[Federal Register Volume 73, Number 164 (Friday, August 22, 2008)]
[Proposed Rules]
[Pages 49634-49638]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-19580]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 229

[Docket No. 080407531-8569-01]
RIN 0648-AW68


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.

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SUMMARY: The National Marine Fisheries Service (NMFS) proposes to amend 
the Bottlenose Dolphin Take Reduction Plan's (BDTRP) implementing 
regulations by extending, for an additional three years, fishing 
restrictions expiring on May 26, 2009. This action will continue, 
without modification, current nighttime fishing restrictions of medium 
mesh gillnets operating in the North Carolina portion of the Winter-
Mixed Management Unit during the winter. Members of the Bottlenose 
Dolphin Take Reduction Team (BDTRT) recommended these regulations be 
extended for an additional three years to ensure continued conservation 
of the Western North Atlantic coastal bottlenose dolphin stock, should 
a directed spiny dogfish fishery reemerge in North Carolina.

DATES: Written comments on the proposed rule must be received no later 
than 5 p.m. eastern time on September 22, 2008.

ADDRESSES: You may submit comments, identified by the Regulatory 
Information Number (RIN) 0648-AW68, by any of the following methods:
    <bullet> Electronic Submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal http://www.regulations.gov.
    <bullet> Facsimile (fax): 727 824-5309, Attn: Assistant Regional 
Administrator, Protected Resources.
    <bullet> Mail: Assistant Regional Administrator for Protected 
Resources, NMFS, 263 13th Avenue South, St. Petersburg, FL 33701-5505.
    Instructions: All comments received are a part of the public record 
and will generally be posted to http://www.regulations.gov without 
change. All Personal Identifying Information (for example, name, 
address, etc.) voluntarily submitted by the commenter may 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, Excel, WordPerfect, or 
Adobe PDF file formats only.
    The BDTRP, Environmental Assessment, BDTRT meeting summaries, and 
background documents can be downloaded from the Take Reduction Plan web 
site at: http://www.nmfs.noaa.gov/pr/interactions/trt/bdtrp.htm

FOR FURTHER INFORMATION CONTACT: Stacey Carlson, NMFS, Southeast 
Region, 727-824-5312, <a href="/cdn-cgi/l/email-protection#5201263331372b7c1133203e213d3c123c3d33337c353d24"><span class="__cf_email__" data-cfemail="184b6c797b7d61365b796a746b77765876777979367f776e">[email protected]</span></a>; or Melissa Andersen, 
NMFS, Protected Resources, 301-713-2322, <a href="/cdn-cgi/l/email-protection#430e262f2a3030226d022d27263130262d032d2c22226d242c35"><span class="__cf_email__" data-cfemail="bff2dad3d6ccccde91fed1dbdacdccdad1ffd1d0dede91d8d0c9">[email protected]</span></a>. 
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:

BDTRP and Medium Mesh Gillnet Restrictions

    Section 118(f)(1) of the Marine Mammal Protection Act (MMPA) 
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 defines 
a strategic stock as 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 under the 
Endangered Species Act (ESA) in the foreseeable future; or (3) which is 
listed as threatened or endangered under the ESA or as a depleted 
species under the MMPA (16 U.S.C. 1362(2)). 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 that have frequent or occasional incidental mortality and 
serious injury of marine mammals, respectively.
    As specified in the MMPA, the short-term goal of a take reduction 
plan is to reduce, within six months of its implementation, the 
incidental mortality or serious injury of marine mammals taken in the 
course of commercial fishing operations to levels less than PBR for the 
stock. 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 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 management measures to 
reduce serious injury and mortality of the Western North Atlantic 
coastal bottlenose dolphin stock (dolphin) (Tursiops truncatus), a 
strategic stock, in nine Category I and II commercial fisheries 
operating within the dolphin's distributional range. The Western North 
Atlantic coastal bottlenose dolphin stock is split into seven spatial 
and temporal management units because of its biological complexity, and 
management measures in the BDTRP are applied by management unit. Both 
the regulatory and non-regulatory

