[Federal Register Volume 78, Number 236 (Monday, December 9, 2013)]
[Rules and Regulations]
[Pages 73726-73736]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-29355]



[[Page 73726]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 224

[Docket No. 110819518-3833-02]
RIN 0648-BB20


Endangered Fish and Wildlife; Final Rule To Remove the Sunset 
Provision of the Final Rule Implementing Vessel Speed Restrictions 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: Final rule.

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SUMMARY: NMFS is eliminating 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 purpose of the regulation is to reduce the 
likelihood of deaths and serious injuries to endangered North Atlantic 
right whales that result from collisions with ships. The speed 
regulations will expire December 9, 2013, unless the sunset clause is 
removed. With this final rule, NMFS is removing the rule's sunset 
provision. All other aspects of the rule remain in place until 
circumstances warrant further changes to the rule.

DATES: This final rule is effective December 6, 2013.

ADDRESSES: Copies of this rule, the revised Economic Analysis for this 
rule, the Final Environmental Impact Statement and Economic Analysis 
(Nathan Associates Inc., 2008) for the original October 2008 final rule 
can be obtained from the Web site listed under the electronic access 
portion of this document. Written requests for copies of these 
documents and this final rule's Regulatory Impact Review 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. Written comments regarding the burden-hour estimates or other 
aspects of the collection-of-information requirements contained in this 
final rule may be submitted to the same address indicated immediately 
above.

FOR FURTHER INFORMATION CONTACT: Gregory Silber, Ph.D., Fishery 
Biologist, Office of Protected Resources, NMFS, at (301) 427-8402.

SUPPLEMENTARY INFORMATION: 

Electronic Access

    Background documents related to this final rule, including a list 
of the literature cited here, the Final Environmental Impact Statement 
for the initial October 2008 final rule on this matter, and the initial 
and revised Economic Analyses, can be downloaded from http://www/
nmfs.noaa.gov/shipstrike. The Regulatory Impact Review can be obtained 
from the name and address listed above.

Background

    The preamble to this final rule provides a brief summary of status 
and growth rates of, and the threats to, the western North Atlantic 
right whale population. Additional information on these population 
parameters can be found in NMFS's previous actions regarding vessel 
speed restrictions including an Advanced Notice of Proposed Rulemaking 
(69 FR 30857, June 1, 2004), Notice of Proposed Rulemaking (71 FR 
36304; June 26, 2006), and Final Rule (73 FR 60173, October 10, 2008), 
as well as in the North Atlantic right whale Marine Mammal Stock 
Assessment Report (Waring et al., 2012; http://www.nmfs.noaa.gov/pr/pdfs/sars/ao2012whnr-w.pdf) all of which are incorporated here by 
reference.
    The western North Atlantic right whale (Eubalaena glacialis) 
remains highly endangered. Population size estimates for this species 
are based on a census of known individual whales identified using 
photo-identification techniques. The most recent (October 2010) review 
of these data indicated that a minimum of 425 individually recognized 
whales were known to be alive during 2009. Whales catalogued by this 
date included 20 of the 39 calves born during that year. Adding the 19 
calves not yet catalogued brings the minimum number alive in 2009 to 
444 (Waring et al., 2013). This number represents a known minimum 
population size for the species. At this level, with the exception of 
North Pacific right whales, North Atlantic right whales are the world's 
most critically endangered large whale species and one of the world's 
most endangered mammals.
    Based on the findings of a workshop to assess the status of right 
whales globally, at which the best available data at that time was 
considered, the International Whaling Commission's (IWC) Scientific 
Committee provided two estimates of western North Atlantic right whale 
population size in 1986: 380-688 and 493-1100 individuals (Brownell et 
al., 1986). Following a 1996 workshop (using 1992 data) and based on an 
examination of several parameters and population size estimate models, 
the IWC's Scientific Committee concluded in 1998 that there were an 
estimated 314 individuals (no confidence intervals were given) in the 
North Atlantic right whale population (Best et al., 2001). Therefore, 
at a currently estimated minimum of 444 individuals, and considering 
likely population declines in the 1990s (Fujiwara and Caswell, 2001), 
the number of individuals that currently exist in this population is 
believed to be not substantially different from the number that existed 
over two decades ago (Best et al., 2001). A population size of several 
hundred individuals is precariously small for any large whale or large 
mammal population, particularly given that this population is 
frequently exposed to anthropogenic threats that result primarily from 
entanglement in commercial fishing gear and collisions with vessels.
    In recent years, the western North Atlantic right whale population 
has exhibited some promising signs of recovery. For example, calving 
intervals for the population averaged from about 3.5 to more than 5 
years for much of the past three decades (Kraus et al., 2001; Kraus et 
al., 2007), this interval was closer to 3.0 years in recent years 
(Kraus et al., 2007). In addition, the 20-year (1990-2010) mean annual 
growth rate is estimated to be 2.6% (Waring et al., 2013). This is 
encouraging because in some years (1993; 1998-2000) this population is 
believed to have remained static or declined in size (Waring et al., 
2013). However, this growth rate is low compared to growth rates 
observed in other large whale populations, such as the closely related 
south Atlantic right whale (Eubalaena australis) and western Arctic 
bowhead whale (Balaena mysticetus), which have been recovering steadily 
at rates of 4 percent or more per year. The growth rate for the North 
Atlantic right whale is also below the 4 percent default Maximum Net 
Productivity Level growth rates used for all cetacean species (Wade and 
Angliss, 1997). Low rates of reproduction in large whale populations 
mean that recovery rates can be low under the best of circumstances.
    Calf production has also been relatively high in the last 10 or so 
years,

[[Page 73727]]

averaging 17.2 (15.3-19.4; 95% C.I.) calves per year (a range of 1-39) 
between 1993 and 2010 (Waring et al., 2013). This period also includes 
a number of relatively poor, single-digit calf years (e.g., one calf in 
2000) in 1993-1995 and 1998-2000. Seven new calves were documented in 
the 2011 season.
    Not all calves born are ``recruited'' into the population as viable 
adults or sub-adults due to natural and human-related mortality. The 
number of known calf deaths ranged from 0-4 and averaged 1.2 per year 
during 1993-2010. Browning et al. (2010) estimated that calf and 
perinatal mortality was between 17 and 45 individuals from 1989 to 
2003. During the 2004 and 2005 calving seasons alone, three adult 
females were found dead with near-term fetuses. Analyses of the age 
structure of this population suggest that it contains a smaller 
proportion of juvenile whales than expected (Hamilton et al., 2007), 
which may reflect high juvenile mortality rates. An unstable age 
structure can lead to low reproductive rates (Waring et al., 2013).
    Because of its small population size and low growth rates, even low 
levels of human-caused mortality can pose a significant obstacle for 
North Atlantic right whale recovery. Anthropogenic activities are 
likely among the primary causes for the species' failure to recover 
(Kraus, 1990; Knowlton and Kraus, 2001; Moore et al., 2005; NMFS, 2005; 
van der Hoop et al., 2013). 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 
observed in the 1990s.
    Established criteria to change the listing status from 
``endangered'' to ``threatened'' or remove the North Atlantic right 
whale from the list of threatened and endangered species under the 
Endangered Species Act (ESA) are provided in the Recovery Plan for the 
North Atlantic Right Whale (Eubalaena glacialis) (NMFS, 2005). The 
criteria for changing the listing status of right whales have not been 
met and likely will not be met for a number of years. As noted in this 
preamble, this whale population is chronically exposed to threats from 
human activities that retard its recovery. Thus, while there are a 
number of encouraging signs regarding the growth and productivity of 
this population, given its current size and the threats to which it is 
exposed, the species' listing status is not likely to change in the 
foreseeable future.

