Posted on October 27, 2022
Numerous marine groups are organizing a whole-of-industry response to a proposed federal rule that would require East Coast boats as small as 35 feet to cruise no faster than 10 knots in widespread speed-restriction zones.
“We’re ramping up and activating the industry to respond to this threat. It’s unprecedented. It’s massive regulatory overreach. It’s a huge consumer safety issue,” National Marine Manufacturers Association president and CEO Frank Hugelmeyer told Soundings Trade Only in late September. “We will do whatever we have to do to prevent this from going into place, including legal action.”
The National Oceanic and Atmospheric Administration announced the proposed rule as an effort to protect endangered North Atlantic right whales from vessel strikes. The proposed rule was published Aug. 1 in the Federal Register. NOAA Fisheries says the announcement continued a process that began at least as far back as Jan. 2021 with an assessment report about a previous rule’s effectiveness, in addition to articles it has published and social media posts it has made about the topic.
The newly proposed speed-restriction regions would be in effect from Nov. 1 to May 30 in the Atlantic Zone that stretches as far north as Massachusetts; from Apr. 1 to June 30 in the Great South Channel Zone east of there; from Nov. 1 to Apr. 30 in the North Carolina Zone; from Nov. 1 to Apr. 15 in the South Carolina Zone; and from Nov. 15 to Apr. 15 in the Southeast Zone that includes parts of Florida.
Previously, the zones were far narrower and did not affect boats smaller than 65 feet. Under the newly proposed rule, power and sailboats from 35 to 65 feet would have to reduce speed to 10 knots or less, unless there was a threat to the health, safety or life of a person on board; or a National Weather Service warning was issued for winds of gale force or greater.
Boats that exceed 10 knots without those conditions being present would have to file a report within 48 hours stating the reason they cruised faster. According to a spokeswoman for NOAA, its Office of Law Enforcement could use techniques such as patrols, electronic vessel monitoring, and criminal and civil investigations to enforce compliance.
After the proposed rule was published in early August, many boaters and industry organizations immediately cried foul and said they were blindsided by the details, which Hugelmeyer called an “existential threat” to the industry.
“The industry will be truly decimated if this goes into effect,” he says. “A 10-knot speed limit for almost all of the coast for most of the year — nobody will keep their boats.”
Viking Yacht Company issued a press release Sept. 21, stating that the facts do not support NOAA’s proposed rule. Since 1998, the release stated, there have been 24 known right whale vessel strikes across 10 states. Of those, eight were attributed to boats from 35 to 65 feet length overall.
“In our 58-year history, with more than 5,000 boats delivered, we have never had a report of our boats having an encounter with a right whale,” Viking president and CEO Pat Healey said. “And we would know because it would cause significant damage that would be repairable only by us.”
NOAA Fisheries acknowledges that the proposed changes would be significant, but says they are necessary to protect the whales from vessel collisions. The species has dwindled to fewer than 350 whales, NOAA Fisheries says, and cannot recover if humans cause even one death or serious injury on average each year.
“If we thought that there was one key area where we were seeing a lot of strikes during one season, we would have focused just on that, but it’s not what we’re seeing,” says Caroline Good, marine mammal ecologist with the Office of Protective Resources at NOAA Fisheries. “We have a problem that is coastwide and covers large swaths of the year.”
Chris Edmonston, vice president of public affairs at BoatUS, joined Hugelmeyer and a dozen organizations — including the American Sportfishing Association, Guy Harvey Ocean Foundation, and Marine Retailers Association of the Americas — in sending a letter to NOAA Fisheries on Aug. 22, citing a “complete lack of coordination with affected industries” and warning that the proposed rule would affect thousands of recreational vessels, marinas and tackle shops.
Following that letter, NOAA Fisheries extended the public comment period on its proposed rule by one month, to Oct. 31. As of late September, Hugelmeyer was urging not just every marine company, but also every employee within every company, and every boat owner on the East Coast, to submit comments opposing the proposed rule.
“Every employee in the entire industry needs to respond to this to protect their jobs and protect their industry,” he says. “We already know of $8 million worth of sales that have been lost because of the threat of the rule. The clients are waiting to buy the boats until they see what happens with this.”
Soundings Trade Only readers have until Oct. 31 to submit comments through the NMMA portal at boatingunited.org/take-action/noaa-vessel-restrictions.
After the Oct. 31 public comment hearing ends, anyone opposing the rule is urged to contact their elected officials.
“It’s a Democratic administration, so we need Democrats to support us and save us,” Hugelmeyer says. “We need the industry to get very loud to help defend us from this punitive rule.”
Hugelmeyer and Edmonston joined representatives from the American Sportfishing Association and the Center for Sportfishing Policy at a meeting with NOAA Fisheries about the proposed rule on September 23. They presented industry data that Hugelmeyer says shows the proposed rule is based on “wildly inaccurate data and assumptions.”
