Endangered Fish and Wildlife; Proposed Rule To Eliminate the Expiration Date Contained in the Final Rule To Reduce the Threat of Ship Collisions With North Atlantic Right Whales, 34024-34030 [2013-13442]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 78, Number 109 (Thursday, June 6, 2013)]
[Proposed Rules]
[Pages 34024-34030]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-13442]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 224

[Docket No 1108195182318-01]
RIN 0648-BB20


Endangered Fish and Wildlife; Proposed Rule To Eliminate the 
Expiration Date Contained in the Final Rule To Reduce the Threat of 
Ship Collisions With North Atlantic Right Whales

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS proposes to eliminate the expiration date (or ``sunset 
clause'') contained in regulations requiring vessel speed restrictions 
to reduce the likelihood of lethal vessel collisions with North 
Atlantic right whales. The regulations restrict vessel speeds to no 
more than 10 knots for vessels 65 ft (19.8 m) or greater in overall 
length in certain locations and at certain times of the year along the 
east coast of the U.S. Atlantic seaboard. The speed regulations will 
expire December 9, 2013, unless the sunset clause is removed. NMFS 
seeks public comment on the Proposed Rule to eliminate the sunset 
clause and on metrics for assessing the long term costs and benefits of 
the rule to the endangered North Atlantic right whale population.

DATES: Written or electronic comments (see ADDRESSES) must be received 
no later than 5 p.m. local time on August 5, 2013.

ADDRESSES: Copies of this proposed rule and related documents can be 
obtained from: www/nmfs.noaa.gov/pr/shipstrike. Written requests for 
copies of these documents should be addressed to: Chief, Marine Mammal 
and Sea Turtle Conservation Division, Attn: Right Whale Ship Strike 
Reduction Rule, Office of Protected Resources, NMFS, 1315 East-West 
Highway, Silver Spring, MD 20910.You may submit comments, identified by 
[NOAA-NMFS-2012-0058], by any of the following methods:
    Electronic Submissions: Submit all electronic public comments via 
the Federal eRulemaking Portal https://www.regulations.gov.
    Mail: Send comments to: Chief, Marine Mammal and Sea Turtle 
Conservation Division, Office of Protected Resources, National Marine 
Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910, 
Attn: Right Whale Ship Strike Reduction Rule.
    Instructions: All comments received are a part of the public record 
and will generally be posted to https://www.regulations.gov without 
change. All Personal Identifying Information (for example, name, 
address, etc.)

[[Page 34025]]

voluntarily submitted by the commenter may be publicly accessible. Do 
not submit Confidential Business Information or otherwise sensitive or 
protected information.
    NMFS will accept anonymous comments (enter N/A in the required 
fields, if you wish to remain anonymous). You may submit attachments to 
electronic comments in Microsoft Word, Excel, WordPerfect, or Adobe PDF 
file formats only.

FOR FURTHER INFORMATION CONTACT: Gregory Silber, Ph.D., 
Greg.Silber@noaa.gov, Office of Protected Resources, NMFS, at (301) 
427-8485.

SUPPLEMENTARY INFORMATION:

Background

    The Western North Atlantic right whale (Eubalaena glacialis) was 
severely depleted by commercial whaling. By the early 1900s, the 
remaining population off North America was reduced to no more than a 
few hundred whales. Despite the existence of protection from commercial 
whaling since 1935, the remaining population has failed to fully 
recover. The most recent (October 2011) peer-reviewed estimate of 
minimum population size is 444 North Atlantic right whales known to be 
alive in 2009 (Waring et al, 2012), which is approximately the same 
number that existed 25 years ago (Best et al., 2001). At this level, 
North Atlantic right whales are not only one of the world's most 
critically endangered large whale species but also one of the world's 
most endangered mammals.
    Population models suggest that their abundance may have increased 
at a rate of approximately 2 percent per year during the 1980s, but 
that it declined at about the same rate in the 1990s (Caswell et al., 
1999; Waring et al., 2012). Analysis of data on the minimum number of 
whales alive during 1990-2009 (based on 2011 analysis) indicate an 
increase in the number of catalogued whales during the period, a mean 
growth rate of 2.6 percent, but with high inter-annual variation in 
numbers (Waring et al., 2012). These population trends are low compared 
to those for populations of other large whales that are recovering, 
such as south Atlantic right whales and taxonomically similar western 
Arctic bowhead whales, which have had growth rates of 4-7 percent or 
more per year for decades.
    Inherently low rates of reproduction in large whales mean that 
recovery rates for these populations can be low even under the best of 
circumstances. North Atlantic right whales may live 60 years or more. 
The age of first reproduction for female North Atlantic right whales is 
about 7 to 10 years old and calving intervals for the population have 
been estimated to average from about 3.5 to more than 5 years over the 
past three decades (Kraus et al., 2001; Kraus et al., 2007). 
Considering the high rates of natural mortality for calves and 
juveniles compared to adults, population projections indicate that 
female right whales must produce at least four calves over their 
lifetime to allow population growth, because half of the calves born 
are male, and the survival of female calves to adulthood is less than 
one in two (Kraus et al., 2001).
    Between the mid-1980s and late-1990s, documented calf production 
for the North Atlantic right whale population averaged about 11 calves 
per year (Kraus et al., 2001). Since 2001, a series of good calving 
years has been a source of optimism for future recovery. Between 1993 
and 2010, calf production averaged about 17 calves per year (Waring et 
al., 2012) and the average calving interval for adult females declined 
to close to its lowest recorded level (between 2000 and 2006) (Kraus et 
al., 2007). However, not all calves enter the population as viable 
adults or sub-adults due, for example, to natural mortality. Between 17 
and 45 calves are estimated to have died between 1989 and 2003 
(Browning et al., 2010).The mean number of adult females recruited into 
the population between 2000/01 and 2005/06 was 3.8 per year (Kraus et 
al., 2007).
    Because of the species' low reproductive output and small 
population size, even low levels of human-caused mortality can pose a 
significant obstacle for North Atlantic right whale recovery. 
Population modeling studies in the late 1990s (Caswell et al., 1999; 
Fujiwara and Caswell, 2001) indicated that preventing the death of two 
adult females per year could be sufficient to reverse the slow decline 
detected in right whale population trends in the 1990s. However, in 
some years the rate of removal of individuals from this population due 
to human activities may exceed this number. In the 2004/2005 calving 
season alone three adult females were found dead with near-term 
fetuses.
    The primary causes of the right whale's failure to recover are 
deaths resulting from collisions with ships and entanglement in 
commercial fishing gear (Clapham et al., 1999; Knowlton and Kraus, 
2001; Moore et al., 2005; NMFS, 2005). An average of approximately two 
known vessel collision-related right whale deaths have occurred 
annually over the last decade (Henry et al., 2012, Waring et al., 2012) 
and an average of 1.2 known vessel-strike related fatalities occurred 
in the period 2006-2010 (Waring et al., 2012). NOAA believes the actual 
number of deaths can possibly be higher than those documented, as some 
deaths likely go undetected or unreported, and in many cases when 
deaths are observed it is not possible to determine the cause of death 
from recovered carcasses due, for example, to advanced decomposition. 
Kraus et al., (2005) concluded that the number of documented deaths may 
be as little as 17 percent of the actual number of deaths from all 
sources.
    Studies indicate that female (van der Hoop et al., 2012) and sub-
adult (Knowlton and Kraus, 2001) right whales are more often ship 
strike victims than are other age and gender classes. Although the 
reasons for this are not clear, one factor may be that pregnant females 
and females with nursing calves may spend more time at the surface 
where they are vulnerable to being struck. The effect of this on 
population recovery may be particularly profound if the lost female is 
at the height of, or just entering, her most reproductively active 
years because of the loss of her reproductive potential, and that of 
her female offspring, indefinitely.
    The number of right whale deaths resulting from vessel collisions 
appears to be related to an overlap between important right whale 
feeding, calving, and migratory habitats and shipping corridors along 
the eastern United States and Canada. Most right whales that died as a 
result of ship collisions were first reported dead in or near major 
shipping channels off east coast ports between Jacksonville, Florida 
and New Brunswick, Canada. Right whales appear to be particularly 
vulnerable to ship strikes in their nursery areas off Georgia/Florida 
(Vanderlaan et al., 2009). Based on massive injuries to whales killed 
by ships (e.g., crushed skulls, internal hemorrhaging, severed tail 
stocks, and deep, broad propeller wounds) (Campbell-Malone, et al., 
2008), it appears that many right whales killed by vessels are victims 
of collisions with large ships.
    For the North Atlantic right whale population to recover, vessel-
related deaths and serious injuries must be reduced. The North Atlantic 
Right Whale Recovery Plan (NMFS, 2005) ranks steps to reduce and 
eliminate such deaths among its highest priorities, and indicates that 
developing and implementing an effective strategy to address this 
threat is essential to recovery of the species. The ultimate