The Threat of Vessel Collisions

    All large whale species are susceptible to collisions with vessels 
(Laist et al., 2001; Jensen and Silber, 2003; Van Waerebeek and Leaper, 
2008). Such collisions can result in fractured bones, crushed skulls, 
severed tail stocks, internal hemorrhaging, and deep, broad propeller 
wounds (Moore et al., 2005; Campbell-Malone, 2007; Campbell-Malone, et 
al., 2008). Right whales appear to be more vulnerable to ship strikes 
than other large whale species (Vanderlaan and Taggart, 2007).
    From 1970-2011 a total of 91 documented western North Atlantic 
right whale deaths occurred due to injuries suffered from entanglement 
in commercial fishing gear, vessel strikes, from unknown causes, or 
occurred perinatally. Of these, 31 resulted from vessel collisions. 
Known vessel collision-related right whale deaths generally averaged 1-
2 per year in that period.
    The number of known vessel strike-related deaths varies inter-
annually. For example, for the most recent 5-year period (2006-2010) 
discussed in marine mammal stock assessment reports for this species 
(Waring et al., 2013), vessel collision-related right whale deaths or 
serious injuries occurred at a rate of 1.2 per year (including both 
U.S. and Canadian waters). However, in 2004-2006 alone, eight right 
whales died from vessel collisions. The average annual rate of death 
and serious injury from vessel strikes has subsided in recent years. 
Although four known vessel strike deaths occurred in U.S. waters alone 
in 2006-2010, three of these took place in 2006 (prior to the vessel 
speed limit rule going into effect); the fourth occurred in 2010, after 
the rule went into effect (but outside vessel speed managed areas). 
None are known to have occurred in or near vessel speed restriction 
areas in the time since the rule was implemented.
    Studies indicate that female (van der Hoop et al., 2013) 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 spend more time at the surface than 
other gender/age classes where they are vulnerable to being struck. The 
effect of high female and calf death rates on population recovery may 
be particularly profound if the lost female is at the height of, or 
just entering, her most reproductively active years. This loss, as well 
as that of any female offspring, is a permanent loss of reproductive 
potential to the population.
    Annual death rates calculated from detected mortalities represent 
definitive lower bound estimates of human-caused mortality (Waring et 
al., 2013). The detection of dead whales is opportunistic and detection 
``effort'' (largely, in the form of aircraft surveys in some locations) 
is not comprehensive across all areas and in all times of the year. In 
addition, it is not always possible to determine with certainty 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. As such, the number of reported human-
caused right whale deaths represents a minimum estimate (Henry et al., 
2012; Waring et al., 2013).
    Therefore, death and serious injury resulting from collisions with 
vessels remains a significant threat to the recovery of the western 
North Atlantic right whale population (Clapham et al., 1999; Kraus et 
al., 2005; NMFS, 2005, Vanderlaan et al., 2009; van der Hoop et al., 
2013).
    Right whale deaths resulting from vessel collisions appear to be 
related, at least in part, 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.
    The ultimate goal of identifying and implementing conservation 
measures, including this one, on behalf of an endangered species is to 
recover the species. 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 actions 
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 the recovery of the species.

Reducing the Threat of Vessel Collisions With Right Whales

    Steps have been taken to reduce the threat of right whale serious 
injury and death resulting both from commercial fishing gear 
entanglement (see, for example, http://www.nero.noaa.gov/

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Protected/whaletrp/; Knowlton et al., 2012) and from vessel collisions. 
With regard to the latter, NOAA has worked with the U.S. Coast Guard, 
other Federal and state agencies, and the International Maritime 
Organization to modify customary shipping routes to reduce the co-
occurrence of vessels and North Atlantic right whales. This has 
included, for example, establishing recommended vessel routes within 
Cape Cod Bay and in right whale nursery areas in waters off Georgia and 
Florida (http://www.nmfs.noaa.gov/pr/shipstrike/routes.htm; Lagueux et 
al., 2011); modifying the vessel Traffic Separation Scheme servicing 
Boston; and creating an Area To Be Avoided in right whale feeding areas 
off New England (see, for example, Silber et al., 2012b). NOAA has also 
helped create a number of mariner notification systems (some of which 
are based on aircraft surveys designed to provide real-time right whale 
sighting location information) (Silber and Bettridge, 2012) and has 
established two Mandatory Ship Reporting systems to help alert mariners 
to the threat of vessel collisions with whales (Ward et al., 2005; 
Silber et al., 2012b).

Vessel Speed Restrictions To Reduce the Threat of Vessel Collisions 
With Right Whales

    Through rulemaking, NMFS has also established vessel speed 
restrictions to reduce the likelihood of fatal collisions with right 
whales. Speed restrictions apply in specific locations, primarily at 
key port entrances, and in certain times in Seasonal Management Areas 
(SMAs). The restrictions apply to vessels 65 feet and greater in length 
(73 FR 60173, October 10, 2008). NMFS also established a Dynamic 
Management Area (DMA) program whereby vessels are requested, but not 
required, to either travel at 10 knots or less or route around 
locations when certain aggregations of right whales are detected 
outside SMAs. Finally, the 2008 final rule contained an exception to 
the speed restriction for when navigational safety requires a 
deviation.
    As indicated in NMFS's 2008 final rule, a number of studies have 
established a relationship between vessel speed and fatal strikes of 
large whales. Among the earliest of these was Laist et al. (2001), Pace 
and Silber (2005), and Vanderlaan and Taggart (2007). The latter two 
studies found that the likelihood of serious injury and death in whales 
struck by vessels diminished with reduced vessel speed. In particular, 
the probability of death or serious injury of a struck whale is rapidly 
diminished when vessel speeds are below 12 knots. The probability 
continues to decrease as speed decreases. Further, Vanderlaan and 
Taggart (2007) concluded that for every 1-knot increase in vessel 
speed, the likelihood of a strike resulting in death or serious injury 
increased by 1.5 times and that the probability of a fatal strike event 
increased from 20% at 9 knots to 80% at 15 knots and 100% lethality at 
20 knots or more. Vessel speed has also been implicated in vessel 
strike-related deaths of manatees (Laist and Shaw, 2006; Calleson and 
Frolich, 2007) and sea turtles (Hazel and Gyuris, 2006; Hazel et al., 
2007).
    Based on this collection of studies, NMFS issued restrictions of 
vessel speeds to reduce the threat of vessel collisions with North 
Atlantic right whales. Findings from these and related studies were 
also the basis for mandatory vessel speed restrictions to protect 
humpback whales in Alaska's Glacier Bay National Park and Monument 
(NPS, 2003; Gende et al., 2011), for voluntary vessel speed 
restrictions to reduce the incidence of strikes of fin and sperm whales 
in the Mediterranean Sea (Tejedor et al., 2007; Tejedor and 
Sagarminaga, 2010), for various whale species in the Pacific Ocean 
approaches to the Panama Canal, and for humpback, blue, and fin whales 
in waters off California (DHS/USCG, 2013). Speed restrictions have been 
in effect since the early 2000s in inland waterways of Florida to 
reduce the threat of strikes of manatees (Trichechus manatus 
latirostris) by small craft (http://myfwc.com/wildlifehabitats/managed/manatee/protection-zones/; Calleson and Frolich 2007; Laist and Shaw, 
2006), and indications are that these restrictions have resulted in a 
decrease in the number of fatal strikes of manatees (Laist and Shaw, 
2006).
    Recommended vessel speed limits are now used in some settings to 
limit the incidence of strikes of marine mammals in vessel operations 
conducted or permitted by various federal agencies (i.e., under ESA, 
Marine Mammal Protection Act, offshore oil lease-sales and permitting, 
among other authorities). These include use by the Bureau of Ocean 
Energy Management for vessel operations involved in offshore energy 
development activities (BOEM, 2012) and by NMFS for some Army Corps of 
Engineers dredging activities, NOAA seafloor bathymetric survey, and 
geophysical survey vessel operations activities (see, for example, NMFS 
2013a, b). The Maritime Administration also requires speed limits for 
liquefied natural gas transport vessels near Boston when right whales 
are in the vicinity (NMFS, 2007a; NMFS, 2007b).
    In the period since NMFS's vessel speed restrictions went into 
effect, a number of additional studies have been published regarding 
vessel strikes of large whales. 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 were effective in reducing the occurrence or 
severity of vessel strikes of right and other large whale species in 
various geographic locations.
    The impact forces and trauma experienced by a struck whale 
(Campbell-Malone et al., 2008) and the hydrodynamic forces around the 
hull of a large vessel and the ways in which vessel speed influences 
these forces have also been studied (Knowlton et al. 1998; Wang et al., 
2007, Silber et al., 2010). Computer simulation models used to assess 
the hydrodynamic forces that vessels might have on a large whale near 
the hull indicated that, in certain instances, hydrodynamic forces 
around a vessel would be expected to pull a whale toward a ship, 
thereby increasing the risk of a strike (Knowlton et al., 1995; 
Knowlton et al., 1998). These forces increase with increasing speed and 
thus a whale's ability to avoid a ship in close quarters is likely 
reduced with increasing vessel speed. In related simulation studies, 
Clyne (1999) concluded that the number of strikes by passing ships 
decreased with increasing vessel speeds, but that the number of strikes 
that occurred in the bow region increased with increasing vessel 
speeds. Flow tank experiments indicated that as vessel speed increases 
so does the size of the zone of influence around the hull of a vessel 
(i.e., the area in which a whale might be drawn into a strike) and 
acceleration (i.e., impact velocity) experienced by the whale involved 
in a collision (Silber et al., 2010).
    NMFS's 2008 vessel speed restriction final rule, itself, has been 
the subject of a number of studies. Among these are a legal review 
(Norris, 2008; Firestone, 2009), economic analysis (Nathan Associates 
Inc., 2012), effectiveness assessments studies (Pace, 2011; Silber and 
Bettridge, 2012; van der Hoop et al., 2013), and risk reduction studies 
(Lagueux et al., 2011, Wiley et al., 2011; Conn and Silber, 2013).
    Applying the risk analysis of fatal whale strikes as a function of 
vessel speed provided by Vanderlaan and Taggart (2007), Lagueux et al. 
(2011) and Wiley et al. (2011) computed risk

