Taking of Marine Mammals Incidental to Commercial Fishing Operations; Harbor Porpoise Take Reduction Plan Regulations

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 229

[Docket No. 970129015-8157-07; I.D. 042597B]

RIN 0648-AI84

Taking of Marine Mammals Incidental to Commercial Fishing

Operations; Harbor Porpoise Take Reduction Plan Regulations

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA), Commerce.

ACTION: Proposed rule; notice of availability of proposed take

reduction plan.

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SUMMARY: NMFS announces the availability of a proposed harbor porpoise

take reduction plan (HPTRP) to reduce the bycatch of harbor porpoise

(Phocoena phocoena) in gillnet fisheries throughout the stock's U.S.

range. NMFS also proposes regulations to implement the HPTRP. The

proposed plan, including a discussion of the recommendations of the

Gulf of Maine Take Reduction Team (GOMTRT) and the Mid-Atlantic Take

Reduction Team (MATRT), is contained in the HPTRP/Environmental

Assessment/Initial Regulatory Flexibility Analysis (HPTRP/EA/IRFA),

available upon request (see addresses below). Changes to the

recommendations of the GOMTRT and the MATRT are described within this

document. This action replaces the proposed rule issued on August 13,

1997 (62 FR 43302).

The potential biological removal (PBR) level for Gulf of Maine

harbor porpoise throughout their range is 483 animals (62 FR 3005,

January 21, 1997). The incidental bycatch of harbor porpoise in the

Gulf of Maine (GOM) and Mid-Atlantic gillnet fisheries exceeds the PBR

level. The proposed HPTRP would use a wide range of management measures

to reduce the bycatch and mortality of harbor porpoise. In the GOM, the

HPTRP proposes time and area closures and time/area periods during

which pinger use would be required in the Northeast, Mid-coast,

Massachusetts Bay, Cape Cod South and Offshore Closure Areas. In the

Mid-Atlantic area, the HPTRP proposes time/area closures and

modifications to gear characteristics, including floatline length,

twine size, tie downs, and number of nets, in the large mesh and small

mesh fisheries. NMFS seeks comment on the proposed HPTRP/EA/IRFA, and

the proposed regulations to implement the plan.

DATES: Comments due October 13, 1998.

ADDRESSES: Copies of the draft plan prepared by the GOMTRT, the final

report from the MATRT and the HPTRP/EA/IRFA may be obtained from Donna

Wieting, Office of Protected Resources, National Marine Fisheries

Service, 1315 East-West Highway, Silver Spring, MD 20910-3226.

FOR FURTHER INFORMATION CONTACT: Donna Wieting, NMFS, 301-713-2322 or

Laurie Allen, NMFS, Northeast Region, 978-281-9291.

SUPPLEMENTARY INFORMATION: The 1994 amendments to the Marine Mammal

Protection Act (MMPA) require the preparation and implementation of

TRPs for strategic marine mammal stocks that interact with Category I

or II fisheries. A Category I fishery is a fishery that has frequent

incidental mortality and serious injury of marine mammals. A Category

II fishery is a fishery that has occasional incidental mortality and

serious injury of marine mammals. A Category III fishery is a fishery

that has a remote likelihood of causing incidental mortality or serious

injury of marine mammals.

This proposed rule addresses preparation and implementation of a

take reduction plan (TRP) for harbor porpoise, a strategic marine

mammal stock, that interacts with the NE multispecies gillnet fishery

and with the Mid-Atlantic coastal gillnet fisheries. The 1996 Stock

Assessment Report (SAR) (Waring et al., 1997) states that harbor

porpoise bycatch has been observed by the NMFS Sea Sampling program in

the following fisheries: (1) the Northeast (NE) multispecies sink

gillnet, (2) the mid-Atlantic coastal gillnet, (3) the Atlantic drift

gillnet, (4) the North Atlantic bottom trawl fisheries, and (5) the

Canadian Bay of Fundy sink gillnet fishery. The fisheries of greatest

concern, and the subject of this TRP, are the NE multispecies sink

gillnet fishery (Category I), and the Mid-Atlantic coastal gillnet

fishery (Category II).

The Atlantic drift gillnet fishery, a Category I fishery, is being

addressed by the Atlantic Offshore Cetacean Take Reduction Team

(AOCTRT). The North Atlantic bottom trawl fishery is a Category III

fishery and is not the subject of take reduction efforts at this time.

The Canadian sink gillnet fishery

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takes approximately 100 harbor porpoise per year. This proposed rule is

expected to reduce harbor porpoise bycatch below the PBR level,

including the 100 takes by the Canadian fishery.

The NE multispecies sink gillnet fishery comprises the majority of

the overall multispecies gillnet activity in New England. Harbor

porpoise may, however, interact with other gillnet fisheries capable of

capturing multispecies. Additionally, new non-sink gillnet fisheries

could be introduced into harbor porpoise conservation areas. Therefore,

this proposed rule would apply to all gillnets in New England capable

of catching NE multispecies.

Under the 1994 Amendments to the MMPA, the short-term goal of a TRP

is to reduce, within 6 months of its implementation, the mortality and

serious injury of strategic stock(s) incidentally taken in the course

of commercial fishing operations to less than the PBR level established

for those stock(s). The PBR level is the maximum number of animals, not

including natural mortalities, that may be annually removed from a

marine mammal stock without compromising the ability of that stock to

reach or maintain its optimum population level. The goal of this TRP is

to bring the combined incidental take of the GOM harbor porpoise stock

below the PBR level for all U.S. fisheries that interact with that

stock.

NMFS convened the GOMTRT in February 1996. The goal of the GOMTRT

was to develop a consensus draft TRP to reduce the incidental take of

harbor porpoise in sink gillnets in the GOM to the PBR level for that

stock within 6 months of the TRP's implementation. NMFS limited the

geographic scope of the 1996 team to focus only on bycatch off New

England's coast (Maine to Rhode Island). The reason for this approach

was because the proportion of incidental take in the NE multispecies

sink gillnet fishery constituted the majority of the total fishery-

related mortality in the United States and because of uncertainty about

the extent of fisheries interactions south of New England. Data on the

bycatch of harbor porpoise in the Mid-Atlantic were not available until

1996 due to low observer effort prior to 1995 and the lag in

availability of appropriate effort data to estimate bycatch. The GOMTRT

convened with the understanding that a separate take reduction team

would be convened to address the harbor porpoise bycatch problem in the

Mid-Atlantic (discussed here).

The GOMTRT included representatives of the NE multispecies sink

gillnet fishery, NMFS, state marine resource management agencies, the

New England Fishery Management Council (NEFMC), environmental

organizations, and academic and scientific organizations. The GOMTRT

met five times between February and July 1996 and submitted a consensus

draft TRP (the GOMTRP) to NMFS in August 1996.

Soon after the GOMTRT submitted a draft TRP, the NEFMC enacted

Framework Adjustment 19 (61 FR 55774, October 29, 1996) to the NE

Multispecies Fishery Management Plan (FMP) which changed the time and

area of the NE Multispecies FMP Mid-Coast Closure Area within the GOM

and established an exemption to allow sink gillnet vessels to fish the

reopened area when utilizing pingers on their nets. Based on this

action, NMFS modified the draft TRP submitted by the GOMTRT to be

consistent with Framework Adjustment 19 and, on August 13, 1997,

published a proposed rule to implement a TRP for harbor porpoise in the

GOM (GOMTRP) (62 FR 43302, August 13, 1997).

NMFS convened the MATRT in February 1997 to address the incidental

bycatch of harbor porpoise in Mid-Atlantic gillnet fisheries (from New

York through North Carolina). The MATRT included representatives of the

Mid-Atlantic coastal gillnet fisheries, NMFS, state marine resource

management agencies, the Mid-Atlantic Fishery Management Council, the

NEFMC, the Atlantic States Marine Fisheries Commission (ASMFC),

environmental organizations, and academic and scientific organizations.

The MATRT did not reach consensus on all issues discussed. The MATRT

submitted a report to NMFS on August 25, 1997 which included both

consensus and non-consensus recommendations. NMFS has not previously

published a proposed rule to implement a Mid-Atlantic Take Reduction

Plan (MATRP).

Harbor Porpoise Take Reduction Plan

This proposed rule would implement the HPTRP for the GOM and Mid-

Atlantic geographic areas. This HPTRP is based in large part on

recommendations in the draft GOMTRP and the MATRT Report. This proposed

rule replaces the previous proposed rule published to implement the

GOMTRP (62 FR 43302, August 13, 1997). The GOMTRP proposed rule is

being replaced because three developments have occurred since the

publication of that rule. First, new bycatch information became

available which indicated that significant changes were needed in the

GOMTRP to achieve the PBR level for harbor porpoise. NMFS reconvened

the GOMTRT on December 16 and 17, 1997, to discuss this new information

and to provide additional comments to NMFS. Secondly, Framework 25 to

the NE Multispecies FMP, published on March 31, 1998 (63 FR 15326), was

implemented on May 1, 1998; this framework implements gillnet fishing

closures throughout the GOM to conserve cod (Gadus morhua). Some of

these closures may indirectly provide harbor porpoise conservation.

Thirdly, the MATRT submitted its report to NMFS which presented new

information on the level of harbor porpoise bycatch in the mid-Atlantic

region.

The combination of these actions led NMFS to integrate the

initially separate plans into one comprehensive TRP. Since the revised

plan is substantially different from the 1997 GOMTRP, NMFS is replacing

the 1997 proposed rule with this proposed rule.

Stock Assessment

The range of the harbor porpoise extends from the Bay of Fundy,

Canada, to the southern border of North Carolina. The cumulative levels

of incidental mortality and serious injury of harbor porpoise occurring

in the New England, Mid-Atlantic, and Canadian gillnet fisheries exceed

the PBR level for this stock.

The PBR level for harbor porpoise is 483 animals per year. This is

a strategic stock because average annual fishery-related mortality and

serious injury exceeds the PBR level. There are insufficient data to

determine population trends for this species. NMFS proposed listing the

GOM harbor porpoise as threatened under the Endangered Species Act (58

FR 3108, January 7, 1993), but no final action has been taken on that

proposal.

Incidental Takes by Fishery

The estimated total annual average mortality from New England and

Mid-Atlantic gillnet fisheries is 2,040. This estimate is based on a 5-

year (1990-1995) average mortality estimate of 1,833 (Waring et al.,

1997) for the GOM and based on preliminary analysis of 1995 and 1996

data from the Mid-Atlantic of 207 animals (Palka, unpublished data).

The NE multispecies sink gillnet fishery sets nets on the ocean

bottom, where they are fixed by anchors. These nets are primarily used

to catch groundfish (cod, haddock, hake, pollock and flounders),

monkfish, and dogfish.

[[Page 48672]]

The fishery primarily consists of small vessels, (about 30-50 feet (10-

17 meters) in length), that operate from numerous ports throughout New

England. A vessel may fish between 40 and 200 nets, depending on target

species. Nets are usually approximately 300 feet (92 meters) long and

are tied together in strings of one to 30 nets.

The Mid-Atlantic coastal gillnet fishery comprises several gillnet

fisheries, which operate from New York to North Carolina. The mesh

sizes range from 2.5 to 12 inches (6.35 to 30.48 cm), with the smallest

mesh sizes used to capture small fish, such as spot and shad. Medium

mesh sizes are used to capture weakfish, striped bass, spiny dogfish,

and bluefish. The largest mesh sizes are used for Atlantic sturgeon and

monkfish. Observer coverage of the Mid-Atlantic coastal gillnet fishery

was initiated by the Northeast Fisheries Science Center (NEFSC) Sea

Sampling Program in July 1993.

HPTRP: Gulf of Maine Component

The GOM portion of the HPTRP would govern and pertain to all

fishing with sink gillnets and other gillnets capable of catching

multispecies, in the inshore and offshore waters of New England, from

Maine through Rhode Island, east of 72 deg.30' W. longitude.

NMFS proposes a schedule of periods and areas which would be closed

to multispecies gillnet fishing unless pingers are employed in the

prescribed manner (Table 1). Some areas are total fishery closures

where no fishing is allowed. In all closed areas, where pingers are

required, vessel operators must complete training in pinger use and

have a valid pinger training certificate on board the vessel.

Table 1.--Gulf of Maine Time/Area Closures to Gillnet Fishing and

Periods During Which Pinger Use Would Be Required

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Northeast Area:

August 15-September 13--Closed.

Mid-Coast Area:

September 15-May 31--Closed, gillnet with pingers allowed.

Massachusetts Bay Area:

February 1-28/29--Closed, gillnet with pingers allowed.

March 1-31--Closed

April 1-May 31--Closed, gillnet with pingers allowed.

Cape Cod South Area:

September 15-February 28/29--Closed, gillnet with pingers allowed.

March 1-31--Closed

April 1-30--Closed, gillnet with pingers allowed.

Offshore Area:

September 15-May 31--Closed, gillnet with pingers allowed.

Cashes Ledge Area:

February 1-28/29--Closed

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Discussion of the Gulf of Maine Component

NMFS determined that the August 13, 1997, proposed rule (62 FR

43302) would not adequately reduce harbor porpoise bycatch in the GOM.

The results of the new GOM bycatch estimates presented at the December

16-17, 1997 GOMTRT meeting suggest that: (1) bycatch reduction is being

achieved in the Mid-Coast and Northern Maine closure areas; (2) bycatch

in 1997 was greater than in 1996 in the Massachusetts Bay and the Cape

Cod South areas; (3) bycatch offshore was noted in 1996 and 1997;

however, it is difficult to compare these data with years prior to

1996, since the offshore fishery had very little observer coverage in

those years; (4) although bycatch reduction is occurring in specific

areas and times, the PBR level is not being achieved overall; and (5)

the August 13, 1997, proposed rule to implement the GOMTRP is unlikely

to achieve the PBR level. Additionally, Framework 25 to the NE

Multispecies FMP has significantly changed the management measures that

are implemented under the Magnuson-Stevens Fishery Conservation and

Management Act (Magnuson-Stevens Act) to protect GOM cod. Existing

closures for marine mammals (which were a key part of the GOMTRP) and

Framework 25 closure periods partially overlap and result in a very

complex system of closures (see Figure 1).