[[Page 34026]]

goal of identifying and implementing conservation measures, including 
this one, on behalf of an endangered species is to recover the species.
    NMFS has taken steps to reduce vessel collisions with right whales, 
including extensive efforts to raise awareness among, and encourage 
voluntary actions by, vessel operators to reduce the risk of collisions 
(descriptions of these actions can be found in 73 FR 60173 (October 10, 
2008); Lagueux et al., 2011; MMC, 2010). Despite those measures, whale 
deaths from ship strikes continue (Henry et al., 2012) and voluntary 
measures appear to be insufficient to address the problem (71 FR 36304; 
June 26, 2006). Accordingly, NMFS promulgated regulations that require 
vessels 65 feet and greater in length to travel at speeds of 10 knots 
or less in certain defined areas during certain times of the year (73 
FR 60173; October 10, 2008).
    As indicated in that rule, vessel speed has been implicated as a 
principal causal factor in the severity of vessel collisions with large 
whales. As vessel speed increases, the probability of serious injury or 
death of a whale involved in a strike increases (Pace and Silber, 2005; 
Vanderlaan and Taggart, 2007). Studies have also indicated that as 
vessel speed increases so does both the size of the zone of influence 
around the hull of a vessel (i.e., the area in which a whale is 
vulnerable to a strike or might be drawn into a strike) and 
acceleration (i.e., impact velocity) experienced by the whale involved 
in a collision (Campbell-Malone, 2007; Silber et al., 2010).
    Among the comments that NMFS received on its 2008 proposed rule for 
the vessel speed restrictions were those indicating that the specific 
ways in which whale and vessel interacted prior to a collision were not 
well understood, and vessel speed restrictions were not likely to 
achieve their intended purpose, and thus that the rule should expire at 
a time certain. NMFS acknowledged there was uncertainty regarding the 
manner in which ships and whales interact at the time of a strike and 
the mechanisms that drive the relationship of speed and other factors 
(e.g., whale behavior in response to an approaching vessel) that lead 
to injuries and deaths. In view of those uncertainties and the burdens 
imposed on vessel operators, NMFS added a ``sunset'' provision to the 
final rule under which the regulation would expire five years from its 
effective date (i.e., December 9, 2013). Given that the justification 
for establishing the initial rule remains applicable and is supported 
by subsequent studies regarding the diminished probability of lethal 
strikes and an absence of vessel-related right whale deaths since the 
rule went into effect (as discussed below), NMFS specifically requests 
comments on this proposed rule to remove the sunset provision contained 
in the existing regulations.
    Further, in accordance with Executive Order 13563, NOAA conducts 
periodic and retrospective reviews of its existing regulations. Recent 
retrospective analysis of the existing rule (which was done by 
quantifying actual vessel speeds following implementation of the rule) 
indicate that economic impacts of the rule are substantially lower than 
were initially projected in 2008 (Nathan Associates Inc., 2012). 
However, quantifying the benefits of the existing vessel speed 
restriction rule can be less straightforward because the rule has been 
in effect for a relatively short period and because it can be difficult 
to determine if growth rates in a small biological population are 
linked to a specific conservation measure, particularly when that 
population is subject to a number of threats.
    Studies indicate that the North Atlantic right whale population is 
slowly growing (Waring, et al., 2012). In addition, as noted above, 
recent studies indicate that the probability of lethal strikes have 
been diminished substantially as a result of the rule (Lagueux et al., 
2011; Wiley et al., 2011; Conn and Silber, 2013), and there have been 
no vessel-strike related right whale deaths in the areas covered by the 
vessel speed restriction rule since its implementation. Still, there 
may be additional means of assessing whether the rule is meeting its 
objectives, and, therefore whether an alternative time for a sunset 
provision may be appropriate. To address these questions and provide 
benchmarks or a timetable for retrospective review of any final rule in 
this proceeding, NOAA seeks public feedback about information that may 
help establish the amount of time and the studies needed to determine 
how effective the rule is in protecting and recovering the population 
over the long term. In other words, to conduct a reassessment of the 
benefits of the rule, what metrics are needed and how much time is 
needed to obtain data for such metrics?
    In this regard, NMFS indicated that while the rule was in effect, 
the agency would, to the extent possible with existing resources, 
synthesize existing data, gather additional data, or conduct additional 
research on ship/whale collisions to address those uncertainties. NMFS 
also committed to review the previously estimated economic consequences 
of the speed restriction rule (73 FR 60183 (comment and response 11)). 
Some of this work has now been completed (Nathan Associates Inc., 
2012). NMFS also noted in the final rule that determining the 
biological effectiveness of protective measures like the speed rule to 
a high level of statistical significance is difficult and takes many 
years of data collection (73 FR 60182 (comment and response 7)).
    In November 2008, NMFS convened a workshop, and later prepared a 
report that identified ways to assess the rule's effectiveness (Silber 
and Bettridge, 2009). As did the final rule, the workshop participants 
recognized that adequately assessing the effectiveness of any 
protective measure (the vessel speed rule included) with statistical 
rigor would be nearly impossible in brief sampling periods (e.g., 2-3 
years) because definitively-determined ship strike-related right whale 
deaths are rare occurrences, and the ability to ascribe a cause of 
death is limited. Therefore, conclusions regarding the rule's 
biological effectiveness would require data collection periods longer 
than one to five years. These caveats notwithstanding, NMFS committed 
to assess the rule's effectiveness to the extent possible.
    Consistent with the workshop report, NMFS initiated studies to 
assess, among other things, vessel operator response to, and compliance 
with, the provisions of the rule; changes in ship strike-related death 
rates in U.S. east coast large whale populations; and economic impacts 
of the rule to shipping and related maritime interests. The findings of 
these studies are summarized in Silber and Bettridge (2012). 
Statistical analyses contained in the 2012 report indicated that the 
sampling period was too short to make a meaningful determination about 
the rule's impact on the right whale population. Simply detecting a 
relatively large change in the rate of known ship strike deaths and 
serious injuries would require 5-7 or more years (depending on the 
magnitude of the change), perhaps longer (Pace, 2011; Silber and 
Bettridge, 2012). Thus, for these reasons and others indicated above, 
it is difficult to make definitive conclusions at this time regarding 
the long-term biological effectiveness of the current vessel speed 
restriction rule.
    With regard to reassessment of the existing rule, NMFS will 
continue to monitor right and large whale death rates; determine causes 
of whale deaths when possible; monitor right whale population size, 
demographics, and such things as calving and recruitment

