[Federal Register Volume 71, Number 220 (Wednesday, November 15, 2006)]
[Rules and Regulations]
[Pages 66469-66471]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-9205]


-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 229

[Docket No. 061107293-6293-01; I.D. 103006B]
RIN 0648-AU95


Right Whale Protection; Southeast U.S. Gillnet Closure

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Emergency rule.

-----------------------------------------------------------------------

SUMMARY: NMFS is prohibiting gillnet fishing or gillnet possession in 
Atlantic Ocean waters west of 80[deg]00' W. long. between 29[deg]00' N. 
lat. (just south of New Smyrna Beach, Fla.) and 32[deg]00' N. lat. (the 
approximate state boundary between Georgia and South Carolina) and 
within 35 nautical miles of the South Carolina coast. An exemption to 
the prohibition on the possession of gillnet gear is provided for 
transiting through this area if gear is stowed in accordance with this 
rule. NMFS is taking this action to prevent a significant risk to the 
well being of endangered right whales from entanglement in gillnet gear 
in the core right whale calving area during the calving season.

DATES: This action is effective November 15, 2006 through April 15, 
2007.

ADDRESSES: Copies of the Environmental Assessment (EA) prepared in 
association with this emergency rule may be obtained from the persons 
listed below under the FOR FURTHER INFORMATION CONTACT section.

FOR FURTHER INFORMATION CONTACT: Laura Engleby, 727-551-5791, Barb 
Zoodsma, 904-321-2806, or Nancy Young, 727-551-5607.
    Electronic Access: Background documents, including the EA may be 
downloaded at http://sero.nmfs.noaa.gov/

SUPPLEMENTARY INFORMATION:

Background

    The northern right whale (Eubalaena glacialis) was severely 
depleted by commercial whaling, and despite protection from commercial 
harvest since 1935 has not recovered. The North Atlantic population is 
believed to be as few as 300 individuals, making it one of the most 
imperiled of the endangered large whale populations in the world (NMFS 
2005). Deaths from human related activities are believed to be the 
principal reason for a declining adult survival rate (Caswell et al., 
1999) and the lack of recovery in the species. From 1999 to 2003, 
human-caused mortality and serious injury to northern right whales in 
the North Atlantic from fishery entanglements and ship strikes were 
estimated as an average of 2.6 whales per year (Waring et al., 2006). 
Fraus et al. (2005) indicated that the overall mortality rate for North 
Atlantic right whales increased between 1980 and 1998 to a level of at 
least four percent per year, a rate that is not sustainable. From 1999-
2003, Waring et al. (2006) documented 31 reports of entanglements in 
commercial fishing gear that resulted in 5 serious injuries and 3 
mortalities, for an average of 1.6 mortalities and serious injuries per 
year over that time period.
    The northern right whale has been listed as endangered under the 
Endangered Species Act (ESA) since the ESA's passage in 1973 (35 FR 
8495, June 2, 1970). In June 1994, NMFS designated three areas of the 
right whale's Atlantic range in the United States as critical habitat: 
(1) Great South Channel, (2) Cape Cod Bay, and (3) the southeastern 
U.S. (59 FR 28793, June 3, 1994). The southeastern U.S. critical 
habitat includes coastal waters between 31[deg]15' N. lat. and 
30[deg]15' N. lat. from the coast out 15 nautical miles (27.8 km), and 
the coastal waters between 30[deg]15' N. lat. and 28[deg]00' N. lat. 
from the coast out 5 nautical miles (9.3 km) (Sec.  226.203 of this 
chaper). Coastal Atlantic waters off the southeastern U.S. are the 
North Atlantic right whale's only known and likely only calving 
grounds. During the winter calving season, these waters support the 
entire population's calving females and their calves, plus, in some 
years, a large proportion of the remainder of the population.
    As required by ESA section 4(f)(1), NMFS developed a recovery plan 
for the northern right whale in 1991, which was revised and updated in 
2001 and 2005. The current recovery plan states, ``the most immediate 
need for the North Atlantic right whale is to reduce or eliminate 
human-related deaths and injuries'' and that ``direct and indirect 
impacts from human activities -mostly in the form of vessel collisions 
and entanglement in fishing gear -almost certainly have contributed to 
a lack of recovery in the North Atlantic. Action is urgently needed to 
reduce the frequency of collisions with ships and fishing gear 
entanglements, and thus to improve the survival of right whales'' (NMFS 
2005). Therefore, the development and implementation of strategies to 
modify fishing operations and gear to reduce the likelihood of 
entanglement, mitigate the effect of entanglements, enhance the 
possibility of disentanglement, and assess the effectiveness of such 
strategies is a priority one recovery task, i.e., an action that must 
be taken to prevent extinction or to prevent the species from declining 
irreversibly (NMFS 2005).
    To date, NMFS has been working to address right whale serious 
injury and mortality in commercial fishing gear primarily through its 
authority under the Marine Mammal Protection Act (MMPA). Pursuant to 
MMPA section 118, NMFS has developed an Atlantic Large Whale Take 
Reduction Plan (ALWTRP) and implementing regulations (Sec.  229.32 of 
this chapter) to reduce serious injury and mortality of right whales 
resulting from commercial fisheries including gillnet fisheries.
    The ESA provides authority to NMFS for multiple mechanisms to 
achieve the Act's overall purpose of conserving threatened and 
endangered species. Section 4(b)(7) of the ESA (16 U.S.C. 1533(b)(7)) 
authorizes NMFS to issue regulations, not subject to notice and 
comment, regarding emergencies posing a significant risk to the well-
being of listed species. Such regulations may take effect immediately 
upon publication in the Federal Register and may be effective up to 240 
days.

