Marine mammals: Bottlenose Dolphin Take Reduction Plan,

[Federal Register: November 10, 2004 (Volume 69, Number 217)]

[Proposed Rules]

[Page 65127-65142]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr10no04-33]

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 223 and 229

[Docket No. 040903253-4253-01; I.D. 081104H]

RIN 0648-AR39

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

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

ACTION: Proposed rule; request for comments.

SUMMARY: NMFS is proposing to implement management measures to reduce the incidental mortality and serious injury (bycatch) of the western North Atlantic coastal bottlenose dolphin stock (dolphins) (Tursiops truncatus) in the mid-Atlantic coastal gillnet fishery and eight other coastal fisheries operating within the dolphin's distributional range and to amend current, seasonal restrictions on large mesh gillnet fisheries operating in the mid-Atlantic region to reduce the incidental take of sea turtles in North Carolina and Virginia state waters. This rule proposes to use effort reduction measures, gear proximity rules, gear or gear deployment modifications, fishermen training, and outreach and education measures to reduce dolphin bycatch below the marine mammal stock's potential biological removal level (PBR); and time/area closures and size restrictions on large mesh fisheries to reduce incidental takes of endangered and threatened sea turtles as well as to reduce dolphin bycatch below the stock's PBR.

DATES: Written comments on the proposed rule must be received no later than 5 p.m. eastern time, on February 8, 2005.

ADDRESSES: You may submit comments, identified by the RIN 0648-AR39, by any of the following methods:

E-mail: 0648-AR39.proposed@noaa.gov. Include Docket Number RIN 0648-AR39 in the subject line of the message.

Mail: Chief, Protected Resources Division, NMFS, 9721 Executive Center Drive North, St. Petersburg, FL 33702-2432.

Facsimile (fax) to: 727-570-5517. Chief, Protected Resources Division, NMFS, 9721 Executive Center Drive North, St. Petersburg, FL 33702-2432.

Federal eRulemaking Portal: http://www.regulations.gov.

Follow the instructions for submitting comments. Instructions: All submissions received must include the agency name and docket number or Regulatory Information Number (RIN) for this rulemaking. For detailed instructions on submitting comments and additional information on the rulemaking process, see the ``Public Participation'' heading of the SUPPLEMENTARY INFORMATION section of this document.

Copies of the Environmental Assessment (EA), an Initial Regulatory Flexibility Analysis (IRFA), the Bottlenose Dolphin Take Reduction Team (BDTRT) meeting summaries and progress reports and complete citations for all references used in this rulemaking may be obtained from the persons listed under FOR FURTHER INFORMATION CONTACT.

Comments regarding the collection of information requirements contained in this proposed rule should be submitted in writing to the Chief, Marine Mammal Conservation Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Silver Spring, MD 20910 and to David Rostker, OMB, by e-mail at David_Rostker@omb.eop.gov or by fax to 202-395-7285.

FOR FURTHER INFORMATION CONTACT: Stacey Carlson, NMFS, Southeast Region, 727-570-5312, Kristy Long, NMFS, 301-713-2322, or Brian Hopper, NMFS, Northeast Region, 978-281-9328. 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: NMFS intends to conduct two public hearings on this proposed rule. One hearing will be in conjunction with the next BDTRT meeting, which has not yet been scheduled but will occur during the comment period; and another in a location chosen to maximize participation of affected fishermen. NMFS will publish a separate notice detailing the time and location of the public hearings.

Electronic Access

For additional information on western North Atlantic coastal bottlenose dolphins, refer to the final 2002 Atlantic and Gulf of Mexico Marine Mammal Stock Assessment Reports (SARs). The SARs can be accessed via the Internet at http://www.nmfs.noaa.gov/prot_res/

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PR2/Stock--Assessment--Program/sars.html.

Background

Bycatch Reduction Requirements in the MMPA

Section 118 (f)(1) of the Marine Mammal Protection Act (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 Endangered Species Act (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 because it is currently 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 to address dolphin bycatch.

