Taking of Marine Mammals Incidental to Commercial Fishing Operations; Atlantic Large Whale Take Reduction Plan, 66482-66495 [06-9206]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 71, Number 220 (Wednesday, November 15, 2006)]
[Proposed Rules]
[Pages 66482-66495]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-9206]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 229

[Docket No. 060928250-6250-01; I.D. 092506A]
RIN 0648-AU90


Taking of Marine Mammals Incidental to Commercial Fishing 
Operations; Atlantic Large Whale Take Reduction Plan

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS proposes to revise the regulations implementing the 
Atlantic Large Whale Take Reduction Plan (ALWTRP) by expanding the 
southeast U.S. restricted area and modifying regulations pertaining to 
gillnetting within the southeast U.S. restricted area. NMFS proposes to 
prohibit gillnet fishing or gillnet possession during annual restricted 
periods associated with the right whale calving season. Exemptions to 
the fishing prohibitions are proposed for strikenet fishing for sharks 
and gillnet fishing for Spanish mackerel south of 29[deg]00' N. lat. An 
exemption to the possession prohibition is proposed for transiting 
through the area if gear is stowed in accordance with this rule. This 
action is required to meet the goals of the Marine Mammal Protection 
Act (MMPA) and the Endangered Species Act (ESA). This action is 
necessary to protect northern right whales from serious injury or 
mortality from entanglement in gillnet gear in their calving area in 
Atlantic ocean waters off the Southeast U.S.

DATES: Comments on this proposed rule must be received by 5 p.m. EST on 
December 15, 2006.

ADDRESSES: You may submit comments, identified by the RIN 0648-AU90, by 
any of the following methods:
    E-mail: sewhalerule.comments@noaa.gov. Include RIN 0648-AU90 in the 
subject line of the message.
    Mail: Assistant Regional Administrator for Protected Resources, 
NMFS, 263 13th Avenue South, St. Petersburg, FL 33701.
    Facsimile (fax) to: 727 824-5309, Attn: Assistant Regional 
Administrator, Protected Resources, NMFS, 263 13th Avenue South, St. 
Petersburg, FL 33701.
    Federal eRulemaking Portal: https://www.regulations.gov. Follow the 
instructions for submitting comments. Instructions: All submissions 
received must include the agency name and docket number or Regulatory 
Information Number (RIN) for this proposed rulemaking. For detailed 
instructions on submitting comments and additional information on the 
rulemaking process, see the ``Public Participation'' heading of the 
SUPPLEMENTARY INFORMATION section of this document. Copies of the draft 
Environmental Assessment (EA), an Initial Regulatory Flexibility 
Analysis (IRFA), and copies of all citations referenced in this 
proposed rulemaking may be obtained from the persons listed under FOR 
FURTHER INFORMATION CONTACT.

FOR FURTHER INFORMATION CONTACT: Laura Engleby, 727-824-5312, or Barb 
Zoodsma, 904-321-2806. Individuals who use telecommunications devices 
for the deaf (TDD) may call the Federal Information Relay Service at 1-
800-877-8339 between 8 a.m. and 4 p.m. eastern time, Monday through 
Friday, excluding Federal holidays.
    Electronic Access: Regulations and background documents for the 
ALWTRP can be downloaded from the ALWTRP web site at https://
www.nero.noaa.gov/whaletrp/.

SUPPLEMENTARY INFORMATION:

Background

    The northern right whale (Eubalaena glacialis) was severely 
depleted by commercial whaling, and despite protection from commercial 
harvest since 1935, has not recovered. The North Atlantic population is 
believed to be at or less than 300 individuals, making it one of the 
most critically endangered large whale populations in the world (NMFS 
2005).
    The northern right whale has been listed as endangered under the 
ESA since the Act's passage in 1973 (35 FR 8495, June 2, 1970). In June 
1994, NMFS designated three areas of the right whale's Atlantic range 
in the United States as critical habitat: (1) Great South Channel, (2) 
Cape Cod Bay, and (3) the southeastern U.S. (59 FR 28793, June 3, 
1994). The southeastern U.S. critical habitat includes coastal waters 
between 31[deg]15' N. lat. and 30[deg]15' N. lat. from the coast out 15 
nautical miles (27.8 km), and the coastal waters between 30[deg]15' N. 
lat. and 28[deg]00' N. lat. from the coast out 5 nautical miles (9.3 
km) (Sec.  226.203 of this chapter).
    As required by the ESA, NMFS developed a recovery plan for the 
northern right whale in 1991, which was revised and updated in 2001 and 
2005. The current recovery plan states,

