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Taking of Marine Mammals Incidental to Commercial Fishing Operations; Atlantic Large Whale Take Reduction Plan (ALWTRP) and Endangered Species Conservation; Restriction of Fishing Activities
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: February 16, 2006 (Volume 71, Number 32)]
[Rules and Regulations]
[Page 8223-8227]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16fe06-9]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Parts 224 and 229
[Docket No. 060213033-6033-01; I.D. 021006A]
RIN 0648-AU23
Taking of Marine Mammals Incidental to Commercial Fishing
Operations; Atlantic Large Whale Take Reduction Plan (ALWTRP) and
Endangered Species Conservation; Restriction of Fishing Activities
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Temporary rule.
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SUMMARY: The Assistant Administrator for Fisheries (AA), NOAA,
announces temporary restrictions on gillnet fishing in the Southeast
U.S. Restricted Area through March 31, 2006, consistent with the
requirements of the ALWTRP's implementing regulations. NMFS is taking
this action based on its determination that a right whale mortality,
documented on January 22, 2006, was the result of an entanglement by
gillnet gear within the Southeast U.S. Restricted Area. This action is
necessary to protect North Atlantic right whales from further serious
injury or mortality from entanglement in gillnet gear in the Southeast
U.S. Restricted Area.
DATES: This action is effective from 0001 hours February 15, 2006
through 2400 hours March 31, 2006.
ADDRESSES: Copies of the Environmental Assessment (EA) prepared in
association with this temporary rule may be obtained from the persons
listed below under FOR FURTHER INFORMATION CONTACT section.
FOR FURTHER INFORMATION CONTACT: Vicki Cornish, 727-824-5312, Juan
Levesque, 727-824-5312, or Barb Zoodsma, 904-321-2806.
Electronic Access: Regulations and background documents for the
ALWTRP can be downloaded from the ALWTRP Web site at
http://www.nero.noaa.gov/whaletrp/. 
SUPPLEMENTARY INFORMATION:
Background
The North Atlantic right whale (Eubalaena glacialis) was severely
depleted by commercial whaling and despite protection from commercial
harvest since 1935, has not recovered. The population is believed to be
at or less than 300 individuals, making it one of the most critically
endangered large whale species in the world (NMFS, 2005).
The North Atlantic right whale has been listed as endangered under
the Endangered Species Act (ESA) since the ESA's passage in 1973 (35 FR
8495, June 2, 1970). In June 1994, NMFS declared three areas of the
right whale's 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, and the coastal waters between 30[deg]15'
N lat. and 28[deg]00' N lat. from the coast out 5 nautical miles (50
CFR 226.203).
North Atlantic right whales occur in coastal and nearshore waters
off the eastern United States and Canada, areas also used by fishing
and other maritime activities that adversely affect the species. Deaths
from collisions with ships and entanglement in fishing gear are
significant impediments to the recovery of the species. From 1997 to
2001, human-caused mortality and serious injury to North Atlantic right
whales from fishery entanglements and ship strikes was estimated as an
average of 2.0 per year (Waring et al., 2003). A serious injury has
been defined as ``any injury that will likely result in mortality'' (50
CFR 216.3). Kraus et al. (2005) indicated that the overall mortality
rate increased between 1980 and 1998 to a level of at least four
percent per year, a rate that is not sustainable. The Potential
Biological Removal (PBR) level for right whales is zero; thus, any
mortality or serious injury to the species is considered significant.
The serious injury and mortality of the right whale as a result of
commercial fishing activities continues to occur at a rate above PBR
(Waring et al., 2003). Knowlton and Kraus (2001) documented 56 right
whale human-related serious injuries and deaths from 1970 to 1999, with
at least 31 attributed to entanglements in fishing gear, for an average
of 1.0 mortalities and serious injuries per year over that time period.
Cole et al. (2005) documented, for 1999-2003, 31 reports of
entanglements, 5 resulting in serious injuries and 3
[[Page 8224]]
resulting in mortalities, for an average of 1.6 mortalities and serious
injuries per year over that time period.
NMFS criteria for determining whether an entanglement of a right
whale is a serious injury (i.e., an injury likely to result in the
mortality of an animal, when its actual fate is unknown), include
fishing line constricting the tail flukes of the whale (Cole et al.,
2005). The same document states that a whale is typically not considered
seriously injured if all constricting lines are shed by the animal or
removed (presumably by an experienced team of disentanglement experts).
