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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
CFR Citation: 50 CFR Part 229
Docket ID: [Docket No. 060928250-6250-01; I.D. 092506A]
RIN ID: RIN 0648-AU90
NOTICE: PROPOSED RULES
ACTION: Marine mammals:
DOCUMENT ACTION: Proposed rule; request for comments.
SUBJECT CATEGORY: Taking of Marine Mammals Incidental to Commercial Fishing Operations; Atlantic Large Whale Take Reduction Plan
DATES: Comments on this proposed rule must be received by 5 p.m. EST on December 15, 2006.
DOCUMENT SUMMARY: NMFS proposes to revise the regulations implementing the Atlantic Large Whale Take Reduction Plan (ALWTRP) by expanding the southeast U.S. restricted area and modifying regulations pertaining to gillnetting within the southeast U.S. restricted area. NMFS proposes to prohibit gillnet fishing or gillnet possession during annual restricted periods associated with the right whale calving season. Exemptions to the fishing prohibitions are proposed for strikenet fishing for sharks and gillnet fishing for Spanish mackerel south of 29[deg]00' N. lat. An exemption to the possession prohibition is proposed for transiting through the area if gear is stowed in accordance with this rule. This action is required to meet the goals of the Marine Mammal Protection Act (MMPA) and the Endangered Species Act (ESA). This action is necessary to protect northern right whales from serious injury or mortality from entanglement in gillnet gear in their calving area in Atlantic ocean waters off the Southeast U.S.
SUMMARY: Commercial fishing authorizations—; Atlantic Large Whale Take Reduction Plan; comment request,
SUPPLEMENTAL INFORMATION
BackgroundThe northern right whale (Eubalaena glacialis) was severely depleted by commercial whaling, and despite protection from commercial harvest since 1935, has not recovered. The North Atlantic population is believed to be at or less than 300 individuals, making it one of the most critically endangered large whale populations in the world (NMFS 2005).
The northern right whale has been listed as endangered under the ESA since the Act's passage in 1973 (35 FR 8495, June 2, 1970). In June 1994, NMFS designated three areas of the right whale's Atlantic range in the United States as critical habitat: (1) Great South Channel, (2) Cape Cod Bay, and (3) the southeastern U.S. (59 FR 28793, June 3, 1994). The southeastern U.S. critical habitat includes coastal waters between 31[deg]15' N. lat. and 30[deg]15' N. lat. from the coast out 15 nautical miles (27.8 km), and the coastal waters between 30[deg]15' N. lat. and 28[deg]00' N. lat. from the coast out 5 nautical miles (9.3 km) (Sec. 226.203 of this chapter).
As required by the ESA, NMFS developed a recovery plan for the
northern right whale in 1991, which was revised and updated in 2001 and 2005. The current recovery plan states,
[[Page 66483]]
``the most immediate need for the North Atlantic right whale is to
reduce or eliminate humanrelated deaths and injuries'' (NMFS 2005).
Furthermore, the development and implementation of strategies to modify
fishing operations and gear to reduce the likelihood of entanglement,
mitigate the effect of entanglements, enhance the possibility of
disentanglement, and assess the effectiveness of such strategies is a
priority one recovery task, i.e., ``an action that must be taken to
prevent extinction or to prevent the species from declining irreversibly'' (NMFS 2005, p. V1).
Northern right whales in the North Atlantic occur in coastal and nearshore waters off the eastern United States and Canada, areas also used by fishing and other maritime activities that can adversely affect the species. Deaths from collisions with ships and entanglement in fishing gear are significant impediments to the recovery of the species. From 1999 to 2003, humancaused mortality and serious injury to northern right whales in the North Atlantic from fishery entanglements and ship strikes were estimated as an average of 2.6 whales per year (U.S. waters, 1.6; Canadian waters, 1.0) (Waring et al., 2006). A serious injury has been defined as ``any injury that will likely result in mortality'' (Sec. 216.3 of this chapter). Kraus et al. (2005) indicated that the overall mortality rate for North Atlantic right whales increased between 1980 and 1998 to a level of at least four percent per year, a rate that is not sustainable. The 1994 amendments to the MMPA mandate that, as part of the Stock Assessment Reports, Potential Biological Removal (PBR) estimates must be determined for each marine mammal stock in U.S. waters. PBR is defined as ``the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population.'' The PBR level for right whales is zero; thus, any mortality or serious injury to the species is considered significant.
Serious injury and mortality of right whales as a result of commercial fishing activities continues to occur at a rate above PBR. From 19992003, Waring et al. (2006) documented 31 reports of entanglements that resulted in 5 serious injuries and 3 mortalities, for an average of 1.6 mortalities and serious injuries per year over that time period.
To reduce serious injury and mortality of marine mammal stocks incidental to commercial fishing operations, MMPA section 118(f) directs NMFS to develop and implement take reduction plans (TRPs) to assist in the recovery, or prevent the depletion, of each strategic stock that interacts with a Category I or II fishery, as defined and classified in the annual List of Fisheries. Marine mammals listed under the ESA, such as right whales, are automatically considered strategic stocks under the MMPA.
On August 6, 1996 (61 FR 40819), NMFS established the Atlantic Large Whale Take Reduction Team (ALWTRT) to prepare a draft TRP to reduce serious injury and mortality of right, humpback, and fin whales incidental to commercial fishing operations, as well as to provide conservation benefits to a fourth, nonendangered species, the minke whale. The ALWTRT submitted a report to NMFS on February 1, 1997, with recommendations to reduce the serious injury and mortality of Atlantic large whales; however, the ALWTRT did not reach consensus on some recommendations. Pursuant to the MMPA, NMFS then developed a final ALWTRP and implementing regulations based, in part, on the deliberations of the ALWTRT and considerable public input. An interim final rule was published on July 22, 1997 (62 FR 39157), and a final rule was published February 16, 1999 (64 FR 7529), with an April 1, 1999, effective date. Since that time, the ALWTRP has been modified several times to include additional measures designed to reduce the serious injury and mortality of large whales in commercial fisheries.
The ALWTRP, codified at 50 CFR 229.32 of this chapter, relies on a combination of fishing gear modifications, gear handling and deployment requirements, and time/area closures to reduce the risk of large whales becoming entangled in commercial fishing gear. Among these measures are specific provisions relevant to the risks posed to right, humpback, and fin whales by commercial fishing operations.
Commercial fisheries operating in the Southeast U.S. that are regulated under the ALWTRP include the Southeastern U.S. Atlantic shark gillnet and the Southeast Atlantic gillnet fisheries (see List of Fisheries, 71 FR 48802, August 22, 2006, for current descriptions). Both fisheries are classified as Category II fisheries because they have occasional serious injuries and mortalities of marine mammals; Category II fisheries are those for which the annual mortality and serious injury of a marine mammal stock is greater than 1 percent and less than 50 percent of the stock's PBR (50 CFR 229.2).
