Taking of Marine Mammals Incidental to Commercial Fishing Operations; Bottlenose Dolphin Take Reduction Plan, 21946-21955 [2012-8770]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 77, Number 71 (Thursday, April 12, 2012)]
[Proposed Rules]
[Pages 21946-21955]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-8770]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 229

[Docket No. 110202088-2183-01]
RIN 0648-BA34


Taking of Marine Mammals Incidental to Commercial Fishing 
Operations; Bottlenose Dolphin Take Reduction Plan

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

ACTION: Proposed rule; request for comments.

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

SUMMARY: The National Marine Fisheries Service (NMFS) proposes to amend 
the Bottlenose Dolphin Take Reduction Plan (BDTRP) and implementing 
regulations by permanently continuing medium mesh gillnet fishing 
restrictions in North Carolina coastal state waters, which would 
otherwise expire on May 26, 2012. This action will remove the 
expiration date to continue current nighttime fishing restrictions of 
medium mesh gillnets operating in North Carolina coastal state waters 
from November 1 through April 30. Members of the Bottlenose Dolphin 
Take Reduction Team (BDTRT) recommended these regulations be continued 
permanently, without modification, to ensure: (1) Continued 
conservation of strategic bottlenose dolphin stocks in North Carolina 
with historically high serious injury and mortality rates associated 
with medium mesh gillnets; and (2) BDTRP goals are met. NMFS also 
proposes to amend the BDTRP with updates, including updates recommended 
by the BDTRT for non-regulatory conservation measures.

DATES: Written comments on the proposed rule must be received no later 
5 p.m. eastern time on May 14, 2012.

ADDRESSES: You may submit comments on this document, identified by 
NOAA-NMFS-2010-0230, by any of the following methods:
     Electronic Submission: Submit all electronic public 
comments via the Federal e-Rulemaking Portal www.regulations.gov. To 
submit comments via the e-Rulemaking Portal, first click the ``submit a 
comment'' icon, then enter NOAA-NMFS-2010-0230 in the keyword search. 
Locate the document you wish to comment on from the resulting list and 
click on the ``Submit a Comment'' icon on the right of that line.
     Mail: Submit written comments to Assistant Regional 
Administrator for Protected Resources, NMFS, 263 13th Avenue South, St. 
Petersburg, FL 33701-5505.
     Fax: 727-824-5309; Attn: Assistant Regional Administrator 
for Protected Resources.
    Instructions: Comments must be submitted by one of the above 
methods to ensure that the comments are received, documented, and 
considered by NMFS. Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered. All comments received are a part of the public 
record and will generally be posted for public viewing on 
www.regulations.gov without change. All personal identifying 
information (e.g., name, address, etc.) submitted voluntarily by the 
sender will be publicly accessible. Do not submit confidential business 
information, or otherwise sensitive or protected information. NMFS will 
accept anonymous comments (enter ``N/A'' in the required fields if you 
wish to remain anonymous). Attachments to electronic comments will be 
accepted in Microsoft Word or Excel, WordPerfect, or Adobe PDF file 
formats only.
    This proposed rule, the BDTRP, 2008 BDTRP amendment, BDTRT meeting 
summaries with consensus recommendations, and other background 
documents are available at the Take Reduction Team web site: https://www.nmfs.noaa.gov/pr/interactions/trt/bdtrp.htm, or by submitting a 
request to Stacey Horstman [see FOR FURTHER INFORMATION CONTACT].

FOR FURTHER INFORMATION CONTACT: Stacey Horstman, NMFS Southeast 
Region, Stacey.Horstman@noaa.gov, 727-824-5312; or Kristy Long, NMFS 
Office of Protected Resources, Kristy.Long@noaa.gov, 301-427-8402.

SUPPLEMENTARY INFORMATION:

Regulatory Changes to the BDTRP

BDTRP and Medium Mesh Gillnet Restrictions

    Section 118(f)(1) of the Marine Mammal Protection Act (MMPA) (16 
U.S.C. 1387(f)(1)) requires NMFS to develop and implement take 
reduction plans to assist in the recovery or prevent the depletion of 
strategic marine mammal stocks that interact with Category I and II 
fisheries. The MMPA includes in its definition of ``strategic stock'' a 
marine mammal stock: (1) For which the level of direct human-caused 
mortality exceeds the potential biological removal (PBR) level; (2) 
which is declining and likely to be listed as a threatened species 
under the Endangered Species Act (ESA); or (3) which is designated as a 
depleted species under the MMPA (16 U.S.C. 1362(1), (19), and (20)). 
PBR is the maximum number of animals, not including natural 
mortalities, that can be removed annually from a stock, while allowing 
that stock to reach or maintain its optimum sustainable population 
level. Category I or II fisheries are fisheries with frequent or 
occasional incidental mortality and serious injury of marine mammals, 
respectively (16 U.S.C. 1387(c)(1)(A)(i) and (ii)).
    As specified in the MMPA, the short-term goal of a take reduction 
plan is to reduce, within six months of its implementation, the 
incidental mortality or serious injury of marine mammals taken in the 
course of commercial fishing operations to levels less than PBR for the 
stock (16 U.S.C. 1387(f)(2)). The long-term goal of a plan is to 
reduce, within 5 years of its implementation, the incidental mortality 
or serious injury of marine mammals taken in the course of commercial 
fishing operations to insignificant levels approaching a zero mortality 
and serious injury rate, taking into account the economics of the 
fishery, the availability of existing technology, and existing state or 
regional fishery management plans. The MMPA also requires NMFS to amend 
take reduction plans and implementing

[[Page 21947]]

