[Federal Register Volume 71, Number 80 (Wednesday, April 26, 2006)]
[Rules and Regulations]
[Pages 24776-24797]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-3909]



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Part II





Department of Commerce





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National Oceanic and Atmospheric Administration



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50 CFR Parts 223 and 229



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

  Federal Register / Vol. 71, No. 80 / Wednesday, April 26, 2006 / 
Rules and Regulations  

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 223 and 229

[Docket No. 040903253-5337-02; I.D. 081104H]
RIN 0648-AR39


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

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

ACTION: Final rule.

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SUMMARY: NMFS issues this final rule to implement regulatory and non-
regulatory management measures to reduce the incidental mortality and 
serious injury (bycatch) of the western North Atlantic coastal 
bottlenose dolphin stock (dolphin) (Tursiops truncatus) in the mid-
Atlantic coastal gillnet fishery and eight other coastal fisheries 
operating within the dolphin's distributional range. This final rule 
also revises the large mesh size restriction under the mid-Atlantic 
large mesh gillnet rule for conservation of endangered and threatened 
sea turtles (mid-Atlantic large mesh gillnet rule) to provide 
consistency among Federal and state management measures. The measures 
contained in this final rule will implement gillnet effort reduction, 
gear proximity requirements, gear or gear deployment modifications, and 
outreach and education measures to reduce dolphin bycatch below the 
marine mammal stock's potential biological removal level (PBR).

DATES: The regulations in this final rule are effective on May 26, 
2006.

ADDRESSES: Copies of the Final Environmental Assessment (EA), Final 
Regulatory Flexibility Analysis (FRFA), the Bottlenose Dolphin Take 
Reduction Team (BDTRT) meeting summaries, progress reports, and 
complete citations for all references used in this rulemaking may be 
obtained from the persons listed under FOR FURTHER INFORMATION CONTACT 
or online at http://www.nmfs.noaa.gov/pr/interactions/trt/bdtrp.htm

FOR FURTHER INFORMATION CONTACT: Stacey Carlson, NMFS, Southeast 
Region, 727-824-5312, [email protected]; Kristy Long, NMFS, 
Protected Resources, 301-713-2322, [email protected]; or David 
Gouveia, NMFS, Northeast Region, 978-281-9280, [email protected]. 
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:

Background

    On November 10, 2004 (69 FR 65127), NMFS published a proposed rule 
(``the proposed rule'') to implement the Bottlenose Dolphin Take 
Reduction Plan (BDTRP), amend the mid-Atlantic large mesh gillnet rule 
published in the Federal Register on December 3, 2002 (67 FR 71895), 
and announce the availability of a draft EA on both actions. Two public 
hearings and a BDTRT meeting were conducted during the 90-day public 
comment period. The first public hearing was held on January 5, 2005, 
in New Bern, NC, and the second was held in conjunction with the 
January 13-14, 2005, BDTRT meeting in Virginia Beach, VA. Additionally, 
NMFS presented information on the proposed rule at meetings with the 
Commonwealth of Virginia and the Mid-Atlantic Fishery Management 
Council, Protected Resources Sub-Committee.
    The proposed rule combined two actions under different statutory 
authorities, to: (1) implement the BDTRP under the Marine Mammal 
Protection Act (MMPA); and (2) amend the Endangered Species Act (ESA) 
mid-Atlantic large mesh gillnet rule by extending the existing 
seasonally-adjusted closures to North Carolina and Virginia State 
waters and revise the large mesh gillnet size restriction from 8-inch 
(20.3 cm) stretched mesh or larger to 7-inch (17.8 cm) stretched mesh 
or larger. The two actions were combined under one rulemaking process 
because the seasonally-adjusted closures for North Carolina and 
Virginia State waters were originally believed necessary to not only 
reduce the serious injury and mortality of ESA-listed sea turtles, but 
also to help lower dolphin bycatch below the PBR level in those areas. 
The actions were also combined to provide consistency in management 
measures and facilitate interpretation by commercial fishermen. 
Further, NMFS believed that combining these measures would assist the 
Agency with establishing conservation management measures for all 
protected species under one action, regardless of under which authority 
the species is managed.
    NMFS reviewed the public comments received during the public 
comment period and analyzed additional information received after the 
proposed rule published. As a result, NMFS is finalizing the rule, with 
modifications from the proposed rule. The final rule includes the 
proposed take reduction measures to implement the BDTRP under the MMPA 
and the proposed amendment to the mid-Atlantic large mesh gillnet rule 
under the ESA by revising the large mesh gillnet size restriction to 7-
inch (17.8 cm) stretched mesh or larger, but several individual 
requirements were deemed unnecessary at the present time. Please see 
the Comments and Responses section for further details on the public 
comments received and the Changes from the Proposed Rule section for a 
summary of modifications from the proposed to final rule.

BDTRP under the MMPA

    Section 118(f)(1) of the MMPA (16 U.S.C. 1387(f)(1)) requires the 
preparation and implementation of take reduction plans (TRPs) for 
strategic marine mammal stocks that interact with Category I or II 
fisheries. The MMPA defines a strategic stock as a marine mammal stock: 
(1) for which the level of direct human-caused mortality exceeds the 
PBR level; (2) which, based on the best available scientific 
information, is declining and is likely to be listed as a threatened 
species under the ESA within the foreseeable future; or (3) which is 
listed as a threatened or endangered species under the ESA, or as 
depleted under the MMPA (16 U.S.C. 1362(19)). PBR, as defined by the 
MMPA, means the maximum number of animals, not including natural 
mortalities, that may be removed from a marine mammal stock while 
allowing that stock to reach or maintain its optimum sustainable 
population (16 U.S.C. 1362(20)). NMFS regulations at 50 CFR 229.2 
define a Category I fishery as a fishery that has frequent incidental 
mortality and serious injury of marine mammals; a Category II fishery 
as a fishery that has occasional incidental mortality and serious 
injury of marine mammals; and a Category III fishery as a fishery that 
has a remote likelihood of, or no known, incidental mortality and 
serious injury of marine mammals.
    The western North Atlantic coastal bottlenose dolphin is a 
strategic stock because fishery-related incidental mortality and 
serious injury exceeds the stock's PBR, and it is designated as 
depleted under the MMPA (see 50 CFR 216.15). Because it is a strategic 
stock that interacts with Category I and II fisheries, a TRP is 
required under the

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MMPA to reduce dolphin bycatch below PBR.
    The short-term goal of a TRP is to reduce, within 6 months of its 
implementation, the incidental mortality or serious injury of marine 
mammals incidentally taken in the course of commercial fishing 
operations to levels less than the PBR established for that stock. The 
long-term goal of a TRP is to reduce, within 5 years of its 
implementation, the incidental mortality or serious injury of marine 
mammals incidentally taken in the course of commercial fishing 
operations to insignificant levels approaching a zero mortality and 
serious injury rate, taking into account the economics of the fishery, 
the availability of existing technology, and existing state or regional 
fishery management plans.
    The BDTRT provided NMFS with Consensus Recommendations for a BDTRP, 
which included both regulatory and non-regulatory conservation measures 
to reduce incidental mortality and serious injury of coastal bottlenose 
dolphins, as mandated by the MMPA. The proposed rule outlined the 
BDTRT's regulatory and non-regulatory recommendations, with minor 
modifications, to implement the BDTRP. Discussions on modifications to 
the BDTRT's Consensus Recommendations as well as information regarding 
the history of the BDTRT and BDTRP development, biology of the western 
North Atlantic coastal bottlenose dolphin stock, and the alternatives 
considered in the EA are included in the preamble to the proposed rule 
and are not repeated here.
    To fulfill requirements of section 118 of the MMPA, regulatory and 
non-regulatory conservation measures are finalized herein to implement 
the BDTRP. Through implementation of its regulatory and non-regulatory 
measures, the BDTRP is designed to meet the short-term goal of a TRP, 
which is to reduce serious injury and mortality of coastal bottlenose 
dolphins within 6 months of implementation, and provide a framework for 
meeting the long-term goal. To determine if the short-term goal is met, 
NMFS will continue to monitor bycatch of dolphins through observer 
programs, stranded animal reports, abundance and distribution surveys, 
and other means. Ultimately, NMFS will evaluate the effectiveness of 
the TRP by monitoring the rate of serious injury and mortality of 
dolphins relative to the short- and long-term goals of the TRP. The 
BDTRP may be amended in the future to account for new information, 
updated data, or fishery changes.

Geographic Scope and Fisheries Affected by the BDTRP

    The geographic scope for the BDTRP is based on the range of the 
western North Atlantic coastal bottlenose dolphin stock. It includes 
all tidal and marine waters within 6.5 nautical miles (12 km) of shore 
from the New York-New Jersey border southward to Cape Hatteras, North 
Carolina, and within 14.6 nautical miles (27 km) of shore from Cape 
Hatteras southward to, and including, the east coast of Florida down to 
the fishery management council demarcation line between the Atlantic 
Ocean and the Gulf of Mexico (as described in Sec.  600.105 of this 
title). Within this overall geographic scope, seven spatial and 
temporal Management Units (MUs) were created based on the biological 
complexity of the coastal stock. These MUs are depicted in Figure 1 and 
include:
    1. Northern Migratory MU during the summer (May 1 - October 31), 
which is from the New York/New Jersey border to the Virginia/North 
Carolina border (north of36[deg]33'N.). In the winter (November 1 - 
April 30), the Northern Migratory, Northern North Carolina, and 
Southern North Carolina MUs overlap along the coast of North Carolina 
and southern Virginia and are referred to as the Winter Mixed MU;
    2. Northern North Carolina MU during the summer (May 1-October 31), 
which ranges from the Virginia/North Carolina border to Cape Lookout, 
North Carolina (36[deg]33'N. - 34[deg]35.4'N.). In the winter (November 
1 - April 30), the Northern Migratory, Northern North Carolina, and 
Southern North Carolina MUs overlap along the coast of North Carolina 
and southern Virginia and are referred to as the Winter Mixed MU;
    3. Southern North Carolina MU during the summer (May 1-October 31), 
which ranges from Cape Lookout, North Carolina to Murrell's Inlet, 
South Carolina (34[deg]35.4'N. - 33[deg]31.2'N.). In the winter 
(November 1 - April 30), the Northern Migratory, Northern North 
Carolina, and Southern North Carolina MUs overlap along the coast of 
North Carolina and southern Virginia and are referred to as the Winter 
Mixed MU;
    4. South Carolina MU during the summer (May 1 - October 31) and 
winter (November 1 - April 30), which ranges from Murrell's Inlet, 
South Carolina to the South Carolina/Georgia border (33[deg]31.2'N. - 
32[deg]03'N.);
    5. Georgia MU during the summer (May 1 - October 31) and winter 
(November 1 - April 30), which ranges from the Georgia/South Carolina 
border to the Georgia/Florida border (32[deg]03'N. - 30[deg]43.2'N.);
    6. Northern Florida MU during the summer (May 1 - October 31) and 
winter (November 1 - April 30), which ranges from the Georgia/Florida 
border to just north of Mosquito Lagoon, Florida (30[deg]43.2'N. - 
29[deg]23.4'N.); and
    7. Central Florida MU during the summer (May 1 - October 31) and 
winter (November 1 - April 30), which ranges from just north of 
Mosquito Lagoon, Florida south along the east coast of Florida (south 
of 29[deg]23.4'N.).
BILLING CODE 3510-22-S

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[GRAPHIC] [TIFF OMITTED] TR26AP06.007

BILLING CODE 3510-22-C
    The management measures developed for each MU facilitate fishery 
management, as well as dolphin conservation, because the commercial 
fisheries affected by the BDTRP also have spatial and temporal 
components. The BDTRP affects the following Category I and II fisheries 
via regulatory or non-regulatory components: the mid-Atlantic coastal 
gillnet fishery, Virginia pound net fishery, mid-Atlantic haul/beach 
seine fishery, Atlantic blue crab trap/pot fishery, North Carolina 
inshore gillnet fishery, North Carolina roe mullet stop net fishery, 
North Carolina long haul seine fishery, Southeastern U.S. Atlantic 
shark gillnet fishery, and Southeast Atlantic gillnet fishery.
    The BDTRP includes the regulatory management measures summarized in 
Table 1 for small, medium, and large mesh gillnets, which are organized 
by bottlenose dolphin MU and specific location, as well as non-
regulatory conservation measures. The final rule, however, does not 
contain the beach gear operating requirements (beach seine, stop net, 
and nearshore gillnet fisheries) for North Carolina or gear marking 
requirements for all affected fisheries that were contained in the 
proposed rule.

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                                                          TABLE 1: SUMMARY OF BDTRP REGULATIONS
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                                                                                          Gillnet Mesh Size Requirements (Stretched Mesh)
                                                                         -------------------------------------------------------------------------------
                     Fishing Area                        Management Unit   Small (<=5
                                                                             inch)        Medium (>5 in to <7 in)            Large ([gteqt]7 inch)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                         NJ-VA                           Summer Northern         None    Jun. 1-October 31: Anchored         Jun. 1-October 31: Anchored
                                                               Migratory                    gillnets- fishermen must     gillnets- fishermen must remain
                                                                                         remain within 0.5 nmi (0.93     within 0.5 nmi (0.93 km) of the
                                                                                       km) of the closest portion of        closest portion of each gear
                                                                                        each gear fished at night in    fished at night in State waters,
                                                                                          State waters, and any gear   and any gear fished at night must
                                                                                             fished at night must be       be removed from the water and
                                                                                          removed from the water and   stowed on board the vessel before
                                                                                          stowed on board the vessel         the vessel returns to port.
                                                                                        before the vessel returns to
                                                                                                               port.
        Cape Charles Light, VA to VA/NC border            Winter Mixed -         None                           None  November 1-December 31: No fishing
                                                                Virginia                                               at night in State waters, and, at
                                                                                                                        night, gear must be removed from
                                                                                                                       the water and stowed on board the
                                                                                                                                                 vessel.
           VA/NC border to Cape Lookout, NC              Summer Northern       May 1-        November 1-April 30: No    April 15-December 15: No fishing
                                                          North Carolina  October 31:      fishing at night in State    in State waters\1\; December 16-
                                                        AND Winter Mixed     In State     waters; sunset clause of 3    April 14: No fishing at night in
                                                          Northern North  waters, net    years for this restriction.     State waters without tie-downs.
                                                                Carolina  length must
                                                                              be less
                                                                              than or
                                                                             equal to
                                                                           1,000 feet
                                                                           (304.8 m).
 Cape Lookout, NC to the North Carolina/South Carolina   Summer Southern         None        November 1-April 30: No    April 15-December 15: No fishing
                       Border\2\                          North Carolina                   fishing at night in State    in State waters\1\; December 16-
                                                        AND Winter Mixed                  waters; sunset clause of 3    April 14: No fishing at night in
                                                        - Southern North                 years for this restriction.    State waters and, at night, gear
                                                                Carolina                                              must be removed from the water and
                                                                                                                             stowed on board the vessel.
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               SC, GA, and FL                       South Carolina, Georgia, Northern Florida, and       Year-round for all gillnet gear: Fishermen must
                                                                                   Central Florida     remain within 0.25 nautical mile (0.46 km) of the
                                                                                                     closest portion of their gear at all times in State
                                                                                                       and Federal waters within 14.6 nautical miles (27
                                                                                                     km) from shore. Gear must be removed from the water
                                                                                                        and stowed on board the vessel before the vessel
                                                                                                                                        returns to port.
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\1\ The dates for the large mesh prohibition codify current North Carolina state regulations, and therefore, slightly deviate from the BDTRP summer and
  winter dates in which other regulatory measures are applied.
\2\ These prohibitions stop at the North Carolina/South Carolina border rather than extending to Murrels Inlet, South Carolina as defined by the
  Southern North Carolina MU because gillnet fishing activity is limited in South Carolina.