The Southeastern U.S. Atlantic shark gillnet fishery uses large mesh (510 inches (0.1270.254 m)) nets, typically more than 1,500 ft (457 m) long, to target large and small coastal sharks. The fishery has traditionally employed drift nets that are set for more than 10 hours. The fishery also deploys strikenets in which schools of sharks are targeted and encircled, and recently has also started targeting sharks with bottom set sink or stab nets (see definitions of gear types at Sec. 229.2). The fishery has traditionally operated in coastal waters of Florida and Georgia. The shark gillnet fishery is managed by NMFS under the Fishery Management Plan (FMP) for Atlantic Tunas, Swordfish, and Sharks (implementing regulations at 50 CFR part 635). Fishermen possessing or landing sharks in excess of the recreational retention limit must have either a NMFSissued shark directed limited access permit or a shark incidental limited access permit (50 CFR 635.4(e)). The classification of this fishery as a Category II fishery is driven by observed incidental mortalities of the Western North Atlantic coastal stock of bottlenose dolphins. In addition, a right whale calf was observed in 1994 with wounds indicative of an interaction with gillnet gear in the area where this fishery operates. The calf was sighted only once and presumed dead (60 FR 67073, December 28, 1995).
The Southeast Atlantic gillnet fishery is a small mesh (< 5 inches
(12.7 cm)) fishery that may deploy either pelagic (midwater) or
demersal (bottom) gillnets. The fishery operates primarily in Federal
waters from South Carolina to Florida, due to prohibitions on gillnets
in each of these coastal states. The fishery is dynamic and fishermen
may alter the configuration or mesh size of their gear at different
times of the year in order to target different species. The broad
variety of fish species landed in this fishery was recently recognized
in the 2006 Final List of Fisheries (71 FR 48802, August 22, 2006) as
including king mackerel, Spanish mackerel, whiting, bluefish, pompano,
spot, croaker, little tunny, bonita, jack crevalle, and cobia. Spanish
mackerel is the primary species targeted by gillnets off the Florida
east coast (Gulf of Mexico Fishery Management Council et al., 2004).
Spanish mackerel gillnet fishing uses primarily sink nets, and the
fishery is active off the east coast of Florida between Ft. Pierce to
just north of Cape Canaveral during the months of October through
March. NMFSissued commercial vessel permits are required to fish for
Spanish mackerel (Sec. 622.4(a)(2)(iv) of this title), as part of [[Page 66484]]
the FMP for Coastal Migratory Pelagic Resources (implementing
regulations at 50 CFR 622). Regulations for Spanish mackerel gillnet
fishing at Sec. 622.41(c)(3)(ii) of this title include restricting the
soak period to no more than one hour, allowing only one gillnet to be
fished, set or placed in the water at any one time, and restricting the
float line to no longer than 800 yards (732 m). Gillnet gear is not an
authorized gear type for directed harvest of king mackerel, little
tunny, bluefish, cobia, or snappergrouper (including jack crevalle) in
waters off South Carolina, Georgia or Florida's Atlantic coast (Sec.
622.41(c)(1) and (d)(1) of this title); landings of these species
therefore represent incidental catches. Gillnet fishing for whiting
occurs primarily off Mayport, Florida, using multiple sections of net,
each approximately 300 yards (274 m) long, for a total of up to 2,800
yards (2,560 m) of gillnet per vessel. Nets are set on the bottom with
a height of up to 4 feet (1.13 m). Soak times are up to six hours and
net soaks may extend into or over night. Pursuant to 50 CFR 229.2, the
classification of the Southeast Atlantic gillnet fishery as a Category
II fishery is based on an evaluation of the risk of serious injury and
mortality that gillnets present to marine mammals that are found in the
area of operation of this fishery, and from indications that at least
occasional serious injuries and mortalities occur in this fishery, as
evidenced by reports of strandings of Western North Atlantic coastal
bottlenose dolphin from 19941998 in the area of operation of this fishery (66 FR 6551, January 22, 2001).
No other gillnet fisheries are known to operate in the Southeast U.S. restricted area and during the time when calving and nursing right whales are expected to occur.
The southeast U.S. restricted area is defined in Sec. 229.32(f)(1)(i) as the waters from 32[deg]00' N. lat. (near Savannah, GA) along the coast south to 27[deg]51' N. lat. (near Sebastian Inlet, FL) and extending from the shore eastward out to 80[deg]00' W. long. NMFS also established the southeast U.S. observer area defined as the southeast U.S. restricted area plus an additional area along the coast south to 26[deg]46.5' N. lat. (near West Palm Beach, FL) and extending from the shore eastward out to 80[deg]00' W. long (50 CFR
229.32(f)(1)(ii)).
In the southeast U.S. restricted area, the restricted period is from November 15 through March 31 (50 CFR 229.32(f)(4)(i)) corresponding with the right whale calving season, as it was understood in 1996. Pursuant to 50 CFR 229.32(f)(4)(ii) and (iv), fishermen are prohibited from using shark gillnet gear, defined at Sec. 229.2 as gillnet with 5 inches (12.7 cm) or greater stretch mesh, in the restricted area during the restricted period, except for shark fishing with strikenet gear (defined at Sec. 229.2) of any mesh size fished in accordance with the following provisions: (1) No nets are set at night or when visibility is less than 500 yards (460 m), (2) each set is made under the observation of a spotter plane, (3) no net is set within 3 nautical miles (5.6 km) of a right, humpback, or fin whale, and (4) if a right, humpback, or fin whale moves within 3 nautical miles (5.6 km) of the set gear, the gear is removed immediately from the water (Sec. 229.32(f)(4)(iv)). Lastly, all gillnet fishermen are prohibited from fishing a straight set of gillnet gear at night within the southeast U.S. restricted area during the restricted period (Sec.
229.32(f)(4)(iii)).
In the southeast U.S. observer area, the ALWTRP regulations require observer coverage, if requested by NMFS, of the Southeastern U.S. Atlantic shark gillnet fishery during the restricted period (Sec. 229.32(f)(3)).
Because of the right whale's endangered status, NMFS included contingency measures in the ALWTRP regulations that would require further restriction on fishing in the Cape Cod Bay critical habitat, Great South Channel restricted area, and the southeast U.S. restricted area if a right whale mortality or serious injury resulted from the use of certain fishing gear in those areas during specific times of the year. Specifically, Sec. 229.32(g)(1) states that if a serious injury or mortality of a right whale occurs in the southeast U.S. restricted area during the restricted period as a result of an entanglement by gillnet gear allowed to be used in that area and time, the NOAA Assistant Administrator for Fisheries (AA) shall close that area to that gear type for the rest of that time period and for that same time period in each subsequent year, unless the AA revises the restricted period or implements other measures under 50 CFR 229.32(g)(2).
The AA is authorized to preempt or alter closures implemented under 50 CFR 229.32(g)(1) in subsequent years based on any of the following: (1) NMFS verifies that certain gear characteristics are both operationally effective and reduce serious injuries and mortalities of endangered whales, (2) new gear technology is developed and determined to be appropriate, (3) revised fishing gear breaking strengths are determined to be appropriate, (4) new marking systems are developed and determined to be appropriate, (5) NMFS determines that right whales are remaining longer than expected in a closed area or have left earlier than expected, (6) NMFS determines that the boundaries of a closed area are not appropriate, (7) gear testing operations are considered appropriate, or (8) similar situations occur (50 CFR 229.32(g)(2)).