To reduce the incidental serious injury and mortality of marine
mammal stocks in commercial fishing operations, section 118(f) of the
Marine Mammal Protection Act (MMPA) directs NMFS to develop and
implement Take Reduction Plans (TRP) 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.
On August 6, 1996 (61 FR 40819), NMFS established the Atlantic
Large Whale Take Reduction Team (ALWTRT) to prepare a draft TRP to
reduce the incidental serious injury and mortality of right, humpback,
and fin whales in 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. NMFS then developed a final TRP and implementing
regulations after 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 this time, the ALWTRP has been modified several times to reduce
the serious injury and mortality of large whales in commercial fisheries.
The ALWTRP, implemented through regulations at 50 CFR 229.32,
relies on a combination of fishing gear modifications, operational
restrictions, and time/area closures to reduce the risk of large whales
becoming entangled in commercial fishing gear. NMFS implemented
specific management measures for commercial fishing operations in
Southeast U.S. waters.
The Southeastern U.S. Restricted Area is defined in 50 CFR
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.
The regulations define the Southeast U.S. Observer Area 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. Observer Area, the ALWTRP regulations mandate
100-percent observer coverage of the Southeastern U.S. Atlantic shark
gillnet fishery during the restricted period (November 15 through March
31), which corresponds with the right whale calving season (50 CFR
229.32(f)(3)). Additionally, fishermen are prohibited from using shark
gillnet gear, defined as 5-inches (0.127-m) or greater stretch mesh (50
CFR 229.2), in the Southeast U.S. Restricted Area during the restricted
period (November 15 through March 31) (50 CFR 229.32(f)(4)(i)). Shark
gillnetting using strikenet gear is allowed in the Southeast U.S.
Restricted Area as long as the following conditions are met: (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 of a right, humpback, or fin
whale; and (4) if a right, humpback, or fin whale moves within 3
nautical miles of the set gear, the gear is removed immediately from
the water (50 CFR 229.32(f)(4)(iv)). Lastly, all gillnet fishermen are
prohibited from fishing a straight set of gillnet gear at night within
the Southeastern U.S. Restricted Area during the restricted period
(November 15-March 31) (50 CFR 229.32(f)(4)(iii)).
Because of the right whale's extremely endangered status, NMFS
included in the ALWTRP regulations contingency measures that would
allow 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. Specifically, 50
CFR 229.32(g)(1) states that if 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 an entanglement by gillnet gear
allowed to be used in that area and time, the 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.
Recent Events
On Sunday, January 22, 2006, at 10:30 a.m., a report was made to
the United States Coast Guard by a member of the public that a floating
whale had been spotted offshore of Jacksonville Beach, Florida. At
approximately 11 a.m., a Florida Fish and Wildlife Commission (FWC)
aerial survey team confirmed the whale species and location and
photographed the carcass. The aerial survey team identified the whale
as a right whale calf, and photos indicated the calf as having one
large wound along the midline and smaller lesions around the base of
its tail. The right whale calf was towed to shore that evening from the
location of 30[deg]14.4' N. lat., 81[deg]04.2' W. long., which was
approximately 1 nautical mile outside of designated right whale
critical habitat, but within the Southeast U.S. Restricted Area.
Each year NMFS coordinates an extensive aerial survey effort in the
Southeast U.S. right whale critical habitat area from December 1
through March 31. The New England Aquarium's right whale survey
photograph database was consulted to determine the sighting history for
the dead calf. On Friday, 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. By that time, the aerial
survey photographs suggested the calf had linear scars, consistent with
some type of entanglement event. The pair was last observed together
off Jacksonville Beach, Florida, on Wednesday, January 11, 2006. On
Saturday, January 21, 2006, the calf's mother was observed, without the
calf, near the area where the dead calf was recovered the following
day. The adult female right whale was observed breaching, blowing
bubbles, diving and surface swimming, which may have been signs of
agitated behavior. The calf's carcass was found and reported on January
22, 2006, approximately 16 nautical miles off Jacksonville Beach,
Florida. Based on the condition of the whale when necropsied and local
surface water temperatures, the investigators conclude that this animal
died within 3 to 6 days prior to necropsy. An analysis of local wind
and water currents prior to January 22 indicated that the winds were
west to northwest, placing the location where the calf most likely died
as inshore and north of where the carcass was found.
[[Page 8225]]
NMFS has determined that both the entanglement and death of the whale
occurred within the Southeast U.S. Restricted Area for the following
reasons: (1) All sightings of this calf occurred within the Southeast
U.S. Restricted Area; (2) all the southeast sightings were recent; (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) the calf's most likely location when it died was inshore and
north of where the carcass was found.