[[Page 49635]]

management measures are designed to meet the BDTRP's short-term goal 
and provide a framework for meeting the long-term goal.
    The regulatory management measures in the BDTRP include seasonal 
gillnet restrictions, gear proximity requirements, and gear length 
restrictions. The specific regulatory measures addressed in this 
proposed rule are nighttime medium mesh (greater than 5-inch (12.7 cm) 
to less than 7-inch (17.8 cm) stretch) gillnet fishing prohibitions in 
North Carolina state waters from November 1 through April 30, annually, 
which will expire on May 26, 2009.
    The intent of the medium mesh prohibitions was to address 
bottlenose dolphin mortalities associated with the spiny dogfish 
(Squalus acanthias) fishery in the North Carolina portion of the 
Winter-Mixed Management Unit by reducing gillnet soak times. In the 
winter (November 1 through April 30), three of the seven BDTRP 
Management Units overlap along the coasts of southern Virginia and 
North Carolina to form the Winter-Mixed Management Unit. The medium 
mesh gillnet prohibitions were only implemented in the North Carolina 
portion of the Winter-Mixed Management Unit because all the observed 
dolphin mortalities associated with the spiny dogfish fishery occurred 
in North Carolina state waters.
    The medium mesh gillnet restrictions were implemented with an 
expiration date of May 26, 2009. An expiration date was included for 
two reasons: (1) Spiny dogfish fishery management plans (FMPs) 
implemented prior to development of the BDTRP had the unintentional but 
beneficial effect of reducing serious injury and mortality of dolphins; 
however, the BDTRT recognized that any future changes to the FMPs may 
reduce or reverse these benefits; and (2) to provide assurance that the 
BDTRT would regularly review the status of the dynamic spiny dogfish 
fishery and any implications on dolphin bycatch estimates should a 
directed fishery reemerge, especially in North Carolina.

Spiny Dogfish Fishery Management Plans and the North Carolina Fishery

    The spiny dogfish fishery is actively managed by FMPs in both 
Federal and state waters. NMFS listed spiny dogfish as overfished in 
1998 (63 FR 17820, April 10, 1998). In January 2000, a Federal FMP (65 
FR 1557, January 11, 2000) was issued by NMFS 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 also has separate possession trip 
limits, specified annually, to allow for bycaught spiny dogfish to be 
sold while preventing a directed fishery (63 FR 17820, April 10, 1998; 
ASFMC, 2007a).
    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 
for the same two fishing periods (ASFMC, 2007a). All commercial 
landings count toward the interstate FMP quota regardless of where the 
fish are caught (i.e., state or Federal waters) (ASFMC, 2002).
    The specification of commercial quotas, established annually and 
split semi-annually, is intended to provide each state with an 
opportunity to land low levels of spiny dogfish bycatch, while helping 
achieve healthy and self-sustaining populations. Because of the 
species' annual migratory pattern along the United State's east coast, 
however, quota overages often occur in the northern states associated 
with harvest Period 1. These overages result in reduced or restricted 
harvest for southern states in Period 2 (ASFMC, 2002). For example, 
when the fishery was still active in North Carolina state waters, peak 
harvests occurred during February and March, corresponding to harvest 
Period 2. However, as a result of the semi-annual quotas, there has not 
been a directed spiny dogfish fishery since the FMPs' implementation, 
with the exception of 2003/2004 when a state-by-state quota was 
established for state waters allowing a small-scale directed fishery 
(NCDMF, 2008).
    Following implementation of the FMPs, the directed spiny dogfish 
fishery in North Carolina was virtually eliminated, as seen by low 
spiny dogfish landings and reduced soak times. Spiny dogfish landings 
averaged 6,703,985 pounds from 1995 to 2000, which was 16.9 percent of 
the coastwide commercial landings. From 2000 to 2006, after 
implementation of the FMPs, landings in North Carolina averaged 92,169 
pounds, representing 4.6 percent of the coastwide commercial landings 
(NMFS, Fisheries Statistic Division, pers. comm.). Observer data also 
indicate that soak times changed because of the low trip limits for the 
fishery; the average soak time decreased from 13.5 hours (1996-2000) to 
1.5 hours (2001-2006).