[[Page 34027]]

rates; monitor vessel operations in response to the vessel speed 
restrictions; attempt to further assess the relationship between vessel 
speed and the likelihood of ship strikes of whales; and evaluate new 
and historic whale sighting records. Such analysis eventually may lead 
to subsequent rulemaking to modify or refine certain aspects of the 
regulation (e.g., possible changes to the locations, dimensions, or 
duration of management areas, or termination of parts or all of the 
rule's provisions). Those efforts are ongoing but will not be concluded 
before the current rule expires. Therefore, NMFS also requests comments 
on its ongoing activities to monitor and assess the rule's 
effectiveness, as well as input on the data, metrics, and time needed 
to do so.
    NMFS continues to believe the 2008 speed regulation is an important 
conservation measure for North Atlantic right whales, based on the 
supporting information contained in the preamble for the 2008 rule, 
additional information that has emerged since, and the lack of any new 
information that contradicts our original conclusions that the 
regulation is justified. Accordingly, NMFS is proposing to remove the 
sunset clause to allow this protective regulation to remain in effect 
and seeks comment on this proposed action. In addition, given that the 
justification for establishing the initial rule remains applicable and 
is supported by subsequent studies, but that difficulty remains in 
quantifying the benefits of the existing rule, NOAA requests comments 
on whether the final rule should include an extension of the sunset 
provision that would allow time for a more comprehensive assessment of 
the benefits and effectiveness of the rule, and what time frame would 
be appropriate for such an extension. Further, NOAA seeks comments on 
modifications that would improve the effectiveness of the rule.

