21946 Federal Register / Vol. 77, No. 71 / Thursday, April 12, 2012 / Proposed Rules 

Service. For the above reasons and 

based on currently available 

information, we certify that if 

promulgated, the proposed designation 

would not have a significant economic 

impact on a substantial number of small 

business entities. Therefore, an initial 

regulatory flexibility analysis is not 

required. 

Authors 

The primary authors of this notice are 

the staff members of the Pacific Islands 

Fish and Wildlife Office, Pacific Region, 

U.S. Fish and Wildlife Service. 

Authority 

The authority for this action is the 

Endangered Species Act of 1973, as 

amended (16 U.S.C. 1531 et seq.). 

Dated: March 30, 2012. 

Rachel Jacobson, 

Acting Assistant Secretary for Fish and 

Wildlife and Parks. 

[FR Doc. 2012–8807 Filed 4–11–12; 8:45 am] 

BILLING CODE 4310–55–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 229 

[Docket No. 110202088–2183–01] 

RIN 0648–BA34 

Taking of Marine Mammals Incidental 

to Commercial Fishing Operations; 

Bottlenose Dolphin Take Reduction 

Plan 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Proposed rule; request for 

comments. 

SUMMARY: The National Marine 

Fisheries Service (NMFS) proposes to 

amend the Bottlenose Dolphin Take 

Reduction Plan (BDTRP) and 

implementing regulations by 

permanently continuing medium mesh 

gillnet fishing restrictions in North 

Carolina coastal state waters, which 

would otherwise expire on May 26, 

2012. This action will remove the 

expiration date to continue current 

nighttime fishing restrictions of medium 

mesh gillnets operating in North 

Carolina coastal state waters from 

November 1 through April 30. Members 

of the Bottlenose Dolphin Take 

Reduction Team (BDTRT) 

recommended these regulations be 

continued permanently, without 

modification, to ensure: (1) Continued 

conservation of strategic bottlenose 

dolphin stocks in North Carolina with 

historically high serious injury and 

mortality rates associated with medium 

mesh gillnets; and (2) BDTRP goals are 

met. NMFS also proposes to amend the 

BDTRP with updates, including updates 

recommended by the BDTRT for nonregulatory conservation measures. 

DATES: Written comments on the 

proposed rule must be received no later 

5 p.m. eastern time on May 14, 2012. 

ADDRESSES: You may submit comments 

on this document, identified by NOAA– 

NMFS–2010–0230, by any of the 

following methods: 

• Electronic Submission: Submit all 

electronic public comments via the 

Federal e-Rulemaking Portal 

www.regulations.gov. To submit 

comments via the e-Rulemaking Portal, 

first click the ‘‘submit a comment’’ icon, 

then enter NOAA–NMFS–2010–0230 in 

the keyword search. Locate the 

document you wish to comment on 

from the resulting list and click on the 

‘‘Submit a Comment’’ icon on the right 

of that line. 

• Mail: Submit written comments to 

Assistant Regional Administrator for 

Protected Resources, NMFS, 263 13th 

Avenue South, St. Petersburg, FL 

33701–5505. 

• Fax: 727–824–5309; Attn: Assistant 

Regional Administrator for Protected 

Resources. 

Instructions: Comments must be 

submitted by one of the above methods 

to ensure that the comments are 

received, documented, and considered 

by NMFS. Comments sent by any other 

method, to any other address or 

individual, or received after the end of 

the comment period, may not be 

considered. All comments received are 

a part of the public record and will 

generally be posted for public viewing 

on www.regulations.gov without change. 

All personal identifying information 

(e.g., name, address, etc.) submitted 

voluntarily by the sender will be 

publicly accessible. Do not submit 

confidential business information, or 

otherwise sensitive or protected 

information. NMFS will accept 

anonymous comments (enter ‘‘N/A’’ in 

the required fields if you wish to remain 

anonymous). Attachments to electronic 

comments will be accepted in Microsoft 

Word or Excel, WordPerfect, or Adobe 

PDF file formats only. 

This proposed rule, the BDTRP, 2008 

BDTRP amendment, BDTRT meeting 

summaries with consensus 

recommendations, and other 

background documents are available at 

the Take Reduction Team web site: 

http://www.nmfs.noaa.gov/pr/ 

interactions/trt/bdtrp.htm, or by 

submitting a request to Stacey Horstman 

[see FOR FURTHER INFORMATION CONTACT]. 

FOR FURTHER INFORMATION CONTACT: 

Stacey Horstman, NMFS Southeast 

Region, Stacey.Horstman@noaa.gov, 

727–824–5312; or Kristy Long, NMFS 

Office of Protected Resources, 

Kristy.Long@noaa.gov, 301–427–8402. 

SUPPLEMENTARY INFORMATION: 

Regulatory Changes to the BDTRP 

BDTRP and Medium Mesh Gillnet 

Restrictions 

Section 118(f)(1) of the Marine 

Mammal Protection Act (MMPA) (16 

U.S.C. 1387(f)(1)) requires NMFS to 

develop and implement take reduction 

plans to assist in the recovery or prevent 

the depletion of strategic marine 

mammal stocks that interact with 

Category I and II fisheries. The MMPA 

includes in its definition of ‘‘strategic 

stock’’ a marine mammal stock: (1) For 

which the level of direct human-caused 

mortality exceeds the potential 

biological removal (PBR) level; (2) 

which is declining and likely to be 

listed as a threatened species under the 

Endangered Species Act (ESA); or (3) 

which is designated as a depleted 

species under the MMPA (16 U.S.C. 

1362(1), (19), and (20)). PBR is the 

maximum number of animals, not 

including natural mortalities, that can 

be removed annually from a stock, 

while allowing that stock to reach or 

maintain its optimum sustainable 

population level. Category I or II 

fisheries are fisheries with frequent or 

occasional incidental mortality and 

serious injury of marine mammals, 

respectively (16 U.S.C. 1387(c)(1)(A)(i) 

and (ii)). 

As specified in the MMPA, the shortterm goal of a take reduction plan is to 

reduce, within six months of its 

implementation, the incidental 

mortality or serious injury of marine 

mammals taken in the course of 

commercial fishing operations to levels 

less than PBR for the stock (16 U.S.C. 

1387(f)(2)). The long-term goal of a plan 

is to reduce, within 5 years of its 

implementation, the incidental 

mortality or serious injury of marine 

mammals taken in the course of 

commercial fishing operations to 

insignificant levels approaching a zero 

mortality and serious injury rate, taking 

into account the economics of the 

fishery, the availability of existing 

technology, and existing state or 

regional fishery management plans. The 

MMPA also requires NMFS to amend 

take reduction plans and implementing 

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Federal Register / Vol. 77, No. 71 / Thursday, April 12, 2012 / Proposed Rules 21947 

regulations as necessary to meet the 

requirements of this section. 

On April 26, 2006, NMFS published 

a final rule (71 FR 24776) implementing 

the BDTRP, with a May 26, 2006, 

effective date. The BDTRP contains both 

regulatory and non-regulatory 

conservation measures to reduce serious 

injury and mortality of 13 strategic 

stocks of bottlenose dolphins (Tursiops 

truncatus) (previously considered one 

coastal migratory stock; see section on 

Revisions to the Western North Atlantic 

Coastal Bottlenose Dolphin Stock) in 

Category I and II commercial fisheries 

operating within the stocks’ 

distributional range. Both the regulatory 

and non-regulatory conservation 

measures are designed to meet the 

BDTRP’s short-term goal and provide a 

framework for meeting the long-term 

goal. The regulatory measures in the 

BDTRP include seasonal gillnet 

restrictions, gear proximity 

requirements, and gear length 

restrictions. The non-regulatory 

measures include continued research 

and monitoring, enforcement of 

regulations, outreach, and collaborative 

efforts. 

The specific regulatory measures 

addressed in this proposed rule that 

would otherwise expire on May 26, 

2012, are fishing prohibitions on 

nighttime medium mesh gillnets in 

North Carolina coastal state waters from 

November 1 through April 30, annually. 

