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. 970129015-8287-08; 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: Final rule; notice of availability of take reduction plan.

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SUMMARY: Pursuant to the Marine Mammal Protection Act (MMPA), NMFS

issues a final rule to implement a harbor porpoise take reduction plan

(HPTRP) in the Gulf of Maine and Mid-Atlantic waters. The HPTRP is

contained in the HPTRP/ Environmental Assessment/Final Regulatory

Flexibility Analysis (HPTRP/EA/FRFA), available upon request (see

addresses below). In the Gulf of Maine, these final regulations put

into place a series of time and area closures where pingers are

required: in the Mid-Coast Closure Area (September 15 through May 31),

the Massachusetts Bay and Cape Cod South Closure Areas (December 1

through February 28/29 and April 1 through May 31) and establish a new

closure area, the Offshore Closure Area, where pingers are required

November 1 through May 31. A complete closure has been added in the

Cashes Ledge Closure Area, February 1-28/29. These regulations require

any fishermen using pingers in the closed areas where pingers are

allowed, to receive training and be certified in pinger use. A

certificate must be carried onboard the vessel. In the Mid-Atlantic,

this plan closes New Jersey waters from January 1 through April 30 to

large and small mesh gear unless gear meets the specified gear

modifications. This plan closes southern Mid-Atlantic waters from

February 1 through April 30 to large and small mesh gear unless gear

meets the specified gear modifications. This plan closes New Jersey

waters from April 1-April 20 and southern Mid-Atlantic waters from

February 15-March 15 for large mesh gear. The region known as the New

Jersey Mudhole is closed to small and large mesh gear from February 15-

March 15. All small and large mesh gear in the Mid-Atlantic must be

tagged by January 1, 2000.

DATES: Effective January 1, 1999, except for Sec. 229.33 (a)(2) which

becomes effective December 2, 1998, Sec. 229.33(a)(5) which becomes

effective December 8, 1998, and Sec. 229.33(a)(3) and (a)(4) which

become effective December 16, 1998.

ADDRESSES: Copies of the draft plan prepared by the Gulf of Maine Take

Reduction Team (GOMTRT), the final report from the Mid-Atlantic Take

Reduction Team (MATRT) and the HPTRP/EA/FRFA 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: This final rule implements a take reduction

plan (TRP) for the Gulf of Maine (GOM) stock of harbor porpoise, a

strategic marine mammal stock that interacts with the Northeast (NE)

multispecies gillnet fishery and with the Mid-Atlantic coastal gillnet

fishery. A strategic stock is a stock: (1) for which the level of

direct human-caused mortality exceeds the potential biological removal

(PBR) level (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); (2) that is declining and is likely to be

listed under the Endangered Species Act (ESA) in the foreseeable

future; or (3) that is listed as a threatened or endangered species

under the ESA. NMFS proposed listing the GOM harbor porpoise as

threatened under the ESA (58 FR 3108, January 7, 1993), but no final

action has been taken on that proposal.

The NE multispecies sink gillnet fishery is a Category I fishery,

and the Mid-Atlantic coastal gillnet fishery is a Category II fishery,

as classified under Section 118 of the MMPA. A Category I fishery is a

fishery that has frequent incidental mortality and serious injury

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of marine mammals. A Category II fishery is a fishery that has

occasional serious injuries and mortalities of marine mammals.

Section 118 of the MMPA requires NMFS to develop and implement a

TRP to assist in the recovery or to prevent the depletion of each

strategic stock that interacts with a Category I or II fishery. The

immediate goal of a TRP is to reduce, within 6 months of its

implementation, the level of mortality and serious injury of strategic

stocks incidentally taken in the course of commercial fishing

operations to less than the PBR levels established for such stocks. The

long-term goal of a TRP is to reduce the level of mortality and serious

injury of strategic stocks incidentally taken in the course of

commercial fishing operations to a level approaching a zero mortality

rate (ZMRG).

Stock Assessment and Incidental Takes by Fishery

The PBR level for GOM harbor porpoise throughout their range is 483

animals (62 FR 3005, January 21, 1997). The estimated total annual

average mortality from the NE 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).

Take Reduction Teams (TRTs)

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. The GOMTRT focused

only on bycatch off New England's coast (Maine to Rhode Island). The

GOMTRT was convened with the understanding that a separate take

reduction team (TRT) would address harbor porpoise bycatch in the Mid-

Atlantic.

While the individual Teams did not specifically address whether

measures are necessary to reach the ZMRG at this time, the TRT process

will address the ZMRG after the initial measures have been monitored.