regulations as necessary to meet the requirements of this section.
    On April 26, 2006, NMFS published a final rule (71 FR 24776) 
implementing the BDTRP, with a May 26, 2006, effective date. The BDTRP 
contains both regulatory and non-regulatory conservation measures to 
reduce serious injury and mortality of 13 strategic stocks of 
bottlenose dolphins (Tursiops truncatus) (previously considered one 
coastal migratory stock; see section on Revisions to the Western North 
Atlantic Coastal Bottlenose Dolphin Stock) in Category I and II 
commercial fisheries operating within the stocks' distributional range. 
Both the regulatory and non-regulatory conservation measures are 
designed to meet the BDTRP's short-term goal and provide a framework 
for meeting the long-term goal. The regulatory measures in the BDTRP 
include seasonal gillnet restrictions, gear proximity requirements, and 
gear length restrictions. The non-regulatory measures include continued 
research and monitoring, enforcement of regulations, outreach, and 
collaborative efforts.
    The specific regulatory measures addressed in this proposed rule 
that would otherwise expire on May 26, 2012, are fishing prohibitions 
on nighttime medium mesh gillnets in North Carolina coastal state 
waters from November 1 through April 30, annually. Medium mesh gillnets 
are defined in the BDTRP as greater than 5-inch (12.7 cm) to less than 
7-inch (17.8 cm) stretched mesh. The intent of the prohibitions is to 
reduce bottlenose dolphin serious injuries and mortalities by reducing 
gillnet soak times associated with medium mesh gillnets targeting spiny 
dogfish (Squalus acanthias) in North Carolina coastal state waters. 
During the winter (November 1 through April 30), four strategic 
bottlenose dolphin stocks (two coastal and two bay, sound, and estuary) 
occur in North Carolina state waters at various times. The prohibitions 
were implemented in North Carolina coastal state waters because 
bottlenose dolphin mortalities were observed from 1995 to 2000 in these 
waters during the winter. These mortalities were associated with medium 
mesh gillnets targeting spiny dogfish with long, overnight soak 
durations.
    When the BDTRT originally deliberated on their consensus 
recommendations for a draft BDTRP in 2002 and 2003, they recognized the 
inadvertent benefit of recently implemented spiny dogfish fishery 
management plans (FMPs) in reducing serious injury and mortality of 
bottlenose dolphins by virtually eliminating spiny dogfish fishing 
effort in North Carolina. However, the BDTRT also recognized the 
dynamic nature of the spiny dogfish fishery, which is managed by both 
state and Federal entities. The uncertainty about on-going management 
of the fishery resulted in a process that was dynamic and unreliable 
for bottlenose dolphin conservation. Therefore, the BDTRT recommended 
the nighttime medium mesh prohibitions be included in the BDTRP with an 
expiration date to ensure regular review of the spiny dogfish fishery 
and management.
    The nighttime medium mesh gillnet restrictions were originally 
implemented in the BDTRP on May 26, 2006, with an expiration date of 
May 26, 2009. The BDTRT subsequently recommended extending the 
restrictions for an additional three years to ensure continued 
bottlenose dolphin conservation benefits and evaluate the need for 
permanent restrictions due to recent changes to the spiny dogfish 
population status and continued uncertainty in fishery management. On 
December 19, 2008, NMFS published a final rule (73 FR 77531) amending 
the BDTRP by extending the measures' expiration date until May 26, 
2012. The BDTRT met on September 9-11, 2009, and recommended NMFS make 
the restrictions permanent because of continued spiny dogfish FMP 
changes, as the spiny dogfish fishery was no longer considered 
overfished, and fishing effort increased for spiny dogfish in North 
Carolina. Removing the expiration date, thereby permanently maintaining 
the existing restrictions, ensures continued bottlenose dolphin 
conservation benefits from reduced soak durations of medium mesh 
gillnets in North Carolina coastal state waters.

Medium Mesh Gillnets in North Carolina and Spiny Dogfish FMPs

    Medium mesh gillnets fished in coastal state waters of North 
Carolina fall under the mid-Atlantic gillnet fishery. The mid-Atlantic 
gillnet fishery is classified on the MMPA List of Fisheries as a 
Category I fishery, which is defined as a fishery that has frequent 
incidental mortality and serious injury of marine mammals (i.e., 
greater than 50 percent of a stock's PBR level). In North Carolina, 
medium mesh gillnets are typically used to target spiny and smooth 
dogfish, king mackerel, flounder, and other shark species, with spiny 
dogfish as the primary target species (Rossman and Palka 2004).
    Spiny dogfish are managed from Maine to North Carolina by two 
Federal Fishery Management Councils in Federal waters and an interstate 
fishery management commission in state waters. NMFS listed spiny 
dogfish as overfished in 1998 (63 FR 17820, April 10, 1998). In January 
2000, NMFS implemented a Federal FMP (65 FR 1557) to conserve spiny 
dogfish in Federal waters. Among other things, the FMP implemented a 
coastwide commercial quota that is specified annually and split into 
two seasonal fishing periods (Period 1: May 1 to October 31; Period 2: 
November 1 to April 30). Each fishing period has separate possession 
trip limits, specified annually, to allow for spiny dogfish bycatch to 
be sold while managing catch rates (63 FR 17820, April 10, 1998; ASMFC 
2007).
    The Atlantic States Marine Fisheries Commission (ASMFC) issued an 
emergency action in 2000 requiring states to mirror Federal closures in 
state waters. An Interstate FMP was developed in November 2002 to 
manage spiny dogfish fishing in state waters and implemented in the 
2003/2004 fishing year. The Interstate FMP largely mirrors the Federal 
FMP, setting annual commercial quotas and separate possession limits to 
help manage spiny dogfish catch rates for the same two fishing periods 
(ASMFC 2007). All commercial landings count toward the Interstate FMP 
quota regardless of where the fish are caught (i.e., state or Federal 
waters) (ASMFC 2002).
    Annually, NMFS reviews the Federal FMP and ASMFC reviews the 
Interstate FMP, based on the most recent estimate of spiny dogfish 
fishing mortality and spawning stock biomass. The 2006 estimate of 
fishing mortality for spiny dogfish indicated the population was not 
overfished and overfishing was not occurring (NMFS 2006). In 2010, the 
spiny dogfish stock was declared rebuilt based on 2009 spawning stock 
biomass estimates exceeding biomass targets since 2008 (75 FR 36012, 
June 24, 2010; Rago and Sosebee 2010). Both state and Federal annual 
commercial coastwide quotas and possession limits have increased in 
accordance with changes in the spiny dogfish stock status (see Table 
1).

[[Page 21948]]



                     Table 1--State and Federal FMP Quotas and Possession Limits Since 2006
----------------------------------------------------------------------------------------------------------------
                                                      State (ASFMC)                       Federal (NMFS)
                                       -------------------------------------------------------------------------
                                           Coastwide                                 Coastwide
             Fishing year                    quota          Possession limit           quota        Possession
                                           (million             (pounds)             (million          limit
                                            pounds)                                   pounds)        (pounds)
----------------------------------------------------------------------------------------------------------------
2006/2007.............................               6  States determine........               4             600
2007/2008.............................               6  3,000...................               4             600
2008/2009.............................               8  3,000...................               4             600
2009/2010.............................              12  3,000...................              12           3,000
2010/2011.............................              15  3,000...................              15           3,000
2011/2012.............................              20  3,000...................              20           3,000
----------------------------------------------------------------------------------------------------------------

    The implementation of the FMPs and quota changes has affected spiny 
dogfish effort and landings in North Carolina since 2001 (see Figure 
1). Targeting spiny dogfish in North Carolina was virtually eliminated 
following implementation of the FMPs, as evidenced by low spiny dogfish 
landings. Spiny dogfish landings in North Carolina averaged 6,609,821 
pounds from 1996 to 2000 prior to the implementation of the FMPs (NMFS, 
Fisheries Statistic Division, pers. comm. and ASMFC 2011a). From 2001 
to 2006, after implementation of the FMPs and before the spiny dogfish 
population was considered no longer overfished, landings in North 
Carolina averaged 92,243 pounds (NMFS, Fisheries Statistic Division, 
pers. comm. and ASMFC 2011a). Despite the increasing state quotas and 
possession limits through the 2008 fishing year, spiny dogfish landings 
in North Carolina remained comparatively low for the 2007-2008 fishing 
years, averaging 154,135 pounds (NMFS, Fisheries Statistic Division, 
pers. comm. and ASMFC 2011a).
    Two major factors contributed to preventing greater increases in 
landings of spiny dogfish in North Carolina. First, the decreased 
landings of spiny dogfish in North Carolina following implementation of 
the FMPs were mostly due to the seasonal specifications of commercial 
quotas. The FMPs' commercial quotas, established annually and split 
semi-annually, were based on the north-south spiny dogfish migration to 
help maintain the seasonal and geographic distribution of landings 
among states. Because of the species' annual migratory pattern along 
the United State's east coast, quota overages often occurred in the 
northern states associated with harvest Period 1, resulting in reduced 
or restricted harvest for southern states in Period 2 (ASMFC 2002). For 
example, historic peak harvest for spiny dogfish in North Carolina 
state waters occurred during February and March, corresponding to 
harvest Period 2. The state and Federal quotas were often already met 
before harvest Period 2 because spiny dogfish remain off the coasts of 
the northern states until winter (ASMFC 2008). Therefore, the seasonal 
specifications of the FMP quotas based on the spiny dogfish migration 
allowed northern states to intercept spiny dogfish and meet FMP quotas 
before their seasonal migration south to North Carolina (NCDMF 2008). 
Second, following the implementation of the FMPs, the mid-Atlantic 
processors closed, leaving only two processors in New England (ASMFC 
2002). The processing plants are at times saturated with spiny dogfish 
harvested from states north of North Carolina, leaving little to no 
market to harvest and process the fish when they arrive in North 
Carolina. Furthermore, in a predominantly bycatch fishery with 
possession limits at 600 or even 3,000 pounds, it was not cost 
effective for fishermen or dealers in North Carolina to truck spiny 
dogfish to the processors in New England given the high fuel costs and 
small amounts of fish allowed for harvest.

