66482 Federal Register / Vol. 71, No. 220 / Wednesday, November 15, 2006 / Proposed Rules 

a person is not required to respond to 

a collection of information by a Federal 

agency unless the collection displays a 

valid OMB control number. Since it 

would only delay the effective date of a 

final rule, if made final, this NPRM 

would not impose any new collection of 

information requirements for which a 5 

CFR part 1320 clearance must be 

obtained. 

D. National Environmental Policy Act 

We have analyzed this proposed rule 

for the purposes of the National 

Environmental Policy Act. We have 

determined that implementation of this 

action would not have any significant 

impact on the quality of the human 

environment. 

E. Executive Order 13132, Federalism 

This proposed rule would not have 

substantial direct effects on the States, 

on the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132. 

F. Civil Justice Reform 

This proposed rule would not have 

any retroactive effect. A petition for 

reconsideration or other administrative 

proceedings are not required before 

parties may file suit in court. 

G. Unfunded Mandates Reform Act 

If made final, this proposed rule 

would not result in costs of $100 

million or more to either State, local, or 

tribal governments, in the aggregate, or 

to the private sector. Thus, this 

proposed rule is not subject to the 

requirements of sections 202 and 205 of 

the Unfunded Mandates Reform Act. 

Authority: 49 U.S.C. 322, 30111, 30115, 

30117, and 30166; delegations of authority at 

49 CFR 1.50 and 501.8. 

Issued on: November 7, 2006. 

Stephen R. Kratzke, 

Associate Administrator for Rulemaking. 

[FR Doc. E6–19198 Filed 11–14–06; 8:45 am] 

BILLING CODE 4910–59–P 

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. 

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°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: 

sewhalerule.comments@noaa.gov. 

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°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 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, 


rmajette on PROD1PC67 with PROPOSALS1
Federal Register / Vol. 71, No. 220 / Wednesday, November 15, 2006 / Proposed Rules 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, humancaused mortality and serious injury to 

northern right whales in the North 

Atlantic from fishery entanglements and 

ship strikes were estimated as an 

average of 2.6 whales per year (U.S. 

waters, 1.6; Canadian waters, 1.0) 

(Waring et al., 2006). A serious injury 

has been defined as ‘‘any injury that 

will likely result in mortality’’ (§ 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, nonendangered species, the minke whale. 

The ALWTRT submitted a report to 

NMFS on February 1, 1997, with 

recommendations to reduce the serious 

injury and mortality of Atlantic large 

whales; however, the ALWTRT did not 

reach consensus on some 

recommendations. Pursuant to the 

MMPA, NMFS then developed a final 

ALWTRP and implementing regulations 

based, in part, on the deliberations of 

the ALWTRT and considerable public 

input. An interim final rule was 

published on July 22, 1997 (62 FR 

39157), and a final rule was published 

February 16, 1999 (64 FR 7529), with an 

April 1, 1999, effective date. Since that 

time, the ALWTRP has been modified 

several times to include additional 

measures designed to reduce the serious 

injury and mortality of large whales in 

commercial fisheries. 

The ALWTRP, codified at 50 CFR 

229.32 of this chapter, relies on a 

combination of fishing gear 

modifications, gear handling and 

deployment requirements, and time/ 

area closures to reduce the risk of large 

whales becoming entangled in 

commercial fishing gear. Among these 

measures are specific provisions 

relevant to the risks posed to right, 

humpback, and fin whales by 

commercial fishing operations. 

Commercial fisheries operating in the 

Southeast U.S. that are regulated under 

the ALWTRP include the Southeastern 

U.S. Atlantic shark gillnet and the 

Southeast Atlantic gillnet fisheries (see 

List of Fisheries, 71 FR 48802, August 

22, 2006, for current descriptions). Both 

fisheries are classified as Category II 

fisheries because they have occasional 

serious injuries and mortalities of 

marine mammals; Category II fisheries 

are those for which the annual mortality 

and serious injury of a marine mammal 

stock is greater than 1 percent and less 

than 50 percent of the stock’s PBR (50 

CFR 229.2). 