This rule proposes to implement the Bottlenose Dolphin Take Reduction Plan (BDTRP), which is based on consensus recommendations of the BDTRT, for multiple management units (MUs) within the western North Atlantic coastal bottlenose dolphin stock. The BDTRP affects the following Category I and II fisheries (see 2003 List of Fisheries, 68 FR 41725, July 15, 2003): 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, Southeast Atlantic gillnet fishery, and Southeastern U.S. Atlantic shark gillnet fishery.

According to the MMPA (16 U.S.C. 1387(f)(2)), 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. Implementation of this proposed rule for the BDTRP is intended to accomplish the short-term goal of reducing dolphin bycatch to levels below the stock's PBR. In order to determine if this goal is met, NMFS would continue to monitor bycatch of bottlenose dolphins through observer programs, stranded animal reports, abundance and distribution surveys, and other means. Ultimately, the effectiveness of the TRP would be assessed via monitoring the serious injury and mortality rates for the bottlenose dolphins relative to the short- and long-term goals of the TRP.

History of the BDTRT

NMFS convened a Mid-Atlantic Take Reduction Team (TRT) in February 1997, to address the bycatch of both harbor porpoise and bottlenose dolphins in a suite of mid-Atlantic gillnet fisheries (from New York through North Carolina). However, members of the Mid-Atlantic TRT determined that there were insufficient data on dolphin abundance and bycatch to propose management measures for this stock at that time, and deferred the discussion until such time that more data were available on the abundance and stock structure of mid-Atlantic bottlenose dolphins. On October 24, 2001, NMFS published a notice announcing the convening of a newly formed BDTRT (66 FR 53782).

The BDTRT met five times (November 6-8, 2001; January 23-25, 2002; February 27-March 1, 2002; March 27-28, 2002; and April 23-25, 2002), and on May 17, 2002, submitted to NMFS a set of consensus recommendations to reduce bycatch of the coastal stock of bottlenose dolphins in nine coastal fisheries (based on data available at that time). New bottlenose dolphin abundance estimates became available to the BDTRT subsequent to the submission of these recommendations. In addition, NMFS determined that the original recommendations would not meet the short-term goal for TRPs under the MMPA. Therefore, NMFS convened an additional meeting of the BDTRT on April 1-3, 2003. The BDTRT, as detailed in its May 3, 2003 report, then reached consensus on updated measures to reduce bycatch based on the more recent information. The BDTRT meetings were open to the public and public comments were invited on each day of the meetings. NMFS also held three public meetings on May 15-16, 2001; July 11-12, 2001; and November 6, 2001 to provide background information prior to convening the BDTRT.

NMFS published a Notice of Intent (NOI) to Prepare an Environmental Impact Statement (EIS) under the National Environmental Policy Act (NEPA)(67 FR 47772; July 22, 2002) to review the environmental effects of implementing the recommendations of the BDTRT. The comment period was reopened on September 19, 2002, to ensure that the public had ample opportunity to provide comments (67 FR 59051).

After publication of the NOI, NMFS determined that proceeding with an EIS was not necessary based on additional information on the abundance and status of the dolphin stock made available to the BDTRT and that an EA was a more appropriate initial level of analysis under NEPA. The new abundance estimates were greater than previous estimates of the dolphin stock for five of the stock's seven MUs. Given this new information, the recommendations by the BDTRT would not significantly impact the human environment. NMFS published a notice to proceed with the preparation of an EA on July 31, 2003 (68 FR 44925).

NMFS received five sets of comments during the public scoping period and the NOI comment period. The comments were considered during the development of this proposed rule and its supplemental analyses. These comments and NMFS' responses are available as an appendix to the EA (see ADDRESSES).

Stock Structure, Abundance, and Bycatch of the Western North Atlantic Coastal Bottlenose Dolphin

The following section provides a summary from NMFS Stock Assessment Reports and the latest scientific

[[Page 65129]]

information of stock structure, abundance, and estimated bycatch information for the western North Atlantic coastal bottlenose dolphin. Please consult the EA (see ADDRESSES) for more detailed information or specific studies related to stock structure, abundance, or bycatch.

