[Federal Register Volume 69, Number 217 (Wednesday, November 10, 2004)]
[Proposed Rules]
[Pages 65127-65142]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-25113]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 223 and 229

[Docket No. 040903253-4253-01; I.D. 081104H]
RIN 0648-AR39


Taking of Marine Mammals Incidental to Commercial Fishing 
Operations; Bottlenose Dolphin Take Reduction Plan; Sea Turtle 
Conservation; Restrictions to Fishing Activities

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS is proposing to implement management measures to reduce 
the incidental mortality and serious injury (bycatch) of the western 
North Atlantic coastal bottlenose dolphin stock (dolphins) (Tursiops 
truncatus) in the mid-Atlantic coastal gillnet fishery and eight other 
coastal fisheries operating within the dolphin's distributional range 
and to amend current, seasonal restrictions on large mesh gillnet 
fisheries operating in the mid-Atlantic region to reduce the incidental 
take of sea turtles in North Carolina and Virginia state waters. This 
rule proposes to use effort reduction measures, gear proximity rules, 
gear or gear deployment modifications, fishermen training, and outreach 
and education measures to reduce dolphin bycatch below the marine 
mammal stock's potential biological removal level (PBR); and time/area 
closures and size restrictions on large mesh fisheries to reduce 
incidental takes of endangered and threatened sea turtles as well as to 
reduce dolphin bycatch below the stock's PBR.

DATES: Written comments on the proposed rule must be received no later 
than 5 p.m. eastern time, on February 8, 2005.

ADDRESSES: You may submit comments, identified by the RIN 0648-AR39, by 
any of the following methods:
    <bullet> E-mail: <a href="/cdn-cgi/l/email-protection#d1e1e7e5e9fc9083e2e8ffa1a3bea1bea2b4b591bfbeb0b0ffb6bea7"><span class="__cf_email__" data-cfemail="8ebeb8bab6a3cfdcbdb7a0fefce1fee1fdebeacee0e1efefa0e9e1f8">[email protected]</span></a>. Include Docket Number 
RIN 0648-AR39 in the subject line of the message.
    <bullet> Mail: Chief, Protected Resources Division, NMFS, 9721 
Executive Center Drive North, St. Petersburg, FL 33702-2432.
    <bullet> Facsimile (fax) to: 727-570-5517. Chief, Protected 
Resources Division, NMFS, 9721 Executive Center Drive North, St. 
Petersburg, FL 33702-2432.
    <bullet> Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments. Instructions: All 
submissions received must include the agency name and docket number or 
Regulatory Information Number (RIN) for this rulemaking. For detailed 
instructions on submitting comments and additional information on the 
rulemaking process, see the ``Public Participation'' heading of the 
SUPPLEMENTARY INFORMATION section of this document.
    Copies of the Environmental Assessment (EA), an Initial Regulatory 
Flexibility Analysis (IRFA), the Bottlenose Dolphin Take Reduction Team 
(BDTRT) meeting summaries and progress reports and complete citations 
for all references used in this rulemaking may be obtained from the 
persons listed under FOR FURTHER INFORMATION CONTACT.
    Comments regarding the collection of information requirements 
contained in this proposed rule should be submitted in writing to the 
Chief, Marine Mammal Conservation Division, Office of Protected 
Resources, NMFS, 1315 East-West Highway, Silver Spring, MD 20910 and to 
David Rostker, OMB, by e-mail at <a href="/cdn-cgi/l/email-protection#f0b491869994afa29f83849b9582b09f9d92de959f80de979f86"><span class="__cf_email__" data-cfemail="d490b5a2bdb08b86bba7a0bfb1a694bbb9b6fab1bba4fab3bba2">[email protected]</span></a> or by fax 
to 202-395-7285.

FOR FURTHER INFORMATION CONTACT: Stacey Carlson, NMFS, Southeast 
Region, 727-570-5312, Kristy Long, NMFS, 301-713-2322, or Brian Hopper, 
NMFS, Northeast Region, 978-281-9328. Individuals who use 
telecommunications devices for the deaf (TDD) may call the Federal 
Information Relay Service at 1-800-877-8339 between 8 a.m. and 4 p.m. 
eastern time, Monday through Friday, excluding Federal holidays.

SUPPLEMENTARY INFORMATION: NMFS intends to conduct two public hearings 
on this proposed rule. One hearing will be in conjunction with the next 
BDTRT meeting, which has not yet been scheduled but will occur during 
the comment period; and another in a location chosen to maximize 
participation of affected fishermen. NMFS will publish a separate 
notice detailing the time and location of the public hearings.

Electronic Access

    For additional information on western North Atlantic coastal 
bottlenose dolphins, refer to the final 2002 Atlantic and Gulf of 
Mexico Marine Mammal Stock Assessment Reports (SARs). The SARs can be 
accessed via the Internet at http://www.nmfs.noaa.gov/prot--res/

[[Page 65128]]

PR2/Stock--Assessment--Program/sars.html.

Background

Bycatch Reduction Requirements in the MMPA

    Section 118 (f)(1) of the Marine Mammal Protection Act (MMPA) (16 
U.S.C. 1387(f)(1)) requires the preparation and implementation of Take 
Reduction Plans (TRPs) for strategic marine mammal stocks that interact 
with Category I or II fisheries. The MMPA defines a strategic stock as 
a marine mammal stock: (1) for which the level of direct human-caused 
mortality exceeds the PBR level; (2) which, based on the best available 
scientific information, is declining and is likely to be listed as a 
threatened species under the Endangered Species Act (ESA) within the 
foreseeable future; or (3) which is listed as a threatened or 
endangered species under the ESA, or as depleted under the MMPA (16 
U.S.C. 1362(19)). PBR, as defined by the MMPA, means the maximum number 
of animals, not including natural mortalities, that may be removed from 
a marine mammal stock while allowing that stock to reach or maintain 
its optimum sustainable population (16 U.S.C. 1362(20)). NMFS 
regulations at 50 CFR 229.2 define a Category I fishery as a fishery 
that has frequent incidental mortality and serious injury of marine 
mammals; a Category II fishery as a fishery that has occasional 
incidental mortality and serious injury of marine mammals; and a 
Category III fishery as a fishery that has a remote likelihood of, or 
no known incidental mortality and serious injury of marine mammals. The 
western North Atlantic coastal bottlenose dolphin is a strategic stock 
because fishery-related incidental mortality and serious injury exceeds 
the stock's PBR and because it is currently designated as depleted 
under the MMPA (see 50 CFR 216.15). Because it is a strategic stock 
that interacts with Category I and II fisheries, a TRP is required to 
address dolphin bycatch.
    This rule proposes to implement the Bottlenose Dolphin Take 
Reduction Plan (BDTRP), which is based on consensus recommendations of 
the BDTRT, for multiple management units (MUs) within the western North 
Atlantic coastal bottlenose dolphin stock. The BDTRP affects the 
following Category I and II fisheries (see 2003 List of Fisheries, 68 
FR 41725, July 15, 2003): the mid-Atlantic coastal gillnet fishery, 
Virginia pound net fishery, mid-Atlantic haul/beach seine fishery, 
Atlantic blue crab trap/pot fishery, North Carolina inshore gillnet 
fishery, North Carolina roe mullet stop net fishery, North Carolina 
long haul seine fishery, Southeast Atlantic gillnet fishery, and 
Southeastern U.S. Atlantic shark gillnet fishery.
    According to the MMPA (16 U.S.C. 1387(f)(2)), the short-term goal 
of a TRP is to reduce, within 6 months of its implementation, the 
incidental mortality or serious injury of marine mammals incidentally 
taken in the course of commercial fishing operations to levels less 
than the PBR established for that stock. The long-term goal of a TRP is 
to reduce, within 5 years of its implementation, the incidental 
mortality or serious injury of marine mammals incidentally 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. 
Implementation of this proposed rule for the BDTRP is intended to 
accomplish the short-term goal of reducing dolphin bycatch to levels 
below the stock's PBR. In order to determine if this goal is met, NMFS 
would continue to monitor bycatch of bottlenose dolphins through 
observer programs, stranded animal reports, abundance and distribution 
surveys, and other means. Ultimately, the effectiveness of the TRP 
would be assessed via monitoring the serious injury and mortality rates 
for the bottlenose dolphins relative to the short- and long-term goals 
of the TRP.

History of the BDTRT

    NMFS convened a Mid-Atlantic Take Reduction Team (TRT) in February 
1997, to address the bycatch of both harbor porpoise and bottlenose 
dolphins in a suite of mid-Atlantic gillnet fisheries (from New York 
through North Carolina). However, members of the Mid-Atlantic TRT 
determined that there were insufficient data on dolphin abundance and 
bycatch to propose management measures for this stock at that time, and 
deferred the discussion until such time that more data were available 
on the abundance and stock structure of mid-Atlantic bottlenose 
dolphins. On October 24, 2001, NMFS published a notice announcing the 
convening of a newly formed BDTRT (66 FR 53782).
    The BDTRT met five times (November 6-8, 2001; January 23-25, 2002; 
February 27-March 1, 2002; March 27-28, 2002; and April 23-25, 2002), 
and on May 17, 2002, submitted to NMFS a set of consensus 
recommendations to reduce bycatch of the coastal stock of bottlenose 
dolphins in nine coastal fisheries (based on data available at that 
time). New bottlenose dolphin abundance estimates became available to 
the BDTRT subsequent to the submission of these recommendations. In 
addition, NMFS determined that the original recommendations would not 
meet the short-term goal for TRPs under the MMPA. Therefore, NMFS 
convened an additional meeting of the BDTRT on April 1-3, 2003. The 
BDTRT, as detailed in its May 3, 2003 report, then reached consensus on 
updated measures to reduce bycatch based on the more recent 
information. The BDTRT meetings were open to the public and public 
comments were invited on each day of the meetings. NMFS also held three 
public meetings on May 15-16, 2001; July 11-12, 2001; and November 6, 
2001 to provide background information prior to convening the BDTRT.
    NMFS published a Notice of Intent (NOI) to Prepare an Environmental 
Impact Statement (EIS) under the National Environmental Policy Act 
(NEPA)(67 FR 47772; July 22, 2002) to review the environmental effects 
of implementing the recommendations of the BDTRT. The comment period 
was reopened on September 19, 2002, to ensure that the public had ample 
opportunity to provide comments (67 FR 59051).
    After publication of the NOI, NMFS determined that proceeding with 
an EIS was not necessary based on additional information on the 
abundance and status of the dolphin stock made available to the BDTRT 
and that an EA was a more appropriate initial level of analysis under 
NEPA. The new abundance estimates were greater than previous estimates 
of the dolphin stock for five of the stock's seven MUs. Given this new 
information, the recommendations by the BDTRT would not significantly 
impact the human environment. NMFS published a notice to proceed with 
the preparation of an EA on July 31, 2003 (68 FR 44925).
    NMFS received five sets of comments during the public scoping 
period and the NOI comment period. The comments were considered during 
the development of this proposed rule and its supplemental analyses. 
These comments and NMFS' responses are available as an appendix to the 
EA (see ADDRESSES).