Justification for This Proposed Rule

    The use of vessel speed restrictions in the 2008 rule to reduce 
lethal vessel strikes of right whales was based largely on analysis by 
Laist et al. (2001), Pace and Silber (2005), and Vanderlaan and Taggart 
(2007). These studies found that the likelihood of serious injury and 
death in whales struck by vessels was diminished by reduced vessel 
speed. The latter two analyses indicated that the probability of death 
or a serious injury of a struck whale is rapidly diminished when vessel 
speeds are below 12 knots (and the probability decreases as speed 
decreases). Vanderlaan and Taggart (2007) concluded that for each one-
knot increase in vessel speed the likelihood of a fatal whale strike 
increased by 1.5-fold. Based on the findings reported in these same 
studies, vessel speed restrictions are being used in other locations to 
reduce the threat of ship strikes to large whales including humpback 
whales in Glacier Bay, AK, and fin and sperm whales in the 
Mediterranean Sea. Vessel speed restrictions have also been effective 
in reducing vessel strikes of manatees (Laist and Shaw, 2005), and the 
relationship between vessel speed and the likelihood of collisions with 
marine turtles has been demonstrated (Hazel and Gyuris, 2006; Hazel et 
al., 2007).
    The studies relied upon for the 2008 rule continue to represent the 
best available information and NMFS is not aware of any new information 
that contradicts the original basis for the speed restriction. 
Additional relevant peer-reviewed studies have been published since the 
rule went into effect. Among them, Vanderlaan et al. (2009; regarding 
right whales along the U.S. and Canadian eastern seaboard), Vanderlaan 
and Taggart (2009; right whales in Canadian waters), and Gende et al. 
(2011; humpback whales in Alaskan waters) concluded that vessel speed 
restrictions are effective in reducing the occurrence or severity of 
vessel strikes of right and other large whale species in various 
geographic locations. Recent modeling studies estimated that the vessel 
speed restrictions established by the 2008 final rule have 
substantially lowered the probability of lethal vessel strikes of North 
Atlantic right whales (Lagueux et al., 2011; Wiley et al., 2011; Conn 
and Silber, 2013). In addition, no right whale vessel strike-related 
fatalities have occurred in or near the vessel speed restriction areas 
established by the 2008 rule (from December 2008 to present). At least 
two right whale deaths or serious injuries have occurred as a result of 
vessel strikes since implementation of the rule, but they either 
occurred outside vessel speed zones or involved vessels not subject to 
the rule. In one case the vessel type involved is not known and a non-
military sovereign vessel was involved in the second case. Operators of 
sovereign vessels in U.S. waters that are not subject to the provisions 
of the rule (e.g., military vessels) are well aware of the vessel speed 
restrictions through ESA Section 7 consultations with NMFS, regular 
interagency collaboration and notification, and through NMFS 
involvement in these agencies' marine conservation programs. Also, NOAA 
provides information to operators of vessels that are not subject to 
the rule due to vessel size (e.g., those less than 65 feet in length) 
via notices that routinely accompany marine weather broadcasts and 
other radio broadcasts to boaters, information posted at small ports 
and dock facilities, a smart phone application, the distribution of 
brochures, its maritime community liaisons, press releases, and in 
meetings with the general public.
    Based on the information relied upon for the 2008 speed restriction 
rule and subsequent information cited herein, NMFS has determined that 
the provisions of that rule should be extended to maintain the status 
quo and to continue a measure designed to reduce the threat of vessel 
collisions with Western North Atlantic right whales. The way to achieve 
that is through the proposed removal of the expiration provision 
currently in the regulation. The underlying science and administrative 
record providing support for the vessel speed restrictions remain 
unchanged. All other provisions of the rule as it now exists would 
remain in place.

Public Participation

    It is the policy of the Department of Commerce, whenever 
practicable, to afford the public an opportunity to participate in the 
rulemaking process. Accordingly, interested persons may submit written 
comments regarding this proposed rule by one of the methods listed in 
the ADDRESSES section. All comments must be received by midnight of the 
close of the comment period.

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[[Page 34028]]

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Albor[aacute]n Sea TSS reconfiguration vs. speed recommendation. 
IWC/s10/SSW5.3. In: Report of the Joint IWC-ACCOBAMS Workshop on 
Reducing Risk of Collisions between Vessels and Cetaceans. IWC Ship 
Strikes Working Group. Report of the Joint IWC-ACCOBAMS Workshop on 
Ship Strikes, Beaulieu-sur-Mer, France, 21-24 September 2010. https://iwcoffice.org/meetings/shipstrikes10.htm.
van der Hoop, J.M., M.J. Moore, S.G. Barco, T.V.N. Cole, P-V. 
Daoust, A.G. Henry, D.F. McAlpine, W.A. McLellan, T. Wimmer, and 
A.R. Solow. 2012. Assessment of management to mitigate anthropogenic 
effects on large whales. Conservation Biology 27:121-133.
Vanderlaan A.S.M. and C.T. Taggart. 2007. Vessel collisions with 
whales: The probability of lethal injury based on vessel speed. 
Marine Mammal Science 23:144-156.
Vanderlaan A.S.M., J.J. Corbett, S.L. Green, J.A. Callahan, C. Wang, 
R.D. Kenney, C.T. Taggart, and J. Firestone. 2009. Probability and 
mitigation of vessel encounters with North Atlantic right whales. 
Endangered Species Research 6:273-285.
Waring, G.T., E. Josephson, K. Maze-Foley, and P.E. Rosel (eds.) 
2012. Draft U.S. Atlantic and Gulf of Mexico Marine Mammal Stock 
Assessments--2011. U.S. Department of Commerce, NOAA Technical 
Memorandum NMFS-NE-221.
Wiley, D.N., M. Thompson, R.M. Pace III, and J. Levenson. 2011. 
Modeling speed restrictions to mitigate lethal collisions between 
ships and whales in the Stellwagen Bank National Marine Sanctuary, 
USA. Biological Conservation 144:2377-2381.

