Federal Register / Vol. 71, No. 220 / Wednesday, November 15, 2006 / Rules and Regulations 66469 

of each side of the square or rectangle 

formed by the intersecting chains is less 

than or equal to 14 inches (35.5 cm). 

The chains must be connected to each 

other with a shackle or link at each 

intersection point. The measurement 

must be taken along the chain, with the 

chain held taut, and include one shackle 

or link at the intersection point and all 

links in the chain up to, but excluding, 

the shackle or link at the other 

intersection point. 

(ii) Any vessel that harvests sea 

scallops in or from the waters described 

in (d)(11)(i) and that is required to have 

a Federal Atlantic sea scallop fishery 

permit must have the chain mat 

configuration installed on all dredges 

for the duration of the trip. 

[FR Doc. E6–19304 Filed 11–14–06; 8:45 am] 

BILLING CODE 3510–22–S 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 229 

[Docket No. 061107293–6293–01; I.D. 

103006B] 

RIN 0648–AU95 

Right Whale Protection; Southeast U.S. 

Gillnet Closure 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Emergency rule. 

SUMMARY: NMFS is prohibiting gillnet 

fishing or gillnet possession in Atlantic 

Ocean waters west of 80°00′ W. long. 

between 29°00′ N. lat. (just south of New 

Smyrna Beach, Fla.) and 32°00′ N. lat. 

(the approximate state boundary 

between Georgia and South Carolina) 

and within 35 nautical miles of the 

South Carolina coast. An exemption to 

the prohibition on the possession of 

gillnet gear is provided for transiting 

through this area if gear is stowed in 

accordance with this rule. NMFS is 

taking this action to prevent a 

significant risk to the well being of 

endangered right whales from 

entanglement in gillnet gear in the core 

right whale calving area during the 

calving season. 

DATES: This action is effective 

November 15, 2006 through April 15, 

2007. 

ADDRESSES: Copies of the 

Environmental Assessment (EA) 

prepared in association with this 

emergency rule may be obtained from 

the persons listed below under the FOR

FURTHER INFORMATION CONTACT section. 

FOR FURTHER INFORMATION CONTACT: 

Laura Engleby, 727–551–5791, Barb 

Zoodsma, 904–321–2806, or Nancy 

Young, 727–551–5607. 

Electronic Access: Background 

documents, including the EA may be 

downloaded at http:// 

sero.nmfs.noaa.gov/ 

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 as 

few as 300 individuals, making it one of 

the most imperiled of the endangered 

large whale populations in the world 

(NMFS 2005). Deaths from human 

related activities are believed to be the 

principal reason for a declining adult 

survival rate (Caswell et al., 1999) and 

the lack of recovery in 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 (Waring et al., 2006). 

Fraus 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. From 1999–2003, Waring et 

al. (2006) documented 31 reports of 

entanglements in commercial fishing 

gear 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. 

The northern right whale has been 

listed as endangered under the 

Endangered Species Act (ESA) since the 

ESA’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°15′ N. lat. and 30°15′ N. lat. from the 

coast out 15 nautical miles (27.8 km), 

and the coastal waters between 30°15′ 

N. lat. and 28°00′ N. lat. from the coast 

out 5 nautical miles (9.3 km) (§ 226.203 

of this chaper). Coastal Atlantic waters 

off the southeastern U.S. are the North 

Atlantic right whale’s only known and 

likely only calving grounds. During the 

winter calving season, these waters 

support the entire population’s calving 

females and their calves, plus, in some 

years, a large proportion of the 

remainder of the population. 

As required by ESA section 4(f)(1), 

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, 

‘‘the most immediate need for the North 

Atlantic right whale is to reduce or 

eliminate human-related deaths and 

injuries’’ and that ‘‘direct and indirect 

impacts from human activities -mostly 

in the form of vessel collisions and 

entanglement in fishing gear -almost 

certainly have contributed to a lack of 

recovery in the North Atlantic. Action is 

urgently needed to reduce the frequency 

of collisions with ships and fishing gear 

entanglements, and thus to improve the 

survival of right whales’’ (NMFS 2005). 

