acoustic monitoring proposal by NOAA.
Vessel Strike Risk Reduction: $16.7 million for research, development and deployment of technology and practices to eliminate vessel strikes by recreational boaters. Plus, $5.1 million for education and outreach to boaters on avoidance and compliance (both risk reduction and enforcement categories).
Enforcement Efforts: $5.0 million for electronic communication advancements in enforcement mitigation so that boaters are fully informed of situational whale detection and responses.

We are fully committed to supporting the protection of North Atlantic right whales and are eager to collaborate with NOAA and others to ensure the effective utilization of this funding. Technology and education must be leveraged to achieve that goal—our more detailed comments are attached hereto. We are eager to meet with you as soon as is convenient to review this recommended approach.

Respectfully,

Glenn Hughes, President
American Sportfishing Association

Dr. Guy Harvey, Ph.D., Chairman Emeritus
Guy Harvey Foundation

Chris Edmonston, VP Government Affairs
Boat Owners Association of the United States

Jason Schratwieser, President
International Game Fish Association

Jim McDuffie, President
Bonefish and Tarpon Trust

Matt Gruhn, President
Marine Retailers Association of the Americas

Jeff Angers, President
Center for Sportfishing Policy

Frank Hugelmeyer, President
National Marine Manufacturers Association

Patrick Murray, President
Coastal Conservation Association

Whit Fosburgh, President and CEO
Theodore Roosevelt Conservation Partnership

Jeff Crane, President and CEO
Congressional Sportsmen’s Foundation

Marine Recreation Community’s Detailed Recommendations for Allocating Inflation Reduction Act Funding for North Atlantic Right Whale Conservation

In the proposed vessel speed rule (VSR), the National Oceanic and Atmospheric Administration (NOAA) acknowledges that technology can play a role in this issue stating, “NMFS also recognizes the role whale avoidance technologies may play in preventing vessel collisions and remains open to the future application of these technologies, if proven safe and effective.” This statement underscores our primary interest in this funding opportunity: that the money be used to explore effective technologies that prevent vessel collisions.

The recreational fishing and boating community must be active partners as these funds are rolled out. NOAA acknowledges the need to engage with the recreational fishing industry by stating in the National Saltwater Recreational Fishing Policy the importance of, “Engaging with the recreational fishing community to understand and reduce interactions with protected species.” Furthermore, NOAA’s Spotlight Species Actions for the North Atlantic right whale (NARW) states that NOAA is looking to carry out the following objectives:

Encouraging community stewardship and citizen science.
Reducing human-caused threats such as entanglement in fishing gear, habitat destruction, vessel strikes, and noise pollution.

We highlight these intentions made by NOAA to ensure that the recreational fishing and boating industry is consulted and included in this work. Recreational boaters are the most affected stakeholders of the VSR based on numbers of vessels, impacts to safety, impacts to the intended use of boats and that the entirety of our trips would be subject to speed restrictions thereby forcing their cancellation. Unfortunately, the record indicates that NOAA has a poor record of funding recreation-focused research. We emphasize the need for NOAA to work with our sector in this effort by partnering with BoatUS Foundation to administer a portion of the funds.

It is imperative to emphasize that all projects funded by this tranche of money should meet two basic criteria.

Projects must demonstrate a quantifiable reduction of risk. According to the Marine Mammal Commission, NOAA has been devoting considerable amounts of funds toward marine mammal research over the past two decades. Reports show that in FY2015, NOAA had a budget of $68.3 million for marine mammal research. In more recent years, NOAA had a marine mammal research budget of $36.96 million (FY19), $35.85 million (FY20) and $38.87 million (FY21). More than 30% of that money was allocated for technology development. It is important to recognize this spending history because it demonstrates that considerable money has been dedicated toward marine mammal research over the past 10 years, but those resources failed to produce meaningful results that are applicable to the current issue. The announcement of $82 million will only have value if it is directed toward innovative projects and research that produce measurable results to reduce risk of vessel strikes. We stress this point to illustrate that it is not just about money or a certain amount of money, but how the money is put to work.
Projects must be scalable. The proposed rule stands to subject 63,000 additional boats to vessel speed restrictions. Many of these boats are for recreational use and due to their construction, small relative size, and cost, there are limits to what technology can be deployed on these platforms. Technological advancements funded with Inflation Reduction Act money should focus on benefiting the largest number of boats. These funds should not be used to develop equipment or other systems that have limited applications or can only be installed on a certain class of vessels, such as large, ocean-going, steel-hulled vessels. Projects must have benefits for the entire fleet. There are ways of addressing the inherent challenges of scaling up technology to reach all recreational boats through better communication and information sharing capabilities. As experts in our industry, we are asking to partner with NOAA on these important details.

Considering these comments, we would like to offer the following guidance on how we believe the $82 million should be best allocated to projects that will produce measurable results and ensure the quantifiable reduction of risk needed to recover the species. Key areas that warrant significant attention and funding include:

