[Federal Register Volume 72, Number 121 (Monday, June 25, 2007)]
[Rules and Regulations]
[Pages 34632-34643]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-12251]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 229

[Docket No. 0612242865-7168-01; 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: Final rule.

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SUMMARY: NMFS revises 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 prohibits gillnet fishing or 
gillnet possession during annual restricted periods associated with the 
right whale calving season. Limited exemptions to the fishing 
prohibitions are provided for gillnet fishing for sharks and for 
Spanish mackerel south of 29[deg]00' N. lat. An exemption to the 
possession prohibition is provided for transiting through the area if 
gear is stowed in accordance with this final 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: This final rule is effective July 25, 2007.

ADDRESSES: Requests for copies of this final rule should be addressed 
to Chief, Marine Mammal Branch, Attn: Right Whale Gillnet Rule, 
Protected Resources, NMFS, 263 13\th\ Avenue South, St. Petersburg, FL 
33701. Copies of the Environmental Assessment (EA), Final Regulatory 
Flexibility Analysis (FRFA), and copies of all citations referenced in 
this final rulemaking may be obtained from the persons listed under FOR 
FURTHER INFORMATION CONTACT.

FOR FURTHER INFORMATION CONTACT: Laura Engleby, 727-824-5312, Barb 
Zoodsma, 904-321-2806, or Nancy Young, 727-824-5607.
    Electronic Access: Regulations, compliance guides, and background 
documents for the ALWTRP can be downloaded from the ALWTRP web site at 
http://www.nero.noaa.gov/whaletrp/.

SUPPLEMENTARY INFORMATION:

Background

    NMFS published a proposed rule on November 15, 2006 (71 FR 66482), 
to permanently prohibit gillnet fishing in portions of the Southeast 
U.S. to protect right whales from entanglement in gillnet gear during 
their annual calving season. The proposed rule included prohibitions on 
gillnet fishing and possession, with some exemptions. A detailed 
description of the proposed management measures and supporting 
background information and analysis is included in the proposed rule 
(71 FR 66482, November 15, 2006).
    NMFS would like to highlight that this action removes the 
definitions of ``Shark gillnetting,'' ``Strikenet or to fish with 
strikenet gear,'' and ``To strikenet for sharks'' from 50 CFR 229.2. 
The revised ALWTRP regulations are based on gear characteristics, and 
NMFS believes the regulations do not need to rely on these definitions.
    NMFS requested public comment on the proposed rule and provided a 
30 day public comment period. NMFS received requests from the public to 
extend the comment period, and on January 16, 2007, NMFS published a 
notice in the Federal Register reopening the comment period for an 
additional 15 days (72 FR 1689). In that notice, NMFS announced that 
all comments received during the period November 15, 2007, through 
January 31, 2007, would be considered in this rulemaking. Below, we 
summarize the public comments received, our responses to those 
comments, and a change made to the proposed regulations based on the 
comments.

Comments on the Notice of Proposed Rulemaking and Responses

    NMFS received 4,571 comments on the proposed rule from fishery 
management agencies and commissions of southeastern U.S. states, the 
Marine Mammal Commission (MMC), environmental organizations, commercial 
fishing organizations, commercial and recreational fishermen, and 
interested members of the public. NMFS received these comments in the 
form of electronic mail, letters, and facsimile. Of those, 4,544 were 
identical, or slightly modified, form letters expressing support for 
the proposed rule, and 27 contained substantive comments on specific 
measures or components of the proposed rule. NMFS did not receive any 
comments on the removal of strikenet definitions. In the text below, 
NMFS provides a summary of the comments, recommendations, and issues 
raised that relate to the measures in this rulemaking, provides 
responses to them, and identifies changes to the proposed regulations. 
Comments not relevant to this rulemaking, such as those pertaining to 
the February 16, 2006, temporary rule; the November 15, 2006, emergency 
rule; and process-related comments relative to the ALWTRT's Southeast 
(SE) Subgroup meeting were read and considered but are not being 
discussed in this document addressing the proposed and final rule.
    Comment 1: Several commenters stated that gillnet fishing gear is 
dangerous to right whale mothers and calves. These commenters urged 
that the proposed rule be finalized, citing the right whale's extremely 
low abundance estimates and stating that the loss of even one animal 
contributes to the risk of extinction. Several of these commenters 
indicated that the loss of right whales has implications throughout the 
ecosystem. Others emphasized that it is NMFS' responsibility to protect 
this species and prevent its extinction.
    Response: NMFS agrees that gillnet fishing gear can be dangerous to 
right whale calves, as demonstrated by the January 22, 2006, right 
whale calf mortality, which occurred as a result of entanglement in 
gillnet gear allowed to be used in the Southeast U.S. Restricted Area 
during the restricted period. NMFS also agrees that estimates of right 
whale abundance are low, that the loss of one right whale may 
potentially have implications for the right whale population and its 
ecosystem (see response to Comment 2), and that NMFS has a 
responsibility to protect right whales. The purpose of this final rule 
is to protect right whales from the threat of entanglement in gillnet 
gear by implementing, with revisions, existing ALWTRP regulations 
promulgated in 1997 under the MMPA that require the Assistant 
Administrator for Fisheries (AA) to close the Southeast U.S. Restricted 
Area to gillnet gear during the annual restricted period unless the AA

[[Page 34633]]