[[Page 21949]]



 Figure 1. Spiny Dogfish Landings in North Carolina From 1996 Through 2010 (NMFS, Fisheries Statistic Division,
                                          pers. comm. and ASMFC 2011a)
 
 
 
 
 

[GRAPHIC] [TIFF OMITTED] TP12AP12.001

    Because the semi-annual quota was not maintaining the historical 
distribution of landings or allowing for consistent quota allocation 
for southern states, ASMFC approved Addendum II and III to the 
Interstate FMP in October 2008 and April 2011, respectively. Addendum 
II was issued retroactively for the 2008/2009 fishing year, 
establishing regional quotas replacing the overall seasonal allocation. 
The quota was redistributed at 58% for the Northern Region (Maine, New 
Hampshire, Massachusetts, Rhode Island, and Connecticut); 26% for the 
Southern Region (New York, New Jersey, Delaware, Maryland, and 
Virginia); and 16% for North Carolina. If the quota was exceeded in a 
region or North Carolina, the amount exceeding the allocation was 
deducted from the corresponding region or North Carolina for the next 
fishing season. North Carolina was specifically allocated a percentage 
of the quota to ensure available quota when the fish arrive in North 
Carolina waters (ASMFC 2008). Following Addendum II, average landings 
for spiny dogfish in North Carolina from 2009-2010 increased to 
1,562,400 pounds (NMFS, Fisheries Statistic Division, pers. comm. and 
ASMFC 2011a).
    Addendum II addressed the inability of North Carolina to harvest 
spiny dogfish, but it did not allow the Southern Region to adjust 
possession limits based on market demand. Addendum III to the 
interstate FMP was, therefore, approved for the 2011/2012 fishing year, 
providing state-specific allocation for all states in the Southern 
Region and allowing individual states greater control of spiny dogfish 
fishing effort (ASMFC 2011b). Among other things, Addendum III divided 
the Southern Region annual quota of 42% into state-specific shares, 
including a share of 14.036% to North Carolina. Therefore, North 
Carolina had a state-specific quota of 2,807,200 pounds for the 2011/
2012 fishing year, and the state set a maximum 3,000 pound per trip 
possession limit depending on fishing location.
    Given the history of this fishery, continued increases in quotas 
and possession limits are anticipated. In October 2011, the Federal 
fishery management councils recommended to NMFS a 2012/2013 commercial 
quota of 35.7 million pounds and increased the per trip possession 
limit to 4,000 pounds. In November 2011, ASMFC set the 2012/2013 
fishing year quota at 30 million pounds with a maximum daily possession 
limit of 3,000 pounds. North Carolina will receive a state-specific 
share of 4,210,800 pounds.
    These recent increases in the quotas and possession limits resulted 
in increased effort in medium mesh gillnets targeting spiny dogfish, 
notably in North Carolina with its individual state quota. Despite 
increased effort and landings, medium mesh gillnet soak duration is 
unlikely to increase to pre-FMP durations because the possession limits 
are still relatively low (less than or equal to 3,000 pounds) and BDTRP 
nighttime medium mesh restrictions are in place. Federal fishery 
observer data for medium mesh gillnets targeting all species in North 
Carolina state waters during the winter show a marked decrease in soak 
durations since the spiny dogfish FMPs were implemented. Prior to 
implementation of the FMPs (1996-2000), soak durations ranged from less 
than one hour to 48 hours, averaging 9.6 hours. After the FMPs were 
implemented (2001-2010), soak durations ranged from less than one hour 
to 24 hours, averaging only 1.8 hours. Although the current average

[[Page 21950]]

soak duration is still relatively low, Federal fishery observer data 
indicate some longer soak durations commensurate with increases in 
possession limits and quotas. Historically, bycatch of bottlenose 
dolphins was associated with long soak durations (average of 20 hours) 
of medium mesh gillnets targeting spiny dogfish in North Carolina. 
Thus, permanently extending the nighttime medium mesh gillnet 
restrictions will ensure soak durations do not increase back to 
historically high levels, increasing the risk of serious injury and 
mortality to bottlenose dolphins.

Bottlenose Dolphin Mortalities Associated With Medium Mesh Gillnets in 
North Carolina