Monitoring, Detection and Communication Technology/Practices: NOAA must prioritize research and development efforts aimed at innovative monitoring and detection technologies and practices for NARW. Currently there are programs that detect whales through various methods including visual sightings. These programs should be expanded to improve their timeliness by reducing the time of verification, and improving the rate at which this information is communicated to vessel operators and managers. There should also be support dedicated to exploring methods that can mimic satellite tagging such as tracking with gliders, drones, and other autonomous vehicles.Real-time information about the location of North Atlantic right whales is crucial for vessel operators to make informed decisions and avoid potential encounters. But that information only has value if it is relayed in a useable way to vessel operators to prompt appropriate action. Information from these types of efforts is primarily aggregated through one or more central database(s). These data populate websites and apps but do not go directly to vessel operators and therefore have limited use. BoatUS Foundation would support advancements that seek to actively communicate this information to mariners in real time using marine electronics or through phone applications. This will not only benefit the conservation of NARW but also enhance the safety of recreational boaters. Garmin is leading an effort to advance communication tools that would signal a significant breakthrough not only for existing data but also for all information gathered through projects envisioned by the Whale and Vessel Safety (WAVS) Taskforce.
Data Modeling to Predict Whale Locations: Leveraging historical and real-time data with advanced artificial intelligence and machine learning technologies can revolutionize our ability to predict the locations of NARW. These predictive models can be integrated into nautical charts and GPS technologies, providing vessel operators with up-to-date information on likely whale presence and migration patterns. This real-time data-driven approach empowers boaters to make informed decisions and take proactive measures to mitigate risk. We have seen that these models are highly effective in predicting areas of highest probability to catch recreationally important species such as billfish and tuna. These models are driven by data sets that include bathymetric features as well as physical features from ocean observations. Used in a similar application for NARW, risk terrain models can offer critical information to help inform management decisions and response with appropriate management action that is more refined and nuanced compared to the broad-brush approach seen in the proposed VSR.
Outreach and Education: Outreach and education programs targeted at boaters and fishermen will play a pivotal role in raising awareness about the presence and conservation needs of NARW. Several investigations find that compliance with the existing 2008 VSR were extremely low. A recent report published by NOAA states “Compliance in entrance areas (SMZ’s) outside the ports of Wilmington, Charleston, and Brunswick were exceptionally low, never reaching over 20% since 2008 except for the first season in Wilmington (Figures 45, 46 and 48).” Since the 2008 rules are largely directed to commercial vessels where the operator likely is not the owner, outreach to the maritime community could advance compliance. If compliance with existing regulations can be substantially improved, particularly in the waters frequented mostly by female and calf NARW, there should be measurable conservation benefits by simply educating operators on rules that have been in place for over 15 years. The same can be said for the voluntary dynamic management zones (DMZs) that are triggered by an acoustic detection and/or visual observation of three or more NARW. Reporting on DMZs found even lower compliance, 15% or lower. A logical first step would be to use some of this funding to improve compliance through outreach and education. By investing in such initiatives, we can ensure that recreational boaters are well-informed and engaged in responsible practices. BoatUS’ leadership in this area can facilitate the dissemination of essential information and foster a continued culture of responsible coexistence between boaters and marine mammals. Outreach and engagement with the recreational sector were also identified as a priority by NOAA and were included in the National Saltwater Recreational Fisheries Policy published in March 2022.

In conclusion, we view this funding opportunity as a unique and hopefully groundbreaking opportunity to make a significant and lasting impact on North Atlantic right whale conservation and management. We have an opportunity to move away from a single tool approach and to develop multiple ways to address this conservation challenge. It also is an opportunity for NOAA to engage and support stakeholders, such as recreational anglers and the marine industry, who largely have been left out of these discussions. While there has been considerable allocation of funds to marine mammal research over the past 20 years, we believe that the key is not just the amount of funding but the strategic direction it takes.

We propose a shift toward solutions-driven and collaborative research that directly benefits mariners by reducing their risk of striking a whale and that drives the management process to allow the continued use of the public waters without compromising safety or public use. This includes embracing risk modeling tools, remote tracking, large-scale movement models, remote observation, and advanced technologies like oceanic lidar. All approaches that can offer measurable reduction in the occurrence of vessel strikes should be considered.

We also acknowledge the historical policy regarding safeguarding real-time data on whale locations. This policy, to a large extent, is responsible for the current situation where NOAA has limited options to manage the risk of vessel strikes with NARW. To effectively protect these whales, we believe it is essential to accelerate progress on providing such data to the public and vessel operators, ultimately enhancing the effectiveness of risk reduction efforts. Providing more information, not less, to the public is the only way to address this challenge.

We are ready and willing to work closely with NOAA, technology partners, and industry representatives to ensure that this funding leads to innovative and effective projects that protect North Atlantic right whales while minimizing adverse impacts on the recreational fishing and boating community. However, we cannot afford to continue funding the same programs that are disconnected from management. This ‘historic’ money must go toward projects that are specifically focusing on reducing risk of vessel strikes.

Thank you for your attention to this critical matter, and we look forward to collaborating with NOAA to achieve our shared conservation and management goals.

Recreational Fishing and Boating Comments on Proposed Right Whale and Rice’s Whale Regulations

Re: Questions on NOAA Technical Memorandum NMFS-SEFSC-757 and Draft Regulatory Impact Review/Initial Regulatory Flexibility Analysis, Proposed North Atlantic Right Whale Vessel Strike Reduction Rule

October 31, 2022

Ms. Janet Coit
Assistant Administrator for Fisheries
National Oceanic and Atmospheric Administration
1315 East West Highway
Silver Spring, MD 20910

Dear Administrator Coit:

The undersigned representatives of the recreational fishing and boating community submit this supplemental letter as part of the official public record for the proposed changes to the North Atlantic Right Whale Vessel Strike Reduction Rule (Docket No. 220722-0162). Since our initial comments on the proposed rule, we identified additional issues with the analysis and methodology used by the National Marine Fisheries Service (NMFS) to develop the proposed changes that warrant more thorough analysis, review and consideration. We understand the importance of protecting the endangered North Atlantic Right Whale (RW), and considering the safety concerns to RWs and human life, it is simply in our best interest to reduce strike risks. We believe that the issues detailed in both letters, if not addressed, limit the scope of alternatives that have been presented to the public as options to address the conservation objectives for the RW population. We request that prior to publishing the final rule, responses to these issues and any additional analyses are made available to the public for review.

We appreciate the 30-day public comment extension granted on the proposed rule. However, we still have outstanding questions and concerns. Therefore, we submit this supplemental letter with the interest that forthcoming responses and additional analyses will result in alternatives that address risk relative to vessel size. We also hope the questions in Appendix 1 assist NMFS in developing the final rule.

Risk Modeling and the Establishment of the Proposed Seasonal Speed Zones
In reviewing the proposed expansion of the seasonal speed zones, it is unclear if modeled risk is uniform across the entire area or what risk threshold was used to determine if an area requires protection or not. This is critically important for us to understand if the level of modeled risk is representative of actual risk. From our understanding, the risk assessment does not treat vessel size class differently meaning all the vessels, and associated risk, are grouped together resulting in a broad expansion of the speed zones in space and time. Assuming that vessels in the 35-to-65-foot size class have the same risk to RW as vessels 65 foot and greater is incorrect given known differences in vessel characteristics (e.g., draft depth, vessel traffic patterns). Given the significant differences in characteristics between vessel size class, risk must be modeled for each size class independently.