revises the restricted period or implements other measures under 50 CFR 
229.32(g)(2).
    Comment 2: One commenter stated that concerns for the status of the 
right whale are unwarranted and population figures are not valid based 
on his calculations of right whale abundance using a variety of 
variables (e.g., abundance in 1935, sex ratio, calving interval, age at 
senescence), and requested information upon which NMFS' population 
estimates were based. The commenter also questioned the role of fishing 
interactions as one of the causes of the right whale's reduced 
population.
    Response: NMFS relies on the best available scientific information, 
including peer-reviewed scientific literature, to assess northern right 
whale abundance, status, and threats in marine mammal Stock Assessment 
Reports (SAR), required by provisions of the MMPA. The SAR for northern 
right whales in the North Atlantic is updated annually and reviewed 
both internally and externally by teams of scientific experts. The 2006 
SAR for northern right whales in the North Atlantic (Waring et al., 
2007) indicates that the best estimate of minimum population size for 
the species is 306 individually-recognized whales known to be alive 
during 2001. Because the data are from identification photographs and 
genetic samples in all known right whale aggregation areas, and very 
few new adult whales have been added since the mid-1990s, NMFS believes 
that these records represent a nearly complete census of the 
population. Therefore, NMFS does not rely on life history parameters to 
estimate right whale abundance and disagrees that the population 
figures quoted in the proposed rule are invalid.
    Additional population analyses and modeling exercises have been 
conducted and published in the peer-reviewed literature (e.g., Caswell 
et al., 1999; Fujiwara and Caswell, 2001). These studies cite high 
mortality rates in the 1980s and 1990s and conclude that the population 
began to decline in the early 1990s. These studies conclude that 
preventing the death of even one adult female could significantly 
affect the population's trend. A 2001 evaluation by the International 
Whaling Commission's (IWC) Scientific Committee (Best et al., 2001) 
also concluded that the population of northern right whales in the 
North Atlantic is not likely much greater than 300 individuals.
    As a result of the low population size, the lack of observed 
population growth, and deaths from human activities, NMFS determined in 
2000 and each year since that the MMPA-defined ``Potential Biological 
Removal'' (i.e., the maximum number of individuals, 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 (OSP)) for northern right whales in the North Atlantic is 
zero. That is, the population cannot sustain any deaths or serious 
injuries due to human causes for the species to recover. Therefore, 
NMFS disagrees that concerns for the right whale population size are 
unwarranted.
    With regard to the role of fishing interactions as one of the true 
causes of the reduced population, NMFS acknowledges that by 1935, the 
northern right whale population was severely depleted by commercial 
whaling. However, the second-leading known cause of death in right 
whales from 1970 to 2005 is entanglement in fishing gear. Consequently, 
the current right whale recovery plan states that implementation of 
strategies to reduce the likelihood of entanglement is an action that 
must be taken to prevent extinction or to prevent the species from 
declining irreversibly (NMFS, 2005).
    In sum, NMFS believes that the status of right whales has not 
improved since the promulgation of the ALWTRP in 1997 and that 
implementing this provision of the ALWTRP, with revisions, is warranted 
and necessary for the protection and conservation of right whales.
     Comment 3: One commenter questioned whether the January 22, 2006, 
right whale mortality was the result of entanglement in gillnet gear. 
The commenter stated that NMFS initially reported to local media that 
the preliminary cause of death was ship strike, the immediate cause of 
death was never determined by the necropsy team, and the more typical 
causes of death from entanglement (e.g., infection, dehydration, or 
drowning) were not found in this case. The commenter also stated that 
the lead necropsy scientist reported that the scars on the whale were 
healing (i.e., the whale could not have been killed by recent 
entanglement), and that no gear was retrieved from the animal. The 
commenter further stated that NMFS falls short of satisfying the 
evidentiary requirements for implementing 50 CFR 229.32(g)(1).
    Response: NMFS disagrees that staff reported to local media the 
January 22, 2006, right whale calf mortality was the result of ship 
strike. However, NMFS is aware that, shortly following the necropsy, 
one media outlet erroneously quoted NMFS as stating the cause of death 
was a ship strike, and recently, the erroneous report was repeated by a 
second media outlet. In both instances, NMFS contacted the media 
outlets to correct the inaccuracy.
    NMFS acknowledges that the necropsy team did not determine the 
immediate cause of death of the right whale calf (e.g., infection, 
dehydration). Internal organs had autolyzed significantly by the time 
the animal was necropsied. However, the final necropsy report stated 
the following with regard to the pre-mortem net entanglement injuries: 
``the most parsimonious hypothesis is that these injuries were 
sufficiently serious to initiate the demise of'' this right whale. 
Thus, 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.
    NMFS also acknowledges that healing processes had initiated in the 
peduncle lesions created by net entanglement. Normal live tissue 
responds immediately to injuries by initiating the healing process. For 
example, coagulation (``healing'') stops uncontrolled blood flow and 
similarly, tissue undergoes changes (``healing'') in an attempt to 
repair injuries. However, it is important not to confuse the process of 
``healing'' (an injury yet to be repaired) with an animal's ability to 
successfully complete the healing process (reparation). In the case of 
the right whale calf, the animal's body was in the process of 
attempting to repair (healing) its wounds; however, it was unsuccessful 
at repairing its entanglement injuries prior to succumbing to death.
    Finally, NMFS also acknowledges that gillnet gear was not found on 
the dead right whale calf. However, evidence of recent entanglement was 
clearly documented by the necropsy team. Entanglement-related damage to 
the animal's peduncle included ``extensive epidermal and dermal 
indentation and penetration with overall pattern formation of diamond, 
vee, and straight lines....'' Images of these lesions were presented at 
an informal orientation workshop conducted for interested participants 
prior to the formal SE Subgroup meeting. At least one gillnet fisherman 
present stated that the lesions were very similar to gillnet lesions 
observed on rays incidentally taken in gillnet during his fishing 
operations. The damage to the animal that was judged to be the result 
of entanglement met NMFS' criteria of a serious injury (i.e., an injury 
likely to result in mortality (50 CFR 216.3)). Therefore,

[[Page 34634]]