    The implementation of the spiny dogfish FMPs and subsequent effort 
reductions had the inadvertent but beneficial effect of reducing 
bottlenose dolphin serious injuries and mortalities in North Carolina; 
however, this trend may change as the fishery rebuilds and quotas 
continue to increase. From 1996 to 2000 in the North Carolina portion 
of the previously defined Winter-Mixed Management Unit (now 
corresponding to four different stocks; see the discussion in this rule 
under the heading, Revisions to the Western North Atlantic Coastal 
Bottlenose Dolphin Stock), medium mesh gillnets targeting spiny dogfish 
were the primary contributors to the total bottlenose dolphin mortality 
(Rossman and Palka 2004). The mean animal mortality for the entire 
Winter-Mixed Management Unit from 1996 to 2000 was 180, which exceeded 
the PBR of 68 (Waring et al. 2007; Rossman and Palka 2004). Sixty-three 
percent, or 146 of 180 bottlenose dolphin serious injuries and 
mortalities, were attributed to medium mesh gillnets primarily 
targeting spiny dogfish in the North Carolina portion of the Winter-
Mixed Management Unit. Conversely, from 2001 to 2002 in the entire 
Winter-Mixed Management Unit, small (less than or equal to 5-inch (12.7 
cm)) and large (greater than or equal to 7-inch (17.8 cm) stretched) 
mesh gillnets were the primary contributors to total bottlenose dolphin 
serious injury and mortality. During 2000 to 2001, estimated mean 
animal mortality decreased to 59 bottlenose dolphins, of which, only 19 
(24%) were attributed to medium mesh gillnets in the North Carolina 
portion of the Winter-Mixed Management Unit. This reduction in 
estimated bottlenose dolphin mortality was a result of reduced landings 
and lower bycatch rates across all gillnet mesh size categories (small, 
medium, and large), which includes almost no effort in medium mesh gear 
targeting spiny dogfish following implementation of the FMPs (Rossman 
and Palka 2004).
    The BDTRP winter nighttime prohibitions for medium mesh gillnets 
continue to be important for bottlenose dolphin conservation because 
they effectively limit soak times to approximately 12 hours, reducing 
risk of bycatch. Before implementation of the FMPs, long soak durations 
associated with medium mesh gillnets targeting spiny dogfish were a 
major contributing factor to high bottlenose dolphin bycatch rates in 
North Carolina. Federal observer data prior to FMP implementation 
document three bottlenose dolphin mortalities in medium mesh nets with 
soak times averaging 20 hours; only one mortality was in a net with a 
soak time of less than 12 hours. There have been no observed takes in 
medium mesh gillnets targeting spiny dogfish in North Carolina waters 
since 2000 when FMPs eliminated directed spiny dogfish fishing effort, 
and consequently, the need for long soak durations.
    Stranding data also indicate the BDTRP winter nighttime medium mesh 
gillnet prohibitions are effective at reducing serious injury and 
mortality of bottlenose dolphins regardless of increases in the spiny 
dogfish quota. Byrd et al. (2008) compared the number of bottlenose 
dolphins that stranded in North Carolina coastal state waters with 
evidence of a fishery interaction during the winter from November 1997 
through April 2005. They found stranding rates and bottlenose dolphin 
bycatch rates from Rossman and Palka (2004) were similar and 
corresponded to fluctuations in fishing effort for spiny dogfish in 
North Carolina. Specifically, for the time period examined, there was a 
significant positive relationship in the numbers of bottlenose dolphin 
strandings with signs of fishery interaction and bottlenose dolphin 
bycatch rate before and after the FMPs were implemented. Furthermore, 
the mean number of strandings with signs of a fishery interaction in 
North Carolina coastal state waters was greater before the FMPs were 
implemented (14.3 animals during November-April from 1997-2000) than 
after the FMPs (5.2 during November-April from 2001-2005) (Byrd et al. 
2008). Therefore, in the absence of Federally observed takes since 
2000, stranding data may be used as a proxy to detect increases in 
bottlenose dolphin bycatch mortality (Byrd et al. 2008). Updated 
stranding data from November 2005 through April 2010 show a continued 
trend in reduction of strandings with signs of a fishery interaction, 
with an average of 2.8 strandings in all North Carolina state waters 
(NOAA Southeast Stranding Data).
    The nighttime medium mesh gillnet restrictions were initially 
included in the BDTRP to ensure long soak durations of medium mesh 
gillnets were modified to reduce serious injury and mortality rates. 
These restrictions were given expiration dates on two occasions to 
monitor the status of the spiny dogfish fishery and management. The 
BDTRP prohibitions ensure reduced soak durations in medium mesh 
gillnets despite a recent increase in spiny dogfish fishing effort in 
North Carolina as shown by: (1) Reduced soak durations in medium mesh 
gillnets in North Carolina state waters during the winter; and (2) a 
continued decreasing trend of bottlenose dolphin strandings with 
evidence of a fishery interaction in North Carolina state waters during 
the winter.

BDTRT Recommendations for Medium Mesh Gillnets in North Carolina

    Following implementation of the BDTRP in May 2006, the BDTRT met on 
June 19-20, 2007, to monitor the effectiveness of the BDTRP. Among 
other things, the BDTRT was provided updates on spiny dogfish fishery 
management, landings, and gear practices since the team originally 
deliberated on the draft BDTRP. The BDTRT recommended by consensus that 
the nighttime medium mesh gillnet restrictions in North Carolina be 
extended for an additional three years and NMFS provide an update on 
the status of the spiny dogfish fishery at least biennially. Therefore, 
per the BDTRT's recommendation, NMFS amended the BDTRP in December 2008 
with a new expiration date of May 26, 2012, for the nighttime medium 
mesh gillnet restrictions (73 FR 77531).
    NMFS held another BDTRT meeting on September 9-11, 2009, to 
evaluate the BDTRP and review revisions to the bottlenose dolphin stock 
structure. The BDTRT was provided with updates on medium mesh gillnet 
fishing effort targeting spiny dogfish in North Carolina and FMP 
management addenda and quota changes. Because of recent changes to the 
FMPs, the recovering spiny dogfish population, and increased fishing 
effort in North Carolina, the BDTRT recommended by consensus that NMFS 
permanently include the nighttime medium mesh gillnet prohibitions in 
North Carolina. The BDTRT recognized the importance of these 
restrictions because of the historically high rates of bottlenose 
dolphin serious injury and mortality

[[Page 21951]]

associated with medium mesh gillnets targeting spiny dogfish.
    For several reasons, NMFS agrees the expiration date should be 
removed rather than continuing to extend the medium mesh restrictions 
for three-year durations. The spiny dogfish population was declared 
rebuilt in 2010, resulting in continued increased FMP quotas and 
possession limits, and landings of spiny dogfish in North Carolina. 
Federal fishery observer data indicate some longer soak durations 
commensurate with increases in quotas and possession limits. 
Historically, observed takes of bottlenose dolphins in North Carolina 
medium mesh gillnets targeting spiny dogfish were associated with 
longer soak durations, and 63 percent of bottlenose dolphin serious 
injuries and mortality were associated with medium mesh gillnets 
targeting spiny dogfish. Given these factors, permanently maintaining 
the BDTRP restrictions is necessary for meeting the goals of the plan, 
per the MMPA requirement to reduce serious injury and mortality of 
strategic bottlenose dolphin stocks in North Carolina.

Non-Regulatory Changes and Updates to the BDTRP

Non-Regulatory Management Measures and BDTRT Consensus Recommendations

    This proposed rule also includes updates for non-regulatory 
components of the BDTRP. These updates are based on the BDTRT's 
consensus recommendations from their June 2007 and September 2009 
meetings and do not represent a substantive change to the BDTRP 
requirements. The BDTRT recognized the effectiveness of the BDTRP 
requirements implementing non-regulatory actions, such as continued 
research, monitoring, enforcement of regulations, outreach, and other 
collaborative efforts. Non-regulatory measures are an important 
complement to the BDTRP's regulatory measures in achieving the plan's 
short-term goal and providing a framework for achieving the long-term 
goal.
    Since the BDTRP's implementation in May 2006, NMFS convened two in-
person meetings (June 2007 and September 2009) of the BDTRT to monitor 
and evaluate the BDTRP's effectiveness. At both meetings, the BDTRT 
provided NMFS with additional non-regulatory recommendations, which 
NMFS agrees are important to achieving the plan's goals. Some of these 
recommendations have already been accomplished because of the adaptive 
nature of the non-regulatory measures.
    The following are summaries of proposed amendments to the BDTRP's 
non-regulatory management measures. Please see the FOR FURTHER 
INFORMATION CONTACT section for where to obtain the 2007 and 2009 BDTRT 
meeting summaries for details on these recommended measures.

Research

(1) Bottlenose Dolphin Research

    Based on the spatial and temporal complexity of bottlenose dolphin 
stocks, the BDTRT advised NMFS in both 2007 and 2009 to support 
continued research to improve the understanding of bottlenose dolphin 
stock structure. The BDTRT specifically recommended using genetics, 
dorsal fin photo-identification, and telemetry data for continued 
refinement of bottlenose dolphin stock structure, abundance estimates, 
and PBR levels for all stocks and especially those occupying North 
Carolina waters. To identify fishery-related mortalities and serious 
injury to stock, the BDTRT further recommended using genetic samples or 
matching dorsal fin images to the Mid-Atlantic Bottlenose Dolphin 
Photo-Identification Catalog.