Although vessel traffic data for the 35-to-65-foot size class are limited, we believe observed vessel traffic patterns for this size class are represented by available data and expect additional data would confirm existing vessel traffic patterns. Therefore, we recommend that NMFS reconsider alternatives specific to vessel size classes given known risk differences between vessels 35 to 65 foot versus vessels 65 foot and larger.

Thank you for your continued consideration of our comments and questions.

Sincerely,

Glenn Hughes, President
American Sportfishing Association

Dr. Guy Harvey, Ph.D., Chairman Emeritus
Guy Harvey Ocean Foundation

Chris Edmonston, VP Government Affairs
Boat Owners Association of the United States

Jason Schratwieser, President
International Game Fish Association

Jim McDuffie, President
Bonefish and Tarpon Trust

Matt Gruhn, President
Marine Retailers Association of the Americas

Jeff Angers, President
Center for Sportfishing Policy

Frank Hugelmeyer, President
National Marine Manufacturers Association

Patrick Murray, President
Coastal Conservation Association

Rob Nixon, Executive Director
Recreational Fishing Alliance

Jeff Crane, President and CEO
Congressional Sportsmen’s Foundation

Whit Fosburgh, President and CEO
Theodore Roosevelt Conservation Partnership

Attachment: Appendix 1

Appendix 1: Outstanding questions regarding NMFS’ Technical Memorandum NMFS-SEFSC-757 (TM), the Draft Regulatory Impact Review and Initial Regulatory Flexibility Analysis (RIR) and the Proposed Rule.

NMFS’ Technical Memorandum NMFS-SEFSC-757

Risk Modeling

Can you describe in detail the quantitative and qualitative analyses that are used to produce the whale density value, the vessel traffic values and the associated mortality risk between the two?
How are qualitative or quantitative values, such as visual or acoustic detection, included in the risk model, risk assessment, and proposed expansion of the seasonal speed zones?
What units are applied to the risk mortality output of the model?
What is the numerical risk threshold applied to each 10km x 10km spatial cell to determine if that cell should be included in a seasonal speed zone?
Can you describe in detail how outputs from the risk modeling are then converted to the proposed expansion of the seasonal speed zones?
Can you provide output and analyses that show modeled risk by vessel size class and how that would equate to different alternatives for seasonal speed zones?

On page 5, the TM states: “The first component, encounter risk (λe), is the risk of encounter between an individual vessel and whale assuming that both are moving randomly with respect to one another within a defined spatial area for a total amount of time, t, which is the amount of time it takes for a vessel to transit the area.”

What value is used for t (time)?
Is the value of t applied to all vessels 35 foot and up in evaluating strike risk?
What sensitivity analysis was conducted for t relative to boat size?
Using this equation, with t in the numerator (see equation 1 on page 5), a faster boat will have a lower encounter risk than a slower boat. Can it be determined, using this equation, that boats have a lower exposure of strike risk when t is lower and speed is higher?
What is the estimated t that NMFS assumes a 35-foot boat moves through a 10km x 10km spatial cell?

On page 6, the TM states: “For this analysis, rc is defined by the body length of an individual whale based on the size distribution for adult NARW described in Fortune et al. (2021; mean = 13.5 m). With this approach, we infer that a vessel strike has occurred when the whale and vessel approach within one body length of the animal.”

Is this assumption and the use of critical radius reflective of the actual strike risk profile of a 35 to 65 foot vessel that is on plane?
Does NMFS acknowledge that vessels 35 to 65 foot have a smaller three-dimensional strike risk footprint than vessels over 65 feet?
Can a sensitivity analysis be conducted that would look at different critical radius values that are more reflective of the actual strike footprint of vessels 35 to 65 foot?

On page 6, the TM states: “For blue whales, McKenna et al. (2015) documented limited lateral movement in response to vessels approaching within 1 km of an individual whale, but they did observe a weak dive response with relatively slow descents.”

Did NMFS do any sensitivity analysis to determine if draft has a favorable impact on strike risk based on this statement that the primary avoidance response of whales in response to approaching vessels is vertical?
Does NMFS acknowledge that vessels with shallower drafts (under 2 meters) have an implicit lower strike risk profile than vessels with drafts over 2 meters?

On page 8, the TM states: “For this analysis, we used a depth of 10 m to indicate that a whale was within the draft depth of the majority of vessels and would therefore be at risk of an interaction.”

Can a sensitivity analysis be conducted for the 35-to-65-foot size class using a probability at strike depth value of 2 meters?
Can a regression be produced that links strike risk to vessel draft?

On page 8, the TM states: “The probability of mortality given a vessel strike was modeled using the logistic regression described in Conn and Silber (2013). This data set included information from a range of vessel sizes; however, the majority of these were from large commercial vessels.”

Can NMFS quantify the bias, in terms of strike risk, that is created in response to the use of data to calculate mortality risk that comes overwhelmingly from larger commercial vessels.
Can NMFS analyze the data to determine a probability of mortality value specific to boats 35 to 65 foot?

On page 9, the TM states: “A habitat-based spatial density model (SDM) was used to predict NARW spatial distribution along the U.S. east coast. The model follows the SDM approach (Miller et al. 2013) that uses line-transect survey data and the Distance analysis method to estimate detection probability for encountered NARWs in combination with a Generalized Additive Model to predict animal density (number of whales per km2) based upon environmental features (e.g., sea surface temperature, water depth, etc.) over a spatial grid (Roberts et al. 2016).”

Is categorizing whale distribution based on suitable habitat appropriate or consistent with empirical observations of whales?
How are qualitative data sources included in this density model?
Are qualitative data sources weighted the same as empirical data on right whale distribution?