NMFS and the TRT can then determine whether further reductions, if any,

may be necessary to reach the long-term goal.

The GOMTRT included representatives of the NE multispecies sink

gillnet fishery, NMFS, state marine resource managers, 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

(draft GOMTRP) to NMFS in August 1996.

Soon after NMFS received the draft GOMTRP, the NEFMC enacted

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

Multispecies Fishery Management Plan (FMP). Based on this action, NMFS

modified the draft GOMTRP to be consistent with Framework Adjustment

19. NMFS published an initial proposed rule to implement a TRP for

harbor porpoise in the GOM (62 FR 43302, August 13, 1997). The proposed

rule to implement the GOMTRP was available for a 60-day public comment

period.

NMFS reconvened the GOMTRT in December 1997 to evaluate new bycatch

data that suggested that the GOMTRP would not achieve PBR for harbor

porpoise in the GOM. NMFS reopened the public comment period on the

GOMTRP proposed rule for one month during the deliberations of the

GOMTRT.

At the December 1997 meeting, the GOMTRT agreed on a number of

additional measures for bycatch reduction that were presented to NMFS

in the form of a report on January 14, 1998 (RESOLVE, 1998). In their

recommendations, the GOMTRT took into account the significant changes

in groundfish conservation measures proposed under Framework 25 of the

NE Multispecies FMP which partially overlapped existing marine mammal

closures (Framework 25 was under consideration by the NEFMC during the

GOMTRT meeting in December 1997 and was not implemented until May,

1998). Framework 25 allowed continued use of pingers in the Mid-coast

area from March 25 through April 25 and closed the Jeffreys Ledge

portion of the Mid-Coast area year-round.

The GOMTRT recommended the following measures to achieve PBR: (1)

maintain the existing Northeast Closure from August 15 through

September 13; (2) close Cape Cod South from March 1 through March 31;

(3) close Massachusetts Bay from March 1 through March 31; (4) close

the Mid-Coast area from March 24 through April 26; (5) require pingers

from September 15 through March 24 and April 26 through May 31 in the

Mid-Coast area; (6) require pingers from September through May in the

Cape Cod South area; (7) require pingers the months of February and

April in the Massachusetts Bay area; and (8) require pingers September

1 through May 31 in the Offshore area.

In February 1997, NMFS convened the MATRT 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

managers, the Mid-Atlantic Fishery Management Council (MAFMC), the

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

environmental organizations, and academic and scientific organizations.

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

both consensus and non-consensus recommendations.

The MATRT recommended management measures specific to the two

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

fisheries. It recommended that the timeframe for effectiveness be from

January through April off New Jersey and from February through April

off the southern Mid-Atlantic (Delaware, Maryland, Virginia and North

Carolina). The management measures that the team suggested focused on

those gear characteristics that demonstrated the most potential for

bycatch reduction. For the monkfish fishery, these measures included

reduced floatline length, larger twine size, tie downs, and a limit of

80 nets. For the dogfish fishery, the measures included reduced

floatline length, larger twine size, and a 45-net limit. Additionally,

the MATRT recommended time/area closures for the monkfish fishery in

New Jersey waters (February 15-March 15) and in the southern Mid-

Atlantic (20 day block between February and April, chosen by the

fishermen) but no time/area closures for the dogfish fishery.

Both the GOMTRT and the MATRT recommended certain non-regulatory

measures. The non-regulatory aspects of the HPTRP are discussed in the

HPTRP/EA/FRFA. The following summarizes NMFS efforts to address the

concerns raised by the GOMTRT and MATRT:

(1) 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 a monitoring strategy for the HPTRP, NMFS is working

with the ASMFC on the Atlantic Coastal Cooperative Statistics Program

to provide managers with more timely bycatch and fisheries information

on the Atlantic Coast.

(3) NMFS is investigating options for providing support to

fishermen for pinger technology.

(4) NMFS began pinger training and certification for all fishermen

who wish

[[Page 66466]]

to use pingers in the closed areas in September 1998.

(5) NMFS has expanded its capabilities to do analytical research by

hiring additional staff for its Northeast Fisheries Science Center

(NEFSC). Additional resources will be considered during normal funding

and staffing allocation discussions in light of other agency

responsibilities.

(6) NMFS has expanded its capabilities to observe the Mid-Atlantic

fisheries by exploring alternative platforms to obtain a better

characterization of coastal fisheries that were not accessible to the

traditional Sea Sampling Observer Program.