The western North Atlantic coastal bottlenose dolphin stock is designated as a single stock in NMFS' Stock Assessment Reports. Recent research, however, demonstrated that the stock was more structurally complex than originally believed (NMFS 2002). To reflect this complexity and for management purposes, this stock was separated into seven discrete MUs, which have spatial and temporal components (see Figure 1). The PBR for the stock was determined and assigned according to each MU. Therefore, proposed management measures were established per MU, which serves management purposes well because fisheries interacting with this stock also have spatial and temporal components. The separate MUs include:

1. Northern Migratory MU, which ranges from northern New Jersey to southern Virginia in the summer, and from southern Virginia to southern North Carolina in the winter;

2. Northern North Carolina MU, which ranges from northern North Carolina to central North Carolina in the summer and from southern Virginia to southern North Carolina in the winter;

3. Southern North Carolina MU, which ranges from central North Carolina to southern North Carolina in the summer and winter (In the winter, the geographic distributions of the Northern Migratory, Northern North Carolina, and Southern North Carolina MUs overlap along the coast of North Carolina and southern Virginia. During the winter, these overlapping units are referred to as the ``Winter Mixed'' MU.);

4. South Carolina MU, which ranges from the North Carolina/South Carolina border to the South Carolina/Georgia border in the summer and winter;

5. Georgia MU, which ranges from northern coastal Georgia to southern Georgia in the summer and winter;

6. Northern Florida MU, which ranges from northern Florida to central Florida in the summer and winter; and

7. Central Florida MU, which ranges from central Florida to southern Florida in the summer and winter (NMFS 2002).

Abundance estimates are the basis for determining PBR for marine mammal stocks. Table 1 summarizes the stock assessment information for the seven coastal bottlenose dolphin MUs. Abundance estimates are derived from surveys conducted in 2002 unless otherwise specified. The BDTRT used these estimates to aid in developing take reduction recommendations.

Table 1.--2002 abundance estimates and the associated coefficient of variation (CV) and minimum population estimate (Nmin) for each management unit of coastal bottlenose dolphins (Garrison et al., 2003).

Management Unit

Abundance CV (%) Nmin

SUMMER (May - October).............. .............. ......... ....... Northern Migratory..................

17,466 19.1 14,621 Northern North Carolina............. .............. ......... ....... Oceanic.............................

6,160 51.9 3,255 Estuary.............................

919 12.5 828 BOTH................................

7,079 45.2 4,083 Southern North Carolina............. .............. ......... ....... Oceanic.............................

3,646 11.0 1,863 Estuary.............................

141 15.2 124 BOTH................................

3,787 106.9 1,987 WINTER (November - April)........... .............. ......... ....... Winter Mixed (Northern Migratory,

16,913 23.0 13,558 Northern North Carolina, Southern North Carolina).................... ALL YEAR............................ .............. ......... ....... South Carolina......................

2,325 20.3 1,963 Georgia.............................

2,195 29.9 1,716 Northern Florida*...................

448 38.4 328 Central Florida*....................

10,652 45.8 7,377

*Northern Florida estimates are derived from the winter 1995 survey and the summer 2002 survey. Central Florida MU estimates are from the winter 1995 survey.

From the abundance estimates, NMFS provided the BDTRT with bycatch estimates and PBRs for each management unit. Table 2 provides a summary of these bycatch estimates and current PBRs per MU, which indicates that estimated bycatch exceeds PBR for the Summer Northern North Carolina Management Unit and the Winter Mixed Management Unit.

Estimated Management Unit

Bycatch Current PBR

Northern Migratory.........................

30

73.1 Summer Northern North Carolina.............

29

20.4 Summer Southern North Carolina.............

0\1\

9.9 Winter Mixed (Northern Migratory, Northern

151

67.8 North Carolina, and Southern North Carolina)................................. South Carolina............................. Unknown

20 Georgia.................................... Unknown

17 Northern Florida...........................

0

3.3 Central Florida............................

4

74\2\

\1\ No bycatch was recorded in the NMFS observer program, but stranding data indicate dolphin bycatch occurs. \2\ The PBR for the Central Florida MU is based on the 1995 abundance estimate as no 2002 estimate is available.

Please note that bycatch estimates are derived from observed fisheries only.