Medium mesh gillnets are defined in the 

BDTRP as greater than 5-inch (12.7 cm) 

to less than 7-inch (17.8 cm) stretched 

mesh. The intent of the prohibitions is 

to reduce bottlenose dolphin serious 

injuries and mortalities by reducing 

gillnet soak times associated with 

medium mesh gillnets targeting spiny 

dogfish (Squalus acanthias) in North 

Carolina coastal state waters. During the 

winter (November 1 through April 30), 

four strategic bottlenose dolphin stocks 

(two coastal and two bay, sound, and 

estuary) occur in North Carolina state 

waters at various times. The 

prohibitions were implemented in 

North Carolina coastal state waters 

because bottlenose dolphin mortalities 

were observed from 1995 to 2000 in 

these waters during the winter. These 

mortalities were associated with 

medium mesh gillnets targeting spiny 

dogfish with long, overnight soak 

durations. 

When the BDTRT originally 

deliberated on their consensus 

recommendations for a draft BDTRP in 

2002 and 2003, they recognized the 

inadvertent benefit of recently 

implemented spiny dogfish fishery 

management plans (FMPs) in reducing 

serious injury and mortality of 

bottlenose dolphins by virtually 

eliminating spiny dogfish fishing effort 

in North Carolina. However, the BDTRT 

also recognized the dynamic nature of 

the spiny dogfish fishery, which is 

managed by both state and Federal 

entities. The uncertainty about on-going 

management of the fishery resulted in a 

process that was dynamic and 

unreliable for bottlenose dolphin 

conservation. Therefore, the BDTRT 

recommended the nighttime medium 

mesh prohibitions be included in the 

BDTRP with an expiration date to 

ensure regular review of the spiny 

dogfish fishery and management. 

The nighttime medium mesh gillnet 

restrictions were originally 

implemented in the BDTRP on May 26, 

2006, with an expiration date of May 26, 

2009. The BDTRT subsequently 

recommended extending the restrictions 

for an additional three years to ensure 

continued bottlenose dolphin 

conservation benefits and evaluate the 

need for permanent restrictions due to 

recent changes to the spiny dogfish 

population status and continued 

uncertainty in fishery management. On 

December 19, 2008, NMFS published a 

final rule (73 FR 77531) amending the 

BDTRP by extending the measures’ 

expiration date until May 26, 2012. The 

BDTRT met on September 9–11, 2009, 

and recommended NMFS make the 

restrictions permanent because of 

continued spiny dogfish FMP changes, 

as the spiny dogfish fishery was no 

longer considered overfished, and 

fishing effort increased for spiny dogfish 

in North Carolina. Removing the 

expiration date, thereby permanently 

maintaining the existing restrictions, 

ensures continued bottlenose dolphin 

conservation benefits from reduced soak 

durations of medium mesh gillnets in 

North Carolina coastal state waters. 

Medium Mesh Gillnets in North 

Carolina and Spiny Dogfish FMPs 

Medium mesh gillnets fished in 

coastal state waters of North Carolina 

fall under the mid-Atlantic gillnet 

fishery. The mid-Atlantic gillnet fishery 

is classified on the MMPA List of 

Fisheries as a Category I fishery, which 

is defined as a fishery that has frequent 

incidental mortality and serious injury 

of marine mammals (i.e., greater than 50 

percent of a stock’s PBR level). In North 

Carolina, medium mesh gillnets are 

typically used to target spiny and 

smooth dogfish, king mackerel, 

flounder, and other shark species, with 

spiny dogfish as the primary target 

species (Rossman and Palka 2004). 

Spiny dogfish are managed from 

Maine to North Carolina by two Federal 

Fishery Management Councils in 

Federal waters and an interstate fishery 

management commission in state 

waters. NMFS listed spiny dogfish as 

overfished in 1998 (63 FR 17820, April 

10, 1998). In January 2000, NMFS 

implemented a Federal FMP (65 FR 

1557) to conserve spiny dogfish in 

Federal waters. Among other things, the 

FMP implemented a coastwide 

commercial quota that is specified 

annually and split into two seasonal 

fishing periods (Period 1: May 1 to 

October 31; Period 2: November 1 to 

April 30). Each fishing period has 

separate possession trip limits, specified 

annually, to allow for spiny dogfish 

bycatch to be sold while managing catch 

rates (63 FR 17820, April 10, 1998; 

ASMFC 2007). 

The Atlantic States Marine Fisheries 

Commission (ASMFC) issued an 

emergency action in 2000 requiring 

states to mirror Federal closures in state 

waters. An Interstate FMP was 

developed in November 2002 to manage 

spiny dogfish fishing in state waters and 

implemented in the 2003/2004 fishing 

year. The Interstate FMP largely mirrors 

the Federal FMP, setting annual 

commercial quotas and separate 

possession limits to help manage spiny 

dogfish catch rates for the same two 

fishing periods (ASMFC 2007). All 

commercial landings count toward the 

Interstate FMP quota regardless of 

where the fish are caught (i.e., state or 

Federal waters) (ASMFC 2002). 

Annually, NMFS reviews the Federal 

FMP and ASMFC reviews the Interstate 

FMP, based on the most recent estimate 

of spiny dogfish fishing mortality and 

spawning stock biomass. The 2006 

estimate of fishing mortality for spiny 

dogfish indicated the population was 

not overfished and overfishing was not 

occurring (NMFS 2006). In 2010, the 

spiny dogfish stock was declared rebuilt 

based on 2009 spawning stock biomass 

estimates exceeding biomass targets 

since 2008 (75 FR 36012, June 24, 2010; 

Rago and Sosebee 2010). Both state and 

Federal annual commercial coastwide 

quotas and possession limits have 

increased in accordance with changes in 

the spiny dogfish stock status (see 

Table 1). 

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21948 Federal Register / Vol. 77, No. 71 / Thursday, April 12, 2012 / Proposed Rules 

TABLE 1—STATE AND FEDERAL FMP QUOTAS AND POSSESSION LIMITS SINCE 2006 

Fishing year 

State (ASFMC) Federal (NMFS) 

Coastwide 

quota 

(million 

pounds) 

Possession limit 

(pounds) 

Coastwide 

quota 

(million 

pounds) 

Possession 

limit 

(pounds) 

2006/2007 ....................................................... 6 States determine ............................................ 4 600 

2007/2008 ....................................................... 6 3,000 .............................................................. 4 600 

2008/2009 ....................................................... 8 3,000 .............................................................. 4 600 

2009/2010 ....................................................... 12 3,000 .............................................................. 12 3,000 

2010/2011 ....................................................... 15 3,000 .............................................................. 15 3,000 

2011/2012 ....................................................... 20 3,000 .............................................................. 20 3,000 

The implementation of the FMPs and 

quota changes has affected spiny 

dogfish effort and landings in North 

Carolina since 2001 (see Figure 1). 

Targeting spiny dogfish in North 

Carolina was virtually eliminated 

following implementation of the FMPs, 

as evidenced by low spiny dogfish 

landings. Spiny dogfish landings in 

North Carolina averaged 6,609,821 

pounds from 1996 to 2000 prior to the 

implementation of the FMPs (NMFS, 

Fisheries Statistic Division, pers. comm. 

and ASMFC 2011a). From 2001 to 2006, 

after implementation of the FMPs and 

before the spiny dogfish population was 

considered no longer overfished, 

landings in North Carolina averaged 

92,243 pounds (NMFS, Fisheries 

Statistic Division, pers. comm. and 

ASMFC 2011a). Despite the increasing 

state quotas and possession limits 

through the 2008 fishing year, spiny 

dogfish landings in North Carolina 

remained comparatively low for the 

2007–2008 fishing years, averaging 

154,135 pounds (NMFS, Fisheries 

Statistic Division, pers. comm. and 

ASMFC 2011a). 

Two major factors contributed to 

preventing greater increases in landings 

of spiny dogfish in North Carolina. First, 

the decreased landings of spiny dogfish 

in North Carolina following 

implementation of the FMPs were 

mostly due to the seasonal 

specifications of commercial quotas. 