Non-Regulatory Elements of the BDTRP

    The BDTRT noted that effective implementation of the BDTRP requires 
continued research and monitoring, enforcement of regulations, outreach 
to fishermen, and a collaborative effort with states to remove derelict 
crab trap/pot gear. Therefore, the BDTRT referred to these as the non-
regulatory elements of the BDTRP and included them in their Consensus 
Recommendations to NMFS. NMFS agrees that the non-regulatory elements 
are important in achieving both the short- and long-term goals of the 
BDTRP and considers all non-regulatory elements as part of the Agency's 
final BDTRP (see the EA for additional information on non-regulatory 
recommendations).
    Continued research and monitoring are necessary components of a TRP 
to ensure that the best available information continues to drive 
management decisions and to evaluate the effectiveness of the TRP. The 
following are general research and monitoring efforts that will be 
integral components of the BDTRP: (1) continued research on bottlenose 
dolphin stock structure; (2) design and execution of scientific surveys 
to provide reliable abundance estimates of the bottlenose dolphin 
stock; (3) review of available information on bottlenose dolphin stock 
size and structure to determine whether its depleted status under the 
MMPA has changed; (4) improved assessment of bottlenose dolphin serious 
injury and mortality by expanding observer coverage and improving the 
precision of serious injury and mortality estimates, expanding 
stranding networks to enhance data collection efforts, assessing the 
factors contributing to bottlenose dolphin serious injury and 
mortality, providing better assessment of fishery effort, and exploring 
alternative methods of monitoring serious injury and mortality; and (5) 
completion of various ongoing gear-modification-related research 
projects (i.e., comparing behavior of captive and wild dolphins around 
gillnets with and without acoustically reflective webbing, and 
investigating the effects of twine stiffness on dolphin serious injury 
and mortality).
    The observer program and the Marine Mammal Stranding Network are 
vital programs for monitoring the effectiveness of the BDTRP and 
evaluating the plan's success at meeting the short- and long-term goals 
of the MMPA. NMFS intends to support both these programs by: (1) 
enhancing

[[Page 24780]]

current observer programs and coordinating with other states and 
researchers to provide statistically viable sample sizes for all 
fisheries interacting with dolphins; (2) implementing alternative 
monitoring programs (i.e., non-fishing vessel based observation 
platforms); (3) establishing dedicated beach surveys and employing 
observers in geographic areas and time frames during which observer 
coverage is currently lacking; (4) increasing stranding coverage and 
improving training for network participants; (5) improving post-mortem 
assessments to better determine sources of mortality; and (6) providing 
funding to organize and conduct workshops and training sessions to help 
foster communication between the observer program and stranding 
network, and assembling the information and staff necessary to 
accomplish these objectives.
    Consistent enforcement is necessary to ensure the success of the 
BDTRP. NMFS will work to establish appropriate levels of enforcement of 
the BDTRP. NMFS enforcement agents will continue to participate in the 
BDTRT process to ensure implementation needs continue to be met.
    NMFS will also formally request that Federal, state, and local 
fishery enforcement agents monitor inside waterways for serious injury 
and mortality of dolphins and fishery/human interactions to help 
enhance the stranding network and monitor for compliance of the BDTRP. 
Additionally, NMFS will provide training to agents on all aspects of 
the BDTRP, including how to respond to and assist with marine mammal 
strandings.
    Therefore, this training will: (1) review all regulatory components 
of the BDTRP; (2) discuss the agent's role in stranding response and in 
educating fishermen and the public; (3) include training materials 
similar to those provided to fishermen; and (4) be conducted at 
regional law enforcement meetings.
    Another necessary component of the BDTRP is to ensure that affected 
commercial fishermen understand the regulatory and non-regulatory 
elements of the plan and how they apply to each fishery and fishing 
area. Therefore, NMFS will conduct workshops and dockside visits to: 
(1) inform fishermen of new and existing regulations to reduce serious 
injury and mortality in their fisheries, as well as potential gear 
modifications developed via gear research; (2) supply contact 
information and protocols for responding to dolphin/fishery 
interactions or strandings; and (3) encourage best fishing practices to 
reduce serious injury and mortality. NMFS Fishery Liaisons intend to 
conduct these workshops and dockside visits in major ports from New 
Jersey through Florida. Pertinent information for commercial fishermen 
will also be available on NMFS' website.
    The final non-regulatory element included in the BDTRP is for NMFS 
to encourage states to develop and implement a program to remove 
derelict blue crab traps/pots and associated lines. This program will 
help reduce impacts of the large blue crab fishery that exists 
throughout the coastal bottlenose dolphin's range. NMFS will continue 
to support state efforts in removing derelict crab traps/pots and will 
work with state partners and other stakeholders to develop such 
programs in states that currently do not actively remove derelict crab 
traps/pots.
    NMFS will conduct an outreach program to encourage use of voluntary 
gear modifications in the crab trap/pot fishery. Modifications may 
include: (1) using sinking or negatively buoyant line; (2) limiting the 
line to the minimum length necessary; and (3) using inverted or 
modified bait wells for those areas where dolphins are tipping traps 
and stealing bait. NMFS recently funded a pilot project to determine if 
dolphins interact differently with blue crab traps/pots built with 
inverted or recessed opening bait wells versus blue crab traps/pots 
built with bottom opening bait wells. The results of this study will 
determine if these modified bait wells are feasible for use by the 
fishery and will sufficiently reduce bottlenose dolphin bycatch. NMFS 
also recently funded a study to examine the role of the buoy line in 
dolphin entanglements in the crab trap/pot fishery.

Revision to Large Mesh Gillnet Size Restriction in the Mid-Atlantic 
Large Mesh Gillnet Rule under the ESA

    The purposes of the ESA, as stated in section 2(b), are to provide 
a means whereby the ecosystems upon which endangered or threatened 
species depend may be conserved; to provide a program for the 
conservation of such endangered or threatened species; and to take such 
steps as may be appropriate to achieve the treaties and conventions set 
forth in the ESA. All sea turtles found in U.S. waters are listed as 
either endangered or threatened under the ESA. The Kemp's ridley 
(Lepidochelys kempii), leatherback (Dermochelys coriacea), and 
hawksbill (Eretmochelys imbricata) are listed as endangered. Loggerhead 
(Caretta caretta), green (Chelonia mydas), and olive ridley 
(Lepidochelys olivacea) turtles are listed as threatened, except for 
breeding populations of green turtles in Florida and on the Pacific 
Coast of Mexico and olive ridleys from the Pacific Coast of Mexico, 
which are listed as endangered.
    To protect migrating sea turtles, NMFS published a final rule on 
December 3, 2002 (67 FR 71895), establishing seasonally-adjusted gear 
restrictions by closing portions of the mid-Atlantic exclusive economic 
zone (EEZ) to fishing with gillnets with a mesh size larger than 8-inch 
(20.3-cm) stretched mesh. In this final rule, NMFS is revising the 
large mesh size restriction from the current greater than 8-inch (20.3-
cm) stretched mesh, as defined in the 2002 final rule, to 7-inch (17.8-
cm) stretched mesh or greater.
    Information regarding the history of the current mid-Atlantic large 
mesh gillnet rule and justification for its enactment were provided in 
the proposed rule (69 FR 65127) and are not repeated here.

Comments and Responses

    NMFS received 4,140 public comments on the draft EA and proposed 
rule via letter, fax, E-mail, or participation at public hearings. 
Approximately, 4,085 letters of similar content were received via E-
mail. NMFS received various petitions that expressed concern over 
certain topics in the proposed rule. Although each petition was counted 
as only one comment, the number of signatures on each petition was 
noted. NMFS also received 2 comments in support of various parts of the 
proposed rule.
    Comments on the proposed rule were received from the States of 
North Carolina, Virginia, Georgia, and Maryland; Virginia state and 
local representatives from Accomack County, Chincoteague, and the House 
of Delegates, 100th District for Richmond; the mid-Atlantic Fishery 
Management Council; the South Atlantic Fishery Management Council; the 
North Carolina Marine Fishery Commission; the United States Coast 
Guard; conservation organizations, including the Ocean Conservancy, 
Oceana, and the Center for Biological Diversity; fishermen's 
organizations, including the Eastern Shore Watermen's Workers 
Association, the Garden State Seafood Association, and the Carteret 
County Fishermen's Association; Duke University; the BDTRT; and 35 
individual commenters. Five petitions with a total of 563 signatures 
were received, representing commercial fishermen in Maryland, North 
Carolina, and Virginia, and numerous fishermen in North Carolina, 
including inshore

[[Page 24781]]

gillnet, runaround or strike gillnet, and beach seine fishermen.
    The comments are summarized and grouped below by major subject 
headings. NMFS' response follows each comment.

Comments Regarding Proposed Regulatory Measures not Implemented in This 
Final Rule

    NMFS received numerous comments on the proposed beach gear 
operating requirements and gear marking requirements under the BDTRP, 
and the seasonally-adjusted closures proposed under the mid-Atlantic 
large mesh gillnet rule to be extended into North Carolina and Virginia 
State waters. NMFS carefully reviewed and analyzed all comments and is 
not finalizing these three proposed regulatory measures in the final 
rule. The following comments and responses explain NMFS' decision not 
to finalize these proposed regulatory measures.
    Comment 1: NMFS received 45 comments, including 302 petition 
signatures, regarding various aspects of the proposed beach gear (beach 
seine, stop net, and nearshore gillnet fisheries) operating 
requirements. Comments included: (1) concerns that decreasing mesh size 
in the roe mullet stop net fishery will cause bycatch of non-target 
species and undermine the compromise reached with pier owners in the 
early 1990's; (2) recommendations to increase observer coverage in the 
stop net fishery to further document entanglements of bottlenose 
dolphins and re-evaluate the need for regulating this fishery; (3) 
claims that the proposed beach gear operating requirements 
unintentionally included nearshore gillnets without justification and 
in contravention of the BDTRT's intent not to regulate this fishery; 
(4) petitions requesting exemptions for the beach anchored and 
nearshore gillnet fisheries; (5) questions regarding why the use of 
multifilament vs. monofilament webbing is proposed; and (6) concerns 
that multifilament webbing, as opposed to monofilament, will increase 
bycatch of bottlenose dolphins and juvenile and non-target species. 
BDTRT comments also recommended how to amend the proposed beach gear 
operating requirements in 50 CFR 229.35(e)(3)(i)(A) of the proposed 
rule to more accurately reflect the intent of BDTRT's 2002 and 2003 
Consensus Recommendations. The proposed beach gear operating 
requirements stated that gillnet gear or seine gear within the first 
300-feet (91.4 m) of the beach/water interface must be constructed of 
multi-fiber nylon that is 4-inches (10.2 cm) or less stretched mesh, 
and nets consisting of monofilament material would be prohibited in 
this area.
    Response: NMFS is not finalizing the proposed beach gear operating 
measures at this time because: (1) the proposed measures for beach gear 
would inadvertently impact nearshore gillnet and other commercial 
fishermen that were not intended to be regulated by the BDTRT Consensus 
Recommendations; (2) a review of the most recent serious injury and 
mortality estimates provided by Palka and Rossman (2005) suggests that 
the proposed measures for beach gear are not currently necessary to 
reduce bottlenose dolphin serious injury and mortality to below PBR; 
and (3) NMFS believes additional information is necessary regarding the 
level of serious injury and mortality in both beach gear and nearshore 
gillnet fisheries and possible measures to reduce this serious injury 
and mortality.
    NMFS is pursuing the following activities to further investigate 
appropriate measures to address beach gear and nearshore gillnet 
fisheries in the future.
    (1) Research in the stop net fishery to compare bycatch rates of 
dolphin, fish and other marine species in current and proposed net 
configurations. NMFS funded a study that will be conducted during the 
2005 fall stop net fishery season to accomplish this goal;
    (2) Collection of additional information regarding the operation 
and level of effort in beach-based and nearshore gillnet fisheries and 
how these influence serious injury and mortality estimates. In North 
Carolina, many commercial fishermen appear to use gillnets in the same 
manner as beach seines but record their landings in the traditional 
beach seine fishery in the North Carolina Department of Marine 
Fisheries (NCDMF) Trip Ticket Program. This may negatively or 
positively bias the bycatch estimates for the nearshore gillnet and 
beach seine fisheries. This distinction is important to ensure 
management measures appropriately address the fisheries in which 
bycatch occurs. Therefore, NMFS will explore options under the List of 
Fisheries process in conjunction with NCDMF to identify these fisheries 
separately, as well as pursue outreach to commercial fishermen to 
improve the accuracy of recorded trip data. Additionally, NMFS plans to 
hire a field coordinator to collect demographic information from 
commercial fishermen in the mid-Atlantic, which will more readily 
distinguish effort in the beach-based and nearshore gillnet fisheries; 
and
    (3) Collection of demographic data for the nearshore gillnet 
fisheries in the mid-Atlantic to help determine if bycatch reduction 
measures are necessary in nearshore gillnet fisheries. NMFS has 
difficulty maintaining representative observer coverage in the 
nearshore gillnet fishery because traditional methods used by the 
observer program to schedule trips are often not effective in North 
Carolina and, to a lesser extent, in Virginia. One difficulty arises 
because some of the fishermen who participate in the gillnet fishery in 
North Carolina use small vessels (less than 24 ft or 7.3 m) that cannot 
safely accommodate observers because of the boat's configuration. 
Additionally, fishermen often launch from private and public ramps 
rather than from established marinas or fishing ports, hindering an 
observer's ability to locate and request coverage of a gillnet trip. 
The demographic data collected by the field coordinator will help to 
identify where fishermen are launching their vessels, the size of their 
vessel, where they are fishing, gear type used, and species targeted, 
etc. These data will help: (a) NMFS determine the percentage of North 
Carolina gillnet fishermen who cannot be observed by traditional means 
based on boat size and for whom alternative vessel-based observation is 
necessary; (b) provide better contact information for the observer 
program to facilitate contacting fishermen to schedule trips; and (c) 
improve representative observer coverage in the nearshore gillnet 
fishery, thereby increasing the precision of bycatch estimates and 
determining the need for bycatch reduction measures.
    When additional information is available, NMFS will re-evaluate all 
comments received regarding the proposed beach gear operating 
requirements and, in consultation with the BDTRT, develop bycatch 
reduction measures for these fisheries. If rulemaking is deemed 
necessary and pursued for these fisheries in the future, NMFS will 
consider these public comments in the development of management 
measures.
    Comment 2: NMFS received 46 comments regarding various aspects of 
the proposal to extend the existing large mesh gillnet seasonally-
adjusted closures into North Carolina and Virginia State waters under 
the ESA-based mid-Atlantic large mesh gillnet rule. Comments included 
both support for, and opposition to, the proposal. Other specific 
comments included: (1) requesting more information or additional 
research on sea turtle life history and distribution to better 
understand the appropriateness of the closures; (2) concerns about 
economic impacts, especially on fisheries with limited evidence of sea 
turtle