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``the most immediate need for the North Atlantic right whale is to 
reduce or eliminate human-related deaths and injuries'' (NMFS 2005). 
Furthermore, the development and implementation of strategies to modify 
fishing operations and gear to reduce the likelihood of entanglement, 
mitigate the effect of entanglements, enhance the possibility of 
disentanglement, and assess the effectiveness of such strategies is a 
priority one recovery task, i.e., ``an action that must be taken to 
prevent extinction or to prevent the species from declining 
irreversibly'' (NMFS 2005, p. V-1).
    Northern right whales in the North Atlantic occur in coastal and 
nearshore waters off the eastern United States and Canada, areas also 
used by fishing and other maritime activities that can adversely affect 
the species. Deaths from collisions with ships and entanglement in 
fishing gear are significant impediments to the recovery of the 
species. From 1999 to 2003, human-caused mortality and serious injury 
to northern right whales in the North Atlantic from fishery 
entanglements and ship strikes were estimated as an average of 2.6 
whales per year (U.S. waters, 1.6; Canadian waters, 1.0) (Waring et 
al., 2006). A serious injury has been defined as ``any injury that will 
likely result in mortality'' (Sec.  216.3 of this chapter). Kraus et 
al. (2005) indicated that the overall mortality rate for North Atlantic 
right whales increased between 1980 and 1998 to a level of at least 
four percent per year, a rate that is not sustainable. The 1994 
amendments to the MMPA mandate that, as part of the Stock Assessment 
Reports, Potential Biological Removal (PBR) estimates must be 
determined for each marine mammal stock in U.S. waters. PBR is defined 
as ``the maximum number of animals, not including natural mortalities, 
that may be removed from a marine mammal stock while allowing that 
stock to reach or maintain its optimum sustainable population.'' The 
PBR level for right whales is zero; thus, any mortality or serious 
injury to the species is considered significant.
    Serious injury and mortality of right whales as a result of 
commercial fishing activities continues to occur at a rate above PBR. 
From 1999-2003, Waring et al. (2006) documented 31 reports of 
entanglements that resulted in 5 serious injuries and 3 mortalities, 
for an average of 1.6 mortalities and serious injuries per year over 
that time period.
    To reduce serious injury and mortality of marine mammal stocks 
incidental to commercial fishing operations, MMPA section 118(f) 
directs NMFS to develop and implement take reduction plans (TRPs) to 
assist in the recovery, or prevent the depletion, of each strategic 
stock that interacts with a Category I or II fishery, as defined and 
classified in the annual List of Fisheries. Marine mammals listed under 
the ESA, such as right whales, are automatically considered strategic 
stocks under the MMPA.
    On August 6, 1996 (61 FR 40819), NMFS established the Atlantic 
Large Whale Take Reduction Team (ALWTRT) to prepare a draft TRP to 
reduce serious injury and mortality of right, humpback, and fin whales 
incidental to commercial fishing operations, as well as to provide 
conservation benefits to a fourth, non-endangered species, the minke 
whale. The ALWTRT submitted a report to NMFS on February 1, 1997, with 
recommendations to reduce the serious injury and mortality of Atlantic 
large whales; however, the ALWTRT did not reach consensus on some 
recommendations. Pursuant to the MMPA, NMFS then developed a final 
ALWTRP and implementing regulations based, in part, on the 
deliberations of the ALWTRT and considerable public input. An interim 
final rule was published on July 22, 1997 (62 FR 39157), and a final 
rule was published February 16, 1999 (64 FR 7529), with an April 1, 
1999, effective date. Since that time, the ALWTRP has been modified 
several times to include additional measures designed to reduce the 
serious injury and mortality of large whales in commercial fisheries.
    The ALWTRP, codified at 50 CFR 229.32 of this chapter, relies on a 
combination of fishing gear modifications, gear handling and deployment 
requirements, and time/area closures to reduce the risk of large whales 
becoming entangled in commercial fishing gear. Among these measures are 
specific provisions relevant to the risks posed to right, humpback, and 
fin whales by commercial fishing operations.
    Commercial fisheries operating in the Southeast U.S. that are 
regulated under the ALWTRP include the Southeastern U.S. Atlantic shark 
gillnet and the Southeast Atlantic gillnet fisheries (see List of 
Fisheries, 71 FR 48802, August 22, 2006, for current descriptions). 
Both fisheries are classified as Category II fisheries because they 
have occasional serious injuries and mortalities of marine mammals; 
Category II fisheries are those for which the annual mortality and 
serious injury of a marine mammal stock is greater than 1 percent and 
less than 50 percent of the stock's PBR (50 CFR 229.2).
    The Southeastern U.S. Atlantic shark gillnet fishery uses large 
mesh (5-10 inches (0.127-0.254 m)) nets, typically more than 1,500 ft 
(457 m) long, to target large and small coastal sharks. The fishery has 
traditionally employed drift nets that are set for more than 10 hours. 
The fishery also deploys strikenets in which schools of sharks are 
targeted and encircled, and recently has also started targeting sharks 
with bottom set sink or stab nets (see definitions of gear types at 
Sec.  229.2). The fishery has traditionally operated in coastal waters 
of Florida and Georgia. The shark gillnet fishery is managed by NMFS 
under the Fishery Management Plan (FMP) for Atlantic Tunas, Swordfish, 
and Sharks (implementing regulations at 50 CFR part 635). Fishermen 
possessing or landing sharks in excess of the recreational retention 
limit must have either a NMFS-issued shark directed limited access 
permit or a shark incidental limited access permit (50 CFR 635.4(e)). 
The classification of this fishery as a Category II fishery is driven 
by observed incidental mortalities of the Western North Atlantic 
coastal stock of bottlenose dolphins. In addition, a right whale calf 
was observed in 1994 with wounds indicative of an interaction with 
gillnet gear in the area where this fishery operates. The calf was 
sighted only once and presumed dead (60 FR 67073, December 28, 1995).
    The Southeast Atlantic gillnet fishery is a small mesh (<5 inches 
(12.7 cm)) fishery that may deploy either pelagic (mid-water) or 
demersal (bottom) gillnets. The fishery operates primarily in Federal 
waters from South Carolina to Florida, due to prohibitions on gillnets 
in each of these coastal states. The fishery is dynamic and fishermen 
may alter the configuration or mesh size of their gear at different 
times of the year in order to target different species. The broad 
variety of fish species landed in this fishery was recently recognized 
in the 2006 Final List of Fisheries (71 FR 48802, August 22, 2006) as 
including king mackerel, Spanish mackerel, whiting, bluefish, pompano, 
spot, croaker, little tunny, bonita, jack crevalle, and cobia. Spanish 
mackerel is the primary species targeted by gillnets off the Florida 
east coast (Gulf of Mexico Fishery Management Council et al., 2004). 
Spanish mackerel gillnet fishing uses primarily sink nets, and the 
fishery is active off the east coast of Florida between Ft. Pierce to 
just north of Cape Canaveral during the months of October through 
March. NMFS-issued commercial vessel permits are required to fish for 
Spanish mackerel (Sec.  622.4(a)(2)(iv) of this title), as part of

[[Page 66484]]