Therefore, 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). 

To date, NMFS has been working to 

address right whale serious injury and 

mortality in commercial fishing gear 

primarily through its authority under 

the Marine Mammal Protection Act 

(MMPA). Pursuant to MMPA section 

118, NMFS has developed an Atlantic 

Large Whale Take Reduction Plan 

(ALWTRP) and implementing 

regulations (§ 229.32 of this chapter) to 

reduce serious injury and mortality of 

right whales resulting from commercial 

fisheries including gillnet fisheries. 

The ESA provides authority to NMFS 

for multiple mechanisms to achieve the 

Act’s overall purpose of conserving 

threatened and endangered species. 

Section 4(b)(7) of the ESA (16 U.S.C. 

1533(b)(7)) authorizes NMFS to issue 

regulations, not subject to notice and 

comment, regarding emergencies posing 

a significant risk to the well-being of 

listed species. Such regulations may 

take effect immediately upon 

publication in the Federal Register and 

may be effective up to 240 days. 

Recent Events 

On January 22, 2006, a dead right 

whale calf was found floating off 

Jacksonville Beach, Florida. The calf 

was necropsied by a specialized large 

whale necropsy team and evidence of 

recent entanglement in gillnet gear was 

clearly documented. NMFS determined, 

based on best available information and 


rmajette on PROD1PC67 with RULES1
66470 Federal Register / Vol. 71, No. 220 / Wednesday, November 15, 2006 / Rules and Regulations 

discussions with scientific investigators, 

that the right whale’s entanglement in 

gillnet gear ultimately led to the death 

of the animal. As a result of these 

findings, NMFS enacted temporary 

restrictions on gillnet fishing 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 emergency regulation 

was necessary to protect right whales 

from further serious injury or mortality 

due to entanglement in gillnet gear. 

NMFS then collected and analyzed 

additional information to determine the 

scope of permanent protective measures 

as required by the regulations. As part 

of this process, NMFS convened a 

meeting of the Atlantic Large Whale 

Take Reduction Team’s Mid-Atlantic/ 

Southeast Subgroup to seek input 

regarding future management options to 

protect right whales from additional 

serious injury and mortality from 

gillnetting. As a result, NMFS has 

prepared and published a Notice of 

Proposed Rulemaking (RIN 0648–AU90) 

pertaining to gillnet fishing and right 

whale protection in the southeast U.S. 

in the ‘‘Proposed Rules’’ section of 

today’s Federal Register and is seeking 

public comment. 

Significant Risk to the Right Whales’

Well-Being 

A review of the Right Whale Sightings 

Database, curated by the University of 

Rhode Island, indicates that the vast 

majority of right whale mother/calf pairs 

have been observed along Florida, 

Georgia, and South Carolina. Right 

whale mother/calf pairs off Florida and 

Georgia have been typically observed in 

waters west of 80°00′ W long. Right 

whales have been visually (McLellan et 

al., 2001, Glass et al., 2005) and 

acoustically (Clark, 2006) detected in 

waters up to 30 miles offshore of South 

Carolina. Predictive models, based on 

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. 

Suitable environmental conditions for 

calving right whales are typically found 

off South Carolina during winter 

months to distances of 35 nautical miles 

(64.8 km). Right whales occur in the 

area from South Carolina to Florida, 

north of 29°00′ N lat., from midNovember through mid-April. Right 

whale mother/calf pairs have been 

observed south of 29°00′ N lat., but in 

this area are often found close to shore, 

in Florida state waters, where state 

regulations prohibit gillnet fishing. 