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Figure 1 illustrates the change the ``rolling closure'' for cod

conservation makes to current marine mammal closure boundaries and

times in the GOM. The entire old Massachusetts Bay and Mid-Coast

Closure Areas would be divided into four approximately even areas.

The Massachusetts Bay Closure Area would not change on the northern

boundary but would be larger to the east; it would still be closed

March 1-31. The Mid-Coast Closure Area would then be closed completely

in relatively equal sections, Inshore Closure Area II (April), Inshore

Closure Area III (May), and Inshore Closure Area IV (June). Previously,

the entire shaded area labeled ``Mid-Coast'' was closed May 10-30 for

NE Multispecies FMP concerns and March 25-April 25 for harbor porpoise

conservation. Under this proposed rule, the boundary of the Mid-Coast

Closure Area would not change, with the exception of a small area just

east of Inshore Closure Area III, but pingers would be allowed.

The Inshore Area closures provide some protection for harbor

porpoise in Areas II and III; however, the closure in Area IV is

relatively insignificant for reducing bycatch of harbor porpoise due to

the timing of the measures. A year round closure of parts of Jeffreys

Ledge and Stellwagen Bank (Western GOM area closure) has been added by

Framework 25 to the NE Multispecies FMP and it also provides protection

for harbor porpoise. The northeast closure area remains unchanged for

either purpose.

Overall, NMFS expects that these proposed HPTRP implementing

regulations would reduce harbor porpoise bycatch from the current level

of approximately 1,833 animals per year in the Gulf of Maine area to

309 animals per year.

HPTRP: Mid-Atlantic Component

The Mid-Atlantic portion of the HPTRP would govern and pertain to

all fishing with gillnets in the inshore and offshore waters of the

Mid-Atlantic west of 72 deg.30' W. longitude to the Mid-Atlantic

shoreline from NY to NC, with exemptions inshore of the first bridge

over embayments and other similar areas as specified by the proposed

regulations.

Tables 2 and 3 set forth management measures for large mesh and

small mesh gillnet fisheries in the Mid-Atlantic. Separate gear

requirements are specified for large mesh (7 inches (17.78cm) to 18

inches (45.72cm)) and small mesh gear (less than 7 inches (17.78 cm)).

There remain some areas that are total closures where no fishing is

allowed at all. The effective period for the Mid-Atlantic Component of

the HPTRP is:

New Jersey waters, and U.S. waters off New Jersey out to

72 deg.30' W. longitude offshore--January 1 through April 30

Southern Mid-Atlantic (MD, DE, VA, NC) and U.S. waters off

the southern Mid-Atlantic out to 72 deg.30' W. longitude offshore--

February 1 through April 30.

Table 2.--Management Measures for the Large Mesh Gillnet Fishery \1\ in

the Mid-Atlantic

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Floatline Length:

New Jersey Mudhole............... Less than or equal to 3,900 ft

(1188.7 m).

New Jersey Waters (excluding Less than or equal to 4,800 ft

Mudhole). (1463.0 m).

Southern Mid-Atlantic............ Less than or equal to 3,900 feet

(1188.7 m).

Twine Size:

All Mid-Atlantic Waters.......... Greater than or equal to .90 mm

(.035 inches).

Tie Downs:

All Mid-Atlantic Waters.......... Required.

Net Cap:

All Mid-Atlantic Waters.......... 80 nets \2\ (nets are 300 ft

(91.4 m) long).

Time/Area Closures:

New Jersey waters out to 72 Closed from April 1-April 20.

deg.30' W. longitude offshore

(including the Mudhole).

New Jersey Mudhole............... Closed from February 15-March 15.

Southern Mid-Atlantic waters (MD, Closed from February 15-March 15.

DE, VA, NC) out to 72 deg.30' W.

longitude offshore.

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\1\ Includes gillnet with mesh size of 7 inches (17.78cm) to 18 inches

(45.72cm).

\2\ Requires all nets to be tagged by January 01, 2000.

Table 3.--Management Measures for the Small Mesh Gillnet Fishery \3\ in

the Mid-Atlantic

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Floatline Length:

New Jersey waters--less than or equal to 3,000 feet (914.4 m)

Southern Mid-Atlantic waters--less than or equal to 2,118 feet

(645.6 m).

Twine Size (applies only to mesh sizes greater than 4 inches (10.2 cm)):

greater than or equal to .81 mm (.091 inches) in all Mid-Atlantic

waters.

Net Cap: 45 nets \4\ (nets are 300 feet (91.4 m) long) in all Mid-

Atlantic waters.

Time/Area Closures: New Jersey Mudhole Closed from February 15--March

15.

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\3\ Includes gillnet with mesh size of less than 7 inches (17.78cm).

\4\ Requires all nets to be tagged by January 01, 2000.

The New Jersey Mudhole is defined as an area bounded as follows:

from the point 40 deg.30' N. latitude where it intersects with the

shoreline of New Jersey east to its intersection with 73 deg.20' W.

longitude, then south to its intersection with 40 deg.05' N. latitude,

then west to its intersection with the shoreline of New Jersey.

Discussion of the Mid-Atlantic Component

The Mid-Atlantic portion of the plan divides gillnet activity into

large and small mesh categories and requires gear modifications for

those mesh categories based on observer data. Observer data showed

patterns or trends where reduced bycatch might be achieved if certain

combinations of gear characteristics were used. The gear

characteristics that demonstrated the most potential for bycatch

reduction in the large mesh and small mesh fisheries were floatline

length, twine size, tie downs and soak time. There are no proposed

measures to reduce soak time because this measure is very difficult to

[[Page 48675]]

enforce. Since NMFS believes that the combination of gear modifications

and time/area closures will achieve the PBR goal, soak time is not

proposed as a management measure.

None of the gear characteristics alone were strongly correlated

with reduced bycatch, therefore a number of measures were combined to

achieve the bycatch reduction goal. Since these measures would be

ineffective if effort increases, a net cap or net limit is proposed to

keep effort at current levels.

Additionally, the proposed rule sets forth a schedule of fishery

closures in areas and at times most closely linked with high harbor

porpoise bycatch based on the observer data. NMFS agreed with the MATRT

that closures were essential to achieving the PBR level given that the

correlation between gear modifications and specific levels of reduced

bycatch is not clear.

The small mesh and large mesh categories are specifically designed

to exclude both the large mesh pelagic fishery for swordfish, tuna, and

shark (greater than 18 inches (45.7 cm)) and, for some gear

modifications, the very small mesh gear that is commonly used close to

shore (less than 4 inches (10.16 cm)). The gear modifications include

twine size specifications, net caps, floatline length limits, tie-down

specifications and net panel length limits. The large mesh pelagic

drift gillnet fishery (Category I fishery) is not addressed in this

rule because it is being addressed by the AOCTRT. The inshore fishery,

which would include very small mesh, is not subject to this rule

because observer data is inadequate at this time to determine the

expected take in the inshore fishery. The proposed rule would

completely close the large mesh gillnet fishery for three periods and

the small mesh gillnet fishery for one period. The proposed TRP would

prohibit tie-downs in the small mesh gillnet category to prevent

fishers from effectively fishing for certain species, e.g., monkfish,

using smaller mesh during the closed period for large mesh. This

measure is expected to avoid the potential for effort shifts.

This component of the plan differs from the GOM component because

rather than using a series of time and areas closed to fishing and

times and areas where acoustic deterrents are required, the Mid-

Atlantic portion requires a suite of gear modifications. The

distinction in management measures between the two regions is

appropriate in this case for a number of reasons. The regions differ

markedly in stages of development with regard to harbor porpoise

conservation. Whereas the GOMTRT has been meeting and proposing various

bycatch reduction measures for the GOM for many years, the MATRT has

only met in the last two years. The GOMTRT proposed a number of

measures initially which did not include mandated pinger use prior to

the current recommendation. Based on new information, those measures

were determined to be unsuccessful in achieving the PBR level. With

regard to the use of pingers as an appropriate management measure in

the GOM, no data exist to support other options, except for total

closure to sink gillnet fishing. In the Mid-Atlantic, data indicated

other options in the form of gear modifications that might be

successful in reducing bycatch without some of the uncertainties

surrounding widespread pinger use.

For the Mid-Atlantic area, the HPTRP would institute the first set

of management measures to reduce harbor porpoise bycatch in that

region. Since a number of options are available which may be

successful, NMFS would implement non-acoustic measures before proposing

pinger testing. Additionally, the MATRT did not fully support a pinger

experiment in the Mid-Atlantic area at this time. The gear

modifications and time/area closures recommended by the MATRT and

proposed in this proposed rule are expected to be sufficient to reduce

the incidental mortality of harbor porpoise from approximately 207

animals per year to less than 50 animals per year in the Mid-Atlantic

area. Non-Regulatory Components of the HPTRP

In addition to recommending regulatory measures, both the GOMTRT

and the MATRT recommended certain non-regulatory measures. The GOMTRT

provided specific recommendations at the December 1997 meeting upon

which its acceptance of more widespread pinger use and closures was

contingent. These recommendations included the need for: (1) an

assessment of pingers on habituation and displacement of harbor

porpoise, and long term ecosystem impacts, (2) a census of the gillnet

fleet, (3) investigation of funding for pinger technology development

and purchase, (4) development and implementation of a training and

certification program for fishers that will use pingers, and (5)

additional analytical support for NMFS to ensure the progress of the

plan's effectiveness can be adequately monitored. These components are

part of the proposed HPTRP. A specific discussion of these

recommendations and NMFS'' response to the recommendations are

contained in the HPTRP/EA/IRFA. The following summarizes NMFS efforts

to address the concerns raised by the GOMTRT:

(1) A study to evaluate the habituation and displacement question

is already funded and underway. As part of the HPTRP, NMFS is

developing a research plan to assess long-term ecosystem impacts from

widespread use of pingers.

(2) As part of monitoring strategy for the HPTRP, NMFS is working

with the ASMFC on the Atlantic Coastal Cooperative Statistics Program

(ACCSP) in order to provide managers with more timely bycatch and

fisheries information on the Atlantic Coast. Meanwhile, NMFS is

continuing to look for ways to improve data collection efforts within

the current system.

(3) NMFS is investigating options for providing support to fishers

for pinger technology.

(4) The proposed rule would require all fishers who wish to use

pingers in the closed areas to attend training and obtain

certification. This certification program would not only provide

training in technical aspects of pinger use, but also provide

information on the bycatch problem and the need for fishers to use

pinger technology properly to meet bycatch reduction objectives. NMFS

is investigating the best method of delivering this program to fishers.

(5) NMFS will consider the GOMTRT's recommendation for analytical

resources during normal funding and staffing allocation discussions in

light of other agency responsibilities.

The MATRT made several recommendations that were considered

important in achieving the long-term goals for bycatch reduction in the

Mid-Atlantic. The non-regulatory measures recommended by the team

primarily focus on NMFS' long-term research, monitoring, and management

objectives.

The MATRT recommended that NMFS obtain a characterization of winter

coastal gillnet and small boat fisheries and to designate observer

coverage accordingly.

NMFS has proposed to expand its observer coverage of the Mid-

Atlantic fisheries in 1998 to obtain a better characterization of other

coastal fisheries to ensure observer coverage is representative of

actual fishing effort.

The MATRT recommended that an outreach program be conducted to

inform fishers of both new and existing regulations regarding

incidental takes in their fisheries. The MATRT believes that these

educational efforts should, if possible, be specifically directed

toward those fishers using the fishing gear and/or practices that have

higher levels of harbor porpoise bycatch.

NMFS agrees. The HPTRP provides for voluntary skipper education

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workshops. Additionally, NMFS plans to prepare educational materials

which will describe the take reduction process and explain the key

components of the MATRP and its accompanying regulations. NMFS will

ensure that these educational materials are widely distributed

throughout the fishery.

The MATRT recommended several measures to enhance the effectiveness

of NMFS' observer program, including expanding marine mammal observer

coverage to include all areas covered by the MATRT, increased observer

coverage in small mesh fisheries and better coordination between the

activities of the stranding and observer programs to allow shifts of

observer coverage in response to stranding information.

NMFS is planning to expand observer coverage to ensure that all

components of the fishery are observed. Due to limited resources, NMFS

will not be able to increase observer coverage in areas of the fishery

that are already being observed at some level. Additionally, NMFS is

expanding stranding observer coverage to allow for responsiveness to

observed strandings.

To provide the necessary coordination between the teams and

consistency across the regions, NMFS, at the recommendation of the

GOMTRT, included several members of the GOMTRT on the MATRT. NMFS will

strive to ensure that data on bycatch and effort in both areas will be

shared with both teams.

NMFS' long-term goal is to combine the GOMTRT and the MATRT to

allow for the development of comprehensive strategies to reduce harbor

porpoise bycatch on the east coast. Team Recommendations and NMFS''

Proposed Changes

Gulf of Maine Component

The GOMTRT developed a comprehensive approach to the problem and

included: (1) a core management plan that consisted of a schedule of

time/area closures and periods when pingers would be required for each

of the established management areas, (2) an implementation plan, and

(3) a series of recommendations regarding data collection and analysis

(details regarding these elements can be found in 62 FR 43302, August

13, 1997, and is incorporated by reference).

The August 13, 1997 proposed rule (62 FR 43302) would have

implemented a schedule of time/area closures and periods during which

pingers would be required for each of the established sink gillnet

management areas. The proposed regulations included a comprehensive

approach based on the GOMTRT's draft plan and on the measures

implemented by the NEFMC as discussed above. The proposed GOMTRP

regulations maintained the comprehensive approach recommended by the

GOMTRT. Comments on the proposed rule are addressed in this document.

Following is a discussion of the area-by-area management

recommendations and data and the explanations for why NMFS is proposing

to retain some provisions as recommended by the GOMTRT at its December

16 and 17, 1997 meeting, and why some changes to the GOMTRT's

recommendations are being proposed.

Northeast Area

Currently, the Northeast Area is closed to sink gillnet fishing

from August 15 through September 13 of each year. This closure remains

in effect under Framework 25 to the NE Multispecies FMP so no further

management measures (pingers) are being considered at this time. This

measure was considered sufficient by the GOMTRT and NMFS, and

represents no change from the proposed rule issued on August 13, 1997.

