49634 Federal Register / Vol. 73, No. 164 / Friday, August 22, 2008 / Proposed Rules 

any other species protected under the 

Endangered Species Act, the Migratory 

Bird Treaty Act, or the Bald and Golden 

Eagle Protection Act, that person must 

immediately report the take to the 

nearest Ecological Services office of the 

Fish and Wildlife Service. See http:// 

www.fws.gov/where/ to find the location 

of the nearest Ecological Services office. 

(4) We may suspend or revoke the 

authority of any agency or individual to 

undertake purple swamphen control if 

we find that agency or individual has, 

without an applicable permit, taken 

actions that may take Federally listed 

threatened or endangered species or any 

bird species protected by the Bald and 

Golden Eagle Protection Act or the 

Migratory Bird Treaty Act (see § 10.13 of 

subchapter A of this chapter for the list 

of protected migratory bird species). 

Dated: August 8, 2008. 

David M. Verhey, 

Acting Assistant Secretary for Fish and 

Wildlife and Parks. 

[FR Doc. E8–19552 Filed 8–21–08; 8:45 am] 

BILLING CODE 4310–55–P 

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. 

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: 

• Electronic Submissions: Submit all 

electronic public comments via the 

Federal eRulemaking Portal http:// 

www.regulations.gov. 

• Facsimile (fax): 727 824–5309, Attn: 

Assistant Regional Administrator, 

Protected Resources. 

• 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/inter

actions/trt/bdtrp.htm 

FOR FURTHER INFORMATION CONTACT: 

Stacey Carlson, NMFS, Southeast 

Region, 727–824–5312, 

Stacey.Carlson@noaa.gov; or Melissa 

Andersen, NMFS, Protected Resources, 

301–713–2322, 

Melissa.Andersen@noaa.gov. 

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 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. The longterm 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 


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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 selfsustaining 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 WinterMixed 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 


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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 WinterMixed 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 stateby-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 WinterMixed 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 


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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 exvessel 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, 


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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 NMFSNEFSC 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.; 

§ 220.32(f) also issued under 16 U.S.C. 1531 

et seq. 

2. In § 229.35 paragraphs (d)(4)(ii) and 

(d)(5)(i) are revised to read as follows: 

§ 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 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 665 

[Docket No. 070719388–81094–02] 

RIN 0648–AV29 

Fisheries in the Western Pacific; 

Crustacean Fisheries; Deepwater 

Shrimp 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Proposed rule; request for 

comments. 

SUMMARY: This proposed rule would 

designate deepwater shrimp of the 

genus Heterocarpus as management unit 

species (MUS), and require Federal 

permits and data reporting for 

deepwater shrimp fishing in Federal 

waters of the western Pacific. The 

proposed rule is intended to improve 

information on deepwater shrimp 


yshivers on PROD1PC62 with PROPOSALS