[[Page 73729]]

reduction resulting from NMFS's vessel speed restrictions in certain 
areas. Lagueux et al. (2011) concluded that NMFS's vessel speed 
restrictions lowered the risk of lethal vessel strikes of right whales 
by 39% in the SMA in waters off Florida/Georgia (considering only the 
first season in which SMAs were in effect). Wiley et al. (2011) 
estimated that the speed restrictions in SMAs in waters off New England 
(considering the first season, only) reduced the risk of fatal strikes 
of right whales by 57%. In analysis that quantified vessel speeds used 
in all SMAs in a four-year period after the rule went into effect and 
using expanded speed/risk models, one study estimated that the 2008 
vessel speed rule reduced the risk of lethal vessel collisions with 
right whales by 80-90% (Conn and Silber, 2013).
    NMFS knows of no information, data, or reports that would 
contradict the findings of the studies on which the original 2008 rule 
was based or that would contradict the peer-reviewed studies published 
since the rule went into effect. As such, the rationale for the basis 
of the rule remains intact.

Vessel Speed Restrictions Through Proposed and Final Rulemaking

    NMFS's 2008 final rule to restrict vessel speeds in certain 
locations and at certain times along the U.S. Atlantic seaboard 
incorporated a number of changes relative to the related 2006 notice of 
proposed rulemaking (71 FR 36304) based on public and interagency 
comments. These changes included a reduction in the geographic extent 
of SMAs to limit economic impacts upon the regulated community, changes 
to the DMA program, and the addition of a December 8, 2013 expiration 
date. The expiration date was added because concerns were voiced 
regarding empirical certainty about the ``manner in which ships and 
whales interact and the relationship of speed and other factors to 
whale injuries and mortalities'', i.e., the expected behavior (e.g., 
avoidance) of a whale at or immediately prior to the time of a strike 
and the response of whales to vessels at various speeds.
    In its 2008 final rule, NMFS indicated that it would ``to the 
extent possible, with existing resources [. . .] synthesize existing 
data, gather additional data, or conduct additional research,'' review 
the economic consequences of the rule, and determine what further steps 
to take regarding this rule. At the same time, NMFS also indicated that 
a determination regarding the effectiveness of protective measures in 
preventing vessel strikes of right whales--i.e., ``proving a 
negative,'' or attributing the absence of a ship strike incident to 
speed restrictions--with statistical rigor would require many years of 
data collection.
    In anticipation of the rule's expiration, NMFS compiled the best 
available data on this matter including the information on which the 
2008 rule was based. NMFS also synthesized and reviewed empirical 
studies that were conducted since the rule went into effect, some of 
which provided analysis of the rule itself, and revised and improved 
its economic impact estimates. Based on this information, NMFS prepared 
and sought public comment on a June 6, 2013, proposed rule (78 FR 
34024, June 6, 2013) to remove the sunset provision. In its June 6, 
2013 proposed rule, NMFS also sought comment on issues that it may 
consider addressing in future rulemaking.
    Navigational safety is of vital importance. Human safety and the 
safety of a vessel and its cargo should not be compromised under any 
circumstances. NMFS acknowledges that the operation of a vessel is a 
complex undertaking and that certain sea and weather conditions require 
added speeds to provide adequate vessel steerage. For this reason the 
2008 rule provided for an exception whereby a vessel operator, at his/
her discretion, may exceed the 10-knot speed limit to ensure 
navigational safety when sea conditions warrant higher speeds. This 
final rule does not alter that exception.

Comments on the Notice of Proposed Rulemaking and Responses

    With respect to the proposed removal of the sunset provision, NMFS 
specifically requested comments and information from the public on 
three topics: (a) Removing the sunset provision contained in the 
existing regulations; (b) whether the final rule should include an 
extension of the sunset provision, and the time frame that would be 
appropriate for such an extension; and (c) information that may help 
identify the studies needed to verify the rule's efficacy, including 
the specific metrics to be used, and the amount of time needed to 
determine if the rule is effective in protecting and recovering the 
North Atlantic right whale population over the long term. In the 
notice, NMFS also sought information about modifications that would 
improve the effectiveness of the existing regulations that could be 
considered in future rulemakings.
    In response to this request NMFS received a total of 145,879 
comments on the June 6, 2013, proposed rule. Most comments were 
submitted via the government comment Web site, but some were provided 
directly to NMFS by electronic and U.S. postal mail. All comments have 
been compiled and posted at www.regulations.gov/#!docketDetail;D=NOAA-
NMFS-2012-0058. Of the comments received, 73,560 were in the form of a 
petition signed by members of an organization; 71,126 were from 
individual members of four organizations who co-signed a form letter; 
and 659 submissions contained individual comments from members of one 
of those organization. These four organizations compiled and submitted 
the petition, the co-signed letter, and individual member comments. Of 
the remainder of the comments, 483 were submitted directly to the 
comment Web site by non-affiliated individuals; 21 came from ports and 
pilot association representatives; 11 from environmental organizations 
(other than the ones noted above); seven from industry associations; 
six representing state or federal agencies or their affiliates; three 
from commercial whale-watch or ferry companies; two from public 
aquariums; and one from a commercial fishing association.
    A total of 145,840 commenters expressed general support for the 
content of the rule and/or an elimination of the rule's sunset 
provision. Two commenters indicated that the rule should expire in 
December 2013 as set forth in the October 2008 final rule. Several 
commenters expressed a preference for the rule expiring, but also 
indicated that establishing a new sunset date was acceptable. Of those 
providing specific or detailed comments, 33 indicated that the sunset 
provision should be removed with no new expiration date set; 16 
commenters indicated that a new termination date should be established 
but did not specify when it should occur; and 14 indicated the rule 
should have a new sunset date of five or less years. Fifty-nine 
commenters suggested various modifications to enhance the effectiveness 
of the rule in future rulemaking; and four provided new data or 
analysis that assessed specific aspects or components of the existing 
rule.
    In the text below, we provide a general summary of the comments, 
recommendations, and issues raised that relate to the request for 
information and comment regarding this rulemaking, and provide 
responses to them.
    Comments regarding the studies and scientific bases for the 
rulemaking: Right whale occurrence, distribution, demographics, and 
population size; and the relationship between vessel speed