Mid-Coast Area

Since Framework 4 to the NE Multispecies FMP (59 FR 26972, May 25,

1994) went into effect, the Mid-Coast Area has been closed to fishing

with sink gillnets from March 25 to April 25 of each year (this first

took effect in 1995). In the past, the Mid-Coast Area has been closed

from September 15 through the end of the year. In 1995, sink gillnet

fishers were allowed to operate in the area with no restrictions from

September 15 through October 31, and were allowed to participate in an

experimental fishery in certain parts of the area in November and

December, provided they used pingers in accordance with NMFS

specifications. In 1996, gillnetters were also allowed to participate

in an experimental fishery from September 15 to October 31, and

Framework Adjustment 19 to the NEFMP authorized sink gillnet fishing

with pingers in the area for the months of November and December.

Framework Adjustment 19 also closed a portion of the Mid-Coast Area

known as Jeffreys Ledge Closure Area from May 1-May 31 in 1997.

While the HPTRP does not include a complete closure in the Mid-

Coast Area, Framework 25 to the NE Multispecies FMP provides three,

month-long closures in different parts of the Mid-Coast Area

(previously described). The months of April and May had significant

harbor porpoise bycatch in 1994-1996 and therefore, the Framework 25

closure is expected to reduce harbor porpoise bycatch, but it is not

clear to what extent. The requirement for pingers in March will reduce

the likelihood that significant takes would occur because of effort

shifts back into that month. The Western GOM Area Closure (includes

portions of Jeffreys Ledge and Stellwagen Bank) is being implemented as

a year-round closure under Framework 25 to the NE Multispecies FMP.

This overlaps the eastern edge of the current Mid-Coast closure.

The GOMTRT agreed that pingers were likely to reduce harbor

porpoise bycatch by 90 percent during the fall in the Mid-Coast area.

This plan assumes 80 percent effectiveness which would allow for some

uncertainty in spring.

Massachusetts Bay

Currently, Massachusetts Bay is closed to fishing with sink

gillnets during the month of March. This is the time of year during

which most known takes in the region were recorded. This measure is

considered sufficient by the GOMTRT and NMFS and is consistent with

Framework 25 to the NE Multispecies FMP. When combined with the pinger

measure described here, no change in the closures for this area appears

warranted.

In March 1996, NMFS authorized fishers to operate in Massachusetts

Bay as part of an experimental fishery, provided they used pingers in

accordance with NMFS's instructions. The GOMTRT was uncertain that

pingers would significantly reduce the take of harbor porpoises during

the spring in Massachusetts Bay. The GOMTRT agreed, however, to assume

that pingers might reduce the take of harbor porpoises by 50 percent

during the spring, and it recommended that pingers be required during

February, April, and May. Again, NMFS is reluctant to assume

percentages contradictory to the results of controlled scientific

experiments and is proposing to assume 80 percent for the first year of

plan implementation. Refer to the section on acoustic deterrent devices

for further explanation.

Closures during these months would decrease fishing opportunity

significantly, with relatively little additional reduction in bycatch

of harbor porpoises. Because March is the month with the highest risk

of entanglement, the Team recommended that March be closed to sink

gillnet fishing. April bycatch in 1996 was high for this area, possibly

a result of shifted effort from March to April, or differences in

harbor porpoise abundance and distribution. The goal of

[[Page 48677]]

the HPTRP is to reduce the bycatch resulting from such effects by

requiring pingers on the months on either side of the complete closure.

Cape Cod South Closure Area

The possibility that harbor porpoise may be entangled in sink

gillnets operating just south of Cape Cod has only recently been

documented. Observer coverage of sink gillnet trips in this area began

in 1992.

Currently, the Cape Cod South Closure Area is closed to fishing

with sink gillnets during the month of March. Up until 1996, most known

takes in the region occurred during this month. The current closures

are considered sufficient by the GOMTRT and NMFS, and no change in the

complete closures for this area is warranted. Given the relatively low

level of bycatch during these months, the Team believed that the use of

pingers to minimize bycatch would be sufficient.

Offshore Closure Area

Observer coverage in the offshore closure area was limited until

1996, and harbor porpoise takes that year were very high, estimated at

258 in the winter (mostly February) and 45 in the fall (September-

December). This raised significant concerns at the GOMTRT meeting in

December 1997 and offset some of the expected positive effects of many

of the other harbor porpoise measures at reducing the overall bycatch

estimate from 1995 (total bycatch in GOM was approximately 1400 in 1995

and 1500 in 1996). In 1997, there were observed takes in January and

May, again demonstrating the variable nature of these interactions.

Consequently, a complete closure in this area was discussed by the

GOMTRT in December 1997, with a closure requiring pingers in the months

adjacent to that closure to address the possible shifts in bycatch.

Since 71 percent of the bycatch occurred in the Cashes Ledge Area

during February in 1996, complete closure of this area was a logical

choice, with pinger use required in the larger offshore area from

September through May.

Mid-Atlantic Component

The MATRT draft report recommended modifications of those gear

characteristics and fishing activities that appeared to be most closely

linked with higher harbor porpoise bycatch. The intent of the MATRT was

to focus management measures on those fisheries that appeared most

responsible for higher bycatch. In the Mid-Atlantic, those fisheries

are the monkfish and dogfish fisheries. Based on observer data, the

draft report also recommended a schedule of fishery closures in areas

and at times most closely linked with high harbor porpoise.

The MATRT's report reflected the results of the data analysis,

indicating that nets with finer twine size and longer floatline lengths

were correlated with more cetacean interactions than were nets with

larger twine sizes and shorter nets. The MATRT recommended that, in

observed areas of high bycatch, decreasing the total length of nets and

increasing the twine size in fisheries operating in those areas at

critical times might reduce the number of interactions.

The MATRT determined the time frame for effectiveness of the

management measures based on when and where harbor porpoise takes have

been observed to occur. Harbor porpoise takes were observed between

January and April from New Jersey to North Carolina, although January

takes were only observed in New Jersey. The month with the highest

bycatch was March, followed by January. Areas with highest bycatch were

in New Jersey waters and, particularly for the monkfish subfishery, in

the area off New Jersey called the Mudhole.

The MATRT recommended that a number of management measures be

combined to achieve bycatch reduction below the PBR level because none

of the gear characteristics alone were strongly correlated with reduced

bycatch. Since these measures would be ineffective if effort increased,

the MATRT recommended a net cap or net limit to keep effort at current

levels. The net cap was set at the current average of 80 nets for

monkfish and 45 nets for dogfish. Additionally, because of the

uncertainty inherent in the data analysis, the MATRT recommended the

use of time and area closures during times and within areas of highest

bycatch.

Specifically, the MATRT report recommended the following gear

modifications and time/area closures for the monkfish and dogfish

fisheries (Tables 4 and 5): Effective period for both Tables.

New Jersey waters, and U.S. waters off New Jersey out to

200 miles--January 1 through April 30.

Southern Mid-Atlantic (MD, DE, VA, NC) and U.S. waters off

the southern Mid-Atlantic out to 200 miles--February 1 through April

30.

Table 4.--Management Measures for the Monkfish Fishery, as Recommended

by the MATRT in its Report to NMFS

------------------------------------------------------------------------

-------------------------------------------------------------------------

Floatline Length:

New Jersey Mudhole: Less than or equal to 3,900 ft (1188.7 m) New

Jersey Waters (excluding Mudhole): Less than or equal to 4,800 ft

(1463.0 m).

Southern Mid-Atlantic: Less than or equal to 3,900 ft (1188.7 m).

Twine Size:

All Mid-Atlantic Waters: Greater than or equal to .90 mm (.35

inches).

Mesh Size:

All Mid-Atlantic Waters: 12 inches (3.1 cm).

Tie Downs:

All Mid-Atlantic Waters: Required.

Net Cap:

All Mid-Atlantic Waters: 80 nets (nets are 300 ft (91.4 m) long).

Time/Area Closures:

New Jersey waters and 200 nm (370.4 km) offshore (including the

Mudhole): Closed from February 15--March 15.

Southern Mid-Atlantic (MD, DE, VA, NC) waters and 200 nm (370.4 km)

offshore: Closed for a block of 20 days between February and

April.\1\

------------------------------------------------------------------------

\1\ The specific timing of the southern Mid-Atlantic 20-day closure

would be determined by individual fishers.

[[Page 48678]]

Table 5.--Management Measures for the Dogfish Fishery, as Recommended by

the MATRT in Its Report to NMFS

------------------------------------------------------------------------

-------------------------------------------------------------------------

Floatline Length:

New Jersey waters: Less than or equal to 3,000 feet (914.4 m)

Southern Mid-Atlantic waters: Less than or equal to 2,118 feet

(645.6 m).

Twine Size:

All Mid-Atlantic Waters: Greater than or equal to .81 mm (.32

inches).

Mesh Size:

All Mid-Atlantic Waters: Less than or equal to 6.5 inches (1.7 cm).

Net Cap:

All Mid-Atlantic waters:\2\ 45 nets.

Time/area Closures:

None.

------------------------------------------------------------------------

\2\ Nets are 300 feet long.

The Mid-Atlantic component of the HPTRP follows the MATRT's

recommendations, except as discussed below. The non-consensus portions

of the MATRT's report are discussed in the HPTRP/EA/IRFA. NMFS concurs

with the MATRT's determination that the proposed management measures be

effective from January 1 through April 30 in waters off New Jersey and

from February 1 to April 30 in the southern Mid-Atlantic waters. The

difference in effective dates between New Jersey and the southern Mid-

Atlantic is based on the difference in observed harbor porpoise takes

between those areas. There were no observed takes of harbor porpoise

between July and December throughout the Mid-Atlantic because there is

little evidence that harbor porpoise are present in the Mid-Atlantic

during the summer, fall, and winter months.

The proposed HPTRP varies from the recommendations of the MATRT

because the HPTRP proposes extending jurisdiction from the seaward edge

of the coast to 72 deg.30' W. longitude offshore instead of 200 miles

offshore.

The proposed HPTRP differs from the MATRT's recommendations with

regard to basing management measures on subfisheries. The Mid-Atlantic

coastal gillnet fishery consists of both local Mid-Atlantic vessels and

New England vessels that fish in Mid-Atlantic waters during the winter

months. The New England vessels fishing in the Mid-Atlantic region use

a finer-twine gear type and more nets than the local Mid-Atlantic

vessels.

Current data indicate that the fine-twine gear used by New England

vessels is associated with a higher level of harbor porpoise bycatch

than the gear used by local fishers. As a result, the MATRT's Report

was based on bycatch reduction options that reinforced or were based on

the fishing practices used by local Mid-Atlantic fishers. The intent of

the MATRT was to address those fisheries that appeared to be correlated

with higher bycatch.

The MATRT recommended management measures specific to the two

predominant coastal gillnet fisheries, i.e., the monkfish and dogfish

fisheries. NMFS proposes management measures specific to large and

small mesh size fisheries. This approach should not change the

effectiveness of the management measures in achieving the PBR level

because the mesh size categories are consistent with the mesh size

categories of the dogfish (small mesh) and monkfish (large mesh)

fisheries. The major benefits of this modification is to make the

provisions of this action more enforceable.

Given the considerable assumptions inherent in the bycatch analysis

by subfishery, NMFS determined that regulatory measures should not be

based on subfisheries, as the MATRT intended. Rather, the regulatory

measures should be based on the characteristic(s) that appear most

related to harbor porpoise bycatch, regardless of which subfishery

employs such gear characteristics. It is the nature of the gear and how

that gear is employed, rather than the target species, that determines

whether harbor porpoise are entangled. In addition, basing regulatory

measures on the dogfish and monkfish subfisheries would be very

difficult to enforce, since the definition and prosecution of those

fisheries differs greatly among fishermen and no FMP or permit system

is currently in place under the Magnuson-Stevens Act for either

fishery. Likewise, defining ``directed fishing'' for these species and

imposing bycatch restrictions would be difficult to administer and

enforce.

In this case, twine size and floatline length appear to be the

predominant gear characteristics that are correlated with harbor

porpoise bycatch in the Mid-Atlantic. NMFS has partitioned the

regulatory measures according to large and small mesh categories. The

large mesh category, defined as mesh of 7 inches (17.78 cm) to 18

inches (45.72 cm), includes the monkfish subfishery; the small mesh

category, defined as mesh size less than 7 inches (17.78 cm), includes

the dogfish fishery.

Given the models used in the subfishery bycatch analysis, and with

the same assumptions that were used in the subfishery bycatch analysis

(with the exception of the assumption that the only subfisheries that

could potentially ever catch harbor porpoise are the dogfish and

monkfish subfisheries), the predicted effect of using the recommended

gear characteristics based on large mesh and small mesh gillnet

categories instead of dogfish and monkfish subfisheries is still

expected to result in a 79 percent or greater reduction in harbor

porpoise bycatch in the Mid-Atlantic.

The proposed HPTRP differs from the MATRT's recommendations with

regard to the timing of area closures. For the large mesh fishery (the

monkfish fishery), the MATRT recommended New Jersey waters, including

the Mudhole be closed from February 15 through March 15. NMFS proposes

that the February 15 through March 15 closure apply only to vessels

fishing in the Mudhole. Data indicate high bycatch in the rest of New

Jersey in April, therefore NMFS proposes a closure in the rest of New

Jersey from April 1 through April 20. The MATRT also recommended that

the southern Mid-Atlantic be closed for a block of 20 days between

February and April, the timing of the closure to be determined by the

individual fishers. Such a closure would be very difficult to enforce,

therefore NMFS proposes a set closure from February 15 through March 15

in the southern Mid-Atlantic. The timing of this closure is consistent

with the timing of high harbor porpoise bycatch and is consistent with

the timeframe envisioned by the MATRT.