Recent Events

    On January 22, 2006, a dead right whale calf was found floating off 
Jacksonville Beach, Florida. The calf was necropsied by a specialized 
large whale necropsy team and evidence of recent entanglement in 
gillnet gear was clearly documented. NMFS determined, based on best 
available information and

[[Page 66470]]

discussions with scientific investigators, that the right whale's 
entanglement in gillnet gear ultimately led to the death of the animal. 
As a result of these findings, NMFS enacted temporary restrictions on 
gillnet fishing from February 15, 2006, through March 31, 2006 (71 FR 
8223, February 16, 2006), in accordance with the ALWTRP's implementing 
regulations at 50 CFR 229.32(g)(1). The emergency regulation was 
necessary to protect right whales from further serious injury or 
mortality due to entanglement in gillnet gear.
    NMFS then collected and analyzed additional information to 
determine the scope of permanent protective measures as required by the 
regulations. As part of this process, NMFS convened a meeting of the 
Atlantic Large Whale Take Reduction Team's Mid-Atlantic/Southeast 
Subgroup to seek input regarding future management options to protect 
right whales from additional serious injury and mortality from 
gillnetting. As a result, NMFS has prepared and published a Notice of 
Proposed Rulemaking (RIN 0648-AU90) pertaining to gillnet fishing and 
right whale protection in the southeast U.S. in the ``Proposed Rules'' 
section of today's Federal Register and is seeking public comment.

Significant Risk to the Right Whales' Well-Being

    A review of the Right Whale Sightings Database, curated by the 
University of Rhode Island, indicates that the vast majority of right 
whale mother/calf pairs have been observed along Florida, Georgia, and 
South Carolina. Right whale mother/calf pairs off Florida and Georgia 
have been typically observed in waters west of 80[deg]00' W long. Right 
whales have been visually (McLellan et al., 2001, Glass et al., 2005) 
and acoustically (Clark, 2006) detected in waters up to 30 miles 
offshore of South Carolina. Predictive models, based on aerial survey 
data collected off Florida and Georgia, suggest a strong relationship 
between the spatial distribution of calving right whales and water 
temperature and bathymetry. Suitable environmental conditions for 
calving right whales are typically found off South Carolina during 
winter months to distances of 35 nautical miles (64.8 km). Right whales 
occur in the area from South Carolina to Florida, north of 29[deg]00' N 
lat., from mid-November through mid-April. Right whale mother/calf 
pairs have been observed south of 29[deg]00' N lat., but in this area 
are often found close to shore, in Florida state waters, where state 
regulations prohibit gillnet fishing.
    In 2004, a small group of gillnet fishermen targeting whiting began 
using the area off Jacksonville, Florida, near the location where the 
entangled, dead right whale calf was first reported in January 2006. 
These fishermen use large amounts of net with long soak times, and 
individual nets are left untended, either overnight or while other nets 
are being fished. Recently, NMFS has learned of the expressed intent of 
fishermen to target whiting with gillnets off Jacksonville, Florida, 
until such activity is prohibited. NMFS has also been alerted to the 
presence of additional shark gillnet fishermen that are working out of 
Fernandina Beach, Florida, and Daytona, Florida. Because of this 
expansion of effort and new method of gillnet fishing in the Southeast 
Atlantic, the new information on shark gillnetting effort, and the 
documented mortality of a right whale calf as a result of entanglement 
in gillnet fishing gear, NMFS is concerned that there is substantial 
risk of additional gillnet entanglements and resultant serious injury 
or mortality when right whales return to their southeast calving 
grounds this year. Because of the critical status of endangered right 
whales, the vulnerability of mothers and calves, and the negative 
impact any additional human-caused mortality would have on the species' 
ability to survive and recover, NMFS believes that continued gillnet 
fishing as currently practiced in the southeast calving grounds 
constitutes a significant risk to the well-being of endangered right 
whales.
    NMFS is publishing a proposed rule in this Federal Register, which 
would address, on a long-term basis, the risk to right whales from the 
increase in gillnet effort in the right whale's only known calving 
area. NMFS intends to ensure full public participation, seek comments, 
and evaluate possible exemptions to a complete gillnet closure, before 
finalizing any permanent rule. Because of this process, a permanent 
rule is not likely to be in effect until early 2007. However, right 
whales are expected to begin arriving in the core calving area November 
15. Therefore, to ensure adequate protection for right whales, 
particularly mothers and calves during the calving season, from gillnet 
fishing in the calving area that NMFS believes poses a significant risk 
to the well-being of right whales, NMFS is implementing this emergency 
rule.

