[Federal Register Volume 73, Number 245 (Friday, December 19, 2008)]
[Rules and Regulations]
[Pages 77531-77533]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-30241]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 229

[Docket No. 080407531-8840-02]
RIN 0648-AW68


Taking of Marine Mammals Incidental to Commercial Fishing 
Operations; Bottlenose Dolphin Take Reduction Plan

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

ACTION:  Final rule.

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

DATES: This final rule is effective January 20, 2009.

ADDRESSES:  Copies of the proposed rule to amend the BDTRP, the final 
BDTRP, Environmental Assessment, BDTRT meeting summaries, and 
background documents can be downloaded from the Take Reduction Plan web 
site at: http://www.nmfs.noaa.gov/pr/interactions/trt/bdtrp.htm.

FOR FURTHER INFORMATION CONTACT: Stacey Carlson, NMFS, Southeast 
Region, 727-824-5312, [email protected]; or Melissa Andersen, 
NMFS, Protected Resources, 301-713-2322, [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:

[[Page 77532]]

Background

    In accordance with section 118(f)(7)(F) of the Marine Mammal 
Protection Act (MMPA), this final rule implements an amendment to the 
BDTRP (71 FR 24776) published on April 26, 2006. Details regarding the 
development and justification of this final rule were provided in the 
preamble of the proposed rule (73 FR 49634; August 22, 2008) and are 
not repeated here.

Extension of Medium Mesh Gillnet Fishing Restrictions in North Carolina

    This final rule continues, without modification, current medium 
mesh nighttime fishing restrictions in North Carolina state waters. 
Specifically, prohibitions of nighttime medium mesh (greater than 5-
inch (12.7 cm) to less than 7-inch (17.8 cm) stretch) gillnets in North 
Carolina state waters from November 1 through April 30, annually, will 
continue for an additional three years. These prohibitions are 
implemented with an expiration date of May 26, 2012. An expiration date 
is included to ensure the Bottlenose Dolphin Take Reduction Team 
continues to reexamine the spiny dogfish fishery and determine if these 
requirements are still necessary and/or sufficient given the dynamic 
nature of the fishery and its management.

Comments on the Proposed Rule and Responses

    NMFS received five comment letters on the proposed rule via mail, 
fax, and the Federal eRulemaking Portal. Comments on the proposed rule 
were received from The Humane Society of the United States, Ocean 
Conservancy, Marine Mammal Commission, and two citizens.
    In addition to receiving the specific comments detailed below, NMFS 
also received the following: (1) comments in support of developing an 
innovative take reduction plan to reduce serious injury and mortality 
of bottlenose dolphins; (2) concern that the BDTRP should be more 
protective of bottlenose dolphins; (3) a recommendation to pursue 
consensus recommendations made by the BDTRT at their June 2007 meeting 
for gear research related to the Summer Northern North Carolina 
Management Unit and increasing observer coverage in this Management 
Unit; and (4) a request that NMFS provide updates in this final rule on 
progress made towards enhancing and increasing observer coverage. After 
careful consideration, NMFS concluded these comments were previously 
considered or did not pertain to the proposed rule to extend the 
current nighttime medium mesh fishing restrictions in North Carolina 
state waters for continued conservation of bottlenose dolphins. NMFS 
continues to make efforts to implement all the BDTRT's consensus 
recommendations and will provide status updates at the next BDTRT 
meeting in March 2009.
    Comment 1: Three commenters recommended NMFS adopt the final rule 
as proposed.
    Response: NMFS is finalizing the rule as proposed.
    Comment 2: Two commenters expressed support for extending the 
medium mesh gillnet restrictions and believe the fishing restrictions 
are critical for bottlenose dolphin conservation. Although the 
commenters are not opposed to extending the restrictions indefinitely, 
they agree extending the restrictions for three years is important to 
ensure the BDTRT periodically reviews the status of the spiny dogfish 
fishery.
    Response: Extending the medium mesh nighttime gillnet restrictions 
in North Carolina is necessary to ensure continued conservation of 
coastal bottlenose dolphins. NMFS also believes establishing a three-
year timeframe for the restriction provides the opportunity and 
assurance for the BDTRT to regularly review the fishing restrictions 
and spiny dogfish fishery, as well as to evaluate if additional 
modifications to the BDTRP are warranted due to the dynamic nature of 
the fishery and its management.