NMFS disagrees with the commenter that NMFS falls short of evidentiary 
requirements for implementing 50 CFR 229.32(g)(1) since NMFS has 
determined, based on best available information and discussions with 
scientific investigators, that the right whale's entanglement and 
serious injury by gillnet gear ultimately led to the death of the 
animal (see also responses to comments 4, 5, and 6).
    Comment 4: One commenter stated that the proposed rule does not 
reflect the fishing industry's belief that illegal fishing gear used in 
the Southeast U.S. Restricted Area was likely involved in the 
interaction. The commenter stated that there was no clear evidence that 
legal gear used in the Southeast U.S. Restricted Area was the primary 
cause of death of the right whale calf found dead on January 22, 2006. 
The commenter also stated that NMFS ignored information provided by the 
fishing industry at the SE Subgroup meeting that an illegal gillnet 
operation was cited by the U.S. Coast Guard in the same area and time 
as the whale mortality event.
    Response: NMFS Office of Law Enforcement has actively investigated 
the January 22, 2006, right whale mortality, as well as gillnet fishing 
operations occurring in the same general time and area. As a matter of 
enforcement policy, NMFS does not provide information on alleged 
violations of fishery regulations prior to the issuance of charges or 
if no charges are filed. However, NMFS affirms that we have actively 
considered the information presented by the fishing industry regarding 
potential illegal fishing in developing both the proposed and this 
final rule and that there is no substantiated evidence indicating that 
illegal gear was involved in the entanglement of the right whale calf.
    The April 2006 SE Subgroup meeting Key Outcomes Document (Ellenberg 
Associates, Inc., 2006) does reflect that some attendees questioned 
whether legal or illegal fishing caused the right whale mortality. NMFS 
learned during the Subgroup meeting that there was some confusion among 
fishermen as to the legality of 4-7/8 inch (12.4 cm) stretched mesh 
gillnet being used in the restricted area during the restricted period, 
and, according to the fishermen, this gear was being used in the area 
where the whale calf was found. One of the industry statements captured 
in the Key Outcomes Document under Individual Comments reflects this 
confusion: ``Industry knows what happened with this calf: Fishermen 
suspect the entanglement involved 4-7/8 inch stretched mesh gillnet.'' 
However, fishing 4-7/8 inch (12.4 cm) stretched mesh gillnet was 
allowed under ALWTRP regulations in the Southeast U.S. Restricted Area 
during the restricted period.
    The actual gear entangling the calf was never recovered and the 
mesh size of the gillnet gear involved in the entanglement could not be 
determined. Various mesh sizes were legally used within the area, 
subject to different restrictions established under the ALWTRP 
regulations, fishery management plans, and applicable state 
authorities. Even if the actual gear used was 4-7/8 inch (12.4 cm) 
stretch mesh, as asserted by industry at the SE Subgroup meeting, that 
gear type was allowed to be used under ALWTRP regulations.
    Scientists conducting right whale aerial surveys during the weeks 
preceding the discovery of the dead right whale calf documented large 
numbers of buoys in Federal waters off the mouth of the St. Johns 
River. On-water scientists studying right whales reported and 
photographed fishermen hauling back large amounts of gillnet that were 
attached to the buoys. These observations were reported at the SE 
Subgroup meeting and included in the meeting's Key Outcomes Document 
(Ellenberg Associates, Inc. 2006) This fishing effort was in the 
vicinity of where the calf's carcass was found. It was also in an area 
that included a high density of right whale sightings, including the 
right whale calf prior to its death. NMFS asked right whale scientists 
conducting research in the area to report any activity that they felt 
might be a threat to right whales. No other fishing activity of concern 
in NE Florida or SE Georgia at that time was reported to NMFS.
    NMFS and its law enforcement partners strive to ensure compliance 
and detect violations. In this case, a large amount of legal fishing 
with gillnet gear was occurring in the time and place of the right 
whale calf's entanglement and death. NMFS has considered and 
investigated the information presented by the fishing industry at the 
SE Subgroup meeting. NMFS continues to believe, consistent with its 
previous determinations under 50 CFR 229.32(g)(1), 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.
    Comment 5: One commenter stated that NMFS failed to identify the 
specific fishery involved in the January 22, 2006, right whale calf 
mortality event. This commenter stated that there was no evidence the 
North Carolina whiting gillnet fishery was involved in the alleged 
entanglement.
    Response: The implementing regulations do not require NMFS to 
identify the specific fishery involved; rather, NMFS must determine 
that the entanglement was caused by gillnet gear allowed to be used in 
the Southeast U.S. Restricted Area during the restricted period. See 
response to Comments 3 and 6 regarding NMFS' determinations that 
gillnet gear was involved in the entanglement and that the gear was set 
within the Southeast U.S. Restricted Area, respectively. The restricted 
period at the time was from November 15 to March 31. The calf was 
sighted on December 30, 2005, and no linear lesions were evident. 
However, on January 8, 2006, aerial photographs taken of the calf 
reveal that the peduncle linear lesions were present. Therefore, the 
entanglement must have occurred between those two dates and during the 
restricted period.
    Comment 6: One commenter stated there was no scientific evidence 
that the gear implicated in the January 22, 2006, right whale mortality 
event was actually set in the Southeast U.S. Restricted Area. This 
commenter stated that gear could have been from outside the Southeast 
U.S. Restricted Area and pointed out that entangled whales often travel 
great distances.
    Response: The New England Aquarium's right whale photograph 
database was consulted to determine the sighting history for the dead 
calf. On December 30, 2005, the calf and its mother were sighted 
together off St. Catherines Island, Georgia. The calf did not show 
evidence of entanglement at the time. On January 8 and 9, 2006, the 
pair were sighted off the mouth of Nassau Sound, Florida, and 
Cumberland Sound, Georgia, respectively. At that time, the aerial 
survey photographs suggested the calf had linear scars, consistent with 
some type of entanglement event. Both sightings occurred well within 
the Southeast U.S. Restricted Area (the Georgia and Florida sighting 
locations were greater than 30 nm (55.6 km) and 70 nm (129.6 km), 
respectively, from the nearest boundary of the Southeast U.S. 
Restricted Area). Since mother-calf pairs typically remain on the 
calving grounds in January and are unlikely to travel very long 
distances in a short period of time, NMFS believes the calf became 
entangled in gillnet gear within the Southeast U.S. Restricted Area.
    Comment 7: One commenter stated that NMFS did not adequately 
consider the alternative fishing restrictions proposed by gillnet 
fishermen at the SE Subgroup meeting that would allow

[[Page 34635]]

gillnet fishing for whiting to continue north of 29[deg] N. lat. The 
commenter then listed the restrictions proposed at the SE Subgroup 
meeting, and included the following additional fishing restrictions: 
(1) 600 pound (272.4 kg) weak links, (2) all gear would be hauled back 
one hour before sunset, and (3) cooperative research. The commenter 
stated these proposed restrictions were similar to those being proposed 
in the exemption for the Spanish mackerel fishery, but NMFS disregarded 
the North Carolina whiting fishermen's proposal. The commenter also 
stated that, unlike the fishing industry proposal, NMFS fully 
considered comments from the MMC.
    Two other commenters stated that they did not support the 
alternative fishing restrictions proposed by the commercial fishing 
industry, stating that the proposed measures do not reduce risk 
inherent in the gear type and do not address the threat to newborn 
calves in that area.
    Response: NMFS explicitly considered the specific alternative 
gillnet restrictions proposed by the fishermen at the SE Subgroup 
meeting. The fishermen's proposal was included in the Key Outcomes 
Document (Ellenberg Associates, Inc., 2006) and was analyzed in the EA 
as Alternative 2. However, NMFS determined neither the operational 
restrictions proposed by the commenter, nor any other operational 
restrictions, would provide sufficient reduction in the likelihood of 
gillnet gear interactions with right whales, or reduce the risk of 
right whale serious injury and mortality in the Southeast U.S. 
Restricted Area. The proposed restrictions would allow large amounts of 
net to be in the water for long periods of time (i.e., long soak time) 
in the core right whale calving area.
    NMFS considered the three additional fishing restrictions proposed 
by the commenter (see comment above). First, it is unknown whether weak 
links will release very young calves. Second, NMFS acknowledges that 
hauling back gear prior to sunset would likely result in risk 
reduction. However, the potential for right whale interactions with 
gillnets in a substantial and core portion of the right whale calving 
area would not be eliminated during the calving season because large 
amounts of net and vertical line with very long soak times would 
continue to be used in the Southeast U.S. Restricted Area. Third, 
cooperative research does not in and of itself reduce risk to right 
whales. Therefore, NMFS has determined that these newly proposed 
restrictions do not meet the bases in 50 CFR 229.32(g)(2) under which 
exemptions to a full, permanent closure of the restricted area are 
allowable.
    NMFS disagrees that the whiting gillnet proposal for fishing north 
of 29[deg] N. lat. is similar to the Spanish mackerel exemption. Right 
whale distribution patterns south of 29[deg] N. lat. and existing state 
gillnet prohibitions combine to result in minimal spatial and temporal 
overlap of right whales and Spanish mackerel fishing effort during the 
exempted periods. All gillnet fishing, including Spanish mackerel 
fishing, is prohibited north of 29[deg] N. lat. by this final rule 
because any gillnet fishing activity in that area during the calving 
season would result in heavy spatial and temporal overlap with calving 
right whales. For the minimal amount of time that right whales and 
Spanish mackerel fishing effort do overlap south of 29[deg] N. lat., 
the fishing gear characteristics and operational methods reduce risk to 
right whales: nets greater than 800 yards (2,400 ft, 732 m) are 
prohibited and soak time must be less than one hour. The whiting 
fishermen proposal would allow nets up to 2,800 yards (8,400 ft, 2.56 
km) in length (2,000 more yards (6,000 ft, 1.83 km) of net and 
associated vertical lines than allowed by the Spanish mackerel 
exemption) and soak times of 4-6 hours (Ellenberg Associates, Inc. 
2006).
    NMFS considered comments submitted by the MMC. Title II of the MMPA 
charges the MMC with recommending to Federal officials steps the MMC 
deems necessary or desirable for the protection and conservation of 
marine mammals. The MMPA charges Federal officials with responding to 
the MMC regarding their recommendations. As such, NMFS is required to 
consider MMC recommendations. As part of this rulemaking, NMFS has 
considered the MMC recommendations, similar to other recommendations, 
relative to 50 CFR 229.32(g)(1) and (2).
    Comment 8: One commenter stated that the actions contained in the 
proposed rule are beyond the scope of the authority of the NMFS 
Southeast Regional Office (SERO).
    Response: The regulations at 50 CFR 229.32(g)(1) state that the AA 
must take specific action when a serious injury or mortality of a right 
whale occurs in the Southeast U.S. Restricted Area from November 15 
through March 31 as a result of entanglement by gillnet gear allowed to 
be used in that area and time. NMFS is required to 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 unless other measures are implemented in accordance with 50 
CFR 229.32(g)(2). The January 22, 2006, right whale calf mortality 
occurred as a result of entanglement in gillnet gear allowed to be used 
in the Southeast U.S. Restricted Area during the restricted period (see 
responses to Comments 3, 4, 5, and 6). Consequently, the AA determined 
to take action through this final rule to prevent additional serious 
injury or mortalities of right whales. Thus, NMFS has appropriately 
implemented its authority.
    Comment 9: One commenter stated that the provisions required for 
the exemption of gillnetting for sharks and for Spanish mackerel south 
of 29[deg] N. lat., including restrictions on setting nets within 3 nm 
(5.6 km) of right whales and other large whales and requiring the 
removal of nets from the water if a whale approaches within 3 nm (5.6 
km), may be difficult to put into practice and impossible to enforce, 
given that the exemptions occur in areas for which there are no 
dedicated marine mammal surveys and the likelihood that fishermen would 
receive notification of whales in the area would be small. The 
commenter suggests continued research on methodology, such as passive 
acoustic monitoring, for determining that no whales are in the vicinity 
of nets in the water.
    Response: NMFS acknowledges these provisions may be challenging to 
enforce, but we believe other requirements for the exempted fisheries 
will allow fishermen to detect and avoid close interactions with large 
whale species. For example, fishermen gillnetting for sharks in the 
restricted area are required to use a spotter plane (50 CFR 
229.32(f)(4)(iv)), so whales in the area will likely be seen and 
fishermen will be capable of removing gear from the water. The Spanish 
mackerel fishery has existing gear requirements at 50 CFR 
622.41(c)(3)(ii), including short soak time, limit of one net fished, 
set, or placed in the water at any one time, and restrictions on float 
line length, as well as new requirements prohibiting the setting of 
gear at night or in low visibility and removing gear from the water 
before night or if visibility decreases below 500 yards (1,500 ft, 460 
m). NMFS believes these factors, in conjunction with known and 
predicted right whale distribution patterns in the Southeast U.S. 
Restricted Area south of 29[deg] N. lat. during December through March, 
and existing Florida regulations prohibiting gillnetting in state 
waters that further reduce the potential spatial overlap between 
gillnet fishing and right whales, are operationally effective and will 
protect right whales from the risk of serious injury and mortality.