For the small mesh fishery (the dogfish fishery), the MATRT

recommended no time and area closures. Closures may not be necessary

for most of the small mesh fishery, except in the Mudhole. The majority

of the takes in the northern area are from

[[Page 48679]]

vessels landing in New Jersey from February through April and the

fishing activity in the is particularly high during the February

through March time period. The level of effort for both the small mesh

and large mesh fisheries are very high in the Mudhole, therefore NMFS

proposes a one month closure from February 15 through March 15 in the

Mudhole for the small mesh fishery consistent with the one month

closure for the large mesh fishery. Data on Acoustic Deterrent Devices

and Implications for TRP Bycatch Reduction

NMFS, the fishing community, and the NEFMC have been exploring the

potential of mitigating incidental bycatch of harbor porpoise in

gillnets by using active acoustic alarms to warn harbor porpoise of the

presence of a gillnet. These devices have shown promise as a bycatch

reduction measure with varying success rates in both controlled

scientific experimentation and experimental fisheries. However,

scientists note that the results of these experiments should be

cautiously applied when evaluating the success or failure of bycatch

reduction in very different geographic areas or during other times than

those investigated within the experiment. Harbor porpoise may respond

differently seasonally, between geographic areas, or with differing

oceanographic conditions.

In the fall of 1994, NMFS authorized and provided support for a

cooperative scientific experiment by New England gillnet fishers and

scientists. Building on work completed in previous years (1992-1993),

the experiment sought to evaluate the effectiveness of pingers attached

to gillnets to prevent entanglement of harbor porpoise. The pingers

used in this experiment employed a wide range of frequencies, and

acoustic features of the devices may have varied due to battery life;

yet the result was a dramatic reduction in harbor porpoise bycatch

(Kraus et al., 1995). Scientific concerns remained after this

experiment. It was still uncertain why the alarms worked; harbor

porpoise may have responded directly to the sound or the sound may have

mediated the behavior of harbor porpoise prey (herring). Other

unanswered questions include the possibility of habituation of harbor

porpoise and other mammals to pingers over time and the overall

environmental effects of widespread pinger use.

As a result of the success of the scientific experiment,

experimental fisheries (an experimental fishery is not a scientifically

designed experiment, but pinger use under uncontrolled fishing

conditions) operated in the fall of both 1995 and 1996 and in the

spring of 1996. In the fall of 1996 (Sept. 15-Oct 31) experimental

fishery, three harbor porpoise were caught in 51 observed trips (198

hauls). Unfortunately, the results of the spring 1996 experimental

fishery were different from the other experiments--11 harbor porpoise

were caught in nets with pingers in the Jeffreys Ledge area (88 hauls,

9 harbor porpoise), Massachusetts Bay (171 hauls, 2 harbor porpoise),

and in the Cape Cod South Closure Area (53 hauls, no harbor porpoise)

(Waring et al., 1997).

One possible explanation is that the positive fall results may have

been due to the pingers' deterrent effects on herring (a prey species),

which are not present in the region in spring. Consequently, the GOMTRT

recommended an additional scientific pinger experiment in the spring of

1997. No harbor porpoise were caught in nets with active pingers in the

1997 experiment, demonstrating that pingers reduced the incidental

catch of harbor porpoise in sink gillnets during the spring by almost

100 percent (Kraus et al., 1997). Based on these findings, Kraus

concluded that these results appear to disprove the hypothesis that

deterrent effects on herring explain the discrepancy between results of

the fall and spring experimental fisheries. However, the 1997

experiment did not yield any alternative explanations for the

contradictory results of the spring experimental fishery.

The unanswered questions regarding pinger success add uncertainty

to predictions of pinger effectiveness in areas other than those where

the experiments occurred (in both time and area). In addition, because

of a lack of a control in the 1996 experimental fishery, conclusions

cannot be drawn about the high bycatch observed during that experiment.

Because of these uncertainties, this proposed rule uses the results of

the scientific experiments to assess the effectiveness of pingers in

reducing harbor porpoise bycatch in the GOM. NMFS recognizes that

sufficient monitoring of this fishery must occur during plan

implementation to ensure that pingers adequately reduce harbor porpoise

bycatch.

Closures for short periods of time in discrete areas have a number

of problems that decrease their effectiveness in reducing marine mammal

bycatch. Changes in distribution of fishing effort or in annual

abundance and distribution of harbor porpoise may render these closures

ineffective. The advantage of using pingers is that they can be

employed over a wide geographic area for a long period of time while

still allowing the fishery to continue. The principle findings of the

Acoustic Deterrence Workshop in 1996 (Reeves, et al.) noted that ``it

is appropriate to proceed with the full-scale integration of pingers

into the management regime for the NE multispecies sink gillnet fishery

provided that the regime includes observer and monitoring programs

adequate to verify that the bycatch remains acceptably low and that no

non-target species is affected adversely'.

Summary

In summary, based on reviewing the results of previous pinger

experiments, the recommendations from the 1996 Acoustic Deterrence

Workshop, and the discussion during the GOMTRT meeting in December

1997, this proposed rule would require widespread pinger use in the NE

multispecies sink gillnet fishery. Data from the scientific experiments

support a minimum 80 percent effectiveness rate estimate in the Mid-

Coast area in the fall and in the spring. Therefore, NMFS will apply

these pinger effectiveness rates to fall and spring pinger closures

proposed in other areas (Cape Cod South and Offshore) that lack

experimental data.

After implementation of this plan, NMFS will review harbor porpoise

bycatch rate by June 30 (i.e., after the spring fishing season) of each

calendar year to ensure that the expected pinger effectiveness rate is

being realized. Additionally, this proposed rule includes a provision

that would allow the Assistant Administrator to make adjustments in the

time or area of closures if unexpected high bycatch occurs during a

given year.

The major benefit of this aspect of the HPTRP is that by

establishing closures requiring pingers, it implements a bycatch

reduction strategy for several months on either side of complete

closures. This should help with the inter-annual and monthly

variability problem that may have contributed to keeping total bycatch

at relatively unchanged or increasing levels for the last several

years.

Pingers were discussed at length as a management option by the

MATRT. As a management strategy, it is appropriate for many reasons to

proceed with full scale integration of pingers to reduce the incidental

bycatch of marine mammals in the NE multispecies sink gillnet fishery

as a whole. However, caution has been urged by scientists and the

GOMTRT and MATRT in applying the assumptions demonstrated in New

England to other geographic areas, gear types, and times. Based on

recommendations of the Acoustic Deterrence Workshop, acoustic

[[Page 48680]]

deterrents should not be used in fisheries where other non-acoustic

management strategies are likely to be equally effective.

Comments and Responses

NMFS received numerous comments during the 60-day comment period

following its August 13, 1997, proposed rule. NMFS received further

comments when it reopened the public comment period following the

December 16-17, 1997, meeting of the GOMTRT (97 FR 32474). The

following are NMFS' responses to the comments received on the August

1997 proposed rule.

Proposed Schedule of Closures/Pinger Use

NMFS received several comments regarding the proposed schedule of

fishery closures and required pinger use. NMFS has considered these

comments in light of new information on harbor porpoise bycatch and

relevant fishery management actions that have occurred since the

publication of the proposed rule. NMFS believes that the proposed HPTRP

represents the best comprehensive management strategy for both reducing

U.S. harbor porpoise bycatch and rebuilding groundfish stocks under

Framework 25 the NE Multispecies FMP.

Comment 1: For the Mid-Coast Area, several commenters suggested

alternative schedules of fishery closures and required pinger use from

that proposed.

Response: The new proposed rule would close the Mid-Coast Area from

September 15 through May 31, but allow sink gillnet gear with pingers

during that time period. The proposed rule does not include a complete

closure in the Mid-Coast Area. However, Framework 25 to the NE

Multispecies FMP provides three 1-month closures in different sections

of the Mid-Coast Area. Additionally, Framework 25 includes a year-round

closure of parts of Jeffreys Ledge and Stellwagen Bank which NMFS

expects will provide protection for harbor porpoise.

NMFS expects that the closures under Framework 25, in combination

with pinger requirements for extended periods of time in the months on

either side of the closure, will ensure adequate bycatch reduction. If

the NEFMC makes changes to Framework 25 that NMFS expects would result

in increased harbor porpoise bycatch, the Assistant Administrator

could, under the new proposed rule, make adjustments to the timing or

area of a closure.

Comment 2: One commenter proposed an alternative schedule of

closures and pinger use for the Massachusetts Bay area as follows: (1)

maintain March 1 through March 31 closure and (2) close this area to

fishing during February and April except to vessels participating in an

experimental fishery with pingers.

Response: NMFS is proposing for the Massachusetts Bay Area: (1)

March 1 through March 31 closure, (2) February 1 through February 28/29

and April 1 through May 31 closures, but fishing with pingers allowed.

Therefore, an experimental fishery under the Magnuson-Stevens Act will

not be necessary because the NEFMC will be asked to mirror the MMPA

regulations in the current Magnuson-Stevens Act closures.

Comment 3: One commenter supported the Downeast closure as proposed

by both the GOMTRT and NMFS in its draft plan.

Response: NMFS is maintaining this closure, referred to as the

Northeast closure, in the proposed rule.

Comment 4: One commenter proposed an alternative schedule of

closures South of Cape Cod: (1) maintain March 1 through March 31

closure and (2) close this area to fishing during January, February,

April, May, September, October, November, and December except to

vessels participating in an experimental fishery with pingers.

Response: NMFS is proposing a similar schedule of closures and

pinger use for the Cape Cod South Area: (1) March 1 through March 31

closure and (2) September 15 through February 28/29 and April 1 through

April 30 closures, but fishing with pingers allowed.

Comment 5: One commenter mentioned that harbor porpoise takes have

now been observed in the offshore gillnet area, which was previously

unobserved. The commenter proposed closing the offshore gillnet area

from January 1 through May 31, and September 1 through December 31,

except to vessels participating in a experimental fishery with pingers.

Response: NMFS is proposing to close the offshore area from

September 15 through May 31, allowing pingers during that time period,

with the exception of the Cashes Ledge Closure Area (as defined in

Framework 25 to the NEFMP), which will be closed February 1 through

February 28/29. In 1996, the Cashes Ledge Closure Area contained 71

percent of approximately 258 total takes in the month of February. The

high bycatch previously undocumented in the offshore area was one of

the reasons that overall bycatch in the GOM has not decreased, in spite

of efforts by the NEFMC. Consequently, in order for the overall plan to

achieve its bycatch reduction objectives, NMFS is proposing a closure

in February with pingers required in the months adjacent to that

closure to address possible shifts in bycatch. This is the approach

used in all the other high bycatch areas (Mid-Coast, Massachusetts Bay,

and Cape Cod South).

Comment 6: One commenter stated that the harbor porpoise bycatch

data presented to the GOMTRT for the Southern New England area

exhibited significant inter-annual variability within the 3 years of

data collected. The GOMTRT agreed to extend pinger usage to this area,

but expressed concern over the minimal amount of observed data (1992-

1994) and the lack of current data. As a result, the commenter

recommended a re-examination of the alternatives for the area to better

substantiate the optimal period for closures and pinger usage.

Response: NMFS agrees that there is seasonal variability in both

harbor porpoise bycatch and fishing effort. However, based on recent

data, overall harbor porpoise distribution, and fishing effort

distribution, the HPTRP incorporates adequate bycatch reduction

measures during those months (September--April) when harbor porpoise

and fishing effort are most likely to result in high bycatch, taking

into account possible shifts in harbor porpoise distribution and

abundance or shifts in fishing effort.

Comment 7: One commenter urged NMFS to maintain and enforce the

current closures mandated by the NEFMC.

Response: See response to Comment 1 for a description of NEFMC and

harbor porpoise proposed closures. The only change to the current NEFMC

closures is in the Mid-Coast where pingers would be allowed during

March 25 through April 25. In combination with the other components of

the HPTRP, this is not expected to result in increased bycatch overall.

Pingers: Specifications and Implementation Issues

Comment 8: Two commenters noted that NMFS defined pinger broadcast

parameters in the proposed rule, but did not provide regulatory

guidance as to how it intends to either certify pingers as ``NMFS

approved'' or test and enforce the defined parameters.

Response: The proposed rule included specifications for pingers

that are required to be used in the NE multispecies sink gillnet

fishery. All pingers used in this fishery must meet those

specifications. Pinger manufacturers would be required to provide

documentation that their

[[Page 48681]]

pingers meet the specifications of this proposed rule. NMFS is not

requiring that manufacturers have their pingers certified by an

independent company to ensure they meet the specifications. NMFS will

periodically monitor whether the pingers used by the fishery meet the

specifications.

Because the harbor porpoise bycatch rate will be carefully

monitored, NMFS expects that both manufacturers and fishers will be

aware of the importance of technically correct and properly maintained

pingers. If bycatch increases because of improper pinger use or non-

effective acoustics, more restrictive measures to reduce bycatch may be

warranted. Additionally, a program that is part of the HPTRP would be

in place to monitor pingers during normal use to ensure that acoustics

of pingers do not change with time and that they maintain the

acoustical characteristics specified by the manufacturer.

Comment 9: In the proposed rule, NMFS included a description of a

pinger, including specific pinger parameters. The manufacturer and

technical supporter which provided pingers used in the GOM pinger tests

believes the following to be a more accurate description of the

acoustic deterrent device used in the NE multispecies sink gillnet

fishery: ``operates at 10kHz (plus-minus 1 kHz) broadband (contains

important harmonics) frequency at 134dB (plus-minus 4dB) re 1

micropascal at 1 meter output level, with 300 milliseconds (plus-minus

30 milliseconds) pulse width, and 4 seconds (plus-minus 400

milliseconds) pulse rate''.

Response: The pinger specifications defined in NMFS' August 13,

1997, proposed rule accurately reflect the pingers used in the GOM

pinger experiments, yet allow for a reasonable range of manufacturing

variability to ensure these pinger broadcast parameters can be produced

by different manufacturers. Therefore, no change in the specifications

is proposed.

Comment 10: One commenter suggested that NMFS require that vessels

carry four spare pingers in case of pinger malfunction.

Response: NMFS does not agree that vessel owners should be required

to carry a specific number of spare pingers in case of pinger

malfunction; the requirement that all pingers deployed must be

``operating and functional'' provides adequate direction to vessel

owners.

Comment 11: One commenter supported the NMFS proposal that

gillnetters be required to use the same pinger placement as was used in

the GOM pinger experiment.

Response: NMFS has maintained this provision in this proposed rule.

