No Speeding—You May Be Subject to a Whale of a Penalty!

Over the past few months, the National Oceanic and Atmospheric Administration ("NOAA") has issued several Notices of Violation and Assessment ("NOVAs") to commercial vessels for violating the U.S. East Coast seasonal 10-knot speed limit established to protect the endangered North Atlantic right whale, which is protected under the Endangered Species Act and the Marine Mammal Protection Act. Penalties in the nine reported enforcement actions, all from NOAA's Southeast Region, range from about $15,000 to $50,000. NOAA identified the violations by using the Automatic Identification System ("AIS"), which allows NOAA to calculate and chart the vessel's speed over its entire route.

By way of background, NOAA's Right Whale Ship Strike Reduction Rule (the "Final Rule"), which is intended to reduce the mortality of the North Atlantic right whale, went into effect on December 9, 2008. The right whale is the world's most critically endangered large whale species. North Atlantic right whales, which have been known to live up to 70 years, range from 45 to 60 feet in length and weigh between 30 and 80 tons. Approximately one-third of all right whale deaths reportedly result from ship strikes and entanglement in fishing gear. According to NOAA's data, most of the vessel strikes resulting in right whale fatalities occurred from collisions with large commercial vessels.

The Final Rule generally restricts vessels of 65 feet or greater in length to speeds of 10 knots or less in three "seasonal management areas" along the U.S. East Coast. The seasonal management area for the Northeast runs from January 1 to May 15; the Mid-Atlantic from November 1 to April 30; and the Southeast from November 15 to April 15. During the time the seasonal management areas are in effect, the speed limit may only be exceeded if necessary to maintain safe maneuvering, as confirmed by the master or pilot, in which case the speed exceedance and the reasons for the deviation must be logged in the vessel's logbook...