The FMPs’ commercial quotas, 

established annually and split semiannually, were based on the north-south 

spiny dogfish migration to help 

maintain the seasonal and geographic 

distribution of landings among states. 

Because of the species’ annual migratory 

pattern along the United State’s east 

coast, quota overages often occurred in 

the northern states associated with 

harvest Period 1, resulting in reduced or 

restricted harvest for southern states in 

Period 2 (ASMFC 2002). For example, 

historic peak harvest for spiny dogfish 

in North Carolina state waters occurred 

during February and March, 

corresponding to harvest Period 2. The 

state and Federal quotas were often 

already met before harvest Period 2 

because spiny dogfish remain off the 

coasts of the northern states until winter 

(ASMFC 2008). Therefore, the seasonal 

specifications of the FMP quotas based 

on the spiny dogfish migration allowed 

northern states to intercept spiny 

dogfish and meet FMP quotas before 

their seasonal migration south to North 

Carolina (NCDMF 2008). Second, 

following the implementation of the 

FMPs, the mid-Atlantic processors 

closed, leaving only two processors in 

New England (ASMFC 2002). The 

processing plants are at times saturated 

with spiny dogfish harvested from states 

north of North Carolina, leaving little to 

no market to harvest and process the 

fish when they arrive in North Carolina. 

Furthermore, in a predominantly 

bycatch fishery with possession limits at 

600 or even 3,000 pounds, it was not 

cost effective for fishermen or dealers in 

North Carolina to truck spiny dogfish to 

the processors in New England given 

the high fuel costs and small amounts 

of fish allowed for harvest. 

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Federal Register / Vol. 77, No. 71 / Thursday, April 12, 2012 / Proposed Rules 21949 

FIGURE 1. SPINY DOGFISH LANDINGS IN NORTH CAROLINA FROM 1996 THROUGH 2010 (NMFS, FISHERIES STATISTIC

DIVISION, PERS. COMM. AND ASMFC 2011A) 

Because the semi-annual quota was 

not maintaining the historical 

distribution of landings or allowing for 

consistent quota allocation for southern 

states, ASMFC approved Addendum II 

and III to the Interstate FMP in October 

2008 and April 2011, respectively. 

Addendum II was issued retroactively 

for the 2008/2009 fishing year, 

establishing regional quotas replacing 

the overall seasonal allocation. The 

quota was redistributed at 58% for the 

Northern Region (Maine, New 

Hampshire, Massachusetts, Rhode 

Island, and Connecticut); 26% for the 

Southern Region (New York, New 

Jersey, Delaware, Maryland, and 

Virginia); and 16% for North Carolina. 

If the quota was exceeded in a region or 

North Carolina, the amount exceeding 

the allocation was deducted from the 

corresponding region or North Carolina 

for the next fishing season. North 

Carolina was specifically allocated a 

percentage of the quota to ensure 

available quota when the fish arrive in 

North Carolina waters (ASMFC 2008). 

Following Addendum II, average 

landings for spiny dogfish in North 

Carolina from 2009–2010 increased to 

1,562,400 pounds (NMFS, Fisheries 

Statistic Division, pers. comm. and 

ASMFC 2011a). 

Addendum II addressed the inability 

of North Carolina to harvest spiny 

dogfish, but it did not allow the 

Southern Region to adjust possession 

limits based on market demand. 

Addendum III to the interstate FMP 

was, therefore, approved for the 

2011/2012 fishing year, providing statespecific allocation for all states in the 

Southern Region and allowing 

individual states greater control of spiny 

dogfish fishing effort (ASMFC 2011b). 

Among other things, Addendum III 

divided the Southern Region annual 

quota of 42% into state-specific shares, 

including a share of 14.036% to North 

Carolina. Therefore, North Carolina had 

a state-specific quota of 2,807,200 

pounds for the 2011/2012 fishing year, 

and the state set a maximum 3,000 

pound per trip possession limit 

depending on fishing location. 

Given the history of this fishery, 

continued increases in quotas and 

possession limits are anticipated. In 

October 2011, the Federal fishery 

management councils recommended to 

NMFS a 2012/2013 commercial quota of 

35.7 million pounds and increased the 

per trip possession limit to 4,000 

pounds. In November 2011, ASMFC set 

the 2012/2013 fishing year quota at 30 

million pounds with a maximum daily 

possession limit of 3,000 pounds. North 

Carolina will receive a state-specific 

share of 4,210,800 pounds. 

These recent increases in the quotas 

and possession limits resulted in 

increased effort in medium mesh 

gillnets targeting spiny dogfish, notably 

in North Carolina with its individual 

state quota. Despite increased effort and 

landings, medium mesh gillnet soak 

duration is unlikely to increase to preFMP durations because the possession 

limits are still relatively low (less than 

or equal to 3,000 pounds) and BDTRP 

nighttime medium mesh restrictions are 

in place. Federal fishery observer data 

for medium mesh gillnets targeting all 

species in North Carolina state waters 

during the winter show a marked 

decrease in soak durations since the 

spiny dogfish FMPs were implemented. 

Prior to implementation of the FMPs 

(1996–2000), soak durations ranged 

from less than one hour to 48 hours, 

averaging 9.6 hours. After the FMPs 

were implemented (2001–2010), soak 

durations ranged from less than one 

hour to 24 hours, averaging only 1.8 

hours. Although the current average 


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soak duration is still relatively low, 

Federal fishery observer data indicate 

some longer soak durations 

commensurate with increases in 

possession limits and quotas. 

Historically, bycatch of bottlenose 

dolphins was associated with long soak 

durations (average of 20 hours) of 

medium mesh gillnets targeting spiny 

dogfish in North Carolina. Thus, 

permanently extending the nighttime 

medium mesh gillnet restrictions will 

ensure soak durations do not increase 

back to historically high levels, 

increasing the risk of serious injury and 

mortality to bottlenose dolphins. 

Bottlenose Dolphin Mortalities 

Associated With Medium Mesh Gillnets 

in North Carolina 

The implementation of the spiny 

dogfish FMPs and subsequent effort 

reductions had the inadvertent but 

beneficial effect of reducing bottlenose 

dolphin serious injuries and mortalities 

in North Carolina; however, this trend 

may change as the fishery rebuilds and 

quotas continue to increase. From 1996 

to 2000 in the North Carolina portion of 

the previously defined Winter-Mixed 

Management Unit (now corresponding 

to four different stocks; see the 

discussion in this rule under the 

heading, Revisions to the Western North 

Atlantic Coastal Bottlenose Dolphin 

Stock), medium mesh gillnets targeting 

spiny dogfish were the primary 

contributors to the total bottlenose 

dolphin mortality (Rossman and Palka 

2004). The mean animal mortality for 

the entire Winter-Mixed Management 

Unit from 1996 to 2000 was 180, which 

exceeded the PBR of 68 (Waring et al. 

2007; Rossman and Palka 2004). Sixtythree percent, or 146 of 180 bottlenose 

dolphin serious injuries and mortalities, 

were attributed to medium mesh gillnets 

primarily targeting spiny dogfish in the 

North Carolina portion of the WinterMixed Management Unit. Conversely, 

from 2001 to 2002 in the entire WinterMixed Management Unit, small (less 

than or equal to 5-inch (12.7 cm)) and 

large (greater than or equal to 7-inch 

(17.8 cm) stretched) mesh gillnets were 

the primary contributors to total 

bottlenose dolphin serious injury and 

mortality. During 2000 to 2001, 

estimated mean animal mortality 

decreased to 59 bottlenose dolphins, of 

which, only 19 (24%) were attributed to 

medium mesh gillnets in the North 

Carolina portion of the Winter-Mixed 

Management Unit. This reduction in 

estimated bottlenose dolphin mortality 

was a result of reduced landings and 

lower bycatch rates across all gillnet 

mesh size categories (small, medium, 

and large), which includes almost no 

effort in medium mesh gear targeting 

spiny dogfish following implementation 

of the FMPs (Rossman and Palka 2004). 