On page 12, the TM states: “However, the high densities predicted along the mid-Atlantic may not be realistic. In recent years, intensive aerial surveys have been conducted over Nantucket Shoals, and high densities of animals have been observed (Quintana-Rizzo et al. 2021). This localized high density strongly influences the mid-Atlantic regional model and may result in positively biased density estimates.”

Given that we know the direction of the bias, which results in an overestimation of density, has there been any work to show the magnitude of this bias?
When will this bias be corrected?
When does NMFS expect to have realistic right whale density estimates for the Mid-Atlantic region?
Does the use of an “unrealistic” estimate of right whale density have an influence on estimates of risk?
Can you confirm that this known bias is reflected in the revised speed measures that are presented in the proposed rule?

On page 12, the TM states: “However, in this analysis we represent vessel strike risk as a rate relative to population size,”

This statement seems inconsistent with previous statements that link vessel strike risk to spatial whale density, not population size. Can NMFS provide clarification on this point?
Does this statement confirm that risk will go up if the right whale population is rebuilt?
Does NMFS acknowledge that this model predicts that management measures will become more restrictive if the right whale population increases?

On page 13, the TM states: “The highest risk areas occurred in the mid-Atlantic between Cape Hatteras, North Carolina and New York and in relatively shallow waters over the continental shelf.”

This statement is inconsistent with the areas where the most vessel strikes have occurred which is the waters off Georgia. Does this confirm that risk is not well aligned with actual strikes?
Can NMFS identify the primary predictor of vessel strike risk?

On page 15, the TM states: “The SDM used to predict NARW density may also be a source of bias. As discussed above, the prediction of high densities of NARW throughout the mid-Atlantic during cooler months may be an artifact of intensive sampling in a portion of the model domain for this region.”

The spatial density model appears to significantly overestimate whale density. The confidence intervals are very high for right whale density model runs, particularly in winter months. How is this significant uncertainty accounted for in the risk assessment?
If unreliable estimates of whale density are used, how does this affect the confidence intervals for the risk model outputs?
Is the bias associated with the overestimation of right whale density also included in the long-term population projections? Numerous studies have indicated that reproductive output observed in recent years can be attributed to an individual whale’s inability to communicate with and locate each other as the population has declined.
41598_2016_BFsrep22615_MOESM18_ESM.pdf (springer.com) CV for right whale in winter months is 0.45. Is that too high to be reliable?

Potential Biological Removal (PBR)

On page 4, the RIR states: “the maximum number of individuals, not including natural mortalities, that may be removed from the marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population – is 0.7”

What is the optimum sustainable population size?
Does the optimum sustainable population account for increasing human population, climate change, maritime activity?
Quantitatively, how does the risk analysis achieve PBR?
Has NMFS determined if there is a PBR value that would signal the inability to rebuild the N. Atlantic Right Whale population?

Vessel Strikes

On page 5, the RIR states: “Vessel strikes continue to occur all along the U.S coast from the Gulf of Maine to the Florida Coast. There is no indication that strike events only occur in “hot spots” or limited spatial/seasonal areas.”

Does this statement confirm that strike risk is random, and that risk cannot be effectively reduced through seasonal speed zones?
Is this statement inconsistent with the fact that empirical data on lethal strikes by vessels 35-65 foot show that 4 of the 5 lethal strikes since 2008 occurred within an existing seasonal speed zone?
Has an analysis been conducted to determine if hotspots by size class can be determined?
Can NMFS confirm that empirical strike data provides a more accurate estimate of risk for boats 35 to 65 foot since AIS is not widely available for this size class?
What rationale is used by NMFS to assume that the number of confirmed vessel strikes by vessels 35 to 65 foot is not a complete data set?

On page 5, the RIR states: “Females, calves, and juveniles are disproportionately represented in vessel strike data.”

Does this suggest that efforts should focus on female right whales?
Was an alternative evaluated that focused protection on female right whales?

Compliance, Enforcement and Outreach

On page 3, the TM states: “…this [vessel strike] reduction was not coincident with the implementation of the vessel speed rules, the authors noted that compliance with speed restrictions was relatively low during this period, and there was relatively limited data available to directly quantify the effectiveness of SMAs (van der Hoop et al. 2015). The authors also noted that the designated SMAs with speed restrictions near the entrances to mid-Atlantic ports only accounted for 36% of past large whale vessel-strike mortalities and that their effectiveness may be influenced by shifts in whale distribution over time.”

What is the current estimate of compliance in the existing seasonal speed zones?
What is the predicted compliance with the proposed expansion of the speed restriction rules?
Is it expected that a similar problem will occur where NMFS will not be able to evaluate the effectiveness of the revised speed restriction rules due to compliance?

On page 7, the TM states: “Despite NMFS’ best efforts to reach out to vessel operations about dynamic speed reduction areas and educate the maritime community about the need for right whale vessel strike mitigation, NMFS’ speed rule assessment determined that vessel cooperation levels are low.”

Can a detailed outline of NMFS’s outreach efforts to the recreational sector regarding right whale speed restrictions be provided?
What analysis was completed to determine vessel cooperation with current seasonal and dynamic speed zones?
What outreach plan has been developed to engage the recreational fishing and boating sector with the proposed rule?
Can NMFS do an analysis or prepare a figure of compliance with the existing seasonal speed restriction zones to strike risk?

Linking of Speed to Reduction in Strikes

On page 2, the TM states: “Based upon a model of the relationship between vessel speed and the risk of vessel strikes, the observed reductions in vessel speed were estimated to reduce the lethality of vessel strikes by 80-90% (Silber et al. 2014; Conn and Silber 2013)”

What analysis has been done to evaluate the span of this relationship of speed to mortality across vessel size?
Based on this statement, is mortality more closely correlated to force as a function of mass times acceleration than vessel speed?
Is there a correlation between speed and the rate of vessel strikes or is speed only related to serious injury/mortality?
If speed restrictions cannot be linked to the observed reduction in vessel strikes, what investigation has occurred to determine what is the primary cause of the strike reduction?