Dolphin Mortalities Associated with the Spiny Dogfish Fishery

    The implementation of the spiny dogfish FMPs and subsequent effort 
reductions had the inadvertent but beneficial effect of reducing 
dolphin serious injuries and mortalities. From 1996 to 2000 in the 
North Carolina portion of the Winter-Mixed Management Unit, the medium 
mesh spiny dogfish fishery was the primary contributor to total dolphin 
mortality (Rossman and Palka, 2004). The mean annual mortality estimate 
for the Winter-Mixed Management Unit from 1996 to 2000 was 180, which 
exceeded the PBR of 68 (NMFS, 2007; Rossman and Palka, 2004). Sixty-
three percent, or 146 of the 180 dolphin serious injuries and 
mortalities, were attributed to the North Carolina portion of the 
Winter-Mixed Management Unit. Conversely, from 2001 to 2002 in the 
Winter-Mixed Management Unit, small (less than or equal to 5-inch (12.7 
cm) stretched) and large (greater than or equal to 7-inch (17.8 cm) 
stretched) mesh gillnets were the primary contributors to total dolphin 
serious injury and mortality. During 2000 to 2001, mean annual 
estimated dolphin mortality decreased to 59 dolphins, of which, only 
19, or 24 percent, were attributed to the North Carolina portion of the 
Winter-Mixed Management Unit. This reduction in estimated dolphin 
mortality was a result of reduced landings and lower bycatch rates 
across all mesh size categories, including the North Carolina spiny 
dogfish fishery following implementation of the FMPs (Rossman and 
Palka, 2004).
    Recent declines in winter dolphin standings in North Carolina 
support this trend. Byrd et al. (2008) compared the number of dolphins 
that stranded in North Carolina with conclusive signs of a fishery 
interaction during the winter from November 1997 through April 2005 and 
found a significant decrease in dolphin strandings after the FMPs were 
implemented. Updated stranding data for winter 2005/2006 and 2006/2007 
showed continued decreases in dolphin strandings, with no more than one 
dolphin per winter stranding with signs of fishery interactions 
(Lovewell and Byrd, 2007).
    When the BDTRT deliberated in 2002 and 2003 on their consensus 
recommendations for a draft BDTRP, they recognized the inadvertent 
benefit the spiny dogfish FMPs had in reducing dolphin serious injuries 
and mortalities incidental to this fishery. However, the

[[Page 49636]]

dual-nature by which the spiny dogfish fishery is managed both state 
and federal entities, coupled with the potential for the FMPs to change 
as the fish population rebuilds, results in a process that is dynamic 
and unreliable for dolphin conservation. Therefore, the BDTRT 
recommended the nighttime medium mesh gillnet prohibitions in the North 
Carolina portion of the Winter-Mixed Management Unit be included in the 
BDTRP to provide continued dolphin conservation. The BDTRT also 
recommended an expiration date on the prohibition to ensure regular 
review of the fishery should the fishery dynamics change.
    The prohibition was included in the BDTRP because it was 
anticipated to maintain the recently reduced dolphin mortality within 
the spiny dogfish fishery. The nighttime medium mesh gillnet fishing 
prohibitions are important for dolphin conservation because they limit 
soak times to approximately 12 hours. Before implementation of the 
FMPs, long soak durations associated with the spiny dogfish fishery 
were likely a contributing factor to the fishery's high dolphin bycatch 
rate. Observer data prior to the FMPs' implementation document three 
mortalities in medium mesh spiny dogfish nets with soak times greater 
than 12 hours and only one mortality with a soak time of less than 12 
hours. Soak times were significantly decreased following the 
implementation of the FMPs, and since 2000, there have been no observed 
takes associated with the fishery. Nighttime fishing in the medium mesh 
gillnet fishery was prohibited under the BDTRP to prevent a return to 
the fishery's pre-FMP fishing practices (i.e., long soak times) should 
spiny dogfish quotas be increased or reallocated, resulting in a 
directed fishery in North Carolina (Rossman and Palka, 2004).