Comment 12: Two commenters urged NMFS to immediately conduct the

GOMTRT's recommended research on the effect of pingers on harbor

porpoise and other marine life and on the habituation of harbor

porpoise to pingers.

Response: A study to evaluate the habituation and displacement

question has been funded. As part of the non-regulatory components of

this HPTRP, NMFS is developing a research plan to assess long-term

ecosystem impacts from widespread use of pingers.

Comment 13: One commenter suggested that if pingers are shown to

have an adverse impact on harbor porpoise and other animals in the

ecosystem, NMFS should close those areas that are currently proposed to

be open with required pinger usage.

Response: If pingers are shown to have an adverse impact on harbor

porpoise, NMFS will reconvene the TRTs to evaluate other alternatives,

including, but not limited to, fishery closures.

Comment 14: Three commenters stated that NMFS' proposal to provide

printed educational material on pingers is inadequate, and that NMFS

should conduct pinger workshops and make attendance mandatory.

Additionally, one comment added that the GOMTRT, at its December 1997

meeting, strongly urged NMFS to undertake the recommended certification

process.

Response: NMFS agrees and plans to conduct a pinger certification

training program. After reviewing the 1996 bycatch data and proposing

to rely further on the widespread use of pingers in this proposed rule,

NMFS determined that a pinger certification program should be required

for fishers that want to fish with pingers in closed areas. NMFS

believes that this is an important aspect of the plan, especially given

the anomalous results of the 1996 experimental fishery. If these

results were partially due to improper pinger use by fishers, NMFS

would expect that this mandatory training and certification program

would increase the chances that pingers would be highly effective.

The GOM component of the HPTRP would require that all fishers who

wish to fish in an area where pingers are required must attend a pinger

certification training program. The exact delivery method of this

program has not been determined, but operators of fishing vessels would

be required to have a certificate documenting that they have received

training/certification on board their vessels if they are fishing in a

closed area, with pingers.

Comment 15: Two commenters stated that concerns of unintended

effects of pinger use are greatly overblown. Based on the results of

the spring 1997 experiment, NMFS should allow widespread use of pingers

in GOM.

Response: Uncertainties do exist surrounding potential unintended

effects of pinger use, but these effects are not expected to be

significant. However, this cannot be tested until put into application.

Therefore, NMFS is proposing widespread pinger use, accompanied by

scientific studies, to evaluate both habituation and displacement of

harbor porpoise and over-reaching environmental effects from widespread

use. If data from the monitoring program indicate that pingers are not

working, the Assistant Administrator could, under this proposed rule,

make adjustments in the time or area of closures.

Census of Gillnet Fleet

Comment 16: Several commenters stressed the need for NMFS to

conduct a census of the NE multispecies sink gillnet fishery. Without

this, one commenter questioned how NMFS will conduct outreach to the

fishing community, determine if all fishers are registered, calculate

an accurate bycatch estimate, or evaluate whether it is achieving the

goals of the MMPA.

Response: The GOMTRT recommended that NMFS conduct or support a

census of the sink gillnet fleet to determine seasonal effort type, and

amount of gear fished, target species, and areas fished. NMFS has

assessed the usefulness of vessel logbooks for a number of purposes and

has more clearly defined the procedures used in collecting both fisher

and dealer information to insure accuracy. However, the GOMTRT noted

that development of a reporting system that provides timely,

consistent, and thorough measures of fishery effort may require an

overhaul of existing reporting mechanisms. Toward this end, NMFS is

working as a partner in a cooperative effort between the Atlantic

coastal states and the ASMFC on development of the ACCSP. The ACCSP has

been designed to solve some of the inherent problems of current fishery

statistic data collection systems. NMFS partially funded and

participated in development of the bycatch component of this system and

expects that it will improve the agency's ability to accurately reflect

fishing effort and bycatch in both state and Federal fisheries. When

fully operational, this system is expected to solve some of the

problems addressed by this comment.

[[Page 48682]]

Comment 17: In the preamble to the earlier proposed rule, NMFS

stated that it was examining the usefulness of fishing logbooks for

effort estimation and the feasibility of technological alternatives and

requested comments. One commenter recommended that NMFS summarize what

it has done to investigate the possible alternative methods of

estimating fishing effort and the results of such efforts. Two

additional commenters urged NMFS to make the technological changes

necessary to achieve real-time monitoring of effort, landings, and

bycatch.

Response: The ACCSP (discussed in response to Comment 16) has been

designed to solve some of the inherent problems of current fishery

statistic data collection systems. This system was designed with

considerations such as whether or not new reporting mechanisms or new

methods of effort calculation were needed. The program's implementation

phase has already begun, but NMFS expects that such a comprehensive

system will require a significant amount of time to become completely

operational. NMFS will provide an update on the progress of this

program at the next meeting of the GOMTRT.

Reconvening the GOMTRT

Comment 18: Three commenters suggested that NMFS reconvene the

GOMTRT and provide it with the results of the spring 1997 pinger

experiment.

Response: NMFS reconvened the GOMTRT on December 16 through 17,

1997. NMFS provided the GOMTRT with an analysis of the results of the

spring 1997 pinger experiment and with updated estimates of harbor

porpoise takes in both the GOM and Mid-Atlantic. Based on this

information, the GOMTRT made recommendations to NMFS for further

reducing the incidental take of harbor porpoise in the GOM which have

been incorporated into this proposed rule.

Comment 19: One commenter commended NMFS for conducting the spring

1997 pinger experiment, immediately completing the experimental

analysis, and providing this information to the GOMTRT.

Response: No response necessary.

Comment 20: NMFS should consider combining the two harbor porpoise

TRTs, or having joint meetings to more effectively reduce harbor

porpoise bycatch throughout the range of the species.

Response: NMFS is considering combining the GOMTRT and MATRT (see

response to Comment 23). NMFS is proposing one HPTRP to address the

bycatch of harbor porpoise throughout their U.S. range. The gillnet

fisheries in the GOM and Mid-Atlantic have different characteristics

and, thus, have different management strategies available for reducing

bycatch. To address the individual management needs of these gillnet

fisheries, NMFS'' proposed HPTRP includes separate GOM and Mid-Atlantic

components.

Comment 21: NMFS should reconvene the GOMTRT semi-annually and

provide it with data necessary to review whether the HPTRP is meeting

its objectives.

Response: NMFS intends to continually review the data to determine

when a team meeting is warranted. The GOMTRT is expected to be

reconvened no less than annually.

Bycatch Reduction--Allocation of PBR

Comment 22: One commenter supported the approach recommended by the

GOMTRT for allocating PBR between the GOM and the Mid-Atlantic areas.

The commenter stated that PBR can not be allocated by region, and that

each fishery should reduce takes by the same percentage.

Response: NMFS has taken this approach, proposing a 79 percent

reduction in both regions as agreed to by the TRTs.

Comment 23: Two commenters suggested that NMFS reconvene both teams

jointly to address the PBR allocation issue, and that NMFS should

provide guidance on what type of allocation would be acceptable.

Response: NMFS agrees that this idea has merit with respect to

looking at harbor porpoise bycatch issues overall, but the fisheries

involved are so different that it would be difficult to deal with

specific plan elements in combination. Accordingly, NMFS will consider

reconvening both teams jointly to address several aspects of the

bycatch reduction strategies for harbor porpoise.

Comment 24: One commenter noted that the preamble to the earlier

proposed rule stated that ``an equitable allocation scheme will be

developed for each segment of the fishery''. The commenter further

noted that separate plans have been developed between the regions with

available PBR accounted for within each plan, and any allocation scheme

or reallocation scheme is unnecessary for discussion in the final rule.

Response: No reallocation is proposed. See response to Comment 22.

Implementation of HPTRP

Comment 25: Several commenters opposed implementation of a TRP

under the Magnuson-Stevens Act. Three commenters noted that it would

not have as broad effect as implementation under the MMPA and would

exempt those fishers who fish in state waters but do not have a Federal

permit. Two commenters expressed concern that implementation under the

Magnuson-Stevens Act would further delay the implementation of the TRP.

Two commenters objected because fishery management councils were

officially represented on the GOMTRT, and their subsequent involvement

in this plan might undermine the take reduction process. Two commenters

stated that implementation solely under the Magnuson-Stevens Act

violates the intent of the MMPA. Finally, one commenter noted that NMFS

would not be able to effectively monitor whether the TRP is achieving

its objectives if implemented under the Magnuson-Stevens Act.

Response: The current proposed rule would implement the proposed

HPTRP under the authority of the MMPA. Therefore, fisheries in state

waters would be subject to the regulations. Baitnets are exempted in

this proposed rule, as discussed in NMFS' response to Comment 28.

Through the ACCSP program of cooperation with the States, and through

NMFS' monitoring activities, fisheries in state waters will be

monitored for potential bycatch (see response to Comment 16).

NMFS disagrees that implementation under the Magnuson-Stevens Act

violates the MMPA. The MMPA requires NMFS to reduce the incidental

bycatch of marine mammals in commercial fisheries to below the PBR

level for strategic stocks. If this goal could be accomplished through

Magnuson-Stevens Act actions, it would not be in violation of MMPA

requirements.

Comment 26: Two commenters urged NMFS to implement a TRP under the

emergency authority of the MMPA because harbor porpoise takes exceed

the PBR level and because it is illegal for NMFS to delay further.

Response: An emergency action under MMPA requires any such action

to be based on a commercial fisheries bycatch that is ``having, or is

likely to have, an immediate and significant adverse impact.'' The

current bycatch levels have long been recognized as having a

significant and adverse, but not immediate, impact on this population.

This is recognized by the agency in recent Stock Assessment Reports and

the establishment of the GOMTRT. The total bycatch is high, but does

not trigger the need for an immediate response due to the possibility

for irreversible harm to the population.

[[Page 48683]]

Outreach

Comment 27: One commenter commended NMFS for its extensive efforts

to educate the fishing industry about whale bycatch issues and to bring

about more whale-friendly fishing gear and practices. The commenter

suggested that NMFS include harbor porpoise in this initiative. Because

the constituent groups largely overlap, the two initiatives could

reinforce each other with little additional effort. One commenter

suggested that public outreach programs encompass all take reduction

plans so that such efforts could be focused and coordinated.

Response: NMFS agrees and has coordinated the public outreach

efforts for the Atlantic coast take reduction efforts. NMFS has

recently conducted TRP informational programs to communicate the

purposes and goals of the plans to the commercial fishing industry.

These programs, conducted in conjunction with East Coast commercial

fishermen's exhibitions, gave commercial fishers the opportunity to

learn more about the TRP process, and to express their concerns in

person to NMFS managers and biologists. Informational programs were

held in several locations in the Northeast and Mid-Atlantic region.

Handouts were developed and distributed describing the TRPs and the new

mandated process for managing interactions between commercial fisheries

and marine mammals. Educational fact sheets informed fishers of

appropriate action to take in cases of whale entanglement and provided

guidance on identifying specific species of marine mammals. Seminars

and panel discussions were conducted detailing the specific

requirements of the existing take reduction process and provided an

opportunity for input from fishers and other interest groups.

Harbor Porpoise Mortality in Other Fisheries

Comment 28: Several commenters noted that harbor porpoise bycatch

is likely in other fisheries, including baitnets and other fisheries in

state waters. NMFS should ensure that bycatch in these fisheries is

addressed. One commenter further noted that baitnets and other

fisheries in state waters may be exempt from the restrictions of the

HPTRP if it is implemented under the Magnuson-Stevens Act.

Response: Because the regulations would be issued under the

authority of the MMPA, fisheries in state waters would be subject to

them. Baitnets would be exempt under the new proposed rule because they

are tended, are limited in length, and only fished for short periods of

time. The GOMTRT agreed that they are unlikely to take harbor porpoise.

Through the ACCSP program of cooperation with the States, and through

NMFS monitoring activities, fisheries in state waters will be monitored

for potential bycatch.

Comment 29: One commenter expressed concern that mid-water trawls

are operating in harbor porpoise habitat at times of high use by the

animals, and urged NMFS to investigate this possible source of

mortality.

Response: NMFS is aware that an Atlantic herring trawl fishery may

be operating in the Northeast at times and in locations where there is

a high density of harbor porpoise. This fishery is comprised of

approximately 35 vessels operating in the Northwest Atlantic. NMFS

currently has the authority to place observers on pelagic herring trawl

vessels under the Magnuson-Stevens Act.

Because this herring trawl fishery uses similar gear to the

Atlantic squid, mackerel, butterfish trawl fishery (a Category II

fishery), and because of its potential to interact with harbor

porpoise, NMFS is analyzing existing information on the levels of

serious injury and mortality of marine mammals that are occurring

incidental to this fishery and will propose adding this fishery to the

List of Fisheries for 1999.

Enforcement

Comment 30: Two comments were received concerning enforcement. At

the re-convening of the GOMTRT in December 1997, data indicated that

fishers are fishing in closed areas and, in some cases, are fishing

without pingers in areas and during periods when they are required. No

enforcement action had been taken. Both the U.S. Coast Guard and NMFS

Enforcement representatives present at the meeting admitted that, at

this time, they have no means to monitor compliance with requirements

for using pingers. The commenter urged NMFS to enforce the provisions

of the HPTRP and the Multispecies FMP.

Response: NMFS is concerned about enforcement. The primary

objective of the observer program, which is a function of the Northeast

Fisheries Science Center, is to provide NMFS with unbiased scientific

information on protected species and fishery issues for purposes of

stock assessments and bycatch estimates. For fisheries where observer

coverage is mandated, those data can be made available to investigators

if requested. NMFS Enforcement is investigating this information and

has already initiated dialogue with the observer program on the issue

of confidentiality of observer data, but this has not yet been

resolved. However, an important part of the message to fishers is that

if pingers are not used, or are used improperly, bycatch will most

likely increase. If this occurs, more restrictive measures (i.e.,

closures) to reduce bycatch will be considered.

Comment 31: One commenter supported NMFS' proposal to have Special

Agents from the NMFS' Enforcement Division attend upcoming GOMTRT

meetings in an effort to facilitate enforcement of the HPTRP.

Response: Officials from both NMFS Enforcement Division and the

U.S. Coast Guard attended the December 1997 meeting of the GOMTRT. This

is expected to continue.