In 2004, a small group of gillnet 

fishermen targeting whiting began using 

the area off Jacksonville, Florida, near 

the location where the entangled, dead 

right whale calf was first reported in 

January 2006. These fishermen use large 

amounts of net with long soak times, 

and individual nets are left untended, 

either overnight or while other nets are 

being fished. Recently, NMFS has 

learned of the expressed intent of 

fishermen to target whiting with gillnets 

off Jacksonville, Florida, until such 

activity is prohibited. NMFS has also 

been alerted to the presence of 

additional shark gillnet fishermen that 

are working out of Fernandina Beach, 

Florida, and Daytona, Florida. Because 

of this expansion of effort and new 

method of gillnet fishing in the 

Southeast Atlantic, the new information 

on shark gillnetting effort, and the 

documented mortality of a right whale 

calf as a result of entanglement in gillnet 

fishing gear, NMFS is concerned that 

there is substantial risk of additional 

gillnet entanglements and resultant 

serious injury or mortality when right 

whales return to their southeast calving 

grounds this year. Because of the critical 

status of endangered right whales, the 

vulnerability of mothers and calves, and 

the negative impact any additional 

human-caused mortality would have on 

the species’ ability to survive and 

recover, NMFS believes that continued 

gillnet fishing as currently practiced in 

the southeast calving grounds 

constitutes a significant risk to the wellbeing of endangered right whales. 

NMFS is publishing a proposed rule 

in this Federal Register, which would 

address, on a long-term basis, the risk to 

right whales from the increase in gillnet 

effort in the right whale’s only known 

calving area. NMFS intends to ensure 

full public participation, seek 

comments, and evaluate possible 

exemptions to a complete gillnet 

closure, before finalizing any permanent 

rule. Because of this process, a 

permanent rule is not likely to be in 

effect until early 2007. However, right 

whales are expected to begin arriving in 

the core calving area November 15. 

Therefore, to ensure adequate protection 

for right whales, particularly mothers 

and calves during the calving season, 

from gillnet fishing in the calving area 

that NMFS believes poses a significant 

risk to the well-being of right whales, 

NMFS is implementing this emergency 

rule. 

Prohibition on Gillnet Fishing and 

Possession 

Pursuant to 16 U.S.C. 1533(4)(b)(7), 

NMFS has determined that continued 

gillnet fishing activity in the core right 

whale calving area during the calving 

season constitutes a significant risk to 

the well-being of endangered right 

whales. NMFS has determined that this 

emergency rule prohibiting gillnet 

fishing and possession in the core 

calving area is necessary to prevent 

additional takes of right whales until a 

final, permanent rule can be 

implemented. 

NMFS has determined that the core 

right whale calving area requiring 

emergency gillnet prohibitions is the 

Atlantic Ocean waters west of 80°00′ W. 

longitude between 29°00′ N. lat. (just 

south of New Smyrna Beach, Fla.) and 

32°00′ N. lat. (the area of the state 

boundary between Georgia and South 

Carolina) and the Atlantic Ocean waters 

within 35 nautical miles of the South 

Carolina coast. This area is specifically 

defined as the area bounded by straight 

lines connecting the following points in 

the order stated from south to north. 

Point N. Lat. W. Long. 

SE1 29°00′ (1) 

SE2 29°00′ 80°00′ 

SE3 32°00′ 80°00′ 

SE4 32°36′ 78°52′ 

SE5 32°51′ 78°36′ 

SE6 33°15′ 78°24′ 

SE7 33°27′ 78°04′ 

SE8 (2) (2) 

1Florida shoreline 

2Shoreline at South Carolina/North Carolina 

state border. 

Specifically, this emergency rule 

prohibits fishing with or possessing 

gillnet in the core right whale calving 

area as defined above from November 

15, 2006, through April 15, 2007; the 

Right Whale Sightings Database, curated 

by the University of Rhode Island, 

indicates that the vast majority of right 

whale sightings in their core calving 

area occur between November 15 and 

April 15. Possession of gillnet aboard a 

vessel in transit through this core area 

is exempt from the restrictions 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. This 

emergency rule is in effect from 0001, 

hours November 15, 2006, through 

2400, hours April 15, 2007, or until the 

proposed rule pertaining to gillnet 

fishing and right whale protection 

becomes effective through the 

publication of a final rule or is 

withdrawn. 