The BDTRP winter nighttime 

prohibitions for medium mesh gillnets 

continue to be important for bottlenose 

dolphin conservation because they 

effectively limit soak times to 

approximately 12 hours, reducing risk 

of bycatch. Before implementation of 

the FMPs, long soak durations 

associated with medium mesh gillnets 

targeting spiny dogfish were a major 

contributing factor to high bottlenose 

dolphin bycatch rates in North Carolina. 

Federal observer data prior to FMP 

implementation document three 

bottlenose dolphin mortalities in 

medium mesh nets with soak times 

averaging 20 hours; only one mortality 

was in a net with a soak time of less 

than 12 hours. There have been no 

observed takes in medium mesh gillnets 

targeting spiny dogfish in North 

Carolina waters since 2000 when FMPs 

eliminated directed spiny dogfish 

fishing effort, and consequently, the 

need for long soak durations. 

Stranding data also indicate the 

BDTRP winter nighttime medium mesh 

gillnet prohibitions are effective at 

reducing serious injury and mortality of 

bottlenose dolphins regardless of 

increases in the spiny dogfish quota. 

Byrd et al. (2008) compared the number 

of bottlenose dolphins that stranded in 

North Carolina coastal state waters with 

evidence of a fishery interaction during 

the winter from November 1997 through 

April 2005. They found stranding rates 

and bottlenose dolphin bycatch rates 

from Rossman and Palka (2004) were 

similar and corresponded to 

fluctuations in fishing effort for spiny 

dogfish in North Carolina. Specifically, 

for the time period examined, there was 

a significant positive relationship in the 

numbers of bottlenose dolphin 

strandings with signs of fishery 

interaction and bottlenose dolphin 

bycatch rate before and after the FMPs 

were implemented. Furthermore, the 

mean number of strandings with signs 

of a fishery interaction in North 

Carolina coastal state waters was greater 

before the FMPs were implemented 

(14.3 animals during November–April 

from 1997–2000) than after the FMPs 

(5.2 during November–April from 2001– 

2005) (Byrd et al. 2008). Therefore, in 

the absence of Federally observed takes 

since 2000, stranding data may be used 

as a proxy to detect increases in 

bottlenose dolphin bycatch mortality 

(Byrd et al. 2008). Updated stranding 

data from November 2005 through April 

2010 show a continued trend in 

reduction of strandings with signs of a 

fishery interaction, with an average of 

2.8 strandings in all North Carolina state 

waters (NOAA Southeast Stranding 

Data). 

The nighttime medium mesh gillnet 

restrictions were initially included in 

the BDTRP to ensure long soak 

durations of medium mesh gillnets were 

modified to reduce serious injury and 

mortality rates. These restrictions were 

given expiration dates on two occasions 

to monitor the status of the spiny 

dogfish fishery and management. The 

BDTRP prohibitions ensure reduced 

soak durations in medium mesh gillnets 

despite a recent increase in spiny 

dogfish fishing effort in North Carolina 

as shown by: (1) Reduced soak 

durations in medium mesh gillnets in 

North Carolina state waters during the 

winter; and (2) a continued decreasing 

trend of bottlenose dolphin strandings 

with evidence of a fishery interaction in 

North Carolina state waters during the 

winter. 

BDTRT Recommendations for Medium 

Mesh Gillnets in North Carolina 

Following implementation of the 

BDTRP in May 2006, the BDTRT met on 

June 19–20, 2007, to monitor the 

effectiveness of the BDTRP. Among 

other things, the BDTRT was provided 

updates on spiny dogfish fishery 

management, landings, and gear 

practices since the team originally 

deliberated on the draft BDTRP. The 

BDTRT recommended by consensus that 

the nighttime medium mesh gillnet 

restrictions in North Carolina be 

extended for an additional three years 

and NMFS provide an update on the 

status of the spiny dogfish fishery at 

least biennially. Therefore, per the 

BDTRT’s recommendation, NMFS 

amended the BDTRP in December 2008 

with a new expiration date of May 26, 

2012, for the nighttime medium mesh 

gillnet restrictions (73 FR 77531). 

NMFS held another BDTRT meeting 

on September 9–11, 2009, to evaluate 

the BDTRP and review revisions to the 

bottlenose dolphin stock structure. The 

BDTRT was provided with updates on 

medium mesh gillnet fishing effort 

targeting spiny dogfish in North 

Carolina and FMP management addenda 

and quota changes. Because of recent 

changes to the FMPs, the recovering 

spiny dogfish population, and increased 

fishing effort in North Carolina, the 

BDTRT recommended by consensus that 

NMFS permanently include the 

nighttime medium mesh gillnet 

prohibitions in North Carolina. The 

BDTRT recognized the importance of 

these restrictions because of the 

historically high rates of bottlenose 

dolphin serious injury and mortality 

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Federal Register / Vol. 77, No. 71 / Thursday, April 12, 2012 / Proposed Rules 21951 

associated with medium mesh gillnets 

targeting spiny dogfish. 

For several reasons, NMFS agrees the 

expiration date should be removed 

rather than continuing to extend the 

medium mesh restrictions for three-year 

durations. The spiny dogfish population 

was declared rebuilt in 2010, resulting 

in continued increased FMP quotas and 

possession limits, and landings of spiny 

dogfish in North Carolina. Federal 

fishery observer data indicate some 

longer soak durations commensurate 

with increases in quotas and possession 

limits. Historically, observed takes of 

bottlenose dolphins in North Carolina 

medium mesh gillnets targeting spiny 

dogfish were associated with longer 

soak durations, and 63 percent of 

bottlenose dolphin serious injuries and 

mortality were associated with medium 

mesh gillnets targeting spiny dogfish. 

Given these factors, permanently 

maintaining the BDTRP restrictions is 

necessary for meeting the goals of the 

plan, per the MMPA requirement to 

reduce serious injury and mortality of 

strategic bottlenose dolphin stocks in 

North Carolina. 

Non-Regulatory Changes and Updates 

to the BDTRP 

Non-Regulatory Management Measures 

and BDTRT Consensus 

Recommendations 

This proposed rule also includes 

updates for non-regulatory components 

of the BDTRP. These updates are based 

on the BDTRT’s consensus 

recommendations from their June 2007 

and September 2009 meetings and do 

not represent a substantive change to 

the BDTRP requirements. The BDTRT 

recognized the effectiveness of the 

BDTRP requirements implementing 

non-regulatory actions, such as 

continued research, monitoring, 

enforcement of regulations, outreach, 

and other collaborative efforts. Nonregulatory measures are an important 

complement to the BDTRP’s regulatory 

measures in achieving the plan’s shortterm goal and providing a framework for 

achieving the long-term goal. 

Since the BDTRP’s implementation in 

May 2006, NMFS convened two inperson meetings (June 2007 and 

September 2009) of the BDTRT to 

monitor and evaluate the BDTRP’s 

effectiveness. At both meetings, the 

BDTRT provided NMFS with additional 

non-regulatory recommendations, 

which NMFS agrees are important to 

achieving the plan’s goals. Some of 

these recommendations have already 

been accomplished because of the 

adaptive nature of the non-regulatory 

measures. 

The following are summaries of 

proposed amendments to the BDTRP’s 

non-regulatory management measures. 

Please see the FOR FURTHER INFORMATION

CONTACT section for where to obtain the 

2007 and 2009 BDTRT meeting 

summaries for details on these 

recommended measures. 

Research 

(1) Bottlenose Dolphin Research 

Based on the spatial and temporal 

complexity of bottlenose dolphin stocks, 

the BDTRT advised NMFS in both 2007 

and 2009 to support continued research 

to improve the understanding of 

bottlenose dolphin stock structure. The 

BDTRT specifically recommended using 

genetics, dorsal fin photo-identification, 

and telemetry data for continued 

refinement of bottlenose dolphin stock 

structure, abundance estimates, and 

PBR levels for all stocks and especially 

those occupying North Carolina waters. 

To identify fishery-related mortalities 

and serious injury to stock, the BDTRT 

further recommended using genetic 

samples or matching dorsal fin images 

to the Mid-Atlantic Bottlenose Dolphin 

Photo-Identification Catalog. 