[[Page 34636]]

    NMFS agrees that methods such as passive acoustic monitoring may be 
useful for managing human interactions with whales. However, at this 
time it is unknown if mother/calf pairs vocalize while in the Southeast 
U.S. calving area. Research in this area is underway. For example, 
hydrophone arrays were deployed during the 2006-2007 calving season in 
the vicinity of the St. Mary's and Brunswick River entrances. 
Researchers will soon begin examining the findings and comparing them 
to aerial survey sightings to determine the efficacy of this technology 
in reliably detecting the presence of whales, including mother/calf 
pairs, in the Southeast U.S. calving area.
    Comment 10: NMFS received several comments regarding the economic 
impact of the proposed rule. One commenter stated that the proposed 
regulations disproportionately impact North Carolina gillnetters 
targeting whiting and stated that these fishermen are not being 
provided with a safe, viable economic alternative to continue fishing 
for whiting in the region. Other commenters stated that while the rule 
may impose a burden on some gillnetters, economic interests should not 
supersede necessary species protection, and fishing operations must be 
restricted to reduce entanglement risk to endangered right whales.
    Response: As required by the Regulatory Flexibility Act (RFA), NMFS 
conducted an analysis of the socio-economic impacts of these 
regulations, which can be found in the EA and regulatory flexibility 
analysis. NMFS agrees that this final rule is expected to most greatly 
affect fishermen who fish for whiting in the Southeast U.S. Restricted 
Area North. NMFS notes, however, that all gillnet fishing will be 
prohibited by this final rule in the Southeast U.S. Restricted Area 
North, not just whiting fishing. In addition, comments made by whiting 
fishermen at the SE Subgroup meeting suggest these losses could be 
mitigated by moving into other areas and/or targeting other species at 
other times of the year, resulting in minimal long-term impacts for 
these fishermen from this final rule. Finally, at the SE Subgroup 
meeting, NMFS inquired about the feasibility of fishing for whiting in 
other areas, such as the Southeast U.S. Restricted Area South, but 
fishermen reported that a unique habitat feature off northeast Florida 
resulted in a very localized concentration of whiting and this is where 
whiting gillnet fishing effort was necessarily focused.
    This final rule implements regulations at 50 CFR 229.32(g)(1), with 
associated revisions to 50 CFR 229.32(f). Consequently, anything less 
than a full and permanent closure of the Southeast U.S. Restricted Area 
to all gillnet fishing during the restricted period can only be 
authorized based on the considerations in 50 CFR 229.32(g)(2). This 
final rule eliminates the potential for right whale interactions with 
gillnets in the Southeast U.S. Restricted Area North, a substantial and 
core portion of the right whale calving area. However, this final rule 
does allow for gillnet fishing exemptions in the Southeast U.S. 
Restricted Area South. NMFS has determined that a combination of 
existing and new regulatory requirements for exempted fisheries 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 pursuant to 50 CFR 229.32(g)(2)(i) (see also response to 
Comment 7).
    Comment 11: One commenter stated that there is no evidence that 
low-rise North Carolina-style whiting gear or associated vertical lines 
presents a serious threat to right whales in the Southeast U.S. 
Restricted Area.
    Response: Although the exact mechanism by which right whales become 
entangled in gillnet gear is unknown, NMFS has documented entanglements 
of right whales in gillnets and vertical lines. Therefore, NMFS cannot 
verify that gillnets fished in a low-rise fashion (i.e., sink gillnet) 
are less risky than other gillnets or gear with vertical lines in the 
core calving area. Therefore, fishing with low-rise gillnets in the 
Southeast U.S. Restricted Area North does not meet the bases in 50 CFR 
229.32(g)(2) under which exemptions to a full, permanent closure of the 
restricted area are allowable.
    Comment 12: Comments were received regarding the proposed changes 
to the boundaries of the Southeast U.S. Restricted Area. Several 
commenters supported expanding the restricted area to include waters 
off South Carolina, and several other commenters requested further 
expansion. Two commenters supported a boundary of 40 nm (74.08 km) off 
the coast of South Carolina, with one commenter citing habitat analysis 
research that indicates potential right whale habitat extends in excess 
of 35 nm (64.82 km) from the South Carolina shoreline. Two other 
commenters advocated expanding the entire Southeast U.S. Restricted 
Area to 200 nm (370.4 km) (the outer limit of the U.S. Exclusive 
Economic Zone (EEZ)), with one commenter citing low survey effort in 
offshore waters and uncertainty about use of these waters by whales, 
and reasoning that extending the geographical boundary would have no 
significant economic impact and would prevent development of new 
fisheries in that area.
    Another commenter opposed the expansion of the restricted area, 
stating that the expansion is not based on credible science. The 
commenter stated that NMFS based its decision on aerial surveys 
conducted from 2001-2005, with no entanglements or strandings to 
indicate there is a problem in this area, a single observation of a 
right whale mother/calf pair in the 2004-2005 calving season, and a 
single year of acoustic monitoring. The commenter requested that more 
substantial and robust scientific evidence justifying the expansion be 
presented.
    Response: The decision to expand the Southeast U.S. Restricted Area 
to include waters off South Carolina is based on several factors, which 
are described in the proposed rule (71 FR 66482, November 15, 2006) and 
EA. These factors include aerial and acoustic monitoring data that show 
the consistent occurrence of right whales in waters off South Carolina 
throughout the winter months (McLellan et al., 2001; Glass et al., 
2005; Clark 2006).
    During relatively limited aerial survey effort from 2001-2005, NMFS 
contractors documented numerous sightings of right whales off South 
Carolina during the calving season. NMFS consulted aerial survey data 
collected off South Carolina during the 2005/2006 and 2006/2007 calving 
season to determine if right whales were continuing to use that area. 
At least 25 sightings of one or more right whales, including mother/
calf pairs, were observed off South Carolina during each of those 
calving seasons (Glass and Taylor 2006; and Wildlife Trust, unpub. 
data). One mother/calf pair was observed off South Carolina multiple 
times but was not observed during that calving season in any other 
survey area. Thus, the best available information indicates South 
Carolina is used exclusively as a calving area by some right whales.
    NMFS also relied on habitat models that demonstrate a strong 
relationship between the spatial distribution of calving right whales 
and specific environmental variables (i.e., water temperature and 
bathymetry). Environmental conditions strongly correlated with calving 
right whale distribution are typically found off South Carolina to 
distances of 35 nm (64.82 km) from shore during winter months. Thus, 
NMFS is expanding the Southeast U.S. Restricted Area to include waters 
35 nm (64.82 km) off the