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For a discussion of bycatch information from stranding events and unofficially observed events, please consult the EA (see ADDRESSES). Because observed fishery bycatch data demonstrate that PBR was exceeded for the western North Atlantic coastal bottlenose dolphin stock and because this stock is strategic, take reduction measures are warranted.

Components of the Bottlenose Dolphin Take Reduction Plan (BDTRP)

The take reduction measures in this proposed rule have spatial and seasonal components that reflect measures needed at different times of the year and in different areas for each of the seven distinct MUs. The seasonal and geographic distributions of these MUs are shown in Figure 1.

[GRAPHIC] [TIFF OMITTED] TP10NO04.002

The BDTRT reviewed gear characteristics that may influence bycatch levels. Analysis by Palka and Rossman (2001) concluded that distance from shore and gillnet mesh size were the two factors exhibiting the strongest relationship to bycatch estimates. The authors found that the highest bycatch rates of coastal bottlenose dolphins in mid-Atlantic gillnet fisheries occurred in large mesh gear (greater than or equal to 7-inch or 17.8 cm stretch mesh) and in hauls that occurred within state waters (3 nmi or 4.8 km). Palka and Rossman (2001) also found that the highest bycatch occurred in the winter with most of the bycatch occurring in North Carolina and Virginia state waters. The authors inferred that changes in the fisheries that utilize this gear size in this region may have a considerable effect on reducing dolphin bycatch.

The BDTRT's consensus recommendations included two principal types of actions to achieve required bycatch reduction goals: (1) specific regulatory fishing gear restrictions organized by bottlenose dolphin MU, and (2) broad-based, non-regulatory measures, such as education, outreach, and research. For those dolphin MUs where bycatch is low, or where bycatch estimates are unavailable, the BDTRT offered non- regulatory recommendations. This proposed rulemaking addresses both the regulatory and non-regulatory measures recommended by the BDTRT.

Proposed Regulatory BDTRP Measures

Applied primarily to gillnet fisheries, the proposed regulations result in a reduction in soak times and in the amount of gear in the water or otherwise change practices to reduce bycatch of dolphins. In developing this proposed rule, NMFS evaluated the recommendations provided by the

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BDTRT to ensure that: the recommended measures would meet the goals of the MMPA, no unnecessary requirements would be imposed on the fishing industry, and the recommended measures were compatible with existing state and Federal management plans. NMFS expects these measures to reduce dolphin bycatch below the stock's PBR within six months of implementation because, based on modeling efforts and broad expertise of the BDTRT, the measures are expected to reduce the number of interactions between dolphins and fisheries below that level.

NMFS proposes to implement all of the BDTRT's recommendations except the following: (1) the requirement for mandatory bycatch certification training (training would be conducted, but would not be mandatory); and (2) a requirement to haul gear once every 24 hours in the small mesh gillnet fisheries in the North Carolina portion of the Winter Mixed MU and the Summer Northern North Carolina MU.

The BDTRT recommended that vessel operators and persons in non- vessel fisheries complete a mandatory bycatch certification training program. However, a mandatory certification program is unnecessary at this time, and the potential costs of holding and ensuring participation at the workshops would outweigh the bycatch reduction benefits. Alternatively, NMFS proposes to provide outreach and education to the fishing industry through: (1) voluntary workshops conducted at major ports from New Jersey through Florida by NMFS outreach personnel; (2) dockside visits with the fishing industry carried out by fishery liaisons; (3) a pilot web-based training program accessible through the existing BDTRP web site to provide training to remaining fishermen who may not be able to attend dockside visits or workshops; and (4) educational materials (i.e., brochures, placards, decals, and possibly videos) provided through an annual mailing to all Category I and II fisheries affected by this proposed rule.

NMFS does not support implementing the requirement to haul gear once every 24 hours in the small mesh gillnet fisheries in the ranges of the Winter Mixed MU and the Summer Northern North Carolina MU. NMFS analyzed fishery data and found that 98 percent of the observed hauls soaked for less than 24 hours. Additionally, this requirement would be difficult to enforce because it would be difficult to accurately ascertain the length of time that gear remains in the water, unless enforcement agents monitor the gear for a 24 hour period. NMFS instead plans to highlight gear-tending practices during workshop training and in outreach materials.

