[Federal Register Volume 71, Number 220 (Wednesday, November 15, 2006)]
[Proposed Rules]
[Pages 66482-66495]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-9206]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 229
[Docket No. 060928250-6250-01; I.D. 092506A]
RIN 0648-AU90
Taking of Marine Mammals Incidental to Commercial Fishing
Operations; Atlantic Large Whale Take Reduction Plan
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
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SUMMARY: NMFS proposes to 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.
DATES: Comments on this proposed rule must be received by 5 p.m. EST on
December 15, 2006.
ADDRESSES: You may submit comments, identified by the RIN 0648-AU90, by
any of the following methods:
E-mail: [email protected]. Include RIN 0648-AU90 in the
subject line of the message.
Mail: Assistant Regional Administrator for Protected Resources,
NMFS, 263 13th Avenue South, St. Petersburg, FL 33701.
Facsimile (fax) to: 727 824-5309, Attn: Assistant Regional
Administrator, Protected Resources, NMFS, 263 13th Avenue South, St.
Petersburg, FL 33701.
Federal eRulemaking Portal: http://www.regulations.gov. Follow the
instructions for submitting comments. Instructions: All submissions
received must include the agency name and docket number or Regulatory
Information Number (RIN) for this proposed rulemaking. For detailed
instructions on submitting comments and additional information on the
rulemaking process, see the ``Public Participation'' heading of the
SUPPLEMENTARY INFORMATION section of this document. Copies of the draft
Environmental Assessment (EA), an Initial Regulatory Flexibility
Analysis (IRFA), and copies of all citations referenced in this
proposed rulemaking may be obtained from the persons listed under FOR
FURTHER INFORMATION CONTACT.
FOR FURTHER INFORMATION CONTACT: Laura Engleby, 727-824-5312, or Barb
Zoodsma, 904-321-2806. Individuals who use telecommunications devices
for the deaf (TDD) may call the Federal Information Relay Service at 1-
800-877-8339 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/.
SUPPLEMENTARY INFORMATION:
Background
The 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 human-related 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. V-1).
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, human-caused 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 1999-2003, 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, non-endangered 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 (5-10 inches (0.127-0.254 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 NMFS-issued 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 (mid-water) 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. NMFS-issued 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 snapper-grouper (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 1994-1998 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) mother-calf 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
Mid-Atlantic/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 gillnet-related 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 stretched-mesh 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 mother-calf 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 1970
and her calf were observed multiple times off South Carolina by an
aerial monitoring team, but were never observed farther south off
Georgia and Florida (Glass et al., 2005). Acoustic monitoring conducted
during 2004 and 2005 also indicated the presence of right whales off
South Carolina during winter months, including detections of right
whale vocalizations at a monitoring station approximately 30 miles
(55.6 km) offshore (Clark, 2006). Furthermore, habitat models based on
the aerial survey data collected off Florida and Georgia suggest a
strong relationship between the spatial distribution of calving right
whales and water temperature and bathymetry. In particular,
distribution of calving right whales is strongly correlated with water
temperatures between 13-15[deg]C and water depths between 45-60 ft (15-
20m) (Keller et al., 2006; Garrison, 2006). These environmental
conditions are typically found off South Carolina to distances of 35
nautical miles (64.8 km) from shore during winter months. The model
predictions are consistent with observational evidence from aerial and
acoustic surveys. The available data and analyses indicate that the
continental shelf off South Carolina is a region where right whales
occur on a consistent basis in winter months.
South Carolina commercial fisheries landings data (which
distinguishes landings by gear-type 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 mid-November through mid-April. 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 north-south 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 habitat-modeling
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
habitat-modeling 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 mid-November through mid-April. 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 mother-calf 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 1-31 and from March 1-31,
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 short-range, single-day 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 Call-in 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 call-in 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 5-inch (12.7-cm) 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]]
[GRAPHIC] [TIFF OMITTED] TP15NO06.000
Literature Cited
Clark, Christopher W. 2006. Application of passive acoustic methods
to detect migrating right whales in New England and Mid-Atlantic
waters. Final Report to NMFS under Contract Number WC133F-04-CN-0060.
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]]
2004-2005. Final report to National Fish and Wildlife Foundation. 16
pp.
Gulf of Mexico Fishery Management Council, South Atlantic Fishery
Management Council, Mid-Atlantic 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: Broad-based Gear Modifications. NMFS Northeast
Regional Office. February 2005.
