[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
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[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