On page 2, the TM states: “An assessment of the efficacy of mandatory speed restrictions along the East Coast determined that the number of documented vessel strike mortalities and serious injuries decreased from 12 during the 10 years prior to the rule’s implementation to 8 in the 10 years following implementation (National Marine Fisheries Service 2020). However, it is not possible to determine a direct causal link”

Noting the significant reduction in strikes following the implementation of the 2008 vessel speed restriction zones but the inability to link the decline to the speed zones, are vessel strikes random and independent of speed, especially considering vessel strikes occur over a wide distribution of speeds?
If not, what is the rationale for restrictions outside of the areas where high vessel traffic, high whale densities and strikes have occurred?

On page 5, the TM states: “While it is not possible to establish a direct causal link between speed reduction efforts and the relative decline in observed right whale serious injury and mortality events following the implementation of the speed rule, the preponderance of evidence suggests speed reductions, as implemented, have helped.”

How can the preponderance of evidence support a correlation between speed reductions and decline in strikes when compliance is low?
Is there a statistically significant correlation between speed and the risk of striking a whale? Can you describe what speed data was used to evaluate this relationship?

Probability at Strike Depth

On page 8, the TM states: “Based on tag data from each region, the probability that a whale was within 10 m of the water’s surface was drawn from a beta distribution with appropriate parameters to align with the reported medians and variability of reported dive data (Table 1).”

What sources of right whale tag data were used to calculate probability at strike depth?
Can NMFS provide a list of right whale research authorized by NOAA that would help inform the analysis for probability at strike depth?
What are the published and unpublished data sources and how did NMFS use both those sources of information in development of the proposed rule?

Draft Regulatory Impact Review and Initial Regulatory Flexibility Analysis

Economic Impact Analysis

On page 1, the RIR states: “For Alternative 5, (Preferred Alternative), it is estimated that up to 15,899 vessels would be affected with a total annual cost of $46,216,122.”

How is this $46 million impact calculated?
This loss amounts to roughly $2,906 per vessel. This seems extraordinarily low when considering the cancellation of trips due to speed restrictions. Can NMFS estimate trip loss and include that in the economic analysis?
Why were only direct impacts used to calculate the negative economic impacts when analysis used to calculate economic benefits includes direct, indirect and induced impacts?
Does NMFS believe that it is appropriate to use fundamentally different methods to calculate costs and benefits?
Can NMFS use the Fisheries Economics of the US Report to assist in quantifying both direct and indirect impacts?

Economic Benefits Calculations

On page 16, the RIR states: “the Hoyt study identified 36 whale watching businesses in New England, with most operating multiple vessels. Hoyt estimated that over one million individuals take whale watching tours in the region each year, generating over $30 million in annual revenue for the industry.”

This estimate is inconsistent with an estimate provided on page 17 of the RIR where 6 whale watching operations are estimated to generate $132 in economic output from 6 whale watching businesses. Can you explain the significant difference between the two estimates?

On page 17 of the RIR: Schwarzmann 2020 used a survey of passengers on whale watching boats. 93% of the survey participants were white. US Census numbers find that 61% of the total US population is white. 57% of the survey participants made over $100k which is nearly double the national average. This is not a representative subsample to calculate the benefits of right whale protection.

Does NMFS acknowledge that the Schwarzmann study, which is cited in its analysis of benefits from the proposed rule, does not represent the average demographics of the United States and that its use in calculating benefits creates a significant overestimation?

On page 17 of the RIR: Schwarzmann 2020 surveyed participants on whale watch operations and 3 of the top 5 responses for selecting the whale watch trip focused on timing and speed of the vessel. The RIR fails to acknowledge that the proposed speed restrictions may negatively impact whale watching operations

Does NMFS acknowledge that it failed to factor in the fact that whale watching passengers are very concerned about the speed of vessels and the ability to fit in whale watching trips in discrete periods of time?
Does NMFS acknowledge that if whale watching vessels are limited to 10 knots that they will see less paying passengers and therefore, the estimate of benefits is overestimated?

On page 18, the RIR states: “While other studies noted do not focus specifically on the N. Atlantic right whale, they do demonstrate that individuals derive significant economic value from the protection of marine mammals.”

The willingness to pay surveys used to estimate economic value of marine mammals was not focused specifically on right whales. Can NMFS account for this in any way?
Does NMFS acknowledge that stable and/or increasing populations of other marine mammals such as bottlenose dolphins, the preferred marine mammal by whale watchers as indicated in the above rereferred study, can economically offset declines of right whales?

Economic Impact Calculations

On page 21, the RIR states: “Using the USCG data, we identified vessels within this size class with a valid registration and a designated hailing port within 50 nm of the existing SMA boundaries.”

This approach stands to exclude a significant number of boats that do not update their hailing port or have a home port outside of the range of an SMA but move seasonally along the Atlantic coast. How were these boats accounted for?
Was the Highly Migratory Species permits database that includes roughly 30,000 vessels, used in this analysis? If not, why not?
Did NMFS use MRIP effort estimates to calculate impacts to vessels, anglers and trips?
Did NMFS use eVTR’s to estimate the number of impacted vessels, anglers and trips?

On page 21, the RIR states: “We would then apply this proportion to calculate estimated delayed hours and cost for this vessel type.”

Did NMFS factor in Department of Transportation and USCG regulations on hours of operation on the water and requirements to have two captains on board for trips over 12 hours?

On page 36, the RIR states: “To better understand potential impacts to recreational anglers in particular, NMFS invites public comment on the degree to which seasonal speed limits overlap with the area/timing of recreational angling activity and how vessel speed restrictions may impact the cost of a fishing trip.”

Did NMFS consider preparing a survey to gather this information? There are multiple datasets that could be used for sample frames. A survey of this nature would give a better understanding of canceled trips due to speed restrictions.
Does NMFS acknowledge that it is unrealistic to think that this type of information can be solicited, gathered and submitted by the industry and public in 90 days?

On page 11 of Appendix A in the RIR: This estimation approach does not include the loss in value (on both the new and used boat market) of a boat 35 foot or larger that cannot exceed 10 knots for 7 months of the year.