The Southeastern U.S. Atlantic shark 

gillnet fishery uses large mesh (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 § 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 

(§ 622.4(a)(2)(iv) of this title), as part of 


rmajette on PROD1PC67 with PROPOSALS1
66484 Federal Register / Vol. 71, No. 220 / Wednesday, November 15, 2006 / Proposed Rules 

the FMP for Coastal Migratory Pelagic 

Resources (implementing regulations at 

50 CFR 622). Regulations for Spanish 

mackerel gillnet fishing at 

§ 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 

(§ 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 § 229.32(f)(1)(i) as the waters 

from 32°00′ N. lat. (near Savannah, GA) 

along the coast south to 27°51′ N. lat. 

(near Sebastian Inlet, FL) and extending 

from the shore eastward out to 80°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°46.5′ N. lat. (near West Palm 

Beach, FL) and extending from the shore 

eastward out to 80°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 § 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 

§ 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 

(§ 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 (§ 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 (§ 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, § 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°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°00′ N. lat., and December 1 through 

March 31 for the southeast U.S. 

restricted area south of 29°00′ N. lat. 

(3) Eliminating the 80°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 ALWTRPrelated 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 


rmajette on PROD1PC67 with PROPOSALS1
Federal Register / Vol. 71, No. 220 / Wednesday, November 15, 2006 / Proposed Rules 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 § 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 gillnetrelated state and Federal regulations. 

Various questions and issues raised 

during the meeting included: (1) the 

need to improve how right whale 

carcasses are handled, (2) the method by 

which new management measures 

would be implemented, (3) the lack of 

information regarding the precise mesh 

size of the entangling gillnet implicated 

in the calf’s death, (4) allegations that 

illegal gillnetting was responsible for 

the calf′s death, (5) the lack of resources 

to enforce management restrictions, (6) 

the inadequacy of regulations regarding 

fishing activities not previously 

considered, (7) the lack of scientific 

permits that allow tagging right whale 

mothers with calves in the Southeast 

U.S. to study, among other things, dive 

profiles, (8) the belief that, due to risk 

to the whales, gillnetting is not 

compatible with a right whale calving 

area, and (9) the fact that PBR for right 

whales is zero. 

The SE Subgroup discussed various 

gillnet fishery management options for 

the southeast U.S. restricted area, 

including using 29°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°00′ N. lat. The SE Subgroup 

recommended management measures 

for the southeast U.S. restricted area 

south of 29°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 

§ 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°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. 


rmajette on PROD1PC67 with PROPOSALS1
66486 Federal Register / Vol. 71, No. 220 / Wednesday, November 15, 2006 / Proposed Rules 

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°00′ N. lat. The SE Subgroup did not 

reach consensus on recommended 

management measures for the southeast 

U.S. restricted area north of 29°00′ N. 

lat. The subgroup recognized that the 

area north of 29°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°51.6′ W. long. with the southern and 

northern boundaries at 30°00′ N. lat. and 

31°27′ N. lat., respectively) (33 CFR part 

169); and an area from the shoreline out 

to a line drawn at approximately 81° 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°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 

§ 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 § 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 § 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 § 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°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 


rmajette on PROD1PC67 with PROPOSALS1
Federal Register / Vol. 71, No. 220 / Wednesday, November 15, 2006 / Proposed Rules 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 

§ 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°00′ 

N. lat. As indicated previously, 

fishermen participating in the SE 

Subgroup meeting indicated gillnet 

fishing practices north of 29°00′ N. lat. 

differed substantially from those south 

of 29°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°00′ N. lat. in November or 

in April. However, right whales have 

been sighted throughout the area north 

of 29°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° 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° W. long. to manage 

gillnet fishing activity as per 

§ 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°00′ N. lat. in November or in April; 

however, right whales have been sighted 

throughout the area north of 29°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°00′ N. lat., and to December 

1 through March 31 south of 29°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°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 § 229.32(g)(2) for the 

southeast U.S. restricted area north of 

29°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 § 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 


rmajette on PROD1PC67 with PROPOSALS1
66488 Federal Register / Vol. 71, No. 220 / Wednesday, November 15, 2006 / Proposed Rules 

expanded southeast U.S. restricted area 

during the restricted period. Thus, 

NMFS has determined, consistent with 

§ 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°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°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°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 

§ 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 § 229.32(g)(2)(i). The 

determination to allow for limited 

exemptions in the area south of 29°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°00′ N. lat. 

than when they are north of 29°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°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 § 229.32(g)(2)(i). 