(2) Fishing Gear Research 

Gear modification research, in 

cooperation with fishermen, is 

important to help reduce serious injury 

or mortality to bottlenose dolphins 

incidental to commercial fishing while 

maintaining those fisheries. Therefore, 

the BDTRP recommended the following: 

(1) Determine if pingers reduce 

depredation rates of bottlenose dolphins 

on gillnets and whether pingers affect 

bottlenose dolphins; (2) examine the 

ratio of net height versus water depth in 

gillnets targeting Spanish and king 

mackerel; and (3) continue exploring the 

effectiveness of modified leaders in the 

Virginia Pound Net fishery for 

maintaining catch efficiency, especially 

around Lynnhaven, Virginia. 

Trap/Pot Fisheries 

During the 2009 meeting, the BDTRT 

recognized trap/pot gear as the main 

commercial fishing gear interacting with 

some of the estuarine stocks of 

bottlenose dolphins. Stranding data 

indicate interactions with trap/pot gear 

are occurring with bottlenose dolphins, 

and only one or two takes may result in 

serious injury and mortality levels that 

exceed PBR for these small stocks. The 

BDTRT provided the following 

recommendations to better understand 

the nature of interactions with trap/pot 

gear, inform future discussions, and 

reduce potential serious injuries and 

mortalities of bottlenose dolphins: (1) 

Develop state programs to remove 

derelict trap/pot gear; (2) characterize 

trap/pot gear (e.g., amount of vertical 

line, gear markings, etc.) interacting 

with bottlenose dolphins, amount of 

fishing effort, spatial and temporal 

aspects of the fisheries, and types of 

gear modifications (e.g., inverted bait 

wells); and (3) host a technology transfer 

workshop for fishermen using blue crab 

trap/pot gear to explore gear 

modifications that may help reduce 

bottlenose dolphin interactions. 

Monitoring and Evaluating Plan 

Effectiveness 

(3) Outreach and Education 

Continued education and outreach to 

affected Category I and II fishermen and 

stakeholders is necessary to enhance 

compliance with, and therefore the 

effectiveness of, the BDTRP. The BDTRT 

recommended outreach be maintained 

and conducted consistently. For 

example, NMFS fishery liaisons or 

mailings are effective approaches in 

consistently informing fishermen of any 

BDTRP updates. The BDTRT also 

recommended holding fishermen 

working groups to better understand the 

nature of bottlenose dolphin 

interactions with specific gear types, as 

fishermen can provide important 

knowledge in trends or patterns of 

interactions. The BDTRT further 

recognized the value of highlighting the 

success of the BDTRP if an affected 

stock reaches the MMPA long-term goal 

(i.e., serious injury and mortality is 

below 10 percent of a stock’s PBR level). 

Using success stories as platforms for 

education and outreach is an important 

tool, especially when encouraging 

compliance with the plan regulations. 

(4) Observer Program 

The observer program is vital for 

measuring if take reduction plan 

regulations are effective in reducing 

serious injury and mortality of 

bottlenose dolphins and monitoring 

changes in interaction rates between 

bottlenose dolphins and affected 

fisheries. Previous BDTRT 

recommendations focused on enhancing 

and improving the overall precision and 

accuracy of observer data. Recent 

BDTRT meeting recommendations 

encouraged focusing observer coverage 

in specific geographic areas and 

fisheries, improving observer data 

collection and quality, and measures of 

fishing effort. Specifically, the BDTRT 

recommended enhancing and 

prioritizing observer coverage in: (1) 

The North Carolina beach seine fishery; 

(2) gillnets targeting Spanish mackerel 

in inshore waters of North Carolina; and 

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(3) gear operating in North Carolina 

state waters during the summer. 

Recommendations to improve 

documentation of observed takes were 

also provided. Specifically, the BDTRT 

recommended prioritizing 

documentation of dorsal fin images and 

collection of biopsy samples, or the 

entire carcass if possible, and detailed 

documentation of the entanglement 

event. Improved data collection will 

help in assigning mortality to a 

particular stock because of the spatial 

and temporal overlap of stocks, 

especially in North Carolina. Finally, 

the team recommended determining the 

accuracy of current fishing effort 

measures used for bottlenose dolphin 

mortality estimates by comparing 

alternate measures of fishing effort with 

current methods. 

(5) Enforcement 

Enforcement is important for 

compliance monitoring of take 

reduction plan regulations. If the plan is 

not reaching its goals, NMFS will 

determine if non-compliance is a factor. 

The BDTRT recommended coordination 

with state and other Federal agencies on 

enforcement activities. 

(6) Adaptive Management 

At the team’s 2009 meeting, some 

abundance estimates and PBRs for 

stocks were unknown due to the recent 

revisions in bottlenose dolphin stock 

structure. However, the team noted at 

the meeting that the mortality estimate 

for the Northern North Carolina 

Estuarine System Stock may be 

approaching or exceeding PBR. The 

BDTRT recommended that after NMFS 

updates the abundance estimate and 

PBR for the stock, if PBR is determined 

to have been exceeded, the BDTRT be 

convened via conference call or inperson meeting to ensure more real-time 

communications and monitoring of the 

BDTRP’s effectiveness. Having such 

discussions in real-time allows for an 

adaptive management approach to more 

quickly target potential reasons the 

BDTRP is not achieving its short-term 

goal and begin considering effective 

solutions. 

Revisions to the Western North Atlantic 

Coastal Bottlenose Dolphin Stock 

The Western North Atlantic coastal 

bottlenose dolphin morphotype is 

continuously distributed in estuarine 

and coastal waters along the United 

State’s Atlantic coast. Based on spatial 

and temporal patterns in strandings 

during a die-off from 1987–1988, 

bottlenose dolphins in coastal waters 

along the Atlantic coast were designated 

as a single coastal stock (Western North 

Atlantic coastal bottlenose dolphin 

stock) that migrated seasonally between 

New Jersey and central Florida. This 

Western North Atlantic coastal 

bottlenose dolphin stock was 

considered strategic due to depletion 

during the 1987–1988 die-off and 

interactions with nine Category I and II 

commercial fisheries. The BDTRT was 

formed in 2001 and the BDTRP 

implemented in 2006 to reduce impacts 

from commercial fishing. The 

geographic scope and affected area of 

the BDTRP was based on the habitat and 

range of the Western North Atlantic 

coastal stock, including all tidal and 

marine waters within 6.5 nautical miles 

(12 km) of shore from the New YorkNew Jersey border southward to Cape 

Hatteras, North Carolina, and within 

14.6 nautical miles (27 km) of shore 

from Cape Hatteras southward to, and 

including, the east coast of Florida. 

During the BDTRT’s initial 

deliberations in developing the draft 

BDTRP, research demonstrated the 

Western North Atlantic coastal 

bottlenose dolphin stock was not a 

single migratory stock, but rather a 

complex mosaic of stocks occupying 

estuarine and coastal waters. The stock 

was, therefore, separated into seven 

discrete management units with spatial 

and temporal components for purposes 

of developing the draft BDTRP. 

However, the entire range of the 

Western North Atlantic coastal stock 

was used for the geographic scope of the 

BDTRP. PBR, abundance estimates, and 

mortality estimates for the Western 

North Atlantic coastal stock were 

determined and assigned per 

management unit. These management 

units were used until additional data 

collection and analyses were completed 

to allow redefinition of discrete stocks 

(as opposed to seasonal management 

units) in 2009. 

Genetic analyses, assessments of 

ranging patterns of bottlenose dolphins 

from long-term photographic 

identification studies, and satellitetelemetry tag studies were summarized 

to redefine stock structure. The stock 

structure now consists of nine estuarine 

system stocks and five coastal stocks. 