[[Page 73730]]

and the probability of fatal whale/vessel collisions.
    Comment 1: Several commenters questioned the validity of the 
studies and the data cited in the proposed rule (and in the previous 
rulemaking on this matter) with regard to the size and status of the 
North Atlantic right whale population, statements regarding its growth 
rates, whether ship collisions are a major threat to North Atlantic 
right whales, and the use of vessel speed limits to reduce the threat. 
Some commenters offered critiques of the various statistical and 
modeling studies published in peer-reviewed journals used to assess the 
relationship between vessel speed and the threat of ship strikes and/or 
indicated that NMFS had not established that vessel speed restrictions 
were an effective way to reduce the threat of vessel collisions with 
right whales.
    Response: NMFS examined the best available scientific information 
on the North Atlantic right whale population size, trends in population 
size, productivity, and demographics, and threats to the population in 
determining that the use of speed restrictions are an effective means 
to reduce the likelihood and severity of ship strikes. NMFS knows of no 
data, reports, or peer-reviewed published studies that would contradict 
the findings of the studies on which this rule is based.
    Information on various aspects of North Atlantic right whale 
natural history, population size, and growth rates is derived from 
peer-reviewed documents and databases, or has been published in peer-
reviewed journals. NMFS believes that this information is credible and 
that it provides a scientifically sound basis for this action. A brief 
summary of this information is provided in the preamble to this final 
rule and appears in other sources including Waring et al. (2013), NMFS 
Proposed (NMFS, 2006; 71 FR 36304; June 26, 2006) and Final Rules 
(NMFS, 2008; 73 FR 60173, October 10, 2008) on the matter, and in NMFS 
(2005) which are incorporated here by reference.

Locations of Vessel Struck Right Whales

    Comment 2: Some commenters suggested that right whale vessel 
strike-related deaths occur more frequently in some locations than in 
other locations or that right whale vessel-strike deaths do not occur 
at all in some areas. Therefore they proposed that seasonal speed 
restrictions should be limited in some areas. In particular, one 
commenter indicated that documented vessel collisions with right whales 
have not occurred in waters off South Carolina. Another indicated the 
same was true for waters off Virginia.
    Response: Historic and recent records indicate that fatal vessel 
strikes of right whales can occur throughout the species' range, i.e., 
in nearly all coastal waters of eastern Canada and the United States 
(Laist et al., 2001; Jensen and Silber 2003; Vanderlaan and Taggart, 
2007; Vanderlaan et al., 2009; van der Hoop et al., 2013; Henry et al., 
2012; Waring et al., 2013). Whereas records of known right whale vessel 
collision-related deaths may be absent or few in a particular (narrowly 
defined) geographic area in certain (limited) periods, it is clear that 
collisions involving vessels and right whales can occur in any location 
where vessel operations and right whales co-occur. Not all deaths are 
detected or reported because surveys for carcasses are not systematic 
in all areas or times of the year, and because carcasses may drift to 
sea or decompose before detection. Therefore, few or infrequent 
documented instances of known vessel strike-related deaths in a 
particular area does not necessarily indicate that deaths are 
completely absent there or that the risk of strikes does not exist.
    One recent study concluded that fatal collisions involving all 
large whale species are most prevalent in waters along the U.S. mid-
Atlantic states (van der Hoop et al., 2013), and another concluded that 
North Atlantic right whales are most vulnerable to vessel-strike 
mortality in the southern portions of its range (e.g., waters off 
Georgia and Florida) (Vanderlaan et al., 2009).

Vessel Speed and the Probability of Lethal Strikes of Large Whales

    Comment 3: A number of commenters questioned (and offered specific 
critiques) of the data, reports, and studies reported in peer-reviewed 
scientific literature on the relationship between vessel speed and 
lethal collisions with large whales and other large marine vertebrates.
    Response: While the critiques of the peer-reviewed literature 
provided by commenters may be open to discussion in the scientific 
literature, NMFS knows of no specific data, analysis, studies, or 
reports that would refute or contradict the existing literature. 
Although the link between vessel speed and the likelihood of fatal 
collisions with whales was first proposed as recently as the early 
2000s, a growing body of literature on this subject is confirming the 
relationship between vessel speed and the death of a struck whale. NMFS 
regards these studies and the existing scientific literature represents 
the best available science on this matter. In addition, NMFS believes 
that the empirical results discussed above and described in the 
proposed rule and related documents, and the analysis conducted since 
the rule went into effect, are ample justification for imposing vessel 
speed restrictions to minimize the risk of lethal strikes of right 
whales.
    Moreover, some commenters on the June 2013 proposed rule provided 
new analysis and data from studies that, in their view, supported the 
use of speed restrictions to reduce fatal collisions with right whales. 
In each case, these analyses addressed aspects of the 2008 vessel speed 
rule and represented the first time these results were presented 
publicly.
    One set of comments included results of a comparison of the rate 
and locations of fatally struck right whales in all active SMAs (at the 
times they were in effect) to the number of known vessel collision-
related right whale deaths in and near those same areas prior to the 
rule going into effect. Given that no fatal vessel strike-related right 
whale deaths occurred in or near active SMAs since the rule went into 
effect, the commenter concluded that this time span is nearly twice the 
longest interval between subsequent known vessel collision fatalities 
in these same areas in an 18-year study period prior to adoption of the 
rule (http://www.regulations.gov/#!documentDetail;D=NOAA-NMFS-2012-
0058-0530).
    Another set of comments that were accompanied by a manuscript 
prepared for publication compared the occurrence and distribution of 
known vessel-strike deaths of all large whale species in U.S. coastal 
waters in periods before and after the rule went into effect. The 
authors concluded that fatal vessel collisions of large whales were 5.4 
times greater outside areas that include NMFS's vessel speed 
restriction zones than they were within those areas (http://www.regulations.gov/#!documentDetail;D=NOAA-NMFS-2012-0058-0537).
    The results of a risk reduction modeling study of right whale 
distribution and vessel speeds recorded in waters in and near the 
Norfolk, VA, SMA were provided with one set of comments (http://www.regulations.gov/#!documentDetail;D=NOAA-NMFS-2012-0058-0536). These 
commenters observed a significant decrease in vessel speeds but no 
correlating decrease in risk to right whales within this SMA. The 
authors estimated a significant decrease in risk of fatal right whales 
vessel strikes if the SMA was (hypothetically) expanded from 20 nm to 
30 nm. They indicated that the

[[Page 73731]]

expanded area would include habitat more often used by right whales.
    A fourth set of comments included results of a study that examined 
the rates of severe and moderate injuries inflicted by strikes from 
vessel propellers, of all vessel sizes, both before and after NMFS's 
2008 final rule went into effect. The authors concluded that in a 29-
year period prior to December 2008, 69% of right whales struck by 
vessels 65 feet or greater in length resulted in the death of the 
whale, whereas 25% of struck whales died in the period after the rule 
was established. The study's authors indicate that these results 
suggest that vessel speed limits have increased the rate of 
survivability from a propeller strike (http://www.regulations.gov/#!documentDetail;D=NOAA-NMFS-2012-0058-0516). These authors also 
observed that instances existed in which right whales died when struck 
by vessels in the 40-65 foot class; but death occurred in just two of 
the eight cases studied.