[[Page 24782]]

interactions, such as the striped bass and black drum gillnet 
fisheries; (3) concerns about combining ESA and MMPA regulatory 
processes; (4) claims that revising the large mesh gillnet size 
restriction to 7-inches (17.8-cm) or greater stretched mesh will cause 
increased finfish bycatch; and (5) requests for fishery exemptions 
beyond those proposed, based on economic impacts, specific fishery 
practices, or low observed bycatch rates.
    Response: Under the ESA-based mid-Atlantic large mesh gillnet rule, 
NMFS is not finalizing the proposed extension of the existing large 
mesh gillnet seasonally-adjusted closures into State waters at this 
time. When the proposed rule was published, NMFS believed extending the 
existing closures would reduce the potential for incidental capture of 
sea turtles in state-managed, large mesh gillnet fisheries, as well as 
provide necessary conservation benefits for bottlenose dolphins. 
Following publication of the proposed rule, NMFS received additional 
information from the states of Virginia and North Carolina on the 
status and trends of effort in their gillnet fisheries, as well as 
recent and upcoming state fishery management measures not previously 
considered by NMFS.
    Changes to the Federal monkfish fishery resulted in a number of 
North Carolina gillnetters obtaining permits to operate in Federal 
waters instead of being limited to State waters. Thus, NMFS expects 
that fishing in North Carolina State waters may decrease. Additionally, 
NCDMF began developing state management measures for large mesh gillnet 
fisheries that will provide protection to sea turtles similar to the 
proposed Federally-imposed closures of State waters. The Virginia 
Marine Resources Commission (VMRC) provided data showing that the state 
quota tag system implemented following the drafting of the proposed 
rule reduced striped bass large mesh gillnetting effort by 
approximately 70 percent. Additionally, following publication of the 
proposed rule, VMRC implemented regulations to further manage large 
mesh gillnets in State waters and to eliminate monkfish gillnetting, 
the fishery of primary concern in terms of sea turtle bycatch.
    Therefore, upon review and analysis of the new information, NMFS 
determined that it is not currently necessary to extend the Federal 
closures into State waters, as the Federal regulations would be 
redundant to the newly developing state regulations without added 
conservation benefits. Furthermore, additional analysis was conducted 
that included updated state management measures, which indicated that 
the extension of the seasonally-adjusted closures as proposed was not 
necessary to reduce bycatch of dolphins to below PBR (Palka and 
Rossman, 2005).
    Many of the comments, including those regarding economic and 
procedural concerns and exemption requests are no longer pertinent 
because the extension of the seasonally-adjusted closures into State 
waters is not being implemented. Additional research and data 
collection related to sea turtle life history, seasonal distribution, 
and sea turtle bycatch estimates are ongoing priorities for NMFS. 
Additional information is also contained in the responses to Comments 
43 and 44. NMFS and the states will continue to monitor and evaluate 
the fisheries. If deemed necessary based on future information, 
including changes in the state fisheries or state management of the 
fisheries, NMFS will take appropriate actions to ensure adequate sea 
turtle conservation measures are in place.
    Under this final action, NMFS will amend the mid-Atlantic large 
mesh gillnet rule (67 FR 71895) as proposed to revise the large mesh 
gillnet size restriction to include gillnets with a stretched mesh of 7 
inches (17.8 cm) or greater, instead of the current limitation of 
greater than 8-inches stretched mesh (20.3 cm). Some comments expressed 
concern that this measure would require fisheries to change the mesh 
sizes used to below 7 inches (17.8 cm), and potentially increase 
finfish bycatch. However, commercial fishermen will not need to change 
their gillnet mesh size as a result of the revision. The revision does 
not mandate a change in gear for any fishery. Rather, this measure 
involves a nomenclature change, i.e., the size of mesh used that 
constitutes large mesh nets for purposes of the regulation. 
Additionally, based upon review of information on state and Federal 
fisheries, the revision will not bring any new fisheries under the 
regulations, as no fisheries currently use standard gear from 7 inch 
(17.8 cm) to 8 inch (20.3 cm) stretched mesh. This final action will 
merely align the existing Federal large mesh gillnet regulation with 
other state and Federal management definitions of ``large mesh 
gillnets,'' including that in the BDTRP. Furthermore, since the Federal 
seasonally-adjusted closure will not be extended into State waters, 
there is no practical impact to any state fisheries from this 
terminology clarification.
    Comment 3: NMFS received approximately 30 comments and a petition 
with 113 signatures regarding various aspects of the proposed gear 
marking requirements in Sec.  229.35(d)(1) and (2) of the proposed 
rule. Comments included: (1) claims that using 3-foot (0.91 m) flags on 
the ends of gillnets in shallow waters is not feasible; (2) assertions 
that identification tags will foul gear; (3) questions regarding the 
rationale for requiring identification tags every 100 feet (304.8 m) 
and using 3-foot flags (0.91 m) on the ends of gillnets in shallow 
waters; (4) concerns that the proposed gear marking requirements will 
create potential conflicts with current state gear marking 
requirements, as well as be redundant and overly burdensome; (5) 
requests to exclude gear marking requirements from exempted waters; (6) 
petitions requesting exemptions to the gear marking requirements for 
North Carolina beach seine fishermen; (7) concerns about the cost 
associated with the proposed gear marking requirements; and (8) 
recommendations for more feasible gear marking options. Recommendations 
were also received from the BDTRT during the public comment period on 
how to amend the gear marking requirements to address some of these 
concerns.
    Response: The BDTRT recommended gear marking requirements primarily 
to aid in enforcement of time and area restrictions on gear types and 
tending requirements. A secondary objective was to allow for a better 
means to identify gear found on stranded or entangled dolphins and 
linking that gear back to a specific fishery to ensure that BDTRP 
regulations are applied accordingly.
    After reviewing all received comments and recommendations and re-
evaluating current gear marking requirements in each state affected by 
the BDTRP, NMFS determined that current state gear marking requirements 
are meeting the primary purpose for proposing the gear marking 
requirements. Although the states' gear marking requirements will not 
accomplish the secondary purpose for proposing the gear marking 
requirements, namely, requiring identification tags every 300 feet 
(91.4 m) along the floatline of Category I and II fishery nets to 
facilitate monitoring, NMFS does not believe it is necessary to 
duplicate gear marking requirements at this time. Duplicating gear 
marking will unnecessarily burden commercial fishermen and create 
confusion between state and Federal requirements. Bycatch objectives 
will still be met without finalizing these requirements because gear 
marking requirements would not directly reduce bycatch of bottlenose 
dolphins.

[[Page 24783]]

    Each state affected by the BDTRP requires either a buoy and/or flag 
to be attached to the floatline of gillnets or crab traps/pots, or at 
the ends of gillnets and crab traps/pots, with a form of identification 
inscribed on the buoy or float. Some states also require these flags or 
buoys be of specific dimensions and color. Georgia is the only state 
that does not require gear marking, but they also prohibit the use of 
gillnets within State waters.
    NMFS will continue to monitor the status of each state's gear 
marking requirements to ensure they continue to meet the objectives of 
the BDTRP. Additionally, NMFS recently funded a study to evaluate 
various forms of identification tags along the floatline of gillnets to 
assess their practicality. The objectives of the study were to deploy 6 
different gear and identification tag markings, test each for 
longevity, and quantify burden and monetary costs of maintaining each 
under normal field operations (Hager, 2005). This and future studies 
will help to identify more effective and practical means of marking 
gear.

Comments in Support of the Rule

    Comment 4: Over 4,000 letters of similar content urged NMFS to 
finalize all proposed regulations as soon as possible and supported 
inclusion of the proposed seasonally-adjusted closures in North 
Carolina and Virginia State waters for sea turtle protection.
    Response: NMFS is working expeditiously to finalize the 
regulations. However, the seasonally-adjusted closures for North 
Carolina and Virginia State waters, proposed as an amendment to the 
mid-Atlantic large mesh gillnet rule, were deemed unnecessary upon 
analysis of additional information and are not contained in this final 
rule (see Comment 2).
    Comment 5: One commenter applauded NMFS for proposing to take a 
holistic view of commercial fisheries by combining the two proposed 
rules (BDTRP and amendments to the mid-Atlantic large mesh gillnet 
rule) to benefit protected species, which would streamline the 
regulatory structure for the affected commercial fishermen. The 
commenter supports NMFS' continued efforts in taking a holistic 
approach, including providing the TRT with the best available sea 
turtle data and access to sea turtle experts in order to assist them in 
their deliberations.
    Response: NMFS agrees and will continue to work towards a holistic 
management approach, where possible, that will benefit all protected 
species while minimally impacting commercial fishermen. The Agency will 
also invite knowledgeable protected species experts to attend future 
BDTRT meetings and other TRT meetings as necessary.
    Comment 6: One commenter concurred with the proposed 
recommendations for crab trap/pot-related non-regulatory actions. The 
commenter also agreed that additional gear marking requirements for the 
Atlantic Blue Crab Pot/Trap fishery are not necessary.
    Response: NMFS recognizes the importance of non-regulatory measures 
for the crab trap/pot fishery. This fishery is known to incidentally 
take bottlenose dolphins but is a difficult fishery to formally 
observe. In 2004, NMFS provided funds for a study to investigate the 
effectiveness of using inverted crab trap/pot wells to prevent dolphins 
from tipping pots and entangling in the gear. Additionally, in 2005, 
NMFS provided funds for a study to examine the behavior of crab trap/
pot buoy lines in the water with respect to various factors, such as 
water depth. The results will help NMFS and the BDTRT determine whether 
modifications to existing gear practices are necessary to reduce the 
potential for dolphin entanglement.
    Comment 7: One commenter agreed with the proposed requirement for 
the Southeastern U.S. Atlantic shark gillnet fishery stating that NMFS 
should allow the fishery to continue in the EEZ and that gear should be 
removed from the water and stowed onboard the vessel before the vessel 
returns to port. The commenter noted the difficulty in enforcing the 
0.25 nautical mile (0.46 km) proximity requirement but supported the 
requirement in absence of other bycatch reduction measures. The 
commenter also agreed with the gear marking requirements as proposed.
    Response: NMFS generally agrees with the commenter. However, after 
review of the states' current gear marking requirements, NMFS believes 
finalizing additional gear marking requirements are redundant and not 
necessary (see Comment 3).

Comments in Opposition to the Rule

    Comment 8: One commenter noted that NMFS maintains the authority to 
implement additional, more conservative measures than those recommended 
by the BDTRT, in order to meet the statutory requirements of the MMPA. 
However, there is no reason to deviate from the BDTRT's recommendations 
by decreasing conservation protection measures, which is the case by 
not implementing the recommendation for mandatory bycatch certification 
training or for small mesh fisheries in North Carolina to haul their 
gear once every 24-hours.
    Response: When assessing the BDTRT's Consensus Recommendations, 
NMFS analyzed if the measures would reduce the bycatch of coastal 
bottlenose dolphins to below PBR under the MMPA and if they were 
feasible to enforce and implement without undue burden on the 
commercial fishermen and the Agency. NMFS also considered whether the 
Agency would have the ability to monitor and evaluate the effectiveness 
of the management measures implemented.
    Regarding the two examples mentioned above, NMFS recognizes the 
importance of bycatch certification training for affected commercial 
fishermen, which is why workshops and dockside visits are included as 
non-regulatory measures in the BDTRP. However, NMFS determined that a 
mandatory bycatch certification program is not warranted at this time 
because of the immense effort required to ensure that all active 
commercial fishermen participate in the workshops. Instead of a 
mandatory bycatch certification program, NMFS will focus on outreach 
and education measures for the affected fishing industry. These 
measures include: (1) voluntary workshops conducted at major ports 
along the east coast of the United States to inform commercial 
fishermen about the requirements of the BDTRP; (2) dockside visits 
conducted by Fishery Liaisons; (3) a website dedicated to BDTRP-related 
information; and (4) educational materials (i.e., brochures, placards, 
decals, etc.) distributed by mail to all affected commercial fishermen. 
NMFS believes that conducting these various voluntary outreach and 
education opportunities, rather than mandatory certification training, 
will facilitate participation and understanding of the BDTRP and 
provide more educational opportunities for affected commercial 
fishermen.
    NMFS did not support the requirement to haul small mesh gear once 
every 24 hours in the Winter Mixed and Summer Northern North Carolina 
MUs because fishery data revealed that 98 percent of the observed hauls 
soaked for less than 24 hours. This measure would also be difficult to 
enforce because it would be difficult to accurately ascertain the 
length of time the gear was in the water and if it was actually hauled 
once during the 24-hour period, unless enforcement agents monitored the 
gear for the 24-hour period. Therefore, it was determined that the 
minimal potential benefits would be far outweighed by the

[[Page 24784]]

potential costs related to monitoring and enforcing the restrictions.
    Comment 9: One commenter stated that the combination of the 
proposed actions into one proposed rule to implement the BDTRP and 
amend the mid-Atlantic Large Mesh Gillnet rule alters the 
recommendations for the BDTRP, as agreed to by the BDTRT. It also 
creates confusion as to which rule should be followed and why.
    Response: NMFS acknowledges that combining the proposed actions 
created some confusion, and this final rule attempts to clarify the 
regulatory requirements for each action. NMFS disagrees that the 
combination of the proposed rules altered the BDTRT's recommendations. 
As noted in the response to Comment 5, NMFS was working towards a 
holistic management approach by combining these two actions, as the 
BDTRT noted in their team deliberations that the extension of the mid-
Atlantic large mesh gillnet rule into North Carolina State waters would 
provide conservation benefits for dolphins in this area. Also noted in 
Comment 2, the amendments to the mid-Atlantic large mesh gillnet rule 
to include seasonally-adjusted closures in North Carolina and Virginia 
State waters were deemed unnecessary after review of additional 
information and are not finalized herein.
    Comment 10: NMFS inappropriately allowed members of the BDTRT to 
discuss altering ESA regulations. ESA regulations for sea turtles 
cannot be altered unless they have undergone an ESA section 7 
consultation, and NMFS should not have allowed a stakeholder team to 
craft exemptions for particular fisheries without benefit of scientific 
evidence on how those exemptions might alter bycatch of listed sea 
turtles.
    Response: As noted in Comment 2, the amendments to the mid-Atlantic 
large mesh gillnet rule to include seasonally-adjusted closures in 
North Carolina and Virginia State waters, including the striped bass 
exemptions, are not included in this final rulemaking. These proposed 
amendments were developed separately from the BDTRT process, and the 
requirements under the ESA were not altered by the BDTRT 
recommendations nor did NMFS delegate ESA authority to the BDTRT. The 
BDTRT discussed how amendments to the mid-Atlantic large mesh rule, 
specifically extending the seasonally-adjusted closures into North 
Carolina State waters, would contribute to dolphin conservation in that 
MU and made recommendations to include this conservation benefit in 
their Consensus Recommendations. The BDTRT recognized that including 
this amendment might have an incidental impact on the striped bass 
fishery, and therefore, recommended an exemption for this fishery. 
However, the need for this proposed exemption was also identified by 
NMFS staff working on the sea turtle conservation measures.
    NMFS recognized that combining the two actions, the BDTRP and the 
amendments to the mid-Atlantic large mesh gillnet rule, into one 
proposed and final rule package would allow the agency to work towards 
a holistic management approach that would benefit all protected 
species, while providing consistency in management. A section 7 
consultation under the EPA is required for all Federal actions. 
Consultation was completed for both the proposed and final rule (see 
Comment 65).

Comments Related to the BDTRT

    Comment 11: One commenter stated that the BDTRT should allow for 
adaptive management and be reconvened in the event that there are 
changes in fishing effort.Response: NMFS agrees and will reconvene the 
BDTRT on a regular basis, as mandated by the MMPA.

Comments Related to Collaboration/Cooperation

    Comment 12: One commenter requested that NMFS consider 
acknowledging or exempting licensed or unlicensed legal gillnet 
research activities that may occur in State waters.
    Response: NMFS agrees that some gear research activities should be 
exempt to allow for continued development of gear modifications. 
Exemptions for gear research are not included in this final rule to 
implement the BDTRP but may be included in future amendments to the 
BDTRP. Exemptions for research activities in State waters will be 
closely coordinated with state resource management agencies.
    Comment 13: One commenter stated that NMFS should work more closely 
with all the state gillnet fisheries throughout the Mid-Atlantic region 
to significantly reduce sea turtle mortality.
    Response: NMFS understands the importance and value of 
collaborative efforts with state agencies for the development of 
management measures. NMFS has been working and will continue to work 
cooperatively with VMRC and NCDMF to reduce sea turtle mortality in 
State waters. Specifically, NMFS worked closely with NCDMF and VMRC 
regarding the proposal to extend the seasonally-adjusted large mesh 
gillnet closures into State waters as a sea turtle conservation 
measure. As a result, new information not previously considered on the 
status and trends of the state gillnet fisheries was incorporated into 
the analyses. The cooperation between NMFS and the states also led VMRC 
to enact new gillnet fishery regulations and NCDMF to draft management 
measures for regulating gillnet fisheries, which will be implemented in 
the upcoming months. As a result of the new information, analyses, and 
developments that arose from the cooperation between NMFS and state 
agencies, it was determined that the proposed measures regarding 
seasonally-adjusted closures would not provide additional conservation 
benefit to sea turtles in North Carolina and Virginia State waters (see 
also Comment 2). Furthermore, through its Strategy for Sea Turtle 
Conservation and Recovery in relation to Atlantic and Gulf of Mexico 
Fisheries, NMFS is examining sea turtle interactions with fishing gear 
throughout the Atlantic coast.
    Comment 14: One commenter urged NMFS to work with the states to 
find an equitable solution to conserve protected resources while making 
allowances for people who, in an economically disadvantaged area, seek 
to make a living working on the water.
    Response: As noted in Comment 13, NMFS understands the importance 
and value of working cooperatively with state representatives to 
develop and implement management measures for protected species. In 
developing this final rule, NMFS worked cooperatively with several 
states to ensure sea turtles were not incidentally taken in commercial 
fisheries, while considering the economics of the fishery for specific 
areas. NMFS also worked with state representatives from New York, New 
Jersey, Maryland, Delaware, Virginia, North and South Carolina, 
Georgia, and Florida, as well as all active BDTRT members on bottlenose 
dolphin conservation measures. State representation on the TRT provides 
an opportunity for state agencies to bring to light specific issues of 
economic hardship that may arise from proposed management actions. Such 
issues are taken into consideration during the TRP process to help 
ensure that management measures are not placing undue economic hardship 
on fisheries, while still providing the resource protections mandated 
by the MMPA and other Federal laws. More in depth economic analyses are 
then considered in the EA.
    NMFS also carefully reviews and considers any comments from state 
agencies during the proposed rule process. Based on comments received 
from the states, and others, NMFS is

[[Page 24785]]

modifying the final rule to: (1) omit the gear marking requirements 
because all the states affected by the BDTRP currently maintain their 
own gear marking requirements (see Comment 3); and (2) omit the beach 
gear operating requirements and conduct additional research on the 
North Carolina roe mullet stop net fishery (see Comment 1). Accounting 
for management measures the states already have in place and modifying 
the final rule accordingly reduces any additional economic hardship on 
commercial fisheries.