This description is not complete, 

however, because of insufficient 

information for some estuarine waters to 

evaluate stock structure, and limited 

information on the movement patterns 

of some of the coastal stocks. Targeted 

genetic studies showed genetic 

differentiation among coastal and 

estuarine stocks and separation between 

bottlenose dolphins occurring in 

estuarine versus coastal waters. Photoidentification studies described the 

seasonal ranging patterns of estuarine 

stocks and indicated some stocks (e.g., 

the Northern North Carolina Estuarine 

Stock) move offshore into nearshore 

coastal waters at particular times of 

year. Additionally, seasonal 

immigration/emigration and transient 

animals occur within estuaries, 

suggesting some degree of spatial 

overlap between estuarine and coastal 

animals (Waring et al. 2011). Although 

questions still remain about the degree 

of spatial overlap and mixing between 

the coastal and estuarine stocks, data 

indicates fourteen separate coastal and 

estuarine stocks are encompassed 

within the range of the Western North 

Atlantic morphotype of coastal 

bottlenose dolphins. 

The Western North Atlantic coastal 

morphotype of bottlenose dolphins was, 

therefore, revised to include 14 stocks of 

coastal (five stocks) and estuarine (nine 

stocks) bottlenose dolphins instead of 

one previous migratory stock. All stocks 

within the coastal morphotype are still 

considered strategic, except the Florida 

Bay Stock. Therefore, thirteen of the 14 

bottlenose dolphin stocks are affected 

under the BDTRP because they are 

strategic and interact with Category I 

and II commercial fisheries. The 

following is a list of the revised 

bottlenose dolphin stocks, along with a 

description of their spatial and/or 

temporal distributions as now included 

in the BDTRP (Waring et al. 2011): 

1. Western North Atlantic Northern 

Migratory Coastal Stock, which 

occupies coastal waters from the 

shoreline to approximately the 25 meter 

isobath between the mouth of the 

Chesapeake Bay in Virginia and Long 

Island, New York during the summer 

months (July–September); and moves 

south occupying coastal waters from 

Cape Lookout, North Carolina to the 

Virginia/North Carolina border during 

the winter months (January–March). 

2. Western North Atlantic Southern 

Migratory Coastal Stock, which 

occupies coastal waters north of Cape 

Lookout, North Carolina to the eastern 

shore of Virginia and potentially inside 

the Chesapeake Bay, Virginia during 

summer months (July–September); 

occupies waters south of Cape Lookout 

during the fall (October–December); 

moves as far south as northern Florida 

during the winter (January–March); and 

moves back north to occupy waters of 

North Carolina during the spring (April– 

June). 

3. Western North Atlantic South 

Carolina/Georgia Coastal Stock, which 

occupies coastal waters year-round from 

the North Carolina/South Carolina 

border to the Georgia/Florida border. 

4. Western North Atlantic Northern 

Florida Coastal Stock, which occupies 

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coastal waters year-round from the 

Georgia/Florida border to 29.4° N. 

5. Western North Atlantic Central 

Florida Coastal Stock, which occupies 

coastal waters year-round from 29.4° N. 

to the western end of Vaca Key, Florida. 

6. Northern North Carolina Estuarine 

System Stock, which occupies Pamlico 

Sound, North Carolina and nearshore 

coastal waters (less than 1 km from 

shore) of North Carolina to Virginia 

Beach during the summer and fall (July– 

October); moves out of the estuarine 

waters and occupies nearshore coastal 

waters (less than 1 km from shore) 

between Capes Lookout and Hatteras, 

North Carolina during the late fall and 

winter (November–March); and 

occupies nearshore coastal (less than 1 

km from shore) and estuarine waters of 

southern North Carolina during the 

spring (April–June). 

7. Southern North Carolina Estuarine 

System Stock, which occupies estuarine 

and nearshore coastal waters (less than 

3 km from shore) between the North 

Carolina/South Carolina border and 

Core Sound, North Carolina during the 

summer and fall (July–October); and 

moves south to occupy coastal 

nearshore waters near Cape Fear, North 

Carolina during the late fall through 

spring (November–June). 

8. Charleston Estuarine System Stock, 

which occupies the riverine and 

estuarine waters year-round from Prince 

Inlet, South Carolina to the north and 

the North Edisto River, South Carolina 

to the south. 

9. Northern Georgia/Southern South 

Carolina Estuarine System Stock, which 

occupies all estuarine, riverine, and 

creek waters year-round from the 

southern extent of the North Edisto 

River, South Carolina to the northern 

extent of Ossabaw Sound, South 

Carolina. 

10. Southern Georgia Estuarine 

System Stock, which occupies all 

estuarine, intracoastal waterways, 

sounds, rivers, and tributaries yearround from the Altamaha River, Georgia 

to the Cumberland River at the Georgia/ 

Florida border. 

11. Jacksonville Estuarine System 

Stock, which occupies all estuarine and 

riverine waters year-round from 

Cumberland Sound at the Florida/ 

Georgia border to Jacksonville Beach, 

Florida. 

12. Indian River Lagoon Estuarine 

System Stock, which occupies all 

estuarine, riverine and lagoon waters 

year-round from Ponce de Leon Inlet, 

Florida to Jupiter Inlet, Florida. 

13. Biscayne Bay Stock, which 

occupies all estuarine waters year-round 

from Haulover Inlet, Florida to Card 

Sound Bridge. 

To reflect updated knowledge and 

understanding of bottlenose dolphin 

stock structure, this proposed rule 

updates 50 CFR 229.35(a) by removing 

the reference to the ‘‘Western North 

Atlantic bottlenose dolphin coastal 

stock’’ and replacing it with ‘‘stocks of 

bottlenose dolphins within the Western 

North Atlantic coastal morphotype’’. 

Updating the bottlenose dolphin stocks 

included in the BDTRP will not modify 

management measures in the BDTRP. 

Although the management units were 

used to inform the development of the 

BDTRP, management measures in the 

BDTRP are still applicable based on the 

temporal and seasonal movements of 

each stock and Category I and II 

fisheries affected and regulated by the 

BDTRP. Each stock has its own 

abundance and mortality estimates, as 

well as associated PBRs. NMFS will 

continue monitoring serious injury and 

mortality for each stock through 

observer program and stranding data. 

NMFS will also continue evaluating the 

effectiveness of the BDTRP by 

monitoring serious injury and mortality 

estimates of bottlenose dolphins relative 

to the short- and long-term goals of the 

BDTRP. 

Other Updates 

Since finalizing and implementing the 

BDTRP in May 2006, two errors in the 

BDTRP implementing regulations were 

identified. This proposed rule corrects 

the two errors as follows: (1) The 

current boundary for Southern North 

Carolina State Waters and South 

Carolina in 50 CFR 229.35(b) uses North 

Carolina/South Carolina at the coast 

(33°52′ N.) for the southern part of the 

boundary. Similarly, the definition for 

South Carolina, Georgia, and Florida 

waters use the same latitude for the 

northern part of the boundary. The 

latitude 33°52′ N., however, does not 

accurately reflect the actual border. This 

proposed rule modifies the coordinate 

to accurately reflect the North Carolina/ 

South Carolina border at the coast. The 

border for North Carolina/South 

Carolina would be defined as the 

latitude corresponding with 33°51′07.9′′ 

N. at the coast as described by ‘‘Off 

South Carolina’’ in 50 CFR 622.2 of this 

title (Fisheries of the Caribbean, Gulf, 

and South Atlantic—Definitions and 

Acronyms); and (2) In the regulatory 

text implementing the BDTRP, both 50 

CFR 229.35(d)(1)(i) and 229.35(d)(2)(i) 

describe regional management measures 

for New Jersey, Delaware, Maryland, 

and Virginia state waters specific to 

medium and large mesh gillnet gear. In 

specifying the regulated gear type, the 

word ‘‘gillnet’’ was not included in the 

titled description of the management 

measures, reading ‘‘Medium and large 

mesh’’. It is clear in the regulatory text 

these regulations are for both medium 

and large mesh gillnet gear. Therefore, 

this proposed rule corrects this 

omission in the two title descriptions by 

adding the word ‘‘gillnet’’, so the title 

would read ‘‘Medium and large mesh 

gillnets’’ for gear regulated under 

§ 229.35(d)(1)(i) and 229.35(d)(2)(i). 

Classification 

This proposed rule has been 

determined to be not significant under 

Executive Order 12866. 