(7) The HPTRP provides for voluntary skipper education workshops in

the Mid-Atlantic.

(8) Although NMFS has expanded its capabilities with respect to

observing the Mid-Atlantic fisheries, NMFS will continue to increase

observer coverage at levels consistent with a valid sampling scheme

because of limited resources. Additionally, NMFS is expanding

observation from alternative platforms and is increasing 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. A specific discussion of these recommendations

and NMFS'' response are contained in the HPTRP/EA/FRFA.

Proposed Rule/HPTRP

NMFS combined the GOMTRP and MATRT report into one proposed HPTRP

and proposed rule which was published on September 11, 1998 (63 FR

48670). The proposed HPTRP was based in large part on recommendations

by the GOMTRT and the MATRT and was divided into a GOM component and a

Mid-Atlantic component. NMFS is considering whether or not the two

Teams should continue to meet separately or whether some or all of the

meetings should be combined.

Final Rule/HPTRP

Gulf of Maine Component

Table 1 sets forth the HPTRP management measures for the Gulf of

Maine in the final rule (see Figure 1).

Table 1.--Gulf of Maine Time/Area Closures to Gillnet Fishing and Periods During Which Pinger Use Are Required

Under the Final Rule/HPTRP

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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:

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

March 1-31............................. Closed.

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

Cape Cod South Area:

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

March 1-31............................. Closed.

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

Offshore Area:

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

Cashes Ledge Area:

February 1-28/29....................... Closed.

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The HPTRP regulations maintain the comprehensive approach of the

proposed rule.

The proposed HPTRP would have closed the Northeast Area to sink

gillnet fishing from August 15 through September 13 of each year. The

final rule makes no changes to this measure.

The proposed HPTRP did not include a complete closure in the Mid-

Coast Area but required pingers from September 15 through May 31. The

final rule represents no changes from the proposed rule.

The proposed HPTRP provided that Massachusetts Bay remain closed in

March, the time of year during which most known takes in the region

were recorded, and proposed that pingers be required during February,

April, and May to reduce the take of harbor porpoise in other spring

months. Based on public comments and to address data which showed

observed takes in the winter months in Massachusetts Bay, pinger

requirements are extended to include the months of December and January

in this final rule.

In the South Cape area, the proposed HPTRP would have required

pingers from September 15 through February, and then again in April to

account for uncertainty in estimated bycatch in this area throughout

the year. Based on public comments and on the lack of observed takes in

the fall months, this final rule changes the beginning of the time

period for pinger requirements from September 15 to December 1. To

account for observed takes that have occurred later in the spring, the

HPTRP has extended the pinger requirement to include May 1 through 31.

These changes are expected to ease the burden (both in economic terms

and in terms of the additional effort expended to use pingers) on the

South Cape fishermen by allowing for more fishing time without pingers.

This change is not expected to affect projected bycatch reduction from

the South Cape area because, based on current observer data, the plan

will achieve the same or greater bycatch reduction in May, when takes

have been observed, than in the fall months.

The proposed HPTRP provided for closing the Cashes Ledge section of

the Offshore area in February and would have required pingers from

September 15 through May in the broader Offshore area. The final HPTRP

does not change the Cashes Ledge closure in February but modifies the

time of pinger use to begin November 1, rather than September 15, based

on lack of observed takes between September 15 through October 31.

These changes ease the burden (both in economic terms and in terms of

the additional effort expended to use pingers) on New Hampshire and

Maine fishermen during the times of no observed bycatch. This change

should not affect overall plan effectiveness because, based on current

observer data, little bycatch reduction is expected in September and

October in the Offshore area.

Mid-Atlantic Component

Tables 2 and 3 set forth the HPTRP management measures for the

large mesh (includes gillnet with mesh size of greater than 7 inches

(17.78cm) to 18 inches (45.72cm)) and small mesh (includes gillnet with

mesh size of greater than 5 inches (12.7 cm) to less than 7 inches

(17.78cm)) gillnet fisheries in the Mid-Atlantic (see Figure 2).

Table 2.--Management measures for the Large mesh Gillnet Fishery (Includes Gillnet With Mesh Size Greater Than 7

Inches (17.78cm) to 18 Inches (45.72cm)) in the Mid-Atlantic Under the Final Rule/HPTRP

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Floatline Length:

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

New Jersey Waters (excluding the Less than or equal to 4,800 ft (1463.0 m).

Mudhole).

Southern Mid-Atlantic waters.... 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.

