Federal Register / Vol. 69, No. 217 / Wednesday, November 10, 2004 / Proposed Rules 65127

1 Docket NHTSA–2002–12845–10. 

2 Docket NHTSA–2002–12845–13.

3 Docket NHTSA–2002–12845–15.

4 Docket NHTSA–2002–12845–14.

Automobile Manufacturers (Alliance) 

suggested that FMVSS No. 124 should 

include a direct measurement of 

powertrain output to the drive 

wheels. 1,2 The Alliance stated that this 

would be a ‘‘technology-neutral’’ test 

and, thus, would be similar to NHTSA’s 

proposed engine RPM test but with the 

advantage of being more easily 

applicable to hybrid powertrains in 

which engine RPM might not indicate 

drive torque. Subsequently, the Alliance 

suggested that the powertrain output 

test should measure vehicle driving 

speed, i.e., ‘‘creep speed,’’ rather than 

output horsepower or torque.3 Toyota 

suggested a similar approach, but 

requested that the agency consider a 

somewhat different creep speed test 

procedure.4

While the agency regards these 

suggestions merely as variations on the 

dynamometer-based engine rpm test as 

proposed in the NPRM, we believe that 

additional research on the exact 

procedures for the suggested test is 

desirable. In particular, the agency 

wants to conduct its own tests to 

provide additional support for the use of 

a dynamometer for measurement of 

powertrain output (or possibly creep 

speed measurements), and demonstrate 

the feasibility of conducting compliance 

tests for all suggested approaches. 

In addition, the Alliance suggested 

that the agency include air flow rate 

measurement as another optional test 

procedure in FMVSS No. 124. Many 

vehicles already have mass air flow 

sensors that can monitor air flow rate. 

For vehicles with sensors, the test 

would measure the air flow rate during 

the failsafe response for comparisons to 

the baseline idle condition. NHTSA 

plans to conduct research on the 

suggested air flow rate test procedure 

and decide on the appropriateness of 

including it in FMVSS No. 124. 

Given the time it will take to conduct 

research on some of the issues involved, 

NHTSA has decided not to continue an 

active rulemaking on this issue during 

that research. Therefore, NHTSA is 

withdrawing the rulemaking to update 

FMVSS No. 124.

Authority: 49 U.S.C. 322, 30111, 30115, 

30117, and 30166; delegation of authority at 

49 CFR 1.50.

Issued: November 4, 2004. 

Stephen R. Kratzke, 

Associate Administrator for Rulemaking.

[FR Doc. 04–24978 Filed 11–9–04; 8:45 am] 

BILLING CODE 4910–59–P

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.

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:

• E-mail: 0648–

AR39.proposed@noaa.gov. Include 

Docket Number RIN 0648–AR39 in the 

subject line of the message.

• Mail: Chief, Protected Resources 

Division, NMFS, 9721 Executive Center 

Drive North, St. Petersburg, FL 33702–

2432.

• Facsimile (fax) to: 727–570–5517. 

Chief, Protected Resources Division, 

NMFS, 9721 Executive Center Drive 

North, St. Petersburg, FL 33702–2432.

• 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 EastWest Highway, Silver Spring, MD 20910 

and to David Rostker, OMB, by e-mail 

at DavidlRostker@omb.eop.gov 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/protlres/

65128 Federal Register / Vol. 69, No. 217 / Wednesday, November 10, 2004 / Proposed Rules 

PR2/StocklAssessmentlProgram/

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, midAtlantic 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 shortand 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 

Federal Register / Vol. 69, No. 217 / Wednesday, November 10, 2004 / Proposed Rules 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, Northern North Carolina, Southern North Carolina) ................................ 16,913 23.0 13,558

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.

Management 

Unit 

Estimated 

Bycatch Current PBR 

Northern Migratory ........... 30 73.1

Management 

Unit 

Estimated 

Bycatch Current PBR 

Summer 

Northern 

North Carolina 29 20.4

Summer 

Southern 

North Carolina 01 9.9

Winter Mixed 

(Northern Migratory, Northern North 

Carolina, and 

Southern 

North Carolina) ............... 151 67.8

Management 

Unit 

Estimated 

Bycatch Current PBR 

South Carolina ................ Unknown 20

Georgia ......... Unknown 17

Northern Florida ................. 0 3.3

Central Florida ................. 4 742

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. 

65130 Federal Register / Vol. 69, No. 217 / Wednesday, November 10, 2004 / Proposed Rules 

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.