Stock Structure, Abundance, and Bycatch of the Western North Atlantic 
Coastal Bottlenose Dolphin

    The following section provides a summary from NMFS Stock Assessment 
Reports and the latest scientific

[[Page 65129]]

information of stock structure, abundance, and estimated bycatch 
information for the western North Atlantic coastal bottlenose dolphin. 
Please consult the EA (see ADDRESSES) for more detailed information or 
specific studies related to stock structure, abundance, or bycatch.
    The western North Atlantic coastal bottlenose dolphin stock is 
designated as a single stock in NMFS' Stock Assessment Reports. Recent 
research, however, demonstrated that the stock was more structurally 
complex than originally believed (NMFS 2002). To reflect this 
complexity and for management purposes, this stock was separated into 
seven discrete MUs, which have spatial and temporal components (see 
Figure 1). The PBR for the stock was determined and assigned according 
to each MU. Therefore, proposed management measures were established 
per MU, which serves management purposes well because fisheries 
interacting with this stock also have spatial and temporal components. 
The separate MUs include:
    1. Northern Migratory MU, which ranges from northern New Jersey to 
southern Virginia in the summer, and from southern Virginia to southern 
North Carolina in the winter;
    2. Northern North Carolina MU, which ranges from northern North 
Carolina to central North Carolina in the summer and from southern 
Virginia to southern North Carolina in the winter;
    3. Southern North Carolina MU, which ranges from central North 
Carolina to southern North Carolina in the summer and winter (In the 
winter, the geographic distributions of the Northern Migratory, 
Northern North Carolina, and Southern North Carolina MUs overlap along 
the coast of North Carolina and southern Virginia. During the winter, 
these overlapping units are referred to as the ``Winter Mixed'' MU.);
    4. South Carolina MU, which ranges from the North Carolina/South 
Carolina border to the South Carolina/Georgia border in the summer and 
winter;
    5. Georgia MU, which ranges from northern coastal Georgia to 
southern Georgia in the summer and winter;
    6. Northern Florida MU, which ranges from northern Florida to 
central Florida in the summer and winter; and
    7. Central Florida MU, which ranges from central Florida to 
southern Florida in the summer and winter (NMFS 2002).
    Abundance estimates are the basis for determining PBR for marine 
mammal stocks. Table 1 summarizes the stock assessment information for 
the seven coastal bottlenose dolphin MUs. Abundance estimates are 
derived from surveys conducted in 2002 unless otherwise specified. The 
BDTRT used these estimates to aid in developing take reduction 
recommendations.

  Table 1.--2002 abundance estimates and the associated coefficient of
     variation (CV) and minimum population estimate (Nmin) for each
 management unit of coastal bottlenose dolphins (Garrison et al., 2003).
------------------------------------------------------------------------
           Management Unit               Abundance      CV (%)     Nmin
------------------------------------------------------------------------
SUMMER (May - October)..............  ..............  .........  .......
Northern Migratory..................          17,466       19.1   14,621
Northern North Carolina.............  ..............  .........  .......
Oceanic.............................           6,160       51.9    3,255
Estuary.............................             919       12.5      828
BOTH................................           7,079       45.2    4,083
Southern North Carolina.............  ..............  .........  .......
Oceanic.............................           3,646       11.0    1,863
Estuary.............................             141       15.2      124
BOTH................................           3,787      106.9    1,987
WINTER (November - April)...........  ..............  .........  .......
Winter Mixed (Northern Migratory,             16,913       23.0   13,558
 Northern North Carolina, Southern
 North Carolina)....................
ALL YEAR............................  ..............  .........  .......
South Carolina......................           2,325       20.3    1,963
Georgia.............................           2,195       29.9    1,716
Northern Florida*...................             448       38.4      328
Central Florida*....................          10,652       45.8    7,377
------------------------------------------------------------------------
*Northern Florida estimates are derived from the winter 1995 survey and
  the summer 2002 survey. Central Florida MU estimates are from the
  winter 1995 survey.

    From the abundance estimates, NMFS provided the BDTRT with bycatch 
estimates and PBRs for each management unit. Table 2 provides a summary 
of these bycatch estimates and current PBRs per MU, which indicates 
that estimated bycatch exceeds PBR for the Summer Northern North 
Carolina Management Unit and the Winter Mixed Management Unit.

 
------------------------------------------------------------------------
                                              Estimated
              Management Unit                  Bycatch      Current PBR
------------------------------------------------------------------------
Northern Migratory.........................           30            73.1
Summer Northern North Carolina.............           29            20.4
Summer Southern North Carolina.............         0\1\             9.9
Winter Mixed (Northern Migratory, Northern           151            67.8
 North Carolina, and Southern North
 Carolina).................................
South Carolina.............................      Unknown              20
Georgia....................................      Unknown              17
Northern Florida...........................            0             3.3
Central Florida............................            4           74\2\
------------------------------------------------------------------------
\1\ No bycatch was recorded in the NMFS observer program, but stranding
  data indicate dolphin bycatch occurs.
\2\ The PBR for the Central Florida MU is based on the 1995 abundance
  estimate as no 2002 estimate is available.

    Please note that bycatch estimates are derived from observed 
fisheries only.

[[Page 65130]]

 For a discussion of bycatch information from stranding events and 
unofficially observed events, please consult the EA (see ADDRESSES). 
Because observed fishery bycatch data demonstrate that PBR was exceeded 
for the western North Atlantic coastal bottlenose dolphin stock and 
because this stock is strategic, take reduction measures are warranted.

Components of the Bottlenose Dolphin Take Reduction Plan (BDTRP)

    The take reduction measures in this proposed rule have spatial and 
seasonal components that reflect measures needed at different times of 
the year and in different areas for each of the seven distinct MUs. The 
seasonal and geographic distributions of these MUs are shown in Figure 
1.
[GRAPHIC] [TIFF OMITTED] TP10NO04.002

    The BDTRT reviewed gear characteristics that may influence bycatch 
levels. Analysis by Palka and Rossman (2001) concluded that distance 
from shore and gillnet mesh size were the two factors exhibiting the 
strongest relationship to bycatch estimates. The authors found that the 
highest bycatch rates of coastal bottlenose dolphins in mid-Atlantic 
gillnet fisheries occurred in large mesh gear (greater than or equal to 
7-inch or 17.8 cm stretch mesh) and in hauls that occurred within state 
waters (3 nmi or 4.8 km). Palka and Rossman (2001) also found that the 
highest bycatch occurred in the winter with most of the bycatch 
occurring in North Carolina and Virginia state waters. The authors 
inferred that changes in the fisheries that utilize this gear size in 
this region may have a considerable effect on reducing dolphin bycatch.
    The BDTRT's consensus recommendations included two principal types 
of actions to achieve required bycatch reduction goals: (1) specific 
regulatory fishing gear restrictions organized by bottlenose dolphin 
MU, and (2) broad-based, non-regulatory measures, such as education, 
outreach, and research. For those dolphin MUs where bycatch is low, or 
where bycatch estimates are unavailable, the BDTRT offered non-
regulatory recommendations. This proposed rulemaking addresses both the 
regulatory and non-regulatory measures recommended by the BDTRT.

Proposed Regulatory BDTRP Measures

    Applied primarily to gillnet fisheries, the proposed regulations 
result in a reduction in soak times and in the amount of gear in the 
water or otherwise change practices to reduce bycatch of dolphins. In 
developing this proposed rule, NMFS evaluated the recommendations 
provided by the

[[Page 65131]]

BDTRT to ensure that: the recommended measures would meet the goals of 
the MMPA, no unnecessary requirements would be imposed on the fishing 
industry, and the recommended measures were compatible with existing 
state and Federal management plans. NMFS expects these measures to 
reduce dolphin bycatch below the stock's PBR within six months of 
implementation because, based on modeling efforts and broad expertise 
of the BDTRT, the measures are expected to reduce the number of 
interactions between dolphins and fisheries below that level.
    NMFS proposes to implement all of the BDTRT's recommendations 
except the following: (1) the requirement for mandatory bycatch 
certification training (training would be conducted, but would not be 
mandatory); and (2) a requirement to haul gear once every 24 hours in 
the small mesh gillnet fisheries in the North Carolina portion of the 
Winter Mixed MU and the Summer Northern North Carolina MU.
    The BDTRT recommended that vessel operators and persons in non-
vessel fisheries complete a mandatory bycatch certification training 
program. However, a mandatory certification program is unnecessary at 
this time, and the potential costs of holding and ensuring 
participation at the workshops would outweigh the bycatch reduction 
benefits. Alternatively, NMFS proposes to provide outreach and 
education to the fishing industry through: (1) voluntary workshops 
conducted at major ports from New Jersey through Florida by NMFS 
outreach personnel; (2) dockside visits with the fishing industry 
carried out by fishery liaisons; (3) a pilot web-based training program 
accessible through the existing BDTRP web site to provide training to 
remaining fishermen who may not be able to attend dockside visits or 
workshops; and (4) educational materials (i.e., brochures, placards, 
decals, and possibly videos) provided through an annual mailing to all 
Category I and II fisheries affected by this proposed rule.
    NMFS does not support implementing the requirement to haul gear 
once every 24 hours in the small mesh gillnet fisheries in the ranges 
of the Winter Mixed MU and the Summer Northern North Carolina MU. NMFS 
analyzed fishery data and found that 98 percent of the observed hauls 
soaked for less than 24 hours. Additionally, this requirement would be 
difficult to enforce because it would be difficult to accurately 
ascertain the length of time that gear remains in the water, unless 
enforcement agents monitor the gear for a 24 hour period. NMFS instead 
plans to highlight gear-tending practices during workshop training and 
in outreach materials.

Definitions Used in BDTRP Proposed Rule

    Definitions of some of the terms used in this proposed rule differ 
from definitions of terms currently in 50 CFR 229.2 that apply to the 
Harbor Porpoise Take Reduction Plan. These different definitions would 
be placed within 50 CFR 229.35, which is the section for regulatory 
requirements of the Bottlenose Dolphin Take Reduction Plan, to avoid 
conflicting with definitions applicable to other take reduction plans. 
Also, new definitions were added where appropriate. Definition changes 
and additions were necessary in some cases for effective implementation 
of the BDTRT's recommended regulatory measures.
    The proposed rule contains different definitions of the terms 
``night,'' ``small mesh gillnet,'' and ``large mesh gillnet.'' NMFS 
proposes a different definition of ``night'' in this proposed rule to 
give fishermen more time to remove their gear from the water prior to 
certain night-time gear restrictions taking effect. Different 
definitions of ``small mesh gillnet'' and ``large mesh gillnet'' were 
proposed, and a definition of ``medium mesh gillnet'' was added, to 
tailor gear restrictions most appropriately given the conduct of 
gillnet fisheries and the nature of interactions between gillnet 
fisheries and bottlenose dolphins. For instance, bottlenose dolphin 
bycatch occurs in very small mesh gillnets, and harbor porpoise bycatch 
does not. Thus, there was a need to add a different definition of 
``small mesh gillnet'' under this proposed rule to address dolphin 
bycatch in gillnets with 5-inch (12.7 cm) stretched mesh or smaller. 
There was also a need to add a definition of ``medium mesh gillnet'' 
because a medium mesh gillnet category interacts with bottlenose 
dolphins. The definition of ``large mesh gillnet'' is slightly 
different from the one in 50 CFR 229.2 in that it does not include an 
upper bound of 18 inches (45.72 cm). It includes all gillnets with a 
mesh size greater than or equal to 7-inches (17.8 cm) stretched mesh 
and would, thus, address mesh sizes larger than 18 inches (45.72 cm) 
where necessary.
    The proposed rule also contains new definitions not currently 
contained in 50 CFR 229.2. For instance, ``fishing or to fish'' was 
added to be consistent with regulations under the Magnuson-Stevens 
Fishery Conservation and Management Act and to aid in enforcement of 
the regulations under the BDTRP. Various areas of water (e.g., 
``Northern North Carolina state waters'') were defined to indicate the 
locations in which certain regulations would apply. Definitions of 
``sunrise'' and ``sunset'' were added to indicate precise times at 
which certain night-time restrictions would apply. Definitions of 
``beach'' and ``beach/water interface'' were added to indicate in which 
part of the nearshore zone certain gear restrictions would apply.