In 2005, the ALWTRT considered additional measures to further
protect right whales from serious injury and mortality in commercial
fishing operations, including in Southeast U.S. waters, and NMFS
published a proposed rule on June 21, 2005 (70 FR 35894). NMFS prepared
a Draft Environmental Impact Statement (DEIS), and under the preferred
alternatives, the following ALWTRP operational measures, specific to
the southeast U.S. restricted area and adjacent waters, were proposed
(for a complete list, please consult the 2005 DEIS (Industrial Economics, Inc. and NMFS 2005)):
(1) Dividing, at the 29[deg]00' N. lat., the southeast U.S. restricted area into two sections.
(2) Modifying the restricted period to November 15 through April 15
for the southeast U.S. restricted area north of 29[deg]00' N. lat., and
December 1 through March 31 for the southeast U.S. restricted area south of 29[deg]00' N. lat.
(3) Eliminating the 80[deg]00' eastern boundary of the southeast
U.S. restricted area and extending the area, and respective requirements, out to the Exclusive Economic Zone (EZZ).
(4) Requiring weak links, sinking or neutrally buoyant groundline,
no floating buoy line at the surface of the water, and anchors for
gillnets not returned to port with the vessel in the Southeast Atlantic gillnet fishery.
(5) Requiring Vessel Monitoring Systems (VMS) in lieu of ALWTRP
related observer coverage requirements for the Southeastern U.S. Atlantic shark gillnet fishery.
The final rule is expected to be published in early 2007. NMFS recognizes that some of the measures in the 2005 proposed rule and some of the measures proposed in this rulemaking concerning the boundaries of the Southeast U.S. restricted area differ in some respects. NMFS will ensure that the differences are reconciled when completing both rulemakings.
Recent Events
On January 22, 2006, a dead right whale calf was reported offshore
of Jacksonville Beach, Florida. The right whale calf was towed ashore
and necropsied by a specialized large whale necropsy team. Evidence of
recent entanglement was clearly documented by the necropsy team. Damage to the animal that was judged to be the result
[[Page 66485]]
of entanglement met NMFS' criteria of a serious injury (i.e., an injury
likely to result in mortality) (50 CFR 216.3). The immediate cause of
the whale's death (e.g., dehydration, infection) was not determined by
the necropsy team. NMFS determined, based on best available information
and discussions with scientific investigators, that the right whale's
entanglement and serious injury by gillnet gear allowed to be used in
the southeast U.S. restricted area during the restricted period
ultimately led to the death of the animal. Additionally, NMFS
determined that both the entanglement and death of the whale occurred
within the southeast U.S. restricted area during the restricted period
because: (1) all sightings of this calf occurred within the southeast
U.S. restricted area; (2) all the southeast sightings were during the
restricted period; (3) mothercalf pairs typically remain on the
calving grounds in January; (4) the carcass was found within the
southeast U.S. restricted area; and (5) based on currents, the calf's
most likely location when it died was inshore and north of where the carcass was found.
As a result of these findings, NMFS enacted temporary restrictions on gillnet fishing in the southeast U.S. restricted area from February 15, 2006, through March 31, 2006 (71 FR 8223, February 16, 2006), in accordance with the ALWTRP's implementing regulations at 50 CFR 229.32(g)(1). The temporary regulation was necessary to protect right whales from further serious injury or mortality in the southeast U.S. restricted area due to entanglement in gillnet gear. Since implementing this regulation, NMFS has collected and analyzed additional information to determine, with opportunity for public comment, the scope of permanent protective measures required by the regulations.
On March 7, 2006, a final necropsy report for the dead calf was made available to NMFS. The necropsy report supported NMFS' determination that the right whale calf was seriously injured and ultimately died as a result of entanglement in gillnet gear used in the southeast U.S. restricted area during the restricted period. The mesh size of the gillnet gear involved in the entanglement could not be determined. Various mesh sizes are used within the area, subject to different restrictions established under the ALWTRP regulations, regulations established under fishery management plans, and applicable state authorities.
Therefore, NMFS believes the application of the implementing regulations at Sec. 229.32(g)(1) with respect to the January 2006 right whale death was, and continues to be, appropriate.
On April 11 and 12, 2006, NMFS convened a meeting of the ALWTRT's MidAtlantic/Southeast Subgroup (the SE Subgroup) to seek input regarding future management options to protect right whales from additional serious injury and mortality from gillnetting within the southeast U.S. restricted area. Attending the SE Subgroup meeting were representatives of commercial fishermen that actively gillnet in the Southeast U.S., right whale scientists, environmentalists, Marine Mammal Commission, fishery management organizations, and state and Federal resource management agencies.
NMFS updated the SE Subgroup on: (1) the ALWTRP as it relates to the Southeast U.S. (including modifications proposed in 70 FR 35894, June 21, 2005), (2) the right whale calf necropsy findings, (3) the temporary rule restricting gillnetting in the southeast U.S. restricted area from February 16, 2006, through March 31, 2006 (71 FR 8223, February 16, 2006), (4) right whale status, (5) habitat and diving characteristics of right whales in the Southeast U.S., (6) Southeast U.S. gillnet fisheries, and (7) existing gillnetrelated state and Federal regulations. Various questions and issues raised during the meeting included: (1) the need to improve how right whale carcasses are handled, (2) the method by which new management measures would be implemented, (3) the lack of information regarding the precise mesh size of the entangling gillnet implicated in the calf's death, (4) allegations that illegal gillnetting was responsible for the calf's death, (5) the lack of resources to enforce management restrictions, (6) the inadequacy of regulations regarding fishing activities not previously considered, (7) the lack of scientific permits that allow tagging right whale mothers with calves in the Southeast U.S. to study, among other things, dive profiles, (8) the belief that, due to risk to the whales, gillnetting is not compatible with a right whale calving area, and (9) the fact that PBR for right whales is zero.
The SE Subgroup discussed various gillnet fishery management options for the southeast U.S. restricted area, including using 29[deg]00' N. lat. to divide the southeast U.S. restricted area into northern and southern management zones, consistent with the ALWTRP proposed rule (70 FR 35894, June 21, 2005). This management approach was advocated due to the different types of fishing operations in these two areas, and to allow for better tracking of management measures relative to the seasonal movements of right whales as they progress southward along Florida during late fall/early winter and progressively northward during late winter/early spring.
Southeast U.S. restricted area south of 29[deg]00' N. lat. The SE Subgroup recommended management measures for the southeast U.S. restricted area south of 29[deg]00' N. lat. that they believed would protect right whales from serious injury and mortality in commercial gillnet gear. The recommendation included a combination of retaining some of the existing ALWTRP regulations for the two currently active gillnet fisheries operating in the area and supplementing them with new or modified requirements. For the Southeastern U.S. Atlantic shark gillnet fishery, the SE Subgroup recommended: modifying the existing restricted period of November 15 through March 31 to December 1 through March 31; revising the existing prohibition on shark gillnetting with 5 inches (12.7 cm) or greater stretch mesh to a prohibition on shark gillnetting with any size mesh during the restricted period; and retaining the exemptions at Sec. 229.32(f)(iv) for the use of strikenet gear to target sharks during the restricted period.
