[Federal Register Volume 78, Number 109 (Thursday, June 6, 2013)]
[Proposed Rules]
[Pages 34024-34030]
From the Federal Register Online via the Government Publishing 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 http://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 http://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.,
[email protected], 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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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: http://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 http://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