Definitions Used in BDTRP Proposed Rule

Definitions of some of the terms used in this proposed rule differ from definitions of terms currently in 50 CFR 229.2 that apply to the Harbor Porpoise Take Reduction Plan. These different definitions would be placed within 50 CFR 229.35, which is the section for regulatory requirements of the Bottlenose Dolphin Take Reduction Plan, to avoid conflicting with definitions applicable to other take reduction plans. Also, new definitions were added where appropriate. Definition changes and additions were necessary in some cases for effective implementation of the BDTRT's recommended regulatory measures.

The proposed rule contains different definitions of the terms ``night,'' ``small mesh gillnet,'' and ``large mesh gillnet.'' NMFS proposes a different definition of ``night'' in this proposed rule to give fishermen more time to remove their gear from the water prior to certain night-time gear restrictions taking effect. Different definitions of ``small mesh gillnet'' and ``large mesh gillnet'' were proposed, and a definition of ``medium mesh gillnet'' was added, to tailor gear restrictions most appropriately given the conduct of gillnet fisheries and the nature of interactions between gillnet fisheries and bottlenose dolphins. For instance, bottlenose dolphin bycatch occurs in very small mesh gillnets, and harbor porpoise bycatch does not. Thus, there was a need to add a different definition of ``small mesh gillnet'' under this proposed rule to address dolphin bycatch in gillnets with 5-inch (12.7 cm) stretched mesh or smaller. There was also a need to add a definition of ``medium mesh gillnet'' because a medium mesh gillnet category interacts with bottlenose dolphins. The definition of ``large mesh gillnet'' is slightly different from the one in 50 CFR 229.2 in that it does not include an upper bound of 18 inches (45.72 cm). It includes all gillnets with a mesh size greater than or equal to 7-inches (17.8 cm) stretched mesh and would, thus, address mesh sizes larger than 18 inches (45.72 cm) where necessary.

The proposed rule also contains new definitions not currently contained in 50 CFR 229.2. For instance, ``fishing or to fish'' was added to be consistent with regulations under the Magnuson-Stevens Fishery Conservation and Management Act and to aid in enforcement of the regulations under the BDTRP. Various areas of water (e.g., ``Northern North Carolina state waters'') were defined to indicate the locations in which certain regulations would apply. Definitions of ``sunrise'' and ``sunset'' were added to indicate precise times at which certain night-time restrictions would apply. Definitions of ``beach'' and ``beach/water interface'' were added to indicate in which part of the nearshore zone certain gear restrictions would apply.

Proposed Regulated Waters

North of Cape Hatteras, North Carolina, western North Atlantic coastal bottlenose dolphins occur primarily in nearshore waters out to about 6.5 nautical miles (12 km) from shore (Garrison 2001). Garrison (2001) found that the coastal bottlenose dolphin stock occurs out to 14.6 nautical miles (27 km) from shore in the southeastern U.S. Thus, NMFS proposes to implement portions of the BDTRT recommendations in all U.S. 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 demarcation line between the Atlantic Ocean and the Gulf of Mexico (50 CFR 600.105), with the exception of exempted waters.

Exempted waters include all waters landward of the first bridge over any embayment, harbor, or inlet. In those instances where there is not a bridge over the embayment or harbor close to the mouth of the embayment or harbor, as in the case of Delaware Bay, exempted waters include all waters landward of the lines of demarcation delineating those waters upon which mariners shall comply with the International Regulations for Preventing Collisions at Sea, 1972, and those waters upon which mariners must comply with the Inland Navigation Rules as described in 33 CFR part 80 (COLREGS line). The decision was made to use the bridges, where possible, to mark the boundaries in part because the bridges are farther inshore than the COLREGS line and would, therefore, include more area under the proposed regulations.

Gear-area Measures

NMFS proposes to implement the following recommendations of the BDTRT (also found in Table 3), which are organized by bottlenose dolphin MU and specific location (persons fishing with large mesh gillnets must also adhere to pertinent conservation measures as amended by the large mesh mid-Atlantic gillnet rule; see Table 4).