Net Size............................ A net must be no longer than 300 feet (91.4m) long.

Net Tagging......................... Requires all nets to be tagged by January 01, 2000.

Time/Area Closures:

New Jersey waters to 72 deg.30' Closed from April 1-April 20.

W. longitude (including the

Mudhole).

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

Southern Mid-Atlantic waters Closed from February 15-March 15.

(MD, DE, VA, NC) to 72 deg.30'

W. longitude.

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Table 3.--Management Measures for the Small Mesh Gillnet Fishery (Includes Gillnet with Mesh Size of Greater

Than 5 Inches (12.7 cm) to Less Than 7 Inches (17.78cm)) in the Mid-Atlantic Under the Final Rule/HPTRP

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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:

All Mid-Atlantic waters......... Greater than or equal to .81 mm (.031 inches).

Net Cap:

All Mid-Atlantic waters......... 45 nets.

Net Size............................ A net must be no longer than 300 feet (91.4m) long.

Net Tagging......................... Requires all nets to be tagged by January 1, 2000.

Time/Area Closures:

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

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The Mid-Atlantic component of the HPTRP is generally consistent

with the proposed HPTRP, except as discussed below. The gear

modifications in the final HPTRP remain the same as in the proposed

HPTRP. The effective period remains the same as described in the

proposed HPTRP: January 1 through April 30 for New Jersey waters, and

February 1 through April 30 for southern Mid-Atlantic waters.

Additionally, stratification by fishery based on mesh size remains the

same as in the proposed HPTRP.

The most significant change from the proposed HPTRP is the

application of the management measures within the small mesh fishery.

In the proposed plan, the small mesh fishery was defined as all those

fisheries employing mesh size of less than 7 inches (17.78 cm).

Stranding data and related bycatch information suggest that certain

small mesh fisheries could be a source of harbor porpoise bycatch. This

information, along with the assumptions inherent in the bycatch

analyses, led NMFS to propose that these fisheries be subject to some

of the regulatory measures in the proposed HPTRP.

Based upon further review and as the result of public comment, NMFS

has decided to exclude fisheries with mesh size 5 inches (12.7 cm) and

less from the HPTRP regulations at this time. The reasons for this are

that the number of observed takes in these mesh sizes currently

available in the data is limited. However, given the concerns

associated with the possible bycatch from these fisheries discussed

above, NMFS will reevaluate the observer and stranding data,

particularly from alternative platforms, for these fisheries in the

spring, 1999 and address the issue of mesh sizes 5 inches (12.7 cm) or

less at that time.

Given the models and assumptions used in the subfishery bycatch

analysis and the predicted effect of using the recommended gear

characteristics based on small and large mesh gillnet categories,

excluding the mesh sizes of 5 inches (12.7 cm) and less at this time

does not change the expected 79 percent or greater reduction in harbor

porpoise bycatch in the Mid-Atlantic.

In addition to the 30-day public comment period and publication of

the proposed rule in the Federal Register, NMFS issued a press release

announcing the availability of the proposed rule and summarizing the

major issues in the proposed rule. The final rule will govern fishing

by the NE Multispecies and Mid-Atlantic gillnet fisheries in the GOM

and Mid-Atlantic. NMFS expects that implementation of this rule will

reduce within 6 months of its implementation the bycatch of harbor

porpoise to below their PBR level.

Response to Comments

Comments on the Take Reduction Team Process and General Comments

Comment 1: One commenter stated that each country and each region

should be treated equally and be separately responsible for specified

shares of PBR and bycatch reduction. This commenter noted that

combining the two plans raises the issue of how NMFS will allocate PBR

between the two jurisdictions in the future. Since the Mid-Atlantic

accounts for only 10 percent of the mortality, this is unfair to them.

Three commenters recommended keeping PBR only on a jurisdictional

basis. One commenter recommended reconvening both the GOMTRT and MATRT

to address the allocation issue.

Response: NMFS disagrees that there is an allocation problem. Each

region is treated separately for respective shares of PBR. This issue

was discussed in detail during the Mid-Atlantic TRT meetings. Combining

the two plans into one final rule does not change the basis for the

reductions accepted by the separate TRTs. Specifically, each region

agreed to reduce its respective bycatch by 79 percent of the estimated

level of bycatch for that region. For example, if the Mid-Atlantic

region takes only an estimated 200 animals, they need to achieve a 79

percent reduction which translates to a reduction of 158 animals. If

the GOM has an estimated take level of 1800 animals, they also need to

achieve a 79 percent reduction, but this translates to a reduction of

1422 animals. These are equal reductions based on the respective levels

of bycatch; i.e., one region is not compensating for the other. This

strategy is both equitable and fair and was accepted by the GOMTRT and

MATRT.