[[Page 34637]]

coast of South Carolina to adequately protect right whales from the 
threat of entanglement in fishing gear during the calving season.
    NMFS specifically solicited public comment on the decision to place 
the boundary at 35 nm (64.82 km) rather than 40 nm (74.08) off the 
coast of South Carolina. Although NMFS considered various factors, 
including Hain and Kenney's (2005) conclusion that uncertainty in 
predicting right whale occurrence is increased with distance from 
shoreline due to reduced search effort, we believe that scientific 
evidence does not support a 40 nm (74.08 km) boundary. Recent 
predictive modeling efforts show that the expected seasonal progression 
of temperature off South Carolina is such that the optimal water 
temperature/bathymetry correlates preferred by right whales, and peak 
predicted sighting rates, for calving right whales occurs throughout 
much of the spatial range in waters typically out to 50 km (27 nm) from 
shore (Garrison, 2007). However, habitat in the marine environment is 
best represented as a spatial gradient between the most suitable and 
least suitable environments, and there is no clear spatial boundary for 
the habitat and no boundary to the movement of right whales inside and 
outside of the optimal habitat. However, as habitat modeling in 
Garrison 2007 demonstrates, the water temperature bathymetry correlates 
preferred by calving right whales degrade from the optimal values of 
these variables with increasing distance from shore. Mean right whale 
calving density as a function of distance from shore predicted by the 
model is nearly zero at 35 nm (64.82 km) from shore. Therefore, NMFS 
has determined that a 35-nm (64.82-km) boundary provides a sufficient 
buffer from the 27-nm (50-km) distance predicted by the habitat model. 
NMFS is therefore maintaining the 35-nm (64.82-km) management boundary 
for waters off South Carolina.
    NMFS is not expanding the seaward boundary of the restricted area 
to the edge of the EEZ. This final rule is specific to right whale 
protection from gillnet fishing activity in critical calving area. 
While right whale survey effort is low east of 80[deg] W. long., the 
Gulf Stream apparently serves as a thermal boundary to the eastward 
movements of right whales in the Southeast U.S. (Keller et al., 2006).
    Comment 13: NMFS received several comments regarding the proposed 
changes to the restricted period. Two commenters recommended that the 
restricted period for the Southeast U.S. Restricted Area North be 
extended to November 1 through April 30 instead of the current period 
of November 15 to March 31 to adequately protect right whale mothers 
and calves in the calving area. One of these commenters stated that 
migration patterns of right whales are not well known, and appropriate 
closure periods will be determined more reliably as more is learned; 
however, the whales must occur in the northern area both earlier and 
later in the season than in the southern area, for the southward and 
northward migration. Another commenter proposed alternate dates for the 
restricted period for the right whale critical habitat area. This 
commenter requested that April 1 remain the ending date for the 
restricted period. More specifically, the commenter asked that the area 
south of the Georgia/Florida border open for the whiting fishery on 
April 1, and the area between the North Carolina/South Carolina border 
and the Georgia/Florida border remain closed through April 15, on the 
basis that this would allow right whales to exit the area on their 
northward migration route, and allow fishermen to salvage a two week 
fishing season (during the first portion of April) while water 
temperatures are favorable for a viable fishery.
    Response: The ALWTRP regulations at 50 CFR 229.32(g)(2)(v) 
authorize the AA to revise the restricted period if NMFS determines 
that right whales are remaining longer than expected in a closed area 
or have left earlier than expected. In developing this final rule, NMFS 
considered whether right whales were remaining longer in or leaving 
earlier from the Southeast U.S. Restricted Area than previously 
expected, recognizing that a substantial amount of aerial survey data 
and opportunistic sightings of right whales have been collected since 
the ALWTRP regulations were originally promulgated in 1997. The 
November 15 through March 31 timeframe was established as the 
restricted period for the entire Southeast U.S. Restricted Area in the 
original ALWTRP regulations. More recent data indicate that right 
whales are rarely sighted south of 29[deg] N. lat. in November or in 
April; however, right whales have been sighted throughout the area 
north of 29[deg] N. lat. and extending north to the South Carolina/
North Carolina 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 northern and 
southern zones of the Southeast U.S. Restricted Area: November 15 
through April 15 north of 29[deg] N. lat. and December 1 through March 
31 south of 29[deg] N. lat. This is consistent with NMFS' June 21, 
2005, proposed rule to amend the ALWTRP(70 FR 35894). NMFS believes the 
dates are sufficiently protective of right whale mothers and calves 
during their southward and northward migration.
    NMFS specifically re-evaluated available information in 
consideration of the alternate restricted period proposed by one 
commenter and described above, for the area south of the Georgia/
Florida border. This information included habitat models and right 
whale sightings data from aerial surveys geographically stratified as 
north and south of the Georgia/Florida border. Habitat models predict 
right whales to be present south of the Georgia/Florida state boundary 
and as far south as Cape Canaveral through the end of March (Garrison 
2007), indicating that whales would be migrating through the Southeast 
U.S. Restricted Area North during the first two weeks of April. This is 
confirmed by right whale sighting data from aerial surveys. NMFS 
reviewed effort-corrected right whale sighting records contained in the 
University of Rhode Island database for the area between 29[deg] N. 
lat. and the Georgia/Florida border (30[deg] 42.5' N. lat.) for right 
whale sightings from April 1 to April 15. The mean number of sightings 
per unit of survey effort is zero for the area south of the Georgia/
Florida border in the second half of April, but greater than zero 
during the first half of April, indicating that right whales are 
present in that area through mid-April. NMFS believes that allowing 
gillnet fishing in the area south of the Georgia/Florida border 
annually after March 31 would pose an unacceptable risk to right 
whales.
    Comment 14: Comments were received requesting additional exemptions 
to the prohibition on gillnet fishing and possession during the 
restricted period. These exemptions include beach-based recreational 
gillnetting in South Carolina, scientific research using gillnets, and 
traversing through Little River Inlet with fish on board. One commenter 
stated that any additional exemptions should be minimized and granted 
only in areas where such activities will not take right whales. Others 
opposed any additional exemptions. Finally, some commenters not only 
opposed additional exemptions but supported increased restrictions of 
gillnets and other fishing gear types.
    Response: NMFS reiterates that this final rule implements and 
amends the