Fisheries expected to be affected by 

this rulemaking include the 

Southeastern U.S. Atlantic shark gillnet 


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Federal Register / Vol. 71, No. 220 / Wednesday, November 15, 2006 / Rules and Regulations 66471 

fishery and the Southeast Atlantic 

gillnet fishery as described in the 

current MMPA List of Fisheries (71 FR 

48802, August 22, 2006). NMFS believes 

there are approximately six to eight 

active vessels in the Southeastern U.S. 

Atlantic shark gillnet fishery. The 

effects of the emergency rule on this 

fishery are anticipated to be small 

because during the period covered by 

the emergency rule, most of the fishing 

activity typically occurs south of 29°00′ 

N lat., where the fishery will continue 

to operate under existing regulations, 

unaffected by this emergency rule. 

The Southeast Atlantic gillnet fishery 

targets coastal migratory finfish species 

such as Spanish mackerel, whiting, and 

bluefish, but also lands species such as 

King mackerel, that are caught 

incidentally to fishing operations. 

NMFS believes that up to 56 vessels 

participate in the Southeast Atlantic 

gillnet fishery, annually. The primary 

species targeted is Spanish mackerel; 

however, these landings primarily occur 

south of 29°00′ N lat., where the fishery 

will continue to operate under existing 

regulations, unaffected by this 

emergency rule. Fishers targeting 

whiting will be most affected by this 

rulemaking. During the ALWTRT’s SE 

Subgroup meeting, fishers reported that 

in late February 2004, approximately 8 

vessels began fishing for whiting using 

sink gillnet gear off Northeast Florida 

and that in 2004 and 2005, 15 vessels 

are estimated to have participated in 

this activity. In 2005, whiting catch in 

the affected area was 356,604 pounds 

(161,753 kg) with a dockside value of 

$276,824. 

This restriction has been announced 

on the NOAA weather channel, in 

newspapers, and other media. Gillnet 

fishermen may also call (727)824–5312 

for updated information on gillnet 

restrictions along the Atlantic Coast of 

the Southeast U.S. 

Literature Cited 

Caswell, H., M. Fujiwara, and S. 

Brault. 1999. Declining survival 

probability threatens the North Atlantic 

right whale. Proc. Nat. Acad. Sci. 

96:3308 3313. 

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. 

Glass, Allison H., Cynthia R. Taylor, 

and David M. Cupka. 2005. Monitoring 

North Atlantic right whales off the 

coasts of South Carolina and Georgia 

2004–2005. Final report to National Fish 

and Wildlife Foundation. 16 pp. 

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. 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 

Pursuant to section 4(b)(7) of the ESA, 

NMFS has determined that this action is 

necessary to prevent a significant risk to 

the well-being of endangered right 

whales. 

An Environmental Assessment for 

this action was prepared and is 

available from the agency upon request. 

As prior notice and an opportunity for 

public comment are not required to be 

provided for this rule pursuant to 16 

U.S.C. 1533(4)(b)(7), the analytical 

requirements of 5 U.S.C. 601 et seq., are 

not applicable. 

As required by 16 U.S.C. 

1533(4)(b)(7)(B), NMFS has notified 

marine fisheries officials in Florida, 

Georgia, and South Carolina of this 

emergency rulemaking. 

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 was 

submitted on October 20, 2006, for 

review by the responsible state agencies 

under section 307 of the CZMA. 

However, NMFS will follow the 

provisions at 15 CFR 930.32(b) 

authorizing a deviation from full 

consistency for emergencies, if the state 

concurrences are not received before the 

effective date of this rule. 

This action has been determined to be 

not significant under Executive Order 

12866. 

This action does not contain a 

collection-of-information requirement 

for purposes of the Paperwork 

Reduction Act. 

Authority: 16 U.S.C 1533(b)(7). 

Dated: November 8, 2006. 

Samuel D. Rauch III, 

Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service. 

[FR Doc. 06–9205 Filed 11–9–06; 2:35 pm] 

BILLING CODE 3510–22–S 


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