For instance, Hugelmeyer says, NOAA Fisheries is projecting that only about 9,200 recreational boats from 35 to 65 feet length overall will be affected, when there are actually more than 63,000 registered recreational saltwater fishing boats of that size in the targeted parts of the East Coast.
In addition, he says, since 2008, there have been about 92 million recreational boating and fishing trips in the areas that would include speed limits, but only one known whale death outside of existing restricted zones. “How do you explain that there are 92 million outings and one mysterious whale boat-impact death in a proposed zone that results in what is effectively the U.S. government threatening to outlaw boats?”
Hugelmeyer also said the safety issues the proposed rule would create are “the most unconscionable part of this. Our most popular product in the recreational boating industry is the center console boat, from an offshore fishing standpoint. They are not designed, in open seas with worsening conditions, to be going at 10 knots 90 miles offshore. They’re designed to outrun bad weather and choppy seas. The deep-V hull design takes a higher speed for it to get on plane. Essentially, you’re putting lives at risk. There’s a higher possibility of rocking, of waves going over and across the bow.”
NOAA fisheries says that since a previous speed-restriction rule affecting boats 65 feet and larger went into effect in 2008, there have been 12 right whale deaths or serious injuries involving vessel collisions in U.S. waters. Vessels smaller than 65 feet accounted for five of the 12 lethal strikes, the agency says, “demonstrating the significant risk this unregulated vessel size class can present to right whales.”
And, those documented strikes tell only part of the story, Good says: “We also have additional strikes involving vessels under 65 feet with whales from undetermined species. People do strike things — and these can be minor strike events that don’t lead to mortality or a vessel being disabled — and they don’t know what they hit.”
Boats between 35 and 65 feet, such as this Valhalla Boatworks V-37, would be restricted to speeds no faster than 10 knots in certain areas if the NOAA proposal is officially enacted.
Those are not good enough reasons for such sweeping changes, according to many boaters who submitted public comments on the proposed rule. More than 1,200 comments were logged as of early September; by the end of September, more than more than 3,600 comments were submitted.
Many charter fishermen commented publicly that being forced to slow to 10 knots will effectively doom the charter-fishing business. Capt. Craig Thatcher, who runs the 35-foot Bertram Never Enough out of Beaufort, N.C., said in a phone interview that he currently runs at least 40 miles at 18 to 20 knots to get to the fishing grounds off North Carolina for vermilion snapper and triggerfish during the targeted times of year. Slowing to 10 knots would make the round-trip ride so long, there would be no time left in the day for actual fishing.
“Who’s going to pay me to take them on a 10-hour boat ride?” he says. “I wouldn’t pay for that.”
Capt. Robert Bogan of the 90-foot head boat Gambler out of Point Pleasant, N.J. wrote in a public comment that his family has been on the region’s waters for three generations “and has never once come close to striking a whale. Our raised pilothouse gives us a clear view of our surroundings, and even when we do treat our passengers to the opportunity of a whale sighting, we maintain a huge distance as to not disturb these amazing mammals.”
Scott Starratt wrote in a public comment that he’s been fishing for 47 years and has seen right whales once. He told regulators: “Six hours to get to the ledge? Guess I’ll buy a 34-foot boat and sell my 35. Total lunacy.”
Good says NOAA Fisheries recognizes how these boaters feel, but adds that those feelings do not change the dire situation the whales face.
“There are mariners who have been out on the water for years, and they have never hit a whale,” she says. “It’s a very challenging problem because these events occur infrequently, but the totality of these events is just hammering this population and impeding the species’ ability to recover.”
Edmonston says the industry leaders who met with NOAA Fisheries in late September received similar pushback. “At the end of the day,” he said via email, the NOAA Fisheries representative “pointed out that the Endangered Species Act does not have to take our concerns (human safety, economic impact) into account.”
Bruce Pohlot, conservation director for the International Game Fish Association — who holds a Ph.D. in marine biology and fisheries, a master of professional science with a focus on fisheries management, and a bachelor’s of science with a major in biomedical engineering — says that while nobody wants to see the whales go extinct, the real problem is that the remaining whales are failing to reproduce.
“Their reproduction rates are way too low. That has nothing to do with boats hitting them,” he says. “So why put all this money into trying to slow boats down? What if we put all that money into trying to tag every single whale and knowing where they’re going in real time, and then loading that into the AIS system so every boat can see them?”
He added that the information NOAA Fisheries has provided to defend the proposed rule raises more questions than it answers.
“I totally agree, we have to do something about the whales, but I don’t know that this is the most sensible thing to do, and I don’t think they have done a good job of showing that the benefits outweigh the costs,” Pohlot says.
As of late September, Hugelmeyer said the industry coalition was still urging the administration to stop the proposed rule from advancing.
“We said you have to suspend this, pause it, take a deep breath, because you’re going to do incredible harm to one of America’s most important outdoor recreation industry sectors,” he says. “Our sector nearly single-handedly held up the recreation economy the past couple of years. And the Atlantic Seaboard, by far, is our most important consumer market in the United States for recreational boating and fishing.”