Proposed Regulated Waters

    North of Cape Hatteras, North Carolina, western North Atlantic 
coastal bottlenose dolphins occur primarily in nearshore waters out to 
about 6.5 nautical miles (12 km) from shore (Garrison 2001). Garrison 
(2001) found that the coastal bottlenose dolphin stock occurs out to 
14.6 nautical miles (27 km) from shore in the southeastern U.S. Thus, 
NMFS proposes to implement portions of the BDTRT recommendations in all 
U.S. 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 
demarcation line between the Atlantic Ocean and the Gulf of Mexico (50 
CFR 600.105), with the exception of exempted waters.
    Exempted waters include all waters landward of the first bridge 
over any embayment, harbor, or inlet. In those instances where there is 
not a bridge over the embayment or harbor close to the mouth of the 
embayment or harbor, as in the case of Delaware Bay, exempted waters 
include all waters landward of the lines of demarcation delineating 
those waters upon which mariners shall comply with the International 
Regulations for Preventing Collisions at Sea, 1972, and those waters 
upon which mariners must comply with the Inland Navigation Rules as 
described in 33 CFR part 80 (COLREGS line). The decision was made to 
use the bridges, where possible, to mark the boundaries in part because 
the bridges are farther inshore than the COLREGS line and would, 
therefore, include more area under the proposed regulations.

Gear-area Measures

    NMFS proposes to implement the following recommendations of the 
BDTRT (also found in Table 3), which are organized by bottlenose 
dolphin MU and specific location (persons fishing with large mesh 
gillnets must also adhere to pertinent conservation measures as amended 
by the large mesh mid-Atlantic gillnet rule; see Table 4).

[[Page 65132]]

    Summer Northern Migratory MU (New Jersey through Virginia) From 
June 1-October 31 of each year, the proposed regulations require 
persons fishing with medium mesh (greater than 5-inch (12.7 cm) to less 
than 7-inch (17.8 cm) stretch mesh) and large mesh (greater than or 
equal to 7-inch (17.8 cm) stretch mesh) anchored gillnets at night in 
state waters to remain within 0.5 nautical miles (0.93 km) of the 
closest portion of each gear, and to remove all such gear and stow it 
on board the vessel before the vessel returns to port.
    Summer Northern North Carolina MU (Virginia/North Carolina border 
to Cape Lookout) From May 1-October 31 of each year, the proposed 
regulations require persons fishing with small mesh (less than or equal 
to 5-inch (12.7 cm) stretch mesh) gillnets to use a net length of less 
than or equal to 1,000 feet (304.8 m); and from April 15-December 15, 
prohibit fishing with large mesh (greater than or equal to 7-inch (17.8 
cm) stretch mesh) gillnets in state waters (this latter provision will 
codify existing North Carolina state prohibitions on gillnet fishing). 
(Note: The 2002 consensus recommendations contained a misprint 
indicating this restriction would begin on April 16.)
    Summer Southern North Carolina MU (Cape Lookout to North Carolina/
South Carolina border) From April 15-December 15, the proposed 
regulations prohibit persons fishing with large mesh (greater than or 
equal to 7-inch (17.8 cm) stretch mesh) gillnet gear from fishing in 
state waters (this latter provision will codify existing North Carolina 
state prohibitions on gillnet fishing). (Note: The 2002 consensus 
recommendations contained a misprint indicating this restriction would 
begin on April 16. In addition, when combined with the BDTRT 
recommendation for the Winter Mixed MU Southern North Carolina, the 
proposed regulations prohibit fishing with large mesh gillnets at night 
in state waters from November 1-April 30, this provision results in 
prohibiting fishing with large mesh gillnets at night in state waters 
year-round.)
    Winter Mixed MU - Virginia (Cape Charles Light to Virginia/North 
Carolina border) From November 1-December 31, the proposed regulations 
prohibit persons fishing with large mesh (greater than or equal to 7-
inch (17.8 cm) stretch mesh) gillnets at night in state waters and 
require that, at night, gear be removed from the water and stowed on 
board the vessel before the vessel returns to port.
    Winter Mixed MU - Northern North Carolina (Virginia/North Carolina 
border to Cape Lookout) From November 1-April 30, the proposed 
regulations prohibit persons fishing with medium mesh (greater than 5-
inch (12.7 cm) to less than 7-inch (17.8 cm) stretch mesh) gillnets at 
night in state waters. This restriction has a sunset clause of three 
years from the effective date of the final rule. The sunset clause is 
intended to ensure that NMFS and the BDTRT reconvene no later than 
three years after the effective date of this measure to evaluate 
whether it is effective at reducing dolphin bycatch and whether it 
should stay in effect. From December 16-April 14, the proposed 
regulations prohibit persons fishing with large mesh (greater than or 
equal to 7-inch (17.8) stretch mesh) gillnets at night in state waters 
without tie-downs. (Note: The BDTRT recommended this provision apply 
from November 1-April 30, but this period overlaps with a provision the 
BDTRT recommended for prohibiting large mesh gillnets (regardless of 
using tie-downs) in state waters from April 15-December 15. See 
proposed Gear-area Measures for Summer Northern North Carolina MU and 
Summer Southern North Carolina MU.)
    Winter Mixed MU - Southern North Carolina (Cape Lookout to North 
Carolina/South Carolina border) From November 1-April 30, the proposed 
regulations prohibit persons fishing with medium mesh (greater than 5-
inch (12.7 cm) to less than 7-inch (17.8 cm) stretch mesh) gillnets at 
night in state waters. This restriction has a sunset clause of three 
years from the effective date of the final rule. The sunset clause is 
intended to ensure that NMFS and the BDTRT reconvene no later than 
three years after the effective date of this measure to evaluate 
whether it is effective at reducing dolphin bycatch and whether it 
should stay in effect. From November 1-April 30, prohibit persons 
fishing with large mesh (greater than or equal to 7-inch (17.8 cm) 
stretch mesh) gillnets at night in state waters and require that, at 
night, gear be removed from the water and stowed on board the vessel 
before the vessel returns to port. (Note: When combined with the BDTRT 
recommendation for the Summer Southern North Carolina MU, to prohibit 
fishing with large mesh gillnets in state waters from April 15-December 
15, this provision results in prohibiting fishing with large mesh 
gillnets at night in state waters year-round.)
    Summer Northern North Carolina, Summer Southern North Carolina, and 
Winter Mixed MUs (North Carolina coast-wide) No person fishing in a 
Category I or II fishery may fish with a net within 300 feet (91.4 m) 
of the beach/water interface unless it consists of multi-fiber nylon 
(no type of monofilament material) that is 4 inches (10.2 cm) or less 
stretched mesh. NMFS proposes the 300-feet (91.4 m) distance 
requirement as an expansion of the BDTRT's recommendation to address 
the problem of bottlenose dolphin - fisheries interactions within the 
surf zone, evidenced by observer and stranding data. While the BDTRT 
recognized the need to prohibit certain nets deployed from the beach, 
NMFS expanded this prohibition to include the use of certain nets 
within 300 feet of the beach/water interface to address bottlenose 
dolphin bycatch throughout this area.
    South Carolina, Georgia, Northern Florida, and Central Florida MUs 
(South Carolina, Georgia, and Florida) Except in instances where state 
or federal regulations require a closer proximity to gear, the proposed 
regulations require persons fishing with all types of gillnet gear to 
remain within 0.25 nmi (0.46 km) of the closest portion of their gear 
at all times in state and Federal waters within 14.6 nmi (27 km) from 
shore. In addition, the proposed regulations require that gear be 
removed from the water and stowed on board the vessel before the vessel 
returns to port.
    Proposed gear marking requirements (apply to all regulated and 
exempted waters, as defined in Sec.  229.35 (c)(1) and (c)(2) in the 
regulatory text of this proposed rule) All fishermen participating in 
Category I or II fisheries affected by this proposed rule (except the 
Atlantic blue crab trap/pot fishery and Virginia pound net fishery, 
which already have gear marking requirements) must permanently mark 
their gear with identification tags containing the last name and first 
and middle initials of the owner, gear mesh size, and one of the 
following: state vessel registration number, U.S. Coast Guard 
documentation number, or state commercial fishing license number. For 
gillnet gear, in addition to identification tags, gear must be marked 
on one end of the net with a square flag and the opposite end with 
another square flag or ball buoy (see Table 3 or regulatory text at 
229.35(d)(1) and (d)(2) for specific requirements).
    NMFS is proposing gear marking requirements to assist in monitoring 
the performance of the proposed components of this rule to better 
ascertain which fisheries are interacting with dolphins and sea turtles 
and to assist with enforcement efforts. Some marking of gillnets and 
associated surface gear (e.g., buoys or flags) is currently required or 
being considered under Federal or state fishery

[[Page 65133]]

management plans for each of the nine fisheries covered by this plan. 
Most fishery-related strandings of bottlenose dolphins and sea turtles 
involve gear that cannot be definitively traced back to a particular 
fishery or geographical area. Any additional information obtained from 
gear marking will be important for assessing fishery interactions with 
protected species. This measure will not directly reduce bycatch, but 
it is expected to facilitate monitoring of bycatch rates and assist in 
designing future bycatch reduction measures.
    NMFS evaluated other possible gear marking requirements in the 
Atlantic blue crab trap/pot fishery and Virginia pound net fishery and 
determined that no additional gear marking requirements are currently 
needed. Atlantic blue crab trap/pot fishermen are currently required to 
mark the surface buoy, which is at least 5-inches (12.7 cm) in 
diameter, with an identification number contrasting in color to the 
buoy. Requiring additional tagging with the unique identification tags 
discussed above would cause an undue economic burden on the mid-
Atlantic crab trap/pot fishermen (please refer to the Environmental 
Assessment for further details), especially given their current gear 
marking requirements. Virginia pound net fishermen are also currently 
required to mark the holding stake or pole with a unique identification 
tag. Because there are already other state and Federal gear marking 
requirements in place for these fisheries, significant additional 
information is not likely to be obtained, in the event of the serious 
injury or mortality of a dolphin, from further gear marking 
requirements. Therefore, no additional gear marking requirements are 
currently proposed for the mid-Atlantic crab trap/pot and Virginia 
pound net fisheries.