Recent Developments in the Spiny Dogfish Fishery

    The 2006 estimate of fishing mortality for spiny dogfish indicated 
the population was not overfished and overfishing was not occurring 
(NMFS, 2006). Both FMPs are reviewed annually based on the most recent 
estimate of spiny dogfish fishing mortality. ASMFC modified their 
quotas and trips limits for the 2006/2007 fishing year based on the 
2006 estimate of fishing mortality; however, the Federal specifications 
were unchanged. This was the first time since 2002 that the coastwide 
commercial quota was established at different levels for the state and 
Federal FMPs. Specifically, for the 2006/2007 fishing year, the Federal 
FMP quota remained at 4 million pounds with 600 pound state possession 
limits to discourage a directed fishery (71 FR 40436, July 17, 2006). 
However, the interstate FMP specifications were modified by increasing 
the quota from 4 to 6 million pounds with 600 pound state possession 
limits (ASMFC, 2007a). This left two million pounds for harvest in 
state waters once the Federal waters were closed. No changes were made 
for the 2007/2008 fishing year for either FMP. For the 2008/2009 
fishing year, the state water quota increased to eight million pounds 
with possession trip limits up to 3,000 pounds (ASMFC, 2007b); the 
federal water quota and possession limits remained unchanged (71 FR 
40436, July 17, 2006). As the spiny dogfish population rebuilds, it is 
anticipated that the quotas will continue to be increased accordingly.
    Despite the recent increase in quotas, the spiny dogfish fishery in 
North Carolina is still almost nonexistent, as evidenced by the 
continued low landings. The following major factors contribute to 
preventing a viable spiny dogfish fishery in North Carolina:
    (1) The total available FMP quotas are separated according to 
season and, thus, region. Although this management scheme is intended 
to allocate available fishery resources in a biologically sustainable 
manner that is equitable to all fishermen, it is difficult to assign 
quota overages on a state level because of the seasonal and regional 
quota separation. Specifically, the fishing year beginning on May 1 
provides more opportunity for the northern states to intercept spiny 
dogfish before their seasonal migration south. Therefore, northern 
states generally land both the entire Federal and ASMFC quotas before 
the spiny dogfish migrate south to North Carolina (NCDMF, 2008), 
resulting in Period 2 fishery closures in November and December (66 FR 
58074, November 20, 2001; 67 FR 70027, November 20, 2002; 71 FR 76222, 
December 20, 2006; 72 FR 64952, November 19, 2007);
    (2) Following the implementation of the FMPs, the mid-Atlantic 
processors closed, leaving only two processors in New England (ASFMC, 
2002). At times, the processing plants are saturated with spiny dogfish 
harvested from states north of North Carolina. Therefore, when spiny 
dogfish arrive in North Carolina waters, there is no market to harvest 
and process the fish; and
    (3) If a portion of the quota were available when spiny dogfish 
arrive in North Carolina waters, the current possession trip limit of 
600 pounds in federal waters or even 3,000 pounds in state waters may 
still not allow for a directed spiny dogfish fishery. North Carolina 
fishermen indicated that trip limits of at least 4,000 pounds would be 
necessary to make the fishery feasible (NCDMF, 2008). In a 
predominantly bycatch fishery, it is not cost effective for fishermen 
or dealers to truck spiny dogfish to the processors in New England, 
given high fuel costs and the small amount of fish permitted to be 
harvested per trip.
    These factors may continue to prevent a directed spiny dogfish 
fishery in North Carolina, despite the recent increases in the 
coastwide commercial quota. However, the North Carolina Department of 
Marine Fisheries (NCDMF) believes state-by-state quotas under the 
interstate FMP would allow a more equitable allocation of the quota and 
quota overage or transfer provisions (NCDMF, 2008). ASMFC will consider 
a state-by-state allocation approach during its August 2008 meeting. If 
state-by-state quotas are considered and adopted by ASMFC and quotas 
and trip limits continue to increase, a directed spiny dogfish fishery 
in North Carolina may emerge in the future.

Bottlenose Dolphin Take Reduction Team Recommendations

    The BDTRT met on June 19-20, 2007, in Annapolis, Maryland for the 
first time since the BDTRP's implementation. The purpose of this 
meeting was to monitor the effectiveness of the BDTRP and discuss 
potential modifications to any measures that may not be reducing 
dolphin serious injuries and mortalities. Among other things, the BDTRT 
was provided with updates on the spiny dogfish fishery, its quotas 
under both FMPs, and spiny dogfish landings and gear practices for the 
past five years.
    The BDTRT recommended by consensus that the nighttime medium mesh 
gillnet prohibitions in the Winter-Mixed Management Unit for North 
Carolina be extended for an additional three years, with an update on 
the status of the spiny dogfish fishery provided to the team at least 
every two years. The BDTRT agreed it is important that the BDTRP medium 
mesh regulations remain in place because of the historically high 
dolphin bycatch rates in the medium mesh spiny dogfish fishery and the 
uncertainty in the fishery and fishing status. Extending the medium 
mesh prohibition timeframe for another three years, rather than 
removing the expiration date entirely, also ensures the BDTRT will 
periodically review the status of the spiny dogfish fishery and 
recommend revisions to the BDTRP, as necessary. NMFS agrees extending 
the prohibitions is necessary to ensure continued conservation of 
dolphins due to high