Classification

    This proposed rule has been determined to be significant for 
purposes of Executive Order 12866.

[[Page 34029]]

    This final rule does not have Federalism implications as that term 
is defined in Executive Order 13132.
    This proposed rule does not contain any new collections of 
information subject to the Paperwork Reduction Act (PRA). However, the 
regulation that this proposed rule would extend does contain such a 
collection of information. If under certain conditions deviation from 
the speed restriction are necessary to maintain safe maneuvering speed, 
the vessel log book must contain an entry, signed and dated by the 
master of the vessel, documenting the reasons for the deviation, the 
speed at which the vessel is operated, the area, and the time and 
duration of such deviation. These entries are estimated to average five 
minutes per response, including time for reviewing instructions, 
searching existing data sources, gathering and maintaining the data 
needed, and completing and reviewing the collection information. On 
October 30, 2008, the Office of Management and Budget (OMB) approved 
the collection-of-information requirements contained in the October 10, 
2008, final rule with an expiration date of April 30, 2009. On August 
27, 2009, OMB approved a request by NMFS to extend its approval of the 
collection-of-information requirements without change, with an 
expiration date of August 31, 2012. NMFS has applied for an extension 
of this expiration date. There is no additional cost to the affected 
public.
    Notwithstanding any other provision of the law, no person is 
required to respond to, nor shall any person be subject to a penalty 
for failure to comply with, a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB Control Number.
    NMFS prepared a draft and final Environmental Impact Statement 
(FEIS) pursuant to the National Environmental Policy Act and an 
accompanying Economic Analysis report for the existing rule. While the 
FEIS contained an alternative with an expiration clause, the DEIS and 
economic analysis evaluated an alternative without an expiration, and 
that alternative was incorporated by reference into the FEIS. This 
proposed rule seeks only to remove the expiration clause of the 
existing speed regulation. The provisions of the speed regulation that 
would remain upon removal of the expiration are otherwise the same as 
those analyzed in those documents. NMFS prepared a Supplemental 
Information Report (SIR) that provides updates to the information and 
analysis contained in the FEIS. NMFS also prepared an updated economic 
analysis for the existing regulation. Based on the SIR, NMFS determined 
preliminarily that a supplemental NEPA analysis is not required for 
this proposed rule. The FEIS is posted at: https://www.nmfs.noaa.gov/pr/shipstrike/. Copies of the Economic Analysis prepared for the FEIS are 
available from NMFS's Office of Protected Resources (see ADDRESSES).
    Pursuant to the Regulatory Flexibility Act, NMFS prepared the 
following Initial Regulatory Flexibility Analysis (IRFA).