                                          Table 3. Summary of proposed bottlenose dolphin regulatory measures.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                               Gillnet Mesh Size Requirements (Stretch Mesh)
                                                                                  ----------------------------------------------------------------------
          Management Unit             Fishing Area            Time Period                                     Medium (>5 in to <7      Large ([gteqt]7
                                                                                       Small (<=5 inch )             inch)                  inch)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Summer Northern Migratory                  NJ - VA   Unless otherwise specified,                      None   Jun. 1-October 31:     Jun. 1-October 31:
                                                          the following proposed                              Anchored gillnets-     Anchored gillnets-
                                                     measures apply during Summer                             fishermen must         fishermen must
                                                             (May 1- October 31)                              remain within 0.5      remain within 0.5
                                                                                                              nmi (0.93 km) of the   nmi (0.93 km) of
                                                                                                              closest portion of     the closest portion
                                                                                                              each gear fished at    of each gear fished
                                                                                                              night in state         at night in state
                                                                                                              waters, and any gear   waters, and any
                                                                                                              fished at night must   gear fished at
                                                                                                              be brought back to     night must be
                                                                                                              port with vessel..     brought back to
                                                                                                                                     port with
                                                                                                                                     vessel.\1\
Summer Northern North Carolina      VA/NC border to  Unless otherwise specified,   Net length must be less   None.................  April 15-December
                                             Cape Lookout the following proposed    than or equal to 1,000                           15: No fishing in
                                                     measures apply during Summer          feet (304.8 m).                           state waters.\1\
                                                             (May 1- October 31)
Summer Southern North Carolina               Cape LooUnless otherwise specified,                      None   None.................  April 15-December
                                      NC/SC border        the following proposed                                                     15: No fishing in
                                                     measures apply during Summer                                                    state waters.\1,2\
                                                             (May 1- October 31)
Winter Mixed - Virginia               Cape Charles   Unless otherwise specified,                      None   None.................  November 1-December
                                                  Light tothe following proposed                                                     31: No fishing at
                                            border   measures apply during Winter                                                    night in state
                                                          (November 1- April 30)                                                     waters, and, at
                                                                                                                                     night, gear must be
                                                                                                                                     removed from the
                                                                                                                                     water and stowed on
                                                                                                                                     board the vessel
                                                                                                                                     before the vessel
                                                                                                                                     returns to port.\1\
Winter Mixed - Northern North       VA/NC border to  Unless otherwise specified,                      None   No fishing at night    From December 16-
 Carolina                                    Cape Lookout the following proposed                              in state waters;       April 14: No
                                                     measures apply during Winter                             sunset clause of 3     fishing at night in
                                                          (November 1- April 30)                              years for this         state waters
                                                                                                              restriction..          without tie-
                                                                                                                                     downs.\1,3\
Winter Mixed - Southern North                Cape LooUnless otherwise specified,                      None   No fishing at night    No fishing at night
 Carolina                             NC/SC border        the following proposed                              in state waters;       in state waters,
                                                     measures apply during Winter                             sunset clause of 3     and, at night, gear
                                                          (November 1- April 30)                              years for this         must be removed
                                                                                                              restriction..          from the water and
                                                                                                                                     stowed on board the
                                                                                                                                     vessel before the
                                                                                                                                     vessel returns to
                                                                                                                                     port.\1,4\
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\Large mesh gillnets have additional restrictions for sea turtle and bottlenose dolphin protection under the amendments for the mid-Atlantic large
  mesh gillnet rule. Please cross-reference with Table 4.
\2\When combined with the BDTRT recommendation for the Winter Mixed MU Southern North Carolina, to prohibit fishing with large mesh gillnets at night in
  state waters from November 1-April 30, this provision results in prohibiting fishing with large mesh gillnets at night in state waters year-round.

[[Page 65134]]

 
\3\The BDTRT recommended this provision apply from November 1-April 30, but this period overlaps with a provision the BDTRT recommended for prohibiting
  large mesh gillnets (regardless of using tie-downs) in state waters from April 15-December 15. See proposed Gear-area Measures for Summer Northern
  North Carolina MU and Summer Southern North Carolina MU.
\4\When combined with the BDTRT recommendation for the Summer Southern North Carolina MU, to prohibit fishing with large mesh gillnets in state waters
  from April 15-December 15, this provision results in prohibiting fishing with large mesh gillnets at night in state waters year-round.)


----------------------------------------------------------------------------------------------------------------
               Management Unit                  Fishing Area     Time Period       Gear Operating Requirements
----------------------------------------------------------------------------------------------------------------
Summer Northern and Southern North Carolina;   NC coast-wide       Year-round   No person fishing in a Category
 Winter Mixed                                                                    I or II fishery may fish with a
                                                                                 net within 300 feet (91.4 m) of
                                                                                 the beach/water interface
                                                                                 unless it consists of multi-
                                                                                 fiber nylon (no type of
                                                                                 monofilament material) that is
                                                                                 4 inches (10.2 cm) or less
                                                                                 stretched mesh.
South Carolina, Georgia, Northern Florida,     SC, GA, and FL      Year-round   All gillnet gear: Fishermen must
 and Central Florida                                                             remain within 0.25 nmi (0.46
                                                                                 km) of the closest portion of
                                                                                 their gear at all times in
                                                                                 state and Federal waters within
                                                                                 14.6 nmi (27 km) from shore.
                                                                                 Gear must be removed from the
                                                                                 water and stowed on board the
                                                                                 vessel before the vessel
                                                                                 returns to port.
----------------------------------------------------------------------------------------------------------------


----------------------------------------------------------------------------------------------------------------
                                                                                  Gear Marking Requirements for
                                                                                    All Fisheries (excluding
               Management Unit                  Fishing Area     Time Period     Virginia Pound Net and Atlantic
                                                                                  Blue Crab Trap/Pot Fisheries)
----------------------------------------------------------------------------------------------------------------
All                                           NJ - central FL      Year-round   Gear marking requirements apply
                                                                                 to all regulated and exempted
                                                                                 waters, as defined in Sec.
                                                                                 229.35(c)(1) and (c)(2) in the
                                                                                 regulatory text of this
                                                                                 proposed rule. All fishermen
                                                                                 participating in Category I or
                                                                                 II fisheries affected by this
                                                                                 rule (except Atlantic blue crab
                                                                                 trap/pot and Virginia pound net
                                                                                 fisheries, which already have
                                                                                 gear marking requirements) must
                                                                                 permanently mark their gear
                                                                                 with identification tags
                                                                                 containing the last name and
                                                                                 first and middle initials of
                                                                                 the owner, gear mesh size, and
                                                                                 one of the following: state
                                                                                 vessel registration number,
                                                                                 U.S. Coast Guard documentation
                                                                                 number, or state commercial
                                                                                 fishing license number. These
                                                                                 identification tags, made of
                                                                                 plastic or metal, must be
                                                                                 attached along the float line,
                                                                                 as close to the float line as
                                                                                 operationally feasible, at
                                                                                 least once every 300 feet (91.4
                                                                                 m). For gillnet gear, in
                                                                                 addition to the identification
                                                                                 tags, gear must be marked on
                                                                                 the end flag or ball by using
                                                                                 engraved flag(s) or ball
                                                                                 buoy(s), or by attaching
                                                                                 engraved metal or plastic tags
                                                                                 to the flag(s) and ball
                                                                                 buoy(s). One end of the net
                                                                                 must be marked by a square flag
                                                                                 not less than 144 square inches
                                                                                 (929.03 square cm) and at least
                                                                                 3 feet (0.91 m) above the
                                                                                 water. The opposite end of the
                                                                                 net must also be marked by a
                                                                                 square flag or an 8-inch (20.32
                                                                                 cm) minimum diameter ball buoy
                                                                                 with the gear mesh size. Both
                                                                                 flag(s) and ball buoy(s) must
                                                                                 be marked with at least two
                                                                                 stripes of reflective material
                                                                                 that are not less than 2 inches
                                                                                 (5.08 cm) in width and that are
                                                                                 visible for 360 degrees.
----------------------------------------------------------------------------------------------------------------

Proposed Non-regulatory BDTRP Measures

    The BDTRT noted that effective application of the BDTRP requires 
cooperation among researchers, regulators, and fishermen and, 
therefore, included non-regulatory recommendations considered important 
in achieving the long-term goals of the BDTRP. The following are non-
regulatory recommendations from the May 7, 2002, Consensus 
Recommendations, which include research initiatives, outreach, 
training, and cooperative efforts (Please see the EA for additional 
information on non-regulatory recommendations).
    The BDTRT made the following general research and monitoring 
recommendations: (1) continue research on bottlenose dolphin stock 
structure; (2) design and conduct rigorous scientific surveys to 
provide reliable abundance estimates of the bottlenose dolphin stock; 
(3) conduct research on the bottlenose dolphin stock to determine if it 
is depleted under the MMPA; (4) improve assessment of bottlenose 
dolphin bycatch by expanding monitoring coverage under the observer 
program, expanding stranding networks to enhance data collection 
efforts, assessing the factors contributing to bottlenose dolphin 
bycatch, providing better assessment of fishery effort, and exploring 
alternative bycatch monitoring methods; and (5) complete various 
ongoing gear-modification-related research projects (e.g., comparing 
behavior of captive and wild dolphins around gillnets with and without 
acoustically reflective webbing, and investigating the effects of twine 
stiffness on dolphin bycatch).
    NMFS will continue to conduct annual mortality and abundance 
estimates for the western North Atlantic coastal stock of bottlenose 
dolphins, as well as update the distribution of the stock. NMFS is also 
partnering with state agencies in conducting gear modification research 
and identifying bottlenose dolphin behavior around deployed gear.
    The BDTRT recommended the following gear modification research 
projects to evaluate their effectiveness in reducing dolphin bycatch: 
(1) investigate bridle alterations to prevent collapsing of the net and 
eliminate bridles on anchored gillnet gear; (2) investigate 
effectiveness of preventing slack netting on anchored gillnet gear when 
net panels are/are not laced together; (3) investigate various string 
designs (e.g., shallower net depth, hang in different parts of the 
water column) to determine if the amount of webbing can be reduced 
without decreasing landings; (4) determine if and how dolphins interact 
with gillnet gear in North Carolina waters, identify these dolphins, 
and investigate their associated behavior and bycatch rates; (5) 
investigate the importance of day and set times with respect to when 
dolphins are caught in gear, based on carcass temperatures and soak 
times; (6)

[[Page 65135]]