Re-Evaluate Proposed HPTRP

Comment 32: Several commenters noted that new information suggests

the proposed GOMTRP will not be sufficient to reduce harbor porpoise

takes below the PBR level and urged NMFS to reconsider its proposal.

One of the commenters recommended that NMFS proceed with a separate

emergency rule to reduce harbor porpoise bycatch south of New England

in winter/spring 1998 and/or modify the proposed GOMTRP to further

reduce projected bycatch levels, given the expected takes south of New

England.

Response: NMFS has re-evaluated its August 1997 proposed rule in

light of new information on harbor porpoise bycatch, the results of the

spring 1997 pinger experiment, and relevant fishery management actions

and agrees that the 1997 proposed rule would not be adequate to reduce

bycatch to required levels. This new proposed rule is expected to

reduce the incidental takes of harbor porpoise in the GOM and Mid-

Atlantic to the PBR level.

Comment 33: One commenter indicated that a vessel buyback program

in the GOM, designed to reduce groundfish effort, has reduced the

number of sink gillnet vessels. Additionally, the commenter noted that

some vessels have left the fishery for other fisheries or for other

reasons. The commenter urges NMFS to consider this issue, as a

reduction in fishing effort should effect the potential for

interactions with harbor porpoise.

Response: The bycatch rate for harbor porpoise in the GOM provides

the basis for the plan and considers fishing effort. In the past,

regardless of the possible decrease in fleet size and/or fishing

effort, neither the bycatch rate nor the

[[Page 48684]]

total bycatch of harbor porpoise in the GOM has decreased.

General Comments

Comment 34: One commenter was concerned that Canadian bycatch of

harbor porpoise has decreased significantly due to the extraordinary

limitation of fishing effort in Canada to protect groundfish. As these

groundfish stocks recover, and fisheries resume normal operations, the

commenter was concerned that mortality of harbor porpoise in Canadian

waters will increase. The commenter recommended that NMFS work formally

with the Department of Fisheries and Oceans in Canada to assure

equivalent planning to reduce mortality.

Response: Canada has, within the last few years, developed its own

harbor porpoise conservation strategy. It has developed an observer

program to document takes and has also developed its own bycatch

estimates. Canada also has a restriction in place that allows them to

immediately close the fishery if more than a certain number of animals

are caught. Canada has also incorporated pingers into its management

strategy. NMFS intends to keep abreast of Canadian conservation

activities and the status of the fisheries.

Comment 35: One commenter expressed overall support for the

proposed GOMTRP.

Response: Given the information on bycatch and the distribution of

fishing effort available when the proposed GOMTRP was published, the

proposed take reduction measures were expected to adequately reduce

harbor porpoise bycatch levels in the GOM.

Since the publication of the earlier proposed rule, however, new

bycatch and fishery information became available which indicated

significant changes were needed in the original draft HPTRP and

proposed rule to achieve the PBR level. In addition, the MATRT

submitted its report to NMFS which presented new information on the

level of bycatch in the Mid-Atlantic region. The GOMTRT reconvened on

December 16 through 17, 1997, to discuss this information and to

provide additional comments to NMFS. The combination of these actions

led NMFS to decide to integrate the initially separate plans into one

comprehensive plan. Since the HPTRP is substantially different than the

GOMTRP, NMFS is publishing this new proposed rule to replace the

earlier proposal.

Comment 36: One commenter stated that NMFS is in violation of the

MMPA for inadequately protecting harbor porpoise. The most recent data

indicate that: (1) current harbor porpoise bycatch is three times the

PBR level, and there has been no meaningful reduction in harbor

porpoise bycatch; bycatch has actually increased in some areas, (2)

there are takes occurring in the offshore gillnet fishery (which was

previously unobserved), (3) pingers are not as effective in

experimental fisheries as in controlled experiments, (4) NMFS has not

completed research on the unintended effects of pingers, (5) illegal

fishing with harbor porpoise takes are occurring in closed areas, and

(6) no enforcement actions are being taken. Additionally, the commenter

noted that NMFS has not complied with the statutory deadlines for

convening a GOMTRT or publishing an HPTRP. The commenter noted that

NMFS must take strict and immediate action to reduce the deaths of

harbor porpoise in the GOM.

Response: NMFS agrees that data indicate that harbor porpoise

bycatch is close to 3.5 times the PBR level. Bycatch has decreased in

those areas where take reduction measures have been applied, and

bycatch has increased outside of those areas. Consequently, the overall

bycatch has remained relatively unchanged. NMFS acknowledges that there

are harbor porpoise takes in offshore areas and has incorporated

management measures into this proposed rule to reduce this bycatch. It

is currently unknown whether pingers are as effective in experimental

fisheries as they were in scientific experiments since the experimental

fisheries had no controls--therefore, it was unknown whether the

bycatch rate would have been higher in nets without pingers and if so,

how much higher. Consequently, NMFS is preparing to monitor bycatch as

an indicator of whether or not pingers are enough of a management

option. NMFS is currently supporting a research project to study

habituation and displacement of harbor porpoise by pingers. NMFS agrees

that observer data are available that appears to indicate that fishers

may have been in closed areas, and is conducting an investigation that

will result in enforcement actions.

Comment 37: One commenter suggested that NMFS reevaluate the

current weighout landings system for determining bycatch levels because

commenter believes it is an inaccurate method of derivation of actual

bycatch rate.

Response: In order to estimate bycatch levels, the unit of fishing

effort must be correlated to bycatch and must be an accurate

representation of what is occurring in the fishery. Currently, weighout

data are considered the best and most complete unit of effort for the

sink gillnet fishery that meets this requirement. Logbooks are being

evaluated for their contributions to effort projections and were used

in the 1996 analysis to estimate the distribution of effort by area. As

logbooks improve, they may become more useful. However, at the current

time many of them are inaccurately or incompletely filled out.

Therefore, fishers need to realize the importance of providing complete

and accurate information that allows NMFS to make better analyses in

many areas including bycatch.

Comment 38: One commenter requested that NMFS consider the trip

boat category in developing the final GOMTRP. The commenter noted that

this would promote the use of ``day setting'' where vessels retrieve

gear before returning to port; this results in shorter trips and a

cleaner, more directed fishery.

Response: The HPTRP is expected to meet bycatch reduction goals.

However, this idea has merit for future discussions at take reduction

team meetings should additional measures be necessary in the future.

Comment 39: One commenter noted that NMFS should specifically state

in the final HPTRP that the goal of the HPTRP was to reduce incidental

takes of harbor porpoise to below the PBR level within 6 months of the

plan's implementation.

Response: This is described above in the supplemental information

section.

Comment 40: One commenter requested that NMFS specifically state in

the final rule that the HPTRP had determined that its draft plan would

reduce incidental take levels in the New England fisheries to 376

harbor porpoises. NMFS should further specify the total number of

harbor porpoises projected to be taken under its proposed plan.

Response: The HPTRP and EA document includes a discussion of the

expected harbor porpoise bycatch levels under this proposed HPTRP.

Overall, NMFS expects harbor porpoise bycatch in the NE multispecies

sink gillnet fishery to be reduced to 309 animals per year and expects

harbor porpoise bycatch in the Mid-Atlantic coastal gillnet fishery to

be reduced to below 50 animals per year.

Comment 41: One commenter requested that NMFS explain the reason

for delay in publishing the TRP and how it will avoid delays in future.

NMFS should commit to acting expeditiously on future TRPs.

Response: Two primary reasons caused delays in acting on the rule

proposed in 1997: (1) New information

[[Page 48685]]

on bycatch was available and the GOMTRT had requested that NMFS convene

the team when the 1996 bycatch estimates became available and (2)

management actions being considered under the Magnuson-Stevens Act for

GOM cod were expected to have a significant impact on the sink gillnet

fishery in New England in the areas that are also responsible for high

bycatch of harbor porpoise. Development of a revised proposal was

pending an analysis of the impacts of this new information.

Classification

The proposed rule has been determined to be significant for

purposes of E.O. 12866.

NMFS prepared an IRFA that describes the impact this proposed rule,

if adopted, would have on small entities. The need for, and objectives

of this proposed rule and a summary of the significant issues are

described elsewhere in this preamble. The GOM sink gillnet and Mid-

Atlantic coastal gillnet fisheries are directly affected by the

proposed action and are composed primarily of small business entities.

In formulating this proposed rule, NMFS considered a number of

alternatives: Alternative 1, the proposed action; Alternative 2, no

action; Alternative 3, wide-spread use of pingers; and Alternative 4,

wide-spread time and area closures.

Alternative 1, the proposed action, a combination of area closures

and pinger requirements, is the preferred alternative because it will

achieve the goals of the MMPA while minimizing the overall economic

impact.

Under Alternative 1, it is estimated that 113 vessels (41% of

total, 64% of impacted) would see their total costs increase more than

5%. If the 10% threshold is used, 70 vessels (26% of total, 40% of

impacted) would see their total costs increase more than 10%. The cost

increase was due to purchasing new gear or pingers, and the cost of

gear marking requirements. Vessels could avoid these cost increases by

not fishing during the time periods when they would have to modify

their gear or use pingers. However, they would then lose some

percentage of their yearly profit. The total economic losses of the

proposed action from the New England and the Mid-Atlantic regions are

estimated to be between $613 thousand dollars and $5.3 million dollars

depending on the number of vessels which can shift their effort to open

areas and the number which use pingers.

The costs associated with this proposed rule are not related to

reporting requirements. To the extent that the proposed rule would

allow fishery participants to select whether to acquire a new gear type

or avoid the time/area closures, performance requirements can be

substituted for design requirements at the participant's discretion.

Since most of the affected entities are small entities, providing an

exemption for small entities would not enable the agency to meet the

conservation and management goals of the MMPA.

Currently, the NE sink gillnet fishery is subject to regulations

under the NE Multispecies Fishery Management Plan. Recent NE groundfish

conservation measures were proposed under Framework Adjustment 25 to

the NE Multispecies FMP. The predominant Mid-Atlantic gillnet fisheries

are not subject to regulations under a fishery management plan at this

time. The proposed rule is designed to complement Framework 25 and

other fishery management regulations. The recommendations of the GOMTRT

were modified by NMFS to take into consideration the combined effect of

Framework 25 and the HPTRP on NE fishermen.

Under Alternative 2, there would be no additional costs to the

fleet either through gear modifications, purchase of pingers or losses

in surplus due to time and area closures. Therefore, based on costs

which the fleet would incur, this alternative is the least costly when

compared to the proposed action or non-preferred alternatives. However,

there is a much larger cost in terms of foregone harbor porpoise

protection. Based on the contingent valuation study conducted by the

University of Maryland (Strand, et al., 1994), households in

Massachusetts were willing to pay between $176 dollars and $364 dollars

to eliminate human induced mortality of 1,000 harbor porpoise. Using

the lower figure of $176 dollars multiplied by the number of

Massachusetts households, and amortizing the total using a 7% rate

yielded a yearly value of roughly $28 million dollars. This means that

decreasing mortality by 1,000 animals would increase consumer surplus

by $28 million dollars. Therefore, when compared against the other

alternatives, the status quo is far inferior because it does not

achieve the same level of consumer surplus due to a higher level of

harbor porpoise mortality.

Alternative 3 would require all vessels fishing between September

and May in New England, and between January and April in the Mid-

Atlantic to use pingers. Each vessel owner would decide whether to

purchase pingers based on their own set of circumstances. Each pinger

was estimated to cost $50 dollars based on information obtained from

Sea Sampling personnel. It is assumed that there would be one pinger

required per net, and one on each buoy line. Using the average number

of nets and strings fished in each region, a weighted average $3,437

dollars per vessel was estimated for the cost of pingers which

translates into a total fleet cost of $608 thousand dollars.

The cost of pingers was estimated to be $608 thousand dollars if

all vessels purchase pingers. However, some vessels may be unable to

afford pingers. This would increase the total losses because vessels

which were unable to afford pingers would have to stay tied up at the

dock and therefore lose revenue. It is assumed that losses in producer

surplus are linearly related to the percent of vessels which purchase

pingers. For example, if 50 percent of the vessels use pingers, then

the losses in producer surplus and crew rents will be reduced by 50

percent. Total pinger costs are also estimated based on the percent of

vessels which purchase pingers. Losses calculated using these

assumptions are estimated to be between zero and $7.4 million dollars.

In reality, vessels can either purchase pingers and continue to

fish, shift their effort to other areas, or elect not to purchase

pingers and stay tied up at the dock. Because the time and areas where

pingers are required are quite extensive, it is unlikely that vessels

will be able to switch areas and continue fishing without pingers.

Without a more formal model, it is not possible to predict the number

of vessels which will adopt either strategy.

This alternative is not preferred because it is highly unlikely

that it could achieve the bycatch reduction goals of the MMPA for

harbor porpoise because pingers have not been proven to be effective in

all areas at all times. In addition, there are a number of scientific

concerns regarding the impacts of widespread pinger use on harbor

porpoise and other marine organisms.

The total loss in producer surplus and crew rents for both regions

from Alternative 4 would be $7.4 million dollars. Overall, 177 vessels

would be impacted for a per vessel loss of roughly $42 thousand

dollars. As described in the IRFA, the cost to the fishery in terms of

economic impacts would vary by area closure. Refer to the IRFA for a

discussion of the impacts of this alternative based on the closure

variations.

Vessels could shift their operations to other areas and make up for

any revenue loss. This puts bounds on the losses of

[[Page 48686]]

between zero, if revenue was totally replaced in other areas, and $7.4

million dollars. For this alternative, it will be more difficult for

vessels to shift to other times and areas because the areas are all

closed at the same time. There is the opportunity for New England

vessels to move to the Mid-Atlantic in the fall, or the NE closure

area. Some may do so, but it is likely that most would not be able to

switch. Gillnet vessels have traditionally fished in certain times and

areas depending on many factors, including the vessels homeport.

Because these times and areas are so extensive, it is unlikely that

many vessels will be able to shift their operations and replace lost

revenue.

Because the times and areas designated for closure are so

extensive, it is likely that this alternative would reduce harbor

porpoise mortality to close to zero. The trade-off for this reduction

would be a much higher cost to the fishing fleet, and possibly higher

likelihood of business failure, therefore this alternative is not

preferred. However, it is not possible to evaluate the trade-off

between reduced harbor porpoise mortality and increased costs. Based on

the contingent valuation study (Strand et al., 94) discussed earlier,

harbor porpoise are highly valued by consumers.