Keller, C. A., L. I. Ward-Geiger, W. B. Brooks, C. K. Slay, C. R.
Taylor, and B. J. Zoodsma. 2006. North Atlantic right whale
distribution in relation to sea-surface temperature in the southeastern
United States calving grounds. Mar. Mam. Sci. 22(2): 426-445.
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 February-March 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. Maze-Foley
(Eds.). 2006. U.S. Atlantic and Gulf of Mexico marine mammal stock
assessments 2005. U.S. Dept. Commerce., NOAA Tech. Mem. NMFS-NE-194,
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, and South Carolina.
This determination has been submitted for review by the responsible
state agencies under section 307 of the Coastal Zone Management Act.
This proposed rule has been determined not to be significant under
Executive Order (E.O.) 12866.
An initial regulatory flexibility analysis (IRFA) was prepared, as
required by section 603 of the Regulatory Flexibility Act (RFA). 5
U.S.C. 601 et seq. The IRFA describes the economic impact this proposed
rule, if adopted, would have on small entities. A description of the
action, why it is being considered, and the legal basis for this action
are contained in the preamble of this proposed rule. A summary of the
analysis follows. A copy of this analysis is available from NMFS (see
ADDRESSES).
In summary, the purpose for this proposed rule is to implement the
requirements of Sec. 229.32(g)(1) and to reduce serious injury and
mortality to North Atlantic right whales incidental to commercial
gillnet fishing in the Southeast U.S. Atlantic Ocean, in response to
the death of a right whale calf in January 2006. The implemented
provisions would include expanding the Southeast U.S. Restricted area,
with certain exemptions. The Marine Mammal Protection Act and the
Endangered Species Act provide the statutory bases for the proposed
rule.
No duplicative, overlapping, or conflicting Federal rules have been
identified. No new reporting or recordkeeping requirements are
associated with the proposed rule.
Commercial fishing vessels that operate in the proposed expanded
southeast U.S. restricted area from November 15 through April 15
(waters off South Carolina, Georgia, and northeast Florida) and use
gillnets would be affected by this rule. This rule is expected to have
greatest impact on gillnet fishermen targeting whiting, shark and
Spanish mackerel. Six to eight shark gillnet fishing vessels and up to
56 finfish gillnet fishing vessels, will be affected by this rule. The
Small Business Administration defines a small entity in the commercial
fishing sector as a firm that is independently owned and operated, is
not dominant in its field of operation, and has average annual gross
receipts not in excess of $4 million (2002 NAICS 11411). It is assumed
that all of the affected vessels represent small businesses. All of the
vessels that are engaged in shark and finfish gillnet fishing in the
proposed expanded southeast U.S. restricted area are small businesses.
This proposed rule would affect all of those businesses. Consequently,
it will affect a substantial number of small businesses.
The proposed action would prohibit gillnet fishing in a northern
zone of the proposed expanded restricted area, during the restricted
period, without exemptions. The proposed action would reduce average
annual shark gillnet revenue in the northern zone by $4,029. Total
shark gillnet landings in Florida north of 29[deg]00' N lat. from
November 1 through April 30 varied from zero to 38,229 lbs during the
years from 2000 through 2004, with an annual average of 12,768 lbs
(5,804 kg) and a dockside value of $7,712. These averages represent an
over-estimation of losses from reduced shark gillnet landings in
Florida from the northern zone because the restricted period is
actually from November 15 through April 15, not November 1 through
April 30. If November landings during the restricted period represent
50 percent of all November landings, and if April landings during the
restricted period represent 50 percent of all April landings, the
proposed action would reduce total shark gillnet landings in Florida
from the northern zone by $3,856 and 6,384 lbs (2,902 kg). The proposed
action would reduce average annual shark gillnet landings by 6,636 lbs
(3,016 kg) and average annual shark gillnet revenue in the northern
zone (South Carolina and Florida combined) by $4,029 ($3,856 from
Florida plus $173 from South Carolina), assuming not all November and
April landings occur in the restricted period.
The proposed action would prohibit gillnet fishing during the
restricted period in a southern zone of the proposed expanded
restricted area with certain limited exemptions for shark and Spanish
mackerel gillnet fishing. The southern zone is composed of Trip Ticket
area 732, which lies entirely in Florida waters. This rule would have
no effect on shark gillnet revenues in the southern zone because
current shark gillnet operations in the southern zone are substantially
the same as the requirements for the exemptions proposed in this
action.