Comment 2: One commenter noted that the Federal Register

publication notice for the proposed rule (63 FR 48671) indicated that

Canadian sink gillnet takes are approximately 100 animals, and the

HPTRP will achieve the necessary PBR reduction including the Canadian

takes. The commenter asked how NMFS will incorporate fluctuations in

Canadian interaction levels in the HPTRP. The commenter also asked how

a higher level of lethal Canadian interactions would affect the annual

HPTRP review and why an approximate count is acceptable for Canadian

take whereas the total PBR estimate is a firm point estimate. Another

commenter recommended that NMFS strongly encourage efforts to request

the Department of Fisheries and Oceans (DFO), Canada, to consider the

HPTRP.

Response: Under the MMPA, takes throughout the range of the species

are considered in developing management measures in the TRPs. Since the

HPTRT is expected to meet semi-annually the first year, and annually

thereafter, changes in information on Canadian takes, as available, can

be evaluated by the TRT at the same time U.S. bycatch information is

discussed and recommendations made on all these issues at the same

time. NMFS has detailed data on both bycatch in U.S. fisheries and

Canadian fisheries. This allows for a more accurate estimate of total

bycatch in U.S. and Canada fisheries. For Canadian takes, the U.S.

receives information from the Canadian Government on bycatch in its

fisheries. NMFS has already met with representatives of the Canadian

government to discuss the HPTRP in U.S. waters and encourage the

Canadians to participate in reducing the overall fishing mortality on

this stock. As a result, Canada developed its Harbor Porpoise

Conservation Plan and has implemented an observer program which has

documented a continuous reduction in bycatch in their Bay of Fundy

gillnet fisheries.

Comment 3: Five commenters asked how NMFS will incorporate the

anticipated harbor porpoise conservation benefits when the FMPs for

monkfish and spiny dogfish are published and the American shad

intercept gillnet fishery is phased out. Another commenter noted that

upcoming management plans on both dog sharks and monkfish have not been

considered by NMFS in constructing the HPTRP. This commenter stated

that the most obvious problem with the HPTRP is the lack of information

on the restrictions proposed by the FMPs for monkfish and spiny dogfish

and their anticipated conservation benefits to harbor porpoise. Another

commenter criticized NMFS for not considering the protection that will

be afforded under a number of FMPs, including Atlantic Sturgeon,

Monkfish, Dogfish, Bluefish Amendment 1, Amendment 1 to Shad and River

Herring.

Response: NMFS generally discussed the impacts of the proposed FMPs

for monkfish and dogfish in the proposed HPTRP. NMFS did not analyze

the proposed FMP management measures in detail because, during the

development of the proposed HPTRP, these plans were not yet final.

Given that FMPs may change significantly prior to a final vote by the

responsible Fishery Management

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Council (FMC), NMFS felt it unwise and impractical to guess at the

final FMC recommendations. However, concurrent with the development of

the HPTRP proposed rule, the Monkfish FMP was voted on and a final FMP

package with a preferred alternative was submitted to NMFS on October

27, 1998, by the NEFMC and the MAFMC. The preferred alternative, now

under consideration by the NEFMC and the MAFMC, will provide no

benefits to harbor porpoise conservation in the near future because the

regulations do not become effective until May 1, 1999. Since the HPTRP

must show a reduction in bycatch within 6 months of implementation and

the majority of harbor porpoise bycatch occurs during the months of

January through April, the HPTRP must go into effect in early January

1999 to reduce impacts to harbor porpoise in the spring 1999 fishery.

If the Monkfish FMP goes into effect, the expected harbor porpoise

conservation benefits appear to be the result of overall effort

reduction through Days-At-Sea and Total Allowable Catch restrictions.

However, any conservation benefits may be negated as a result of the

relatively high gill net limits set by the FMP. According to the MATRT,

the average number of nets employed by Mid-Atlantic fishermen is 80

nets. The Monkfish FMP, if approved, would allow fishermen to use up to

160 nets.

The biggest differences between the Monkfish FMP and the HPTRP are

in the mandatory time outs. The 20-day block during April, May, and

June required under the Monkfish FMP would have little additional

reduction in harbor porpoise bycatch. If the fishermen take their 20-

day block (under the Monkfish FMP) in early April in New Jersey, there

could be a conservation benefit--but it would mirror only what is

currently required in the HPTRP and would not result in any additional

benefits. If the 20 days are taken in May or June in New Jersey or

April through June in the southern Mid-Atlantic, there will be little

if no benefit to harbor porpoise because harbor porpoise are not

usually taken in those areas at those times.