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Summer Northern Migratory MU (New Jersey through Virginia) From June 1-October 31 of each year, the proposed regulations require persons fishing with medium mesh (greater than 5-inch (12.7 cm) to less than 7-inch (17.8 cm) stretch mesh) and large mesh (greater than or equal to 7-inch (17.8 cm) stretch mesh) anchored gillnets at night in state waters to remain within 0.5 nautical miles (0.93 km) of the closest portion of each gear, and to remove all such gear and stow it on board the vessel before the vessel returns to port.

Summer Northern North Carolina MU (Virginia/North Carolina border to Cape Lookout) From May 1-October 31 of each year, the proposed regulations require persons fishing with small mesh (less than or equal to 5-inch (12.7 cm) stretch mesh) gillnets to use a net length of less than or equal to 1,000 feet (304.8 m); and from April 15-December 15, prohibit fishing with large mesh (greater than or equal to 7-inch (17.8 cm) stretch mesh) gillnets in state waters (this latter provision will codify existing North Carolina state prohibitions on gillnet fishing). (Note: The 2002 consensus recommendations contained a misprint indicating this restriction would begin on April 16.)

Summer Southern North Carolina MU (Cape Lookout to North Carolina/ South Carolina border) From April 15-December 15, the proposed regulations prohibit persons fishing with large mesh (greater than or equal to 7-inch (17.8 cm) stretch mesh) gillnet gear from fishing in state waters (this latter provision will codify existing North Carolina state prohibitions on gillnet fishing). (Note: The 2002 consensus recommendations contained a misprint indicating this restriction would begin on April 16. In addition, when combined with the BDTRT recommendation for the Winter Mixed MU Southern North Carolina, the proposed regulations prohibit fishing with large mesh gillnets at night in state waters from November 1-April 30, this provision results in prohibiting fishing with large mesh gillnets at night in state waters year-round.)

Winter Mixed MU - Virginia (Cape Charles Light to Virginia/North Carolina border) From November 1-December 31, the proposed regulations prohibit persons fishing with large mesh (greater than or equal to 7- inch (17.8 cm) stretch mesh) gillnets at night in state waters and require that, at night, gear be removed from the water and stowed on board the vessel before the vessel returns to port.

Winter Mixed MU - Northern North Carolina (Virginia/North Carolina border to Cape Lookout) From November 1-April 30, the proposed regulations prohibit persons fishing with medium mesh (greater than 5- inch (12.7 cm) to less than 7-inch (17.8 cm) stretch mesh) gillnets at night in state waters. This restriction has a sunset clause of three years from the effective date of the final rule. The sunset clause is intended to ensure that NMFS and the BDTRT reconvene no later than three years after the effective date of this measure to evaluate whether it is effective at reducing dolphin bycatch and whether it should stay in effect. From December 16-April 14, the proposed regulations prohibit persons fishing with large mesh (greater than or equal to 7-inch (17.8) stretch mesh) gillnets at night in state waters without tie-downs. (Note: The BDTRT recommended this provision apply from November 1-April 30, but this period overlaps with a provision the BDTRT recommended for prohibiting large mesh gillnets (regardless of using tie-downs) in state waters from April 15-December 15. See proposed Gear-area Measures for Summer Northern North Carolina MU and Summer Southern North Carolina MU.)

Winter Mixed MU - Southern North Carolina (Cape Lookout to North Carolina/South Carolina border) From November 1-April 30, the proposed regulations prohibit persons fishing with medium mesh (greater than 5- inch (12.7 cm) to less than 7-inch (17.8 cm) stretch mesh) gillnets at night in state waters. This restriction has a sunset clause of three years from the effective date of the final rule. The sunset clause is intended to ensure that NMFS and the BDTRT reconvene no later than three years after the effective date of this measure to evaluate whether it is effective at reducing dolphin bycatch and whether it should stay in effect. From November 1-April 30, prohibit persons fishing with large mesh (greater than or equal to 7-inch (17.8 cm) stretch mesh) gillnets at night in state waters and require that, at night, gear be removed from the water and stowed on board the vessel before the vessel returns to port. (Note: When combined with the BDTRT recommendation for the Summer Southern North Carolina MU, to prohibit fishing with large mesh gillnets in state waters from April 15-December 15, this provision results in prohibiting fishing with large mesh gillnets at night in state waters year-round.)