the FMP for Coastal Migratory Pelagic Resources (implementing 
regulations at 50 CFR 622). Regulations for Spanish mackerel gillnet 
fishing at Sec.  622.41(c)(3)(ii) of this title include restricting the 
soak period to no more than one hour, allowing only one gillnet to be 
fished, set or placed in the water at any one time, and restricting the 
float line to no longer than 800 yards (732 m). Gillnet gear is not an 
authorized gear type for directed harvest of king mackerel, little 
tunny, bluefish, cobia, or snapper-grouper (including jack crevalle) in 
waters off South Carolina, Georgia or Florida's Atlantic coast (Sec.  
622.41(c)(1) and (d)(1) of this title); landings of these species 
therefore represent incidental catches. Gillnet fishing for whiting 
occurs primarily off Mayport, Florida, using multiple sections of net, 
each approximately 300 yards (274 m) long, for a total of up to 2,800 
yards (2,560 m) of gillnet per vessel. Nets are set on the bottom with 
a height of up to 4 feet (1.13 m). Soak times are up to six hours and 
net soaks may extend into or over night. Pursuant to 50 CFR 229.2, the 
classification of the Southeast Atlantic gillnet fishery as a Category 
II fishery is based on an evaluation of the risk of serious injury and 
mortality that gillnets present to marine mammals that are found in the 
area of operation of this fishery, and from indications that at least 
occasional serious injuries and mortalities occur in this fishery, as 
evidenced by reports of strandings of Western North Atlantic coastal 
bottlenose dolphin from 1994-1998 in the area of operation of this 
fishery (66 FR 6551, January 22, 2001).
    No other gillnet fisheries are known to operate in the Southeast 
U.S. restricted area and during the time when calving and nursing right 
whales are expected to occur.
    The southeast U.S. restricted area is defined in Sec.  
229.32(f)(1)(i) as the waters from 32[deg]00' N. lat. (near Savannah, 
GA) along the coast south to 27[deg]51' N. lat. (near Sebastian Inlet, 
FL) and extending from the shore eastward out to 80[deg]00' W. long. 
NMFS also established the southeast U.S. observer area defined as the 
southeast U.S. restricted area plus an additional area along the coast 
south to 26[deg]46.5' N. lat. (near West Palm Beach, FL) and extending 
from the shore eastward out to 80[deg]00' W. long (50 CFR 
229.32(f)(1)(ii)).
    In the southeast U.S. restricted area, the restricted period is 
from November 15 through March 31 (50 CFR 229.32(f)(4)(i)) 
corresponding with the right whale calving season, as it was understood 
in 1996. Pursuant to 50 CFR 229.32(f)(4)(ii) and (iv), fishermen are 
prohibited from using shark gillnet gear, defined at Sec.  229.2 as 
gillnet with 5 inches (12.7 cm) or greater stretch mesh, in the 
restricted area during the restricted period, except for shark fishing 
with strikenet gear (defined at Sec.  229.2) of any mesh size fished in 
accordance with the following provisions: (1) No nets are set at night 
or when visibility is less than 500 yards (460 m), (2) each set is made 
under the observation of a spotter plane, (3) no net is set within 3 
nautical miles (5.6 km) of a right, humpback, or fin whale, and (4) if 
a right, humpback, or fin whale moves within 3 nautical miles (5.6 km) 
of the set gear, the gear is removed immediately from the water (Sec.  
229.32(f)(4)(iv)). Lastly, all gillnet fishermen are prohibited from 
fishing a straight set of gillnet gear at night within the southeast 
U.S. restricted area during the restricted period (Sec.  
229.32(f)(4)(iii)).
    In the southeast U.S. observer area, the ALWTRP regulations require 
observer coverage, if requested by NMFS, of the Southeastern U.S. 
Atlantic shark gillnet fishery during the restricted period (Sec.  
229.32(f)(3)).
    Because of the right whale's endangered status, NMFS included 
contingency measures in the ALWTRP regulations that would require 
further restriction on fishing in the Cape Cod Bay critical habitat, 
Great South Channel restricted area, and the southeast U.S. restricted 
area if a right whale mortality or serious injury resulted from the use 
of certain fishing gear in those areas during specific times of the 
year. Specifically, Sec.  229.32(g)(1) states that if a serious injury 
or mortality of a right whale occurs in the southeast U.S. restricted 
area during the restricted period as a result of an entanglement by 
gillnet gear allowed to be used in that area and time, the NOAA 
Assistant Administrator for Fisheries (AA) shall close that area to 
that gear type for the rest of that time period and for that same time 
period in each subsequent year, unless the AA revises the restricted 
period or implements other measures under 50 CFR 229.32(g)(2).
    The AA is authorized to preempt or alter closures implemented under 
50 CFR 229.32(g)(1) in subsequent years based on any of the following: 
(1) NMFS verifies that certain gear characteristics are both 
operationally effective and reduce serious injuries and mortalities of 
endangered whales, (2) new gear technology is developed and determined 
to be appropriate, (3) revised fishing gear breaking strengths are 
determined to be appropriate, (4) new marking systems are developed and 
determined to be appropriate, (5) NMFS determines that right whales are 
remaining longer than expected in a closed area or have left earlier 
than expected, (6) NMFS determines that the boundaries of a closed area 
are not appropriate, (7) gear testing operations are considered 
appropriate, or (8) similar situations occur (50 CFR 229.32(g)(2)).
    In 2005, the ALWTRT considered additional measures to further 
protect right whales from serious injury and mortality in commercial 
fishing operations, including in Southeast U.S. waters, and NMFS 
published a proposed rule on June 21, 2005 (70 FR 35894). NMFS prepared 
a Draft Environmental Impact Statement (DEIS), and under the preferred 
alternatives, the following ALWTRP operational measures, specific to 
the southeast U.S. restricted area and adjacent waters, were proposed 
(for a complete list, please consult the 2005 DEIS (Industrial 
Economics, Inc. and NMFS 2005)):
    (1) Dividing, at the 29[deg]00' N. lat., the southeast U.S. 
restricted area into two sections.
    (2) Modifying the restricted period to November 15 through April 15 
for the southeast U.S. restricted area north of 29[deg]00' N. lat., and 
December 1 through March 31 for the southeast U.S. restricted area 
south of 29[deg]00' N. lat.
    (3) Eliminating the 80[deg]00' eastern boundary of the southeast 
U.S. restricted area and extending the area, and respective 
requirements, out to the Exclusive Economic Zone (EZZ).
    (4) Requiring weak links, sinking or neutrally buoyant groundline, 
no floating buoy line at the surface of the water, and anchors for 
gillnets not returned to port with the vessel in the Southeast Atlantic 
gillnet fishery.
    (5) Requiring Vessel Monitoring Systems (VMS) in lieu of ALWTRP-
related observer coverage requirements for the Southeastern U.S. 
Atlantic shark gillnet fishery.
    The final rule is expected to be published in early 2007. NMFS 
recognizes that some of the measures in the 2005 proposed rule and some 
of the measures proposed in this rulemaking concerning the boundaries 
of the Southeast U.S. restricted area differ in some respects. NMFS 
will ensure that the differences are reconciled when completing both 
rulemakings.

Recent Events

    On January 22, 2006, a dead right whale calf was reported offshore 
of Jacksonville Beach, Florida. The right whale calf was towed ashore 
and necropsied by a specialized large whale necropsy team. Evidence of 
recent entanglement was clearly documented by the necropsy team. Damage 
to the animal that was judged to be the result

[[Page 66485]]