Economic Analysis

    Comment 15: The prohibition of monofilament webbing 300 feet (91.4 
m) from the beach/water interface was not a recommendation of the BDTRT 
but was proposed by NMFS. It is not clear that NMFS fully evaluated the 
economic impacts to all the commercial fisheries that would be impacted 
by this proposed measure, including North Carolina roe mullet stop net, 
striped bass, striped mullet, spot, croaker, etc.
    Response: Review of the analyses of impacts of this proposed 
measure indicate that they indeed captured the impacts on those 
fisheries characterized as unintentionally impacted. However, as 
discussed in Comment 1, the beach gear operating requirements are not 
contained in this final rule.
    Comment 16: The economic analysis does not contain information 
regarding the conditional exemption of the Virginia striped bass 
fishery and potential loss this will cause. The conditional exemption 
stipulates fishing practices that are not common to Virginia.
    Response: As described in the draft EA, due to data limitations, 
large mesh fishing activity was identified based on species landed as 
reported in the trip ticket information. Striped bass dominated the 
large mesh gillnet trips in Virginia, accounting for 97 percent of the 
trips and harvests. Thus, the analysis concluded that a striped bass 
exemption would eliminate almost all negative impacts associated with 
this measure because 97 percent of the trips in Virginia were 
classified as large mesh gillnets harvesting striped bass. Because the 
proposed striped bass exemption did not reflect current fishing 
practices in Virginia, the economic analysis concluded that the 
estimated impacts for the proposed exemption were almost equal to the 
impacts if no striped bass exemption were proposed. However, the 
proposed seasonally-adjusted closures in which the striped bass fishery 
was offered an exemption is not finalized herein (see Comment 2). 
Therefore, there are no associated economic impacts.
    Comment 17: There were some misleading statements about the 
economic loss in Virginia from the amendments to the mid-Atlantic large 
mesh gillnet rule by including the entire gillnet fishery in the 
revenue loss. Additionally, the 2002 data set used for economic 
analyses presents potential bias, as the Virginia catch, seaward of the 
COLREGS line, for 2002 was 20 percent less than 2001 and 2003 catches.
    Response: The economic impact analysis of a regulatory action 
requires an examination of both the impact of the action on the 
economic performance of an entity in the specific fishery regulated, as 
well as the impact on the overall ability of the entity to continue 
operation as a commercial fishing entity. Thus, it is necessary to 
examine revenues from the specific sector being regulated; for 
instance, large mesh gillnet fishing, as well as all other gears 
fishermen use over the course of the entire year. While economic 
behavior in a given fishery or gear sector may be significantly 
impacted by a regulation, operation in that sector may not be 
significant relative to overall fishing activity due to diversification 
into multiple fisheries.
    The data set used for the analysis encompassed portions of 2000 and 
2001. It is recognized that variability in harvests occurs from year to 
year. However, the data set used was selected to be consistent with the 
biological analysis on which the required take reductions were based.
    Additionally, NMFS is not finalizing the proposed extension of the 
existing large mesh gillnet seasonally-adjusted closures into State 
waters at this time. Therefore, the economic impacts evaluated for that 
proposed action will not occur.
    Comment 18: Two commenters addressed the economic analysis in 
general stating that it was the last thing to be examined, and the 
economic impact analyses for small entities were flawed.
    Response: The economic analysis was initiated and conducted upon 
development of the alternatives, as directed by the applicable law. 
NMFS did not select the alternatives contained in the final rule until 
all economic analyses were complete and public comments reviewed. The 
final rule, therefore, reflects consideration of both the economic 
analysis and public comments received on potential impacts of the 
proposed rule. Consistent with public comment, the economic analysis 
concluded that, while the rule was not expected to have an overall 
significant impact on a substantial number of small entities, certain 
measures were projected to significantly affect some individual 
participants and sub-sectors of the gillnet fishery.

Comments Related to Enforcement

    Comment 19: Enforcement of the regulation is crucial to the success 
of the program.
    Response: NMFS recognizes that enforcement is critical to the 
success of the BDTRP to reduce serious injury and mortality of 
bottlenose dolphins. NMFS will work with its Office of Law Enforcement, 
the U.S. Coast Guard, and state enforcement agents to ensure effective 
enforcement of the final rule.
    Comment 20: One commenter stated that the biggest problem with the 
proposed rule is the ease with which fishermen will be able to 
circumvent the requirements.
    Response: The combined efforts of Federal, state, and local 
enforcement agents will be instrumental in ensuring that commercial 
fishermen comply with these measures. Morever, commercial fishermen and 
industry representatives comprise approximately one-third of the BDTRT, 
and can assist NMFS with compliance via outreach to the fishermen they 
represent. Additionally, through the non-regulatory measures of the 
BDTRP, NMFS established mechanisms to help facilitate compliance with 
the regulatory measures. These will include several workshops and 
dockside visits to educate affected commercial fishermen on all aspects 
of the BDTRP, a website to facilitate dissemination of important 
compliance information to fishermen, and other outreach materials. NMFS 
also hired a Fishery Liaison to interact with the commercial fishing 
industry and help increase compliance with this final rule through 
these outreach endeavors.
    Comment 21: Net length restrictions are currently used in the 
Harbor Porpoise Take Reduction Plan (HPTRP). However, they are 
difficult to determine at sea, inhibiting the ability of Coast Guard to 
actively enforce this measure.
    Response: The use of net length restrictions is not a novel 
approach in fishery or marine mammal management and has been shown to 
be an effective management tool, especially when used in tandem with 
other management measures, such as area restrictions. NMFS Law 
Enforcement Agents and the U.S. Coast Guard have established protocols 
for measuring net lengths. While at sea enforcement of net length 
restrictions may be more difficult than other types of gear 
restrictions, the

[[Page 24786]]

difficulties do not outweigh their usefulness as an effective 
management tool.
    Comment 22: One commenter stated that establishing one proximity 
distance for gillnets would facilitate enforcement. The proposed rule 
recommended a tending distance of 0.5 nautical mile (0.93 km) for 
medium and large mesh gillnets in New Jersey through Virginia during 
the summer and 0.25 nautical mile (0.46 km) tending distance for South 
Carolina, Georgia, and Florida year-round. Although previously 
considered and rejected, requiring the net to be attached to the vessel 
might be a better alternative for enforcement.
    Response: NMFS believes the BDTRT's recommendations provide 
adequate reduction in serious injury and mortality of bottlenose 
dolphins while allowing flexibility in fishing technique per geographic 
area. The BDTRT did not recommend the same proximity distance for all 
MUs because of seasonal distributions of dolphins and different fishing 
techniques in those geographic areas. They did not recommend that the 
net be attached to the vessel because some fishermen use several nets 
at the same time, and requiring fishermen to attach the end of the net 
to their vessel would not allow flexibility in fishing technique.
    Comment 23: One commenter referred to the Atlantic States Marine 
Fishery Commission's guidelines that recommend possession of restricted 
gear be prohibited, as it is easier to prove possession than it is to 
prove use.
    Response: NMFS believes the rule will achieve necessary reduction 
in serious injury and mortalities for bottlenose dolphins, while 
allowing commercial fishermen the ability to stow and transport 
restricted gear for use during unrestricted times. The BDTRT did not 
discuss prohibiting such gear but recommended restricted gear be stowed 
on board the vessel before the vessel returns to port. Prohibiting 
possession of restricted gear altogether would unnecessarily restrict 
commercial fishermen. Furthermore, the states' gear marking 
requirements will enable enforcement officers to identify gear left in 
the water during restricted times.
    Comment 24: Two commenters focused on the difficulty of adequately 
enforcing the requirements, specifically, gear tending and net length 
restrictions.
     Response: NMFS believes that both gear tending and net lengths 
requirements are enforceable. These measures were recommended by the 
BDTRT, and were based on similar requirements used in other TRPs as 
management measures.
    Comment 25: NMFS should initiate surprise boardings of vessels to 
ensure commercial fishermen are implementing these management measures.
    Response: NMFS agrees, as is indicated by the fact that surprise 
boardings are a routine enforcement tool.
    Comment 26: One commenter noted that the proposed rule only 
solicits state and local marine patrol aid in supporting the stranding 
network and does not address the recommendation to include requesting 
that Federal enforcement agents monitor inside waterways and Federal 
waters for bottlenose dolphin interactions with commercial fisheries to 
enhance geographic coverage and improve reporting/response of the 
stranding program. NMFS should modify the rule to address the 
recommendation to formally request that Federal, state, and local 
marine patrols monitor inside waterways for dolphin interactions with 
commercial fisheries.
    Response: It is NMFS' intent to include Federal agents, in addition 
to state and local marine patrols, in this endeavor.
    Comment 27: One commenter stated that no time frame is given as to 
when NMFS enforcement agents would attend future BDTRT meetings.
    Response: NMFS enforcement agents will continue to participate in 
the BDTRT process.

Comments Related to Gear Research

    Comment 28: NMFS should consider initiating a cooperative, 
volunteer research program.
    Response: NMFS agrees that there is value in working cooperatively 
with other entities, and the Agency is currently working cooperatively 
with many academic institutions, state agencies, and other Federal 
agencies to conduct research. Within those cooperative working 
relationships, there are opportunities for interested individuals to 
volunteer their time to help accomplish NMFS' research endeavors.
    Comment 29: Alternative gear technology should be explored as a way 
to reduce harmful interactions with marine animals. The proposed rule 
mentions gear modification research projects that were recommended by 
the BDTRT and will be implemented; however, there is no mention of who 
will implement these projects and how they will be funded.
    Response: NMFS agrees and intends to continue funding gear research 
in the foreseeable future. NMFS allocated $100,000 for BDTRP-related 
gear research in both 2004 and 2005. NMFS is currently working 
cooperatively with North Carolina and Virginia Sea Grant Offices on 
various gear research projects. The BDTRT also recommended several gear 
research projects that are currently being investigated by state 
agencies and academia in cooperation with commercial fishermen. NMFS 
receives final reports at the conclusion of all research projects and 
research results will be presented to the BDTRT at future meetings.
    Comment 30: NMFS should continue to evaluate specific gear 
characteristics with respect to their entanglement risk (i.e., mesh 
size compared to net material or net stiffness).
    Response: The BDTRT recommended several gear research projects to 
evaluate the effects of changing gear mesh sizes, net material, twine 
stiffness, flotation, and bridle configuration to determine if 
modifying these characteristics would reduce the risk of dolphin 
entanglements while allowing the commercial fishermen to maintain their 
levels of catch. Members of academia, in collaboration with commercial 
fishermen, are currently investigating many of the BDTRT's recommended 
projects. Updates were presented to the BDTRT at the January 2005 
meeting on gear research projects funded to that date. Results on 
projects that were funded after the BDTRT meeting will be forwarded to 
the BDTRT once the final results are provided to NMFS.
    Comment 31: One of the proposed gear research projects for the 
BDTRP is to investigate lowering float lines in shark gillnets, which 
was estimated to cost $100,000. This money would be better spent buying 
out this fishery instead of conducting gear research projects, as there 
are so few participants in the fishery.
    Response: NMFS does not agree that a buyout of the Southeast 
Atlantic shark gillnet fishery is a viable option for reducing 
bottlenose dolphin mortality to below PBR as required by the MMPA. The 
BDTRT recommended several gear research projects in their May 2002 
Consensus Recommendations, including lowering float lines in the 
Southeast Atlantic shark gillnet fishery. NMFS aims to fulfill the gear 
research recommendations of the BDTRT and may explore other options for 
this fishery given the few participants.

Comments Related to Implementation Delay

    Comment 32: NMFS provided updated data at the January 2005 BDTRT 
meeting. Therefore, NMFS should delay the rulemaking process to

[[Page 24787]]

allow for additional BDTRT meetings in which further updates are 
provided and for the BDTRT to make conservation recommendations, based 
on any updates, in the same manner they were invited to previously.
    Response: The BDTRT provided Consensus Recommendations to NMFS 
based on a comprehensive 5-year dataset (1995-2000) that was thoroughly 
reviewed throughout the course of six meetings. At the January 2005 
BDTRT meeting, NMFS provided the BDTRT with an update on mortality 
estimates for coastal bottlenose dolphins in each MU based on a two-
year dataset (2001-2002). However, abundance estimates for this new 
time frame are still not available. NMFS does not believe reconvening 
the BDTRT for a full review of data, without updated abundance 
estimates, is warranted at this time. NMFS intends to reconvene the 
BDTRT once this final rule has been effective for at least 6 months. At 
that time, NMFS will provide the BDTRT with updated information on both 
abundance and mortality. This will allow the BDTRT to evaluate the 
effectiveness of the BDTRP in meeting its objectives and determining 
whether modifications are warranted.
    Comment 33: Six commenters suggested that NMFS account for the time 
needed to acquire new gear when finalizing the rule and to delay 
components of the rule, as necessary, based upon the need to acquire 
new gear. NMFS should consider delaying the effective date of the rule 
6 months to a year to allow fishermen time to acquire any new gear or 
webbing necessary to comply with the final rule, specifically for the 
gear marking and beach gear operating requirements as proposed.
    Response: NMFS will not delay implementation of any portions of 
this final rule, beyond the usual 30-day delay (see Comment 34), 
because the beach gear and gear marking requirements are not included 
in this final rulemaking (see Comments 1 and 3, respectively). These 
were the only two requirements in the proposed rule that required the 
purchase of new gear or equipment.
    Comment 34: These new measures should be delayed to allow adequate 
time for the affected commercial fishermen and states to review them.
    Response: Following publication of the final rule in the Federal 
Register, there is an automatic 30-day implementation delay to allow 
time for affected commercial fishermen to review and comply with the 
requirements. During this time, NMFS will advise affected commercial 
fishermen on the components of the final BDTRP through workshops, 
dockside visits, and written informational materials.