Summer Northern North Carolina, Summer Southern North Carolina, and Winter Mixed MUs (North Carolina coast-wide) No person fishing in a Category I or II fishery may fish with a net within 300 feet (91.4 m) of the beach/water interface unless it consists of multi-fiber nylon (no type of monofilament material) that is 4 inches (10.2 cm) or less stretched mesh. NMFS proposes the 300-feet (91.4 m) distance requirement as an expansion of the BDTRT's recommendation to address the problem of bottlenose dolphin - fisheries interactions within the surf zone, evidenced by observer and stranding data. While the BDTRT recognized the need to prohibit certain nets deployed from the beach, NMFS expanded this prohibition to include the use of certain nets within 300 feet of the beach/water interface to address bottlenose dolphin bycatch throughout this area.

South Carolina, Georgia, Northern Florida, and Central Florida MUs (South Carolina, Georgia, and Florida) Except in instances where state or federal regulations require a closer proximity to gear, the proposed regulations require persons fishing with all types of gillnet gear to remain within 0.25 nmi (0.46 km) of the closest portion of their gear at all times in state and Federal waters within 14.6 nmi (27 km) from shore. In addition, the proposed regulations require that gear be removed from the water and stowed on board the vessel before the vessel returns to port.

Proposed gear marking requirements (apply to all regulated and exempted waters, as defined in Sec. 229.35 (c)(1) and (c)(2) in the regulatory text of this proposed rule) All fishermen participating in Category I or II fisheries affected by this proposed rule (except the Atlantic blue crab trap/pot fishery and Virginia pound net fishery, which already have gear marking requirements) must permanently mark their gear with identification tags containing the last name and first and middle initials of the owner, gear mesh size, and one of the following: state vessel registration number, U.S. Coast Guard documentation number, or state commercial fishing license number. For gillnet gear, in addition to identification tags, gear must be marked on one end of the net with a square flag and the opposite end with another square flag or ball buoy (see Table 3 or regulatory text at 229.35(d)(1) and (d)(2) for specific requirements).

NMFS is proposing gear marking requirements to assist in monitoring the performance of the proposed components of this rule to better ascertain which fisheries are interacting with dolphins and sea turtles and to assist with enforcement efforts. Some marking of gillnets and associated surface gear (e.g., buoys or flags) is currently required or being considered under Federal or state fishery

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management plans for each of the nine fisheries covered by this plan. Most fishery-related strandings of bottlenose dolphins and sea turtles involve gear that cannot be definitively traced back to a particular fishery or geographical area. Any additional information obtained from gear marking will be important for assessing fishery interactions with protected species. This measure will not directly reduce bycatch, but it is expected to facilitate monitoring of bycatch rates and assist in designing future bycatch reduction measures.

NMFS evaluated other possible gear marking requirements in the Atlantic blue crab trap/pot fishery and Virginia pound net fishery and determined that no additional gear marking requirements are currently needed. Atlantic blue crab trap/pot fishermen are currently required to mark the surface buoy, which is at least 5-inches (12.7 cm) in diameter, with an identification number contrasting in color to the buoy. Requiring additional tagging with the unique identification tags discussed above would cause an undue economic burden on the mid- Atlantic crab trap/pot fishermen (please refer to the Environmental Assessment for further details), especially given their current gear marking requirements. Virginia pound net fishermen are also currently required to mark the holding stake or pole with a unique identification tag. Because there are already other state and Federal gear marking requirements in place for these fisheries, significant additional information is not likely to be obtained, in the event of the serious injury or mortality of a dolphin, from further gear marking requirements. Therefore, no additional gear marking requirements are currently proposed for the mid-Atlantic crab trap/pot and Virginia pound net fisheries.

Table 3. Summary of proposed bottlenose dolphin regulatory measures.

Gillnet Mesh Size Requirements (Stretch Mesh)

Management Unit

Fishing Area

Time Period

Medium (>5 in to