IRFA

    A description of the action, why it is being considered, and the 
legal basis for this action are contained in the preamble to this 
proposed rule, as well as the preambles to the vessel speed restriction 
2006 proposed (71 FR 36299) and 2008 final (73 FR 60173) rules. This 
proposed rule would extend the provisions of the existing rule by 
removing its expiration date. This proposed rule does not duplicate, 
overlap, or conflict with other Federal rules.
    This IRFA incorporates analysis prepared for the 10-knot vessel 
speed restrictions contained in the 2006 proposed and 2008 final rules, 
and the corresponding initial and final Regulatory Flexibility Act 
analyses and determinations contained in those rulemaking actions. It 
also incorporates economic analysis contained in the FEIS, and the 
Regulatory Impact Review (RIR) and Economic Analysis (Nathan Associates 
Inc., 2008) prepared for the 2008 final rule. In addition to these 
documents, incorporated here by reference, NMFS has conducted studies 
to update the previously prepared (i.e., 2008) economic and other 
analyses. Results of those studies are provided in Silber and Bettridge 
(2012) and in Nathan Associates Inc. (2012) and are summarized in 
``Economic Impact'' section below.
    NMFS believes that there may be disproportionate impacts resulting 
from implementation of this proposed rule among types of small entities 
within the same industry as well as between large and small entities of 
different vessel types occurring within different industries based on 
the IRFA developed for the 2008 final rule. There may also be 
disproportionate impacts between or among vessels servicing different 
areas or ports, but there are no data or evidence to indicate that this 
is the case. The economic impacts of the proposed rule as it relates to 
small entities are discussed below.
    This proposed rule would contribute to the protection of the 
critically endangered North Atlantic Right Whale and advance the 
objectives outlined in the recovery plan for the species. NMFS believes 
that the justification for the utility of vessel speed restriction in 
reducing the risk of fatal strikes to whales as provided in the final 
rule and as contained in various scientific studies (e.g., Vanderlaan 
and Taggart, 2007) continue to apply. In addition, this conclusion has 
been backed by subsequent modeling analyses presented in a number of 
peer-reviewed papers published since implementation of the vessel speed 
rule (e.g., Gende et al., 2011; Vanderlaan et al, 2009; Wiley et al., 
2011; Conn and Silber, 2013) and as referenced in the ``Justification 
for this Proposed Rule'' section of this proposed rule (above). This 
proposed amendment to the existing rule would preserve the status quo 
beyond the current expiration date.

Description and Estimate of the Number of Affected Small Entities to 
Which This Rule Will Apply

    This proposed rule will continue to apply to vessels that are 65 
feet (19.8 m) or greater in overall length. Five industries are 
directly affected by this proposed rulemaking: Commercial shipping, 
passenger ferries, whale watching vessels, commercial fishing vessels, 
and charter fishing vessels. This analysis uses size standards 
prescribed by the Small Business Administration (SBA). Specifically, 
for international and domestic shipping operators, the SBA size 
standard for a small business is 500 employees or less. The same 
threshold applies for international cruise operators and domestic ferry 
service operators. For whale watching operators and charter fishing 
commercial fish harvesters, the SBA threshold is $7.0 million of 
average annual receipts. For commercial fishing operators, the SBA 
threshold is $4.0 million of average annual receipts. Based on the 
economic analysis provided for the 2008 final rule and the most recent 
economic impact studies (Nathan Associates Inc., 2012), the number of 
small entities potentially affected by this proposed rule, by industry, 
are expected to be as follows: 362 commercial shipping vessels of 
various classifications (31 of which are passenger ships), 297 
commercial fishing vessels, 40 charter fishing vessels, 14 passenger 
ferries, 22 whale-watching vessels.
    Detailed information on small entities, other than commercial 
shipping, can be found on pages 143 through 147 and in Tables 4-45 
(commercial fishing), 4-46 (passenger ferries), and 4-49 (whale 
watching) of

[[Page 34030]]

the Economic Analysis for the FEIS (Nathan Associates Inc., 2008) 
prepared for the 2008 final rule and as updated on pages 31-36 of the 
Nathan Associates Inc. (2012) report. Detailed information on small 
entities in the commercial shipping sector is contained on pages 158 
through 161 of the Economic Analysis for the FEIS and pages 29-33 of 
Nathan Associates Inc. (2012). Those analyses are incorporated here, as 
are updates to the economic impact analysis as noted below.
    Based on analysis contained in the FRFA that accompanied the 2008 
final rule and the 2012 Nathan Associates Inc. report (which is also 
incorporated into this IRFA), NMFS concludes that there may be 
disproportionate impacts resulting from implementation of that rule 
among types of small entities within the same industry as well as 
between large and small entities of different vessel types occurring 
within different industries. NMFS also believes that there may be 
disproportionate impacts between large commercial shipping and large 
passenger vessels, and the group consisting of passenger ferries, high-
speed whale watching vessels, and charter fishing vessels (see 
``Economic Impacts'' below). These conclusions were based on the 
assumption that large commercial vessels would be less adversely 
affected than their companion small commercial and shipping vessels.