For the Southeast Atlantic gillnet fishery, the SE Subgroup recommended modifying the existing restricted period of November 15 through March 31 to December 1 through March 31; and revising the prohibition on straight sets of gillnet at night to a prohibition on fishing with gillnet with an exemption for fishing for Spanish mackerel during the periods December 1 through December 31 and March 1 through March 31, if fishing was conducted in accordance with the current Spanish mackerel regulations at 50 CFR part 622 and these regulations are codified within the ALWTRP (to ensure against the possibility that regulations at 50 CFR part 622 are changed through FMP amendments). To be consistent with the shark strikenet provisions and to provide additional protection for right whales, the following new provisions would also be required for fishing for Spanish mackerel in the southeast U.S. restricted area south of 29[deg]00' N. lat. during the suggested restricted period: (1) No net is set at night or when visibility is less than 500 yards (460 m); (2) no net is set within 3 nautical miles (5.6 km) of a right, humpback, or fin whale; and (3) gillnet is removed immediately from the water if a right, humpback, or fin whale moves within 3 nautical miles (5.6 km) of the set gear.
The SE Subgroup's recommended measures for the Southeastern U.S. [[Page 66486]]
Atlantic shark gillnet fishery and the Southeast Atlantic gillnet
fishery would prohibit fishing with gillnet unless the specified
restrictions were in place for each of these two fisheries to provide
protection for right whales. The provisions for Spanish mackerel
fishing and strikenetting for sharks allow fishing with limited amounts
of gillnet (due to Spanish mackerel regulations and strikenet
deployment method) and limited soak times, and therefore keep effort
per fisherman relatively low overall. Furthermore, nets would not be
set, or would be removed, if endangered whales were within 3 nautical miles (5.6 km) of deployed gear.
Southeast U.S. restricted area north of 29[deg]00' N. lat. The SE Subgroup did not reach consensus on recommended management measures for the southeast U.S. restricted area north of 29[deg]00' N. lat. The subgroup recognized that the area north of 29[deg]00' N. lat. has a higher density of right whales for a longer period during the calving season. In 2004, a small group of gillnet fishermen targeting whiting also began using this area. The SE Subgroup discussed possible options for management measures in this area, including: (1) status quo with certain measures that would allow gear and techniques used to gillnet whiting, but limit gillnetting for other species (e.g., require gillnets with a maximum stretchedmesh size of 3 inches (7.6 cm) and less than 25 meshes deep), (2) prohibit gillnetting in this area unless strikenetting, (3) prohibit gillnetting in this area altogether, and (4) prohibit gillnetting in portions of the area. Possible closed areas included the entire southeast U.S. restricted area; the right whale critical habitat area; the Mandatory Ship Reporting System (MSRS) Area (the area extends from the shoreline east to 80[deg]51.6' W. long. with the southern and northern boundaries at 30[deg]00' N. lat. and 31[deg]27' N. lat., respectively) (33 CFR part 169); and an area from the shoreline out to a line drawn at approximately 81[deg] W. long. extending from approximately Savannah, Georgia, to Daytona Beach, Florida (the area suspected by some SE Subgroup members to include high concentrations of right whales not included in the other area proposals). Some fishing industry members of the SE Subgroup noted that none of these closed area options would allow them to fish safely, efficiently, or effectively.
Following the SE Subgroup meeting, a report summarizing key points of the SE Subgroup's meeting was prepared and distributed to the full ALWTRT. Comments received from SE Subgroup members after the meeting were made available to ALWTRT members upon request.
Subsequent to the SE Subgroup meeting, the Marine Mammal Commission (MMC) submitted a letter to NMFS recommending that NMFS promulgate a permanent rule to ensure protection of mothercalf pairs of right whales from entanglement in gillnet fisheries. The MMC is charged under the MMPA with recommending actions and policies to Federal agencies with respect to marine mammal protection and conservation. In their letter, dated May 15, 2006, the MMC recommended to NMFS that the rule: (1) expand the southeast U.S. restricted area to include waters within 40 miles (74.1 km) offshore of northern Georgia and South Carolina, (2) modify the restricted period to be from November 1 to April 30 in the restricted area off South Carolina, and November 15 to April 15 in the restricted area off Georgia and Florida, (3) prohibit all gillnet fishing in the expanded restricted area during the recommended restricted periods, and (4) provide exemptions for Spanish mackerel and shark gillnet fishing in the southeast U.S. restricted area south of 29[deg]00' N. lat.
NMFS Analysis of Need for Additional Action
Prior to implementing the temporary rule (71 FR 8223, February 16, 2006) closing the southeast U.S. restricted area to gillnet fishing in February and March 2006, NMFS determined that the death of the right whale calf was the result of entanglement in gillnet gear allowed to be used in the southeast U.S. restricted area during the restricted period. NMFS has received additional information since that time; specifically, the final necropsy report and the discussions of the SE Subgroup. The new information supports NMFS' original determination. Therefore, ALWTRP regulations at Sec. 229.32(g)(1) require the permanent closure of the southeast U.S. restricted area during the annual restricted period. However, a complete gillnet prohibition in the southeast U.S. restricted area can be avoided if certain conditions as specified under Sec. 229.32(g)(2) exist. Consequently, NMFS analyzed whether it was appropriate to propose a revised permanent gillnet prohibition in the southeast U.S. restricted area in accordance with Sec. 229.32(g)(1) and (2), and whether the management measures recommended by the SE Subgroup and the MMC were consistent with the measures in Sec. 229.32(g)(2).
Restricted Area
As recommended by the MMC, NMFS considered expanding the southeast
U.S. restricted area to include waters off South Carolina. Aerial
surveys for right whales conducted between 2001 and 2005 have shown
consistent occurrence of right whales in waters off South Carolina
throughout winter months (McLellan et al., 2001; Glass et al., 2005).
In addition, there is evidence that some calving females may remain in
this area north of the traditionally defined calving grounds. For
example, during the 2004/2005 calving season, right whale
South Carolina commercial fisheries landings data (which
distinguishes landings by geartype since 2003) indicate that only
shark has been landed in South Carolina from gillnet fishing, and only
in 2004 and 2005. Shark was harvested off South Carolina by gillnet
from April through October, 2004, and from May through September, 2005,
for a total of 8,097 lbs (3,680 kg) and 18,318 lbs (8,326 kg) of shark
harvested in 2004 and 2005, respectively. Commercial fisheries landings
data from the Florida Fish and Wildlife Conservation Commission (FWC)
indicate that in Florida, 111,210 lbs (50,444 kg) of shark were landed
in 2004 alone. Consequently, expanding the southeast U.S. restricted
area to waters off South Carolina would appear to only minimally impact the amount of shark
[[Page 66487]]
harvested in the Southeast if gillnetting is restricted or prohibited.
However, the action would have conservation benefits to right whales by
preventing the potential expansion of gillnetting activity into that
area during the time when it is used by right whales. Therefore, in
accordance with Sec. 229.32(g)(2)(vi), NMFS has determined that the
existing boundaries of the southeast U.S. restricted area are not
appropriate, and that expanding the southeast U.S. restricted area to
include the waters within 35 nautical miles (64.8 km) off South
Carolina is necessary to prevent serious injury or mortality of right whales in that area (Figure 1).