[[Page 49637]]

serious injury and mortality rates associated with past spiny dogfish 
fishery practices and potential future changes in the FMPs. NMFS also 
agrees extending these prohibitions until 2012 is necessary to ensure 
the BDTRT continues to reexamine the spiny dogfish fishery and 
determine if these requirements are still required or sufficient given 
the dynamic nature of the fishery and its management.

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.
    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 in accordance with 
sections 5.05b and 6.03c.3(i) of NOAA's Administrative Order (NAO) 216-
6. Specifically, this proposed action extends the timeframe of a 
current regulation that, if implemented, would not substantially change 
the regulation or have a significant impact on the environment. NMFS 
prepared an Environmental Assessment (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 action were a component. The EA resulted in 
a finding of no significant impact. In accordance with section 5.05b of 
the NAO, 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 categorical exclusion memorandum to the file has 
been prepared.
    An ESA 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 or adversely modify designated 
critical habitat under NMFS' jurisdiction. NMFS expects this action to 
be beneficial to listed species because it 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.
    As required by section 603 of the Regulatory Flexibility Act (5 
U.S.C. 601 et seq.), an initial regulatory flexibility analysis (IRFA) 
was prepared, which is based on the Environmental Assessment, 
Regulatory Impact Review, and Final Regulatory Flexibility Act Analysis 
for the BDTRP, dated April 2006. The IRFA describes the economic impact 
this proposed rule, if adopted, would have on small entities. A 
description of the action, why it is being considered, and the legal 
basis for this action are included in the preamble of this proposed 
rule. A summary of the analysis follows.
    The purpose of this proposed rule is to reduce 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 specific objectives of this 
proposed action are to: (1) meet the BDTRP's short- and long-term 
objectives by maintaining reductions in serious injuries and moralities 
of dolphins associated with the medium mesh spiny dogfish fishery in 
North Carolina state waters; and (2) ensure the BDTRT is provided with 
continued opportunities to review the status of the dynamic spiny 
dogfish fishery and recommend revisions to the BDTRP, as necessary. 
These objectives are expected to be accomplished by continuing reduced 
soak times in medium mesh gillnet gear in North Carolina via the 
seasonal, nighttime medium mesh gear prohibitions for an additional 
three years. The MMPA provides the statutory basis for the proposed 
rule.
    No duplicative, overlapping, or conflicting Federal rules have been 
identified.
    The proposed rule will not impose any additional reporting, 
recordkeeping, or compliance requirements. The compliance requirements 
of the proposed rule are as described in this anaylsis.
    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 percent of total fishing 
revenues by these entities of approximately $77 million (nominal ex-
vessel value). The average annual revenue from the harvest of all 
marine species by these vessels was approximately $58,000.
    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. All 
medium mesh gillnet commercial fishing operating in the manner and 
location encompassed by the proposed action would be affected by the 
proposed rule. The available estimate of the average annual revenues by 
vessels operating in the medium mesh gillnet commercial fisheries in 
North Carolina provided above ($58,000) is from the 2001 fishing 
season. Since that time, as a result of the implementation of the FMP, 
spiny dogfish fishery revenues have decreased. Therefore, we determined 
that all entities affected by the proposed rule are small businesses.
    All business entities participating in the medium mesh gillnet 
fishery in North Carolina are considered small entities; therefore, the 
issue of disproportional impacts between large and small entities as a 
result of the proposed action does not arise.
    Information on the current profit profile of participants in the 
North Carolina medium mesh gillnet fishery is not available. Inferences 
on the effects of the proposed rule on profitability of the impacted 
small entities, however, may be drawn from examination of the expected 
impacts on ex-vessel revenues. In 2001, total costs associated with 
harvest reductions (lost ex-vessel revenue) for the medium mesh gillnet 
fisheries in North Carolina during the winter were estimated to be 
approximately $296,000 for the initial implementation of the 
prohibition in the BDTRP. This reduction in ex-vessel revenues 
represented less than 1 percent of total ex-vessel revenues for the 
entities that used this gear in North Carolina during the winter for 
the 2001 fishing year. Updated analyses are not available. Spiny 
dogfish were the primary target of the medium mesh gillnet sector, and 
the spiny dogfish fishery was essentially eliminated in 2000 through 
FMP actions. Since then,