(2) Fishing Gear Research

    Gear modification research, in cooperation with fishermen, is 
important to help reduce serious injury or mortality to bottlenose 
dolphins incidental to commercial fishing while maintaining those 
fisheries. Therefore, the BDTRP recommended the following: (1) 
Determine if pingers reduce depredation rates of bottlenose dolphins on 
gillnets and whether pingers affect bottlenose dolphins; (2) examine 
the ratio of net height versus water depth in gillnets targeting 
Spanish and king mackerel; and (3) continue exploring the effectiveness 
of modified leaders in the Virginia Pound Net fishery for maintaining 
catch efficiency, especially around Lynnhaven, Virginia.

Trap/Pot Fisheries

    During the 2009 meeting, the BDTRT recognized trap/pot gear as the 
main commercial fishing gear interacting with some of the estuarine 
stocks of bottlenose dolphins. Stranding data indicate interactions 
with trap/pot gear are occurring with bottlenose dolphins, and only one 
or two takes may result in serious injury and mortality levels that 
exceed PBR for these small stocks. The BDTRT provided the following 
recommendations to better understand the nature of interactions with 
trap/pot gear, inform future discussions, and reduce potential serious 
injuries and mortalities of bottlenose dolphins: (1) Develop state 
programs to remove derelict trap/pot gear; (2) characterize trap/pot 
gear (e.g., amount of vertical line, gear markings, etc.) interacting 
with bottlenose dolphins, amount of fishing effort, spatial and 
temporal aspects of the fisheries, and types of gear modifications 
(e.g., inverted bait wells); and (3) host a technology transfer 
workshop for fishermen using blue crab trap/pot gear to explore gear 
modifications that may help reduce bottlenose dolphin interactions.

Monitoring and Evaluating Plan Effectiveness

(3) Outreach and Education

    Continued education and outreach to affected Category I and II 
fishermen and stakeholders is necessary to enhance compliance with, and 
therefore the effectiveness of, the BDTRP. The BDTRT recommended 
outreach be maintained and conducted consistently. For example, NMFS 
fishery liaisons or mailings are effective approaches in consistently 
informing fishermen of any BDTRP updates. The BDTRT also recommended 
holding fishermen working groups to better understand the nature of 
bottlenose dolphin interactions with specific gear types, as fishermen 
can provide important knowledge in trends or patterns of interactions. 
The BDTRT further recognized the value of highlighting the success of 
the BDTRP if an affected stock reaches the MMPA long-term goal (i.e., 
serious injury and mortality is below 10 percent of a stock's PBR 
level). Using success stories as platforms for education and outreach 
is an important tool, especially when encouraging compliance with the 
plan regulations.

(4) Observer Program

    The observer program is vital for measuring if take reduction plan 
regulations are effective in reducing serious injury and mortality of 
bottlenose dolphins and monitoring changes in interaction rates between 
bottlenose dolphins and affected fisheries. Previous BDTRT 
recommendations focused on enhancing and improving the overall 
precision and accuracy of observer data. Recent BDTRT meeting 
recommendations encouraged focusing observer coverage in specific 
geographic areas and fisheries, improving observer data collection and 
quality, and measures of fishing effort. Specifically, the BDTRT 
recommended enhancing and prioritizing observer coverage in: (1) The 
North Carolina beach seine fishery; (2) gillnets targeting Spanish 
mackerel in inshore waters of North Carolina; and

[[Page 21952]]

(3) gear operating in North Carolina state waters during the summer. 
Recommendations to improve documentation of observed takes were also 
provided. Specifically, the BDTRT recommended prioritizing 
documentation of dorsal fin images and collection of biopsy samples, or 
the entire carcass if possible, and detailed documentation of the 
entanglement event. Improved data collection will help in assigning 
mortality to a particular stock because of the spatial and temporal 
overlap of stocks, especially in North Carolina. Finally, the team 
recommended determining the accuracy of current fishing effort measures 
used for bottlenose dolphin mortality estimates by comparing alternate 
measures of fishing effort with current methods.

(5) Enforcement

    Enforcement is important for compliance monitoring of take 
reduction plan regulations. If the plan is not reaching its goals, NMFS 
will determine if non-compliance is a factor. The BDTRT recommended 
coordination with state and other Federal agencies on enforcement 
activities.

(6) Adaptive Management

    At the team's 2009 meeting, some abundance estimates and PBRs for 
stocks were unknown due to the recent revisions in bottlenose dolphin 
stock structure. However, the team noted at the meeting that the 
mortality estimate for the Northern North Carolina Estuarine System 
Stock may be approaching or exceeding PBR. The BDTRT recommended that 
after NMFS updates the abundance estimate and PBR for the stock, if PBR 
is determined to have been exceeded, the BDTRT be convened via 
conference call or in-person meeting to ensure more real-time 
communications and monitoring of the BDTRP's effectiveness. Having such 
discussions in real-time allows for an adaptive management approach to 
more quickly target potential reasons the BDTRP is not achieving its 
short-term goal and begin considering effective solutions.

Revisions to the Western North Atlantic Coastal Bottlenose Dolphin 
Stock

    The Western North Atlantic coastal bottlenose dolphin morphotype is 
continuously distributed in estuarine and coastal waters along the 
United State's Atlantic coast. Based on spatial and temporal patterns 
in strandings during a die-off from 1987-1988, bottlenose dolphins in 
coastal waters along the Atlantic coast were designated as a single 
coastal stock (Western North Atlantic coastal bottlenose dolphin stock) 
that migrated seasonally between New Jersey and central Florida. This 
Western North Atlantic coastal bottlenose dolphin stock was considered 
strategic due to depletion during the 1987-1988 die-off and 
interactions with nine Category I and II commercial fisheries. The 
BDTRT was formed in 2001 and the BDTRP implemented in 2006 to reduce 
impacts from commercial fishing. The geographic scope and affected area 
of the BDTRP was based on the habitat and range of the Western North 
Atlantic coastal stock, including all tidal and marine waters within 
6.5 nautical miles (12 km) of shore from the New York-New Jersey border 
southward to Cape Hatteras, North Carolina, and within 14.6 nautical 
miles (27 km) of shore from Cape Hatteras southward to, and including, 
the east coast of Florida.
    During the BDTRT's initial deliberations in developing the draft 
BDTRP, research demonstrated the Western North Atlantic coastal 
bottlenose dolphin stock was not a single migratory stock, but rather a 
complex mosaic of stocks occupying estuarine and coastal waters. The 
stock was, therefore, separated into seven discrete management units 
with spatial and temporal components for purposes of developing the 
draft BDTRP. However, the entire range of the Western North Atlantic 
coastal stock was used for the geographic scope of the BDTRP. PBR, 
abundance estimates, and mortality estimates for the Western North 
Atlantic coastal stock were determined and assigned per management 
unit. These management units were used until additional data collection 
and analyses were completed to allow redefinition of discrete stocks 
(as opposed to seasonal management units) in 2009.
    Genetic analyses, assessments of ranging patterns of bottlenose 
dolphins from long-term photographic identification studies, and 
satellite-telemetry tag studies were summarized to redefine stock 
structure. The stock structure now consists of nine estuarine system 
stocks and five coastal stocks. This description is not complete, 
however, because of insufficient information for some estuarine waters 
to evaluate stock structure, and limited information on the movement 
patterns of some of the coastal stocks. Targeted genetic studies showed 
genetic differentiation among coastal and estuarine stocks and 
separation between bottlenose dolphins occurring in estuarine versus 
coastal waters. Photo-identification studies described the seasonal 
ranging patterns of estuarine stocks and indicated some stocks (e.g., 
the Northern North Carolina Estuarine Stock) move offshore into 
nearshore coastal waters at particular times of year. Additionally, 
seasonal immigration/emigration and transient animals occur within 
estuaries, suggesting some degree of spatial overlap between estuarine 
and coastal animals (Waring et al. 2011). Although questions still 
remain about the degree of spatial overlap and mixing between the 
coastal and estuarine stocks, data indicates fourteen separate coastal 
and estuarine stocks are encompassed within the range of the Western 
North Atlantic morphotype of coastal bottlenose dolphins.
    The Western North Atlantic coastal morphotype of bottlenose 
dolphins was, therefore, revised to include 14 stocks of coastal (five 
stocks) and estuarine (nine stocks) bottlenose dolphins instead of one 
previous migratory stock. All stocks within the coastal morphotype are 
still considered strategic, except the Florida Bay Stock. Therefore, 
thirteen of the 14 bottlenose dolphin stocks are affected under the 
BDTRP because they are strategic and interact with Category I and II 
commercial fisheries. The following is a list of the revised bottlenose 
dolphin stocks, along with a description of their spatial and/or 
temporal distributions as now included in the BDTRP (Waring et al. 
2011):
    1. Western North Atlantic Northern Migratory Coastal Stock, which 
occupies coastal waters from the shoreline to approximately the 25 
meter isobath between the mouth of the Chesapeake Bay in Virginia and 
Long Island, New York during the summer months (July-September); and 
moves south occupying coastal waters from Cape Lookout, North Carolina 
to the Virginia/North Carolina border during the winter months 
(January-March).
    2. Western North Atlantic Southern Migratory Coastal Stock, which 
occupies coastal waters north of Cape Lookout, North Carolina to the 
eastern shore of Virginia and potentially inside the Chesapeake Bay, 
Virginia during summer months (July-September); occupies waters south 
of Cape Lookout during the fall (October-December); moves as far south 
as northern Florida during the winter (January-March); and moves back 
north to occupy waters of North Carolina during the spring (April-
June).
    3. Western North Atlantic South Carolina/Georgia Coastal Stock, 
which occupies coastal waters year-round from the North Carolina/South 
Carolina border to the Georgia/Florida border.
    4. Western North Atlantic Northern Florida Coastal Stock, which 
occupies