As recommended by the MMC and consistent with recommendations of the SE Subgroup and with the 2005 ALWTRP proposed rule (70 FR 35894, June 21, 2005), NMFS also considered the appropriateness of managing the expanded southeast U.S. restricted area as two separate units divided at 29[deg]00' N. lat. As indicated previously, fishermen participating in the SE Subgroup meeting indicated gillnet fishing practices north of 29[deg]00' N. lat. differed substantially from those south of 29[deg]00' N. lat. and preferred that these two areas be managed independently of each other. A review of the Right Whale Sightings Database, curated by the University of Rhode Island, indicates that right whales are rarely sighted south of 29[deg]00' N. lat. in November or in April. However, right whales have been sighted throughout the area north of 29[deg]00' N. lat. and extending north to the SC/NC border from midNovember through midApril. NMFS has determined that splitting the southeast U.S. restricted area into two zones for purposes of managing gillnet threats to calving right whales is appropriate, as it would allow fishery management measures to temporally track right whale seasonal northsouth movement patterns, thereby avoiding overly restrictive fishery management measures.
NMFS considered the SE Subgroup discussions regarding possible alternative restricted areas including: the right whale calving critical habitat area; the MSRS Area; and an area from the shoreline out to a line drawn at approximately 81[deg] W. long. extending from about Savannah, Georgia, to Daytona Beach, Florida (the area suspected by some SE Subgroup members to include high concentrations of right whales not included in the other area proposals). In considering these options, NMFS reviewed available sightings data and habitatmodeling analyses relative to right whale distribution in the Southeast U.S. (Keller et al., 2006; Garrison, 2006). Right whales have routinely been observed outside of areas discussed for closure by the SE Subgroup, and habitatmodeling analyses, in particular, indicate that right whales are expected to occur outside of these areas due to suitable water temperature and bathymetry during winter. Reducing the size of the restricted area would leave right whales unprotected from gillnet fishing effort. Therefore, NMFS has determined it is not appropriate to use critical habitat, the MSRS Area, or the area west of 81[deg] W. long. to manage gillnet fishing activity as per Sec. 229.32(g)(1) and (2).
Restricted Periods
NMFS also considered whether right whales were remaining longer or
leaving earlier than previously expected in the southeast U.S.
restricted area, recognizing that a substantial amount of aerial survey
data and opportunistic sightings of right whales had been collected
since the ALWTRP was originally implemented in 1997. The November 15
through March 31 timeframe is currently established as the restricted
period for the entire southeast U.S. restricted area. As indicated
earlier, right whales are rarely sighted south of 29[deg]00' N. lat. in
November or in April; however, right whales have been sighted
throughout the area north of 29[deg]00' N. lat. and extending north to
the SC/NC border from midNovember through midApril. Consequently, in
accordance with 50 CFR 229.32(g)(2)(v), NMFS has determined that it is
appropriate to modify the annual restricted period to include two
restricted periods specific to the proposed northern and southern zones
of the southeast U.S. restricted area: November 15 through April 15
north of 29[deg]00' N. lat., and to December 1 through March 31 south
of 29[deg]00' N. lat. This is consistent with NMFS' June 21, 2005, proposed rule to amend the ALWTRP (70 FR 35894).
Prohibition of Gillnet Fishing in the Proposed Expanded Southeast U.S. Restricted Area During New Proposed Restricted Periods
The southeast U.S. restricted area north of 29[deg]00' N. lat. is the core of the calving area and used extensively by mothercalf right whale pairs during the restricted period. Although strikenetting for sharks and fishing for other species with small mesh gillnets is currently authorized under the ALWRTP in this area, fishing effort in this area appears to be limited primarily to fishermen using small mesh gillnets to target whiting, as part of the Southeast Atlantic gillnet fishery. Therefore, this is the only gillnet fishery operation NMFS analyzed for a potential exemption to the prohibition under the provision of Sec. 229.32(g)(2) for the southeast U.S. restricted area north of 29[deg]00' N. lat. NMFS did not consider exemptions for fisheries using gear or methods already prohibited under ALWTRP regulations, including drift gillnetting for shark (62 FR 39157, July 22, 1997).
Gillnet fishing for whiting is concentrated in the vicinity of the
St. John's River entrances, near the location where the entangled, dead
right whale calf was first reported. Gear and operational restrictions
for gillnet fishing in this area discussed by the SE Subgroup, such as
limiting nets to less than 3 inches (7.6 cm) stretched mesh and no more
than 25 meshes deep, using weak links, and prohibiting night time sets,
would effectively restrict gillnet fishing in this area to only the
methods used to target whiting. These measures are not operationally
effective to adequately reduce risk to right whales since large amounts
of net would still be allowed to be in the water, fishing for whiting
is not subject to any Federal FMP that would restrict future increases
in fishing effort or landings, it is unknown if weak links will release
very young calves, and vertical lines are thought to present a risk to
right whales. NMFS considered whether other special conditions exist or
could be imposed on the whiting fishery to allow for a revision of the
closed area as provided under Sec. 229.32(g)(1) and (2). Weak links
are used for reducing the threat of entanglement to large whales;
however, NMFS is concerned that this or other technology may not
sufficiently reduce risk to right whale calves from entanglement in
gillnet gear due to the substantially smaller size and reduced strength
of young right whale calves relative to adults. Similarly, the
appropriate breaking strength suitable for freeing small right whale
calves from entangling gillnet gear is unknown. Gear marking may be
helpful to facilitate monitoring right whale entanglement rates or
assist in designing future bycatch reduction measures; however, it will
not reduce the risk to right whales from becoming entangled in the
marked gear. Gear testing may hold promise for reducing serious injury
or mortality to right whales in the southeast U.S. restricted area from
gillnet fishing activity in the future, but gear testing, if
implemented at present, will not reduce the immediate risk of serious
injury and mortality to right whales incidental to gillnet fishing activity in the proposed
[[Page 66488]]
expanded southeast U.S. restricted area during the restricted period.
Thus, NMFS has determined, consistent with Sec. 229.32(g)(2), that no
measures currently available would adequately protect right whales from
the risk of serious injury or mortality due to gillnet operations
during the restricted period in the southeast U.S. restricted area
north of 29[deg]00' N. lat. Therefore, NMFS proposes to prohibit
fishing with or possessing gillnet during the restricted period in the
proposed expanded southeast U.S. restricted area north of 29[deg]00' N. lat.
NMFS also proposes to prohibit fishing with gillnets during the restricted period in the proposed expanded southeast U.S. restricted area south of 29[deg]00' N. lat. The only fisheries currently active in this area during the restricted period are the strikenet component of the Southeastern U.S. Atlantic shark gillnet fishery and the Spanish mackerel component of the Southeast Atlantic gillnet fishery. Therefore, these are the only two gillnet operations NMFS considered for a potential exemption pursuant to Sec. 229.32(g)(2). NMFS is proposing to exempt these operations from the gillnet prohibitions, with additional restrictions as discussed in more detail below, because they are operationally effective and reduce serious injuries and mortalities of right whales, as required under Sec. 229.32(g)(2)(i). The determination to allow for limited exemptions in the area south of 29[deg]00' N. lat. during the restricted period is based on several factors, including right whale distribution patterns in this area and time, existing state gillnet prohibitions, and gear characteristics and operational methods used in the deployment of these two fisheries. Regarding right whale distribution patterns, aerial survey data and habitat modeling analyses indicate that right whales are distributed closer to shore (and predominantly in state waters) when they are south of 29[deg]00' N. lat. than when they are north of 29[deg]00' N. lat. during the restricted period. Current regulations prohibiting gillnets in Florida state waters provide additional protection for right whales when they are closer to shore (i.e., when they are in waters south of 29[deg]00' N. lat.). As discussed in more detail below, the proposed exempted gillnet operations, with the combination of existing and new regulatory requirements on the type of gear that can be used in this area and during the restricted period, are both operationally effective and capable of protecting right whales from the risk of serious injury and mortality of right whales, pursuant to Sec. 229.32(g)(2)(i).