Vessel Speed and Vessel Operations: Loss of Vessel Maneuverability at 
10 Knots

    Comment 4: Nine commenters indicated that large vessels lose 
steerage at low speeds, and that navigational safety was at risk at 
speeds of 10 knots or less, particularly in adverse wind or sea 
conditions. Comments from some, including vessel pilots, indicated that 
adequate maneuverability was particularly important when negotiating a 
port entrance or channel. In particular, several commenters argued that 
navigation is compromised in certain areas and suggested that NMFS 
``exclude federally-maintained dredged channels and pilot boarding 
areas (and the immediately adjacent waters) for ports from New York to 
Jacksonville'' from the vessel speed restrictions--an approximate 
aggregate total area of 15 square miles.
    Response: As noted above, NMFS regards navigational safety as a 
matter of utmost importance and believes that under no circumstances 
should human safety or the safety of a vessel or its cargo be 
jeopardized. NMFS acknowledges that under certain sea and weather 
conditions additional steerage might be acquired by added speeds. For 
this reason the 2008 rule provided for an exception whereby a captain 
at his/her discretion may exceed the 10-knot speed limit to ensure 
navigational safety when sea conditions warranted higher speeds. This 
final rule does not alter that exception.
    However, NMFS also notes that mandatory or advisory vessel speed 
restrictions now exist in a number of locations, worldwide, and have 
been established for a variety of reasons and under various 
environmental circumstances. While most of these restrictions or 
advisories have been in effect for a number of years, involving 
thousands of voyages, NMFS is not aware of any reported incidents of 
loss of steerage or diminished navigational safety resulting from 
limited vessel speeds.
    Among the vessel speed restriction measures already in effect are 
recommended speed limits of 12 knots or less within 40 nm of the 
entrances to the ports of Los Angeles/Long Beach and San Diego to 
reduce particulate matter emissions. In 2012 alone, vessels entering 
Los Angeles/Long Beach made over 3,400 trips (made by 234 different 
shipping companies) involving speeds of 12 knots or less at distances 
of 40 nm (and over 3,900 trips of at least 20 nm) (http://www.polb.com/civica/filebank/blobdload.asp?BlobID=9434). Recommended speeds of 13 
knots or less for nearly the entire length of the Mediterranean Sea, 
came before the International Maritime Organization, the recognized 
international authority on navigational safety, in 2007 (Silber et al., 
2012b), and these speed advisories now exist in some portions of the 
Mediterranean Sea to minimize vessel strikes of several large whale 
species. This area is one of the most heavily-used shipping areas in 
the world where well over 100,000 trips are made each year.
    Additional speed limits exist. Among these, the Maritime 
Administration requires that liquefied natural gas carriers travel at 
10 knots or less in their approaches to terminals near Boston when 
right whales are in the vicinity (NMFS, 2007a; NMFS, 2007b; vessels are 
asked to travel 5 to 10 knots in approaches to most U.S. ports to allow 
port pilots to safely embark and disembark; all commercial cruise ships 
entering Glacier Bay National Park, Alaska, are subject to 10-knot 
speed restrictions; the United States Coast Guard (USCG) has 
established speed limits ranging from 5-10 knots in some river and port 
entrances, including near the Norfolk Naval Station to enhance national 
security (e.g., 66 FR 53712; 67 FR 41337; 68 FR 2201), and has issued 
speed advisories of 10 knots or less for two National Marine 
Sanctuaries and surrounding waters off the coast of California; and 
five-knot speed restrictions applying to all vessels were imposed in 
2007 in numerous ports and port entrances throughout most of Hong Kong 
harbor and neighboring waters to enhance navigational and human safety 
(Hong Kong Special Administrative Region, 2007).
    In response to the requirements of the 2008 vessel speed 
restriction rule alone, tens of thousands of trips have been made in 
U.S. waters at or under speeds of 10 knots (Nathan Associates Inc., 
2012; Conn and Silber, 2013). To our knowledge, there have been no 
reports of loss of maneuverability resulting from speed restrictions at 
any of the locations or circumstances described above; and these are 
situations that likely involve a wide array of sea, weather, and port 
configuration conditions.
    NMFS notes the importance of coastal areas as right whale habitat 
and the increased risk posed by vessel traffic in the same areas. Over 
the last few decades, most right whale sightings in waters off the 
southeast and mid-Atlantic states have occurred within 30 nm of the 
shore. These are areas where most vessel traffic also occurs. In a 
comparison of the locations of fatally-struck right whales to vessel 
traffic density along the U.S. east coast and port entrances, Kraus and 
Rolland (2007) concluded that the ``results indicate that ship-struck 
carcasses are found close to shipping lanes and in dense traffic areas, 
both in high-use right whale areas along migratory corridors (Knowlton, 
1997; Knowlton and Kraus, 2001)'' suggesting that relaxing speed 
restrictions in dredged shipping channels may increase the probability 
of a vessel strike in these areas.
    NMFS will treat the request to exclude vessels using federally-
maintained dredged port entrance channels from the speed restrictions 
as a petition for rulemaking under the Administrative Procedure Act, 
though this is not required nor is it NMFS' normal practice. We plan to 
issue a Notice in the Federal Register announcing receipt of the 
petition, along with a concise statement of the request and seek 
comment on the request. If NMFS decides to proceed with the suggested 
rulemaking, we will notify the petitioner within 120 days, publish a 
notice in the Federal Register of our decision to engage in rulemaking 
in a prompt manner, and thereafter proceed in accordance with the 
requirements for rulemaking. If NMFS decides not to proceed with the 
petitioned rulemaking, we will notify the petitioner, provide a brief 
statement of the grounds for the decision, and publish in the Federal 
Register a notice of our decision not to proceed with the petitioned 
action.

[[Page 73732]]

Economic Impact Analysis

    Comment 5: Four commenters raised concerns regarding the economic 
impacts of the rule. One commenter indicated that the economic impact 
assessments that underlie this rulemaking were inadequate, particularly 
with regard to impacts to land-based intermodal transport and the 
diversion of goods to foreign ports. One commenter indicated that the 
underlying economic analysis should further quantify the societal 
benefit of each right whale death prevented by the rule, and that it 
did not completely consider costs to the government incurred by, for 
example, the commitment of personnel time to the analysis, creation, 
and enforcement of seasonal and dynamic management areas. One set of 
comments indicated that the analysis failed to indicate that a New 
England high speed ferry business would be put out of business if the 
current voluntary measures in DMAs were to be made mandatory.
    Response: The comment regarding impact to intermodal transport of 
goods or from port diversions did not include any information or data 
to support the view that the estimates were low, that would refute the 
findings of the economic impact study, or that might prompt a re-
consideration of this study. Questions with regard to impacts to 
intermodal transport and possible port diversions are addressed by 
Nathan Associates Inc. (2012; pages 18-19), which included the use of a 
widely established tool developed by the U.S. Maritime Administration 
that includes such parameters as costs/benefits to firms that provision 
deep-draft port industries, expenditures by firms stocking the 
supplying firms, effects on consumer spending that is generated by 
changes in labor income accruing to the workers in deep-draft port 
industries, and employment in impacted supplying businesses.
    Regarding the comment about the cost of preserving living whales 
(or the societal cost of a dead whale), no specific information was 
provided in the comment to indicate how to best go about doing this. As 
to the economic impacts of a mandatory DMA program, NMFS is not 
considering such action at this time. NMFS will consider these comments 
when it re-assesses the rule and possible modifications to the rule.

Mariner Outreach and Education

    Comment 6: Several commenters noted the importance of mariner 
outreach and awareness programs operated by NMFS and its partners and 
commended NMFS on these efforts. Two commenters who were not in favor 
of removing the sunset clause recognized the importance and success of 
outreach efforts to the maritime community. One commenter recommended 
developing outreach programs for owners of vessels less than 65 feet in 
length.
    Response: NMFS shares the view that such efforts are important and 
expects to continue the programs as resources allow.

Removing or Reinstating the Sunset Provision

    Comment 7: A majority of the comments submitted by the public 
offered guidance regarding the expiration provision of the existing 
rule. The comments represented a range of views.
    Most commenters advocated removing the sunset provision completely 
and a number indicated that a new expiration date should be 
established. Only two commenters indicated the rule should expire in 
December 2013 as currently required by the existing rule. Specifically, 
comments on this topic were as follows (numbers in brackets indicate 
the number of comments received):
     Allow the current rule to lapse in December 2013 (2);
     Remove the sunset provision, without re-instituting a new 
expiration date (145,840 commenters; this number includes petition and 
form letter co-signers, organization and organization members' 
comments, and all individual comments);
     Reestablish a new sunset date at
    [cir] no time specified (16);
    [cir] five years, or not to exceed 5 years (14); and
    [cir] more than five years (1).
    Most commenters who indicated that the sunset clause should be 
removed also discussed the importance of the rule in protecting right 
whales and some noted the importance of conserving marine ecosystems as 
a whole. Four commenters argued that NMFS's use of the sunset provision 
was unprecedented in rulemaking, that including this provision was 
arbitrary and capricious, or that the timeframe selected was arbitrary. 
Conversely, one commenter indicated that any action to remove the 
sunset provision would be arbitrary, capricious, and unlawful. Another 
indicated that establishing the sunset date in the 2008 rule was done 
with a lack of transparency. Two commenters indicated that establishing 
a new sunset provision would require time-consuming and costly future 
rulemaking to again propose to remove the provision. Regardless of 
whether they favored eliminating or establishing a new sunset 
provision, a number of commenters requested that NMFS conduct periodic 
reviews of the rule to retain or increase biological protection of 
right whales.
    Response: Of those commenters who advocated establishing a new 
sunset date, none provided information about, or rationale for, how 
their new dates were selected. None offered suggestions on the data 
needed to make the determination about a particular expiration date. 
Instead, those commenters tended to describe the need for additional 
time in general or qualitative terms without specific recommendations 
or rationale for an alternative sunset date.
    Based on the existing evidence in support of retaining vessel speed 
restrictions as a means to reduce the threat of fatal vessel collisions 
with right whales, new analysis provided during the public comment 
period in support of the vessel speed restrictions, and an absence of a 
basis for eliminating the speed rule or implementing a new sunset 
provision, NMFS has decided to remove the sunset provision with this 
final rule.