[[Page 49638]]

there has not been a large-scale directed fishery for this species in 
North Carolina. This prevents the meaningful quantification of current 
revenues that might be foregone as a result of the proposed action, as 
well as the identification and description of fishing entities that 
might desire to re-enter the fishery should the fishery reemerge in 
North Carolina in the future.
    It should be emphasized that the proposed action would not directly 
affect any current fishing revenues or fishing practices because the 
medium mesh spiny dogfish gillnet fishery in North Carolina has not 
operated since the May 26, 2006, implementation of the BDTRP, nor in 
any substantive manner since 2000. Instead, the proposed continuation 
of the nighttime fishing prohibition would have an effect only if a 
directed spiny dogfish fishery reemerges in North Carolina because of 
changes in FMP actions. In that case, the proposed action would reduce 
potential medium mesh gillnet fishing opportunities by limiting soak 
times, and would limit the redevelopment and prosecution of a fishery 
that, prior to the FMPs and BDTRP, contributed a relatively minor share 
of fishing revenues to the fishery participants.
    NMFS considered two alternatives for the proposed action. The first 
alternative, the status quo, would continue current restrictions until 
May 26, 2009, when the medium mesh gillnet prohibitions in North 
Carolina would expire. This alternative would allow increased soak 
times associated with the directed spiny dogfish fishery and associated 
revenues, if FMP actions allow for the reemergence of a directed 
fishery in North Carolina. However, this alternative would not prevent 
future incidental mortality and serious injury to dolphins from 
extended soak time of medium mesh commercial gillnet gear, and, 
therefore, would not meet the objectives of the BDTRP. The second 
alternative, the proposed action, would continue, without modification, 
current nighttime medium mesh gillnet restrictions in North Carolina 
state waters during the winter for an additional three years (until May 
26, 2012). This alternative is a consensus recommendation of the BDTRT 
and would achieve the BDTRP's objectives, as mandated by the MMPA, by 
continuing to reduce serious injuries and mortalities of dolphins 
incidental to commercial gillnet fishing.

References

    ASFMC. 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.
    ASFMC. 2007a. 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. 2007b. ASMFC Spiny Dogfish Board Sets 2008/2009 Fishing Year 
Quota at 8 Million Pounds. Atlantic States Marine Fisheries Commission 
Press Release, October 30, 2007.
    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.
    Lovewell, G.N. and B.L. Byrd. 2007. Bottlenose Dolphins Recovered 
Inshore and on Ocean-Side Beaches of North Carolina from January 2005 
to April 2007. Prepared by NMFS-SEFSC for the BDTRT. BDTRT document 
number 6-19-07q.
    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. 2007. U.S. Atlantic and Gulf of Mexico Marine Mammal Stock 
Assessments 2006. U.S. Department of Commerce. NOAA Technical 
Memorandum NMFS-NE-201.
    NMFS. 2006. 43rd SAW Assessment Summary Report. U.S. Department of 
Commerce. Northeast Fishery Science Center Reference Document 06-14.
    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.

List of Subjects in 50 CFR Part 229

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

    Dated: August 18, 2008.
Samuel D. Rauch III,
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 part 229 continues to read as 
follows:

    Authority: 16 U.S.C. 1361 et seq.; Sec.  220.32(f) also issued 
under 16 U.S.C. 1531 et seq.
    2. In Sec.  229.35 paragraphs (d)(4)(ii) and (d)(5)(i) are revised 
to read as follows:


Sec.  229.35  Bottlenose Dolphin Take Reduction Plan.

* * * * *
    (d) * * *
    (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. This provision expires on 
May 26, 2012.
* * * * *
    (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. This provision expires on 
May 26, 2012.
* * * * *
[FR Doc. E8-19580 Filed 8-21-08; 8:45 am]
BILLING CODE 3510-22-S


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