This approach of prohibiting gillnet fishing in the southeast U.S.
restricted area south of 29[deg]00' N. lat. during the restricted
period, while allowing for limited exemptions for specific known
fishing operations considered by NMFS and determined to have a
negligible risk to right whales, is consistent with Sec. 229.32(g)(1)
and (2), and effectively eliminates the risk of any new gillnet fishing
operation from emerging in this area during this period without first
considering the risk that particular operation poses to right whales
and whether that operation meets the conditions for an exemption in Sec. 229.32(g)(2).
Exemption for the Strikenet Component of the Southeastern U.S. Atlantic Shark Gillnet Fishery
NMFS considered if gear characteristics of the strikenet component of the Southeastern U.S. Atlantic shark gillnet fishery, as currently specified under the ALWTRP regulations at Sec. 229.32 and under the shark regulations at part 635 of this title, were both operationally effective and capable of protecting right whales from the risk of reducing serious injury and mortality in the area south of 29[deg]00' N. lat. during the restricted period, pursuant to Sec.
229.32(g)(2)(i).
The ALWTRT's recommendations and NMFS' management approach for the shark gillnet fishery under the original ALWTRP implemented in 1997 was to minimize the overlap between this fishery and right whale distribution in the Southeast (62 FR 39157, July 22, 1997). At the time of enactment of the ALWTRP, fishermen fishing for sharks with gillnets used large mesh gillnets of 5 inches or greater stretch mesh. To reduce potential take of right whales incidental to shark gillnetting activity, fishing with gillnets of 5 inches stretched mesh or greater was prohibited in the southeast U.S. restricted area during the restricted period, unless used as strikenets in accordance with Sec. 229.32(f)(4)(iv). Fishing for sharks with strikenets generally uses less gillnet and shorter soak times than traditional shark gillnets that are deployed in straight sets. Furthermore, the ALWTRP requires that nets not be set, or must be removed, if endangered whales are within 3 nautical miles (5.6 km) of deployed gear, that no nets are set at night or in low visibility, and that sets be made under the observation of spotter planes (Sec. 229.32(f)(4)(iv)). With these restrictions in place, fishing for shark with strikenets was considered to present an acceptable level of risk to endangered whales.
Discussions at the SE Subgroup meeting suggest this approach of prohibiting shark gillnetting in the southeast U.S. restricted area during the restricted period under the ALWTRP, while exempting strikenetting for sharks in accordance with Sec. 229.32(f)(iv), has been largely successful at protecting right whales from the risk of serious injury and mortality, and that the strikenet component of the Southeastern U.S. Atlantic shark gillnet fishery should continue to be allowed as an exemption to the prohibitions on gillnetting under the ALWTRP during the restricted period, but only in the area south of 29[deg]00' N. lat. However, at the SE Subgroup meeting, NMFS learned that, consistent with the ALWTRP regulations, gillnet fishermen would not set strikenets after sunset, but that occasionally nets were not completely removed from the water until after sunset. NMFS believes the intent of the original restriction in the ALWTRP regulations at Sec. 229.32(f)(4)(iv) to prohibit setting at night was to eliminate the possibility of endangered whales moving undetected within close proximity of deployed gillnets during periods of low visibility. Consequently, NMFS is proposing, as an additional condition of this exemption, an amendment to the existing regulations at Sec. 229.32(f)(4)(iv) that would specifically require all nets to be removed from the water before night or immediately if visibility decreases below 500 yards (460 m).
NMFS is also proposing that only fishermen that have a valid commercial directed shark limited access permit be exempted from the gillnet prohibition, so that fishing effort is limited to ensure that no one tries to fish in this area without following the other regulations applicable to the shark gillnet fishery at Sec. 229.32(f)(4)(iv).
NMFS has determined that the combination of: existing gear
requirements at Sec. 229.32(f)(4)(iv), the proposed new requirements
for fishermen to have a valid commercial directed shark limited access
permit, the proposed new restrictions on strikenets in the water at
night and during times of low visibility, known and predicted right
whale distribution patterns in the southeast U.S. restricted area south
of 29[deg]00' N. lat. during the restricted period, and existing
Florida regulations prohibiting gillnets in state waters, are
operationally effective and will protect right whales from the risk of
serious injury or mortality in the southeast U.S. restricted area south
of 29[deg]00' N. lat. during the restricted period, thereby [[Page 66489]]
warranting an exemption, pursuant to Sec. 299.32(g)(2)(i), to allow
the use of strikenets to fish for sharks during this time and in this area. This determination is consistent with the consensus
recommendation of the SE Subgroup and the MMC's recommendation.
Exemption for the Spanish Mackerel Component of the Southeast Atlantic Gillnet Fishery
NMFS considered if gear characteristics of the Spanish mackerel component of the Southeast Atlantic gillnet fishery were both operationally effective and capable of protecting right whales from the risk of serious injury and mortality in the area south of 29[deg]00' N. lat., pursuant to Sec. 229.32(g)(2)(i). As noted previously, the Spanish mackerel component of the Southeast Atlantic gillnet fishery is the only directed gillnet fishery that currently operates in the southeast U.S restricted area south of 29[deg]00' N. lat. during the restricted period.
The SE Subgroup discussed the characteristics and deployment methods of gillnet fishing for Spanish mackerel to determine whether this fishing operation warranted an exemption under Sec. 229.32(g)(2) from the recommended prohibition on gillnets in the southeast restricted area south of 29[deg]00' N. lat. during the restricted period. Members noted that right whales were found in cooler water temperatures than Spanish mackerel and that the two species may separate themselves seasonally for this reason. Furthermore, gillnet fishing for Spanish mackerel is already regulated under fishery management plan regulations in a way that greatly limits soak time and the amount of gear that can be used, thereby reducing the potential for interactions with large whales. Specifically, regulations for Spanish mackerel gillnet fishing at Sec. 622.41(c)(3)(ii) of this title include restricting the soak period to no more than one hour, allowing only one gillnet to be fished, set or placed in the water at any one time, and restricting the float line to no longer than than 800 yards (732 m). The SE Subgroup recommended that an exemption be provided to allow gillnet fishing for Spanish mackerel in the southeast U.S restricted area south of 29[deg]00' N. lat. during December and March (when Spanish mackerel are likely in the southeast U.S. restricted area but south of 29[deg]00' N. lat.), provided: (1) the Spanish mackerel related regulatory provisions in 50 CFR part 622 are amended to the ALWTRP, (2) fishing at night is prohibited, (3) nets are not set if endangered whales are within 3 nautical miles (5.6 km), and (4) nets are removed from the water if an endangered whale moves within 3 nautical miles (5.6 km) of the gear.