investigate the effectiveness of using inverted bait wells in crab 
traps/pots to prevent dolphins from removing bait from traps/pots and 
becoming caught in trap/pot lines; and (7) investigate effects of 
reducing the slack in pound net leaders.
    NMFS and the BDTRT recognize the difficulties in quantifying the 
performance of gear modifications and recognize the importance of such 
research to ensuring appropriate and effective conservation measures 
are established and fishermen are not unnecessarily burdened without 
sufficient bycatch reduction. Therefore, NMFS would continue to develop 
funding opportunities for cooperative work with the fishing industry, 
researchers, and state wildlife agencies to implement recommended gear 
research projects. NMFS would develop, test and analyze the effects of 
gear modifications and ``best management practices'' through the 
agency's gear specialists and fishery liaison personnel. Results from 
these projects would be presented to the BDTRT at future meetings and 
to the fishing community via outreach efforts.
    The BDTRT also recommended outreach and education workshops be 
conducted to: (1) inform fishermen of new and existing regulations to 
reduce bycatch in their fisheries; (2) supply contact information and 
protocols for responding to dolphin/fishery interactions or strandings; 
and (3) encourage best fishing practices (e.g., reduce dolphin 
attraction to fish) to reduce bycatch. NMFS proposes to address these 
recommendations by conducting workshops led by the fishery liaison in 
major ports from New Jersey through Florida and dockside visits, by 
establishing web-based educational training, and by providing 
educational materials via annual mail-outs to all Category I and II 
fisheries affected by this proposed rule.
    The BDTRT further advised NMFS to educate state and local fishery 
enforcement agents on the significance of reporting strandings. 
Training should: (1) discuss the agent's role in stranding response and 
in educating fishermen and the public; (2) include similar training 
materials as provided to the fishermen; (3) be conducted at regional 
law enforcement meetings; and (4) be incorporated into state/NMFS Joint 
Enforcement Agreements.
    To address these recommendations, special agents from the NMFS 
Enforcement Division would attend future BDTRT meetings and NMFS staff 
will provide on-site training to Federal, state, and local enforcement/
marine patrols. NMFS would educate enforcement agents on all aspects of 
this proposed plan and on how to respond to and assist in marine mammal 
strandings.
    The BDTRT also provided the following non-regulatory 
recommendations for the National Observer Program and Marine Mammal 
Health and Stranding Network: (1) develop observer programs that 
provide statistically viable sample sizes throughout all fisheries and 
sub-fisheries interacting with dolphins; (2) improve observer training 
and provide observers with adequate equipment; (3) implement a 
rotational schedule to achieve observer coverage or alternative 
monitoring programs for all Category II fisheries; (4) establish 
dedicated beach surveys in geographic areas and time frames during 
which observer coverage is lacking; (5) increase stranding coverage and 
improve training for network participants; (6) improve post-mortem 
assessments; and (7) provide funding to organize and conduct a 
workshop/training session to assemble the information and staff 
necessary to accomplish this objective.
    NMFS plans to, within the constraints of available funding, address 
the BDTRT's concerns in future budget cycles. NMFS is currently 
developing a sampling design to implement a rotational schedule to 
increase observer coverage and plans to provide additional training to 
stranding network participants, especially in conducting post-mortem 
assessments, by funding, developing, and organizing workshops and 
certification programs. NMFS is continuing to improve observer training 
via application of recommendations from the National Observer Program 
Advisory Team, which is an advisory team comprised of NMFS observer 
program coordinators.
    Other non-regulatory recommendations were that NMFS: (1) provide 
funding for a toll-free hotline for reporting strandings of marine 
mammals; (2) formally request that Federal, state, and local marine 
patrols monitor inside waters for dolphin bycatch and fishery 
interactions and assist the Stranding Network in response to stranded 
animals; (3) provide funding for seasonal and geographic aerial or 
platform surveys; and (4) improve communication between the Marine 
Mammal Health and Stranding Network and National Observer Program.
    Presently, NMFS will not fund a centralized toll-free hotline 
because all states under the jurisdiction of the BDTRP already maintain 
individual hotlines, and NMFS determined that instituting a new hotline 
may cause additional reporting delay. NMFS supports the recommendation 
to solicit state and local marine patrol aid in supporting the 
Stranding Network and intends to develop workshops to aid in this 
endeavor. Further, NMFS intends to foster communication between the 
Stranding Network and Observer Program by developing such workshops/
training and improving gear repository (two sites located at NMFS 
Pascagoula and Narragansett Laboratories) procedures for obtaining gear 
from the Stranding Network, interacting with enforcement, and 
standardizing retention time of retained gears.
    The final non-regulatory recommendation by the BDTRT was for NMFS 
to encourage states to develop, implement, and enforce a program for 
the removal of derelict blue crab traps/pots and associated lines, as a 
large blue crab fishery exists along the coastal bottlenose dolphin's 
distributional range. Additionally, NMFS supports and will conduct an 
outreach program to encourage the following BDTRT-recommended voluntary 
gear modifications: (1) using sinking or negatively buoyant line; (2) 
limiting the line to the minimum length necessary; and (3) using 
inverted or modified bait wells for those areas where dolphins are 
tipping traps and stealing bait. NMFS also plans to fund a pilot 
project to examine the use of inverted or modified bait wells and has 
developed a proposed experimental design with industry assistance.

Proposed Measures to Reduce Bycatch of Endangered Species Act (ESA) 
Listed Sea Turtles - Background

    The purposes of the ESA as stated in section 2(b) are to provide a 
means whereby the ecosystems, upon which endangered or threatened 
species depend, may be conserved; to provide a program for the 
conservation of such endangered or threatened species; and to take such 
steps as may be appropriate to achieve the treaties and conventions set 
forth in ESA subsection (a). All sea turtles found in U.S. waters are 
listed as either endangered or threatened under the ESA. The Kemp's 
ridley (Lepidochelys kempii), leatherback (Dermochelys coriacea), and 
hawksbill (Eretmochelys imbricata) are listed as endangered. Loggerhead 
(Caretta caretta), green (Chelonia mydas), and olive ridley 
(Lepidochelys olivacea) turtles are listed as threatened, except for 
breeding populations of green turtles in Florida and on the Pacific 
Coast of Mexico and olive ridleys from the Pacific Coast of Mexico, 
which are listed as endangered.

[[Page 65136]]

    Under the ESA and its implementing regulations, taking sea turtles, 
even incidentally, is prohibited, with exceptions for threatened 
species identified in 50 CFR 223.206. The incidental take of endangered 
species may be authorized only by an incidental take statement 
provided, or an incidental take permit issued, pursuant to section 7 or 
10 of the ESA, respectively.

Sea Turtle/Fishery Interactions

    Sea turtle strandings along the coast of North Carolina 
dramatically increased during April and May of 1995, and the pattern 
has continued in subsequent years. The increase in stranding events 
coincided with an increase in effort in the monkfish gillnet fishery, 
which first began off North Carolina in 1995. In the spring of 2000, 
280 sea turtles stranded in two short time periods, coincident with the 
monkfish and dogfish gillnet fisheries operating offshore. Large-mesh 
gillnets are known to be highly effective at catching sea turtles. Four 
of the carcasses were carrying gillnet gear measuring 10-12 inches 
(25.4-30.5 cm) stretched mesh, which is consistent with the gear used 
in the monkfish fishery. The majority of turtles that stranded in the 
2000 event were loggerhead turtles, but Kemp's ridleys were also 
documented. According to the Turtle Expert Working Group (TEWG), a team 
of population biologists, sea turtle scientists, and life history 
specialists that compiles and examines information on the status of sea 
turtle species, the northern subpopulation of loggerhead turtles is 
declining, or is stable at best, and is not showing evidence of 
recovery. The northern subpopulation of loggerheads is 
disproportionately represented in the mid-Atlantic waters off North 
Carolina and Virginia and continued mortality as a result of large mesh 
gillnet fisheries is likely to impede recovery efforts of this 
subpopulation (TEWG 2000). Because of the documented strandings and the 
TEWG's findings, NMFS enacted the mid-Atlantic large mesh gillnet rule 
in waters of the exclusive economic zone (EEZ)(67 FR 71895, December 3, 
2002).
    NMFS recently compared previously unavailable data on North 
Carolina monkfish gillnet landings in state and Federal waters. From 
1995 to 2000, state waters only accounted for one to ten percent of 
monkfish landings. However, in 2002, with gear restrictions in place, 
landings in state waters accounted for 92 percent of monkfish landings. 
In 2002, North Carolina state water monkfish landings were five times 
higher than the average state water landings for 1995 to 2000. NMFS did 
not anticipate this large shift in fishing effort to North Carolina 
state waters, which could pose a substantial risk to sea turtles in 
state waters. Similarly, from 1999-2002, between four and ten boats 
have targeted monkfish with large mesh gillnets each year in Virginia 
state waters, also posing a risk to sea turtles in the area. Sea 
turtles are known to regularly occur in the state waters of North 
Carolina and Virginia; therefore, large mesh gillnet fisheries in those 
areas pose a threat, especially during times when the water is warmer 
and sea turtles are most abundant and active.

History of Sea Turtle Conservation Measures

    Various temporary protections to reduce sea turtle interactions and 
mortality in large mesh gillnets have been enacted by NMFS since the 
2000 stranding event (65 FR 31500, May 18, 2000; 66 FR 28842, May 25, 
2001; and 67 FR 13098, March 21, 2002). Detailed background information 
on the events leading to these restrictions may be found in the Federal 
Register documents referenced in this paragraph and is not repeated in 
this proposed rule. NMFS enacted an interim final rule effective from 
March 15 to November 10, 2002, which implemented a series of 
seasonally-adjusted closures to protect sea turtles in Federal waters 
off North Carolina and Virginia waters when turtles were expected to 
occur in those areas (67 FR 13098, March 21, 2002). In the interim 
final rule, NMFS stated that it was considering adopting those 
restrictions as a final rule and received comments on that proposal 
through June 19, 2002.
    The provisions of the interim final rule established seasonally-
adjusted gear restrictions to protect migrating sea turtles by closing 
portions of the mid-Atlantic EEZ to fishing with gillnets with a mesh 
size larger than 8-inch (20.3 cm) stretched mesh. The areas and times 
closed to fishing with gillnets larger than 8-inch (20.3 cm) stretched 
mesh were as follows: waters north of 33[deg]51.0' N. (North Carolina/
South Carolina border at the coast) and south of 35[deg]46.0' N. 
(Oregon Inlet, North Carolina) - at all times; waters north of 
35[deg]46.0' N. (Oregon Inlet) and south of 36[deg]22.5' N. (Currituck 
Beach Light, North Carolina) - from March 16 through January 14; waters 
north of 36[deg]22.5' N. (Currituck Beach Light, North Carolina) and 
south of 37[deg]34.6' N. (Wachapreague Inlet, Virginia) - from April 1 
through January 14; waters north of 37[deg]34.6' N. (Wachapreague 
Inlet, Virginia) and south of 37[deg]56.0' N. (Chincoteague, Virginia) 
- from April 16 through January 14. Waters north of 37[deg]56.0' N. 
(Chincoteague, Virginia) were not affected by the interim final rule.
    The timing of the restrictions was based upon an analysis of sea 
surface temperatures for the above areas. Sea turtles are known to 
migrate into and through these waters when the sea surface temperature 
is 11 degrees Celsius or greater (Epperly and Braun-McNeill 2002). The 
January 15 date for reopening the areas north of Oregon Inlet 
(35[deg]46.0' N.) to large mesh gillnet fisheries was also based upon 
the 11 degree Celsius threshold and is consistent with the seasonal 
boundary established for the summer flounder fishery/sea turtle 
protection area (50 CFR 223.206(d)(2)(iii)(A)).
    Gillnets with 10- and 12-inch (25.4 and 30.5 cm) mesh were 
associated with the 2000 mass stranding in that four of the carcasses 
were carrying gillnet gear measuring 10 to 12 inches (25.4-30.5 cm) 
stretched mesh, which was consistent with the gear used in the monkfish 
fishery. The potential existed, however, for other fisheries in the 
area to utilize large mesh gillnets with mesh sizes smaller than the 
10-12 inch (25.4 to 30.5 cm) mesh found on the turtles, which could 
still pose a serious risk of entanglement to sea turtles. The 8-inch 
(20.3 cm) size restriction was enacted even though gillnets with mesh 
sizes smaller than 8-inches (20.3 cm) were historically known to 
capture and kill sea turtles. NMFS selected an 8-inch (20.3 cm) size 
restriction for the interim final rule (67 FR 13098, March 21, 2002) 
and considered banning smaller mesh sizes, but the size range chosen 
was thought to include fisheries in the area that are known to interact 
with turtles, without affecting other fisheries unintentionally. 
Therefore, the interim final rule stated that if any new information 
showed otherwise, NMFS will consider amending the rule to include 
smaller mesh sizes.
    NMFS promulgated the interim final rule (67 FR 13098, March 21, 
2002) to prevent further mortalities and other takes of listed species 
in large mesh gillnet fisheries, of which the federally-managed 
monkfish fishery was the most likely to be affected. NMFS limited the 
interim final rule to Federal waters primarily because, at the time, 
the monkfish fishery was not thought to operate in state waters, and 
secondarily to avoid unintentionally affecting the black drum gillnet 
fishery that occurs in the nearshore waters of the eastern shore of 
Virginia, and which was, at the time, involved in a cooperative 
agreement with NMFS observers to document sea turtle interactions.

[[Page 65137]]

    On December 3, 2002, NMFS published a final rule (67 FR 71895) 
establishing seasonally-adjusted gear restrictions by closing portions 
of the mid-Atlantic EEZ to fishing with gillnets with a mesh size 
larger than 8-inch (20.3 cm) stretched mesh to protect migrating sea 
turtles. This final rule was unchanged from the interim final rule 
published March 21, 2002 (67 FR 13098). Comments on the interim final 
rule advocated that the restrictions be extended to North Carolina 
state waters to prevent gillnet fishermen from relocating effort and 
contributing substantially to the mortality of sea turtles in those 
waters, but NMFS did not have sufficient evidence prior to publishing 
the final rule to predict such a relocation would occur. Following the 
implementation of the interim final rule, NMFS received comments that 
several several fishermen had shifted monkfish gillnet effort from 
Federal waters to North Carolina state waters. This preliminary 
information was received shortly before the final rule was enacted, 
and, therefore, NMFS was unable to further investigate and act upon the 
information prior to promulgating the final rule. Subsequent evaluation 
revealed that a shift in effort did in fact occur, leading NMFS to 
propose the rule revisions described herein.

