Marine mammals: Incidental taking Bottlenose dolphin take reduction plan and sea turtle conservation; fishing activities restrictions,
[Federal Register: April 26, 2006 (Volume 71, Number 80)]
[Rules and Regulations]
[Page 24775-24797]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26ap06-21]
[[Page 24775]]
Part II
Department of Commerce
National Oceanic and Atmospheric Administration
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
[[Page 24776]]
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.
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, Stacey.Carlson@noaa.gov; Kristy Long, NMFS, Protected Resources, 301-713-2322, Kristy.Long@noaa.gov; or David Gouveia, NMFS, Northeast Region, 978-281-9280, David.Gouveia@noaa.gov. Individuals who use telecommunications devices for the deaf (TDD) may call the Federal Information Relay Service at 1-800-877-8339 between 8 a.m. and 4 p.m. eastern time, Monday through Friday, excluding Federal holidays.
SUPPLEMENTARY INFORMATION:
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
[[Page 24777]]
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:
-
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;
-
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;
-
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;
-
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.);
-
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.);
-
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
-
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
[[Page 24778]]
[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.
[[Page 24779]]
TABLE 1: SUMMARY OF BDTRP REGULATIONS
Gillnet Mesh Size Requirements (Stretched Mesh)
Fishing Area
Management Unit Small (5 in to