[[Page 21953]]

coastal waters year-round from the Georgia/Florida border to 29.4[deg] 
N.
    5. Western North Atlantic Central Florida Coastal Stock, which 
occupies coastal waters year-round from 29.4[deg] N. to the western end 
of Vaca Key, Florida.
    6. Northern North Carolina Estuarine System Stock, which occupies 
Pamlico Sound, North Carolina and nearshore coastal waters (less than 1 
km from shore) of North Carolina to Virginia Beach during the summer 
and fall (July-October); moves out of the estuarine waters and occupies 
nearshore coastal waters (less than 1 km from shore) between Capes 
Lookout and Hatteras, North Carolina during the late fall and winter 
(November-March); and occupies nearshore coastal (less than 1 km from 
shore) and estuarine waters of southern North Carolina during the 
spring (April-June).
    7. Southern North Carolina Estuarine System Stock, which occupies 
estuarine and nearshore coastal waters (less than 3 km from shore) 
between the North Carolina/South Carolina border and Core Sound, North 
Carolina during the summer and fall (July-October); and moves south to 
occupy coastal nearshore waters near Cape Fear, North Carolina during 
the late fall through spring (November-June).
    8. Charleston Estuarine System Stock, which occupies the riverine 
and estuarine waters year-round from Prince Inlet, South Carolina to 
the north and the North Edisto River, South Carolina to the south.
    9. Northern Georgia/Southern South Carolina Estuarine System Stock, 
which occupies all estuarine, riverine, and creek waters year-round 
from the southern extent of the North Edisto River, South Carolina to 
the northern extent of Ossabaw Sound, South Carolina.
    10. Southern Georgia Estuarine System Stock, which occupies all 
estuarine, intracoastal waterways, sounds, rivers, and tributaries 
year-round from the Altamaha River, Georgia to the Cumberland River at 
the Georgia/Florida border.
    11. Jacksonville Estuarine System Stock, which occupies all 
estuarine and riverine waters year-round from Cumberland Sound at the 
Florida/Georgia border to Jacksonville Beach, Florida.
    12. Indian River Lagoon Estuarine System Stock, which occupies all 
estuarine, riverine and lagoon waters year-round from Ponce de Leon 
Inlet, Florida to Jupiter Inlet, Florida.
    13. Biscayne Bay Stock, which occupies all estuarine waters year-
round from Haulover Inlet, Florida to Card Sound Bridge.
    To reflect updated knowledge and understanding of bottlenose 
dolphin stock structure, this proposed rule updates 50 CFR 229.35(a) by 
removing the reference to the ``Western North Atlantic bottlenose 
dolphin coastal stock'' and replacing it with ``stocks of bottlenose 
dolphins within the Western North Atlantic coastal morphotype''. 
Updating the bottlenose dolphin stocks included in the BDTRP will not 
modify management measures in the BDTRP. Although the management units 
were used to inform the development of the BDTRP, management measures 
in the BDTRP are still applicable based on the temporal and seasonal 
movements of each stock and Category I and II fisheries affected and 
regulated by the BDTRP. Each stock has its own abundance and mortality 
estimates, as well as associated PBRs. NMFS will continue monitoring 
serious injury and mortality for each stock through observer program 
and stranding data. NMFS will also continue evaluating the 
effectiveness of the BDTRP by monitoring serious injury and mortality 
estimates of bottlenose dolphins relative to the short- and long-term 
goals of the BDTRP.

Other Updates

    Since finalizing and implementing the BDTRP in May 2006, two errors 
in the BDTRP implementing regulations were identified. This proposed 
rule corrects the two errors as follows: (1) The current boundary for 
Southern North Carolina State Waters and South Carolina in 50 CFR 
229.35(b) uses North Carolina/South Carolina at the coast (33[deg]52' 
N.) for the southern part of the boundary. Similarly, the definition 
for South Carolina, Georgia, and Florida waters use the same latitude 
for the northern part of the boundary. The latitude 33[deg]52' N., 
however, does not accurately reflect the actual border. This proposed 
rule modifies the coordinate to accurately reflect the North Carolina/
South Carolina border at the coast. The border for North Carolina/South 
Carolina would be defined as the latitude corresponding with 
33[deg]51'07.9'' N. at the coast as described by ``Off South Carolina'' 
in 50 CFR 622.2 of this title (Fisheries of the Caribbean, Gulf, and 
South Atlantic--Definitions and Acronyms); and (2) In the regulatory 
text implementing the BDTRP, both 50 CFR 229.35(d)(1)(i) and 
229.35(d)(2)(i) describe regional management measures for New Jersey, 
Delaware, Maryland, and Virginia state waters specific to medium and 
large mesh gillnet gear. In specifying the regulated gear type, the 
word ``gillnet'' was not included in the titled description of the 
management measures, reading ``Medium and large mesh''. It is clear in 
the regulatory text these regulations are for both medium and large 
mesh gillnet gear. Therefore, this proposed rule corrects this omission 
in the two title descriptions by adding the word ``gillnet'', so the 
title would read ``Medium and large mesh gillnets'' for gear regulated 
under Sec.  229.35(d)(1)(i) and 229.35(d)(2)(i).