of entanglement met NMFS' criteria of a serious injury (i.e., an injury 
likely to result in mortality) (50 CFR 216.3). The immediate cause of 
the whale's death (e.g., dehydration, infection) was not determined by 
the necropsy team. NMFS determined, based on best available information 
and discussions with scientific investigators, that the right whale's 
entanglement and serious injury by gillnet gear allowed to be used in 
the southeast U.S. restricted area during the restricted period 
ultimately led to the death of the animal. Additionally, NMFS 
determined that both the entanglement and death of the whale occurred 
within the southeast U.S. restricted area during the restricted period 
because: (1) all sightings of this calf occurred within the southeast 
U.S. restricted area; (2) all the southeast sightings were during the 
restricted period; (3) mother-calf pairs typically remain on the 
calving grounds in January; (4) the carcass was found within the 
southeast U.S. restricted area; and (5) based on currents, the calf's 
most likely location when it died was inshore and north of where the 
carcass was found.
    As a result of these findings, NMFS enacted temporary restrictions 
on gillnet fishing in the southeast U.S. restricted area from February 
15, 2006, through March 31, 2006 (71 FR 8223, February 16, 2006), in 
accordance with the ALWTRP's implementing regulations at 50 CFR 
229.32(g)(1). The temporary regulation was necessary to protect right 
whales from further serious injury or mortality in the southeast U.S. 
restricted area due to entanglement in gillnet gear. Since implementing 
this regulation, NMFS has collected and analyzed additional information 
to determine, with opportunity for public comment, the scope of 
permanent protective measures required by the regulations.
    On March 7, 2006, a final necropsy report for the dead calf was 
made available to NMFS. The necropsy report supported NMFS' 
determination that the right whale calf was seriously injured and 
ultimately died as a result of entanglement in gillnet gear used in the 
southeast U.S. restricted area during the restricted period. The mesh 
size of the gillnet gear involved in the entanglement could not be 
determined. Various mesh sizes are used within the area, subject to 
different restrictions established under the ALWTRP regulations, 
regulations established under fishery management plans, and applicable 
state authorities.
    Therefore, NMFS believes the application of the implementing 
regulations at Sec.  229.32(g)(1) with respect to the January 2006 
right whale death was, and continues to be, appropriate.
    On April 11 and 12, 2006, NMFS convened a meeting of the ALWTRT's 
Mid-Atlantic/Southeast Subgroup (the SE Subgroup) to seek input 
regarding future management options to protect right whales from 
additional serious injury and mortality from gillnetting within the 
southeast U.S. restricted area. Attending the SE Subgroup meeting were 
representatives of commercial fishermen that actively gillnet in the 
Southeast U.S., right whale scientists, environmentalists, Marine 
Mammal Commission, fishery management organizations, and state and 
Federal resource management agencies.
    NMFS updated the SE Subgroup on: (1) the ALWTRP as it relates to 
the Southeast U.S. (including modifications proposed in 70 FR 35894, 
June 21, 2005), (2) the right whale calf necropsy findings, (3) the 
temporary rule restricting gillnetting in the southeast U.S. restricted 
area from February 16, 2006, through March 31, 2006 (71 FR 8223, 
February 16, 2006), (4) right whale status, (5) habitat and diving 
characteristics of right whales in the Southeast U.S., (6) Southeast 
U.S. gillnet fisheries, and (7) existing gillnet-related state and 
Federal regulations. Various questions and issues raised during the 
meeting included: (1) the need to improve how right whale carcasses are 
handled, (2) the method by which new management measures would be 
implemented, (3) the lack of information regarding the precise mesh 
size of the entangling gillnet implicated in the calf's death, (4) 
allegations that illegal gillnetting was responsible for the calf's 
death, (5) the lack of resources to enforce management restrictions, 
(6) the inadequacy of regulations regarding fishing activities not 
previously considered, (7) the lack of scientific permits that allow 
tagging right whale mothers with calves in the Southeast U.S. to study, 
among other things, dive profiles, (8) the belief that, due to risk to 
the whales, gillnetting is not compatible with a right whale calving 
area, and (9) the fact that PBR for right whales is zero.
    The SE Subgroup discussed various gillnet fishery management 
options for the southeast U.S. restricted area, including using 
29[deg]00' N. lat. to divide the southeast U.S. restricted area into 
northern and southern management zones, consistent with the ALWTRP 
proposed rule (70 FR 35894, June 21, 2005). This management approach 
was advocated due to the different types of fishing operations in these 
two areas, and to allow for better tracking of management measures 
relative to the seasonal movements of right whales as they progress 
southward along Florida during late fall/early winter and progressively 
northward during late winter/early spring.
    Southeast U.S. restricted area south of 29[deg]00' N. lat. The SE 
Subgroup recommended management measures for the southeast U.S. 
restricted area south of 29[deg]00' N. lat. that they believed would 
protect right whales from serious injury and mortality in commercial 
gillnet gear. The recommendation included a combination of retaining 
some of the existing ALWTRP regulations for the two currently active 
gillnet fisheries operating in the area and supplementing them with new 
or modified requirements. For the Southeastern U.S. Atlantic shark 
gillnet fishery, the SE Subgroup recommended: modifying the existing 
restricted period of November 15 through March 31 to December 1 through 
March 31; revising the existing prohibition on shark gillnetting with 5 
inches (12.7 cm) or greater stretch mesh to a prohibition on shark 
gillnetting with any size mesh during the restricted period; and 
retaining the exemptions at Sec.  229.32(f)(iv) for the use of 
strikenet gear to target sharks during the restricted period.
    For the Southeast Atlantic gillnet fishery, the SE Subgroup 
recommended modifying the existing restricted period of November 15 
through March 31 to December 1 through March 31; and revising the 
prohibition on straight sets of gillnet at night to a prohibition on 
fishing with gillnet with an exemption for fishing for Spanish mackerel 
during the periods December 1 through December 31 and March 1 through 
March 31, if fishing was conducted in accordance with the current 
Spanish mackerel regulations at 50 CFR part 622 and these regulations 
are codified within the ALWTRP (to ensure against the possibility that 
regulations at 50 CFR part 622 are changed through FMP amendments). To 
be consistent with the shark strikenet provisions and to provide 
additional protection for right whales, the following new provisions 
would also be required for fishing for Spanish mackerel in the 
southeast U.S. restricted area south of 29[deg]00' N. lat. during the 
suggested restricted period: (1) No net is set at night or when 
visibility is less than 500 yards (460 m); (2) no net is set within 3 
nautical miles (5.6 km) of a right, humpback, or fin whale; and (3) 
gillnet is removed immediately from the water if a right, humpback, or 
fin whale moves within 3 nautical miles (5.6 km) of the set gear.
    The SE Subgroup's recommended measures for the Southeastern U.S.

[[Page 66486]]

Atlantic shark gillnet fishery and the Southeast Atlantic gillnet 
fishery would prohibit fishing with gillnet unless the specified 
restrictions were in place for each of these two fisheries to provide 
protection for right whales. The provisions for Spanish mackerel 
fishing and strikenetting for sharks allow fishing with limited amounts 
of gillnet (due to Spanish mackerel regulations and strikenet 
deployment method) and limited soak times, and therefore keep effort 
per fisherman relatively low overall. Furthermore, nets would not be 
set, or would be removed, if endangered whales were within 3 nautical 
miles (5.6 km) of deployed gear.
    Southeast U.S. restricted area north of 29[deg]00' N. lat. The SE 
Subgroup did not reach consensus on recommended management measures for 
the southeast U.S. restricted area north of 29[deg]00' N. lat. The 
subgroup recognized that the area north of 29[deg]00' N. lat. has a 
higher density of right whales for a longer period during the calving 
season. In 2004, a small group of gillnet fishermen targeting whiting 
also began using this area. The SE Subgroup discussed possible options 
for management measures in this area, including: (1) status quo with 
certain measures that would allow gear and techniques used to gillnet 
whiting, but limit gillnetting for other species (e.g., require 
gillnets with a maximum stretched-mesh size of 3 inches (7.6 cm) and 
less than 25 meshes deep), (2) prohibit gillnetting in this area unless 
strikenetting, (3) prohibit gillnetting in this area altogether, and 
(4) prohibit gillnetting in portions of the area. Possible closed areas 
included the entire southeast U.S. restricted area; the right whale 
critical habitat area; the Mandatory Ship Reporting System (MSRS) Area 
(the area extends from the shoreline east to 80[deg]51.6' W. long. with 
the southern and northern boundaries at 30[deg]00' N. lat. and 
31[deg]27' N. lat., respectively) (33 CFR part 169); and an area from 
the shoreline out to a line drawn at approximately 81[deg] W. long. 
extending from approximately Savannah, Georgia, to Daytona Beach, 
Florida (the area suspected by some SE Subgroup members to include high 
concentrations of right whales not included in the other area 
proposals). Some fishing industry members of the SE Subgroup noted that 
none of these closed area options would allow them to fish safely, 
efficiently, or effectively.
    Following the SE Subgroup meeting, a report summarizing key points 
of the SE Subgroup's meeting was prepared and distributed to the full 
ALWTRT. Comments received from SE Subgroup members after the meeting 
were made available to ALWTRT members upon request.
    Subsequent to the SE Subgroup meeting, the Marine Mammal Commission 
(MMC) submitted a letter to NMFS recommending that NMFS promulgate a 
permanent rule to ensure protection of mother-calf pairs of right 
whales from entanglement in gillnet fisheries. The MMC is charged under 
the MMPA with recommending actions and policies to Federal agencies 
with respect to marine mammal protection and conservation. In their 
letter, dated May 15, 2006, the MMC recommended to NMFS that the rule: 
(1) expand the southeast U.S. restricted area to include waters within 
40 miles (74.1 km) offshore of northern Georgia and South Carolina, (2) 
modify the restricted period to be from November 1 to April 30 in the 
restricted area off South Carolina, and November 15 to April 15 in the 
restricted area off Georgia and Florida, (3) prohibit all gillnet 
fishing in the expanded restricted area during the recommended 
restricted periods, and (4) provide exemptions for Spanish mackerel and 
shark gillnet fishing in the southeast U.S. restricted area south of 
29[deg]00' N. lat.