On Monday, January 23, 2006, at 7:15 a.m., a specialized large
whale necropsy team, which consisted of various Federal and state
government representatives, and university and non-profit marine mammal
specialists, performed a thorough necropsy of the whale. This consisted
of measuring, photographing, dissecting, and collecting tissues samples
of the animal in order to determine the possible cause of death. The
necropsy team's gross examination indicated a variety of lesions
including numerous small lesions around the tailstock and a single
large dorsal lesion. The whale had a complex array of wounds around its
tailstock. Two wounds were bites from a small shark. Those wounds had
been seen in aerial photos of the calf as early as December 30, 2005.
Most of the remaining wounds formed straight-line, vee-, and diamond-
shaped patterns. These small lesions appeared to be pre-mortem and
caused by a fine cutting edge such as monofilament net, which would
also correspond to the characteristic vee and diamond shapes of gillnet
gear. There was also some post-mortem scavenging by sharks. The whale
had a large wound splitting open most of its back. The wound appeared
to have occurred post-mortem and was not the result of a vessel strike.
The edges of the middle of the wound were clean-cut, while the ends
were ragged. A notable observation by the necropsy team was that
cyamids had migrated to the tailstock, indicating significant injury to
this area which may have impeded the animal's ability to swim and dive.
The necropsy team also noted that the blubber thickness would suggest
the animal was in good body condition, but, based on its empty
gastrointestinal track, it had not been able to nurse for at least a
day prior to its death.
The immediate cause of death of the whale (e.g., drowning,
dehydration, infection) has not been determined and may never be
completely known. However, all available evidence suggests the
entanglement and injury of the whale by gillnet gear ultimately led to
the death of the animal. The evidence of recent entanglement was
clearly documented by the necropsy team. The degree of entanglement
meets NMFS' criteria of a serious injury (i.e., an injury likely to
result in mortality). While there was no entangling gear on the animal
at the time it was reported, NMFS knows it was not removed through
permitted disentanglement efforts, and NMFS believes that the calf did
not disentangle itself as it was young and not expected to be strong
enough to shed the imbedded gear. Therefore, based on the results of
the necropsy, the New England Aquarium's aerial survey database,
evidence of gillnet fisheries operating in the area (see Affected
Fisheries), and in the absence of other significant explanatory findings,
NMFS has determined that the right whale mortality, which occurred on
January 22, 2006, was as a result of entanglement in gillnet gear.
Closure of Southeast U.S. Restricted Area to Gillnet Fisheries
NMFS has evaluated the recent right whale mortality event and
determined that the criteria specified in 50 CFR 229.32(g)(1) for
taking additional action to protect right whales from further serious
injury or mortality, under the ALWTRP, have been met. NMFS has
determined that the mortality of this right whale was due to
entanglement in gillnet gear, and that the entanglement occurred within
the Southeastern U.S. Restricted Area. Thus, NMFS believes that closing
the Southeast U.S. Restricted Area to all gillnet gear through the
remainder of the restricted period, through March 31, 2006, is
warranted and urgent. Therefore, the AA announces that all fishing with
gillnets is prohibited in the Southeast U.S. Restricted Area, beginning
at 0001 hours February 15, 2006 through 2400 hours March 31, 2006. All
such gillnets that are currently set must be retrieved by 11:59 p.m on
February 15, 2006. Since existing ALWTRP rules already prohibit gillnet
fishing at night, except for run-around sets, which are tended sets,
there is no need to provide any extended delay in effectiveness to
allow fishermen to retrieve set gear.
This restriction will be announced to state officials, fishermen,
ALWTRT members, and other interested parties through e-mail, phone
contact, NOAA Web site, and other appropriate media immediately upon
filing with the Federal Register.
The regulations at 50 CFR 229.32(g)(1) also requires the AA to
close the Southeast U.S. Restricted Area for the rest of the time
period, and for the time period November 15 through March 31 in each
subsequent year, unless the AA revises the restricted period or unless
other measures are implemented. NMFS plans to seek assistance and
recommendations from the ALWTRT at their next meeting in order to
evaluate whether permanent closures within the Southeast U.S.
Restricted Area are necessary.
Affected Gillnet Fisheries
In Southeast Atlantic waters, commercial fishermen target various
finfish and shark species using gillnet gear of varied sizes and
deployment techniques. Fisheries expected to be affected by this
rulemaking include, but are not limited to, the Southeastern U.S.