Proposed Sea Turtle Regulations

    NMFS is proposing to amend the existing mid-Atlantic large-mesh 
seasonal closures to include state waters, seaward of the COLREGS 
lines. Modifying the existing seasonal closures should reduce the 
overall serious injury and mortality of sea turtles incidentally caught 
in large-mesh gillnet fisheries. Further, these changes would not only 
positively affect sea turtle recovery, but would also benefit the 
western North Atlantic coastal bottlenose dolphin stock. Since gillnet 
gear is the primary threat to the bottlenose dolphin stock, management 
measures proposed in this rule that are specifically designed for sea 
turtle conservation would also reduce overall serious injury and 
mortality of the Winter Mixed MU (Northern Migratory, Northern North 
Carolina, and Southern North Carolina MUs) within the bottlenose 
dolphin stock.
    In response to a comment by the North Carolina Division of Marine 
Fisheries (NCDMF) on the interim final rule (67 FR 71895, December 3, 
2002), NMFS is also proposing to change the large gear mesh size 
limitation. Other state and Federal regulations affecting the area 
refer to large mesh gillnets as 7-inch (17.8 cm) or greater stretched 
mesh and regulate based upon that dimension. Three regulations 
currently define large mesh gillnets as 7-inch (17.8 cm) or greater 
stretched mesh: (1) the large mesh gillnet management measures of the 
Harbor Porpoise Take Reduction Plan in the mid-Atlantic (50 CFR 
229.34); (2) NCDMF regulation [15A NCAC 03J.0202(7)] states that ``it 
is unlawful to use gillnets in the Atlantic Ocean with a mesh length 
greater than seven inches from April 15 through December 15;'' and (3) 
the proposed BDTRP measures under this rule, which include gillnets 
with mesh size of 7 inches (17.8 cm) and greater. Therefore, NMFS is 
proposing to amend the previous rule to include gillnets with a 
stretched mesh of 7-inches (17.8 cm) or greater, instead of the current 
limitation of greater than 8-inches stretched mesh, in response to 
information received during the public comment period on the interim 
final rule, to maintain consistency with current state and Federal 
regulations and management efforts, and to avoid confusion of 
terminology.
    Another fishery that will fall under the provisions of this 
proposed rule is a portion of the black drum gillnet fishery off 
Virginia. The fishery utilizes large mesh gillnets and long, often 
overnight, sets in areas where sea turtles are known to occur and, 
therefore, can reasonably be expected to pose a significant risk to sea 
turtles. Black drum gillnetting primarily occurs inside COLREGS lines, 
but a small number of boats (five or fewer) sometimes move their 
operation just outside of the COLREGS lines into the ocean. Virginia 
Marine Resources Commission (VMRC) data for 2002 obtained during times 
that would have been affected by this rule indicate that the black drum 
gillnet fishery consisted of 21 vessels. Further, only 4-5 vessels 
target oceanic black drum during part of the year. Revising this rule 
will, therefore, only impact a small fraction of the total black drum 
fishery, and those boats will still have the option of fishing inside 
COLREGS lines. According to the VMRC, this fishery will not likely 
benefit from the exemption detailed below because of the 
characteristics of the fishery (i.e., the fishery typically uses large-
mesh gillnets longer than 1,000 feet (304.8 m) and long, overnight 
sets). Additionally, there are a small number of vessels targeting 
oceanic black drum.

Striped Bass Exemption

    The large mesh striped bass gillnet fishery is prosecuted in state 
waters off both North Carolina and Virginia. NMFS is proposing to 
conditionally exempt the striped bass fishery in state waters from the 
expanded seasonal closures. In North Carolina state waters, the 
characteristics of this fishery, which typically opens January 1, and 
the small quotas granted to fishermen may limit the potential for 
interactions with sea turtles. Striped bass fishermen typically use 
single, short, large-mesh gillnets under 1,000 feet (304.8 m) in length 
and soak their gear for a few hours or less. The fishery is prosecuted 
in a different manner in Virginia state waters, where multiple nets and 
long soak times with overnight sets are common. According to 
information from VMRC, the fishery is officially open from February 1-
December 31 (unless the quota is reached earlier) and the majority of 
the fishing occurs in February/March and November/December. The 
February/March time frame falls outside of the seasonal closures, 
therefore, only one of the primary fishing periods will be impacted by 
the amended regulation. Additionally, with the implementation of VMRC's 
new quota tag system (differentiating between bay/river caught fish and 
ocean fish) and a quota reduction, it is expected that the total ocean 
catch will be significantly reduced when compared to data from previous 
years, but it is uncertain if temporal effort will be affected. NMFS 
proposes to specify the applicability of the exemption to ensure that 
it is only used by striped bass fishermen who fish their gear in a 
manner that limits the potential risk to sea turtles, as described 
below.
    Under these conditions, NMFS is proposing an exemption to the 
closure provisions of this rule for the large mesh gillnet striped bass 
fishery. To qualify, fishermen targeting striped bass with large mesh 
gillnets (as defined above) in state waters, delineated in this rule, 
must tend the nets (within 0.25 nautical mile) throughout the soak time 
and no vessel may set more than 1,000 feet (304.8 m) of net per trip. 
The exemption for the striped bass fishery will only apply within the 
context of the state-regulated fishery. Therefore, the striped bass 
exemption of seasonal restrictions will be effective in state waters 
only in the following cases: (1) in North Carolina waters, the 
exemption only applies during the North Carolina large mesh gillnet 
striped bass open season (not applicable to the trawl or beach seine 
season), which is variable in length and is opened and closed by 
proclamation of NCDMF; and (2) in Virginia waters, the exemption only 
applies for those fishermen targeting striped bass and possessing valid 
ocean (not bay) striped bass quota tags on board during the Virginia 
striped bass

[[Page 65138]]

open season. It is important to note that NMFS does not necessarily 
consider tending requirements, limited soak time, and restrictions on 
net length sufficient by themselves to warrant exemption of a fishery 
from using conservation measures to protect sea turtles. Rather, it is 
the combination of these fishing practices, in conjunction with limited 
effort and stringent state regulations, that make the exemption 
possible. NMFS will continue to monitor and evaluate the exemption to 
ensure that sea turtles and bottlenose dolphins are adequately 
protected.

                      Table 4. Summary of NMFS sea turtle conservation regulatory measures.
----------------------------------------------------------------------------------------------------------------
                                        Large Mesh Gillnet ([gteqt]7
     Nearshore and Offshore Waters          inch Stretched Mesh)          Corresponding BDTRP Management Unit
----------------------------------------------------------------------------------------------------------------
North of 37[deg]34.6' N (Wachapreague     No Fishing from April 16-         Northern Virginia portion of Summer
 Inlet, Virginia) and south of                           January 14         Northern Migratory and Winter Mixed
 37[deg]56.0' N (Chincoteague,
 Virginia)............................
North of 36[deg]22.5' N (Currituck         No Fishing from April 1-     Southern Virginia portion of the Summer
 Beach Light, North Carolina) and                        January 14         Northern Migratory and Winter Mixed
 south of 37[deg]34.6' N (Wachapreague
 Inlet, Virginia).....................
North of 35[deg]46.0' N (Oregon Inlet,    No fishing from March 16-                     Northern North Carolina
 North Carolina) and south of                            January 14
 36[deg]22.5' N (Currituck Beach
 Light, North Carolina)...............
North of 33[deg]51.0' N (North               No fishing at any time   Southern North Carolina and Southern half
 Carolina/South Carolina border at the                                               of Northern North Carolina
 coast) and south of 35[deg]46.0' N
 (Oregon Inlet) at any time...........
----------------------------------------------------------------------------------------------------------------
Conditions: For the above nearshore and offshore waters, during the above-specified time periods: no person may
  fish with (including, but not limited to, setting, hauling back, or leaving in the ocean), or possess on board
  a vessel, any gillnet with a stretched mesh size of 7-inches (17.8 cm) or larger, unless all gillnets are
  covered with canvas or other similar material and lashed or otherwise securely fastened to the deck or the
  rail, and all buoys larger than 6-inches (15.24 cm) in diameter, high flyers, and anchors are disconnected.
Exemptions: Fishermen are exempt from these conditions when targeting striped bass with large mesh gillnets in
  state waters if: gillnet gear is less than or equal to 1,000 feet (304.8 m) in length; and the vessel remains
  within 0.25 nautical miles (0.46 km) of the net at all times.
In North Carolina waters, the exemption only applies during the North Carolina large mesh gillnet striped bass
  open season as specified by proclamation of the director of the North Carolina Division of Marine Fisheries.
In Virginia waters, the exemption only applies to those fishermen targeting striped bass and possessing valid
  ocean striped bass quota tags, issued by the Virginia Marine Resources Commission, aboard the vessel during
  the Virginia striped bass open season.

Classification

    This proposed rule was determined significant for purposes of 
Executive Order 12866.
    NMFS prepared an Initial Regulatory Flexibility Analysis (IRFA) 
that describes the impact this proposed rule, if adopted, will have on 
small entities. The analysis is summarized as follows.
    NMFS must reduce the incidental mortality and serious injury of 
marine mammals and the takings of sea turtles associated with 
commercial fisheries, as mandated by the MMPA and subject to the ESA. 
Western North Atlantic coastal bottlenose dolphins and sea turtles 
continue to experience serious injury and mortality incidental to 
commercial fishing activities at levels that are not sustainable. The 
specific objective of this proposed rule is to reduce the incidental 
mortality and serious injury by commercial fishing gear of bottlenose 
dolphins in waters off the states of Florida through New Jersey and 
reduce the potential take of sea turtles from large mesh gillnet 
fisheries in North Carolina and Virginia state waters. This objective 
will be accomplished through restrictions on the seine/gillnet 
fisheries in Florida through New Jersey, and gear marking requirements 
for these same fisheries, plus stop net and long haul seine fisheries. 
Both the MMPA and ESA provide the legal basis for the proposed rule.
    The proposed rule will not impose additional reporting, 
recordkeeping, or compliance requirements other than gear marking 
requirements. The gear marking requirements, however, are standard 
methods to enhance visibility and gear identification and no special 
skills will be required for compliance.
    A total of 3,079 entities were identified as having recorded 
landings in the 2001 fishing season using gillnet gear in Florida 
through New Jersey and will be affected by the fishing restrictions and 
gear marking requirements contained in the proposed rule. Total 
harvests from all fisheries by these entities are estimated to have an 
ex-vessel value of $98 million, or an average of approximately $32,000 
per entity. Eighty unique participants, some of whom are also included 
among the 3,079 gillnet entities, were identified as having 
participated in the North Carolina beach haul seine fishery and 
produced $2.55 million in ex-vessel value (all fisheries included), for 
an average of approximately $32,000 per entity.
    All commercial fishing operations in the respective seine/gillnet 
fisheries that operate in the manner and location encompassed by the 
proposed rule will be affected by the proposed rule. The benchmark for 
a fish-harvesting business to be considered a small entity is if the 
entity is independently owned and operated, not dominant in its field 
of operation, and has annual receipts not in excess of $3.5 million. 
Given the average revenue information provided above, all operations in 
the seine/gillnet fisheries are assumed to be small entities.
    Information on the profit profile of participants in the respective 
seine/gillnet fisheries covered by the proposed rule is not available. 
Inferences on the effects of the proposed rule on profitability of the 
impacted entities, however, may be drawn from examining the expected 
impacts on ex-vessel revenues. Total costs associated with harvest 
reductions (lost ex-vessel revenue) and gear marking devices (purchase 
costs) across all seine/gillnet fisheries are estimated at $1.62-$1.73 
million. This represents less than 2 percent of total ex-vessel 
revenues for the entities involved in all these fisheries. However, 
certain sub-sectors or fisheries are expected to be more severely 
impacted. Impacts range from no expected impacts on participants in the 
large mesh gillnet fishery in North Carolina state waters due to the 
night fishing restrictions, to an estimated 14 percent reduction in ex-
vessel revenues for participants in the large mesh gillnet fishery in 
the range of the Winter Mixed MU due to similar night fishing 
restrictions. A second example is an estimated 11 percent reduction in 
ex-vessel revenues for participants in the Delaware-Maryland-New Jersey 
Summer