NMFS agrees with the SE Subgroup and MMC that gillnet gear characteristics when fishing for Spanish mackerel in accordance with provisions in the SE Subgroup's recommended measures represents a negligible risk to right whales. Specifically, NMFS has determined that the combination of: existing gear requirements for Spanish mackerel gillnets at Sec. 622.41 (c)(3)(ii) of this title, new gear requirements prohibiting the setting of gear at night or in low visibility and requiring nets not to be set and to be removed from the water if endangered whales are within 3 nautical miles, known and predicted right whale distribution patterns in the southeast U.S. restricted area south of 29[deg]00' N. lat. during December and March, and existing Florida regulations prohibiting gillnets in state waters, are operationally effective and will protect right whales from the risk of serious injury or mortality in the southeast U.S. restricted area south of 29[deg]00' N. lat. from December 131 and from March 131, thereby warranting an exemption, pursuant to Sec. 229.32(g)(2)(I) of this title, to allow the use of gillnets to fish for Spanish mackerel during this time and in this area.
Humpback and fin whales are not known to occur in Southeast U.S. waters as frequently as right whales; however, by including humpback and fin whales, in addition to right whales, within the provisions would provide important protection to right whales in the event a gillnet fishermen mistakenly identifies a right whale as a humpback or fin whale and fails to remove gear from the water. Providing this protection to humpback and fin whales is also an appropriate amendment of the ALWTRP regulations because it satisfies the MMPA's standards that such regulations reduce incidental mortality and serious injury of marine mammals taken in the course of commercial fishing covered by the plan to insignificant levels approaching a zero rate.
NMFS also considered the characteristics of gillnet fishing for
whiting. However, as noted above, fishing effort targeting whiting has
only occurred north of 29[deg]00' N. lat. to date (landings south of
29[deg]00' N. lat. have been bycatch), and there was no indication from
fishermen at the SE Subgroup meeting that fishing for whiting would be
pursued south of 29[deg]00' N. lat. Therefore, until such time that
there is a need to consider an exemption for whiting or any other
component of the Southeast Atlantic gillnet fishery, the only component
of the Southeast Atlantic gillnet fishery proposed for exemption from
the gillnet prohibition south of 29[deg]00' N. lat. is Spanish mackerel.
Transits with Gillnet in the Proposed Expanded Southeast U.S.
Restricted Area North of 29[deg]00' N. lat. During the New Proposed Restricted Period
NMFS considered the difficulties for law enforcement in sometimes discerning between vessels with gillnet onboard that are merely transiting through a closed area versus vessels with gillnet onboard that may be engaged in illegal fishing in a closed area. Therefore, NMFS is proposing to prohibit possession of gillnet in the expanded Southeast U.S. Restricted Area north of 29[deg]00' N. lat., where no exemptions to the gillnet prohibitions are proposed during the restricted period. Gillnet vessels that typically fish in the southeast U.S. restricted area are rather small, and gillnet fishermen typically only make shortrange, singleday trips when they are fishing and would have fish on board. NMFS believes that gillnet fishermen would not be transporting fish over long distances (i.e., through the southeast U.S. restricted area north of 29[deg]00' N. lat.) since these smaller fishing vessels generally do not have the capacity to hold and preserve fish while transiting safely over this large distance (i.e., between North Carolina and Cape Canaveral, FL). However, NMFS considered that some gillnet fishermen may need to transit through this portion of the expanded Southeast U.S. Restricted Area en route to fishing grounds on either side of that area. Consequently, NMFS is also proposing providing an exemption for vessels that are transiting through the expanded Southeast U.S. Restricted Area north of 29[deg]00' N. lat. from the prohibition of possessing a gillnet, if gear is stowed in accordance with this rule.
Observer Callin Requirement
Present ALWTRP regulations state that no person may fish with shark
gillnet gear in the southeast U.S. observer area during the restricted
period unless that person calls the NMFS Southeast Regional Office in
St. Petersburg, FL not less than 48 hours prior to departing on any
fishing trip. However, the NMFS Southeast Fisheries Science Center
Laboratory in Panama City, FL is responsible for arranging observer
coverage. NMFS believes that this discrepancy may result in confusion
and is, consequently, proposing changing the callin requirement from the Southeast
[[Page 66490]]
Regional Office in St. Petersburg to the Panama City Laboratory. Endangered Species Act as an Authority
NMFS is responsible for ensuring that takings of endangered right
whales by commercial fishing activities do not violate the ESA as well
as the MMPA. Consequently, NMFS is promulgating the proposed amendments
and revisions to Sec. 229.32(f) under the MMPA and under section 11(f)
of the ESA, which authorizes regulations appropriate to enforce the ESA including to prevent unauthorized takings.
Proposed Management Measures for Gillnetting Activity in the Southeast U.S. Restricted Area
This section summarizes the modifications that NMFS is proposing to the ALWTRP in the Southeast U.S. through this proposed rule. The proposed restrictions are in accordance with requirements of Sec. 229.32(g)(1) and (g)(2).
NMFS proposes to expand the southeast U.S. restricted area to include waters off South Carolina, within 35 nautical miles (64.8 km) of shore. NMFS is also specifically soliciting comments on the appropriateness of extending the Restricted Area to 40 nautical miles (74.1 km) offshore of South Carolina, as recommended by the MMC in its May 2006 letter to NMFS. NMFS is proposing to divide, at 29[deg]00' N. lat., the Southeast U.S. Restricted Area into Southeast U.S. Restricted Areas N and S, and to amend the restricted period for the two areas to be from November 15 through April 15 and December 1 through March 31, respectively. However, NMFS is also specifically soliciting comments on the appropriateness of a restricted period of November 1 through April 30 for the Southeast U.S. Restricted Area N. Figure 1 illustrates the proposed restricted area and restricted periods. NMFS notes that the June 21, 2005, proposed rule (70 FR 35894) also proposed to divide the restricted area and amend the restricted periods in the same manner as proposed in this rulemaking. Thus, unless changed in response to public comment, these provisions will be implemented in the first of these rules to be finalized.
NMFS is proposing that, during restricted periods, fishing with or
possessing gillnet in the Southeast U.S. Restricted Area N be
prohibited and fishing with gillnet in the Southeast U.S. Restricted
Area S be prohibited. Special exemptions for the Southeast U.S.
Restricted Area S would apply as follows: (1) strikenet component of
the Southeastern U.S. Atlantic shark gillnet fishery Fishing for
sharks with gillnet with a 5inch (12.7cm) or greater stretch mesh
size in the Southeast U.S. Restricted Area S is exempt from the
restrictions during the restricted period if: (a) gillnet is deployed
so that it encloses an area of water, (b) a valid commercial directed
shark limited access permit has been issued to the vessel in accordance
with Sec. 635.4(e) of this title and is on board; (c) no net is set or
remains in the water at night or when visibility is less than 500 yards
(460 m), (d) each set is made under the observation of a spotter plane,
(e) no gillnet is set within 3 nautical miles (5.6 km) of a right,
humpback, or fin whale, and (f) gillnet is removed immediately from the
water if a right, humpback, or fin whale moves within 3 nautical miles
(5.6 km) of the set gear. (2) Spanish mackerel component of the
Southeast Atlantic gillnet fishery Fishing with gillnet for Spanish
mackerel in the Southeast U.S. Restricted Area S is exempt from the
restrictions during the periods December 1 through December 31, and
March 1 through March 31, if: (a) gillnet mesh size is between 3.5
inches (8.9 cm) and 4.9 inches (12.4 cm) stretched mesh, (b) a valid
commercial vessel permit for Spanish mackerel has been issued to the
vessel and is on board, (c) no person may fish with, set, place in the
water, or have on board a gillnet with a float line longer than 800 yd
(732 m), (d) no person may fish with, set, or place in the water more
than one gillnet at any time, (e) no more than two gillnets, including
any net in use, may be possessed at any one time; provided, however,
that if two gillnets, including any net in use, are possessed at any
one time, they must have stretched mesh sizes (as allowed under the
regulations) that differ by at least 0.25 inch (0.64 cm), (f) no person
may soak a gillnet for more than 1 hour, (g) no net is set or remains
in the water at night or when visibility is less than 500 yards (460
m), (h) no net is set within 3 nautical miles (5.6 km) of a right,
humpback, or fin whale, (i) gillnet is removed immediately from the
water if a right, humpback, or fin whale moves within 3 nautical miles
(5.6 km) of the set gear, and (j) gillnet must be removed from the
water before night or immediately if visibility decreases below 500 yards (460 m).