This proposed rule contains a collection-of-information requirement

subject to the Paperwork Reduction Act (PRA). This collection-of-

information requirement has been submitted to the Office of Management

and Budget for approval. Under the PRA, gear marking regulations are

considered a reporting requirement, and the burden hours need to be

estimated.

The proposed rule requires nets in the Mid-Atlantic region to be

marked in order to identify the vessel and enforce net cap provisions.

It is estimated that each tag will take 1 minute to attach to the net.

Each net requires two net tags. The total number of nets which will

need to be tagged is estimated by assuming that combination gillnet

vessels are, on average, fishing 60 nets, and all other vessels are, on

average, fishing 30 nets. This gives a weighted average of 49 nets per

vessel. Using these figures, the total burden hours for all vessels

impacted in the Mid-Atlantic region is estimated to be 123.9 hours, or

1.63 hours per vessel.

The 76 vessel owner/operators will have to order net tags.

Estimated at 2 minutes per request, this adds a burden of 2.5 hours.

Depending on whether net tags are lost or damaged, vessels are expected

to only have to comply once over three years. The annual average over

the 3 years would be 25.3 vessels affected and 42 hours.

Public comment is sought regarding: Whether this proposed

collection of information is necessary for the proper performance of

the functions of the agency, including whether the information has

practical utility; the accuracy of the burden estimate; ways to enhance

the quality, utility, and clarity of the information to be collected;

and ways to minimize the burden of the collection of information,

including through the use of automated collection techniques or other

forms of information technology.

Send comments regarding these burden estimates or any other aspect

of the data requirements, including suggestions for reducing the

burden, to NMFS (see ADDRESSES) and to the Office of Information and

Regulatory Affairs, Office of Management and Budget, Washington, DC

20503 (ATTN: NOAA Desk Officer).

Notwithstanding any other provision of law, no person is required

to respond to nor shall a person be subject to a penalty for failure to

comply with a collection of information subject to the requirements of

the PRA unless that collection of information displays a currently

valid OMB control number.

References

Kraus, S., A. Read, E. Anderson, A. Solow, T. Spradlin, and J.

Williamson. 1995. A field test of the use of acoustic alarms to

reduce incidental mortality of harbor porpoise in gillnets. Draft

final report to the Gulf of Maine Take Reduction Team.

Kraus, S., A. Read, E. Anderson, A. Solow, T. Spradlin, and J.

Williamson. 1997. Acoustic alarms reduce porpoise mortality. Nature.

Vol. 388: p. 525.

Kraus, S., S. Brault, and K. Baldwin. 1997. A springtime field test

of the use of pingers to reduce incidental mortality of harbor

porpoises in gill nets. Draft Final Report.

Reeves, R., R. Hofman, G. Silber, and D. Wilkinson. 1996. Acoustic

deterrence of harmful marine mammal-fishery interactions:

Proceedings of a workshop held in Seattle, Washington, 20-22 March

1996. U.S. Dept. Commerce, NOAA Tech. Memo. NMFS-OPR-10, 68 pp.

Waring, G., D. Palka, K. Mullin, J. Hain, L. Hansen, and K. Bisack.

1997. U.S. Atlantic and Gulf of Mexico Marine Mammal Stock

Assessments--1996. Woods Hole, MA: NMFS, NEFSC, NOAA Technical

Memo., NMFS-NE-114

List of Subjects in 50 CFR Part 229

Administrative practice and procedure, Confidential business

information, Fisheries, Marine mammals, Reporting and recordkeeping

requirements.

Dated: September 3, 1998.

Rolland A. Schmitten,

Assistant Administrator for Fisheries, National Marine Fisheries

Service.

For the reasons set out in the preamble, 50 CFR part 229 is

proposed to be amended as follows:

PART 229--AUTHORIZATION FOR COMMERCIAL FISHERIES UNDER THE MARINE

MAMMAL PROTECTION ACT OF 1972

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

follows:

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

2. In Sec. 229.2, definitions for ``large mesh gillnet,'' ``mesh

size,'' ``Mudhole,'' ``small mesh gillnet,'' ``southern Mid-Atlantic

waters,'' ``stowed,'' ``tie-down,'' and ``waters off New Jersey'' are

added, in alphabetical order, to read as follows:

Sec. 229.2 Definitions.

* * * * *

Large mesh gillnet means a gillnet constructed with a mesh size of

7(17.78 cm) inches to 18 inches (45.72 cm).

* * * * *

Mesh size means the distance between inside knot to inside knot.

Mesh size is measured as described in Sec. 648.80(f)(1).

* * * * *

Mudhole means waters off New Jersey bounded as follows: From the

point 40 deg.30' N. latitude where it intersects with the shoreline of

New Jersey east to its intersection with 73 deg.20' W. longitude, then

south to its intersection with 40 deg.05' N. latitude, then west to its

intersection with the shoreline of New Jersey.

* * * * *

Small mesh gillnet means a gillnet constructed with a mesh size

less than 7 inches (17.78 cm).

Southern Mid-Atlantic waters means all state and Federal waters off

the States of Delaware, Maryland, Virginia, and North Carolina, bounded

on the north by a line extending eastward from the northern shoreline

of Delaware at 38 deg.47' N. latitude (the latitude that corresponds

with Cape Henlopen, DE), east to its intersection with 72 deg.30'W

longitude, south to the 33 deg.51' N. latitude (the latitude that

corresponds with the North Carolina/South Carolina border), and then

west to its intersection with the shoreline of the North Carolina/South

Carolina border.

* * * * *

Stowed means nets that are unavailable for use and that are stored

in accordance with the regulations found in Sec. 648.81(e) of this

title.

* * * * *

[[Page 48687]]

Tie-down refers to twine used between the floatline and the lead

line as a way to create a pocket or bag of netting to trap fish alive.

* * * * * *

Waters off New Jersey means all state and Federal waters off New

Jersey, bounded on the north by a line extending eastward from the

southern shoreline of Long Island, NY at 40 deg.40' N. latitude, on the

south by a line extending eastward from the northern shoreline of

Delaware at 38 deg.47' N. latitude (the latitude that corresponds with

Cape Henlopen, DE), and on the east by the 72 deg.30'W longitude. This

area includes the Mudhole.

* * * * *

3. In Sec. 229.3, paragraphs (l) through (q) are added to read as

follows:

Sec. 229.3 Prohibitions.

* * * * *

(l) It is prohibited to fish with, set, haul back, possess on board

a vessel unless stowed, or fail to remove sink gillnet gear or gillnet

gear capable of catching multispecies, with the exception of a single

pelagic gillnet (as described and used as set forth in

Sec. 648.81(f)(2)(ii)) of this title, from the areas and for the times

specified in Sec. 229.33(a)(1) through (a)(6), except as provided in

Sec. 229.33(d)(1) through (d)(4).

(m) It is prohibited to fish with, set, haul back, possess on board

a vessel unless stowed, or fail to remove any gillnet gear from the

areas and for the times as specified in Sec. 229.34(b)(1)(ii) or (iii)

or (b)(2)(ii).

(n) It is prohibited to fish with, set, haul back, possess on board

a vessel unless stowed, or fail to remove any large mesh or small mesh

gillnet gear from the areas and for the times specified in

Sec. 229.34(c)(1) through (4) unless the gear complies with the

specified gear restrictions set forth in those provisions.

(o) Beginning on January 1, 1999, it is prohibited to fish with,

set, or haul back sink gillnets or gillnet gear, or leave such gear in

closed areas where pingers are required, as specified under

Sec. 229.33(c)(1) through (4), unless the operator possesses on board

the vessel a valid pinger certification training certificate issued by

NMFS.

(p) Beginning on January 1, 2000, it is prohibited to fish with,

set, haul back, or possess any gillnet gear in Mid-Atlantic waters in

the areas and during the times specified under Sec. 229.34(d) unless

the gear is properly tagged in compliance with that provision and

unless a net tag certificate is on board the vessel. It is prohibited

to refuse to produce a net tag certificate or net tags upon the request

of an authorized officer.

(q) Net tag requirement. Beginning on January 1, 2000, no vessel

may fish with gillnet gear in New Jersey waters from January 1 through

April 30 or in southern Mid-Atlantic waters from February 1 through

April 30 unless the gillnet is properly tagged. In order to be properly

tagged, one tag must be secured to each bridle of every net within the

string of nets. The owner or operator of fishing vessels must indicate

to NMFS the number of gillnet tags that they are requesting up to the

maximum number of nets allowed in those paragraphs and must include a

check for the cost of the tags. Vessel owners and operators will be

given notice with instructions informing them of the costs associated

with this tagging requirement and directions for obtaining tags. Tag

numbers will be unique for each vessel and recorded on a certificate.

The vessel operator must produce the certificate and all net tags upon

request by an authorized officer.

4. In subpart C, a new Sec. 229.33 is added to read as follows:

Sec. 229.33 Harbor Porpoise Take Reduction Plan implementing

regulations--Gulf of Maine.

(a) Restrictions--(1) Northeast Closure Area. From August 15

through September 13 of each fishing year, it is prohibited to fish

with, set, haul back, possess on board a vessel unless stowed, or fail

to remove sink gillnet gear or gillnet gear capable of catching

multispecies, with the exception of a single pelagic gillnet (as

described in Sec. 648.81(f)(2)(ii) of this title), from Northeast

Closure Area. The Northeast Closure Area is the area bounded by

straight lines connecting the following points in the order stated.

Northeast Closure Area

------------------------------------------------------------------------

Point N. Lat. W. Long.

------------------------------------------------------------------------

NE1.............................. (\1\) 68 deg.55.0',

NE2.............................. 43 deg.29.6' 68 deg.55.0',

NE3.............................. 44 deg.04.4 \1\ 67 deg.48.7',

NE4.............................. 44 deg.06.9' 67 deg.52.8',

NE5.............................. 44 deg.31.2' 67 deg.02.7',

NE6.............................. (\1\) 67 deg.02.7'

------------------------------------------------------------------------

\1\ Maine shoreline.

(2) Mid-coast Closure Area. From September 15 through May 31, it is

prohibited to fish with, set, haul back, possess on board a vessel

unless stowed, or fail to remove sink gillnet gear or gillnet gear

capable of catching multispecies, with the exception of a single

pelagic gillnet (as described in Sec. 648.81(f)(2)(ii) of this title),

from the Mid-Coast Closure Area, except as provided in

Sec. 229.33(d)(1).

The Mid-Coast Closure Area is the area bounded by straight lines

connecting the following points in the order stated:

Mid-Coast Closure Area

------------------------------------------------------------------------

Point N. Lat. W. Long.

------------------------------------------------------------------------

MC1.............................. 42 deg.30' (\1\)

MC2.............................. 42 deg.30 \1\ 70 deg.15'

MC3.............................. 42 deg.40' 70 deg.15'

MC4.............................. 42 deg.40' 70 deg.00'

MC5.............................. 43 deg.00' 70 deg.00'

MC6.............................. 43 deg.00' 69 deg.o30'

MC7.............................. 43 deg.30' 69 deg.30'

MC8.............................. 43 deg.30' 69 deg.00'

MC9.............................. (\2\) 69 deg.00'

------------------------------------------------------------------------

\1\ Massachusetts shoreline.

\2\ Maine shoreline.

(3) Massachusetts Bay Closure Area. From February 1 through May 31,

it is prohibited to fish with, set, haul back, possess on board a

vessel unless stowed, or fail to remove sink gillnet gear or gillnet

gear capable of catching multispecies, with the exception of a single

pelagic gillnet (as described in Sec. 648.81(f)(2)(ii) of this title),

from the Massachusetts Bay Closure Area, except as provided in

Sec. 229.33(d)(2). The Massachusetts Bay Closure Area is the area

bounded by straight lines connecting the following points in the order

stated.

Massachusetts Bay Closure Area

------------------------------------------------------------------------

Point N. Lat. W. Long.

------------------------------------------------------------------------

MB1.............................. 42 deg.30' (\1\)',

MB2.............................. 42 deg.30' 70 deg.30',

MB3.............................. 42 deg.12' 70 deg.30',

MB4.............................. 42 deg.12' 70 deg.00',

MB5.............................. (\2\) 70 deg.00',

MB6.............................. 42 deg.00' (\2\),

MB7.............................. 42 deg.00' (\1\)

------------------------------------------------------------------------

\1\ Massachusetts shoreline.

\2\ Cape Cod shoreline.

(4) Cape Cod South Closure Area. From September 15 through April

30, it is prohibited to fish with, set, haul back, possess on board a

vessel unless stowed, or fail to remove sink gillnet gear or gillnet

gear capable of catching multispecies, with the exception of a single

pelagic gillnet (as described in Sec. 648.81(f)(2)(ii) of this title),

from Cape Cod South Closure Area, except as provided in

Sec. 229.33(d)(3).

The Cape Cod South Closure Area is the area bounded by straight

lines connecting the following points in the order stated.

Cape Cod South Closure Area

------------------------------------------------------------------------

Point N. Lat. W. Long.

------------------------------------------------------------------------

CCS1............................. (\1\) 71 deg.45',

[[Page 48688]]

CCS2............................. 40 deg.40' 71 deg.45',

CCS3............................. 40 deg.40' 70 deg.30',

CCS4............................. (\2\) 70 deg.30'

------------------------------------------------------------------------

\1\ Rhode Island shoreline

\2\ Massachusetts shoreline.

( 5) Offshore Closure Area. From September 15 through May 31, it is

prohibited to fish with, set, haul back, possess on board a vessel

unless stowed, or fail to remove sink gillnet gear or gillnet gear

capable of catching multispecies, with the exception of a single

pelagic gillnet (as described in Sec. 648.81(f)(2)(ii)of this title),

from Offshore Closure Area, except as provided in Sec. 229.33(d)(4).

This requirement becomes effective November 1, 1998.

The Offshore Closure Area is the area bounded by straight lines

connecting the following points in the order stated:

Offshore Closure Area

------------------------------------------------------------------------

Point N. Lat. W. Long.