Comments Related to Management Approach

    Comment 35: One commenter stated that under the Marine Mammal 
Authorization Program (MMAP), which allows the incidental take of 
marine mammals while commercial fishing, fishermen should be exempt 
from regulations during severe weather conditions.
    Response: The MMAP allows for the taking of marine mammals during 
commercial fishing operations as long as the fishermen have registered 
under the Program, report all injuries and mortalities, carry an 
observer when requested to do so, and comply with applicable TRPs and 
emergency regulations. The safety of commercial fishermen is a priority 
to NMFS. In severe weather conditions, NMFS understands that concerns 
for human safety are more important than fishing gear, and that 
fishermen may be unable to retrieve gear in certain conditions. 
However, fishing gear is the fishermen's responsibility and fishermen 
should try to anticipate future weather patterns and plan accordingly 
to the extent practicable.
    Comment 36: One commenter stated that the proposed measures would 
prevent most interactions with dolphins and sea turtles as both are in 
the area at the same time and questioned why NMFS was proposing to 
close areas at times when neither species is around.
    Response: The management measures contained in this final rule are 
based on the best available scientific data. NMFS is not closing areas 
or regulating fisheries in which there was no observed serious injury 
and mortality of bottlenose dolphins. Additionally, this final rule is 
not implementing the proposal to extend the seasonally-adjusted 
closures for sea turtles into North Carolina and Virginia State waters 
(see Comment 2).
    Comment 37: One commenter recommended NMFS prohibit the use of 
shark gillnet gear in EEZ waters off the Southeastern U.S. coast or, at 
a minimum, off Georgia, because this fishery only consists of 
approximately six vessels, several of which are part-time.
    Response: Although there is limited participation in this fishery 
and the fishery is known to incidentally take bottlenose dolphins and 
sea turtles, NMFS does not believe prohibiting this fishery is 
warranted at this time. Under the BDTRP, bottlenose dolphin mortalities 
are currently at or below PBR levels in the South Carolina, Georgia, 
and Florida MUs, and therefore, do not require further management 
measures than what are implemented in this final rule to achieve the 
short-term requirement of the MMPA to reduce serious injury and 
mortality. Regarding takes of sea turtles, the Biological Opinion for 
the Highly Migratory Species Fishery Management Plan for Atlantic 
Tunas, Swordfish, and Sharks (HMS FMP) determined that the continuation 
of this fishery will not jeopardize sea turtle species. Additionally, 
this fishery is actively managed under the Atlantic Large Whale Take 
Reduction Plan (ALWTRP), and the HMS FMP requires a high level of 
observer coverage for all fishery participants.
    Comment 38: NMFS should prohibit all gillnet, driftnet, trawling, 
and longline gear.
    Response: Prohibiting driftnet, trawling, and longline gear is not 
within the scope of this final rule. NMFS evaluated all fisheries that 
interact with the coastal bottlenose dolphin stock and will continue to 
do so each year under the List of Fisheries process. These final 
management measures were developed to offer regulatory and non-
regulatory measures for only those Category I and II fisheries that are 
causing incidental mortality and serious injury of coastal bottlenose 
dolphins above PBR levels.
    Comment 39: One commenter requested that NMFS extend the public 
comment period in order to give sufficient time for fishermen to 
comment due to their demanding schedules.
    Response: While NMFS understands the demands and limitations of 
commercial fishing, NMFS believes it has provided the public ample time 
to review, attend public hearings, and submit public comments on the 
proposed rule. The public comment period was open for 90 days, which is 
the maximum time allowed under the MMPA, and NMFS conducted two public 
hearings during the public comment period. NMFS also contracted with a 
Fishery Liaison who conducted several group meetings during the public 
comment period to answer commercial fishermen's questions on the 
proposed rule and advise them on the procedure for submitting comments. 
NMFS received extensive and constructive comments on the proposed rule 
from fishermen and fishery organizations.

[[Page 24788]]

Comments Related to Mortality and Abundance

    Comment 40: Several comments addressed abundance surveys of coastal 
bottlenose dolphins. Approximately 1,085 comments received via an E-
mail letter of similar content urged NMFS to seek the necessary funding 
to improve bottlenose dolphin and sea turtle abundance surveys, as well 
as bycatch estimates, to ensure that the regulations provide sufficient 
protection. One commenter recommended that research initiatives 
prioritize bottlenose dolphin abundance surveys in waters southward of 
North Carolina and in bay and estuarine waters. Another commenter 
questioned whether and how efforts are made to determine if populations 
are increasing or decreasing, specifically in the Pamlico Sound area.
    Response: NMFS recognizes the importance of providing sufficient 
funds to improve abundance and bycatch estimates for coastal bottlenose 
dolphins and sea turtles and will allocate such funding as available. 
For coastal bottlenose dolphins, NMFS places priority in conducting 
abundance surveys for all MUs within the range of the stock, including 
waters south of North Carolina and in bay and estuarine waters. 
Therefore, continued research on bottlenose dolphin stock structure and 
refinements of abundance estimation techniques are specifically 
included as non-regulatory components of this final rule.
    NMFS recently conducted its summer (July 1 - August 15, 2004) and 
winter aerial (January 27 - February 28, 2005) surveys of coastal 
bottlenose dolphins to update abundance and distribution patterns 
between the areas of Cape Canaveral, Florida, and Delaware Bay, 
Delaware. Techniques to further refine stock structure were used in 
conjunction with the aerial surveys, including genetic and stable 
isotope analyses, telemetry studies, and photo identification. The 
results from these efforts are not yet available but NMFS will provide 
them to the BDTRT at future meetings and will also include them in 
updates to the Marine Mammal Stock Assessment Reports (http://www.nmfs.noaa.gov/pr/PR2/Stock_Assessment_Program/sars.html).
    Aerial survey efforts for the coastal bottlenose dolphin stock were 
originally conducted in 1995 and updated in 2002. The survey methods 
are detailed in Garrison et al. (2003) and results of both efforts are 
reported in the final EA and the 2002 Stock Assessment Report (NMFS, 
2002). The data from these surveys were used by the BDTRT to develop 
their 2002 and 2003 Consensus Recommendations on which NMFS based this 
final rule to implement the BDTRP.
    Estuarine waters were not included in the 2002 abundance estimates. 
Other studies, however, were conducted to measure bottlenose dolphin 
abundance in estuarine waters, specifically Pamlico Sound, and were 
reviewed by the BDTRT. Read et al. (2003) conducted a mark-recapture 
study of bottlenose dolphins in Pamlico Sound and identified 306 
individual dolphins.
    Regarding sea turtle abundance estimates, NMFS, along with state 
resource agencies, have continuing programs that provide information to 
determine seasonal abundance, migratory routes, and important sea 
turtle habitats. Observer program data from fisheries and research 
conducted and/or funded by NMFS, as well as other information, are used 
to better understand sea turtle use of nearshore waters. Further 
research will continue to enhance our understanding of sea turtle 
ecology.
    Comment 41: It is unclear whether bottlenose dolphins or sea 
turtles are present in the waters north of Cape Charles, Virginia from 
late November through January. These data are essential to evaluate 
bycatch reduction for both bottlenose dolphins and sea turtles from 
large mesh fisheries, such as striped bass, that may occur in State 
waters during that time.
    Response: NMFS agrees that abundance data are necessary for 
evaluating whether bycatch reduction of bottlenose dolphins and sea 
turtles in affected fisheries is occurring at various times of the 
year. Bottlenose dolphin and sea turtle occurrence are known to be 
correlated with sea surface temperatures (Barco et al., 1999; Coles, 
1999; Epperly et al., 1995; Garrison et al., 2003; and Lutcavage & 
Musick, 1985). However, interannual variability in sea surface 
temperatures hinders NMFS' ability to conclusively determine abundance 
levels in northern areas during the winter. Therefore, aerial surveys 
and continuing observer coverage of fisheries operating at that time 
are the best ways to assess the potential risk to these species. 
Bottlenose dolphin bycatch in large mesh fisheries is recorded in 
observer reports for this area during winter. Three separate bottlenose 
dolphins entanglements were observed in the striped bass fishery off 
Virginia Beach during the months of November and March. There were no 
observed takes of sea turtles during this time.
    The conservation measures implemented in this final rule are 
designed to aid in reducing interactions in these areas. Additionally, 
the VMRC instituted a striped bass quota system in 2003 that will also 
aid in decreasing interactions with protected species, as the striped 
bass fishery effort was reduced by about 70 percent. VMRC also enacted 
a regulation in May 2005 to further reduce the presence of large mesh 
gear in State waters by restricting the monkfish fishery. NMFS is 
confident that these conservation measures will reduce takes of coastal 
bottlenose dolphins and sea turtles despite the uncertainty in their 
northern distribution during the winter.
    Comment 42: The Winter Mixed MU (which includes the Northern 
Migratory, Northern and Southern North Carolina MUs) has an estimated 
bycatch of 151 with a PBR level of 67.8. Why is the estimated bycatch 
in this MU so high and are all 151 animals a result of commercial 
fishing effort?
    Response: Data presented to the BDTRT by Rossman and Palka (2001) 
indicate that total bottlenose dolphin bycatch rates were highest in 
the Winter Mixed MU, which includes the coast of North Carolina and 
southern Virginia. Bycatch rates for this MU ranged from 211 dolphins 
per year in 1997 to 146 dolphins in 2000. Most of these takes occurred 
in North Carolina with fewer takes in Virginia waters.
    As discussed in Comment 43, estimating bycatch is based on observed 
takes, as well as other variables, such as seasonal MU, distance from 
shore, and gillnet mesh size. Also noted in Comment 46 was Palka and 
Rossman's (2001) determination that distance from shore and gillnet 
mesh size were the two factors exhibiting the strongest correlation to 
increased bycatch estimates. Based on Palka and Rossman's (2001) 
analyses, estimated bycatch was highest in the Winter Mixed MU because 
large mesh landings (an indicator of effort) were increased in State 
waters during the winter, and observed takes were highest in this MU. 
[This doesn't really answer the question of why the bycatch was so 
high.] The data used to estimate bycatch came directly from commercial 
fisheries and were based on both observer and landings data. Of the 151 
bycaught animals, almost half (45 percent) were from the large mesh 
fishery targeting monkfish, striped bass, or black drum. One-third (36 
percent) of the 151 bycaught animals were from the medium mesh fishery 
targeting dogfish, shad, king Mackerel, sharks, or fluke.
    Comment 43: Several commenters suggested that the data on 
bottlenose dolphin serious injury and mortality from commercial 
fisheries are biased because NMFS presumes that

[[Page 24789]]

commercial fisheries cause all mortalities in which cause of death is 
not conclusive.
    Response: The data used to calculate total mortality of coastal 
bottlenose dolphins per MU were based on the best available 
information. Information from observer coverage data are the only data 
used to estimate mortality rates of coastal bottlenose dolphins per 
fishery. The observer program randomly selects vessels to reduce the 
potential for bias. Further, the statistical method applied to the 
observer data to generate total bycatch estimates has a lower 
statistical bias in comparison to other methods, such as the ratio-
estimator (Cochrane, 1977) and Delta Method (Pennington, 1996).
    Rossman and Palka (2001) used a standard statistical model, called 
a generalized linear model (GLM), to estimate total bottlenose dolphin 
bycatch. The GLM quantifies the relationship between the number of 
observed takes and several variables, which include observed landings, 
seasonal MU, body of water (Federal or State waters), and mesh size 
(small, medium, and large). Landings and observer data from November 
1995 through October 2000 were used to estimate bycatch. Two data 
sources were used to determine landings: (1) the NMFS Northeast Region 
dealer-reported commercial landings database; and (2) the NCDMF trip 
ticket program database (Palka and Rossman, 2001). Although limitations 
exist in using landings as a measure of effort, landings, as recorded 
on trip tickets, are the best available information to quantify effort. 
NMFS plans to explore other measures of effort in order to reduce these 
limitations.
    Comment 44: One commenter asked why NMFS is proposing to regulate 
small mesh gillnets under the BDTRP when large mesh gillnets are the 
problem.
    Response: Based on information from observed takes, NMFS believes 
it is necessary to regulate the small mesh gillnet fishery through this 
final rule to achieve the objectives of the BDTRP. The only regulation 
for the small mesh gillnet fishery included in this final rule is a 
requirement that net lengths be less than or equal to 1,000 ft (304.8 
m) to reduce bycatch of the Summer Northern North Carolina MU. The 
proposed rule to implement the BDTRP also included measures to regulate 
small mesh gillnets and beach seines within the first 300 ft (91.4 m) 
of the beach/water interface. As stated in the response to Comment 1, 
NMFS is not including regulations for beach gear in this final rule.
    Regulations for small mesh gear are necessary because estimated 
serious injury and mortality are above PBR for the Summer Northern 
North Carolina MU. The bycatch rates were highest for the large mesh 
fisheries and lowest for the small mesh fisheries. However, fishing 
effort for the small mesh fishery was higher than those for medium and 
large mesh fisheries. Combining lower bycatch rates and higher fishing 
effort results in an estimated bycatch for the small mesh fisheries 
nearly equal that of the large mesh fisheries.
    Specifically, there were three observed takes of coastal bottlenose 
dolphin in the Spanish mackerel fishery (mesh sizes approximately 3-4 
inches (7.62 - 10.46 cm)) in North Carolina during the summer. These 
takes occurred in nets longer than 1,000 ft (304.8 m) that were set 
from the beach. The net length restriction is based on the 
determination that the potential for interactions with small mesh gear 
will be reduced if less gear is in the water.

Comments Related to the NC Monkfish Fishery

    Comment 45: One commenter believes the North Carolina inshore 
monkfish fishery is being regulated without cause, as there is little 
to no observer data to support the proposed regulations, especially 
regarding why this fishery cannot operate from late February through 
early April. The commenter noted that observed trips have indicated no 
interactions with sea turtles and marine mammals, and data in general 
does not support closing down this fishery. Specifically, there was one 
trip out of 56 that reported a take of a loggerhead turtle during a 4-
year period.
    Response: NMFS disagrees that there is little data to support 
regulating this fishery. From 1995 through 2004, 16 sea turtles and two 
small cetaceans interactions were recorded as bycatch in the North 
Carolina monkfish fishery in Federal waters between March and April. 
Although all takes occurred in Federal waters, only 28 hauls were 
observed in State waters versus 279 hauls in Federal waters. NMFS 
believes these restrictions are warranted in North Carolina due to the 
bycatch history and because of the increased effort in State waters 
(see Comment 46).
    Data for 1996 through 2000 show 164 monkfish gillnet hauls observed 
in Virginia and North Carolina. During this time, 13 loggerhead takes 
(12 in North Carolina) and one Kemp's Ridley take in North Carolina 
were recorded. In 2001, 438 monkfish gillnet hauls were observed with 4 
loggerhead takes recorded (1 in North Carolina), as well as one 
bottlenose dolphin interaction in North Carolina. Finally, between 2002 
and 2004, 188 monkfish gillnet hauls were observed in which two harbor 
porpoise and one gray seal interaction were recorded in Virginia.
    However, as detailed in the response to Comment 2, NMFS is not 
finalizing changes to the existing mid-Atlantic large mesh gillnet rule 
as a result of new information and forthcoming state fishery 
restrictions in Virginia and North Carolina.
    Comment 46: The North Carolina inshore monkfish fishery should be 
exempt from the prohibition of large mesh gillnets with tie-downs for 
North Carolina from December 16-April 15 in the waters of the Atlantic 
Ocean from Cape Hatteras, North Carolina to the Virginia/North Carolina 
border from 2 nautical miles (3.7 km) to 3 nautical miles (5.6 km) 
seaward of the beach.
    Response: Based on gear characteristics and observer data for this 
fishery, NMFS believes the North Carolina inshore monkfish fishery 
warrants the full regulatory measures identified in this final rule. 
The monkfish fishery in State waters uses large mesh gillnets with long 
soak times. As indicated in the response to Comment 45, in the monkfish 
fishery, there are 16 documented takes of sea turtles and two of small 
cetaceans, including a bottlenose dolphin.
    Fisheries with large mesh gillnets and long soak times that operate 
in State waters are correlated with bottlenose dolphin bycatch (Palka 
and Rossman, 2001). However, distance from shore and gillnet mesh size 
were the two factors exhibiting the strongest relationship to bycatch 
estimates. Palka and Rossman (2001) found that the highest bycatch 
rates of coastal bottlenose dolphins in the mid-Atlantic gillnet 
fisheries occurred in large mesh fisheries and in hauls within State 
waters.
    The regulation prohibiting large mesh gillnet gear in State waters 
with tie-downs from December 16 to April 14 is a conservation measure 
designed to prevent a further shift in effort of the monkfish fishery 
into State waters. Recent landings data indicate an increase in large 
mesh fishing effort in North Carolina during the winter. Landings 
information also shows an increase in the number of vessels monkfish 
fishing in North Carolina State waters since the enactment of the mid-
Atlantic large mesh gillnet rule in 2002.