Changes from Proposed Rule

    This action is finalized unchanged from the proposed rule.
    Classification
    This final rule was determined not significant for purposes of 
Executive Order 12866.
    As required by section 603 of the Regulatory Flexibility Act (5 
U.S.C. 601 et seq.), an initial regulatory flexibility analysis (IRFA) 
was prepared, which is based on the Environmental Assessment, 
Regulatory Impact Review, and Final Regulatory Flexibility Act Analysis 
(FRFA) for the BDTRP, dated April 2006. The IRFA described the economic 
impact the proposed rule, if adopted, would have on small entities. No 
substantive comments on the IRFA or the economic impacts of the 
proposed rule were received, and no changes were made to the final rule 
as a result. A summary of the FRFA follows.
    The purpose of this final rule is to reduce serious injuries and 
mortalities to bottlenose dolphins incidental to commercial fishing 
operations and ensure serious injuries and mortalities do not exceed 
PBR levels, as mandated by the MMPA. The specific objectives of this 
final action are to: (1) meet the BDTRP's short- and long-term 
objectives by maintaining reductions in serious injuries and moralities 
of dolphins associated with the medium mesh spiny dogfish fishery in 
North Carolina state waters; and (2) ensure the BDTRT is provided with 
continued opportunities to review the status of the dynamic spiny 
dogfish fishery and recommend revisions to the BDTRP, as necessary. 
These objectives will be accomplished by continuing reduced soak times 
in medium mesh gillnet gear in North Carolina via the seasonal, 
nighttime medium mesh gear prohibitions for an additional three years. 
The MMPA provides the statutory basis for this rule.
    This final rule will not impose any additional reporting or 
recordkeeping requirements. The compliance requirements of the final 
rule are as described in this analysis.
    A total of 1,321 unique participants were identified as having 
recorded landings using medium mesh gillnet gear during the 2001 
fishing season (November 2000 - October 2001) in North Carolina. Total 
harvests with this gear were valued at approximately $13.8 million 
(nominal ex-vessel value), or approximately 18 percent of total fishing 
revenues by these entities of approximately $77 million (nominal ex-
vessel value). The average annual revenue from the harvest of all 
marine species by these vessels was approximately $58,000.
    A business involved in fish harvesting is classified as a small 
business if it is independently owned and operated, is not dominant in 
its field of operation (including its affiliates), and has combined 
annual receipts not in excess of $4.0 million (NAICS code 114111, 
finfish fishing) for all its affiliated operations worldwide. All 
medium mesh gillnet commercial fishing operating in the manner and 
location encompassed by this final action will be affected by the final 
rule. The available estimate of the average annual revenues by vessels 
operating in the medium mesh gillnet commercial fisheries in North 
Carolina provided above ($58,000) is from the 2001 fishing season. 
Since that time, as a result of the implementation of the Spiny Dogifsh 
Fishery Management Plan (FMP) under the Magnuson-Stevens Fishery 
Conservation and Management Act and a subsequent Interstate Fishery 
Management Plan for Spiny Dogfish, spiny dogfish fishery revenues have 
decreased. Therefore, NMFS determined that all entities affected by the 
final rule

[[Page 77533]]