Classification

    This proposed rule has been determined to be not significant under 
Executive Order 12866.
    NMFS determined this action is consistent to the maximum extent 
practicable with the enforceable policies of the approved coastal 
management program of North Carolina. This determination was submitted 
for review by the responsible state agencies under section 307 of the 
Coastal Zone Management Act on December 22, 2011. North Carolina 
concurred with the consistency determination in a letter dated January 
23, 2012.
    This action contains policies with federalism implications that 
were sufficient to warrant preparation of a federalism summary impact 
statement under Executive Order 13132 and a federalism consultation 
with officials in the state of North Carolina. Accordingly, the 
Assistant Secretary for Legislative and Intergovernmental Affairs 
provided notice of the proposed action to the appropriate officials in 
North Carolina.
    NMFS determined this action is categorically excluded from the 
requirement to prepare an Environmental Assessment (EA) in accordance 
with sections 5.05b and 6.03c.3(i) of NOAA's Administrative Order (NAO) 
216-6 for implementing the National Environmental Policy Act. 
Specifically, this proposed action, if implemented, permanently 
maintains, without modification, a current regulation that would not 
substantially change the regulation or have a significant impact on the 
environment. NMFS prepared an EA on the final rule (71 FR 24776, April 
19, 2006) to implement the BDTRP, which included an analysis of the 
proposed action without time constraints. The EA analyzed all 
regulations in the final BDTRP of which the regulations addressed in 
this proposed rule were a component. The EA resulted in a finding of no 
significant impact. In accordance with section 5.05b of NAO 216-6, the 
proposed regulations were determined to not likely result in 
significant impacts as defined in 40 CFR 1508.27. This action does not 
trigger the exceptions to categorical exclusions listed in NAO 216-6, 
Section 5.05c. A

[[Page 21954]]

categorical exclusion memorandum to the file has been prepared.
    An Endangered Species Act section 7 consultation was conducted on 
this action and found that it may affect, but is not likely to 
adversely affect, threatened and endangered species. There is no 
designated critical habitat under NMFS' jurisdiction in the action 
area, so critical habitat was not affected. Furthermore, the only 
impacts from this action are expected to be beneficial to listed 
species because the proposed action will maintain reduced soak times in 
medium mesh gillnet fishing in North Carolina state waters.
    This proposed rule does not contain collection-of-information 
requirements subject to the Paperwork Reduction Act.
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that this proposed rule, if adopted, would not have a 
significant economic impact on a substantial number of small entities. 
The factual basis for this determination is as follows.
    The purpose of this proposed rule is to continue reducing serious 
injuries and mortalities to bottlenose dolphins incidental to 
commercial fishing operations and ensure serious injuries and 
mortalities do not exceed PBR levels, as mandated by the MMPA. The MMPA 
provides the statutory basis for this proposed rule.
    This proposed rule would not establish any new reporting, 
recordkeeping, or other compliance requirements. No duplicative, 
overlapping, or conflicting Federal rules have been identified.
    Initial and final regulatory flexibility analyses, dated April 
2006, were prepared for the BDTRP. These analyses determined all 
commercial fishing entities using medium mesh gillnets in the manner 
and location encompassed by the proposed action implementing the BDTRP 
would be affected. Because this rule, if implemented, would continue 
the existing restrictions on this gear sector, all entities using this 
gear would potentially be directly affected.
    As detailed in the analyses for the 2006 BDTRP, a total of 1,321 
unique participants were identified as having recorded landings using 
medium mesh gillnet gear during the 2001 fishing season (November 2000-
October 2001) in North Carolina. Total harvests with this gear were 
valued at approximately $13.8 million (nominal ex-vessel value), or 
approximately 18% of total fishing revenues by these entities of 
approximately $77 million (nominal ex-vessel value). The average annual 
revenue from the harvest of all marine species by these vessels was 
approximately $58,000.
    The Small Business Administration (SBA) has established size 
criteria for all major industry sectors in the U.S. including fish 
harvesters. A business involved in fish harvesting is classified as a 
small business if it is independently owned and operated, is not 
dominant in its field of operation (including its affiliates), and has 
combined annual receipts not in excess of $4.0 million (NAICS code 
114111, finfish fishing) for all its affiliated operations worldwide. 
Based on the estimated average annual revenue of vessels using medium 
mesh gillnet gear in North Carolina from the 2001 fishing season, the 
analyses conducted for the BDTRP determined all entities expected to be 
affected by the proposed action were small business entities. 
Comparable average revenue estimates for current entities in North 
Carolina using medium mesh gillnet gear are not available. However, 
although time has elapsed since the initial BDTRP analyses, no 
information has been identified to suggest economic performance in this 
sector has substantially improved since 2001, and the disparity between 
the 2001 average ($58,000) and the SBA threshold ($4.0 million) is 
sufficiently large to conclude participants in this sector of the 
commercial fishery remain small business entities. As a result, all 
commercial entities expected to be directly affected by this proposed 
rule, if implemented, are determined for the purpose of this analysis 
to be small business entities.
    Although this proposed rule, if implemented, would restrict the 
behavior of entities using medium mesh gillnets in North Carolina 
coastal state waters, it would not directly affect any current fishing 
revenues or fishing practices nor likely prevent fishermen from the 
harvesting the increasing spiny dogfish quotas as indicated below. The 
scope of this proposed rule is the same as analyzed in support of the 
2006 BDTRP. As detailed in the analyses provided supporting the 2006 
BDTRP, the initial implementation of the restriction was estimated to 
result in an estimated reduction in ex-vessel revenue of approximately 
$296,000, or less than 1% of total ex-vessel revenue for the affected 
entities. This low impact was likely affected by the decline in spiny 
dogfish harvests, which have historically been the primary target of 
this gear in North Carolina. Spiny dogfish harvests declined from 
approximately 3.5 million pounds in 2000 to less than 20,000 pounds per 
year in 2005 and 2006. As discussed in the preamble, landings of spiny 
dogfish in North Carolina began increasing in 2009. For the 2010-2011 
fishing season, 181 vessels recorded spiny dogfish landings of 
approximately 1.71 million pounds valued at approximately $257,000. The 
recent increase in spiny dogfish harvests demonstrates fishermen have 
adapted their fishing practices and are successfully harvesting spiny 
dogfish despite the current BDTRP gear restrictions. Therefore, the 
proposed continuation of these restrictions would not cause fishermen 
to lose actual income, but would only preclude potential future income 
from fishing with medium mesh gillnets in the manner subject to this 
proposed regulation. Because this proposed rule, if implemented, would 
only continue the prohibition of a fishing practice that has not been 
used since 2006, current revenues or profits of any small entity would 
not be affected because this action is not expected to prohibit 
fishermen from harvesting spiny dogfish quotas. Further, current 
participants in the affected fishery have demonstrated the ability to 
successfully harvest the primary target species for the affected gear, 
and fishing revenues for the target species have been increasing 
despite the BDTRP restriction. Therefore, this proposed rule, if 
implemented, would not be expected to have a significant, direct 
adverse economic effect on the profits of a substantial number of small 
entities.
    Because this proposed rule, if implemented, is not expected to have 
any direct adverse economic impact on a substantial number of small 
entities, an initial regulatory flexibility analysis is not required 
and none has been prepared.