Did NMFS reach out to vessel manufacturers or dealers to understand how the speed restrictions would impact the value of products over 35 foot and that are designed to exceed 10 knots?
Does NMFS acknowledge that a vessel over 35 foot that can only go 10 knots for 7 months out of the year results in a loss of value?

Proposed Rule

On page 3, the proposed rule includes exemptions to the speed requirements for military vessels, vessels owned or contracted by federal agencies or vessels engaged in search and rescue activities. While exempt from the proposed rule, these vessels would still be required to do consultations as per section 7 of the Endangered Species Act. The consultation process may include alternative recommendations to reduce risk of vessel strikes on right whales.

How many vessels does NMFS estimate to operate under this exemption?
Has the Section 7 consultation process been initiated?
Will the Section 7 consultation process be on an individual vessel basis, or would a fleet wide consultation be conducted?
What mitigating measures will NMFS consider for these vessels to operate at speeds that exceed the 10-knot limit?

You can also read the full letter here.

Re: Petition to Establish a Vessel Speed Restriction and Other Vessel-Related Measures to Protect Rice’s Whales (NOAA–NMFS–2023–0027)

June 21, 2023

Ms. Janet Coit
Assistant Administrator for Fisheries
National Oceanic and Atmospheric Administration
1315 East West Highway
Silver Spring, MD 20910

Dear Administrator Coit:

The undersigned representatives of the recreational fishing and boating community understand the importance of conserving Rice’s whale (hereafter RW), a species that is critically endangered because of genetic constraints and anthropogenic mortality. We understand RW has been classified as a distinct species for less than two years and was previously described as a Gulf of Mexico subspecies of Bryde’s whale. We also understand that NOAA Fisheries is legally obligated under the Marine Mammal Protection Act and the Endangered Species Act (ESA) to protect RWs, and we stand ready to work together to ensure our community is appropriately mitigating our industry’s risk to RWs recovery. In lieu of this petition, we ask NOAA Fisheries to work with all stakeholders in the Gulf of Mexico on a comprehensive solution to recover RWs. This letter provides our response to NOAA Fisheries’ request for comments on the Rice’s whale petition for rulemaking in the Gulf of Mexico.

As America’s original conservationists, the recreational fishing and boating community is highly engaged in the management processes that impact our sport. Our industry has consistently and frequently offered constructive input that was ultimately used to develop management solutions that meet conservation goals and allow for the continued social and economic contributions our industry provides to the nation. The importance of this collaboration ensures the greatest benefit to our nation with recreational boating generating $230 billion in annual economic impact, and over 50 million American anglers fishing each year.

While regulatory actions like vessel speed restrictions may have a role in the overall strategy to minimize anthropogenic mortality to endangered marine mammals such as RW, they cannot be the singular approach taken. Large temporal and spatial vessel speed restrictions can have severe impacts on many aspects of the economy, national defense and Americans’ social well-being. As we have seen with North Atlantic right whale vessel speed restrictions, they are also difficult to enforce, leading to low compliance. Ultimately NOAA Fisheries needs to closely collaborate with industry and affected stakeholders to prioritize technological solutions that allow for more adaptive management. However, insufficient resources have been dedicated to these efforts. That needs to change, and we offer our comments on the petition with that in focus.

Enclosed, please find our formal comments on the six topics NOAA Fisheries is requesting input related to the petition. To reiterate, the recreational fishing and boating industry does not support establishing regulations based on this petition, but instead requests NOAA Fisheries work with all impacted stakeholders on RW’s recovery plan.

Topic 1: Advisability of and need for regulations to establish a “Vessel Slowdown Zone”

1.1 Need to Prioritize Addressing Threats to the Species
The petition is not focused on the greatest risks to RWs because it proposes no action to address the highest sources of mortality to the species, which are ranked in the ESA status review completed by Rosel et al.¹ The top-ranked severe threats are oil spills and response; energy exploration and development, and several threats associated with small populations (demographic stochasticity, genetics, and stochastic and catastrophic events). Oil spills and spill responses, as well as several concerns related to the population size of RWs, are all significant threats to the species, yet the petition solely focuses on vessel speed.

For example, the highest anthropogenic risks of direct mortality and habitat destruction are associated with oil and gas activity. Oil spills occur at a much greater rate in the Gulf of Mexico than vessel strikes to RW. Between 2011 and 2013 alone, there were 46 spills that released the equivalent of one thousand barrels or more of oil into the Gulf.² A 2015 study assessed the damage inflicted from the Deepwater Horizon oil spill to RWs and found that the oil covered 48% of their core habitat range and reduced their population by 22%: 17% of Rice’s whales were killed, 22% of females suffered reproductive failure, and 18% of whales suffered adverse health effects.³ Furthermore, exposure to the Deepwater Horizon oil spill was determined to be the primary underlying cause of the elevated stranding number of RWs in the Gulf of Mexico following the spill.⁴

In contrast, there have been just two suspected vessel strikes to RWs (one lethal strike) in documented history (affecting 2-4% of the population using the most recent lowest and highest population estimates of 51 to <100 whales⁵, respectively).

1.2 Need to Focus on a Realistic Recovery Plan and Implementation Strategy
The RW recovery plan needs to have clear conservation goals and a recovery implementation strategy with a reasonable probability of success. This is a critical step, especially given RWs extremely low population size, lack of genetic diversity, and demographic limitations. The scientific literature contains several references regarding the influence of genetics on population recovery.⁶ For some species with very small population sizes, particularly k-selected species such as marine mammals, extinction may be inevitable even when stringent mitigating measures are put into place. This would be a tragic outcome for RW that we genuinely hope is not the case. However, given the many associated costs (e.g., economic, social, pulling resources from other endangered species recovery), it is important to understand from the outset whether recovery is feasible.

NOAA Technical Memorandum⁷ cites research that indicates that the number of individuals in a population size needed to prevent inbreeding over 5 generations in the wild is 100. The same document found that the current population size for RW’s is below the risk threshold for decreased population growth due to inbreeding depression and potential loss of adaptive genetic diversity. In addition, the most recent stock assessment for RW states that “the capacity of Bryde’s whales (RWs) to recover from the DWH oil spill is unknown because the population models do not account for stochastic processes and genetic effects to which small populations are highly susceptible.⁸ A critical first step must be for NOAA to determine if the population can be recovered at all.