[[Page 65139]]

Northern oceanic medium and large mesh gillnet fishery due to the gear 
proximity and return-to-shore provisions of the proposed rule. In 
total, these two sub-sectors encompass approximately 12.82 percent of 
identified entities that will be affected by the entire proposed rule.
    These results indicate that over 12 percent of identified entities 
in the seine/gillnet fisheries are estimated to experience greater than 
10 percent reductions in ex-vessel revenues in addition to further gear 
marking expenses that amount to approximately 1 percent of average 
annual ex-vessel revenues.
    Five alternatives to the proposed rule were considered. One 
alternative would allow status quo operation of the fisheries, thereby 
eliminating all adverse economic impacts. This alternative would not, 
however, achieve the required reduction in the incidental mortality and 
serious injury of bottlenose dolphin and takings of sea turtles by 
commercial fishing gear and would not meet the objectives of the MMPA 
or ESA. The other four alternatives would achieve the objectives of the 
MMPA and the ESA.
    One alternative will add a daily hauling requirement and mandatory 
bycatch certification training to the measures in the proposed rule. 
Although it was concluded that the hauling provision is unenforceable, 
in theory, this requirement would constitute an even more restrictive 
action and will not reduce the adverse impacts of the proposed rule. 
This alternative would also impose additional, but unquantifiable, 
costs on the fishery participants as a result of the mandatory bycatch 
certification training. These costs will be associated with direct 
costs for participation in the training, potential time taken away from 
fishing or other revenue generating activities in order to receive the 
training, and potential lost fishing revenues if fishing activities are 
restricted due to failure to receive the certification. This 
alternative would also impose additional gear marking requirements, 
notably on participants in the Atlantic blue crab trap/pot fishery, 
that would substantially increase costs over those included in the 
proposed rule.
    Three alternatives were considered that prohibit all ocean gillnet 
fishing within 3 km (1.62 nautical miles) from shore, limit all ocean 
gillnet fishing to at most 12 consecutive hours, or prohibit all ocean 
gillnet fishing in state waters. Each of these alternatives is 
projected to result in greater direct adverse economic impacts on small 
entities than the proposed rule. For example, the proposed rule harvest 
reductions across all areas and fisheries are estimated at 855,000 
pounds (387,821.48 kg) with an ex-vessel value of $1.009 million; 
whereas, the above mentioned three alternatives reduce the average 
annual harvest by 7.79 million pounds (3.533 million kg) with an ex-
vessel revenues at $4.04 million, 5.62 million pounds (2.549 million 
kg) with $3.18 million in ex-vessel revenues, and 16.63 million pounds 
(7.543 million kg) with $9.71 million in ex-vessel revenues, 
respectively. These three alternatives would also impose additional 
gear marking requirements, notably on participants in the Atlantic blue 
crab trap/pot fishery, that would substantially increase costs over 
those included in the proposed rule.
    Compared to the other alternatives considered that achieve the 
required reduction in the mortality and serious injury of bottlenose 
dolphins and sea turtles incidental to commercial fishing, the proposed 
rule presents the least potential for negative economic impacts.
    No duplicative, overlapping, or conflicting Federal rules have been 
identified.
    A copy of this analysis is available from NMFS (see ADDRESSES).
    This proposed rule contains collection-of-information requirements 
subject to the Paperwork Reduction Act (PRA) because of the proposed 
requirement to include gear marking requirements. This requirement was 
submitted to the Office of Management and Budget (OMB) for approval. 
Public comment is sought regarding whether this proposed collection of 
information is necessary for the proper performance of the functions of 
the agency, including whether the information shall have practical 
utility; the accuracy of the burden estimate; the opportunities to 
enhance the quality, utility, and clarity of the information to be 
collected; and the ways to minimize the burden of the collection of 
information, including the use of automated collection techniques or 
other forms of information technology. Send comments on these or any 
other aspects of the collection of information to the OMB [see 
ADDRESSES].
    Most vessels engaged in the Category I and II fisheries affected by 
this proposed rule are currently required to adhere to some of the gear 
marking requirements based upon other fishery regulations. Therefore, 
these fisheries should not experience significant and adverse economic 
impacts as a result of this rule. The following are approximate cost 
and time burden estimates per fishery (except the Virginia pound net 
and Atlantic blue crab trap/pot fisheries, which are not required by 
this proposed rule to mark gear) to comply with proposed gear marking 
requirement:
    1. North Carolina inshore gillnet fishery annual estimate for gear 
marking is $16.30 per vessel, with a cumulative fishery estimate of 
$65,037.00. The burden time to implement gear marking is 3-6 hours per 
vessel and 11,970-23,940 hours for the entire fishery.
    2. Southeast Atlantic gillnet fishery annual estimate for gear 
marking is $17.40 per vessel, with a cumulative fishery estimate of 
$278,400.00. The burden time to implement gear marking is 3-6 hours per 
vessel and 48,000-96,000 hours for the entire fishery.
    3. Southeastern U.S. Atlantic shark gillnet fishery annual estimate 
for gear marking is $24.00 per vessel, with a cumulative fishery 
estimate of $576.00. The burden time to implement gear marking is 1-2 
hours per net and 72-144 hours for the entire fishery.
    4. U.S. mid-Atlantic coastal gillnet fishery annual estimate for 
gear marking is $17.40 per vessel, with a cumulative fishery estimate 
of $227,940.00. The burden time to implement gear marking is 3-6 hours 
per vessel and 39,300-117,900 hours for the entire fishery.
    5. Mid-Atlantic haul/beach seine fishery annual estimate for gear 
marking is $8.80 per net, with a cumulative fishery estimate of 
$893.75. The burden time to implement gear marking is 1 hour per net 
and 125 hours for the entire fishery.
    6. North Carolina long haul seine fishery annual estimate for gear 
marking is $4.40 per net, with a cumulative fishery estimate of 
$1,452.00. The burden time to implement gear marking is 1 hour per net 
and 330 hours for the entire fishery.
    7. North Carolina roe mullet stop net fishery annual estimate for 
gear marking is $4.40 per net, with a cumulative fishery estimate of 
$114.40. The burden time to implement gear marking is 1-2 hours per net 
and 78-156 hours for the entire fishery.
    Notwithstanding any other provision of the law, no person is 
required to respond to, nor shall any person be subject to a penalty 
for failure to comply with, a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB Control Number.

References

    Garrison, L. 2001. Seeking a hiatus in sightings for bottlenose 
dolphin during summer and winter aerial surveys. NMFS/SEFSC report 
prepared and reviewed for the Bottlenose Dolphin Take Reduction Team. 
Available from:

[[Page 65140]]

NMFS-Southeast Fisheries Science Center, 75 Virginia Beach Dr., Miami, 
FL 33149.
    Garrison, L., P.E. Rosel, A. Hohn, R. Baird, and W. Hoggard. 2003. 
Abundance estimates of the coastal morphotype of bottlenose dolphin, 
Tursiops truncatus, in U.S. continental shelf waters between New Jersey 
and Florida during winter and summer 2002. NOAA Fisheries, Southeast 
Fisheries Science Center. Bottlenose Dolphin Take Reduction Process 
Document Inventory Number: 4-1-03 h.
    NMFS. 2002. U.S. Atlantic and Gulf of Mexico Marine Mammal Stock 
Assessments 2002. U.S. Department of Commerce. NOAA Technical 
Memorandum NMFS-NE-169.
    Palka D. and M. Rossman. 2001. Bycatch estimates of coastal 
bottlenose dolphin (Tursiops truncatus) in U.S. mid- Atlantic gillnet 
fisheries for 1996-2000. NOAA-NMFS-NEFSC Ref. Doc. 01-15; p. 77.
    TEWG. 2000. Assessment Update for the Kemp's ridley and loggerhead 
sea turtle populations in the western North Atlantic. U.S. Department 
of Commerce. NOAA Technical Memorandum NMFS-SEFSC-444.

List of Subjects

50 CFR Part 223
    Administrative practice and procedure, Endangered and threatened 
species, Exports, Imports, Reporting and recordkeeping requirements.
50 CFR Part 229
    Administrative practice and procedure, Confidential business 
information, Fisheries, Marine mammals, Reporting and recordkeeping 
requirements.

    Dated: November 2, 2004.
William T. Hogarth,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
    For the reasons set out in the preamble, 50 CFR part 223 and 50 CFR 
part 229 are proposed to be amended as follows:

PART 223--THREATENED MARINE AND ANADROMOUS SPECIES

    1. The authority citation for part 223 continues to read as 
follows:

    Authority: 16 U.S.C. 1531 et seq.
    2. In Sec.  223.206, paragraph (d)(8) is revised to read as 
follows:


Sec.  223.206  Exceptions to porhibitions relating to sea turtles.

* * * * *
    (d) * * *
    (8) Restrictions applicable to large-mesh gillnet fisheries in the 
mid-Atlantic region. (i) No person may fish with or possess on board a 
boat, any gillnet with a stretched mesh size 7-inches (17.8 cm) or 
larger, unless gillnet is covered with canvas or other similar material 
and lashed or otherwise securely fastened to the deck or the rail, and 
all buoys larger than 6-inches (15.24 cm) in diameter, high flyers, and 
anchors are disconnected. This restriction applies to all offshore 
waters during the following time periods and in the following areas 
with the exception of the striped bass fishery in state waters (as 
detailed below):
    (A) Waters north of 33[deg] 51.0' N. (North Carolina/South Carolina 
border at the coast) and south of 35[deg] 46.0' N. (Oregon Inlet, North 
Carolina) at any time;
    (B) Waters north of 35[deg]46.0' N. (Oregon Inlet, North Carolina) 
and south of 36[deg]22.5' N. (Currituck Beach Light, North Carolina) 
from March 16 through January 14;
    (C) Waters north of 36[deg]22.5' N. (Currituck Beach Light, North 
Carolina) and south of 37[deg]34.6' N. (Wachapreague Inlet, Virginia) 
from April 1 through January 14; and
    (D) Waters north of 37[deg]34.6' N. (Wachapreague Inlet, Virginia) 
and south of 37[deg]56.0' N. (Chincoteague, Virginia) from April 16 
through January 14.
    (ii) A fisherman targeting striped bass with large-mesh gillnets in 
state waters is exempt from the restrictions of paragraph (d)(8)(i) of 
this section if the fisherman complies with the following restrictions: 
no more than 1,000 feet (308.4 m) of net may be set; and the vessel 
must remain within 0.25 nautical miles (0.46 kilometers) of the net at 
all times. Additionally, in North Carolina state waters, this exemption 
only applies during the North Carolina large-mesh gillnet striped bass 
open season as specified by proclamation of the Director of the North 
Carolina Division of Marine Fisheries; and in Virginia waters, this 
exemption only applies for those fishermen targeting striped bass and 
possessing valid ocean striped bass quota tags, issued by the Virginia 
Marine Resources Commission, aboard the vessel during the Virginia 
striped bass open season.
* * * * *

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

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

    Authority: 16 U.S.C. 1361 et seq.
    2. In Sec.  229.2, add the definitions ``Fishing or to fish,'' 
``New Jersey, Delaware, and Maryland state waters,'' ``Northern North 
Carolina state waters,'' ``Northern Virginia state waters,'' South 
Carolina, Georgia, and Florida,'' ``Southern North Carolina state 
waters,'' and ``Southern Virginia state waters'' in alphabetical order 
to read as follows:


Sec.  229.2  Definitions.