Periodic Review of the Rule

    Comment 8: A number of commenters stressed the importance of 
ongoing review of the rule. Indeed, the need for periodic review was 
the primary justification for many of those recommending that the rule 
should have a new expiration date. Some expressed concern that 
assessments of the rule's efficacy likely would not occur without a 
renewed expiration date.
    Response: As noted above, NMFS intends to review the costs and 
benefits of this rule on a periodic basis, as required by Executive 
Order (EO) 13563. While doing so is not predicated on the rule expiring 
at a particular time, NMFS intends to conduct periodic reviews of this 
rule and to modify, or repeal, aspects of this rule, as appropriate, 
and after public notice and comment, and expects to conduct a review no 
later than five years from the publication of this final rule. With 
regard to a number of aspects of this rule, assessments and refinements 
will be made on an ongoing basis. This is particularly the case with 
regard to possible modifications that will be considered based on 
public comments described here and in related internal and peer-
reviewed studies.

Measures of Effectiveness

    Comment 9: Among other things, the proposed rule requested ``. . . 
input on the data, metrics, and time needed to . . .'' assess the 
rule's effectiveness.

[[Page 73733]]

Commenters responding to this request tended to favor a new sunset date 
and stated that this was needed to, for example, ``. . . allow time to 
assess effectiveness . . .'' or to provide time for ``. . . additional 
analysis and data collection'' to determine that the rule was reducing 
vessel collisions.
    Response: With one exception, no commenter proposed metrics, data, 
or analysis that might be used to make such an evaluation of 
effectiveness. Therefore, whereas a number of commenters indicated that 
additional time was needed to gather information to establish the 
effectiveness of the rule, no specific information was provided to 
indicate how this might be accomplished. The one exception was a 
commenter who suggested that the ``average annual death rate of right 
whales in or near management areas'' would provide ``a valuable 
measure.'' Some commenters offered suggestions about additional or 
ongoing monitoring studies that might be conducted (as identified 
below), but none indicated how these studies might contribute to 
evaluating the rule's effectiveness. Nonetheless, NMFS plans to 
continue its own periodic assessments of the rule.
    As noted in the June 6, 2013, proposed rule, NMFS expects to 
continue monitoring right and other large whale death rates; determine 
causes of whale deaths when possible; monitor right whale population 
size, demographics, and such things as calving and recruitment 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. As indicated elsewhere in this final rule and 
in the June 2013 proposed rule, 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).

Monitoring the Rule and Right Whales

    Comment 10: NMFS's proposed rule also requested public comment on 
its ongoing monitoring activities. Those responding to this portion of 
NMFS's request, a total of 12 commenters, suggested primarily a range 
of monitoring studies that would facilitate an increased understanding 
of right whale occurrence, distribution and movement patterns. The 
studies suggested by the public were (each of these suggested studies 
was made by three or fewer commenters; the majority was suggested by 
one commenter):
     Monitor vessel activities and continue to fine those 
vessels that do not comply;
     Compare the number of whale deaths in entangling fishing 
gear to those killed by collisions with ships;
     Retrospectively analyze oceanographic features to identify 
determinants of right whale occurrence and shift in occurrence and 
habitat use;
     Survey right whale habitats and conduct photo-
identification studies;
     Conduct satellite-linked tagging studies to determine 
migration routes;
     Study the use of active acoustics (e.g., SONAR) to detect 
whale locations;
     Improve and implement right whale monitoring technologies;
     Continue ongoing right whale population and mortality 
monitoring and necropsy response efforts; and
     Analyze data related to the carcasses of all whales 
determined to have been struck by ships to evaluate the probability 
that they were struck in or near established management zones and by 
vessels subject to the rule (i.e., those >65 feet in length) and ensure 
necropsy protocols and related analyses are as complete as logistical 
constraints allow to:
    [cir] determine whether the injuries were consistent with being 
struck by a vessel 65 feet or longer,
    [cir] evaluate the extent to which sustained ship strike injuries 
could have limited the whale's mobility before death,
    [cir] estimate the date of the whale's death based on carcass 
decomposition and other relevant factors, and
    [cir] estimate carcass drift for the period between time of death 
and time of carcass discovery to determine the approximate location of 
the whale when it died.
    Response: NMFS notes that while these various studies may increase 
understanding of right whale biology and may ultimately lead to an 
improved level of protection for right whales, in and of themselves, 
these recommended studies would not necessarily lead to an assessment 
of effectiveness of the existing rule. Commenters offering these 
suggestions did not, for example, indicate how data gathered in the 
course of conducting this research might be linked to making 
assessments of the rule's efficacy. Nonetheless, NMFS intends to 
evaluate the feasibility (given limited resources) and utility of these 
studies as part of a suite of other ongoing studies, to the extent 
possible, use their results in assessing the efficacy of the rule.

Suggested Modifications to the Rule

    Comment 11: In its June 2013 proposed rule, NMFS also requested 
public comment on possible future ``. . . modifications that would 
improve the effectiveness of the rule''. A total of 47 commenters 
provided suggestions about ways to modify the provisions of the 
existing rule. Among the comments received, support was indicated, for 
example, for eliminating some SMAs, creating new SMAs, changing the 
size or timing of SMAs, lessening the requirements within some SMAs, 
applying the restrictions to additional vessel types, and with regard 
to various aspects of the DMA program.
    Suggested general modifications were to (each of the following was 
suggested by fewer than 10 commenters; most were made by one 
commenter):
     Expand right whale critical habitat;
     Take urgent steps to reduce right whale entanglement in 
commercial fishing gear;
     Update, adaptively manage, and expand if necessary, the 
temporal and spatial restrictions of SMAs (and DMAs) to minimize whale/
vessel collisions;
     Repeal the rule if it is determined to be ineffective;
     Make use of routing measures in lieu of speed 
restrictions; and
     Make changes to aspects of the rule as new data on right 
whale occurrence is acquired.
    Some commenters suggested modifying the size, shape, dimensions, 
locations, conditions, or timing of SMAs such that
     The timing is changed:
    [cir] in all SMAs from seasonal to year-round;
    [cir] in all SMAs between the Chesapeake Bay and New Jersey from 
seasonal to year round;
    [cir] taking into account shifts in right whale occurrence;
    [cir] by making the ``southeast U.S.'' SMA effective from 1 
December to 30 March rather than the current 1 November through 30 
April period; and
    [cir] by tailoring them to each port to account for the relative 
risk to right whales at each location.
     The boundaries or locations of SMAs are changed such that 
they are:
    [cir] eliminated from port approaches;
    [cir] geographically extended in waters off the mid-Atlantic states 
from 20nm to 30nm from shore;
    [cir] geographically extended in waters off the Chesapeake Bay from 
20nm to 30nm from shore;
    [cir] removed from the South Carolina coast; and
    [cir] implemented in Sanctuaries and other locations to protect 
other marine mammal species and sea turtles.