Economic Impacts

Proposed Alternative (Continuation of 10-Knot Speed Restriction)

    The proposed alternative continues the imposition of a 10-knot 
speed limit applied in defined areas on a seasonal basis. As noted 
above, economic impact analyses are contained in the IRFA for the 2006 
proposed rule and Final Regulatory Flexibility Analysis (FRFA) for the 
2008 final rule, draft and final EIS, and the accompanying 2008 
economic analysis for the vessel speed restrictions. These analyses 
remain pertinent to this proposed action (and are not reprinted here, 
but are incorporated by reference). Further, they have been updated 
based on data collected since the 2008 rule has been in effect, 
including more recent (i.e., 2009 and 2012) bunker fuel prices and 
improved vessel operation information (i.e., actual, rather than 
projected, vessel traffic and speed data). This analysis can be found 
in Appendix K of Silber and Bettridge (2012) and in Nathan Associates 
Inc. (2012) which are available at https://www.nmfs.noaa.gov/pr/shipstrike/. The results of the updated economic analysis indicate that 
the overall economic impacts as well as the economic impacts to each of 
the industries directly affected by this proposed rule are likely to be 
lower than what had been predicted for the 2008 final rule.
    Previous estimates for the 2006 proposed rule and the 2008 final 
rule had relied on 2003/2004 USCG port-call data (the best available at 
the time), 2004 vessel operating costs, 2008 fuel costs, and typical 
vessel operating speed by vessel type and size. New information was 
used to revise the economic impact estimates. The primary operational 
impact on the shipping industry is the extra sailing time caused when 
vessels limit their speed. Changes in sailing times were assessed using 
Automatic Identification System (AIS) vessel operation information, 
which enabled a more precise analysis of actual vessel speeds rather 
than assumptions about expected at-sea speed capabilities. Therefore, 
these data provided a quantification of the actual number and actual 
speeds of trips through affected areas rather than port-call 
information.
    The results from the updated economic analysis indicate that the 
overall average delay in sailing time for all vessels was 0.37 hours 
(22 min) and ranged from 0.08 hours (5 min) for refrigerated cargo 
ships to 0.62 hours (37 minutes) for combination cargo (e.g., oil-bulk-
ore) carriers. The estimated delays were lower than what was predicted 
for the 2008 final rule, which projected overall estimated average 
delays of 1.2 hours for all vessel types and over 2 hours for freight 
barge trips into some ports.
    The IRFA for the 2006 proposed rule reflected the alternatives 
being considered at the time to achieve the purpose and need. That 
information, while still relevant, is not repeated here. This current 
IRFA for the proposed action reflects the current purpose and need, 
namely, to maintain the status quo of reducing the risk of lethal ship 
strikes to highly endangered North Atlantic right whales.
    The only alternative considered in this proposed rule is the ``no 
action'' alternative. This alternative would allow the provisions of 
the 2008 final rule to expire in December 9, 2013. The no-action 
alternative would be economically preferable for some small entities, 
including some passenger ferries, high-speed whale watching vessels, 
and charter fishing vessels. The ``no action'' alternative was rejected 
because NMFS has determined that vessel speed restrictions are needed 
to reduce the threat of ship collisions with right whales and to aid in 
the recovery of this highly endangered species.
    The rule making process for the 2008 final rule considered 
different speed alternatives. As the IRFA and FRFA for that rule making 
acknowledged, a 12-knot or 14-knot speed limit would be economically 
preferable for some small entities. However, based on the best 
information available both then and now, the likelihood of serious 
injury and death to whales increases with vessel speed. Therefore, NMFS 
continues to believe that 10 knots provides the greatest protection 
for, and the greatest likelihood of allowing recovery of, right whales.

Description of the Projected Reporting, Recordkeeping, and Other 
Compliance Requirements of the Final Rule

    Recordkeeping requirements associated with this rule include 
logbook entries in the event of deviation from speed restrictions. 
These entries are estimated to average five minutes per response, 
including time for reviewing instructions, searching existing data 
sources, gathering and maintaining the data needed, and completing and 
reviewing the collection information.
    There are no compliance requirements other than the management 
actions contained in this proposed rule.

List of Subjects in 50 CFR Part 224

    Endangered marine and anadromous species.

    Dated: May 31, 2013.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, Performing the 
functions and duties of the Assistant Administrator for Regulatory 
Programs, National Marine Fisheries Service.


0
For the reasons set out in the preamble, 50 CFR part 224 is proposed to 
be amended as follows:

PART 224--ENDANGERED MARINE AND ANADROMOUS SPECIES

0
1. The authority citation for 50 CFR part 224 continues to read as 
follows:

    Authority:  16 U.S.C. 1531-1543 and 16 U.S.C. 1361 et seq,

0
2. In Sec.  224.105, paragraph (d) is removed.

[FR Doc. 2013-13442 Filed 6-5-13; 8:45 am]
BILLING CODE 3510-22-P