[[Page 34638]]

ALWTRP regulations under the MMPA and the ESA and applies only to 
certain commercial fisheries that interact with large whales. This 
final rule does not apply to recreational fishing or non-commercial 
fishing for scientific research if no sale or barter is involved. While 
NMFS has the statutory authority to issue protective regulations for 
right whale impacts caused by activities other than commercial 
fisheries, that is beyond the scope of this action which was triggered 
by existing regulatory requirements in 50 CFR 229.32(g)(1).
    Recreational and research gillnetting are not exempt from the take 
prohibitions under either the ESA or MMPA, and would need applicable 
authorizations if right whale takes were anticipated. South Carolina 
Department of Natural Resources permits a licensed recreational surf 
gillnet fishery that currently includes 212 participants operating 
mainly along the state's northern coast, and states they believe the 
characteristics of the fishery make the likelihood of interaction with 
large whales extremely low. Nets are restricted to no longer than 100 
feet (30.48 m) and are used in unrestricted areas of the Atlantic 
Ocean, typically in water depths less than 8 feet (2.44 m). Fishermen 
are required to remain within 500 feet (152.4 m) or ``hailing 
distance'' of their nets at all times. Given the bathymetry off South 
Carolina's Atlantic beaches, gillnet gear is unlikely to extend into 
depths where right whales would normally occur.
    NMFS continually works with state fishery management agencies in 
the southeast U.S. to develop conditions for research permits for the 
safe conduct of research activities that avoid potential impacts to 
right whales. These conditions may include limits on net length, number 
of nets, soak time, tending requirements, observer requirements, 
disentanglement training, breakaway panels, and endline modifications. 
To date, fishing effort has been very low for scientific research 
gillnetting.
    NMFS agrees that it is reasonable to allow gillnet vessels to 
transit in and out of the Little River Inlet and is modifying the 
restricted area accordingly in this final rule. NMFS has moved the 
boundary of the restricted area southward to exclude the Little River 
Inlet from the Southeast U.S. Restricted Area. This modification will 
allow fishermen who participate in a legal commercial gillnet fishery 
off the southeastern coast of North Carolina to transit through Little 
River Inlet on the South Carolina/North Carolina border with gillnets 
and fish onboard. This measure alleviates safety concerns associated 
with fishermen in small vessels (typically less than 24 feet (7.3 m)) 
being required to use the closest navigable inlet beyond the restricted 
area, Shallotte Inlet, which is approximately 10 nm (18.52 km) away and 
can become unsafe in certain weather conditions. The modification poses 
no additional risk to right whales because the change in area is very 
small and gillnetting will remain prohibited in South Carolina state 
waters surrounding the inlet.
    Comment 15: Several commenters stated they support the gillnet 
closure in the Southeast U.S., but believe that additional measures 
should be taken to protect right whales in other areas, including the 
North Pacific Ocean, Stellwagen Bank National Marine Sanctuary, other 
National Marine Sanctuaries, and Cape Cod Bay. Comments were also 
received requesting protections for right whales in areas outside of 
U.S. jurisdiction.
    Response: The purpose of this final rule is to implement existing 
ALWTRP regulations at 50 CFR 229.32(g)(1) and (2), with associated 
revisions to 50 CFR 229.32(f), in response to the January 22, 2006, 
right whale calf mortality. The regulations only cover the Southeast 
U.S. calving area; therefore, measures addressing other geographical 
areas are outside the scope of this rulemaking.

Summary of Changes in This Final Rule Relative to the Proposed Rule

    Based on comments received, NMFS has changed the final rule from 
the proposed rule to exclude the Little River entrance, South Carolina, 
from the expanded Southeast U.S. Restricted Area. Coordinates contained 
in the table in 50 CFR 229.32(f)(1)(i) have been revised to reflect 
this change. Figure 1 illustrates the Southeast U.S. Restricted Area as 
modified by this final rule. Furthermore, paragraph 229.32(f)(3) that 
addresses observer requirements in the Southeast U.S. Observer Area, is 
modified to eliminate references to observer requirements for the 
Southeast U.S. Restricted Area North. Since this final rule eliminates 
gillnetting in the Southeast U.S. Restricted Area North, modifying this 
paragraph as specified will avoid confusion.
BILLING CODE 3510-22-S

[[Page 34639]]

[GRAPHIC] [TIFF OMITTED] TR25JN07.002

BILLING CODE 3510-22-C

[[Page 34640]]

Literature Cited

    Best, P.B., J.L. Bannister, R.L. Brownell, Jr., and G.P. Donovan. 
Eds. 2001. Right whales: worldwide status. Journal of Cetacean Research 
and Management. (Special Issue) 2. 309 pages.
    Caswell, H., M. Fujiwara, and S. Brault. 1999. Declining survival 
probability threatens the North Atlantic right whale. Proceedings of 
the National Academy of Sciences 96: 3308-3313.
    Clark, C.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.
    Ellenberg Associates, Inc. 2006. Key Outcomes for the Southeast 
Subgroup of the Atlantic Large Whale Take Reduction Team. April 11-12, 
2006, St. Augustine, Florida.
    Fujiwara, M. and H. Caswell. 2001. Demography of the endangered 
North Atlantic right whale. Nature 414: 537 541.
    Garrison, L.P. 2007. Defining the North Atlantic Right Whale 
Calving Habitat in the Southeastern United States: An Application of a 
Habitat Model. NOAA Technical Memorandum. NOAA NMFS-SEFSC-553: 66 p.
    Glass, A.H., C.R. Taylor, and D.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.
    Hain, J.H. and R.D. Kenney. 2005. A Review and Update to the 
Technical Report of December 2002 for the Estimation of Marine Mammal 
and Sea Turtle Densities in the Cherry Point OPAREA - Specific to the 
Distribution and Density of the North Atlantic Right Whale. Atlantic 
Division, Naval Facilities Engineering Command, Norfolk, Virginia.
    Keller, C. A., L.I. Ward-Geiger, W.B. Brooks, C.K. Slay, C.R. 
Taylor, and B.J. Zoodsma. 2006. North Atlantic right whale distribution 
in relation to sea-surface temperature in the southeastern United 
States calving grounds. Marine Mammal Science 22(2): 426-445.
    McLellan, W.A., K.M. Lefler, G. Jones, K. Hardcastle, and D.A. 
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.
    Waring, G.T., E. Josephson, C.P. Fairfield, and K. Maze-Foley. Eds. 
2007. U.S. Atlantic and Gulf of Mexico marine mammal stock assessments 
2006. NOAA Technical Memorandum. NMFS-NE-201. 388 p.