The average annual shark gillnet revenue lost as a result of this
proposed rule is $4,029 ($4,029 from the northern zone plus $0 from the
southern zone), which represents about 2 percent of annual shark
gillnet revenues from the combined zones. As six to eight shark
[[Page 66493]]
gillnet fishing vessels would be affected by this proposed rule, each
shark gillnet fishing vessel would lose on average from $504 to $672
annually from lost shark landings.
It is estimated that Spanish mackerel gillnet fishermen in the
northern zone would lose on average 1,509 lbs (686 kg) of Spanish
mackerel with an average dockside value of $1,159 annually. During the
6-month period from November 1 through April 30 from 2000 through 2004,
an average of 102 lbs (46 kg) of Spanish mackerel with a dockside value
of $86 were landed from gillnets and caught in the northern zone. In
the first four months of 2005, however, 1,509 lbs (686 kg) with a
dockside value of $1,159 were landed from gillnets. It is possible
that, since 2005, Spanish mackerel fishers are increasingly targeting
the species in the northern zone during these 5 months. Consequently,
November through December 2004 and January through April 2005 landings
of Spanish mackerel were used to estimate losses of gillnet landings to
Spanish mackerel fishers in the northern zone, although this method may
significantly over-estimate losses to Spanish mackerel gillnet fishers
who operate in the northern zone. These northern zone landings
represent less than half a percent of annual Spanish mackerel landings
in the southeast U.S. restricted area.
Annual losses to Spanish mackerel gillnet fishers in the southern
zone would be $2,928 on average. Spanish mackerel gillnet fishers will
not be able to take the species in the southern zone during the months
of January and February. From 2000 through 2004, landings during these
2 months averaged 5,442 lbs (2,474 kg), with a dockside value of
$2,928, annually. This analysis assumes Spanish mackerel gillnet
fishers will not experience any losses of landings during the other
months of the restricted period because exemptions to this alternative
are consistent with existing Spanish mackerel gillnet operations during
these other months. Consequently, annual losses to Spanish mackerel
gillnet fishers in the southern zone would be $2,928 (5,442 lbs; 2,474
kg). These southern zone landings represent about 1.5 percent of annual
Spanish mackerel gillnet landings in the southeast U.S. restricted
area.
The combined loss of landings from the northern and southern zones
of Spanish mackerel would be 6,951 lbs (3,160 kg; $4,087). This
combined loss represents approximately 2 percent of lbs annually landed
in the southeast U.S. restricted area.
Average annual losses of king whiting from the northern zone would
be 356,604 lbs (162,093 kg) with a dockside value of $276,824. Average
annual landings of king whiting during the 5-month period between
November through April from 2000 through 2004 vary significantly from
landings during the first 4 months of 2005. Consequently, November and
December 2004 figures and the January through April 2005 figures are
used to estimate average annual losses of gillnet landings of king
whiting from the northern zone. If all November and April landings
occur within the restricted period, average annual losses of king
whiting landings in the northern zone would be 419,418 lbs with a value
of $327,053. However, if November and April landings are evenly
distributed throughout those months, estimated loss of landings during
the restricted period would represent 50 percent of November and April
landings, respectively (since the restricted period begins November 15
and ends April 15), average annual losses of king whiting from the
northern zone would be 356,604 lbs (162,093 kg) with a dockside value
of $276,824.
Average annual losses of king whiting landings from the southern
zone would be 4,255 lbs (1,934 kg) with a dockside value of $4,318.
During the above 4-month period from 2000 through 2004, an average of
4,255 lbs (1,934 kg) of king whiting were landed in the southern zone
with a dockside value of $4,318, annually. Figures from January 1
through March 31, 2005, do not suggest that king whiting gillnet
fishers are increasingly targeting the species in the southern zone.
The combined loss of king whiting landings from the northern and
southern zones would be 360,859 lbs (164,027 kg; $281,142). The
combined loss represents at least 70 percent of lbs landed annually in
the southeast U.S. restricted area.
Three other alternative operational measures were considered in
this proposed rulemaking. Alternative 1 was a no-action alternative,
rejected because it would not address the risk of serious injury or
mortality posed by commercial gillnet fishing to right whales in their
calving area evidenced by the 2006 death of a right whale calf.
Alternative 2 would implement permanent limited operational
restrictions in the expanded southeast U.S. restricted area during the
current restricted period of November 15 through March 31, annually.