References Cited

ASMFC. 2002. Interstate Fishery Management Plan for Spiny Dogfish. 
Fishery Management Report No. 40 of the Atlantic States Marine 
Fisheries Commission. Prepared by the Spiny Dogfish Plan Development 
Team.
ASMFC. 2007. Review of the Atlantic States Marine Fisheries 
Commission's Interstate Fishery Management Plan for Spiny Dogfish 
(Squalus acanthias) May 2006-April 2007 fishing year. Prepared by 
the Spiny Dogfish Plan Review Team, ASMFC.
ASMFC. 2008. Addendum II to the Interstate Fishery Management Plan 
for Spiny Dogfish. Atlantic States Marine Fisheries Commission, 
approved October 2008.
ASMFC. 2011a. Addendum III to the Interstate Fishery Management Plan 
for Spiny Dogfish. Atlantic States Marine Fisheries Commission. 
April 2011.
ASMFC. 2011b. Review of the Atlantic States Marine Fisheries 
Commission's Interstate Fishery Management Plan for Spiny

[[Page 21955]]

Dogfish (Squalus acanthias) May 2009--April 2010 Fishing Year. 
Prepared by the Spiny Dogfish Plan Review Team, ASMFC.
Byrd, B.L, A.A. Hohn, F.H. Munden, G.N. Lovewell, and R.E. 
LoPiccolo. 2008. Effects of Commercial Fishing Regulations on 
Stranding Rates of Bottlenose Dolphins (Tursiops truncatus). Fish. 
Bull. 106:72-81.
NCDMF. 2008. Overview of North Carolina Spiny Dogfish Regulations 
and Commercial Landings. North Carolina Department of Natural 
Resources, March 2008.
NMFS. Personal Communication. National Marine Fisheries Service, 
Fisheries Statistic Division, Silver Spring, MD.
NMFS. 2006. 43rd SAW Assessment Summary Report (43rd SAW): 43rd SAW 
assessment report. US Dep Commer, Norteast Fish Sci Cent Ref Doc 06-
25; 200. November 2006.
NOAA Southeast Stranding Data. 2010. NOAA National Marine Mammal 
Health and Stranding Response Database unpublished data, accessed 
March 1, 2011 date.
Rago, P.J. and K.A. Sosebee. 2010. Biological Reference Points for 
Spiny Dogfish. Department of Commerce, National Oceanic and 
Atmospheric Administration, National Marine Fisheries Service. 
Northeast Fisheries Science Center Reference Document 10-06. May 
2010.
Rossman, M. and D. Palka. 2004. A Review of Coastal Bottlenose 
Dolphin Bycatch Mortality Estimates in Relation to the Potential 
Effectiveness of the Proposed BDTRP. Prepared by NMFS-NEFSC for the 
BDTRT. BDTRT document number 1-13-05f.
Waring, G.T., E. Josephson, C.P. Fairfield-Walsh, and K. Maze-Foley, 
editors. 2007. U.S. Atlantic and Gulf of Mexico Marine Mammal Stock 
Assessments--2007. NOAA Tech Memo NMFS NE 205; 415 p.
Waring, G.T., E. Josephson, K. Maze-Foley, and P.E. Rosel, editors. 
2011. U.S. Atlantic and Gulf of Mexico Marine Mammal Stock 
Assessments--2010. NOAA Tech Memo NMFS NE 219; 598 p.

List of Subjects in 50 CFR Part 229

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

    Dated: April 5, 2012.
Alan D. Risenhoover,
Acting Deputy Assistant Administrator for Regulatory Programs, National 
Marine Fisheries Service.

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

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

    1. The authority citation for 50 CFR part 229 continues to read as 
follows:

    Authority:  16. U.S.C. 1361 et seq.; 50 CFR 229.32(f) also 
issued under 16 U.S.C. 1531 et seq.

    2. In Sec.  229.35 paragraph (a), the definitions of South 
Carolina, Georgia, and Florida waters and Southern North Carolina State 
waters in paragraph (b), and paragraphs (d)(1)(i), (d)(2)(i), 
(d)(4)(ii), and (d)(5)(i) are revised to read as follows:


Sec.  229.35  Bottlenose Dolphin Take Reduction Plan.

    (a) Purpose and scope. The purpose of this section is to implement 
the Bottlenose Dolphin Take Reduction Plan (BDTRP) to reduce incidental 
mortality and serious injury of stocks of bottlenose dolphins within 
the Western North Atlantic coastal morphotype in specific Category I 
and II commercial fisheries from New Jersey through Florida. Specific 
Category I and II commercial fisheries within the scope of the BDTRP 
are indentified and updated in the annual List of Fisheries. Gear 
restricted by this section includes small, medium, and large mesh 
gillnets. The geographic scope of the BDTRP is all tidal and marine 
waters within 6.5 nautical miles (12 km) of shore from the New York-New 
Jersey border southward to Cape Hatteras, North Carolina, and within 
14.6 nautical miles (27 km) of shore from Cape Hatteras, southward to, 
and including the east coast of Florida down to the fishery management 
council demarcation line between the Atlantic Ocean and the Gulf of 
Mexico (as described in Sec.  600.105 of this chapter).
    (b) * * *
    South Carolina, Georgia, and Florida waters means the area 
consisting of all marine and tidal waters, within 14.6 nautical miles 
(27 km) of shore, between 33[deg]51'07.9'' N. (North Carolina/South 
Carolina border at the coast and as described by ``Off South Carolina'' 
in Sec.  622.2 of this title) and the fishery management council 
demarcation line between the Atlantic Ocean and the Gulf of Mexico (as 
described in Sec.  600.105 of this chapter).
* * * * *
    Southern North Carolina State waters means the area consisting of 
all marine and tidal waters, within 3 nautical miles (5.56 km) of 
shore, bounded on the north by 34[deg]35.4' N. (Cape Lookout, North 
Carolina) and on the south by 33[deg]51'07.9'' N. (North Carolina/South 
Carolina border at the coast and as described by ``Off South Carolina'' 
in Sec.  622.2 of this title).
* * * * *
    (d) * * *
    (1) * * *
    (i) Medium and large mesh gillnets. From June 1 through October 31, 
in New Jersey, Delaware, and Maryland State waters, no person may fish 
with any medium or large mesh anchored gillnet gear at night unless 
such person remains within 0.5 nautical mile (0.93 km) of the closest 
portion of each gillnet and removes all such gear from the water and 
stows it on board the vessel before the vessel returns to port.
* * * * *
    (2) * * *
    (i) Medium and large mesh gillnets. From June 1 through October 31, 
in Southern Virginia State waters and Northern Virginia State waters, 
no person may fish with any medium or large mesh anchored gillnet gear 
at night unless such person remains within 0.5 nautical mile (0.93 km) 
of the closest portion of each gillnet and removes all such gear from 
the water and stows it on board the vessel before the vessel returns to 
port.
* * * * *
    (4) * * *
    (ii) Medium mesh gillnets. From November 1 through April 30 of the 
following year, in Northern North Carolina State waters, no person may 
fish with any medium mesh gillnet at night.
* * * * *
    (5) * * *
    (i) Medium mesh gillnets. From November 1 through April 30 of the 
following year, in Southern North Carolina State waters, no person may 
fish with any medium mesh gillnet at night.
* * * * *
[FR Doc. 2012-8770 Filed 4-11-12; 8:45 am]
BILLING CODE 3510-22-P