Classification

    In accordance with section 118(f)(9) of the MMPA, NMFS has 
determined that this action is necessary to implement take reduction 
measures to protect northern right whales in the North Atlantic. 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.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    NMFS prepared an EA for this action, and the AA concluded that 
there will be no significant impact on the human environment as a 
result of this final rule. A copy of the EA is available from NMFS (see 
ADDRESSES).
    A final regulatory flexibility analysis (FRFA) incorporates the 
IRFA, a summary of the significant issues raised by the public comments 
in response to the IRFA, and NMFS responses to those comments, and a 
summary of the analyses completed to support the action. A summary of 
the analysis follows. A copy of this analysis is available from NMFS 
(see ADDRESSES).
    In summary, the purpose for this final rule is to implement the 
requirements of Sec.  229.32(g)(1) and to reduce serious injury and 
mortality to northern right whales in the North Atlantic 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 ALWTRP provisions as amended include expanding the 
Southeast U.S. Restricted Area and prohibiting gillnet fishing and 
possession within that area, with certain exemptions. The MMPA and the 
ESA provide the statutory bases for this final rule.
    Commercial fishing vessels that operate in the expanded Southeast 
U.S. Restricted Area from November 15 through April 15 (waters off 
South Carolina, Georgia, and northeast Florida) and use gillnets are 
expected to be affected by this final rule. This final 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 are expected to be affected by 
this final 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 
114111). 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 expanded Southeast U.S. Restricted Area are 
small businesses. This final rule is expected to affect all of those 
businesses. Consequently, it is expected to affect a substantial number 
of small businesses.
    Two comments were received pertaining to the IRFA or economic 
impacts specific to small entities resulting from the management 
actions presented in the proposed rule. A more expanded response to 
these comments is found above in the ``Comments on the Notice of 
Proposed Rulemaking and Responses'' section.
    One commenter stated that the proposed regulations would 
disproportionately impact NC gillnetters targeting whiting, and stated 
that while other commercial fisheries have received limited exemptions, 
NC gillnet fishermen have no safe, viable economic alternative to 
continue fishing for whiting in the region. The Initial Regulatory 
Flexibility Analysis (IRFA) that NMFS prepared for the proposed rule 
analyzes the impacts to these fishermen. Based on this analysis, NMFS 
agrees that this final rule is expected to most greatly affect 
fishermen that fish for whiting in the Southeast U.S. Restricted Area 
North. NMFS notes, however, that all gillnet fishing will be prohibited 
by this final rule in the Southeast U.S. Restricted Area North, not 
just whiting fishing. In addition, comments made by whiting fishermen 
at the SE Subgroup meeting suggest these losses could be mitigated by 
moving into other areas, or targeting other species at other times of 
the year, or both, resulting in minimal long-term impacts for these 
fishermen from the final rule. Finally, at the SE Subgroup meeting, 
NMFS inquired about the feasibility of fishing for whiting in other 
areas, such as the Southeast U.S. Restricted Area South, but fishermen 
reported that a unique habitat feature off northeast Florida resulted 
in a very localized concentration of whiting and this is where whiting 
gillnet fishing effort was necessarily focused. No changes were made to 
this final rule relative to this comment.
    Several commenters expressed concern regarding safety and fuel 
costs for fishermen that work out of Little River Inlet and fish off 
North Carolina. NMFS has removed this burden by moving the boundary of 
the restricted area southward to exclude the Little River Inlet from 
the Southeast U.S. Restricted Area. As discussed in the preamble of 
this final rule, NMFS has modified the expanded Southeast U.S. 
Restricted Area to exclude the Little

[[Page 34641]]

River Inlet. The estimated economic impacts in the IRFA are not 
expected to change, as affecting legal gillnet fishing off North 
Carolina was an unintentional and unknown effect of the proposed rule.
    This final rule prohibits gillnet fishing in the northern zone of 
the expanded restricted area, during the restricted period, without 
exemptions. This final action is expected to reduce average annual 
shark gillnet revenue in the northern zone by $4,029. Total shark 
gillnet landings in Florida north of 29[deg] N. lat. from November 1 
through April 30 varied from zero to 38,229 lbs (17,340 kg) 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, this 
final rule is expected to reduce total shark gillnet landings in 
Florida from the northern zone by $3,856 and 6,384 lbs (2,902 kg). This 
final rule is expected to 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.
    This final rule prohibits gillnet fishing during the restricted 
period in a southern zone of the 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 waters off Florida. This final rule is expected to have no effect on 
shark gillnet revenues in the southern zone because current shark 
gillnet requirements in the southern zone are the same as the 
requirements for the exemptions in this final action.
    The average annual shark gillnet revenue expected to be lost as a 
result of this final 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 
gillnet fishing vessels are expected to be affected by this final rule, 
each shark gillnet fishing vessel is expected to lose on average from 
$504 to $672 annually from lost shark landings.
    It is estimated that Spanish mackerel gillnet fishermen in the 
northern zone may lose on average 1,509 lbs (686 kg) of Spanish 
mackerel with an average dockside value of $1,159 annually. During the 
6-month period from November 1 through April 30 from 2000 through 2004, 
an average of 102 lbs (46 kg) of Spanish mackerel with a dockside value 
of $86 were landed from gillnets and caught in the northern zone. In 
the first four months of 2005, however, 1,509 lbs (686 kg) with a 
dockside value of $1,159 were landed from gillnets. It is possible 
that, since 2005, Spanish mackerel fishers are increasingly targeting 
the species in the northern zone during these 5 months. Consequently, 
November through December 2004 and January through April 2005 landings 
of Spanish mackerel were used to estimate losses of gillnet landings to 
Spanish mackerel fishers in the northern zone, although this method may 
significantly over-estimate losses to Spanish mackerel gillnet fishers 
who operate in the northern zone. These northern zone landings 
represent less than half a percent of annual Spanish mackerel landings 
in the Southeast U.S. Restricted Area.
    Annual losses to Spanish mackerel gillnet fishers in the southern 
zone are expected to 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 final rule are consistent with existing Spanish mackerel gillnet 
operations during these other months. Consequently, annual losses to 
Spanish mackerel gillnet fishers in the southern zone are expected to 
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 are expected to be 6,951 lbs (3,160 kg; $4,087). 
This combined loss represents approximately 2 percent of pounds 
annually landed in the Southeast U.S. Restricted Area.
    Average annual losses of king whiting from the northern zone are 
expected to 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 are 
expected to be 419,418 lbs (190,245 kg) 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 are expected to 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 are expected to 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 are expected to 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 are expected to be 360,859 lbs (164,027 kg; $281,142). 
The combined loss represents at least 70 percent of pounds landed 
annually in the Southeast U.S. Restricted Area.
    Three other alternative operational measures were considered in 
this rulemaking. Alternative 1, a no-action alternative, was 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. 
Enacting 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