Regarding the other upcoming FMP, the Dogfish FMP is still under

development; therefore it is unclear what the Councils' preferred

alternative is regarding that plan. NMFS believes it is premature to

analyze the possible impacts of the Dogfish FMP without a preferred

alternative. The other plans are still either in the development phase

or will not go into effect until after the spring 1999 fishery, thereby

not providing any clear benefits to harbor porpoise in the required 6-

month time frame.

As stated in the proposed rule, the HPTRP measures are expected to

be reevaluated on a yearly basis. NMFS will consider any new

regulations that may affect harbor porpoise or the implementation of

this plan and evaluate whether management measures need to be changed

at that time.

Comment 4: One commenter recommended that the HPTRT be convened

semiannually to see if the HPTRP is meeting objectives.

Response: NMFS intends to reconvene the teams semiannually the

first year of plan implementation in order to track the plan's progress

toward the 6-month MMPA goal. Whether or not reconvening the TRTs semi-

annually after that first year is necessary would depend on the

circumstances.

Comment 5: One commenter recommended that NMFS coordinate HPTRP

development with annual FMP adjustments that will occur for the

Multispecies, Monkfish, and possibly Dogfish FMPs. FMP evaluation will

begin in November, and recommendations will be provided to the Council

every December. Any changes to plans will be submitted by the Council

to NMFS by February 1 each year, with implementation on May 1.

Response: NMFS agrees that close coordination with the Fishery

Management Councils on annual changes that will affect fisheries is a

good idea. During the first year of plan implementation, the TRT will

meet in the summer of 1999 to discuss the plan's progress and recommend

any changes to the plan based on the spring fishery's results. In

finalizing recommendations, NMFS would have the opportunity to

coordinate with the Councils in the fall at the same time the Councils

are considering adjustments for fishery management purposes.

Comment 6: One commenter recommended that NMFS should review

Framework 25 to see whether there are ancillary benefits to harbor

porpoise that have not been included in the proposed rule. If Framework

25 results in more positive benefits than projected, NMFS should

consider reducing the 8\1/2\-month pinger requirement in the Mid-Coast

area.

Response: Framework 25 was evaluated using the available data to

determine ancillary benefits to harbor porpoise reduction. The benefits

of Framework 25 were included in the analysis to determine how much

additional reduction was needed from the HPTRP measures (see the EA for

detailed information). When bycatch information is reviewed for spring

of 1999, further information will be available to evaluate the impacts

of implementation of Framework 25 during 1997 and 1998.

The HPTRP has an overall strategy for the entire GOM that is

expected to reach MMPA goals for this fishery. Individual areas cannot

be viewed in a vacuum. The Mid-Coast area has made progress in reducing

bycatch by using pingers. Therefore, contrary to supporting a reduction

in pinger use, this fact supports the continued use of pingers so that

bycatch continues to remain under control. This plan will not work if

bycatch reduction achieved in one area is replaced with bycatch

increases in another area because mitigation measures have been

removed.

Comment 7: One comment supported the need for the proposed

regulations and noted that the proposed regulations can work well with

the FMPs developed by NEFMC and MAFMC.

Response: NMFS agrees.

Comment 8: One commenter stated that the process was

inappropriately delayed and, consequently, requested an additional

public comment period.

Response: NMFS agrees that the process experienced delays for many

reasons. Significant public comment was received throughout the TRT

process, including an additional meeting in December 1997 for the GOM.

Addressing the harbor porpoise bycatch issue has been an ongoing

process since the early 1990s, and most of the measures in the TRT

draft plan from 1996 had already been put into place through framework

actions implemented under the NE Multispecies FMP. While the proposed

rule published in September 1998 goes beyond these measures, NMFS

determined that 30 days was sufficient for additional comments, given

the long history of public involvement.

Comment 9: Several commenters felt that because small mesh

fishermen in the Mid-Atlantic were not adequately involved in the TRT

process, any regulations affecting this segment of the fishery should

be open to public hearings.

Response: NMFS disagrees that the small mesh fishermen did not have

the opportunity to be represented in the MATRT. The MATRT included a

number of industry representatives and state fishery management

agencies. In addition, the MATRT meetings were open to the public.