[[Page 73734]]

     New or expanded SMAs are established:
    [cir] off the coast of North Carolina;
    [cir] off Race Point, Massachusetts;
    [cir] in areas where DMAs have been occurred repeatedly in
    [ssquf] the Gulf of Maine; and
    [ssquf] Jeffreys Ledge, Jordan Basin, and Cashes Ledge [off New 
England].
     Conditions within SMAs are modified such that:
    [cir] vessels operating with a pilot on board are exempted from 
speed restrictions;
    [cir] NMFS is able to temporarily lift speed restrictions if right 
whales are known to be absent in an SMA;
    [cir] all federally-mandated dredged channels and pilot boarding 
area (and the immediately adjacent waters) for port from New York to 
Jacksonville are excluded; and
    [cir] restrictions off South Carolina are lessened.
    Some commenters suggested changing the vessel size threshold to 
which speed restrictions currently apply such that restrictions would 
apply to:
     vessels smaller than 65 feet (no specified length);
     vessels 40 feet and greater;
     vessels 40-65 foot range (as well as 65 feet and greater);
     vessels 300 gross tons and greater; and
     all vessels.
    With regard to the dynamic management area program, commenters 
suggested that DMAs should:
     not be used;
     be used and changed from voluntary to mandatory;
     be used but remain voluntary;
     be used in the Chesapeake Bay region in lieu of SMAs; and
     not be used in lieu of SMAs in migratory corridors along 
the coastal mid-Atlantic.
    Some commenters indicated that sovereign vessels should:
     voluntarily reduce speeds and Federal activities should 
continue to be subject to ESA Section 7 consultations;
     adhere to the restrictions contained in the speed rule 
when not engaged in non-combat/non-emergency missions; and
     be subject to the same restrictions as other vessels.
    Alerting systems for mariners should be developed and implemented 
using:
     mariner-reported whale sighting locations and applications 
for smart phones;
     sighting networks that involve marine mammal observers 
associated with offshore wind-industry development; and
     various technologies.
    Response: NMFS appreciates having this information. It is not 
possible for NMFS to make changes such as these at this time (i.e., 
with this final rule) because they were not the subject of our proposed 
rule to eliminate the sunset provision. As such they were not subject 
to legally required public review and comment. NMFS will need to 
analyze these suggestions more thoroughly to comply with the National 
Environmental Policy Act and other applicable laws. In its October 2008 
final rule (73 FR 60173, 60182), however, NMFS indicated that it would

    . . . consider adjusting the regulations. Such actions would be 
taken through additional rulemaking. Measures that NMFS could 
consider may involve vessel size, vessel routing (e.g., making 
recommended routes mandatory), vessel speed, making dynamically 
managed areas mandatory, and the size and duration of the areas 
where the restrictions apply.

    Therefore, as previously stated and as required by Executive Order 
(EO) 13563, NMFS intends to periodically evaluate the efficacy of 
vessel speed restrictions to ensure they are attaining their intended 
objectives. This will also include evaluations of the existing 
provisions and, as necessary and if warranted, making amendments to 
those provisions through additional rulemaking.
    Thus, NMFS intends to synthesize and review available data on such 
things including new and historical information on right whale 
occurrence and distribution, locations of known vessel collision-
related deaths of right whales and other large whale species, vessel 
traffic patterns and speeds, and compliance with the existing 
regulation. Following this, NMFS may propose modifications to the 
current provisions of the existing rule. Recommended changes to the 
rule that were described here provide a number of options that are 
worthy of consideration. Any modifications, including those based on 
the results of studies currently ongoing and underway, would be subject 
to further analysis, NEPA requirements, public comment, and proposed 
and final rulemaking.

Conclusions and Next Steps

    NMFS believes that the evidence and justification as indicated in 
its October 2008 final rule for establishing the vessel speed 
restrictions to minimize fatal vessel collisions of right whales remain 
valid and have not been refuted, and that data analysis and the growing 
body of literature since the rule was established support those 
conclusions. New data, including new analysis of existing data and new 
information provided during the public comment period, further support 
the validity of vessel speed restrictions to protect right whales, and 
no new information was provided that would contradict these findings. 
No known right whale deaths have occurred in speed restriction SMAs in 
the time since the restrictions were implemented. Therefore, NMFS 
believes that there is ample justification for a continuation of the 
speed restriction rule to contribute to the conservation and recovery 
of this endangered species.
    In reviewing public comments received, NMFS notes that a large 
majority of the commenters indicated their support for eliminating the 
rule's sunset provision. NMFS also notes that comments in favor of a 
renewed expiration date did not provide bases or rational for selecting 
a particular date for re-establishing a sunset. There were also few, if 
any, indications regarding specific standards by which the rule might 
be measured or how NMFS might be reasonably expected to assess the 
rule's effectiveness within a specific time frame.
    Most commenters opined, and NMFS agrees, that the rule should 
periodically be reviewed to assess its value in reducing the threat of 
vessel collisions with right whales, that the specific elements (e.g., 
size, duration, and location of SMAs) be reviewed to ensure they are 
appropriate to meet that objective and to ensure that the rule is cost-
effective and not unduly burdensome to the regulated community. NOAA is 
required under Executive Order (EO) 13563 to conduct periodic reviews 
of the rule's costs and benefits. Data are routinely collected and new 
information and results from recent studies are emerging on an ongoing 
basis--this includes, for example, new information provided during the 
public comment period on NMFS's proposed rule. These results and data 
have been, and will continue to form, the basis for ongoing reviews of 
the rule and assessments of various aspects of the rule. As part of its 
plan for retrospective analysis under EO 13563, NMFS will synthesize, 
review, and report within the next five years on studies and 
information that might provide a characterization of a possible 
reduction in ship strike deaths, as well as mariner response to, and 
economic impacts of, the vessel speed restrictions. The report will 
include any recommendations to ensure the conservation value of the 
rule and that its requirements do not unduly burden affected entities. 
NMFS will seek public comment on the report and any

[[Page 73735]]

recommendations regarding the costs and benefits of the rule.
    In sum, NMFS expects to continue its ongoing right whale population 
and vessel monitoring studies--while incorporating the types of studies 
suggested via public comment as appropriate and feasible--and make 
modifications to, or phase out if appropriate, the vessel speed 
restrictions.
    Therefore, with this final rule NMFS is removing the sunset 
provision of the vessel speed restriction rule.

Classification

    The Office of Management and Budget has determined that this final 
rule is significant for purposes of Executive Order 12866, but it does 
not qualify as economically significant.
    This final rule does not have Federalism implications as that term 
is defined in Executive Order 13132.
    This final rule contains a collection of information subject to the 
Paperwork Reduction Act (PRA). This obligation appears in section 
224.105(c) and requires vessel captains to log deviations from the 10-
knot speed limit when necessary for safe operations. Public reporting 
burden for logbook entries in the event of deviation from speed 
restrictions is 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 is no additional cost to 
the affected public.
    Notwithstanding any other provisions of the law, no person is 
required to, and no person shall be subject to penalty for failure to 
comply with, a collection of information subject to the requirements of 
the PRA, unless the collection of information displays a currently 
valid Office of Management and Budget (OMB) control number.

Final Regulatory Flexibility Analysis

    Pursuant to section 604 of the Regulatory Flexibility Act (RFA), 
NMFS prepared the following Final Regulatory Flexibility Analysis 
(FRFA) in support of this final rule to remove an expiration date from 
the October 2008 final rule implementing vessel speed restrictions to 
reduce the threat of ship collisions with North Atlantic right whales. 
The FRFA describes the economic impact that this final rule will have 
on small entities.
    This FRFA incorporates (a) the economic analysis prepared for the 
October 2008 final rule, which includes the information and analysis 
contained in the Final Environmental Impact Statement (FEIS), the 
Nathan Associates Inc. (2008) economic impact report, and the 
accompanying Regulatory Impact Review (RIR) for that final rule; (b) 
the updated and revised economic impact analysis contained in a Nathan 
Associates Inc. (2012) report being used for this final rule; and (c) 
the economic impacts summarized in the initial RFA (IRFA) for the June 
2013 proposed rule to remove the sunset provision of the October 2008 
final rule that implemented vessel speed restrictions (78 FR 34024). 
Copies of the IRFA and the RIR are available from NMFS, Office of 
Protected Resources (see ADDRESSES); the FEIS, the Economic Analysis 
for the FEIS, and the Nathan Associates Inc. reports (2008; 2012) are 
available at: http://www.nmfs.noaa.gov/pr/shipstrike/.
    A description of the action, why it is being considered, the 
objectives of, and legal basis for this action are contained in the 
preamble to this final rule. This final rule does not duplicate, 
overlap, or conflict with other Federal rules.