Comments Related to Night Fishing Restrictions

    Comment 47: One commenter specifically noted the proposed large 
mesh restriction in the Winter Mixed MU for Virginia in which no person

[[Page 24790]]

may fish with, possess on board a vessel unless stowed, or fail to 
remove from the water, any large mesh gillnet gear at night. The 
commenter stated that fishermen would be entering dangerous inlets 
after sunset with a boat that is out of balance because of a higher 
center of gravity when the net reel has a net on it.
    Response: NMFS believes that limiting fishing at night in State 
waters of the Winter Mixed MU is necessary to meet the objectives of 
the BDTRP. Several alternatives were analyzed to determine which 
management measures would meet the objectives of the BDTRP, while 
having the least hardship on commercial fishermen (Palka and Rossman, 
2003). The regulation against night fishing in Virginia from November 1 
to December 31 was the only alternative that would allow the objectives 
of the BDTRP to be met for this MU.
    The BDTRT recommended this management measure taking into 
consideration input provided by the members of the BDTRT representing 
large mesh commercial fishermen in Virginia. Specific safety concerns 
were not mentioned during the BDTRT deliberations when discussing this 
alternative, beyond noting that sea state, winds, and visibility are 
always factored into decisions regarding fishermen's return time and 
how gear is stowed during the return. Recognizing that heavy net reels 
create a higher center of gravity, which may be a safety concern in 
severe weather, fishermen have the option of removing their nets from 
the reel to stow them below or in a hold if high seas are a concern. 
NMFS understands that some fishing practices may need to be altered to 
comply with this management measure and strongly recommends that 
fishermen take all precautions to stow gear appropriately to address 
human safety concerns.
    Comment 48: Two commenters indicated that it would not be feasible 
to complete fishing operations before sunset, as it usually takes many 
hours to retrieve and sort the catch.
    Response: Based on net retrieval information collected through the 
observer program, the average haul time for fishermen with large mesh 
gillnets for a 1,100 foot (335.28 m) net was less than 20 minutes. Data 
also indicate that fishermen have an average of six net strings per 
trip. Based on that data, there is an average of 1 hour deployment time 
with about 2 hours to haul gear per trip, leaving approximately 10 
hours of fishing per day depending on the time of year. NMFS believes 
stowing large mesh gillnets before sunset is operationally feasible 
based on these data.

Comments Related to Observer Coverage

    Comment 49: Seven commenters indicated that it is critical that the 
observer program be enhanced to provide adequate observer coverage 
because the probability of detection and the level of observer data are 
too low to determine whether the bycatch mitigation measures in the 
BDTRP are effective and if the bycatch rate will be reduced to below 
PBR as required by the MMPA. Suggestions to enhance the observer 
program included: (1) securing increased Federal appropriations to 
increase observer coverage; (2) using alternative observer platforms 
more widely to observe more hauls from small vessels in coastal waters, 
especially small and medium mesh gillnet fisheries to prevent an effort 
shift from large mesh closures in North Carolina; (3) working with 
other states and researchers who deploy observers to devise a 
consistent and complementary program that will allow NMFS to use this 
data for bycatch estimates; (4) improving the deployment of observers 
throughout a fishery rather than targeting only those fishermen 
consistently taking observers; (5) developing a good estimate of how 
many fishermen are in the different fisheries, what the gear 
characteristics are and where they are fished; (6) improving 
cooperation between the NMFS Southeast and Northeast Regions; (7) 
creating a prioritization of fisheries that need coverage, by (a) 
identifying specific areas for increased coverage, such as: southern 
North Carolina gillnets, inshore gillnets, near shore gillnets, and (b) 
identifying holes in data needed for assessments; and (8) assessing 
bycatch of other finfish, sea turtles, and sea birds to allow for an 
evaluation of actual dolphin bycatch reduction versus the cost to other 
resources.
    Response: NMFS agrees with the above comments and suggestions and 
is exploring all of these options for enhancing the observer program. 
In 2005, NMFS allocated additional funding to enhance the observer 
program. These funds were used to hire a field coordinator and an 
assistant in North Carolina to better characterize fisheries and 
explore the use of alternative platforms, especially in nearshore 
waters. The information provided by these observers will specifically 
address comments two through seven. To clarify, the observer program 
does not distribute the observed trips based on pre-specified fishery 
characteristics, such as mesh size. The observed trips are distributed 
by ports, based on landings, and the trip schedule attempts to capture 
a representative sample of vessels departing from each port. The 
information collected by the North Carolina-based field coordinator 
will aid in distributing trips where observer gaps may exist due to 
real-time effort shifts.
    NMFS initiated discussions with state agencies to explore 
developing a cooperative monitoring program and is planning to conduct 
workshops to: (1) identify gaps in observer coverage; (2) develop 
cooperative programs with states and other researchers; and (3) 
increase coverage to increase statistical reliability of bycatch 
estimates. Finally, working cooperatively with state agencies and 
increasing observer coverage through alternative platforms will help 
assess bycatch of other marine species and sea birds to evaluate 
whether dolphin bycatch reduction measures are increasing bycatch of 
these species.
    Comment 50: Several commenters expressed the need to increase 
observer coverage for fisheries affected by the proposed beach gear 
operating requirements to determine exactly which gear types are 
responsible for bottlenose dolphin entanglements.
    Response: NMFS is exploring many options for increasing observer 
coverage in North Carolina nearshore waters. These include efforts 
outlined in the response to Comment 49.
    Comment 51: Two commenters expressed concern that the data from the 
observer program are not being used properly in management decisions. 
When there is justification that regulations can provide necessary 
protection for species of concern and this justification is supported 
by the NMFS observer program, regulations should be supported and 
implemented. However, when there are well-documented data from the 
observer program to verify that a fishery can be conducted in a 
specific time and area without protected species interactions, these 
data cannot and should not be ignored.
    Response: NMFS only uses observer data to direct the development 
and implementation of management measures and monitor the effectiveness 
of those management measures. Based on observer data, regulations are 
being implemented to reduce bottlenose dolphin serious injury and 
mortality below PBR for relevant MUs. The short-term goal of the MMPA 
requires NMFS to reduce serious injury and mortality below PBR within 6 
months of implementation of the BDTRP. The management measures 
implemented in

[[Page 24791]]

the BDTRP achieve this goal without creating undue burden on the 
commercial fishermen and are justified through observer data. See 
Comment 43 for discussion on how bycatch estimates are derived.
    Regarding concerns about observer data not justifying the proposed 
extension of seasonally-adjusted closures into North Carolina and 
Virginia State waters, which included the black drum fishery, NMFS is 
not finalizing this proposed extension as noted in Comment 2.
    Comment 52: One commenter questioned how many interactions there 
had been between bottlenose dolphins and small mesh fisheries off the 
beach.
    Response: The BDTRT examined observer data collected on ocean 
gillnet trips from 1995 to 2000, during which 12 incidental takes of 
bottlenose dolphins occurred across all mesh size categories. Five of 
these observed interactions were in small mesh gillnets (less than or 
equal to 5-inches (12.7 cm) stretched mesh). For the North Carolina 
beach seine fishery, the BDTRT examined observer data from 1998 through 
2002. During this period, two bottlenose dolphin entanglements 
occurred, both in monofilament webbing. One of these was in small mesh 
webbing and the other was in large mesh webbing (greater than or equal 
to 7-inches (17.8 cm) stretched mesh). These interactions represent 
total bycatch observed; however, observer coverage in State waters was 
often less than 1 percent, which can result in negatively biased 
bycatch estimates.

Comments Related to the Proximity Requirement

    Comment 53: Two commenters expressed concern over the difficulty of 
fishing with the proximity requirement, especially for overnight and 
deep sets. Two other commenters requested clarification as to why 
proximity requirements were necessary.
    Response: Two separate proximity management measures are included 
in this final rule: (1) from June 1-October 31, in New Jersey through 
Maryland State waters for medium and large mesh gillnets, 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 vessels returns to 
port; and (2) year-round, for South Carolina, Georgia, and Florida 
waters, no person may fish with any gillnet gear unless such person 
remains within 0.25 nautical mile (0.46 km) of the closest portion of 
the gillnet. The BDTRT recommended these proximity requirements to meet 
the objectives of the BDTRP because it would limit soak times and the 
amount of net in the water, thereby reducing bycatch of bottlenose 
dolphins, as well as allow closer monitoring of the net to reduce the 
potential for serious injury and mortality should a dolphin become 
entangled. NMFS understands fishing practices may need to be altered to 
accommodate the proximity requirements in these MUs, but it is a 
necessary component of the BDTRP.

Comments Related to Regulatory Clarifications

    Comment 54: The sunset clause for restrictions on medium mesh 
fisheries in Northern and Southern North Carolina MUs should be 
established 3 years from the effective date of the final rule, rather 
than the November 12, 2007, date specified in the proposed rule.
    Response: The November 12, 2007, date printed in the proposed rule 
was an error. The intent of the BDTRT and of NMFS was to establish a 3-
year sunset clause, which means that the management measures will 
expire and be revisited 3 years from the effective date of the final 
rule. The effective date of this final rule will be 30-days following 
publication in the Federal Register. The measures in 50 CFR 
229.35(d)(4)(ii) and 229.35(d)(5)(i) will expire on May 26, 2009.
    Comment 55: Proposed regulatory text in 50 CFR 223.206(d)(8)(ii) of 
the proposed rule states that no more than 1,000 feet (304.8 m) of net 
may be set, and the vessel must remain within 0.25 nautical mile (0.46 
km) of the net at all times; however proposed regulatory text in 50 CFR 
229.35 of the proposed rule does not provide a limitation to one net. 
The regulatory text in both sections should be aligned and clarified if 
only one net is allowed per fishermen.
    Response: The regulatory text in Sec.  223.206(d)(8)(ii) referenced 
above from the proposed rule is not included in this final rule (see 
Comment 2).
    Comment 56: Without a maximum tie-down length, it is possible that 
bridles may be used to fulfill the letter of the regulations without 
fulfilling their intent. For ease of enforcement, tie-down language 
should be consistent with the HPTRP.
    Response: Tie-down language was recommended by the BDTRT to be 
consistent with the tie-down system as described in the HPTRP (50 CFR 
229.34(c)) and is intended to be as such under this final rule to 
implement the BDTRP. As described in 50 CFR 229.34(c), tie-downs may 
not be spaced more than 15 ft (4.6 m) apart along the float line, and 
each tie-down is not more than 48 inches (18.9 cm) in length from the 
point where it connects to the float line to the point where it 
connects to the lead line.
    Comment 57: The proposed rule does not clearly state that the 
inshore shad fishery is not part of the larger Category II Southeast 
Atlantic gillnet fishery. This can lead to misinterpretation that the 
Georgia shad fishery is required to follow the proposed gear marking 
requirements in waters inside the 72 COLREGS line. The final rule and 
2005 List of Fisheries should clearly state that the inshore shad 
fishery is not part of the Category II Southeast Atlantic gillnet 
fishery.
    Response: Comments received in regards to the 2005 List of 
Fisheries must be addressed through the List of Fisheries rulemaking 
process. As noted in Comment 3, gear marking requirements are not 
included in this final rule and regulatory requirements for gillnets do 
not extend into waters landward of the 72 COLREGS line in Georgia. This 
should prevent any misinterpretation that the Georgia shad fishery is 
required to adhere to regulatory requirements under the BDTRP.
    Comment 58: The seine definition does not capture the current 
fishing practice, as a tail bag is no longer used.
    Response: The seine definition was developed to mirror the NCDMF 
definition of a seine, as the majority of the seine regulations were 
proposed for North Carolina. However, recognizing that the geographic 
area affected by this final rule ranges from New Jersey through the 
east coast of Florida, NMFS is clarifying the definition of seine gear 
by noting that, in some regions, the net may be constructed with a 
capture bag.
    The seine definition is still included in this final rule even 
though regulatory measures affecting seines in North Carolina are not 
being implemented. This definition is included to aid in enforcement of 
the BDTRP and prevent confusion over what is considered a seine versus 
gillnet, as monofilament webbing is used is some geographic areas as a 
seine. A gillnet is currently defined in 50 CFR 229.9 and specifies 
that the nets are designed ''...to capture fish by entanglement, 
gilling, or wedging...'' A seine is defined in this final rule as a net 
that ''...captures fish by encirclement and confining fish within 
itself or against another net, the shore or bank...'' Therefore, any 
nets constructed of monofilament webbing that are entangling, gilling, 
or wedging fish are considered a gillnet and subject to the regulatory 
requirements in the BDTRP.

[[Page 24792]]

Comments Related to Regulated Waters

    Comment 59: One commenter asked how the geographic areas were 
determined for the BDTRP and the mid-Atlantic large mesh gillnet rule 
proposed regulations, and why they were not combined to encompass 
larger areas.
    Response: The coastal bottlenose dolphin stock is considered one 
migratory unit in its entire range from New Jersey to Florida. Because 
the stock was determined to be more structurally complex both spatially 
and temporally, the stock was separated into seven MUs based on these 
seasonal and geographic complexities. The BDTRP regulations are based 
on these MUs. For the mid-Atlantic large mesh gillnet rule, the 
geographic boundaries for the proposed rolling closures were the same 
as those in the EEZ closures, which were based on sea surface 
temperatures, as sea turtles migrate in and out of waters based on 
water temperatures. Therefore, even though the larger geographic area 
of coastal bottlenose dolphins and sea turtles coincide, management 
measures would not be appropriate for this larger geographic area 
because of the spatial and temporal complexities of each species. 
Furthermore, NMFS also chose not to align geographic boundaries between 
the two proposed rules in order to minimize impacts on commercial 
fishermen.
    Comment 60: One commenter recommended that the 6.5 and 14.6 
nautical mile (12 and 27 km) boundary lines for the geographic scope of 
the BDTRP be changed to 6.0 and 12.0 nautical miles (11.1 and 22.2 km), 
respectively, to align with existing nautical chart lines and for 
enforcement. Another commenter requested clarification of the term 
``inside waterways.''
    Response: The BDTRT recommended the geographic scope of the BDTRP 
be based on the range of the western North Atlantic coastal bottlenose 
dolphin stock, which is within 6.5 nautical miles (12 km) of shore 
between the New York-New Jersey border and Cape Hatteras, North 
Carolina, and within 14.6 nautical miles (27 km) of shore from Cape 
Hatteras southward through the east coast of Florida. Pertinent 
observer effort, abundance, and mortality data are derived using these 
boundaries, therefore, it makes sense to retain the current boundaries.
    NMFS recognizes that the areas of application of the BDTRP and of 
specific regulatory requirements were difficult to understand in the 
proposed rule. Although the overall geographic scope of the BDTRP is 
the range of the coastal bottlenose dolphin as described above, the 
BDTRP does not include regulatory requirements in waters outside of 3 
nautical miles (5.5 km), north of the North Carolina/South Carolina 
border. In South Carolina, Georgia, and Florida, regulatory 
requirements do extend out to 14.6 nautical miles (27 km). Therefore, 
in this final rule, NMFS is adding a description of the geographic 
scope of the BDTRP in 229.35(a) and clarifying regulated waters in 
Sec.  229.35(c) by referring to and defining each area regulated in 
Sec.  229.35(b).
    To aid in this clarification, NMFS is omitting the term ``exempted 
waters'' from Sec.  229.35(c), which was informally referred to by the 
BDTRT as ``inside waterways.'' These waters are any marine and tidal 
waters landward of the first bridge over any embayment, harbor, or 
inlet; or in cases where there is no bridge, waters that are landward 
of the 72 COLREGS line. In Sec.  229.35(c) for regulated waters, NMFS 
is clarifying which areas are not regulated waters by excluding those 
inshore waters identified in Sec.  229.34(a)(2), except from 
Chincoteague to Ship Shoal Inlet in Virginia, and South Carolina, 
Georgia, and Florida waters, where waters landward of the 72 COLREGS 
line are not regulated for the purposes of this rule.
    Comment 61: NMFS needs to allow the states to regulate their own 
waters.
    Response: NMFS is mandated to manage, conserve, and recover marine 
mammal stocks and listed species throughout their range regardless of 
the state/Federal jurisdictional lines. However, NMFS will work with 
the states in accomplishing these mandates where appropriate. NMFS 
collaborated with state agencies in developing this final rule to 
implement the BDTRP, as representatives from each state along the east 
coast participated as members of the BDTRT. Additionally, based upon 
new information, forthcoming state regulations, and NMFS collaboration 
with state agencies, NMFS is not proceeding with the proposed changes 
to the ESA mid-Atlantic large mesh gillnet regulation at this time.

