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Panel debates NMFS vessel speed rules, right whale protections and agency authority
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Summary
Witnesses and members debated the scientific basis and legal authority for National Marine Fisheries Service vessel speed limits aimed at protecting North Atlantic right whales, and described why an expanded 2022 proposal was withdrawn.
A House Natural Resources Subcommittee hearing on March 3 considered how the National Marine Fisheries Service (NMFS) has used the Marine Mammal Protection Act to limit vessel speeds to reduce ship strikes on North Atlantic right whales.
Legal and industry witnesses described the 2008 NMFS rule that limits most vessels 65 feet or longer to 10 knots in some Atlantic areas, and the 2022 NMFS proposal to expand the rule to vessels 35 to 65 feet and a larger geographic area. "The proposed rule exemplifies one circumstance in which the precautionary principle can result in an absurd outcome," testified Paul Weiland, former DOJ environmental lawyer, and cited NMFS data showing five vessel strikes by 35- to 65-foot vessels against more than 5.1 million offshore fishing trips between 2008 and 2022, which he summarized as "less than 1 in a million."
Parker Moore, environmental attorney at Beveridge & Diamond, said NMFS's 2022 proposal "would have impacted more than 63,000 additional boats annually" and described the proposal as a "solution in search of a problem." Moore noted NMFS withdrew the 2022 expansion after bipartisan opposition and more than 90,000 public comments, but the original 2008 speed limit for vessels 65 feet and longer remains in effect.
Members pressed witnesses on the appropriate scope of agency authority and on whether NMFS had a statutory basis to expand speed limits. Witnesses said the MMPA does not clearly define terms such as "small numbers" and "negligible impact," which has allowed agencies to pursue wide-ranging rulemaking that some members said exceeded congressional intent.
The discussion underscored tensions between precautionary, species-first modeling and measures of proportional economic burden on coastal and fishing communities. Witnesses recommended clearer statutory definitions, improved transparency of agency models and assumptions, and, where appropriate, congressional clarification to prevent future regulatory swings.