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

    The final rule affects operations of vessels that are 65 feet (19.8 
m) or greater in overall length. Seven industries are directly affected 
by this rulemaking: commercial shipping, high-speed passenger ferries, 
regular-speed passenger ferries, high-speed whale watching vessels, 
regular-speed whale watching vessels, commercial fishing vessels, and 
charter fishing vessels. The number of small entities expected to be 
affected by this rule by industry are: 362 commercial shipping (with 
various vessel classifications), 297 commercial fishing, 40 charter 
fishing, 14 passenger ferry, and 22 whale-watching. Economic impacts 
are expected to be 0.04% of the annual revenue of small entities 
operating in the commercial shipping industry, 0.04% in commercial 
fishing operations, and 4.30% in charter fishing operations. No or 
minimal impacts are expected to ferry and whale-watching businesses. 
Additional information on small entities affected by this rule can be 
found on pages 29 through 36 and in Tables 5-1 through 5-7 of the 
Nathan Associates Inc. (2012) report.

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

    There are no compliance requirements other than the management 
actions contained in the final rule. Recordkeeping requirements 
associated with this final rule include logbook entries in the event of 
deviation from speed restrictions under the specified exception. 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.

Issues Raised by the Public Comments Regarding Economic Impacts

    Only one public comment addressed economic impacts specific to 
small entities (additional comments and responses with regard to 
economic impacts are provided in the response to comments section of 
this rule) resulting from the proposed action to continue the 
provisions of the 2008 speed regulation final rule by removing the 
sunset provision. The commenter indicated that the economic analysis 
failed to indicate that a specific New England high speed ferry 
business would be put out of business if the current voluntary measures 
in DMAs were to be made mandatory.
    Response: As indicated in the 2008 final rule implementing speed 
restrictions, compliance within DMAs is voluntary, i.e., vessel 
operators are requested, but not required, to travel at 10 knots or 
less or route around designated DMAs. In this final rule to remove the 
sunset provision of the existing rule, NMFS is making no changes with 
regard to the DMA program. Thus, this economic concern would not apply 
to this final rule.

Description of the Steps the Agency Has Taken To Minimize the 
Significant Economic Impact on Small Entities Consistent With the 
Stated Objectives of Applicable Statutes

    In its 2008 final rule that implemented the speed regulation, NMFS 
carefully weighed the speed restriction provisions in light of right 
whale protection as well as the likely economic impact. As a result, 
NMFS tightly constrained in time and place seasonal management areas to 
correspond only to known right whale occurrence. The SMAs were made as 
small as practicable while still providing conservation value. In 
addition, the creation of a DMA program enabled NMFS to maintain 
minimally-sized SMAs, further reducing economic impact.
    This final rule to remove the sunset provision does not alter any 
other aspect of the 2008 speed regulation. NMFS considered the no-
action alternative and also solicited public comment on extending the 
sunset provision. The no-action alternative, while economically

[[Page 73736]]

preferable for some small entities, would lead to a lapse in the speed 
regulation and was rejected because NMFS determined the speed 
regulation is needed to reduce the threat of ship collisions with right 
whales. Public comments on establishing a new sunset date provided 
little or no justification for selecting the new date(s) being 
recommended or information on the means by which the regulation's 
effectiveness would be measured.
    For more information, including other alternatives considered 
during the rulemaking for the 2008 speed regulation, see the Final RFA 
for the 2008 final rule (73 FR 60173, 60185; October 10, 2008).
    In conjunction with a number of partners, NMFS has developed and 
implemented an extensive outreach program. Several commenters noted the 
success of this program. With enhanced knowledge of the provisions of 
this rule, mariners are armed with advanced knowledge of the times 
(that are consistent each year) and locations of SMAs. Therefore, 
adherence to the requirements within these zones can be successfully 
incorporated into advanced voyage planning. This eliminates any 
surprises or disruption of schedules and allows the scheduling of port 
arrivals and the scheduling of port-side services, thereby reducing or 
eliminating any costs associated with missed schedules or the 
scheduling of personnel, equipment or services.
    As NMFS's proposed rule to remove the sunset provision indicated, 
the agency is conducting an analysis of the speed regulation to 
determine if modifications would be appropriate, but that those efforts 
are ongoing and have not been completed. However, NMFS solicited public 
comment on modifications that would improve the effectiveness of the 
current speed regulation, to be considered in the future. Some comments 
indicated that certain SMAs should be larger, others indicated that 
SMAs should be smaller, and still others suggested establishing new 
SMAs. NMFS will consider all public comments on modification in 
conjunction with the results of its own analysis, and may modify 
aspects of the regulation (e.g., size or timing of the SMAs) in future 
rulemaking. Any such changes would be subject to legally required 
notice and public comment and other applicable laws.
    Section 212 of the Small Business Regulatory Enforcement Fairness 
Act of 1996 states that for each rule or group of related rules for 
which an agency is required to prepare a FRFA, the agency shall publish 
one or more guides to assist small entities in complying with the rule, 
and shall designate such publications as ``small entity compliance 
guides.'' A compliance guide was prepared for the existing 2008 final 
rule. Because no aspect of the 2008 rule is being changed, this guide 
still has application and will be sent to all holders of permits issued 
for U.S. northeast and southeast fisheries, ferry operators, whale 
watching vessel operators, and shipping companies. Guides will also be 
provided to port authorities, port pilots, and the USCG, and others as 
appropriate, for distribution to the maritime industry. In addition, 
copies of this final rule and guide are available from NMFS, Office of 
Protected Resources and on the Office of Protected Resources Web site 
(see ADDRESSES).
    The NOAA Assistant Administrator for Fisheries finds good cause 
under 5 U.S.C. 553(d)(3) to waive the 30-day delay in effectiveness for 
this final rule. In the preamble for the 2008 final speed rule, NMFS 
committed to conduct additional evaluation of various aspects of the 
rule, including effectiveness and economic impacts. During the period 
since, NMFS followed through on those commitments. Taking into 
consideration the new information, NMFS published its proposed rule to 
remove the sunset provision on June 6, 2013, and invited public comment 
for 60 days. In order to give full and fair consideration to the 
significant number of public comments on the proposed rule (NMFS 
received approximately 145,000 comments during the public comment 
period, which ended on August 5, 2013), and in light of the recent two 
and a half-week government shutdown, NOAA could not issue a final rule 
before now. NOAA finds that the public interest requires that the 
sunset provision be removed effective December 8, 2013, to keep in 
place this important conservation measure to protect the endangered 
North Atlantic right whale. Any lapse in the speed regulation will 
increase the risk of a lethal collision of this highly endangered 
species in areas and times when right whale and vessel occurrences 
overlap. Moreover, because these speed restrictions have been in place 
for five years, and remain unchanged in this final rule, operators have 
already been operating in accordance with this final rule and will not 
need to change anything to come into full compliance with the speed 
restrictions. Waiving the delay in effectiveness ensures the status quo 
continues without any lapse.

List of Subjects in 50 CFR Part 224

    Administrative practice and procedure, Endangered and threatened 
species, Exports, Imports, Reporting and recordkeeping requirements, 
Transportation.

    Dated: December 4, 2013.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries, performing the functions and 
duties of the Deputy Assistant Administrator for Regulatory Programs, 
National Marine Fisheries Service.
    For the reasons set out in the preamble, 50 CFR part 224 is 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 revised to read as follows:


Sec.  224.105  Speed restrictions to protect North Atlantic Right 
Whales.

* * * * *
    (d) No later than January 1, 2019, the National Marine Fisheries 
Service will publish and seek comment on a report evaluating the 
conservation value and economic and navigational safety impacts of this 
section, including any recommendations to minimize burden of such 
impacts.
* * * * *
[FR Doc. 2013-29355 Filed 12-6-13; 8:45 am]
BILLING CODE 3510-22-P