NMFS Analysis of Need for Additional Action

    Prior to implementing the temporary rule (71 FR 8223, February 16, 
2006) closing the southeast U.S. restricted area to gillnet fishing in 
February and March 2006, NMFS determined that the death of the right 
whale calf was the result of entanglement in gillnet gear allowed to be 
used in the southeast U.S. restricted area during the restricted 
period. NMFS has received additional information since that time; 
specifically, the final necropsy report and the discussions of the SE 
Subgroup. The new information supports NMFS' original determination. 
Therefore, ALWTRP regulations at Sec.  229.32(g)(1) require the 
permanent closure of the southeast U.S. restricted area during the 
annual restricted period. However, a complete gillnet prohibition in 
the southeast U.S. restricted area can be avoided if certain conditions 
as specified under Sec.  229.32(g)(2) exist. Consequently, NMFS 
analyzed whether it was appropriate to propose a revised permanent 
gillnet prohibition in the southeast U.S. restricted area in accordance 
with Sec.  229.32(g)(1) and (2), and whether the management measures 
recommended by the SE Subgroup and the MMC were consistent with the 
measures in Sec.  229.32(g)(2).

Restricted Area

    As recommended by the MMC, NMFS considered expanding the southeast 
U.S. restricted area to include waters off South Carolina. Aerial 
surveys for right whales conducted between 2001 and 2005 have shown 
consistent occurrence of right whales in waters off South Carolina 
throughout winter months (McLellan et al., 2001; Glass et al., 2005). 
In addition, there is evidence that some calving females may remain in 
this area north of the traditionally defined calving grounds. For 
example, during the 2004/2005 calving season, right whale 1970 
and her calf were observed multiple times off South Carolina by an 
aerial monitoring team, but were never observed farther south off 
Georgia and Florida (Glass et al., 2005). Acoustic monitoring conducted 
during 2004 and 2005 also indicated the presence of right whales off 
South Carolina during winter months, including detections of right 
whale vocalizations at a monitoring station approximately 30 miles 
(55.6 km) offshore (Clark, 2006). Furthermore, habitat models based on 
the aerial survey data collected off Florida and Georgia suggest a 
strong relationship between the spatial distribution of calving right 
whales and water temperature and bathymetry. In particular, 
distribution of calving right whales is strongly correlated with water 
temperatures between 13-15[deg]C and water depths between 45-60 ft (15-
20m) (Keller et al., 2006; Garrison, 2006). These environmental 
conditions are typically found off South Carolina to distances of 35 
nautical miles (64.8 km) from shore during winter months. The model 
predictions are consistent with observational evidence from aerial and 
acoustic surveys. The available data and analyses indicate that the 
continental shelf off South Carolina is a region where right whales 
occur on a consistent basis in winter months.
    South Carolina commercial fisheries landings data (which 
distinguishes landings by gear-type since 2003) indicate that only 
shark has been landed in South Carolina from gillnet fishing, and only 
in 2004 and 2005. Shark was harvested off South Carolina by gillnet 
from April through October, 2004, and from May through September, 2005, 
for a total of 8,097 lbs (3,680 kg) and 18,318 lbs (8,326 kg) of shark 
harvested in 2004 and 2005, respectively. Commercial fisheries landings 
data from the Florida Fish and Wildlife Conservation Commission (FWC) 
indicate that in Florida, 111,210 lbs (50,444 kg) of shark were landed 
in 2004 alone. Consequently, expanding the southeast U.S. restricted 
area to waters off South Carolina would appear to only minimally impact 
the amount of shark

[[Page 66487]]

harvested in the Southeast if gillnetting is restricted or prohibited. 
However, the action would have conservation benefits to right whales by 
preventing the potential expansion of gillnetting activity into that 
area during the time when it is used by right whales. Therefore, in 
accordance with Sec.  229.32(g)(2)(vi), NMFS has determined that the 
existing boundaries of the southeast U.S. restricted area are not 
appropriate, and that expanding the southeast U.S. restricted area to 
include the waters within 35 nautical miles (64.8 km) off South 
Carolina is necessary to prevent serious injury or mortality of right 
whales in that area (Figure 1).
    As recommended by the MMC and consistent with recommendations of 
the SE Subgroup and with the 2005 ALWTRP proposed rule (70 FR 35894, 
June 21, 2005), NMFS also considered the appropriateness of managing 
the expanded southeast U.S. restricted area as two separate units 
divided at 29[deg]00' N. lat. As indicated previously, fishermen 
participating in the SE Subgroup meeting indicated gillnet fishing 
practices north of 29[deg]00' N. lat. differed substantially from those 
south of 29[deg]00' N. lat. and preferred that these two areas be 
managed independently of each other. A review of the Right Whale 
Sightings Database, curated by the University of Rhode Island, 
indicates that right whales are rarely sighted south of 29[deg]00' N. 
lat. in November or in April. However, right whales have been sighted 
throughout the area north of 29[deg]00' N. lat. and extending north to 
the SC/NC border from mid-November through mid-April. NMFS has 
determined that splitting the southeast U.S. restricted area into two 
zones for purposes of managing gillnet threats to calving right whales 
is appropriate, as it would allow fishery management measures to 
temporally track right whale seasonal north-south movement patterns, 
thereby avoiding overly restrictive fishery management measures.
    NMFS considered the SE Subgroup discussions regarding possible 
alternative restricted areas including: the right whale calving 
critical habitat area; the MSRS Area; and an area from the shoreline 
out to a line drawn at approximately 81[deg] W. long. extending from 
about Savannah, Georgia, to Daytona Beach, Florida (the area suspected 
by some SE Subgroup members to include high concentrations of right 
whales not included in the other area proposals). In considering these 
options, NMFS reviewed available sightings data and habitat-modeling 
analyses relative to right whale distribution in the Southeast U.S. 
(Keller et al., 2006; Garrison, 2006). Right whales have routinely been 
observed outside of areas discussed for closure by the SE Subgroup, and 
habitat-modeling analyses, in particular, indicate that right whales 
are expected to occur outside of these areas due to suitable water 
temperature and bathymetry during winter. Reducing the size of the 
restricted area would leave right whales unprotected from gillnet 
fishing effort. Therefore, NMFS has determined it is not appropriate to 
use critical habitat, the MSRS Area, or the area west of 81[deg] W. 
long. to manage gillnet fishing activity as per Sec.  229.32(g)(1) and 
(2).

Restricted Periods

    NMFS also considered whether right whales were remaining longer or 
leaving earlier than previously expected in the southeast U.S. 
restricted area, recognizing that a substantial amount of aerial survey 
data and opportunistic sightings of right whales had been collected 
since the ALWTRP was originally implemented in 1997. The November 15 
through March 31 timeframe is currently established as the restricted 
period for the entire southeast U.S. restricted area. As indicated 
earlier, right whales are rarely sighted south of 29[deg]00' N. lat. in 
November or in April; however, right whales have been sighted 
throughout the area north of 29[deg]00' N. lat. and extending north to 
the SC/NC border from mid-November through mid-April. Consequently, in 
accordance with 50 CFR 229.32(g)(2)(v), NMFS has determined that it is 
appropriate to modify the annual restricted period to include two 
restricted periods specific to the proposed northern and southern zones 
of the southeast U.S. restricted area: November 15 through April 15 
north of 29[deg]00' N. lat., and to December 1 through March 31 south 
of 29[deg]00' N. lat. This is consistent with NMFS' June 21, 2005, 
proposed rule to amend the ALWTRP (70 FR 35894).

