Taking of Marine Mammals Incidental to Commercial Fishing Operations; Bottlenose Dolphin Take Reduction Plan, 45268-45270 [2012-18667]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 77, Number 147 (Tuesday, July 31, 2012)]
[Rules and Regulations]
[Pages 45268-45270]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-18667]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 229

[Docket No. 110202088-2252-02]
RIN 0648-BA34


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

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

ACTION: Final rule.

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SUMMARY: The National Marine Fisheries Service (NMFS) issues this final 
rule amending the Bottlenose Dolphin Take Reduction Plan (BDTRP) and 
its implementing regulations by permanently continuing 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 (Team) recommended these 
regulations be continued permanently, without modification, to ensure 
that BDTRP goals are met through continued conservation of strategic 
bottlenose dolphin stocks in North Carolina, which have historically 
high serious injury and mortality rates associated with medium mesh 
gillnets. NMFS also amends the BDTRP with updates, including updates 
recommended by the Team for non-regulatory conservation measures.

DATES: This final rule is effective August 30, 2012.

ADDRESSES: The proposed rule, BDTRP, 2008 BDTRP amendment, Team 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:

Background

    In accordance with section 118(f)(7)(F) of the Marine Mammal 
Protection Act (MMPA), this final rule implements an amendment to the 
BDTRP (71 FR 24776). The BDTRP was originally published on April 26, 
2006, and amended on December 19, 2008 (73 FR 77531). Details regarding 
the development and justification of this final rule were provided in 
the preamble of the proposed rule (77 FR 21946; April 12, 2012) and are 
not repeated here.

Nighttime Medium Mesh Gillnet Fishing Restrictions in North Carolina

    This final rule removes the sunset date to permanently continue, 
without modification, nighttime medium mesh fishing restrictions in 
North Carolina coastal state waters. Specifically, prohibitions of 
nighttime medium mesh (greater than 5-inch (12.7 cm) to less than 7-
inch (17.8 cm)) gillnets in North Carolina coastal state waters from 
November 1 through April 30 will continue annually.

Comments on the Proposed Rule and Responses

    NMFS received four comment letters on the proposed rule via mail, 
fax, or www.regulations.gov. Comments were received from The Humane 
Society of the United States and the Whale and Dolphin Conservation 
Society, the Marine Mammal Commission, the United States Fish and 
Wildlife Service, and one citizen. The comments are summarized below 
under regulatory or non-Regulatory changes to the BDTRP. NMFS' response 
follows each comment.

Comments on Regulatory Changes to the BDTRP

    Comment 1: Three commenters expressed support for permanently 
adopting the nighttime seasonal medium mesh gillnet restrictions in 
North Carolina coastal state waters and recommended NMFS adopt these 
measures as proposed.
    Response: NMFS appreciates the commenters' support and is 
finalizing these measures as proposed.

[[Page 45269]]

    Comment 2: One commenter said nighttime fishing should not be 
allowed anytime in the entire area.
    Response: NMFS believes this is more restrictive than currently 
necessary for bottlenose dolphin conservation efforts. In North 
Carolina, there are currently no observed serious injuries or 
mortalities of bottlenose dolphins in gillnets with long soak durations 
outside of the currently regulated November 1 through April 30 
timeframe.
    Comment 3: One commenter said NMFS should ban gillnet fishing in 
the entire area.
    Response: NMFS previously considered this option in the final 
Environmental Assessment implementing the BDTRP. Although this would 
provide additional conservation benefits to bottlenose dolphins in 
North Carolina, it would be at great expense to the fisheries and 
fishing community. It is also not a consensus recommendation by the 
Team. NMFS plans to reconvene the Team in 2013 to evaluate the need for 
possible additional conservation measures for fisheries interacting 
with strategic stocks of bottlenose dolphins in North Carolina. See 
also comment 6 and response.