Exemptions for Transiting through the Proposed Expanded Southeast U.S.
Restricted Area North of 29[deg]00' N. lat. During the New Proposed Restricted Period
Vessels with gillnet onboard may transit through the Southeast U.S. Restricted Area north of 29[deg]00' N. lat. during the Restricted Period if: All nets are covered with canvas or other similar material and lashed or otherwise securely fastened to the deck, rail, or drum; and all buoys, high flyers, and anchors are disconnected from all gillnets. No fish may be possessed aboard such a vessel in transit. Definitions
NMFS is proposing to remove the definitions for ``Shark gillnetting,'' ``Strikenet or to fish with strike gillnet gear,'' and ``to strikenet for sharks'' from the regulations at Sec. 229.2. NMFS' proposed regulatory language more effectively addresses these definitions by including them where they are used in Sec. 229.32(f). Similarly, NMFS is proposing to modify language at Sec. 229.32(g)(1) to be consistent with the modifications of the restricted areas contained in this proposed rule.
Other Changes to the ALWTRP
NMFS is proposing to revise the notification requirements for
fishermen fishing for shark with gillnet in the southeast U.S. observer
area to clarify that the Southeast Fisheries Science Center Panama City
Laboratory, and not the Southeast Regional Office, should be notified
prior to fishing. NMFS is also proposing to extend the period that
fishermen are required to notify the Panama City Laboratory to November
15 to April 15 north of 29[deg]00' N. lat. and modify the period from
December 1 to March 31 south of 29[deg]00' N. lat. to be consistent
with the proposed change in the restricted period at Sec. 229.32(f)(4)(i).
[[Page 66491]]
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Literature Cited
Clark, Christopher W. 2006. Application of passive acoustic methods to detect migrating right whales in New England and MidAtlantic waters. Final Report to NMFS under Contract Number WC133F04CN0060. 71 pp.
Garrison, Lance A. In Review. Defining the North Atlantic Right Whale Calving Habitat in the Southeastern United States: An Application of a Habitat Model. Unpub. Report.
Glass, Allison H., Cynthia R. Taylor, and David M. Cupka. 2005.
Monitoring North Atlantic right whales off the coasts of South Carolina and Georgia
[[Page 66492]]
20042005. Final report to National Fish and Wildlife Foundation. 16 pp.
Gulf of Mexico Fishery Management Council, South Atlantic Fishery Management Council, MidAtlantic Fishery Management Council, and NMFS. 2004. Final Amendment 15 to the Fishery Management Plan for Coastal Migratory Pelagic Resources in the Atlantic and Gulf of Mexico including Environmental Assessment, Regulatory Impact Review, and Regulatory Flexibility Act Analysis. Available at: http://www.safmc.net/Portals/6/Library/FMP/Mackerel/MackAmend15.pdf .
Industrial Economics, Incorporated, and NMFS. 2005. Draft Environmental Impact Statement for Amending the Atlantic Large Whale Take Reduction Plan: Broadbased Gear Modifications. NMFS Northeast Regional Office. February 2005.
Keller, C. A., L. I. WardGeiger, W. B. Brooks, C. K. Slay, C. R. Taylor, and B. J. Zoodsma. 2006. North Atlantic right whale distribution in relation to seasurface temperature in the southeastern United States calving grounds. Mar. Mam. Sci. 22(2): 426445.
Kraus, S.D., M. W. Brown, H. Caswell, C.W. Clark, M. Fujiwara, P. K. Hamilton, R.D. Kenney, A.R. Knowlton, S. Landry, C.A. Mayo, W.A. McLellan, M.J. Moore, D.P. Nowacek, D.A. Pabst, A.J. Read, R.M. Rolland. 2005. North Atlantic Right Whales in Crisis. Science 22 July 2005: Vol. 309. no. 5734, pp. 561 562.
McLellan, William A., Kim Marks Lefler, Guen Jones, Kirk Hardcastle, and D. Ann Pabst. 2001. Winter right whale surveys from Savannah, Georgia to Chesapeake Bay, Virginia FebruaryMarch 2001. Final Report to NMFS under Contract Number 40WCNF1A0249. 36 pp.
NMFS. 2005. Recovery Plan for the North Atlantic Right Whale (Eubalaena glacialis). National Marine Fisheries Service, Silver Spring, MD.
Waring, G.T., E. Josephson, C.P. Fairfield, and K. MazeFoley (Eds.). 2006. U.S. Atlantic and Gulf of Mexico marine mammal stock assessments 2005. U.S. Dept. Commerce., NOAA Tech. Mem. NMFSNE194, 346 pp.
Classification
In accordance with section 118(f)(9) of the MMPA, NMFS has determined that this action is necessary to implement a take reduction plan to protect North Atlantic right whales. In addition, pursuant to section 11(f) of the ESA, NMFS is promulgating these regulations to enforce the ESA's prohibitions on the taking of endangered right whales.
An Environmental Assessment for this action was prepared and is available from the agency upon request.
NMFS determined that this action is consistent to the maximum extent practicable with the enforceable policies of the approved coastal management programs of Florida, Georgia, an
FOR FURTHER INFORMATION CONTACT Laura Engleby, 727-824-5312, or Barb Zoodsma, 9043212806. Individuals who use telecommunications devices for the deaf (TDD) may call the Federal Information Relay Service at 1 8008778339 between 8 a.m. and 4 p.m. eastern time, Monday through Friday, excluding Federal holidays.
Electronic Access: Regulations and background documents for the ALWTRP can be downloaded from the ALWTRP web site at http://www.nero.noaa.gov/whaletrp/ .
Common CFR Searches
14 CFR Part 39 40 CFR Part 52 14 CFR Part 71 33 CFR Part 165 50 CFR Part 679 26 CFR Part 1 40 CFR Part 180 47 CFR Part 73 50 CFR Part 17 33 CFR Part 117 44 CFR Part 67 50 CFR Part 648 14 CFR Part 97 33 CFR Part 100 40 CFR Part 63 50 CFR Part 622 26 CFR Part 301 39 CFR Part 111 40 CFR Part 300 50 CFR Part 660 44 CFR Part 65 40 CFR Parts 52 and 81 40 CFR Part 271 47 CFR Part 64 50 CFR Part 665 47 CFR Part 76 50 CFR Part 229 14 CFR Part 23 14 CFR Part 25 21 CFR Part 522