Given that the best estimate of the RW population is estimated to be 51 individuals,⁹ NOAA Fisheries must evaluate whether RWs have passed the threshold to prevent extinction due to inbreeding and a lack of genetic diversity before considering regulations that would impact the recreational fishing and boating community. Stakeholders that may be affected by any subsequent proposed rulemaking must be confident that any future proposed rules or restrictions will provide measurable contributions to recovery of this species.

1.3 Need to Engage All Gulf of Mexico Stakeholders
The recovery outline for Rice’s whale¹⁰ identifies the need to engage key stakeholders in the RWs recovery planning process including fishermen, shipping interests and conservation organizations. We agree that stakeholder engagement should be a priority in developing the recovery plan and subsequent recovery implementation strategy. Unfortunately, recreational fishing and boating interests were not invited to participate in recovery planning workshops¹¹ held in 2021, despite NOAA Fisheries being in receipt of this petition and the petitioner’s insistence to apply vessel speed restrictions to all vessels. We ask that NOAA Fisheries allow the recreational fishing and boating community to participate in the RW’s recovery planning process and discussions on any potential future rulemaking.

1.4 Recreational Vessels and Commercial Ships Have Different Risk Profiles
The petition presents a flawed argument for a Vessel Slowdown Zone that includes all vessels. For example, the petitioners rely on references and vessel collision data on large ships, not recreational vessels, yet interchangeably use the terms vessel and ship. The term “vessel” generally includes all self-propelled watercraft regardless of size, but a ship is defined as a vessel that exceeds 500 tons (1,000,000 pounds). Vessels that are used by recreational anglers and for-hire operators do not fall under the definition of ship. Rosel et al. 2016,¹² which is the primary reference in the petition, describes ships as having an average draft of 8.5 meters to 14 meters. In reviewing spec sheets from major manufacturers of recreational craft, we could not find a boat with a draft that exceeds 8.5 meters. Even a 150 foot superyacht does not exceed a four-meter draft.¹³ Moreover, large vessels of 80 meters or greater are more likely to cause serious injury or death to large whales during a vessel strike¹⁴. It is clear, using this description and the citations by the petitioners, that recreational boats should not be viewed in the same level of risk to RWs as commercial ships.

1.5 Undetected Vessel Strikes are Unlikely on Recreational Vessels
The petition speculates that the majority of vessel strikes on RWs may go undetected and that small-vessel strikes are under-reported and may comprise a greater proportion of strikes. However, the two strikes identified in the petition resulted in injuries/mortality consistent with large ships. As the petition suggests, large ships may collide with large whales and go undetected. This situation appears to have occurred with the lone documented fatal RW ship strike, because the RW was actually carried into the Port of Tampa on the bow of a large ship.

In contrast, when a recreational vessel strikes a whale, it is impossible for that strike to go undetected due to the damage incurred to the boat and the possible injury caused to the passengers. To date, all documented strikes to large marine mammals that have occurred with boats under 65 feet while operating at speed have resulted in either the vessel sinking or significant damage to the vessel requiring assistance back to port.

For example, in 2021 a 54 foot sportfish boat accidentally struck a North Atlantic right whale calf and the vessel sunk. Service records from Viking Yacht Company, the largest producer of sportfish style boats in the world, accounting for 80% of all boats on the water in the category, has never had a boat come in for service in response to a whale strike. This is important to note because damage from a whale strike, particularly the running gear and rudders, would require specific parts that could only be obtained from and repaired by Viking. In the case of RWs, there are no documented vessel strikes caused by recreational vessels and the petition does not demonstrate that recreational boats are the cause of undetected vessel strikes.

1.6 Whale Surface Behavior Data is Under Sampled
The petition uses a cursory review of the scientific literature as justification for establishing a year-round mandatory speed zone for all vessels in the northeast Gulf of Mexico. For example, the petition cites Soldevilla et al. (2017)¹⁵ to justify vessel strikes as a potential threat to RW recovery and uses the authors’ analysis of RW movement patterns and dive behavior to justify the petition’s regulatory proposal. However, the authors of this paper warn that “these data are from only one tagged whale over a 3 [day] period and must be interpreted with caution.” They also note, “Further tagging research is needed to increase the sample size and determine whether the documented dive behavior is representative of the Gulf of Mexico Bryde’s whale population.” Establishing regulations based on the behavior of one whale over three days is not justifiable even if the population of RWs is low.

Topic 2: The geographic scope of any such regulations

The petition proposes a “Vessel Slowdown Zone” within waters between 100- and 400-meters depth from approximately Pensacola, FL, to just south of Tampa, FL (i.e., from 87.5° W longitude to 27.5° N latitude plus an additional 10-kilometer buffer around that area). The Vessel Slowdown Zone proposed in the petition is similar to the core habitat area identified by NOAA Fisheries for RWs.¹⁶ While we can appreciate that scientific information indicates RWs are present in this area, we question whether spatial regulations for RWs should be proposed when critical habitat and seasonal movements for RWs have yet to be designated by NOAA Fisheries and new scientific information clearly indicates RWs are present in other areas of the Gulf of Mexico.¹⁷

Although recreational vessel traffic in the parts of the “Vessel Slowdown Zone” that have a significant distance from shore (especially southeast of Apalachicola), recreational vessels regularly transit and fish in the portion of the area off the western Panhandle where it nears Florida state waters and have done so without ever striking RWs. The proposed 10-knot speed restriction and prohibition on transit at night in such a large, offshore area present considerable safety concerns for recreational vessels that transit this area. These safety concerns are similar to those described in our comments on NOAA Fisheries’ proposed vessel speed regulations to protect North Atlantic Right Whales.¹⁸ In summary, speed is a significant safety feature for most recreational boats due to their hull design. Recreational boats that are forced to transit at or below 10 knots in this large area would likely be forced to operate in weather and sea conditions that would compromise safety of the passengers and could reduce the ability of vessel operators to spot and avoid RWs and other hazards in the water.