Comments on Non-Regulatory Changes to the BDTRP and Updates

    Comment 4: Two commenters expressed support for updating the BDTRP 
with the non-regulatory consensus recommendations made by the Team and 
discussed in the proposed rule. Specifically, continuing research to 
better understand bottlenose dolphin stock structure and determine if/
how fishing gear modifications may reduce serious injury and mortality 
of bottlenose dolphins.
    Response: NMFS agrees and is updating the BDTRP as proposed. NMFS 
will continue stock structure and gear research efforts, as feasible.
    Comment 5: One commenter expressed concern that observer coverage 
is not robust enough to determine patterns of mortality for fisheries 
known to interact with bottlenose dolphins. NMFS therefore needs to 
allocate observer coverage effort to ensure more accurate and precise 
estimates of mortality for bay, sound, and estuary stocks of bottlenose 
dolphins.
    Response: NMFS agrees augmented and expanded observer coverage 
would help achieve representative coverage and improve precision and 
accuracy of mortality estimates. The Team has repeatedly provided 
consensus recommendations to NMFS on the importance of more and broader 
observer coverage in various fisheries and areas in North Carolina. 
NMFS has also made multiple recent efforts to increase observer 
coverage in North Carolina, including: (1) Implementation of a North 
Carolina Alternative Platform Program from 2006-2009 to observe vessels 
too small to safely carry onboard observers; (2) a ``pulsed'' observer 
effort in fall 2008 to augment monitoring of bottlenose dolphin serious 
injuries and mortalities in times and areas with known fishery 
interactions; (3) increased federal observer coverage in inshore and 
nearshore coastal state waters in 2006/2007, 2010/2011, and 2011/2012; 
(4) coordination between NMFS' Northeast and Southeast Observer 
Programs to facilitate combined data use; and (5) continued 
coordination with North Carolina on federal and state observer data 
collection and transferability.
    Comment 6: One commenter suggested NMFS reconvene the Team to 
evaluate if additional measures are necessary to ensure fishery-related 
serious injury and mortality is not exceeding Potential Biological 
Removal (PBR) for affected bottlenose dolphin stocks.
    Response: NMFS plans to reconvene the Team in 2013 to evaluate the 
effectiveness of the BDTRP and determine if additional conservation 
measures are necessary to meet MMPA mandated goals, including assurance 
that PBR levels are not exceeded.

Changes From the Proposed Rule

    NMFS is making one minor change from the proposed rule to this 
final rule. In the proposed rule, NMFS corrected the boundary for the 
North Carolina/South Carolina border as currently described in two 
BDTRP definitions. NMFS proposed to modify the border latitude from 
33[deg]52' N. to the latitude corresponding with 33[deg]51'07.9'' N. as 
described by ``Off South Carolina'' in 50 CFR 622.2. Specifically, in 
the definitions of Southern North Carolina state waters and South 
Carolina, Georgia, and Florida waters, NMFS changed the latitude to 
33[deg]51'07.9'' N. and referred to the ``Off South Carolina'' 
definition. In this final rule, NMFS maintains the corrected latitude 
but removes the references to ``Off South Carolina'' in both 
definitions and replaces it with relevant text. Removing the reference 
to ``Off South Carolina'' reduces potential confusion over which part 
of the definition is being referenced and eliminates the need for 
readers to refer to a separate regulatory section.

Classification

    This final rule was 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. North Carolina did not respond.
    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 Administrative Order (NAO) 
216-6 for implementing the National Environmental Policy Act. 
Specifically, this action permanently continues, without modification, 
a 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 action without time constraints. The EA 
analyzed all regulations in the final BDTRP of which the regulations 
addressed in this 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 regulations finalized here 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 categorical exclusion memorandum to the file was 
prepared.
    This final 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 during the proposed rule stage that this action would 
not have a significant economic

[[Page 45270]]

impact on a substantial number of small entities. The factual basis for 
this determination was published in the proposed rule and is not 
repeated here. No comments were received regarding the certification. 
As a result, a final regulatory flexibility analysis was not required 
and none was prepared.

List of Subjects in 50 CFR Part 229

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

    Dated: June 23, 2012.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries, performing the functions and 
duties of the Deputy Assistant Administrator for Regulatory Programs, 
National Marine Fisheries Service.

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

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

0
1. The authority citation for part 229 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.


0
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 title).
    (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, bounded on the north by a line extending in a 
direction of 135[deg]34'55'' from true north from the North Carolina/
South Carolina border at 33[deg]51'07.9'' N. and 78[deg]32'32.6'' W., 
and on the south by the fishery management council demarcation line 
between the Atlantic Ocean and the Gulf of Mexico (as described in 
Sec.  600.105 of this title).
    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 a line extending in a direction of 
135[deg]34'55'' from true north from the North Carolina/South Carolina 
border at 33[deg]51'07.9'' N. and 78[deg]32'32.6'' W.
* * * * *
    (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. 2012-18667 Filed 7-30-12; 8:45 am]
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