Prohibition of Gillnet Fishing in the Proposed Expanded Southeast U.S. 
Restricted Area During New Proposed Restricted Periods

    The southeast U.S. restricted area north of 29[deg]00' N. lat. is 
the core of the calving area and used extensively by mother-calf right 
whale pairs during the restricted period. Although strikenetting for 
sharks and fishing for other species with small mesh gillnets is 
currently authorized under the ALWRTP in this area, fishing effort in 
this area appears to be limited primarily to fishermen using small mesh 
gillnets to target whiting, as part of the Southeast Atlantic gillnet 
fishery. Therefore, this is the only gillnet fishery operation NMFS 
analyzed for a potential exemption to the prohibition under the 
provision of Sec.  229.32(g)(2) for the southeast U.S. restricted area 
north of 29[deg]00' N. lat. NMFS did not consider exemptions for 
fisheries using gear or methods already prohibited under ALWTRP 
regulations, including drift gillnetting for shark (62 FR 39157, July 
22, 1997).
    Gillnet fishing for whiting is concentrated in the vicinity of the 
St. John's River entrances, near the location where the entangled, dead 
right whale calf was first reported. Gear and operational restrictions 
for gillnet fishing in this area discussed by the SE Subgroup, such as 
limiting nets to less than 3 inches (7.6 cm) stretched mesh and no more 
than 25 meshes deep, using weak links, and prohibiting night time sets, 
would effectively restrict gillnet fishing in this area to only the 
methods used to target whiting. These measures are not operationally 
effective to adequately reduce risk to right whales since large amounts 
of net would still be allowed to be in the water, fishing for whiting 
is not subject to any Federal FMP that would restrict future increases 
in fishing effort or landings, it is unknown if weak links will release 
very young calves, and vertical lines are thought to present a risk to 
right whales. NMFS considered whether other special conditions exist or 
could be imposed on the whiting fishery to allow for a revision of the 
closed area as provided under Sec.  229.32(g)(1) and (2). Weak links 
are used for reducing the threat of entanglement to large whales; 
however, NMFS is concerned that this or other technology may not 
sufficiently reduce risk to right whale calves from entanglement in 
gillnet gear due to the substantially smaller size and reduced strength 
of young right whale calves relative to adults. Similarly, the 
appropriate breaking strength suitable for freeing small right whale 
calves from entangling gillnet gear is unknown. Gear marking may be 
helpful to facilitate monitoring right whale entanglement rates or 
assist in designing future bycatch reduction measures; however, it will 
not reduce the risk to right whales from becoming entangled in the 
marked gear. Gear testing may hold promise for reducing serious injury 
or mortality to right whales in the southeast U.S. restricted area from 
gillnet fishing activity in the future, but gear testing, if 
implemented at present, will not reduce the immediate risk of serious 
injury and mortality to right whales incidental to gillnet fishing 
activity in the proposed

[[Page 66488]]

expanded southeast U.S. restricted area during the restricted period. 
Thus, NMFS has determined, consistent with Sec.  229.32(g)(2), that no 
measures currently available would adequately protect right whales from 
the risk of serious injury or mortality due to gillnet operations 
during the restricted period in the southeast U.S. restricted area 
north of 29[deg]00' N. lat. Therefore, NMFS proposes to prohibit 
fishing with or possessing gillnet during the restricted period in the 
proposed expanded southeast U.S. restricted area north of 29[deg]00' N. 
lat.
    NMFS also proposes to prohibit fishing with gillnets during the 
restricted period in the proposed expanded southeast U.S. restricted 
area south of 29[deg]00' N. lat. The only fisheries currently active in 
this area during the restricted period are the strikenet component of 
the Southeastern U.S. Atlantic shark gillnet fishery and the Spanish 
mackerel component of the Southeast Atlantic gillnet fishery. 
Therefore, these are the only two gillnet operations NMFS considered 
for a potential exemption pursuant to Sec.  229.32(g)(2). NMFS is 
proposing to exempt these operations from the gillnet prohibitions, 
with additional restrictions as discussed in more detail below, because 
they are operationally effective and reduce serious injuries and 
mortalities of right whales, as required under Sec.  229.32(g)(2)(i). 
The determination to allow for limited exemptions in the area south of 
29[deg]00' N. lat. during the restricted period is based on several 
factors, including right whale distribution patterns in this area and 
time, existing state gillnet prohibitions, and gear characteristics and 
operational methods used in the deployment of these two fisheries. 
Regarding right whale distribution patterns, aerial survey data and 
habitat modeling analyses indicate that right whales are distributed 
closer to shore (and predominantly in state waters) when they are south 
of 29[deg]00' N. lat. than when they are north of 29[deg]00' N. lat. 
during the restricted period. Current regulations prohibiting gillnets 
in Florida state waters provide additional protection for right whales 
when they are closer to shore (i.e., when they are in waters south of 
29[deg]00' N. lat.). As discussed in more detail below, the proposed 
exempted gillnet operations, with the combination of existing and new 
regulatory requirements on the type of gear that can be used in this 
area and during the restricted period, are both operationally effective 
and capable of protecting right whales from the risk of serious injury 
and mortality of right whales, pursuant to Sec.  229.32(g)(2)(i).
    This approach of prohibiting gillnet fishing in the southeast U.S. 
restricted area south of 29[deg]00' N. lat. during the restricted 
period, while allowing for limited exemptions for specific known 
fishing operations considered by NMFS and determined to have a 
negligible risk to right whales, is consistent with Sec.  229.32(g)(1) 
and (2), and effectively eliminates the risk of any new gillnet fishing 
operation from emerging in this area during this period without first 
considering the risk that particular operation poses to right whales 
and whether that operation meets the conditions for an exemption in 
Sec.  229.32(g)(2).

Exemption for the Strikenet Component of the Southeastern U.S. Atlantic 
Shark Gillnet Fishery