Comments Related to Statutory Mandates

    Comment 62: The final rule must meet all legal requirements 
including the MMP's statutory deadlines, the Magnuson-Stevens Fishery 
Conservation and Management Act's (Magnuson-Stevens Act) bycatch 
assessment and reduction mandates, and the safeguards of the ESA. The 
statutory deadlines for developing and promulgating MMPA section 118 of 
the MMPA have been exceeded.
    Response: NMFS will endeavor to meet all legal requirements under 
each applicable statute. The Agency is aware of the statutory deadlines 
in section 118 of the MMPA and is working diligently to ensure this 
rule is implemented expeditiously and meets all other statutory 
requirements of the MMPA and is a product that reflects the BDTRT's 
recommendations and the public comments received.
    Comment 63: Although elements of the BDTRP will contribute to 
achieving the zero rate mortality goal (ZRMG), there is not an apparent 
comprehensive strategy, plan and schedule to achieve ZMRG. A committee 
from the BDTRT should be convened to solely address meeting the long-
term ZMRG.
    Response: TRPs have short- and long-term goals for measuring 
success of the plan, which are, respectively, to reduce takes to below 
PBR within six months of implementation of the final plan and to reduce 
takes to an insignificant level 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, within five years of implementation. The 
proposed BDTRP is expected to meet the short-term goal, which was the 
primary objective and first step for the BDTRT. This initial plan also 
provides a framework for reaching the long-term goal. NMFS intends to 
reconvene the BDTRT after the BDTRP has been in place for six months to 
evaluate the effectiveness of the BDTRP, to discuss new data, and to 
discuss the strategy for meeting ZMRG, which is the secondary objective 
of the BDTRP and the next step in this process.
    Comment 64: If the take of a federally-protected species under the 
ESA is authorized by this final rule, then preparation of an 
Environmental Impact Statement (EIS) is required. Rather than 
authorizing take of federally-protected species, NMFS should impose the 
proposed regulations, monitor and observe for any take, and if such 
take occurs, require the appropriate state fisheries agencies to apply 
for an Incidental Take Permit pursuant to section 10 of the ESA. At 
such time, NMFS could produce the required EIS when issuing a section 
10 permit.
    Response: NMFS is not authorizing take of any ESA-listed species as 
a result of these actions. NMFS is implementing this final rule and 
will continue to observe and monitor the fisheries included under the 
BDTRP. If additional measures are required to address takes

[[Page 24793]]

of listed species, NMFS will pursue those, as appropriate, possibly 
under authority of the Magnuson-Stevens Act, MMPA, or ESA, including 
ESA section 10 provisions.
    Comment 65: Two commenters reminded NMFS of the responsibility to 
develop a biological opinion to include in the NEPA analysis.
    Response: ESA section 7 consultation analysis for this final rule 
concluded that the action was not likely to adversely affected listed 
species. Thus, no biological opinion was prepared.
    Comment 66: NMFS should apply for a Migratory Bird Treaty Act 
(MBTA) permit and promulgate appropriate regulations to reduce or 
eliminate seabird bycatch.
    Response: This final rule is intended to prevent the incidental 
take of bottlenose dolphins from commercial fisheries in tidal and 
marine waters within 6.5 nautical miles (12 km) of the New York/New 
Jersey border south to Cape Hatteras, North Carolina and within 14.6 
nautical miles (27 km) of shore from Cape Hatteras south and including 
the east coast of Florida. However, the MBTA only applies to nearshore 
waters, and NMFS does not manage the fisheries affected by these 
regulations, except through the authority given under MMPA section 118, 
because they occur in State waters. Comments concerning compliance with 
the MBTA in these fisheries should be directed to appropriate state 
fishery management agencies.

Comments Related to Strandings and Disentanglements

    Comment 67: There should be clear guidance given on protocols to 
disentangle small cetaceans and sea turtles.
    Response: NMFS agrees and intends to develop guidance on 
disentanglement procedures and provide training in the form of 
workshops and educational materials for commercial fishermen, 
specifically for small cetaceans and sea turtles entangled in gillnet 
gear. One guideline is currently available for how to handle/release 
marine mammals entangled in pelagic longline gear and another guideline 
is also available for recreational fishermen on how to protect marine 
mammals and sea turtles, which includes techniques for releasing 
entangled sea turtles.
    Comment 68: Providing training to stranding network participants on 
how to respond to strandings and entanglements is past due, as 
preventing entanglements should have been the first step.
    Response: NMFS agrees that preventing entanglements of marine 
species is always the primary concern and goal. These proposed 
regulations are designed to reduce and prevent these entanglements.
    Comment 69: Necropsies on stranded animals should be performed and 
these results should be provided to the public.
    Response: Necropsies are conducted on all stranded and entangled 
marine mammals. The public may request and receive certain necropsy 
data maintained by NMFS. Additional necropsy data not collected or 
maintained by NMFS must be requested from the collector of the data.

Changes From the Proposed Rule

    As explained in the Comments and Responses section above and the 
following section, NMFS is making four changes from the proposed rule 
published on November 10, 2004 (69 FR 65127) to this final rule. These 
changes are summarized here.
    (1) The proposal to amend the current mid-Atlantic large mesh 
gillnet rule (67 FR 71895) in 50 CFR 223.206(d)(8)(i) and 
223.206(d)(8)(ii) by extending the seasonally-adjusted closures into 
North Carolina and Virginia State waters is not being implemented in 
this final rule (see Comment 2). At the time the proposed rule was 
published, NMFS believed modifying the existing seasonally-adjusted 
closures would reduce the potential for incidental capture of sea 
turtles in state-managed, large mesh gillnet fisheries, as well as 
provide necessary conservation benefits to the coastal bottlenose 
dolphin stock. However, upon analysis of information received following 
the public comment period, NMFS determined that these measures are not 
necessary. NMFS will continue to monitor and evaluate on an annual 
basis all fishery interactions with protected species to ensure 
existing state and Federal conservation measures are adequate.
    (2) The beach gear operating requirements proposed in 229.3 (s) and 
(t) and 229.35(3)(i)(A) of the proposed rule are not being implemented 
in this final rule (see Comment 1). NMFS will re-evaluate the need for 
these restrictions once further information on fisheries interactions 
and gear characteristics are assessed. Consequently, with the exception 
of the seine definition, all references to North Carolina long haul 
beach seine, North Carolina roe mullet stop net, and seines were 
omitted from the regulatory text as they appeared in the proposed rule.
    (3) The proposed gear marking requirements under Sec.  229.35(d)(1) 
and (2) are not implemented in this final rule (see Comment 3). These 
requirements are not included in this final rule because each state 
affected by the BDTRP currently maintains gear marking requirements 
sufficient to meet the Agency's enforcement needs for the BDTRP. 
Consequently, the above-referenced sections and any other regulatory 
text indicating the need to mark gear were omitted from the final rule.
    (4) The proposed rule stated that waters landward of the lines 
identified in Sec.  229.34(a)(2), and South Carolina, Georgia, and 
Florida waters landward of the 72 COLREGS demarcation line, will not be 
subject to the regulations in the rule. However, a technical error 
resulted from referring to all the lines noted in Sec.  229.34(a)(2) as 
non-regulated waters, specifically from Chincoteague to Ship Shoal 
Inlet (37[deg] 52' N. 75[deg] 24.30' W. TO 37[deg] 11.90' N. 75[deg] 
48.30' W) in Virginia state waters. Virginia state waters are included 
in the Summer Northern Migratory MU and corresponding regulations, as 
indicated by the BDTRT's Consensus Recommendations and the proposed 
rule, and were analyzed in the EA. Regulations for this MU are from 
June 1-October 31 in state waters (out to 3 nautical miles) from New 
Jersey through Virginia. However, the line referenced above from 
Chincoteague to Ship Shoal Inlet intersects the state waters line. 
Therefore, Sec.  229.35(c) of this final rule now refers to waters 
landward of the 72 COLREGS demarcation line as non-regulated waters 
instead of referring to Sec.  229.34(a)(2) for waters landward of the 
line from 37[deg] 52' N. 75[deg] 24.30' W. TO 37[deg] 11.90' N. 75[deg] 
48.30' W (Chincoteague to Ship Shoal Inlet).
    Therefore, this final rule contains two actions under the MMPA and 
ESA regulatory authorities, respectively, and include: (1) regulatory 
and non-regulatory management measures implementing a BDTRP for seven 
MUs within the western North Atlantic coastal bottlenose dolphin 
stock's geographic range. Implementing these management measures 
through this final rule constitutes the Agency's final BDTRP; and (2) a 
revision to the large mesh gillnet size restriction in the mid-Atlantic 
large mesh gillnet rule to protect endangered and threatened sea 
turtles. The management measures under the MMPA are designed to reduce 
serious injury and mortality of dolphins. The change in the large mesh 
size restriction under the ESA does not directly reduce the potential 
for incidental take of sea turtles; instead, it is intended to provide 
more consistency in Federal and state regulations for large mesh 
gillnets along the mid-Atlantic and facilitate commercial fishermen 
compliance of various large mesh

[[Page 24794]]

regulations in the mid-Atlantic. Specifically, revising the large mesh 
size restriction will align large mesh definitions amongst the existing 
HPTRP, NCDMF regulations, and this final rule implementing the BDTRP.

Classification

    The proposed rule was determined significant for purposes of 
Executive Order 12866.
    A draft EA was prepared for the proposed rule and was finalized 
based on the changes made from the proposed to final rule. The 
conclusion of the EA was that this action will not pose a significant 
impact on the human environment.
    NMFS prepared a Final Regulatory Flexibility Act (FRFA), based on 
the Regulatory Impact Review (RIR), of the final rule. A statement of 
the need for and objectives of the final rule is stated elsewhere in 
the preamble and is not repeated here. A summary of the FRFA follows:
    NMFS must reduce the incidental mortality and serious injury of 
marine mammals associated with commercial fisheries, as mandated by the 
MMPA. Coastal bottlenose dolphins continue to experience mortality 
incidental to commercial fishing activities at levels greater than are 
sustainable, as identified by serious injury and mortality levels of 
bottlenose dolphin in excess of the stock's PBR. The specific 
objectives of this final rule are to reduce bottlenose dolphin 
incidental mortality and serious injury in commercial fishing gear 
below PBR within six months of rule implementation and to provide 
consistency among state and Federal management measures by revising the 
large mesh size restriction under the mid-Atlantic large mesh gillnet 
rule while maintaining protections for listed sea turtles. The MMPA and 
ESA provide the legal bases for this final rule.
    Significant issues were raised by the public in response to the 
expected impacts of the beach gear operating management measures, 
rolling closures of the large mesh gillnet fishery in North Carolina 
and Virginia State waters to protect sea turtles, and gear marking 
requirements contained in the proposed rule. In general, the issues 
raised were, respectively: (1) the economic assessment for the proposed 
beach seine measures did not fully encompass all entities affected; (2) 
the exemptions proposed to minimize the impacts of the large mesh 
rolling closures in Virginia did not reflect, as they were intended, 
the actual fishing methods used; (3) the gear marking requirements were 
excessive and not feasible.
    Based on public comment and additional information received, NMFS 
determined that the proposed beach gear and gear marking requirements, 
as well as the proposed extension of seasonally-adjusted closures into 
North Carolina and Virginia State waters are not warranted at this 
time. New analyses indicate that the beach gear operating requirements 
are not currently necessary to achieve the short-term objectives of the 
BDTRP (Palka and Rossman, 2005). All states affected by the BDTRP 
already have sufficient gear marking requirements to fulfill NMFS' 
enforcement and gear identification objectives, with the exception of 
Georgia where gillnet fishing is prohibited in State waters. 
Additionally, NCDMF is developing state management measures for large 
mesh gillnet fisheries that will provide equal or greater protection to 
sea turtles than the proposed federally-imposed closures while allowing 
the state greater flexibility in managing their fisheries. Furthermore, 
following the publication of the proposed rule, VMRC enacted 
regulations to further manage large mesh gillnets in State waters and 
to eliminate monkfish gillnetting, the fishery of primary concern for 
incidental capture of sea turtles. The seasonally-adjusted closures for 
North Carolina and Virginia state waters were, therefore, deemed 
unnecessary. NMFS intends to conduct additional research to determine 
if the beach gear requirements, gear marking requirements, and 
seasonally-adjusted closures are necessary in the future. These 
measures are, therefore, not contained in the final rule.
    A total of 3,079 entities were identified as having recorded 
landings in the 2001 fishing season using gillnet gear in North 
Carolina through New Jersey and will be affected by the fishing 
restrictions contained in this final rule. Total harvests from all 
fisheries by these entities are estimated to have an ex-vessel value of 
$98 million, or an average of approximately $32,000 per entity.
    All commercial fishing operations in the respective gillnet 
fisheries that operate in the manner and location encompassed by the 
rule will be affected by this final rule. The benchmarks for a fish-
harvesting business to be considered a small entity are whether the 
entity is independently owned and operated, not dominant in its field 
operation, and has annual receipts not in excess of $3.5 million. Given 
the average revenue information provided above, all operations in the 
gillnet fisheries are considered small entities.
    The determination of significant economic impact can be ascertained 
by examining two issues: Disproportionality and profitability. 
Disproportionality refers to whether the regulations will place a 
substantial number of small entities at a significant competitive 
disadvantage to large entities. All entities participating in the 
respective gillnet fisheries are considered small entities, so the 
issue of disproportionality is not relevant to this rulemaking.
    Profitability refers to whether the regulations significantly 
reduce profit for a substantial number of small entities. Information 
on the profit profile of participants in the respective gillnet 
fisheries covered by this final rule is not available. Inferences on 
the effects of this final rule on profitability of the impacted 
entities, however, may be drawn from examination of the expected 
impacts on ex-vessel revenues. Total costs associated with harvest 
reductions (lost ex-vessel revenue) across all gillnet fisheries are 
estimated at $1.009 million. This represents less than 2 percent of 
total ex-vessel revenues for the entities involved in these fisheries. 
From this perspective, this final rule would not appear to have a 
significant effect on fishermen. However, certain sub-sectors or 
fisheries are expected to be more severely impacted. Impacts range from 
no expected impacts on participants in the large mesh gillnet fishery 
in North Carolina State waters due to the night fishing restrictions, 
to an estimated 14 percent reduction in ex-vessel revenues for 
participants in the Winter Mixed Virginia oceanic large mesh gillnet 
fishery due to the night fishing restrictions. An estimated 11 percent 
reduction in ex-vessel revenues is expected for participants in the 
Delaware-Maryland-New Jersey Summer northern oceanic medium and large 
mesh gillnet fishery due to the fishing proximity and return to shore 
provisions of the final rule. In total, these two sub-sectors encompass 
approximately 13 percent of identified entities that will be affected 
by the rule.
    Six alternatives to the final rule were considered. Alternative 1 
would allow status quo operation of the fisheries, thereby eliminating 
all adverse economic impacts. This alternative would not, however, 
achieve the required reduction in the incidental mortality and serious 
injury of bottlenose dolphin by commercial fishing gear and would not 
meet the objectives of the BDTRP. The other five alternatives would 
achieve the objectives of the BDTRP.