NMFS determined this action is 

consistent to the maximum extent 

practicable with the enforceable policies 

of the approved coastal management 

program of North Carolina. This 

determination was submitted for review 

by the responsible state agencies under 

section 307 of the Coastal Zone 

Management Act on December 22, 2011. 

North Carolina concurred with the 

consistency determination in a letter 

dated January 23, 2012. 

This action contains policies with 

federalism implications that were 

sufficient to warrant preparation of a 

federalism summary impact statement 

under Executive Order 13132 and a 

federalism consultation with officials in 

the state of North Carolina. Accordingly, 

the Assistant Secretary for Legislative 

and Intergovernmental Affairs provided 

notice of the proposed action to the 

appropriate officials in North Carolina. 

NMFS determined this action is 

categorically excluded from the 

requirement to prepare an 

Environmental Assessment (EA) in 

accordance with sections 5.05b and 

6.03c.3(i) of NOAA’s Administrative 

Order (NAO) 216–6 for implementing 

the National Environmental Policy Act. 

Specifically, this proposed action, if 

implemented, permanently maintains, 

without modification, a current 

regulation that would not substantially 

change the regulation or have a 

significant impact on the environment. 

NMFS prepared an EA on the final rule 

(71 FR 24776, April 19, 2006) to 

implement the BDTRP, which included 

an analysis of the proposed action 

without time constraints. The EA 

analyzed all regulations in the final 

BDTRP of which the regulations 

addressed in this proposed rule were a 

component. The EA resulted in a 

finding of no significant impact. In 

accordance with section 5.05b of NAO 

216–6, the proposed regulations were 

determined to not likely result in 

significant impacts as defined in 40 CFR 

1508.27. This action does not trigger the 

exceptions to categorical exclusions 

listed in NAO 216–6, Section 5.05c. A 

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categorical exclusion memorandum to 

the file has been prepared. 

An Endangered Species Act section 7 

consultation was conducted on this 

action and found that it may affect, but 

is not likely to adversely affect, 

threatened and endangered species. 

There is no designated critical habitat 

under NMFS’ jurisdiction in the action 

area, so critical habitat was not affected. 

Furthermore, the only impacts from this 

action are expected to be beneficial to 

listed species because the proposed 

action will maintain reduced soak times 

in medium mesh gillnet fishing in North 

Carolina state waters. 

This proposed rule does not contain 

collection-of-information requirements 

subject to the Paperwork Reduction Act. 

The Chief Counsel for Regulation of 

the Department of Commerce certified 

to the Chief Counsel for Advocacy of the 

Small Business Administration that this 

proposed rule, if adopted, would not 

have a significant economic impact on 

a substantial number of small entities. 

The factual basis for this determination 

is as follows. 

The purpose of this proposed rule is 

to continue reducing serious injuries 

and mortalities to bottlenose dolphins 

incidental to commercial fishing 

operations and ensure serious injuries 

and mortalities do not exceed PBR 

levels, as mandated by the MMPA. The 

MMPA provides the statutory basis for 

this proposed rule. 

This proposed rule would not 

establish any new reporting, 

recordkeeping, or other compliance 

requirements. No duplicative, 

overlapping, or conflicting Federal rules 

have been identified. 

Initial and final regulatory flexibility 

analyses, dated April 2006, were 

prepared for the BDTRP. These analyses 

determined all commercial fishing 

entities using medium mesh gillnets in 

the manner and location encompassed 

by the proposed action implementing 

the BDTRP would be affected. Because 

this rule, if implemented, would 

continue the existing restrictions on this 

gear sector, all entities using this gear 

would potentially be directly affected. 

As detailed in the analyses for the 

2006 BDTRP, a total of 1,321 unique 

participants were identified as having 

recorded landings using medium mesh 

gillnet gear during the 2001 fishing 

season (November 2000–October 2001) 

in North Carolina. Total harvests with 

this gear were valued at approximately 

$13.8 million (nominal ex-vessel value), 

or approximately 18% of total fishing 

revenues by these entities of 

approximately $77 million (nominal exvessel value). The average annual 

revenue from the harvest of all marine 

species by these vessels was 

approximately $58,000. 

The Small Business Administration 

(SBA) has established size criteria for all 

major industry sectors in the U.S. 

including fish harvesters. A business 

involved in fish harvesting is classified 

as a small business if it is independently 

owned and operated, is not dominant in 

its field of operation (including its 

affiliates), and has combined annual 

receipts not in excess of $4.0 million 

(NAICS code 114111, finfish fishing) for 

all its affiliated operations worldwide. 

Based on the estimated average annual 

revenue of vessels using medium mesh 

gillnet gear in North Carolina from the 

2001 fishing season, the analyses 

conducted for the BDTRP determined 

all entities expected to be affected by 

the proposed action were small business 

entities. Comparable average revenue 

estimates for current entities in North 

Carolina using medium mesh gillnet 

gear are not available. However, 

although time has elapsed since the 

initial BDTRP analyses, no information 

has been identified to suggest economic 

performance in this sector has 

substantially improved since 2001, and 

the disparity between the 2001 average 

($58,000) and the SBA threshold ($4.0 

million) is sufficiently large to conclude 

participants in this sector of the 

commercial fishery remain small 

business entities. As a result, all 

commercial entities expected to be 

directly affected by this proposed rule, 

if implemented, are determined for the 

purpose of this analysis to be small 

business entities. 

Although this proposed rule, if 

implemented, would restrict the 

behavior of entities using medium mesh 

gillnets in North Carolina coastal state 

waters, it would not directly affect any 

current fishing revenues or fishing 

practices nor likely prevent fishermen 

from the harvesting the increasing spiny 

dogfish quotas as indicated below. The 

scope of this proposed rule is the same 

as analyzed in support of the 2006 

BDTRP. As detailed in the analyses 

provided supporting the 2006 BDTRP, 

the initial implementation of the 

restriction was estimated to result in an 

estimated reduction in ex-vessel 

revenue of approximately $296,000, or 

less than 1% of total ex-vessel revenue 

for the affected entities. This low impact 

was likely affected by the decline in 

spiny dogfish harvests, which have 

historically been the primary target of 

this gear in North Carolina. Spiny 

dogfish harvests declined from 

approximately 3.5 million pounds in 

2000 to less than 20,000 pounds per 

year in 2005 and 2006. As discussed in 

the preamble, landings of spiny dogfish 

in North Carolina began increasing in 

2009. For the 2010–2011 fishing season, 

181 vessels recorded spiny dogfish 

landings of approximately 1.71 million 

pounds valued at approximately 

$257,000. The recent increase in spiny 

dogfish harvests demonstrates 

fishermen have adapted their fishing 

practices and are successfully 

harvesting spiny dogfish despite the 

current BDTRP gear restrictions. 

Therefore, the proposed continuation of 

these restrictions would not cause 

fishermen to lose actual income, but 

would only preclude potential future 

income from fishing with medium mesh 

gillnets in the manner subject to this 

proposed regulation. Because this 

proposed rule, if implemented, would 

only continue the prohibition of a 

fishing practice that has not been used 

since 2006, current revenues or profits 

of any small entity would not be 

affected because this action is not 

expected to prohibit fishermen from 

harvesting spiny dogfish quotas. 

Further, current participants in the 

affected fishery have demonstrated the 

ability to successfully harvest the 

primary target species for the affected 

gear, and fishing revenues for the target 

species have been increasing despite the 

BDTRP restriction. Therefore, this 

proposed rule, if implemented, would 

not be expected to have a significant, 

direct adverse economic effect on the 

profits of a substantial number of small 

entities. 

Because this proposed rule, if 

implemented, is not expected to have 

any direct adverse economic impact on 

a substantial number of small entities, 

an initial regulatory flexibility analysis 

is not required and none has been 

prepared. 

References Cited 

ASMFC. 2002. Interstate Fishery 

Management Plan for Spiny Dogfish. 

Fishery Management Report No. 40 of 

the Atlantic States Marine Fisheries 

Commission. Prepared by the Spiny 

Dogfish Plan Development Team. 