    NMFS considered if gear characteristics of the strikenet component 
of the Southeastern U.S. Atlantic shark gillnet fishery, as currently 
specified under the ALWTRP regulations at Sec.  229.32 and under the 
shark regulations at part 635 of this title, were both operationally 
effective and capable of protecting right whales from the risk of 
reducing serious injury and mortality in the area south of 29[deg]00' 
N. lat. during the restricted period, pursuant to Sec.  
229.32(g)(2)(i).
    The ALWTRT's recommendations and NMFS' management approach for the 
shark gillnet fishery under the original ALWTRP implemented in 1997 was 
to minimize the overlap between this fishery and right whale 
distribution in the Southeast (62 FR 39157, July 22, 1997). At the time 
of enactment of the ALWTRP, fishermen fishing for sharks with gillnets 
used large mesh gillnets of 5 inches or greater stretch mesh. To reduce 
potential take of right whales incidental to shark gillnetting 
activity, fishing with gillnets of 5 inches stretched mesh or greater 
was prohibited in the southeast U.S. restricted area during the 
restricted period, unless used as strikenets in accordance with Sec.  
229.32(f)(4)(iv). Fishing for sharks with strikenets generally uses 
less gillnet and shorter soak times than traditional shark gillnets 
that are deployed in straight sets. Furthermore, the ALWTRP requires 
that nets not be set, or must be removed, if endangered whales are 
within 3 nautical miles (5.6 km) of deployed gear, that no nets are set 
at night or in low visibility, and that sets be made under the 
observation of spotter planes (Sec.  229.32(f)(4)(iv)). With these 
restrictions in place, fishing for shark with strikenets was considered 
to present an acceptable level of risk to endangered whales.
    Discussions at the SE Subgroup meeting suggest this approach of 
prohibiting shark gillnetting in the southeast U.S. restricted area 
during the restricted period under the ALWTRP, while exempting 
strikenetting for sharks in accordance with Sec.  229.32(f)(iv), has 
been largely successful at protecting right whales from the risk of 
serious injury and mortality, and that the strikenet component of the 
Southeastern U.S. Atlantic shark gillnet fishery should continue to be 
allowed as an exemption to the prohibitions on gillnetting under the 
ALWTRP during the restricted period, but only in the area south of 
29[deg]00' N. lat. However, at the SE Subgroup meeting, NMFS learned 
that, consistent with the ALWTRP regulations, gillnet fishermen would 
not set strikenets after sunset, but that occasionally nets were not 
completely removed from the water until after sunset. NMFS believes the 
intent of the original restriction in the ALWTRP regulations at Sec.  
229.32(f)(4)(iv) to prohibit setting at night was to eliminate the 
possibility of endangered whales moving undetected within close 
proximity of deployed gillnets during periods of low visibility. 
Consequently, NMFS is proposing, as an additional condition of this 
exemption, an amendment to the existing regulations at Sec.  
229.32(f)(4)(iv) that would specifically require all nets to be removed 
from the water before night or immediately if visibility decreases 
below 500 yards (460 m).
    NMFS is also proposing that only fishermen that have a valid 
commercial directed shark limited access permit be exempted from the 
gillnet prohibition, so that fishing effort is limited to ensure that 
no one tries to fish in this area without following the other 
regulations applicable to the shark gillnet fishery at Sec.  
229.32(f)(4)(iv).
    NMFS has determined that the combination of: existing gear 
requirements at Sec.  229.32(f)(4)(iv), the proposed new requirements 
for fishermen to have a valid commercial directed shark limited access 
permit, the proposed new restrictions on strikenets in the water at 
night and during times of low visibility, known and predicted right 
whale distribution patterns in the southeast U.S. restricted area south 
of 29[deg]00' N. lat. during the restricted period, and existing 
Florida regulations prohibiting gillnets in state waters, are 
operationally effective and will protect right whales from the risk of 
serious injury or mortality in the southeast U.S. restricted area south 
of 29[deg]00' N. lat. during the restricted period, thereby

[[Page 66489]]

warranting an exemption, pursuant to Sec.  299.32(g)(2)(i), to allow 
the use of strikenets to fish for sharks during this time and in this 
area. This determination is consistent with the consensus 
recommendation of the SE Subgroup and the MMC's recommendation.

Exemption for the Spanish Mackerel Component of the Southeast Atlantic 
Gillnet Fishery

    NMFS considered if gear characteristics of the Spanish mackerel 
component of the Southeast Atlantic gillnet fishery were both 
operationally effective and capable of protecting right whales from the 
risk of serious injury and mortality in the area south of 29[deg]00' N. 
lat., pursuant to Sec.  229.32(g)(2)(i). As noted previously, the 
Spanish mackerel component of the Southeast Atlantic gillnet fishery is 
the only directed gillnet fishery that currently operates in the 
southeast U.S restricted area south of 29[deg]00' N. lat. during the 
restricted period.
    The SE Subgroup discussed the characteristics and deployment 
methods of gillnet fishing for Spanish mackerel to determine whether 
this fishing operation warranted an exemption under Sec.  229.32(g)(2) 
from the recommended prohibition on gillnets in the southeast 
restricted area south of 29[deg]00' N. lat. during the restricted 
period. Members noted that right whales were found in cooler water 
temperatures than Spanish mackerel and that the two species may 
separate themselves seasonally for this reason. Furthermore, gillnet 
fishing for Spanish mackerel is already regulated under fishery 
management plan regulations in a way that greatly limits soak time and 
the amount of gear that can be used, thereby reducing the potential for 
interactions with large whales. Specifically, regulations for Spanish 
mackerel gillnet fishing at Sec.  622.41(c)(3)(ii) of this title 
include restricting the soak period to no more than one hour, allowing 
only one gillnet to be fished, set or placed in the water at any one 
time, and restricting the float line to no longer than than 800 yards 
(732 m). The SE Subgroup recommended that an exemption be provided to 
allow gillnet fishing for Spanish mackerel in the southeast U.S 
restricted area south of 29[deg]00' N. lat. during December and March 
(when Spanish mackerel are likely in the southeast U.S. restricted area 
but south of 29[deg]00' N. lat.), provided: (1) the Spanish mackerel-
related regulatory provisions in 50 CFR part 622 are amended to the 
ALWTRP, (2) fishing at night is prohibited, (3) nets are not set if 
endangered whales are within 3 nautical miles (5.6 km), and (4) nets 
are removed from the water if an endangered whale moves within 3 
nautical miles (5.6 km) of the gear.
    NMFS agrees with the SE Subgroup and MMC that gillnet gear 
characteristics when fishing for Spanish mackerel in accordance with 
provisions in the SE Subgroup's recommended measures represents a 
negligible risk to right whales. Specifically, NMFS has determined that 
the combination of: existing gear requirements for Spanish mackerel 
gillnets at Sec.  622.41 (c)(3)(ii) of this title, new gear 
requirements prohibiting the setting of gear at night or in low 
visibility and requiring nets not to be set and to be removed from the 
water if endangered whales are within 3 nautical miles, known and 
predicted right whale distribution patterns in the southeast U.S. 
restricted area south of 29[deg]00' N. lat. during December and March, 
and existing Florida regulations prohibiting gillnets in state waters, 
are operationally effective and will protect right whales from the risk 
of serious injury or mortality in the southeast U.S. restricted area 
south of 29[deg]00' N. lat. from December 1-31 and from March 1-31, 
thereby warranting an exemption, pursuant to Sec.  229.32(g)(2)(I) of 
this title, to allow the use of gillnets to fish for Spanish mackerel 
during this time and in this area.
    Humpback and fin whales are not known to occur in Southeast U.S. 
waters as frequently as right whales; however, by including humpback 
and fin whales, in addition to right whales, within the provisions 
would provide important protection to right whales in the event a 
gillnet fishermen mistakenly identifies a right whale as a humpback or 
fin whale and fails to remove gear from the water. Providing this 
protection to humpback and fin whales is also an appropriate amendment 
of the ALWTRP regulations because it satisfies the MMPA's standards 
that such regulations reduce incidental mortality and serious injury of 
marine mammals taken in the course of commercial fishing covered by the 
plan to insignificant levels approaching a zero rate.
    NMFS also considered the characteristics of gillnet fishing for 
whiting. However, as noted above, fishing effort targeting whiting has 
only occurred north of 29[deg]00' N. lat. to date (landings south of 
29[deg]00' N. lat. have been bycatch), and there was no indication from 
fishermen at the SE Subgroup meeting that fishing for whiting would be 
pursued south of 29[deg]00' N. lat. Therefore, until such time that 
there is a need to consider an exemption for whiting or any other 
component of the Southeast Atlantic gillnet fishery, the only component 
of the Southeast Atlantic gillnet fishery proposed for exemption from 
the gillnet prohibition south of 29[deg]00' N. lat. is Spanish 
mackerel.