[[Page 34642]]

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 interacting with gillnet gear.
    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 be 
expected to 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 were expected to be 348,301 lbs (158,319 kg), with 
dockside revenues of $271,696. Combined, Alternative 3 would be 
expected to result in losses of dockside revenue of $356,202. This 
alternative had the greatest economic impact of all alternatives, and 
was therefore not selected.
    Section 212 of the Small Business Regulatory Enforcement Fairness 
Act of 1996 states that for each rule or group of related rules for 
which an agency is required to prepare a FRFA, the agency shall publish 
one or more guides to assist small entities in complying with the rule, 
and shall designate such publications as ``small entity compliance 
guides.'' The agency shall explain the actions a small entity is 
required to take to comply with a rule or group of rules. A small 
entity compliance guide was prepared as part of this rulemaking 
process. The guide will be sent to all registered gillnet fishers in 
the Marine Mammal Authorization Program in South Atlantic states. 
Guides will also be provided to state resource management agencies, the 
USCG, and others as appropriate for distribution to the fishing 
industry. In addition, copies of this final rule and guide are 
available from NMFS and on the ALWTRP website (see ADDRESSES).
    This final rule 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.
    This final rule does not duplicate, overlap, or conflict with other 
Federal rules. NMFS is presently finalizing a proposed rule that 
addresses broad modifications to the ALWTRP (70 FR 35894). When 
finalized, that rule will incorporate modifications to the ALWTRP that 
result from this final rule on gillnet fishing in the Southeast U.S.

List of Subjects in 50 CFR Part 229

    Administrative practice and procedure, Confidential business 
information, Fisheries, Marine mammals, Reporting and recordkeeping 
requirements.

    Dated: June 19, 2007.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

0
For reasons set out in the preamble, 50 CFR part 229 is amended as 
follows:

PART 229--AUTHORIZATION FOR COMMERCIAL FISHERIES UNDER THE MARINE 
MAMMAL PROTECTION ACT OF 1972

0
1. The authority citation for part 229 is revised to read as follows:

    Authority: 16 U.S.C. 1361 et seq.; Sec.  229.32(f) also issued 
under 16 U.S.C. 1531 et seq.

0
2. In Sec.  229.2, the definitions of ``Shark gillnetting,'' 
``Strikenet or to fish with strikenet gear,'' and ``To strikenet for 
sharks'' are removed.

0
3. In Sec.  229.32, paragraphs (f)(1)(i), (f)(3), (f)(4), and (g)(1) 
are revised to read as follows:


Sec.  229.32  Atlantic large whale take reduction plan regulations.

* * * * *
    (f) * * *
    (1) * * *
    (i) Southeast U.S. Restricted Area. The Southeast U.S. Restricted 
Area consists of the area bounded by straight lines connecting the 
following points in the order stated from south to north, unless the 
Assistant Administrator changes that area in accordance with paragraph 
(g) of this section:

------------------------------------------------------------------------
                       Point                         N. Lat.    W. Long.
------------------------------------------------------------------------
SERA1                                               27[deg]51      (\1\)
                                                            '
SERA2                                               27[deg]51  80[deg]00
                                                            '          '
SERA3                                               32[deg]00  80[deg]00
                                                            '          '
SERA4                                               32[deg]36  78[deg]52
                                                            '          '
SERA5                                               32[deg]51  78[deg]36
                                                            '          '
SERA6                                               33[deg]15  78[deg]24
                                                            '          '
SERA7                                               33[deg]27  78[deg]04
                                                            '          '
SERA8                                                   (\2\)  78[deg]33
                                                                    .9'
------------------------------------------------------------------------
\1\Florida shoreline.
\2\South Carolina shoreline.

    (A) Southeast U.S. Restricted Area N. The Southeast U.S. Restricted 
Area N consists of the Southeast U.S. Restricted Area from 29[deg]00' 
N. lat. northward.
    (B) Southeast U.S. Restricted Area S. The Southeast U.S. Restricted 
Area S consists of the Southeast U.S. Restricted Area southward of 
29[deg]00' N. lat.
* * * * *
    (3) Observer requirement. No person may fish for shark with gillnet 
with webbing of 5 inches (12.7 cm) or greater stretched mesh in the 
southeast U.S. observer area from December 1 through March 31 south of 
29[deg]00' N. lat. unless the operator of the vessel calls the 
Southeast Fisheries Science Center Panama City Laboratory in Panama 
City, FL, not less than 48 hours prior to departing on any fishing trip 
in order to arrange for observer coverage. If the Panama City 
Laboratory requests that an observer be taken on board a vessel during 
a fishing trip at any time from December 1 through March 31 south of 
29[deg]00' N. lat., no person may fish with such gillnet aboard that 
vessel in the southeast U.S. observer area unless an observer is on 
board that vessel during the trip.
    (4) Restricted periods, closure, and exemptions.
    (i) Restricted periods. The restricted period for the Southeast 
U.S. Restricted Area N is from November 15 through April 15, and the 
restricted period for the Southeast U.S. Restricted Area S is from 
December 1 through March 31, unless the Assistant Administrator revises 
the restricted period in accordance with paragraph (g) of this section.
    (ii) Closure for gillnets.
    (A) Except as provided under paragraph (f)(4)(v) of this section, 
fishing with or possessing gillnet in the Southeast U.S. Restricted 
Area N during the restricted period is prohibited.
    (B) Except as provided under paragraph (f)(4)(iii) of this section 
and (f)(4)(iv) of this section, fishing with gillnet in the Southeast 
U.S. Restricted Area S during the restricted period is prohibited.
    (iii) Exemption for Southeastern U.S. Atlantic shark gillnet 
fishery. Fishing with gillnet for sharks with webbing of 5 inches (12.7 
cm) or greater stretched mesh is exempt from the restrictions under 
paragraph (f)(4)(ii)(B) 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 50 CFR Sec.  635.4(e) and 
is on board;

[[Page 34643]]

    (C) No net is set at night or when visibility is less than 500 
yards (1,500 ft, 460 m);
    (D) The gillnet is removed from the water before night or 
immediately if visibility decreases below 500 yards (1,500 ft, 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 Spanish Mackerel component of Southeast Atlantic 
gillnet fishery. Fishing with gillnet for Spanish mackerel is exempt 
from the restrictions under paragraph (f)(4)(ii)(B) from December 1 
through December 31, and from March 1 through 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 50 CFR Sec.  622.4(a)(2)(iv) 
and is on board;
    (C) No person may fish with, set, place in the water, or have on 
board a vessel a gillnet with a float line longer than 800 yards(2,400 
ft, 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 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. E7-12251 Filed 6-22-07; 8:45 am]
BILLING CODE 3510-22-S