This approach of prohibiting gillnet 

fishing in the southeast U.S. restricted 

area south of 29°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 

§ 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 

§ 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 § 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°00′ N. 

lat. during the restricted period, 

pursuant to § 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 § 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 

(§ 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 § 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°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 § 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 § 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 

§ 229.32(f)(4)(iv). 

NMFS has determined that the 

combination of: existing gear 

requirements at § 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°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°00′ N. lat. 

during the restricted period, thereby 


rmajette on PROD1PC67 with PROPOSALS1
Federal Register / Vol. 71, No. 220 / Wednesday, November 15, 2006 / Proposed Rules 66489 

warranting an exemption, pursuant to 

§ 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°00′ 

N. lat., pursuant to § 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°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 § 229.32(g)(2) from the 

recommended prohibition on gillnets in 

the southeast restricted area south of 

29°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 § 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°00′ N. lat. 

during December and March (when 

Spanish mackerel are likely in the 

southeast U.S. restricted area but south 

of 29°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 § 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°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°00′ N. lat. 

from December 1–31 and from March 1–

31, thereby warranting an exemption, 

pursuant to § 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°00′ N. lat. to date 

(landings south of 29°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°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°00′ N. lat. is 

Spanish mackerel. 

Transits with Gillnet in the Proposed 

Expanded Southeast U.S. Restricted 

Area North of 29°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°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, singleday trips when they are fishing and 

would have fish on board. NMFS 

believes that gillnet fishermen would 

not be transporting fish over long 

distances (i.e., through the southeast 

U.S. restricted area north of 29°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°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 


rmajette on PROD1PC67 with PROPOSALS1
66490 Federal Register / Vol. 71, No. 220 / Wednesday, November 15, 2006 / Proposed Rules 

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 § 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 § 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°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 § 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°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°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 § 229.2. NMFS′ 

proposed regulatory language more 

effectively addresses these definitions 

by including them where they are used 

in § 229.32(f). Similarly, NMFS is 

proposing to modify language at 

§ 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°00′ N. lat. and 

modify the period from December 1 to 

March 31 south of 29°00′ N. lat. to be 

consistent with the proposed change in 

the restricted period at § 229.32(f)(4)(i). 


rmajette on PROD1PC67 with PROPOSALS1
Federal Register / Vol. 71, No. 220 / Wednesday, November 15, 2006 / Proposed Rules 66491 

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 


rmajette on PROD1PC67 with PROPOSALS1EP15NO06.000</GPH>
66492 Federal Register / Vol. 71, No. 220 / Wednesday, November 15, 2006 / Proposed Rules 

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 seasurface 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 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 

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 § 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°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 


rmajette on PROD1PC67 with PROPOSALS1
Federal Register / Vol. 71, No. 220 / Wednesday, November 15, 2006 / Proposed Rules 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 overestimate 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: 


rmajette on PROD1PC67 with PROPOSALS1
66494 Federal Register / Vol. 71, No. 220 / Wednesday, November 15, 2006 / Proposed Rules 

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.; 

§ 229.32(f) also issued under 16 U.S.C. 1531 

et seq. 

2. In § 229.2, the definitions of ‘‘Shark 

gillnetting,’’ ‘‘Strikenet or to fish with 

strikenet gear,’’ and ‘‘To strikenet for 

sharks’’ are removed. 

3. In § 229.32, paragraphs (f)(1)(i), 

(f)(3), (f)(4), and (g)(1) are revised to read 

as follows: 

§ 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°51′ (1) 

SERA2 27°51′ 80°00′ 

SERA3 32°00′ 80°00′ 

SERA4 32°36′ 78°52′ 

SERA5 32°51′ 78°36′ 

SERA6 33°15′ 78°24′ 

SERA7 33°27′ 78°04′ 

SERA8 (2) (2) 

1Florida shoreline. 

2Shoreline 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°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°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°00′ N. lat. 

and from December 1 to March 31 of the 

following year south of 29°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°00′ N. lat. 

and from December 1 to March 31 of the 

following year south of 29°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 § 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 

§ 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 


rmajette on PROD1PC67 with PROPOSALS1
Federal Register / Vol. 71, No. 220 / Wednesday, November 15, 2006 / Proposed Rules 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 


rmajette on PROD1PC67 with PROPOSALS1