are small businesses. Because all entities affected by the final rule 
are considered small entities, the issue of disproportional impacts 
between large and small entities as a result of the final action does 
not arise.
    Information on the current profit profile of participants in the 
North Carolina medium mesh gillnet fishery is not available. Inferences 
on the effects of the final rule on profitability of the impacted small 
entities, however, may be drawn from examination of the expected 
impacts on ex-vessel revenues. In 2001, total costs associated with 
harvest reductions (lost ex-vessel revenue) for the medium mesh gillnet 
fisheries in North Carolina during the winter were estimated to be 
approximately $296,000 for the initial implementation of the 
prohibition in the BDTRP. This reduction in ex-vessel revenues 
represented less than 1 percent of total ex-vessel revenues for the 
entities that used this gear in North Carolina during the winter for 
the 2001 fishing year. Updated analyses are not available. Spiny 
dogfish were the primary target of the medium mesh gillnet sector, and 
the spiny dogfish fishery was essentially eliminated in 2000 through 
regulations implementing the Spiny Dogfish Fishery Management Plan 
under the Magnuson-Stevens Fishery Conservation and Management Act and 
emergency actions by the Atlantic States Marine Fisheries Commission 
creating a similar Interstate Fishery Management Plan for Spiny 
Dogfish. Since then, there has not been a large-scale directed fishery 
for this species in North Carolina. This prevents meaningful 
quantification of current revenues that might be foregone as a result 
of the final action, as well as the identification and description of 
fishing entities that might desire to re-enter the fishery should the 
fishery reemerge in North Carolina in the future.
    It should be emphasized that this final action is not expected to 
directly affect any current fishing revenues or fishing practices 
because the medium mesh spiny dogfish gillnet fishery in North Carolina 
has not operated since the May 26, 2006, implementation of the BDTRP, 
nor in any substantive manner since 2000 when the FMPs were 
implemented. Instead, the continuation of the nighttime fishing 
prohibition would have an effect only if a directed spiny dogfish 
fishery reemerges in North Carolina because of changes in Federal or 
Interstate FMP actions. In that case, the final action will reduce 
potential medium mesh gillnet fishing opportunities by limiting soak 
times, and will limit the redevelopment and prosecution of a fishery 
that, prior to the FMPs and BDTRP, contributed a relatively minor share 
of fishing revenues to the fishery participants.
    NMFS considered two alternatives for this final action. The first 
alternative, the status quo, would continue current restrictions until 
May 26, 2009, when the medium mesh gillnet prohibitions in North 
Carolina would expire. This alternative would allow increased soak 
times associated with the directed spiny dogfish fishery and associated 
revenues, if FMP actions allow for the reemergence of a directed 
fishery in North Carolina. However, this alternative would not prevent 
future incidental mortality and serious injury to dolphins from 
extended soak time of medium mesh commercial gillnet gear, and 
therefore, would not meet the objectives of the BDTRP. The second 
alternative, the final action, continues, without modification, current 
nighttime medium mesh gillnet restrictions in North Carolina state 
waters during the winter for an additional three years (until May 26, 
2012). This is a consensus recommendation of the Bottlenose Dolphin 
Take Reduction Team and is expected to achieve the BDTRP's objectives, 
as mandated by the MMPA, by continuing to reduce serious injuries and 
mortalities of dolphins incidental to commercial gillnet fishing.
    NMFS determined this action is consistent to the maximum extent 
practicable with the enforceable policies of the approved coastal 
management program of North Carolina. NMFS provided a consistency 
determination to North Carolina's Coastal Zone Management Program under 
section 307 of the Coastal Zone Management Act and enclosed the 
following reference information: a summary of the proposed action; the 
final rule implementing the BDTRP (71 FR 24776, April 26, 2006); and 
the BDTRT's June 2007 meeting summary. The letter was provided to the 
State on June 20, 2008. North Carolina did not provide comments; 
therefore, consistency is inferred.
    This action contains policies with federalism implications that 
were sufficient to warrant preparation of a federalism summary impact 
statement under Executive Order 13132 and a federalism consultation 
with officials in the state of North Carolina. Accordingly, the 
Assistant Secretary for Legislative and Intergovernmental Affairs 
provided notice of the proposed action to the appropriate officials in 
North Carolina. North Carolina did not respond.
    This final rule does not contain collection-of-information 
requirements subject to the Paperwork Reduction Act.

List of Subjects in 50 CFR Part 229

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

    Dated: December 15, 2008.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

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

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

0
2. In Sec.  229.35 paragraphs (d)(4)(ii) and (d)(5)(i) are revised to 
read as follows:


Sec.  229.35  Bottlenose Dolphin Take Reduction Plan.

* * * * *
    (d) * * *
    (4) * * *
    (ii) Medium mesh gillnets. From November 1 through April 30 of the 
following year, in Northern North Carolina State waters, no person may 
fish with any medium mesh gillnet at night. This provision expires on 
May 26, 2012.
* * * * *
    (5) * * *
    (i) Medium Mesh Gillnets. From November 1 through April 30 of the 
following year, in Southern North Carolina State waters, no person may 
fish with any medium mesh gillnet at night. This provision expires on 
May 26, 2012.
* * * * *
[FR Doc. E8-30241 Filed 12-19-08; 8:45 am]
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