Atlantic shark gillnet fishery and the Southeast Atlantic gillnet fishery.
The Southeastern U.S. Atlantic shark gillnet fishery uses 5-inch
(0.127 m) or greater stretch mesh gillnet gear, typically targeting
various shark species. NMFS believes there are approximately six to
eight active vessels in this fishery. The FWC's trip ticket database
(2002-2005) for counties within the Southeast U.S. Restricted Area
(Nassau, Duval, St. John's, Flagler, Volusia, and Brevard) indicates
that overall shark landings, number of trips, and the dollar value of
this fishery, has been declining since 2002 within this area. In 2005,
there was a total of 280,235 pounds (127,113 kg) of sharks landed,
which corresponded to 180 trips and a value of $180,015. Although the
Southeast U.S. Restricted Area consists of Florida and Georgia waters,
landings information was only obtained from Florida since landings from
gillnet gear are prohibited in the State of Georgia. This fishery is
managed by the NMFS Office of Sustainable Fisheries, Highly Migratory
Species Division.
The Southeast Atlantic gillnet fishery typically uses smaller mesh
gillnet gear, less than 5-inch stretch mesh, targeting mostly coastal
migratory species (King mackerel, Spanish mackerel, whiting, and
bluefish). Based on the FWC's trip ticket database for 2005, NMFS
believes that approximately 56 individuals participate in this fishery
annually. Data from the same database for 2002-2005 for counties within
the Southeast U.S. Restricted Area indicate that overall finfish
landings (excluding whiting; see below), number of trips, and the value
of the fishery has been decreasing since 2002 for fishermen targeting
finfish with gillnets in this area. For 2005, there was a total of
153,905 pounds (69,810 kg) of finfish landed, which corresponded to 978
trips and a value of $129,454. As stated above, the Southeast U.S.
Restricted Area consists of Florida and
[[Page 8226]]
Georgia waters, but landings information was only obtained from Florida
since landings from gillnet gear are prohibited in the State of
Georgia. Florida gillnet finfish landings have been dominated by the
following species: bluefish, Spanish mackerel, cobia, and King
mackerel. These species are managed by NMFS and the South Atlantic
Regional Fishery Management Council.
NMFS has also become aware of recent increases in fishing activity
by fishermen specifically using sink gillnet gear of various mesh size
targeting demersal finfish, primarily whiting (Menticirrhus
americanus). In contrast to the above landings information, the FWC's
trip ticket database (2002-2005) for counties within the Southeast U.S.
Restricted Area indicates that overall finfish landings, number of
trips, and the value of demersal finfish landings have been increasing
since 2002, mostly from fishermen targeting whiting with gillnets in
this area. NMFS is unaware how many participants fish for demersal
finfish using only sink gillnet gear, since catches from all gillnet
gear are combined in the trip ticket database. For 2005, there was a
total of 461,858 pounds (209,495 kg) of whiting landed, which
corresponded to 589 trips and a value of $363,960. Again, the Southeast
U.S. Restricted Area consists of Florida and Georgia waters; however,
landings information was only obtained from Florida since landings from
gillnet gear are prohibited in the State of Georgia. At this time, the
South Atlantic Regional Fishery Management Council does not prohibit
the use of gillnets within the southeast Exclusive Economic Zone waters
for non-FMP species (50 CFR 600.725). Thus, fishermen who target
whiting are not regulated by a FMP, because currently this species is
not managed under the Coastal Migratory FMP or any other FMP.
The above-mentioned estimates for the total value of the gillnet
fisheries operating in the Southeast U.S. Restricted Area are based on
preliminary total annual landings for 2005. FWC's trip ticket data for
counties within the Southeast U.S. Restricted Area for the past six
years (2000-2005) during the months of February and March, indicate an
average of 15 fishermen fish in these areas during the months that will
be affected by this temporary closure. Total economic losses during
February and March 2006 were projected, based on the combined average
total landings and average total revenues from gillnet fishing in these
three areas, and are estimated at 92,687 pounds and $74,364.
Additional Conservation Measures
The AA may withdraw or modify any additional restriction on fishing
activities if the AA determines that such action is warranted.
Notification of any additional, modified, or suspended right whale
conservation measures will be published in the Federal Register
pursuant to 50 CFR 229.32(g)(1) or (2).
NMFS will continue to monitor right whale serious injuries and
mortalities to gauge the effectiveness of these conservation measures.