------------------------------------------------------------------------

OFS1............................. 42 deg.50' 69 deg.35'

OFS2............................. 43 deg.10' 69 deg.10'

OFS3............................. 43 deg.10' 67 deg.40'

OFS4............................. 42 deg.10' 69 deg.10'

OFS5............................. 42 deg.10' 69 deg.30'

------------------------------------------------------------------------

(6) Cashes Ledge Closure Area. For the month of February of each

fishing year, it is prohibited to fish with, set, haul back, possess on

board a vessel unless stowed, or fail to remove sink gillnet gear or

gillnet gear capable of catching multispecies, with the exception of a

single pelagic gillnet (as described in Sec. 648.81(f)(2)(ii) of this

title), from the Cashes Ledge Closure Area. The Cashes Ledge Closure

Area is the area bounded by straight lines connecting the following

points in the order stated:

Cashes Ledge Closure Area

------------------------------------------------------------------------

Point N. Lat. W. Long.

------------------------------------------------------------------------

CL1.............................. 42 deg.30' 69 deg.00',

CL2.............................. 42 deg.30' 68 deg.30',

CL3.............................. 43 deg.00' 68 deg.30',

CL4.............................. 43 deg.00' 69 deg.00',

CL5.............................. 42 deg.30' 69 deg.00'

------------------------------------------------------------------------

(b) Pingers. (1) Pinger Specifications. For the purposes of this

subpart, a pinger is an acoustic deterrent device which, when immersed

in water, broadcasts a 10 kHz (2 kHz) sound at 132 dB

(4 dB) re 1 micropascal at 1 m, lasting 300 milliseconds

( 15 milliseconds), and repeating every 4 seconds

( .2 seconds).

(2) Pinger attachment. An operating and functional pinger must be

attached at the end of each string of the gillnets and at the bridle of

every net within a string of nets.

(c) Pinger training and certification. Beginning on January 1,

1999, the operator of a vessel may not fish with, set or haul back sink

gillnets or gillnet gear, or allow such gear to be in closed areas

where pingers are required as specified under paragraph (b) of this

section, unless the operator has satisfactorily completed the pinger

certification training program, and, possesses on board the vessel a

valid pinger training certificate issued by NMFS. Notice will be given

announcing the times and locations of pinger certification training

programs.

(d) Use of pingers in closed areas. (1) Vessels, subject to the

restrictions and regulations specified in paragraph (a) of this

section, may fish in the Mid-coast Closure Area from September 15

through May 31 of each fishing year, provided that pingers are used in

accordance with the requirements of paragraph (b) of this section.

(2) Vessels, subject to the restrictions and regulations specified

in paragraph (a) of this section, may fish in the Massachusetts Bay

Closure Area from February 1 through the last day of February and from

April 1 through May 31 of each fishing year, provided that pingers are

used in accordance with the requirements of paragraph (b) of this

section.

(3) Vessels, subject to the restrictions and regulations specified

in paragraph (a) of this section, may fish in the Cape Cod South

Closure Area from September 15 through the last day of February and

from April 1 through April 30 of each fishing year, provided that

pingers are used in accordance with the requirements of paragraph (b)

of this section.

(4) Vessels, subject to the restrictions and regulations specified

in paragraph (a) of this section, may fish in the Offshore Closure Area

from September 15 through May 31 of each fishing year, with the

exception of the Cashes Ledge Closure Area. From February 1 through the

end of February the area within the Offshore Closure Area defined as

``Cashes Ledge'' is closed to all fishing with sink gillnets. Vessels

subject to the restrictions and regulation specified in paragraph (a)

of this section may fish in the Offshore Closure Area outside of the

Cashes Ledge Area from February 1 through the end of February provided

that pingers are used in accordance with the requirements of paragraph

(b) of this section.

(e) Other special measures. The Assistant Administrator may revise

the requirements of this section through notification published in the

Federal Register if:

(1) NMFS verifies one year after plan implementation, that pinger

operating effectiveness in the commercial fishery is not adequate to

reduce bycatch to acceptable levels with the current plan.

(2) NMFS determines that the boundary or timing of a closed area

are not appropriate, or that gear modifications (including pingers) are

not meeting bycatch reduction expectations. Specifically, observer data

shows that PBR has been exceeded between January 1 and April 30 every

year between 1992-1996. Therefore, NMFS will review effort and bycatch

data and make a determination by June 30 each year if additional

bycatch reduction measures beyond the TRP are needed for the remainder

of the calendar year to keep the annual bycatch level below the PBR

level.

5. In subpart C, a new Sec. 229.34 is added to read as follows:

Sec. 229.34 Harbor Porpoise Take Reduction Plan--Mid-Atlantic.

(a)(1) Regulated waters. The regulations in this section apply to

all waters in the Mid-Atlantic bounded on the east by 72 deg.30' W.

longitude and on the south by the North Carolina/South Carolina border

(33 deg.51' N. latitude), except for the areas exempted in paragraph

(a)(2) of this section.

(2) Exempted waters. All waters landward of the first bridge over

any embayment, harbor, or inlet will be exempted. The regulations in

this section do not apply to waters landward of the following lines:

New York

40 deg.45.70' N 72 deg.45.15'W TO 40 deg. 45.72' N 72 deg.45.30' W

(Moriches Bay Inlet)

40 deg.37.32' N 73 deg. 18.40' W TO 40 deg. 38.00' N 73 deg.18.56' W

(Fire Island Inlet)

40 deg.34.40' N 73 deg.34.55' W TO 40 deg.35.08' N 73 deg.35.22' W

(Jones Inlet)

New Jersey

39 deg. 45.90# N 74 deg.05.90' W TO 39 deg.45.15' N 74 deg. 06.20' W

(Barnegat Inlet)

39 deg.30.70' N 74 deg.16.70' W TO 39 deg.26.30' N 74 deg.19.75' W

(Beach Haven to Brigantine Inlet)

38 deg.56.20' N 74 deg.51.70' W TO 38 deg.56.20' N 74 deg.51.90' W

(Cape May Inlet)

39 deg.16.70# N 75 deg.14.60' W TO 39 deg.11.25' N 75 deg.23.90' W

(Delaware Bay)

Maryland/Virginia 38 deg.19.48' N 75 deg.05.10' W TO 38 deg.19.35' N

75 deg.05.25' W (Ocean City Inlet)

[[Page 48689]]

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)

37 deg.11.10' N 75 deg.49.30' W TO 37 deg.10.65' N 75 deg.49.60' W

(Little Inlet)

37 deg.07.00' N 75 deg.53.75' W TO 37 deg.05.30' N 75 deg.56.' W

(Smith Island Inlet)

North Carolina

All marine and tidal 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.

(b) Restrictions--(1) Waters off New Jersey.

(i) General Restrictions. From January 1 through April 30, it is

prohibited to fish with, set, haul back, possess on board a vessel

unless stowed, or fail to remove any gillnet gear from the waters off

New Jersey unless the gear complies with the applicable gear

characteristics specified under paragraph (c)(1) or (2) of this

section.

(ii) Closure for large mesh gear. From April 1 through April 20, it

is prohibited to fish with, set, haul back, possess on board a vessel

unless stowed, or fail to remove any large mesh gillnet gear from the

waters off New Jersey.

(iii) Mudhole closure. From February 15 through March 15, it is

prohibited to fish with, set, haul back, possess on board a vessel

unless stowed, or fail to remove any gillnet gear from the waters off

New Jersey known as the Mudhole.

(2) Southern Mid-Atlantic waters. (i) General restrictions. From

February 1 through April 30, it is prohibited to fish with, set, haul

back, possess on board a vessel unless stowed, or fail to remove any

gillnet gear from the southern Mid-Atlantic waters unless the gear

complies with the applicable gear characteristics specified under

paragraph (c)(2) or (3) of this section.

(ii) Closure for large mesh gear. From February 15 through March

15, it is prohibited to fish with, set, haul back, possess on board a

vessel unless stowed, or fail to remove any large mesh gillnet gear

from the southern Mid-Atlantic waters.

(c) Gear requirements and limitations. (1) Waters off New Jersey-

large mesh gear requirements and limitations. From January 1 through

April 30 of each year, no person may fish with large mesh gillnet gear

in waters off New Jersey unless the gear complies with the specified

gear characteristics. During this period, no person who owns or

operates the vessel may allow the vessel to enter or remain in waters

off New Jersey with large mesh gillnet gear on board unless the gear

complies with the specified gear characteristics or unless the gear is

stowed. In order to comply with these specified gear characteristics,

the gear must have all the following characteristics:

(i) Floatline Length. The floatline is no longer than 4,800 ft

(1,463.0 m), and if the gear is used in the Mudhole, the floatline is

no longer than 3,900 ft (1,188.7 m).

(ii) Twine Size. The twine is at least 0.04 inches (0.090 cm) in

diameter.

(iii) Size of nets. Individual nets or net panels are not more than

300 ft (91.44 m), or 50 fathoms, in length.

(iv) Number of nets. The total number of individual nets or net

panels for a vessel, including all nets on board the vessel, hauled by

the vessel or deployed by the vessel, does not exceed 80.

(v) Tie-down system. The gillnet is equipped with tie-downs spaced

not more than 15 ft (4.6 m) apart along the floatline, and each tie-

down is not more than 48 inches (18.90 cm) in length from the point

where it connects to the floatline to the point where it connects to

the lead line.

(vi) Tagging requirements. Beginning January 1, 2000, the gillnet

is equipped with two tags per net, with one tag secured to each bridle

of every net within a string of nets.

(2) Waters off New Jersey--small mesh gillnet gear requirements and

limitations. From January 1 through April 30 of each year, no person

may fish with small mesh gillnet gear in waters off New Jersey unless

the gear complies with the specified gear characteristics. During this

period, no person who owns or operates the vessel may allow the vessel

to enter or remain in waters off New Jersey with small mesh gillnet

gear on board unless the gear complies with the specified gear

characteristics or unless the gear is stowed. In order to comply with

these specified gear characteristics, the gear must have all the

following characteristics:

(i) Floatline Length. The floatline is less than 3,000 ft (914.4

m).

(ii) Twine Size. The twine is at least 0.03 inches (0.080 cm) in

diameter. This requirement only applies to mesh more than 4 inches

(10.2 cm) but less than 7 inches (17.78 cm) in size.

(iii) Size of nets. Individual nets or net panels are not more than

300 ft (1.4 m or 50 fathoms) in length.

(iv) Number of nets. The total number of individual nets or net

panels for a vessel, including all nets on board the vessel, hauled by

the vessel or deployed by the vessel, does not exceed 45.

(v) Tie-down System. Tie-downs are prohibited.

(vi) Tagging requirements. Beginning January 1, 2000, the gillnet

is equipped with two tags per net, with one tag secured to each bridle

of every net within a string of nets.

(3) Southern Mid-Atlantic waters--large mesh gear requirements and

limitations. From February 1 through April 30 of each year, no person

may fish with large mesh gillnet gear in Southern Mid-Atlantic waters

unless the gear complies with the specified gear characteristics.

During this period, no person who owns or operates the vessel may allow

the vessel to enter or remain in Southern Mid-Atlantic waters with

large mesh sink gillnet gear on board unless the gear complies with the

specified gear characteristics or unless the gear is stowed. In order

to comply with these specified gear characteristics, the gear must have

all the following characteristics:

(i) Floatline Length. The floatline is no longer than 3,900 ft

(1,188.7 m).

(ii) Twine Size. The twine is at least 0.04 inches (0.090 cm) in

diameter.

(iii) Size of nets. Individual nets or net panels are not more than

300 ft (91.4 m or 50 fathoms) in length.

(iv) Number of nets. The total number of individual nets or net

panels for a vessel, including all nets on board the vessel, hauled by

the vessel or deployed by the vessel, does not exceed 80.

(v) Tie-down system. The gillnet is equipped with tie-downs spaced

not more than 15 ft (4.6 m) apart along the floatline, and each tie-

down is not more than 48 inches (18.90 cm) in length from the point

where it connects to the floatline to the point where it connects to

the lead line.

(vi) Tagging requirements. Beginning January 1, 2000, the gillnet

is equipped with two tags per net, with one tag secured to each bridle

of every net within a string of nets.

(4) Southern Mid-Atlantic waters--small mesh gillnet gear

requirements and limitations. From February 1 through April 30 of each

year, no person may fish with small mesh gillnet gear in waters off New

Jersey unless the gear complies with the specified gear

characteristics. During this period, no person who owns or operates the

vessel may allow the vessel to enter or remain in Southern Mid-Atlantic

waters with small mesh gillnet gear on board unless the gear complies

with the specified gear characteristics or unless the gear is stowed.

In order to comply with these specified gear characteristics, the gear

must have all the following characteristics:

(i) Floatline Length. The floatline is no longer than 2118 ft

(645.6 m).

[[Page 48690]]

(ii) Twine Size. The twine is at least 0.03 inches (0.080 cm) in

diameter. This requirement applies only to mesh sizes 7

inches.

(iii) Size of nets. Individual nets or net panels are not more than

300 ft (91.4 m or 50 fathoms) in length.

(iv) Number of nets. The total number of individual nets or net

panels for a vessel, including all nets on board the vessel, hauled by

the vessel or deployed by the vessel, does not exceed 45.

(v) Tie-down System. Tie-downs are prohibited.

(vi) Tagging requirements. Beginning January 1, 2000, the gillnet

is equipped with two tags per net, with one tag secured to each bridle

of every net within a string of nets.

(d) Other special measures. The Assistant Administrator may revise

the requirements of this section through notification published in the

Federal Register if:

(1) NMFS verifies one year after plan implementation, that pinger

operating effectiveness in the commercial fishery is not adequate to

reduce bycatch to acceptable levels with the current plan.

(2) NMFS determines that the boundary or timing of a closed area

are not appropriate, or that gear modifications (including pingers)are

not meeting bycatch reduction expectations. Specifically, NMFS will

review effort and bycatch data and make a determination by June 30 each

year if additional bycatch reduction measures are needed for the

remainder of the calendar year to keep the annual bycatch level below

the PBR level.

[FR Doc. 98-24306 Filed 9-8-98; 11:40 am]

BILLING CODE 3510-22-P