[[Page 24795]]

    Alternative 2 would impose additional restrictions on the beach 
seine fishery, require rolling closures of the large mesh gillnet 
fishery in North Carolina and Virginia, and specify gear marking 
requirements; thereby, resulting in greater adverse economic impacts 
than the final rule.
    Alternatives 3 through 5 were analyzed to, respectively, prohibit 
all ocean gillnet fishing within 3 km from shore, limit all ocean 
gillnet fishing to at most 12 consecutive hours, and prohibit all ocean 
gillnet fishing in State waters. Each of these alternatives is 
projected to result in greater direct adverse economic impacts on small 
entities than the final rule. These three alternatives would also 
impose additional gear marking requirements, notably on participants in 
the Atlantic blue crab trap/pot fishery, and would substantially 
increase costs over those induced by the final rule.
    Alternative 6 would add a daily hauling requirement and mandatory 
bycatch certification training to the measures in this final rule. This 
requirement would constitute a more restrictive action and would not 
reduce the adverse impacts of the final rule. This alternative would 
also impose additional, but unquantifiable, costs on fishery 
participants as a result of the mandatory bycatch certification 
training. These costs would include the direct costs for participation 
in the training, potential time taken away from fishing or other 
revenue generating activities in order to receive the training, and 
potential lost fishing revenues if fishing activities are restricted 
due to failure to receive the certification. This alternative would 
also impose additional gear marking requirements, notably on 
participants in the Atlantic blue crab trap/pot fishery, which would 
substantially increase costs over those induced by the final rule.
    Among all the alternatives considered that achieve the required 
reduction in the incidental mortality and serious injury by commercial 
fishing gear of dolphins, the final rule minimizes the potential 
negative economic impacts.
    This final rule does not impose any additional reporting, 
recordkeeping, or compliance requirements.
    The proposed rule contained collection-of-information requirements 
subject to the Paperwork Reduction Act (PRA) because of the proposed 
gear marking requirements. The requirement was submitted to the Office 
of Management and Budget (OMB) for approval. However, because the final 
rule is not finalizing the gear marking requirements as proposed, this 
final rule no longer contains collection-of-information requirements 
subject to the PRA.
    This final rule contains policies with federalism implications that 
were sufficient to warrant preparation of a federalism summary impact 
statement under Executive Order 13132. Accordingly, the Assistant 
Secretary for Legislative and Intergovernmental Affairs provided notice 
of the proposed action to the appropriate officials of the affected 
state and local governments through a letter mailed to those officials 
on November 23, 2004. Specifically, the letters were sent to the states 
of New Jersey, Delaware, Maryland, Virginia, North Carolina, South 
Carolina, Georgia, and Florida. The letter described NMFS' position 
supporting the need to issue this regulation; specifically, it 
described the need to reduce serious injury and mortality of dolphins 
incidental to commercial fisheries. The state of Delaware raised 
concerns over the gear marking requirements, as proposed. However, 
since this final rule no longer includes the gear marking requirements, 
the stated concern was addressed.
    An ESA section 7 consultation was conducted on the proposed rule. 
NMFS determined that the proposed measures may affect but are not 
likely to adversely affect listed species under NMFS' jurisdiction that 
may be present in the action area. Because this final rule differs from 
the proposed action, NMFS conducted a new section 7 consultation, and 
also found that this final action may affect but is not likely to 
adversely affect listed species under NMFS' jurisdiction. NMFS expects 
this rule to be beneficial to listed species because it is expected to 
keep fishing effort from increasing in some areas, and may even 
decrease fishing effort in some cases. Therefore, all the ESA 
requirements were addressed.

References

    Barco, S.G., W.M. Swingle, W.A. McClellan, R.N. Harris, and D.A. 
Pabst. 1999. Local Abundance and Distribution of Bottlenose Dolphins 
(Tursiops truncatus) in the Nearshore Waters of Virginia Beach, 
Virginia. Marine Mammal Science 15(2):394-408.
    Cochran, W.G. 1977. Sampling Techniques, third edition. John Wiley 
and Sons. New York. 417pp.
    Coles, W.C. 1999. Aspects of the Biology of Sea Turtles in the Mid-
Atlantic Bight. Ph.D. dissertation. School of Marine Science, The 
College of William and Mary, Virginia. 149pp.
    Epperly, S.P., J. Braun, A.J. Chester, F.A. Cross, J.V. Merriner, 
and P.A. Tester. 1995. The winter distribution of sea turtles in the 
vicinity of Cape Hatteras and their interactions with the summer 
flounder trawl fishery. Bull. Mar. Sci. 56:547-568.
    Garrison, L., P.E. Rosel, A. Hohn, R. Baird, and W. Hoggard. 2003. 
Abundance estimates of the coastal morphotype of bottlenose dolphin, 
Tursiops truncatus, in U.S. continental shelf waters between New Jersey 
and Florida during winter and summer 2002. NOAA Fisheries, Southeast 
Fisheries Science Center. Bottlenose Dolphin Take Reduction Process 
Document Inventory Number: 4-1-03h.
    Hager, C. 2005. A Comparison of Gillnet Labeling Methods for Fisher 
Identification. Reported submitted to NOAA, National Marine Fisheries 
Service, Southeast Regional Office, Protected Resources Division. VI 
7pp.
    Lutcavage, M. and J.A. Musick. 1985. Aspects of the biology of sea 
turtles in Virginia. Copeia 2:449-456.
    NMFS. 2002. US. Atlantic and Gulf of Mexico Marine Mammal Stock 
Assessments 2002. U.S. Department of Commerce. NOAA Technical 
Memorandum NMFS-NE-169.
    Palka, D. and M. Rossman. 2001. Bycatch estimates of coastal 
bottlenose dolphin (Tursiops truncatus) in U.S. mid-Atlantic gillnet 
fisheries for 1996-2000. NOAA-NMFS-NEFSC Ref. Doc 01-15. pp. 77.
    Palka, D. and M. Rossman. 2003. Effects of Alternative Mitigation 
Measures on Mortality of Coastal Bottlenose Dolphins in Gillnet 
Fisheries. NOAA Fisheries, Northeast Fisheries Science Center. 
Bottlenose Dolphin Take Reduction Process Document Inventory Number: 4-
1-03g.
    Palka, D. and M. Rossman. 2005. Effects of Alternative Mitigation 
Measures on the Bycatch of Coastal Bottlenose Dolphins in the Gillnet 
Fisheries in the Winter Mixed Stock Seasonal Management Unit. NOAA 
Fisheries, Northeast Fisheries Science Center. Prepared for the 
Bottlenose Dolphin Take Reduction Process.
    Pennington, M. 1996. Estimating the means and variance from highly 
skewed marine data. Fishery Bulletin 94:498-505.
    Read, A. K.W. Urian, B. Wilson, D.M. Waples. 2003. Abundance of 
bottlenose dolphins in the bays, sounds and estuaries of North 
Carolina, USA. Marine Mammal Science 19: 59-73.

List of Subjects

50 CFR Part 223

    Administrative practice and procedure, Endangered and threatened 
species, Exports, Imports, Reporting and recordkeeping requirements.

[[Page 24796]]

50 CFR Part 229

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

    Dated: April 19, 2006.
William T. Hogarth,
Assistant Administrator for Fisheries, National marine Fisheries 
Service.

0
For the reasons set out in the preamble, 50 CFR part 223 and 50 CFR 
part 229 are amended as follows:

PART 223--THREATENED MARINE AND ANADROMOUS SPECIES

0
1. The authority citation for part 223 continues to read as follows:

    Authority: 16 U.S.C. 1531 et seq.

0
2. In Sec.  223.206, paragraph (d)(8) is revised to read as follows:


Sec.  223.206  Exceptions to prohibitions relating to sea turtles.

* * * * *
    (d) * * *
    (8) Restrictions applicable to large mesh gillnet fisheries in the 
mid-Atlantic region. No person may fish with or possess on board a 
boat, any gillnet with a stretched mesh size 7-inches (17.8 cm) or 
larger, unless such gillnets are covered with canvas or other similar 
material and lashed or otherwise securely fastened to the deck or the 
rail, and all buoys larger than 6-inches (15.2 cm) in diameter, high 
flyers, and anchors are disconnected. This restriction applies in the 
Atlantic Exclusive Economic Zone (as defined in 50 CFR 600.10) during 
the following time periods and in the following area:
    (i) Waters north of 33[deg] 51.0' N. (North Carolina/South Carolina 
border at the coast) and south of 35[deg] 46.0' N. (Oregon Inlet) at 
any time;
    (ii) Waters north of 35[deg] 46.0' N. (Oregon Inlet) and south of 
3[deg] 22.5' N. (Currituck Beach Light, NC) from March 16 through 
January 14;
    (iii) Waters north of 36[deg] 22.5' N. (Currituck Beach Light, NC) 
and south of 37[deg] 34.6' N. (Wachapreague Inlet, VA) from April 1 
through January 14; and
    (iv) Waters north of 37[deg] 34.6' N. (Wachapreague Inlet, VA) and 
south of 37[deg] 56.0' N. (Chincoteague, VA) from April 16 through 
January 14.
* * * * *

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

0
1. The authority citation for part 229 continues to read as follows:

    Authority: 16 U.S.C. 1361 et seq.

0
2. In Sec.  229.2, the introductory paragraph is revised to read as 
follows, and the definitions ``Fishing or to fish,'' ``Seine,'' 
``Sunrise,'' and ``Sunset'' are added in alphabetical order to read as 
follows:


Sec.  229.2  Definitions.

    In addition to the definitions contained in the Act and Sec.  216.3 
of this chapter, and unless otherwise defined in this chapter, the 
terms in this chapter have the following meaning:
* * * * *
    Fishing or to fish means any commercial fishing operation activity 
that involves:
    (1) The catching, taking, or harvesting of fish;
    (2) The attempted catching, taking, or harvesting of fish;
    (3) Any other activity that can reasonably be expected to result in 
the catching, taking, or harvesting of fish; or
    (4) Any operations at sea in support of, or in preparation for, any 
activity described in paragraphs (1), (2), or (3) of this definition.
* * * * *
    Seine means a net that fishes vertically in the water, is pulled by 
hand or by power, and captures fish by encirclement and confining fish 
within itself or against another net, the shore or bank as a result of 
net design, construction, mesh size, webbing diameter, or method in 
which it is used. In some regions, the net is typically constructed 
with a capture bag in the center of the net which concentrates the fish 
as the net is closed.
* * * * *
    Sunrise means the time of sunrise as determined for the date and 
location in The Nautical Almanac, prepared by the U.S. Naval 
Observatory.
    Sunset means the time of sunset as determined for the date and 
location in The Nautical Almanac, prepared by the U.S. Naval 
Observatory.
* * * * *

0
3. In Sec.  229.3, paragraph (r) is added to read as follows:


Sec.  229.3  Prohibitions.

* * * * *
    (r) It is prohibited to fish with, or possess on board a vessel 
unless stowed, or fail to remove, any gillnet gear from the areas 
specified in Sec.  229.35(c) unless the gear complies with the 
specified restrictions set forth in Sec.  229.35(d).

0
4. In subpart C, Sec.  229.35 is added to read as follows:


Sec.  229.35  Bottlenose Dolphin Take Reduction Plan.

    (a) Purpose and scope. The purpose of this section is to implement 
the Bottlenose Dolphin Take Reduction Plan to reduce incidental 
mortality and serious injury of the western North Atlantic coastal 
bottlenose dolphin stock in specific Category I and Category II 
commercial fisheries from New Jersey through Florida. Specific Category 
I and II commercial fisheries within the scope of the BDTRP are 
identified 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 Sec.  600.105 of this title).
    (b) Definitions. In addition to the definitions contained in the 
Act, Sec.  216.3 and Sec.  229.2 of this chapter, the terms defined in 
this section shall have the following definitions, even if a contrary 
definition exists in the Act, Sec.  216.3, or Sec.  229.2:
    Beach means landward of and including the mean low water line.
    Beach/water interface means the mean low water line.
    Large mesh gillnet means a gillnet constructed with a mesh size 
greater than or equal to 7-inches (17.8 cm) stretched mesh.
    Medium mesh gillnet means a gillnet constructed with a mesh size of 
greater than 5-inches (12.7 cm) to less than 7-inches (17.8 cm) 
stretched mesh.
    New Jersey, Delaware, and Maryland 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 40o 30' N. (New York/New 
Jersey border at the coast) and on the south by 38o 01.6' N. (Maryland/
Virginia border at the coast).
    Night means any time between one hour after sunset and one hour 
prior to sunrise.
    Northern 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 36[deg] 33' N. (Virginia/North Carolina 
border at the coast) and on the south by 34[deg] 35.4' N. (Cape 
Lookout, North Carolina).
    Northern Virginia State waters means the area consisting of all 
marine and tidal waters, within 3 nautical miles

[[Page 24797]]

(5.56 km) of shore, bounded on the north by 38[deg] 01.6' N. (Virginia/
Maryland border at the coast) and on the south by 37[deg] 07.23' N. 
(Cape Charles Light on Smith Island in the Chesapeake Bay mouth).
    Small mesh gillnet means a gillnet constructed with a mesh size of 
less than or equal to 5-inches (12.7 cm) stretched mesh.
    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[deg] 52' N. (North Carolina/South Carolina 
border at the coast) and the fishery management council demarcation 
line between the Atlantic Ocean and the Gulf of Mexico (as described in 
Sec.  600.105 of this title).
    Southern North Carolina State waters means the area consisting of 
all marine and tidal waters, within 3 nautical miles (5.56 km) of 
shore, bounded on the north by 34[deg] 35.4' N. (Cape Lookout, North 
Carolina) and on the south by 33[deg] 52' N. (North Carolina/South 
Carolina border at the coast).
    Southern Virginia 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 37[deg] 07.23' N. (Cape Charles Light on Smith 
Island in the Chesapeake Bay mouth) and on the south by 36[deg] 33' N. 
(Virginia/North Carolina border at the coast).
    (c) Regulated waters. The regulations in this section apply to New 
Jersey, Delaware, and Maryland State waters; Northern North Carolina 
State waters; Northern Virginia State waters; South Carolina, Georgia, 
and Florida waters; Southern North Carolina State waters; and Southern 
Virginia State waters as defined in Sec.  229.35(b), except for the 
waters identified in Sec.  229.34(a)(2), with the following 
modification and addition. From Chincoteague to Ship Shoal Inlet in 
Virginia (37[deg] 52' N. 75[deg] 24.30' W. to 37[deg] 11.90' N. 75[deg] 
48.30' W) and South Carolina, Georgia, and Florida waters, those waters 
landward of the 72 COLREGS demarcation line (International Regulations 
for Preventing Collisions at Sea, 1972), as depicted or noted on 
nautical charts published by the National Oceanic and Atmospheric 
Administration (Coast Charts 1:80,000 scale), and as described in 33 
CFR part 80 are excluded from the regulations.
    (d) Regional management measures--(1) New Jersey, Delaware, and 
Maryland State waters''(i) Medium and large mesh. 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.
    (ii) [Reserved]
    (2) Virginia state waters--(i) Medium and large mesh. 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.
    (ii) [Reserved]
    (3) Southern Virginia State waters--(i) Large mesh gillnets. From 
November 1 through December 31, in Southern Virginia State waters, no 
person may fish with, possess on board a vessel unless stowed, or fail 
to remove from the water, any large mesh gillnet gear at night.
    (ii) [Reserved]
    (4) Northern North Carolina State waters--(i) Small mesh gillnets. 
From May 1 through October 31, in Northern North Carolina State waters, 
no person may fish with any small mesh gillnet gear longer than 1,000 
feet (304.8 m).
    (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, 2009.
    (iii) Large mesh gillnets. (A) From April 15 through December 15, 
in Northern North Carolina State waters, no person may fish with any 
large mesh gillnet.
    (B) From December 16 through April 14 of the following year, in 
Northern North Carolina State waters, no person may fish with any large 
mesh gillnet without tie-downs at night.
    (5) Southern North Carolina State waters--(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, 2009.
    (ii) Large mesh gillnets. (A) From April 15 through December 15, in 
Southern North Carolina State waters, no person may fish with any large 
mesh gillnet.
    (B) From December 16 through April 14 of the following year, in 
Southern North Carolina State waters, no person may fish, possess on 
board unless stowed, or fail to remove from the water, any large mesh 
gillnet at night.
    (6) South Carolina, Georgia, and Florida waters--(i) Gillnets. 
Year-round, in South Carolina, Georgia, and Florida waters, no person 
may fish with any gillnet gear unless such person remains within 0.25 
nautical miles (0.46 km) of the closest portion of the gillnet. Gear 
shall be removed from the water and stowed on board the vessel before 
the vessel returns to port.
    (ii) [Reserved]

[FR Doc. 06-3909 Filed 4-25-06; 8:45 am]
BILLING CODE 3510-22-S