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, nonregulatory measures, such as education, 

outreach, and research. For those 

dolphin MUs where bycatch is low, or 

where bycatch estimates are 

unavailable, the BDTRT offered nonregulatory 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 


EP10NO04.002</GPH>
Federal Register / Vol. 69, No. 217 / Wednesday, November 10, 2004 / Proposed Rules 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 MagnusonStevens 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).

65132 Federal Register / Vol. 69, No. 217 / Wednesday, November 10, 2004 / Proposed Rules 

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 tiedowns) 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 yearround.)

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 § 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 

Federal Register / Vol. 69, No. 217 / Wednesday, November 10, 2004 / Proposed Rules 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 midAtlantic 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 midAtlantic crab trap/pot and Virginia 

pound net fisheries.

TABLE 3. SUMMARY OF PROPOSED BOTTLENOSE DOLPHIN REGULATORY MEASURES. 

Management Unit Fishing Area Time Period 

Gillnet Mesh Size Requirements (Stretch Mesh) 

Small (≤5 inch ) Medium (>5 in to 

<7 inch) Large (≥7 inch) 

Summer Northern 

Migratory

NJ - VA .......... Unless otherwise specified, 

the following proposed 

measures apply during 

Summer (May 1- October 31).

None .............................. Jun. 1–October 

31: Anchored 

gillnets- fishermen must remain within 0.5 

nmi (0.93 km) of 

the closest portion of each gear 

fished at night in 

state waters, and 

any gear fished 

at night must be 

brought back to 

port with vessel..

Jun. 1–October 31: Anchored gillnets- fishermen 

must remain within 0.5 

nmi (0.93 km) of the closest portion of each gear 

fished at night in state 

waters, and any gear 

fished at night must be 

brought back to port with 

vessel.1

Summer Northern 

North Carolina

VA/NC border 

to Cape 

Lookout.

Unless otherwise specified, 

the following proposed 

measures apply during 

Summer (May 1- October 31).

Net length must be less 

than or equal to 1,000 

feet (304.8 m)..

None .................. April 15–December 15: 

No fishing in state waters.1

Summer Southern 

North Carolina

Cape Lookout 

to NC/SC 

border.

Unless otherwise specified, 

the following proposed 

measures apply during 

Summer (May 1- October 31).

None .............................. None .................. April 15–December 15: 

No fishing in state waters.1,2

Winter Mixed - VirginiaCape Charles 

Light to VA/NC 

border.

Unless otherwise specified, 

the following proposed 

measures apply during 

Winter (November 1- April 

30).

None .............................. None .................. November 1–December 

31: No fishing at night in 

state 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 

Carolina

VA/NC border 

to Cape 

Lookout.

Unless otherwise specified, 

the following proposed 

measures apply during 

Winter (November 1- April 

30).

None .............................. No fishing at 

night in state waters; sunset 

clause of 3 years 

for this restriction..

From December 16–April 

14: No fishing at night in 

state waters without tiedowns.1,3

Winter Mixed - 

Southern North 

Carolina

Cape Lookout 

to NC/SC 

border.

Unless otherwise specified, 

the following proposed 

measures apply during 

Winter (November 1- April 

30).

None .............................. No fishing at 

night in state waters; sunset 

clause of 3 years 

for this restriction..

No fishing at night in 

state waters, and, at 

night, gear must be removed from the water 

and stowed on board the 

vessel before the vessel 

returns to port.1,4

1Large 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. 2When 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.

65134 Federal Register / Vol. 69, No. 217 / Wednesday, November 10, 2004 / Proposed Rules 

3The 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. 4When 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; Winter Mixed

NC coast-wide Year-round ..... 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.

South Carolina, Georgia, Northern Florida, and Central FloridaSC, GA, and 

FL.

Year-round ..... All gillnet gear: Fishermen must 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.

Management Unit Fishing Area Time Period Gear Marking Requirements for All Fisheries (excluding 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 § 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 nonregulatory 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 nonregulatory 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 gearmodification-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) 

Federal Register / Vol. 69, No. 217 / Wednesday, November 10, 2004 / Proposed Rules 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 mailouts 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 subfisheries 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 postmortem 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 BDTRTrecommended 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.

65136 Federal Register / Vol. 69, No. 217 / Wednesday, November 10, 2004 / Proposed Rules 

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 midAtlantic 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 seasonallyadjusted 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 midAtlantic 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°51.0′ N. (North Carolina/South 

Carolina border at the coast) and south 

of 35°46.0′ N. (Oregon Inlet, North 

Carolina) - at all times; waters north of 

35°46.0′ N. (Oregon Inlet) and south of 

36°22.5′ N. (Currituck Beach Light, 

North Carolina) - from March 16 

through January 14; waters north of 

36°22.5′ N. (Currituck Beach Light, 

North Carolina) and south of 37°34.6′ N. 