Prohibition on Gillnet Fishing and Possession

    Pursuant to 16 U.S.C. 1533(4)(b)(7), NMFS has determined that 
continued gillnet fishing activity in the core right whale calving area 
during the calving season constitutes a significant risk to the well-
being of endangered right whales. NMFS has determined that this 
emergency rule prohibiting gillnet fishing and possession in the core 
calving area is necessary to prevent additional takes of right whales 
until a final, permanent rule can be implemented.
    NMFS has determined that the core right whale calving area 
requiring emergency gillnet prohibitions is the Atlantic Ocean waters 
west of 80[deg]00' W. longitude between 29[deg]00' N. lat. (just south 
of New Smyrna Beach, Fla.) and 32[deg]00' N. lat. (the area of the 
state boundary between Georgia and South Carolina) and the Atlantic 
Ocean waters within 35 nautical miles of the South Carolina coast. This 
area is specifically defined as the area bounded by straight lines 
connecting the following points in the order stated from south to 
north.

------------------------------------------------------------------------
                    Point                        N. Lat.      W. Long.
------------------------------------------------------------------------
                  SE1                          29[deg]00'         (\1\)
                  SE2                          29[deg]00'    80[deg]00'
                  SE3                          32[deg]00'    80[deg]00'
                  SE4                          32[deg]36'    78[deg]52'
                  SE5                          32[deg]51'    78[deg]36'
                  SE6                          33[deg]15'    78[deg]24'
                  SE7                          33[deg]27'    78[deg]04'
                  SE8                               (\2\)         (\2\)
------------------------------------------------------------------------
\1\Florida shoreline
\2\Shoreline at South Carolina/North Carolina state border.

    Specifically, this emergency rule prohibits fishing with or 
possessing gillnet in the core right whale calving area as defined 
above from November 15, 2006, through April 15, 2007; the Right Whale 
Sightings Database, curated by the University of Rhode Island, 
indicates that the vast majority of right whale sightings in their core 
calving area occur between November 15 and April 15. Possession of 
gillnet aboard a vessel in transit through this core area is exempt 
from the restrictions if: All nets are covered with canvas or other 
similar material and lashed or otherwise securely fastened to the deck, 
rail, or drum; and all buoys, high flyers, and anchors are disconnected 
from all gillnets. No fish may be possessed aboard such a vessel in 
transit. This emergency rule is in effect from 0001, hours November 15, 
2006, through 2400, hours April 15, 2007, or until the proposed rule 
pertaining to gillnet fishing and right whale protection becomes 
effective through the publication of a final rule or is withdrawn.
    Fisheries expected to be affected by this rulemaking include the 
Southeastern U.S. Atlantic shark gillnet