The enactment of operational restrictions, as detailed in section 2.2.2
of the EA, would provide a reduction in the likelihood of gillnet gear
interactions with endangered right whales, reducing the risk of serious
injury and mortality. This alternative would also result in a reduction
in the risk of injury or mortality to other species that may become
incidentally entangled in gillnet gear. However, the restrictions would
only reduce and not eliminate the threat of serious injury and
mortality of right whales from gillnet.
Alternative 3 would implement the immediate closure of the expanded
southeast U.S. restricted area to all gillnets from November 15 through
March 31 annually on a permanent basis. No exemptions would be provided
during the closure. Losses of gillnet landings caused by Alternative 3
would be equal to losses of gillnet landings caused by Alternative 2
plus losses of king whiting gillnet landings. Alternative 2 would
reduce gillnet dockside revenues by $84,506 ($16,944, $50,447, $642,
$4,742, and $11,731 from reduced landings of shark, Spanish mackerel,
King mackerel, Bluefish, and ``Other Species'', respectively). Average
annual losses to king whiting fishers caused by Alternative 3 would be
348,301 lbs (158,319 kg), with dockside revenues of $271,696. Combined,
Alternative 3 would result in losses of dockside revenue of $356,202.
NMFS does not believe the proposed action contains policies with
federalism implications under E.O. 13132. However, the Assistant
Secretary for Legislative and Intergovernmental Affairs will provide
notice of the proposed action and request for comments to the
appropriate official(s) of the states adjacent to the proposed expanded
Southeast U.S. Restricted Area.
This action does not contain a collection-of-information
requirement for purposes of the Paperwork Reduction Act (PRA). Any
information collection requirements subject to PRA and related to VMS
or observer requirements were addressed in previous rulemakings.
List of Subjects in 50 CFR Part 229
Administrative practice and procedure, Confidential business
information, Fisheries, Marine mammals, Reporting and recordkeeping
requirements.
Dated: November 8, 2006.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For reasons set out in the preamble, 50 CFR part 229 is proposed to
be amended as follows:
[[Page 66494]]
PART 229--AUTHORIZATION FOR COMMERCIAL FISHERIES UNDER THE MARINE
MAMMAL PROTECTION ACT OF 1972
1. The authority citation for part 229 is revised to read as
follows:
Authority: 16 U.S.C. 1361 et seq.; Sec. 229.32(f) also issued
under 16 U.S.C. 1531 et seq.
2. In Sec. 229.2, the definitions of ``Shark gillnetting,''
``Strikenet or to fish with strikenet gear,'' and ``To strikenet for
sharks'' are removed.
3. In Sec. 229.32, paragraphs (f)(1)(i), (f)(3), (f)(4), and
(g)(1) are revised to read as follows:
Sec. 229.32 Atlantic large whale take reduction plan regulations.
* * * * *
(f) * * *
(1) * * *
(i) Southeast U.S. Restricted Area. The Southeast U.S. Restricted
Area consists of the area bounded by straight lines connecting the
following points in the order stated from south to north, unless the
Assistant Administrator changes that area in accordance with paragraph
(g) of this section:
------------------------------------------------------------------------
Point N. Lat. W. Long.
------------------------------------------------------------------------
SERA1 27[deg]51' (\1\)
SERA2 27[deg]51' 80[deg]00'
SERA3 32[deg]00' 80[deg]00'
SERA4 32[deg]36' 78[deg]52'
SERA5 32[deg]51' 78[deg]36'
SERA6 33[deg]15' 78[deg]24'
SERA7 33[deg]27' 78[deg]04'
SERA8 (\2\) (\2\)
------------------------------------------------------------------------
\1\Florida shoreline.
\2\Shoreline at South Carolina/North Carolina state border.
(A) Southeast U.S. Restricted N. The Southeast U.S. Restricted Area
N consists of the Southeast U.S. Restricted Area from 29[deg]00' N.
lat. northward.
(B) Southeast U.S. Restricted Area S. The Southeast U.S. Restricted
Area S consists of the Southeast U.S. Restricted Area southward of
29[deg]00' N. lat.