* * * * *
    Fishing or to fish means any commercial fishing operation activity 
that involves:
    (1) The catching, taking, or harvesting of fish;
    (2) The attempted catching, taking, or harvesting of fish;
    (3) Any other activity that can reasonably be expected to result in 
the catching, taking, or harvesting of fish; or
    (4) Any operations at sea in support of, or in preparation for, any 
activity described in paragraphs (1), (2), or (3) of this definition.
* * * * *
    New Jersey, Delaware, and Maryland state waters means the area 
consisting of all regulated waters bounded on the north by a line 
extending eastward from the New York/New Jersey border, on the east 
within 3 nautical miles (5.56 km) of shore, and on the south by a line 
extending eastward from the Maryland/Virginia border.
* * * * *
    Northern North Carolina state waters means the area consisting of 
all regulated waters bounded on the north by a line extending eastward 
from the Virginia/North Carolina state border, on the east within 3 
nautical miles (5.56 km) of shore, and on the south by a line extending 
eastward from Cape Lookout, North Carolina (34[deg]37.22' N. latitude).
    Northern Virginia state waters means the area consisting of all 
regulated waters bounded on the north by a line extending eastward from 
the Virginia/Maryland border, on the east within 3 nautical miles (5.56 
km) of shore, and on the south by a line extending eastward from Cape 
Charles Light on Smith Island in the Chesapeake Bay mouth 
(37[deg]07.23' N. latitude).
* * * * *
    South Carolina, Georgia, and Florida waters means the area 
consisting of all regulated waters bounded on the north by a line 
extending eastward from the North Carolina/South Carolina border, on 
the east within 14.6 nautical miles (27 km) from shore, 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

[[Page 65141]]

regulated waters bounded on the north by a line extending eastward from 
Cape Lookout, North Carolina (34[deg]37.22' N. latitude), on the east 
within 3 nautical miles (5.56 km) from the shoreline, and on the south 
by a line extending eastward from the North Carolina/South Carolina 
border.
    Southern Virginia state waters means the area consisting of all 
regulated waters bounded on the north by a line extending eastward from 
the Cape Charles Light on Smith Island in the Chesapeake Bay mouth 
(37[deg]07.23' N. latitude), on the east within 3 nautical miles (5.56 
km) of shore, and on the south by a line extending eastward from the 
Virginia/North Carolina border.
* * * * *
    3. In subpart A, Sec.  229.3, paragraphs (r), (s), and (t) are 
added to read as follows:


Sec.  229.3  Prohibitions.

* * * * *
    (r) It is prohibited to fish with, or possess on board a vessel 
unless stowed, or fail to remove any gillnet gear from the areas 
specified in Sec.  229.35(c)(1) and (c)(2) unless the gear complies 
with the specified gear marking requirements and other restrictions set 
forth in Sec.  229.35(d) and (e).
    (s) It is prohibited to fish with, or possess on board a vessel 
unless stowed, or fail to remove any North Carolina long haul seine as 
defined in Sec.  229.35(b) from the areas specified in Sec.  
229.35(c)(1) and (c)(2) unless the gear complies with the specified 
gear marking requirements set forth in Sec.  229.35(d)(1).
    (t) It is prohibited to fish with, or possess on board a vessel 
unless stowed, or fail to remove any seine gear as defined in Sec.  
229.35(b) from the areas specified in Sec.  229.35(c)(1) and (c)(2) 
unless the gear complies with the specified gear marking requirements 
and other restrictions set forth in Sec.  229.35(d)(1) and Sec.  
229.35(e)(3)(i)(A).
    4. In subpart C, Sec.  229.35 is added 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 to reduce incidental 
mortality and serious injury of western North Atlantic coastal 
bottlenose dolphins in specific Category I and Category II commercial 
fisheries from New Jersey through Florida. Gear affected by this 
section includes gillnets, seines, North Carolina long haul seines, and 
North Carolina roe mullet stop nets.
    (b) Definitions. Unless otherwise noted, in this Sec.  229.35:
    Beach means landward of and including the mean low water line.
    Beach/water interface means the mean low water line.
    Large mesh gillnet means a gillnet constructed with a mesh size 
greater than or equal to 7-inches (17.8 cm) stretched mesh.
    Medium mesh gillnet means a gillnet constructed with a mesh size of 
greater than 5-inches (12.7 cm) to less than 7-inches (17.8 cm) 
stretched mesh.
    Night means any time between one hour after sunset and one hour 
prior to sunrise.
    North Carolina long haul seine gear means all fishing efforts in 
North Carolina state waters that use a nylon or twine net towed between 
two boats. Fish are encircled and concentrated by pulling the net 
around a fixed stake.
    North Carolina roe mullet stop net gear means a gillnet that 
targets striped mullet that is deployed from shore and retrieved to 
catch fish that have been corralled.
    Seine means a net that fishes vertically in the water, is pulled by 
hand or by power, and captures fish by encirclement and confining fish 
within itself or against another net, the shore or bank as a result of 
net design, construction, mesh size, webbing diameter, or method in 
which it is used. The net typically is constructed with a capture bag 
in the center of the net which concentrates the fish as the net is 
closed.
    Small mesh gillnet means a gillnet constructed with a mesh size of 
less than or equal to 5-inches (12.7 cm) stretched mesh.
    Sunrise means the time of sunrise as determined for the date and 
location in The Nautical Almanac, prepared by the U.S. Naval 
Observatory.
    Sunset means the time of sunset as determined for the date and 
location in The Nautical Almanac, prepared by the U.S. Naval 
Observatory.
    (c) Affected area (1) Regulated waters. The regulations in this 
section apply to 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), except for the areas exempted in paragraph 
(c)(2) of this section, or where otherwise noted.
    (2) Exempted waters. The regulations in paragraph (e) of this 
section do not apply to waters landward of the first bridge over any 
embayment, harbor, or inlet. In those instances where there is no 
bridge over said embayment, harbor, or inlet or close to the mouth of 
said embayment, harbor, or inlet, including, but not limited to 
Delaware Bay, the regulations in this section do not apply to marine 
and tidal waters landward of the 72 COLREGS demarcation line 
(International Regulations for Preventing Collisions at Sea, 1972), as 
depicted or noted on nautical charts published by the National Oceanic 
and Atmospheric Administration (Coast Charts 1:80,000 scale), and as 
described in 33 CFR part 80. The regulations in this section do not 
apply to waters landward of the lines in Sec.  229.34(a)(2).
    (d) Gear marking requirements (1) Universal gear marking 
requirements. Any person who owns or fishes with gear in Category I or 
II fisheries affected by this section (as described in paragraph (a) of 
this section, except the Atlantic blue crab trap/pot and Virginia pound 
net fisheries) in areas specified in paragraphs (c)(1) and (c)(2) of 
this section shall permanently mark their gear with identification tags 
containing the last name and first and middle initials of the owner, 
gear mesh size, and one of the following: state vessel registration 
number, U.S. Coast Guard documentation number, or state commercial 
fishing license number. These identification tags, made of plastic or 
metal, shall be attached along the floatline, as close to the floatline 
as operationally feasible, at least once every 300 feet (91.4 m).
    (2) Special gear marking requirement for gillnets. For gillnet 
gear, in addition to the identification tags described in paragraph 
(d)(1) of this section, gear shall be marked on the end flag or ball by 
using engraved flag(s) or ball buoy(s), or by attaching engraved metal 
or plastic tags to the flag(s) and ball buoy(s). One end of the net 
shall be marked by a square flag not less than 144 square inches 
(929.03 square cm) and at least 3 feet (0.91 m) above the water. The 
opposite end of the net shall also be marked by such a square flag or 
an 8-inch (20.32 cm) minimum diameter ball buoy with the gear mesh 
size. All such flag(s) and ball buoy(s) shall be marked with at least 
two stripes of reflective material that are not less than 2 inches 
(5.08 cm) in width and visible for 360 degrees.
    (e) Regional Management Measures (1) New Jersey, Delaware, and 
Maryland state waters (i) Medium and large mesh. From June 1 through 
October 31, in the state waters of New Jersey, Delaware, and Maryland, 
no person may fish with any medium or large mesh anchored gillnet gear 
at night unless such person

[[Page 65142]]

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.
    (ii) [Reserved]
    (2) Virginia state waters (i) Area-wide restrictions (A) Medium and 
large mesh. From June 1 through October 31, in Southern 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.
    (B) [Reserved]
    (ii) Area-specific gear restrictions (A) Southern Virginia state 
waters (1) Large mesh gillnets. From November 1 through December 31, in 
Southern Virginia state waters, no person may fish with, possess on 
board a vessel unless stowed, or fail to remove from the water, any 
large mesh gillnet gear at night.
    (B) [Reserved]
    (3) North Carolina state waters (i) Area-wide restrictions (A) 
Beach Gear. Year-round, along the coast of North Carolina, no person 
may fish with gillnet gear or seine gear within 300 feet (91.4 m) of 
the beach/water interface unless it consists of multi-fiber nylon that 
is 4 inches (10.2 cm) or less stretched mesh. Use of nets consisting of 
monofilament material is prohibited in this area.
    (B) [Reserved]
    (ii) Area-specific restrictions-(A) Northern North Carolina state 
waters - (1) Small mesh gillnets. From May 1 through October 31, in 
Northern North Carolina state waters, no person may fish with any small 
mesh gillnet gear longer than 1,000 feet (304.8 m).
    (2) 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. This provision expires on 
November 12, 2007.
    (3) Large mesh gillnets. (i) From April 15 through December 15, in 
Northern North Carolina state waters, no person may fish with any large 
mesh gillnet.
    (ii) From December 16 through April 14 of the following year, in 
Northern North Carolina state waters, no person may fish with any large 
mesh gillnet without tie-downs at night.
    (B) Southern North Carolina state waters (1) 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. This provision expires on November 12, 2007.
    (2) Large mesh gillnets. (i) From April 15 through December 15, in 
Southern North Carolina state waters, no person may fish with any large 
mesh gillnet.
    (ii) From December 16 through April 14 of the following year, in 
Southern North Carolina state waters, no person may fish, possess on 
board unless stowed, or fail to remove from the water, any large mesh 
gillnet at night.
    (4) South Carolina, Georgia, and Florida waters (A) Gillnets. Year-
round, in South Carolina, Georgia, and Florida waters, no person may 
fish with any gillnet gear unless such person remains within 0.25 
nautical miles (0.46 km) of the closest portion of the gillnet. Gear 
shall be removed from the water and stowed on board the vessel before 
the vessel returns to port.
    (B) [Reserved]
* * * * *
[FR Doc. 04-25113 Filed 11-9-04; 8:45 am]
BILLING CODE 3510-22-S


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