Transits with Gillnet in the Proposed Expanded Southeast U.S. 
Restricted Area North of 29[deg]00' N. lat. During the New Proposed 
Restricted Period

    NMFS considered the difficulties for law enforcement in sometimes 
discerning between vessels with gillnet onboard that are merely 
transiting through a closed area versus vessels with gillnet onboard 
that may be engaged in illegal fishing in a closed area. Therefore, 
NMFS is proposing to prohibit possession of gillnet in the expanded 
Southeast U.S. Restricted Area north of 29[deg]00' N. lat., where no 
exemptions to the gillnet prohibitions are proposed during the 
restricted period. Gillnet vessels that typically fish in the southeast 
U.S. restricted area are rather small, and gillnet fishermen typically 
only make short-range, single-day trips when they are fishing and would 
have fish on board. NMFS believes that gillnet fishermen would not be 
transporting fish over long distances (i.e., through the southeast U.S. 
restricted area north of 29[deg]00' N. lat.) since these smaller 
fishing vessels generally do not have the capacity to hold and preserve 
fish while transiting safely over this large distance (i.e., between 
North Carolina and Cape Canaveral, FL). However, NMFS considered that 
some gillnet fishermen may need to transit through this portion of the 
expanded Southeast U.S. Restricted Area en route to fishing grounds on 
either side of that area. Consequently, NMFS is also proposing 
providing an exemption for vessels that are transiting through the 
expanded Southeast U.S. Restricted Area north of 29[deg]00' N. lat. 
from the prohibition of possessing a gillnet, if gear is stowed in 
accordance with this rule.

Observer Call-in Requirement

    Present ALWTRP regulations state that no person may fish with shark 
gillnet gear in the southeast U.S. observer area during the restricted 
period unless that person calls the NMFS Southeast Regional Office in 
St. Petersburg, FL not less than 48 hours prior to departing on any 
fishing trip. However, the NMFS Southeast Fisheries Science Center 
Laboratory in Panama City, FL is responsible for arranging observer 
coverage. NMFS believes that this discrepancy may result in confusion 
and is, consequently, proposing changing the call-in requirement from 
the Southeast

[[Page 66490]]

Regional Office in St. Petersburg to the Panama City Laboratory.

Endangered Species Act as an Authority

    NMFS is responsible for ensuring that takings of endangered right 
whales by commercial fishing activities do not violate the ESA as well 
as the MMPA. Consequently, NMFS is promulgating the proposed amendments 
and revisions to Sec.  229.32(f) under the MMPA and under section 11(f) 
of the ESA, which authorizes regulations appropriate to enforce the ESA 
including to prevent unauthorized takings.

Proposed Management Measures for Gillnetting Activity in the Southeast 
U.S. Restricted Area

    This section summarizes the modifications that NMFS is proposing to 
the ALWTRP in the Southeast U.S. through this proposed rule. The 
proposed restrictions are in accordance with requirements of Sec.  
229.32(g)(1) and (g)(2).
    NMFS proposes to expand the southeast U.S. restricted area to 
include waters off South Carolina, within 35 nautical miles (64.8 km) 
of shore. NMFS is also specifically soliciting comments on the 
appropriateness of extending the Restricted Area to 40 nautical miles 
(74.1 km) offshore of South Carolina, as recommended by the MMC in its 
May 2006 letter to NMFS. NMFS is proposing to divide, at 29[deg]00' N. 
lat., the Southeast U.S. Restricted Area into Southeast U.S. Restricted 
Areas N and S, and to amend the restricted period for the two areas to 
be from November 15 through April 15 and December 1 through March 31, 
respectively. However, NMFS is also specifically soliciting comments on 
the appropriateness of a restricted period of November 1 through April 
30 for the Southeast U.S. Restricted Area N. Figure 1 illustrates the 
proposed restricted area and restricted periods. NMFS notes that the 
June 21, 2005, proposed rule (70 FR 35894) also proposed to divide the 
restricted area and amend the restricted periods in the same manner as 
proposed in this rulemaking. Thus, unless changed in response to public 
comment, these provisions will be implemented in the first of these 
rules to be finalized.
    NMFS is proposing that, during restricted periods, fishing with or 
possessing gillnet in the Southeast U.S. Restricted Area N be 
prohibited and fishing with gillnet in the Southeast U.S. Restricted 
Area S be prohibited. Special exemptions for the Southeast U.S. 
Restricted Area S would apply as follows: (1) strikenet component of 
the Southeastern U.S. Atlantic shark gillnet fishery - Fishing for 
sharks with gillnet with a 5-inch (12.7-cm) or greater stretch mesh 
size in the Southeast U.S. Restricted Area S is exempt from the 
restrictions during the restricted period if: (a) gillnet is deployed 
so that it encloses an area of water, (b) a valid commercial directed 
shark limited access permit has been issued to the vessel in accordance 
with Sec.  635.4(e) of this title and is on board; (c) no net is set or 
remains in the water at night or when visibility is less than 500 yards 
(460 m), (d) each set is made under the observation of a spotter plane, 
(e) no gillnet is set within 3 nautical miles (5.6 km) of a right, 
humpback, or fin whale, and (f) gillnet is removed immediately from the 
water if a right, humpback, or fin whale moves within 3 nautical miles 
(5.6 km) of the set gear. (2) Spanish mackerel component of the 
Southeast Atlantic gillnet fishery - Fishing with gillnet for Spanish 
mackerel in the Southeast U.S. Restricted Area S is exempt from the 
restrictions during the periods December 1 through December 31, and 
March 1 through March 31, if: (a) gillnet mesh size is between 3.5 
inches (8.9 cm) and 4.9 inches (12.4 cm) stretched mesh, (b) a valid 
commercial vessel permit for Spanish mackerel has been issued to the 
vessel and is on board, (c) no person may fish with, set, place in the 
water, or have on board a gillnet with a float line longer than 800 yd 
(732 m), (d) no person may fish with, set, or place in the water more 
than one gillnet at any time, (e) no more than two gillnets, including 
any net in use, may be possessed at any one time; provided, however, 
that if two gillnets, including any net in use, are possessed at any 
one time, they must have stretched mesh sizes (as allowed under the 
regulations) that differ by at least 0.25 inch (0.64 cm), (f) no person 
may soak a gillnet for more than 1 hour, (g) no net is set or remains 
in the water at night or when visibility is less than 500 yards (460 
m), (h) no net is set within 3 nautical miles (5.6 km) of a right, 
humpback, or fin whale, (i) gillnet is removed immediately from the 
water if a right, humpback, or fin whale moves within 3 nautical miles 
(5.6 km) of the set gear, and (j) gillnet must be removed from the 
water before night or immediately if visibility decreases below 500 
yards (460 m).

Exemptions for Transiting through the Proposed Expanded Southeast U.S. 
Restricted Area North of 29[deg]00' N. lat. During the New Proposed 
Restricted Period

    Vessels with gillnet onboard may transit through the Southeast U.S. 
Restricted Area north of 29[deg]00' N. lat. during the Restricted 
Period if: All nets are covered with canvas or other similar material 
and lashed or otherwise securely fastened to the deck, rail, or drum; 
and all buoys, high flyers, and anchors are disconnected from all 
gillnets. No fish may be possessed aboard such a vessel in transit.

Definitions

    NMFS is proposing to remove the definitions for ``Shark 
gillnetting,'' ``Strikenet or to fish with strike gillnet gear,'' and 
``to strikenet for sharks'' from the regulations at Sec.  229.2. NMFS' 
proposed regulatory language more effectively addresses these 
definitions by including them where they are used in Sec.  229.32(f). 
Similarly, NMFS is proposing to modify language at Sec.  229.32(g)(1) 
to be consistent with the modifications of the restricted areas 
contained in this proposed rule.

Other Changes to