However, many fishermen typically using this type of gear in nearshore

fisheries in the Mid-Atlantic, while present at the start of the MATRT

process, did not participate

[[Page 66472]]

once the MATRT agreed to address only the monkfish and dogfish

subfisheries.

Comment 10: One commenter complemented the Press Guide which

explained the proposed regulations but noted that the northern and

eastern boundaries of the Mudhole were in error.

Response: The actual chart provided in the Press Guide was correct.

However, NMFS agrees that the accompanying text contained errors in the

northern and eastern boundaries. NMFS will review the Press Guide and

revise it based on final regulations.

Comment 11: One commenter requested that the analysis from the GOM

pinger experiment be given to the MAFMC. The commenter stated that a

consensus recommendation could be developed with the new results from

the GOM experiment.

Response: NMFS will provide the MAFMC with the results of the 1997

pinger experiment, which can also be discussed at the next meeting of

the MATRT.

Comment 12: One commenter stated that combining the Mid-Atlantic

and GOM TRTs is not a good idea. The fisheries are not the same, and

this approach would only weaken the position fishermen hold on the

TRTs.

Response: NMFS agrees that the fisheries are different; that is why

distinct strategies were maintained for each region even though both

geographic areas were included in one set of regulations. The

regulations would not have been different had they gone through two

separate rulemaking processes. NMFS is considering whether or not the

two teams should continue to meet separately or whether some or all of

the meetings should be combined.

Comment 13: One commenter notes that the statement ``the HPTRP is

based in large part on recommendations in the draft GOMTRP and the

MATRT report'' is not accurate. NMFS has expanded the terms of the

regulation so significantly that NMFS has jeopardized any future TRT

discussions because participants cannot be assured that their time,

deliberations, and consensus will be honored and accepted by NMFS.

Response: NMFS disagrees that the terms of the regulation have been

expanded significantly from the two TRT recommendations. The GOM plan

retained the strategy of discrete closures surrounded by larger areas

of pinger use as recommended by the TRT at its December 1997 meeting.

The strategy of gear modifications based on gear types that reflected

locally prevailing practices in the Mid-Atlantic were retained. In both

cases, some changes were made in the final regulations based on new

information and comments received during the public comment period. The

TRT deliberations are integral to the process and provided valuable

insight into how these issues between stakeholders might be resolved.

Individual team member contributions are invaluable, and the teams are

to be fully commended for persevering through a difficult process.

Changes made to those recommendations reflect actions considered

necessary to meet agency obligations under the law, to reflect concerns

of all constituents, and to be certain that regulations are

enforceable. This process is relatively new and both TRT participants

and NMFS have learned ways the process can be improved. NMFS agrees

that continued efforts at communication between NMFS and the teams

throughout the process is necessary for the process to maintain its

integrity.

Comment 14: One commenter questioned whether the proposed rule

discusses the new information that has warranted the changes that NMFS

has made from the 1997 proposed rule. The commenter stated that no

conclusive information was presented at the December 16--17 meeting

resulting in any consensus or recommendation from that meeting to

warrant those changes.

Response: Recommendations did come out of the December 16--17,

1997, meeting, and they are reflected in the GOMTRT's report of January

14, 1998. NMFS agreed with many of the GOMTRT's recommendations, and

the proposed rule (September 11, 1998) incorporated most of the Team's

recommendations. NMFS agrees that this was not a consensus report. The

August 1997 proposed GOMTRP provided for a variety of measures,

including requirements for fishery closures and closures with pingers

aimed at harbor porpoise protection that were ultimately implemented

under the Magnuson-Stevens Fishery Conservation and Management Act

(Magnuson-Stevens Act). The 1996 bycatch data revealed that these

measures were ineffective at reducing overall bycatch, and, based on

this new information, NMFS concluded that the changes to the original

proposed GOMTRP were warranted. These data and historical management

measures are discussed in detail in the EA.

Comment 15: One commenter stated that there is confusion because

some areas are closed for both groundfish conservation and harbor

porpoise protection. In some areas that are closed for harbor porpoise

protection only, fishing with gillnets is permitted with approved

pingers. This distinction between areas closed for harbor porpoise

conservation and areas closed for groundfish conservation should be

clearly articulated as a matter of general policy in the final rule.

This would obviate the need to initiate a framework adjustment each

time a groundfish conservation closure was shifted or lifted if it

occurred in an area also closed for harbor porpoise protection.