Topic 3: Alternative management options for regulating vessel interactions with Rice’s whales, including but not limited to the options in the petition

3.1 Technology as a Sustainable Solution
Leading by example, the recreational fishing and boating industry is directing resources to bring together independent subject matter experts in marine mammal monitoring and detection, spatial risk analysis, marine electronics, and telemetry to form the Whale and Vessel Safety Taskforce (WAVS).¹⁹ The mission of WAVS is to identify, develop, and implement 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.

We recommend advancing technology that can deliver real-time monitoring of individual RWs as a long-term solution. From direct observations, aerial surveillance, acoustic detection, heat signature technology, satellite monitoring and environmental DNA signatures found in water samples, it is feasible to gather real-time location information, especially if RW core habitat is limited to the northeast Gulf of Mexico. Fewer than 100 individual RWs remain, which makes tagging or other high-value monitoring techniques possible. The Deepwater Horizon Oil Spill Damage Assessment and Restoration Plan and Programmatic Environmental Impact Assessment²⁰ also speaks to this approach for RWs and other marine mammals: “Use of passive acoustic data, predictive modeling, and tagging data could inform recommendations and approaches to benefit the conservation and protection of marine mammals. The techniques described above are reasonable and effective ways to address marine mammal injury and mortality from vessel strikes.” Even if monitoring of all RWs is not possible, we can expect any real-time monitoring to provide ancillary protection to non-monitored RWs that associate in groups with monitored RWs. Outreach could also be conducted with the recreational fishing and boating community on ways they can provide direct observations of RWs to NOAA.

3.2 Need for Extensive Communication and Outreach
Disseminating information on RW locations to mariners and other vessel operators is a necessary strategy for preventing vessel strikes. Our industry welcomes the opportunity to develop ways to provide real-time positioning on navigational hazards, including RWs, to vessel operators via marine electronics. We also support this approach because it applies empirically based, targeted precautions instead of excessively severe measures that do not accurately reflect actual risk nor can be adequately enforced. Developing ways to distribute this information to vessel operators will only occur through direct engagement with industry and fishing and boating organizations.

Topic 4: Scientific and commercial information regarding the effects of vessels on Rice’s whales, or other similar species, and their habitat

Data and life history information on Rice’s whale is incredibly sparse. For example, critical habitat has not yet been designated and a recovery plan for the species has not yet been finalized. NOAA Fisheries’ recovery outline lists 12 significant uncertainties with respect to setting recovery objectives and actions. One of these uncertainties is “human-caused mortality rates (e.g., bycatch, vessel strikes, marine debris).” Again, there is zero evidence that any recreational vessel strikes with RWs have occurred, and it is extremely unlikely that recreational vessel strikes have occurred without being detected. We encourage NOAA Fisheries to work with partners to address significant knowledge gaps on this rarely observed species to inform future recovery planning and strategies.

Topic 5: Information regarding potential economic effects of regulating vessel interactions; and (6) any additional, relevant information that NMFS should consider

Recreational fishing and boating are major economic drivers in Florida and Alabama, which are the states most impacted by this petition. In Florida alone, recreational boating has a $31.3 billion annual economic impact and supports 109,912 jobs.²¹ In Alabama, recreational boating has a $2.8 billion annual economic impact and supports 13,179 jobs.

The regulations requested in this petition would cause economic harm to coastal communities and businesses serving these anglers and boaters. Recreational fishing for reef fish, highly migratory species, coastal migratory pelagics, dolphin, wahoo, and other species occurs year-round within the proposed “Vessel Slowdown Zone”. At a minimum, we expect recreational anglers and boaters that use the proposed “Vessel Slowdown Zone” to cancel trips due to the increased time at sea that would be required for transit during the day, prohibition on transportation at night, and added expense and/or unrealistic burden of monitoring (i.e., AIS and mandatory observers). It is reasonable to assume that offshore tournaments based in Alabama and Florida Panhandle communities adjacent to the “Vessel Slowdown Zone” would be cancelled or reduced in size, particularly those that focus on highly migratory species (i.e., billfish and tunas). All of these choices could have significant and transformative economic ramifications for anglers, boaters, the marine industry, and coastal communities.

Conclusion

In summary, we recommend that NOAA does not initiate any rulemaking action based on the petition for the following reasons.

The petitioners fail to put forward any evidence that recreational vessels pose a risk to RWs that would justify the significant rules proposed in the petition.
The petition fails to propose action to address the greatest sources of mortality to the Rice’s Whale.
NOAA Fisheries has failed to engage with the recreational fishing and boating industry on RW recovery planning or to better understand how their vessels may interact with RWs.
NOAA Fisheries needs to fully investigate and report on the likelihood of recovering RWs given documented concerns about its population size.

Instead of moving forward with the petition for rulemaking, NOAA should instead:

Work with partners to address knowledge gaps on this rarely observed species to inform future recovery planning and strategies.
Allow the recreational fishing and boating industry to meaningfully contribute to RW recovery plan.
Develop a Recovery Implementation Strategy with input from all Gulf of Mexico stakeholders.

Thank you for your consideration, and we look forward to working with you to ensure our community is doing everything within reason to avoid conflicts with Rice’s Whales.

Sincerely,

Glenn Hughes, President
American Sportfishing Association

Dr. Guy Harvey, Ph.D., Chairman Emeritus
Guy Harvey Foundation

Chris Edmonston, VP Government Affairs
Boat Owners Association of the United States

Jason Schratwieser, President
International Game Fish Association

Jim McDuffie, President
Bonefish and Tarpon Trust

Matt Gruhn, President
Marine Retailers Association of the Americas

Jeff Angers, President
Center for Sportfishing Policy

Frank Hugelmeyer, President
National Marine Manufacturers Association

Patrick Murray, President
Coastal Conservation Association

Whit Fosburgh, President and CEO
Theodore Roosevelt Conservation Partnership

Jeff Crane, President
Congressional Sportsmen’s Foundation