[[Page 66471]]

fishery and the Southeast Atlantic gillnet fishery as described in the 
current MMPA List of Fisheries (71 FR 48802, August 22, 2006). NMFS 
believes there are approximately six to eight active vessels in the 
Southeastern U.S. Atlantic shark gillnet fishery. The effects of the 
emergency rule on this fishery are anticipated to be small because 
during the period covered by the emergency rule, most of the fishing 
activity typically occurs south of 29[deg]00' N lat., where the fishery 
will continue to operate under existing regulations, unaffected by this 
emergency rule.
    The Southeast Atlantic gillnet fishery targets coastal migratory 
finfish species such as Spanish mackerel, whiting, and bluefish, but 
also lands species such as King mackerel, that are caught incidentally 
to fishing operations. NMFS believes that up to 56 vessels participate 
in the Southeast Atlantic gillnet fishery, annually. The primary 
species targeted is Spanish mackerel; however, these landings primarily 
occur south of 29[deg]00' N lat., where the fishery will continue to 
operate under existing regulations, unaffected by this emergency rule. 
Fishers targeting whiting will be most affected by this rulemaking. 
During the ALWTRT's SE Subgroup meeting, fishers reported that in late 
February 2004, approximately 8 vessels began fishing for whiting using 
sink gillnet gear off Northeast Florida and that in 2004 and 2005, 15 
vessels are estimated to have participated in this activity. In 2005, 
whiting catch in the affected area was 356,604 pounds (161,753 kg) with 
a dockside value of $276,824.
    This restriction has been announced on the NOAA weather channel, in 
newspapers, and other media. Gillnet fishermen may also call (727)824-
5312 for updated information on gillnet restrictions along the Atlantic 
Coast of the Southeast U.S.

Literature Cited

    Caswell, H., M. Fujiwara, and S. Brault. 1999. Declining survival 
probability threatens the North Atlantic right whale. Proc. Nat. Acad. 
Sci. 96:3308 3313.
    Clark, Christopher W. 2006. Application of passive acoustic methods 
to detect migrating right whales in New England and Mid-Atlantic 
waters. Final Report to NMFS under Contract Number WC133F-04-CN-0060. 
71 pp.
    Glass, Allison H., Cynthia R. Taylor, and David M. Cupka. 2005. 
Monitoring North Atlantic right whales off the coasts of South Carolina 
and Georgia 2004-2005. Final report to National Fish and Wildlife 
Foundation. 16 pp.
    Kraus, S.D., M. W. Brown, H. Caswell, C.W. Clark, M. Fujiwara, P. 
K. Hamilton, R.D. Kenney, A.R. Knowlton, S. Landry, C.A. Mayo, W.A. 
McLellan, M.J. Moore, D.P. Nowacek, D.A. Pabst, A.J. Read, R.M. 
Rolland. 2005. North Atlantic Right Whales in Crisis. Science 22 July 
2005: Vol. 309. no. 5734, pp. 561 562.
    McLellan, William A., Kim Marks Lefler, Guen Jones, Kirk 
Hardcastle, and D. Ann Pabst. 2001. Winter right whale surveys from 
Savannah, Georgia to Chesapeake Bay, Virginia February-March 2001. 
Final Report to NMFS under Contract Number 40WCNF1A0249. 36 pp.
    NMFS. 2005. Recovery Plan for the North Atlantic Right Whale 
(Eubalaena glacialis). National Marine Fisheries Service, Silver 
Spring, MD.
    Waring, G.T., E. Josephson, C.P. Fairfield, and K. Maze-Foley 
(Eds.). 2006. U.S. Atlantic and Gulf of Mexico marine mammal stock 
assessments 2005. U.S. Dept. Commerce., NOAA Tech. Mem. NMFS-NE-194, 
346 pp.

Classification

    Pursuant to section 4(b)(7) of the ESA, NMFS has determined that 
this action is necessary to prevent a significant risk to the well-
being of endangered right whales.
    An Environmental Assessment for this action was prepared and is 
available from the agency upon request.
    As prior notice and an opportunity for public comment are not 
required to be provided for this rule pursuant to 16 U.S.C. 
1533(4)(b)(7), the analytical requirements of 5 U.S.C. 601 et seq., are 
not applicable.
    As required by 16 U.S.C. 1533(4)(b)(7)(B), NMFS has notified marine 
fisheries officials in Florida, Georgia, and South Carolina of this 
emergency rulemaking.
    NMFS determined that this action is consistent to the maximum 
extent practicable with the enforceable policies of the approved 
coastal management programs of Florida, Georgia, and South Carolina. 
This determination was submitted on October 20, 2006, for review by the 
responsible state agencies under section 307 of the CZMA. However, NMFS 
will follow the provisions at 15 CFR 930.32(b) authorizing a deviation 
from full consistency for emergencies, if the state concurrences are 
not received before the effective date of this rule.
    This action has been determined to be not significant under 
Executive Order 12866.
    This action does not contain a collection-of-information 
requirement for purposes of the Paperwork Reduction Act.

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

    Dated: November 8, 2006.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 06-9205 Filed 11-9-06; 2:35 pm]
BILLING CODE 3510-22-S