* * * * *
(3) Observer requirement. No person may fish with gillnet with
webbing of 5 inches (12.7 cm) or greater stretched mesh in the
southeast U.S. observer area from November 15 through April 15 of the
following year north of 29[deg]00' N. lat. and from December 1 to March
31 of the following year south of 29[deg]00' N. lat. unless the
operator of the vessel calls the Southeast Fisheries Science Center
Panama City Laboratory in Panama City, FL, not less than 48 hours prior
to departing on any fishing trip in order to arrange for observer
coverage. If the Panama City Laboratory requests that an observer be
taken on board a vessel during a fishing trip at any time from November
15 through April 15 of the following year north of 29[deg]00' N. lat.
and from December 1 to March 31 of the following year south of
29[deg]00' N. lat., no person may fish with such gillnet aboard that
vessel in the southeast U.S. observer area unless an observer is on
board that vessel during the trip.
(4) Restricted periods, closure, and exemptions.
(i) Restricted periods. The restricted period for the Southeast
U.S. Restricted Area N is from November 15 through April 15, and the
restricted period for the Southeast U.S. Restricted Area S is from
December 1 through March 31, unless the Assistant Administrator revises
the restricted period in accordance with paragraph (g) of this section.
(ii) Closure for gillnets.
(A) Except as provided under paragraph (f)(4)(v) of this section,
fishing with or possessing gillnet in the southeast U.S. restricted
area N during the restricted period is prohibited.
(B) Except as provided under paragraph (f)(4)(iii) of this section
and (f)(4)(iv) of this section, fishing with gillnet in the southeast
U.S. restricted area S during the restricted period is prohibited.
(iii) Exemption for Southeastern U.S. Atlantic shark gillnet
fishery. Fishing with gillnet for sharks with webbing of 5 inches (12.7
cm) or greater stretched mesh is exempt from the restrictions under
paragraph (f)(4)(ii)(B) of this section if:
(A) The 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) and is on
board;
(C) No net is set at night or when visibility is less than 500
yards (460 m);
(D) The gillnet is removed from the water before night or
immediately if visibility decreases below 500 yards (460 m);
(E) Each set is made under the observation of a spotter plane;
(F) No gillnet is set within 3 nautical miles (5.6 km) of a right,
humpback, or fin whale; and
(G) The 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.
(iv) Exemption for Southeast Atlantic gillnet fishery. Fishing with
gillnet for Spanish mackerel is exempt from the restrictions under
paragraph (f)(4)(ii)(B) of this section from December 1 to December 31,
and from March 1 to March 31 if:
(A) Gillnet mesh size is between 3.5 inches (8.9 cm) and 4 7/8
inches (12.4 cm) stretched mesh;
(B) A valid commercial vessel permit for Spanish mackerel has been
issued to the vessel in accordance with Sec. 622.4(a)(2)(iv) 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 .25 inch (.64 cm);
(F) No person may soak a gillnet for more than 1 hour. The soak
period begins when the first mesh is placed in the water and ends
either when the first mesh is retrieved back on board the vessel or the
gathering of the gillnet is begun to facilitate retrieval on board the
vessel, whichever occurs first; providing that, once the first mesh is
retrieved or the gathering is begun, the retrieval is continuous until
the gillnet is completely removed from the water;
(G) No net is set at night or when visibility is less than 500
yards (1,500 ft, 460 m);
(H) The gillnet is removed from the water before night or
immediately if visibility decreases below 500 yards (1,500 ft, 460 m);
(I) No net is set within 3 nautical miles (5.6 km) of a right,
humpback, or fin whale; and
(J) 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.
(v) Exemption for vessels in transit with gillnet aboard.
Possession of gillnet aboard a vessel in transit is exempt from the
restrictions under paragraph (f)(4)(ii)(A) of this section 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.
(g) * * *
(1) Entanglements in critical habitat or restricted areas. If a
serious injury or mortality of a right whale occurs in the Cape Cod Bay
critical habitat from January 1 through May 15, the Great South Channel
Restricted Area from April 1 through June 30, the Southeast U.S.
Restricted Area N from November
[[Page 66495]]
15 through April 15, or the Southeast U.S. Restricted Area S from
December 1 through March 31 as the result of an entanglement by lobster
or gillnet gear allowed to be used in those areas and times, the
Assistant Administrator shall close that area to that gear type (i.e.,
lobster trap or gillnet) for the rest of that time period and for that
same time period in each subsequent year, unless the Assistant
Administrator revises the restricted period in accordance with
paragraph (g)(2) of this section or unless other measures are
implemented under paragraph (g)(2) of this section.
* * * * *
[FR Doc. 06-9206 Filed 11-9-06; 2:35 pm]
BILLING CODE 3510-22-S