In addition, although the ALWTRT recommended additional measures to
further protect right whales from serious injury and mortality in
commercial fishing operations in southeast waters during 2005 and NMFS
published a proposed rule on June 21, 2005 (70 FR 35894), NMFS believes
that, at this time, because of the recent entanglement event and the
current level of commercial gillnet fishing operations in Southeast
waters, NMFS plans to seek assistance and recommendations from the
ALWTRT at their next meeting in order to evaluate whether permanent
closures within the Southeast U.S. Restricted Area are necessary in
addition to the recently proposed measures.
Literature Cited
Knowlton, A.R. and S.D. Kraus. 2001. Mortality and serious injury of
North Atlantic right whales (Eubalaena glacialis) in the North
Atlantic Ocean. J. Cetacean Res. Manage. (Special Issue) 2 (in press).
Kraus, S.D., M.W. Brown, H. Caswell, C.W. Clark, M. Fujiwara, P.K.
Hamilton, R.D. Kenney, A.R. Knowlton, S. Landry, C.A. Mayo, W.A.
McLellan, M.J. Moore, D.P. Nowacek, D.A. Pabst, A.J. Read, R.M.
Rolland. 2005. North Atlantic Right Whales in Crisis. Science 22
July 2005: Vol. 309. no. 5734, pp. 561-562.
NMFS. 2005. Recovery Plan for the North Atlantic Right Whale (Eubalaena
glacialis). National Marine Fisheries Service, Silver Spring, MD.
Waring, G., R. Pace, J. Quintal, C. Fairfield and K. Maze-Foley.
2003. U.S. Atlantic and Gulf of Mexico Marine Mammal Stock
Assessments--2003. NOAA Tech. Mem. NMFS-NE-182. 260 pp.
Classification
In accordance with section 118(f)(9) of the MMPA, the AA has
determined that this action is necessary to implement a take reduction
plan to protect North Atlantic right whales. In addition, pursuant to
section 11(f) of the ESA, the AA may promulgate regulations to enforce
the ESA's prohibitions on the taking of endangered right whales.
An Environmental Assessment for this action was prepared and is
available from the agency upon request.
Providing prior notice and opportunity for comment on this action
would be impracticable because it would prevent NMFS from implementing
timely measures, pursuant to regulations at 50 U.S.C. 229(g)(1), to
immediately reduce the risk of further serious injury and mortality of
endangered right whales. If this action were to be subject to the
notice and comment rulemaking requirements of 5 U.S.C. 553, NMFS would
not be able to assert these regulatory protections to endangered right
whales because the rulemaking would not be concluded until some time
beyond the end of the protection period. In order to ensure that right
whales are protected during the restricted period, the AA finds that
good cause exists, pursuant to 5 U.S.C. 553(b)(B), to waive prior
notice and an opportunity to comment on this action to implement a
commercial gillnet fishing closure within the Southeast U.S. Restricted
Area to reduce the risk of entanglement of endangered right whales in
commercial gillnet gear.
For the same reasons, the AA finds that, under 5 U.S.C. 553(d)(3),
good cause exists to waive the 30-day delay in effective date. If NMFS
were to delay for 30 days the effective date of this action, right
whales would be vulnerable to entanglement, which could result in
further serious injury and mortality.
NMFS determined that this action is consistent to the maximum
extent practicable with the enforceable policies of the approved
coastal management programs of Georgia and Florida. This determination
was submitted on February 3, 2006, for review by the responsible state
agencies under section 307 of the CZMA.
The rule implementing the commercial gillnet fishing closure within
the Southeastern U.S. Restricted Area has been determined not to be
significant under Executive Order (E.O.) 12866.
This temporary rule is exempt from the procedures of the Regulatory
Flexibility Act because the rule is issued without prior notice and
opportunity for public comment.
NMFS believes this temporary rule does not contain policies with
federalism implications under E.O. 13132, since the state waters
affected already prohibit gillneting under state law; however, full
consultation with the states was not practicable for this action
pursuant to section 6 of E.O. 13132.
This action does not contain a collection-of-information
requirement for purposes of the Paperwork Reduction Act.
[[Page 8227]]
Authority: 16 U.S.C. 1361 et seq., 16 U.S.C. 1531 et seq., and
50 CFR 229.32(g)(1).
Dated: February 13, 2006.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine
Fisheries Service.
[FR Doc. 06-1490 Filed 2-13-06; 3:56 pm]
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