ASMFC. 2007. Review of the Atlantic States 

Marine Fisheries Commission’s Interstate 

Fishery Management Plan for Spiny 

Dogfish (Squalus acanthias) May 2006– 

April 2007 fishing year. Prepared by the 

Spiny Dogfish Plan Review Team, 

ASMFC. 

ASMFC. 2008. Addendum II to the Interstate 

Fishery Management Plan for Spiny 

Dogfish. Atlantic States Marine Fisheries 

Commission, approved October 2008. 

ASMFC. 2011a. Addendum III to the 

Interstate Fishery Management Plan for 

Spiny Dogfish. Atlantic States Marine 

Fisheries Commission. April 2011. 

ASMFC. 2011b. Review of the Atlantic States 

Marine Fisheries Commission’s Interstate 

Fishery Management Plan for Spiny 

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Dogfish (Squalus acanthias) May 2009— 

April 2010 Fishing Year. Prepared by the 

Spiny Dogfish Plan Review Team, 

ASMFC. 

Byrd, B.L, A.A. Hohn, F.H. Munden, G.N. 

Lovewell, and R.E. LoPiccolo. 2008. 

Effects of Commercial Fishing 

Regulations on Stranding Rates of 

Bottlenose Dolphins (Tursiops 

truncatus). Fish. Bull. 106:72–81. 

NCDMF. 2008. Overview of North Carolina 

Spiny Dogfish Regulations and 

Commercial Landings. North Carolina 

Department of Natural Resources, March 

2008. 

NMFS. Personal Communication. National 

Marine Fisheries Service, Fisheries 

Statistic Division, Silver Spring, MD. 

NMFS. 2006. 43rd SAW Assessment 

Summary Report (43rd SAW): 43rd SAW 

assessment report. US Dep Commer, 

Norteast Fish Sci Cent Ref Doc 06–25; 

200. November 2006. 

NOAA Southeast Stranding Data. 2010. 

NOAA National Marine Mammal Health 

and Stranding Response Database 

unpublished data, accessed March 1, 

2011 date. 

Rago, P.J. and K.A. Sosebee. 2010. Biological 

Reference Points for Spiny Dogfish. 

Department of Commerce, National 

Oceanic and Atmospheric 

Administration, National Marine 

Fisheries Service. Northeast Fisheries 

Science Center Reference Document 10– 

06. May 2010. 

Rossman, M. and D. Palka. 2004. A Review 

of Coastal Bottlenose Dolphin Bycatch 

Mortality Estimates in Relation to the 

Potential Effectiveness of the Proposed 

BDTRP. Prepared by NMFS–NEFSC for 

the BDTRT. BDTRT document number 

1–13–05f. 

Waring, G.T., E. Josephson, C.P. FairfieldWalsh, and K. Maze-Foley, editors. 2007. 

U.S. Atlantic and Gulf of Mexico Marine 

Mammal Stock Assessments—2007. 

NOAA Tech Memo NMFS NE 205; 415 

p. 

Waring, G.T., E. Josephson, K. Maze-Foley, 

and P.E. Rosel, editors. 2011. U.S. 

Atlantic and Gulf of Mexico Marine 

Mammal Stock Assessments—2010. 

NOAA Tech Memo NMFS NE 219; 598 

p. 

List of Subjects in 50 CFR Part 229 

Administrative practice and 

procedure, Confidential business 

information, Fisheries, Marine 

mammals, Reporting and recordkeeping 

requirements. 

Dated: April 5, 2012. 

Alan D. Risenhoover, 

Acting Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service. 

For the reasons set out in the 

preamble, 50 CFR part 229 is proposed 

to be amended as follows: 

PART 229—AUTHORIZATION FOR 

COMMERCIAL FISHERIES UNDER THE 

MARINE MAMMAL PROTECTION ACT 

OF 1972 

1. The authority citation for 50 CFR 

part 229 continues to read as follows: 

Authority: 16. U.S.C. 1361 et seq.; 50 CFR 

229.32(f) also issued under 16 U.S.C. 1531 et 

seq. 

2. In § 229.35 paragraph (a), the 

definitions of South Carolina, Georgia, 

and Florida waters and Southern North 

Carolina State waters in paragraph (b), 

and paragraphs (d)(1)(i), (d)(2)(i), 

(d)(4)(ii), and (d)(5)(i) are revised to read 

as follows: 

§ 229.35 Bottlenose Dolphin Take 

Reduction Plan. 

(a) Purpose and scope. The purpose of 

this section is to implement the 

Bottlenose Dolphin Take Reduction 

Plan (BDTRP) to reduce incidental 

mortality and serious injury of stocks of 

bottlenose dolphins within the Western 

North Atlantic coastal morphotype in 

specific Category I and II commercial 

fisheries from New Jersey through 

Florida. Specific Category I and II 

commercial fisheries within the scope of 

the BDTRP are indentified and updated 

in the annual List of Fisheries. Gear 

restricted by this section includes small, 

medium, and large mesh gillnets. The 

geographic scope of the BDTRP is all 

tidal and marine waters within 6.5 

nautical miles (12 km) of shore from the 

New York-New Jersey border southward 

to Cape Hatteras, North Carolina, and 

within 14.6 nautical miles (27 km) of 

shore from Cape Hatteras, southward to, 

and including the east coast of Florida 

down to the fishery management 

council demarcation line between the 

Atlantic Ocean and the Gulf of Mexico 

(as described in § 600.105 of this 

chapter). 

(b) * * * 

South Carolina, Georgia, and Florida 

waters means the area consisting of all 

marine and tidal waters, within 14.6 

nautical miles (27 km) of shore, between 

33°51′07.9′′ N. (North Carolina/South 

Carolina border at the coast and as 

described by ‘‘Off South Carolina’’ in 

§ 622.2 of this title) and the fishery 

management council demarcation line 

between the Atlantic Ocean and the 

Gulf of Mexico (as described in 

§ 600.105 of this chapter). 

* * * * * 

Southern North Carolina State waters 

means the area consisting of all marine 

and tidal waters, within 3 nautical miles 

(5.56 km) of shore, bounded on the 

north by 34°35.4′ N. (Cape Lookout, 

North Carolina) and on the south by 

33°51′07.9′′ N. (North Carolina/South 

Carolina border at the coast and as 

described by ‘‘Off South Carolina’’ in 

§ 622.2 of this title). 

* * * * * 

(d) * * * 

(1) * * * 

(i) Medium and large mesh gillnets. 

From June 1 through October 31, in New 

Jersey, Delaware, and Maryland State 

waters, no person may fish with any 

medium or large mesh anchored gillnet 

gear at night unless such person remains 

within 0.5 nautical mile (0.93 km) of the 

closest portion of each gillnet and 

removes all such gear from the water 

and stows it on board the vessel before 

the vessel returns to port. 

* * * * * 

(2) * * * 

(i) Medium and large mesh gillnets. 

From June 1 through October 31, in 

Southern Virginia State waters and 

Northern Virginia State waters, no 

person may fish with any medium or 

large mesh anchored gillnet gear at night 

unless such person remains within 0.5 

nautical mile (0.93 km) of the closest 

portion of each gillnet and removes all 

such gear from the water and stows it on 

board the vessel before the vessel 

returns to port. 

* * * * * 

(4) * * * 

(ii) Medium mesh gillnets. From 

November 1 through April 30 of the 

following year, in Northern North 

Carolina State waters, no person may 

fish with any medium mesh gillnet at 

night. 

* * * * * 

(5) * * * 

(i) Medium mesh gillnets. From 

November 1 through April 30 of the 

following year, in Southern North 

Carolina State waters, no person may 

fish with any medium mesh gillnet at 

night. 

* * * * * 

[FR Doc. 2012–8770 Filed 4–11–12; 8:45 am] 

BILLING CODE 3510–22–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 622 

[Docket No. 120213124–2225–01] 

RIN 0648–BB91 

Fisheries of the Caribbean, Gulf of 

Mexico, and South Atlantic; Reef Fish 

Fishery of the Gulf of Mexico; Red 

Snapper Management Measures 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

mstockstill on DSK4VPTVN1PROD with PROPOSALS