(Wachapreague Inlet, Virginia) - from 

April 1 through January 14; waters north 

of 37°34.6′ N. (Wachapreague Inlet, 

Virginia) and south of 37°56.0′ N. 

(Chincoteague, Virginia) - from April 16 

through January 14. Waters north of 

37°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 BraunMcNeill 2002). The January 15 date for 

reopening the areas north of Oregon 

Inlet (35°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 federallymanaged 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.

Federal Register / Vol. 69, No. 217 / Wednesday, November 10, 2004 / Proposed Rules 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 stateregulated 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 

65138 Federal Register / Vol. 69, No. 217 / Wednesday, November 10, 2004 / Proposed Rules 

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. 

Nearshore and Offshore Waters Large Mesh Gillnet (≥7 inch 

Stretched Mesh) Corresponding BDTRP Management Unit 

North of 37°34.6′ N (Wachapreague Inlet, Virginia) and south of 

37°56.0′ N (Chincoteague, Virginia) ................................................ No Fishing from April 16–

January 14.

Northern Virginia portion of Summer 

Northern Migratory and Winter Mixed.

North of 36°22.5′ N (Currituck Beach Light, North Carolina) and 

south of 37°34.6′ N (Wachapreague Inlet, Virginia) ........................ No Fishing from April 1–

January 14.

Southern Virginia portion of the Summer 

Northern Migratory and Winter Mixed.

North of 35°46.0′ N (Oregon Inlet, North Carolina) and south of 

36°22.5′ N (Currituck Beach Light, North Carolina) ........................ No fishing from March 16–

January 14.

Northern North Carolina.

North of 33°51.0′ N (North Carolina/South Carolina border at the 

coast) and south of 35°46.0′ N (Oregon Inlet) at any time ............. No fishing at any time ........... Southern North Carolina and Southern half 

of Northern North Carolina.

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 exvessel revenues for participants in the 

Delaware-Maryland-New Jersey Summer 

Federal Register / Vol. 69, No. 217 / Wednesday, November 10, 2004 / Proposed Rules 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 exvessel 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: 

65140 Federal Register / Vol. 69, No. 217 / Wednesday, November 10, 2004 / Proposed Rules 

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 NMFSSEFSC–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 § 223.206, paragraph (d)(8) is 

revised to read as follows:

§ 223.206 Exceptions to porhibitions 

relating to sea turtles.

* * * * *

(d) * * *

(8) Restrictions applicable to largemesh gillnet fisheries in the midAtlantic 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° 51.0′ N. (North 

Carolina/South Carolina border at the 

coast) and south of 35° 46.0′ N. (Oregon 

Inlet, North Carolina) at any time;

(B) Waters north of 35°46.0′ N. 

(Oregon Inlet, North Carolina) and south 

of 36°22.5′ N. (Currituck Beach Light, 

North Carolina) from March 16 through 

January 14;

(C) Waters north of 36°22.5′ N. 

(Currituck Beach Light, North Carolina) 

and south of 37°34.6′ N. (Wachapreague 

Inlet, Virginia) from April 1 through 

January 14; and

(D) Waters north of 37°34.6′ N. 

(Wachapreague Inlet, Virginia) and 

south of 37°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 largemesh 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 § 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:

§ 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°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°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 § 600.105 of this title).

* * * * *

Southern North Carolina state waters

means the area consisting of all 

Federal Register / Vol. 69, No. 217 / Wednesday, November 10, 2004 / Proposed Rules 65141

regulated waters bounded on the north 

by a line extending eastward from Cape 

Lookout, North Carolina (34°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°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, § 229.3, paragraphs 

(r), (s), and (t) are added to read as 

follows:

§ 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 § 229.35(c)(1) and 

(c)(2) unless the gear complies with the 

specified gear marking requirements 

and other restrictions set forth in 

§ 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 § 229.35(b) 

from the areas specified in § 229.35(c)(1) 

and (c)(2) unless the gear complies with 

the specified gear marking requirements 

set forth in § 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 § 229.35(b) from the areas 

specified in § 229.35(c)(1) and (c)(2) 

unless the gear complies with the 

specified gear marking requirements 

and other restrictions set forth in 

§ 229.35(d)(1) and § 229.35(e)(3)(i)(A).

4. In subpart C, § 229.35 is added to 

read as follows:

§ 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 § 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 § 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 § 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 

65142 Federal Register / Vol. 69, No. 217 / Wednesday, November 10, 2004 / Proposed Rules 

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