Response: Since the harbor porpoise regulations are promulgated

under the MMPA, the regulations will remain in effect regardless of

shifts in groundfish closures under the Magnuson-Stevens Act. However,

the effects of changes in groundfish closures on the effectiveness of

the HPTRP would need to be reviewed and changes made to the plan, if

appropriate, to retain its effectiveness.

Comment 16: One commenter recommended including a definition of

baitnets in the rule.

Response: A description of baitnets is provided in the regulations

for the NE Multispecies FMP (50 CFR Sec. 648.81 (f)(2)(ii)) as ``a

single pelagic gillnet, not longer than 300 feet (91.44 m) and not

greater than 6 ft (1.83 m) deep, with a maximum mesh size of 3 inches

(7.62 cm), provided that the net is attached to the boat and fished in

the upper two thirds of the water column, the net is marked, there is

no retention of regulated species, and there is no other gear onboard

capable of catching NE multispecies.'' The HPTRP regulations include an

exception for single pelagic gillnets or baitnets.

Comment 17: One commenter noted that the capture of harbor porpoise

in mid-water trawl fisheries has not been adequately addressed within

the proposed rule. The commenter stated that the mid-water trawl

fishery for Atlantic herring represents the biggest increase in fishing

effort and is classified as a Category II fishery. The efforts of

reducing bycatch through gillnet regulations could be negated if no

regulatory action is implemented for the mid-water trawl fishery for

Atlantic herring.

Response: NMFS agrees that the mid-water trawl fishery for Atlantic

herring has the potential to take small cetaceans. In the proposed List

of Fisheries for 1999, the GOM and Mid-Atlantic herring mid-water trawl

fishery are proposed as Category II, based on comparisons with other

gear types known to take several species of small cetaceans and the

fact that herring are an important prey item for several stocks of

marine mammals. However, NMFS currently has no observed takes of harbor

porpoise in this fishery, and consequently it is not included in the

final HPTRP. Monitoring will continue through the Sea Sampling Observer

[[Page 66473]]

Program at a level consistent with the valid sampling scheme currently

used by the program.

Comment 18: One commenter expressed reservations about NMFS' intent

to implement the five stated non-regulatory measures recommended by the

GOMTRT at its December 1997 meeting. The study to evaluate habituation

and displacement has been concluded, and the results should be

published. A census of the gillnet fleet should be readily available

through existing reporting requirements. The commenter also felt that

there has been sufficient time for NMFS to investigate options for

providing support to fishermen for pinger technology. The commenter

questioned why these issues are not addressed with the proposed rule.

The commenter noted that NMFS will need to have a pinger training

course available at all times so as not to prevent potential fishermen

access into the gillnet fishery.

Response: One study to evaluate habituation and displacement took

place during the summer of 1998, but a final report was not available

at the time of the proposed rule. Results of this study will be

published as soon as possible. The implications of this study for the

HPTRP will be discussed at the next meeting of the TRTs in 1999.

A census of the gillnet fleet using existing reporting measures is

expected to occur in the near future. When the census is complete, the

results will be reported.

NMFS has investigated the potential for support for fishermen to

purchase pingers but no viable options are available at this time.

The certification program for fishermen using pingers is expected

to be available as needed.

Comment 19: One commenter suggested that NMFS track harbor porpoise

by radar to alert fishermen and thereby give fishermen the opportunity

to move nets. Another commenter suggested daily tracking of harbor

porpoise to regulate fishing that day.

Response: Given current technologies, it would not be feasible for

harbor porpoise to be tracked by radar. Radar tracking poses

significant difficulties with small cetaceans, both technically and

practically. Additionally, because of the nature of the gillnet

fishery, it would be impractical for fishermen to retrieve their nets

when harbor porpoise are in the area without significantly reducing

their catch. Daily regulations of fishing would be nearly impossible to

administer and impractical for fishermen to comply with.

Comment 20: One commenter suggested making the gillnets smaller.

Response: If the comment refers to the actual size of the deployed

nets, this approach is part of the reasoning behind the reduced

floatline lengths in the Mid-Atlantic component of the HPTRP.

Comment 21: One commenter suggested that fishermen should not be

allowed to fish in the same area where harbor porpoise eat.

Response: Although the NE multispecies and Mid-Atlantic fisheries

are not necessarily targeting harbor porpoise prey, they do use many of

the same feeding areas as harbor porpoise. Since restricting fishing

away from areas of harbor porpoise feeding would severely restrict

fishing opportunity and because it is unclear exactly where and if

harbor porpoise feed on a regular basis, the intent of the pinger

requirements is to allow fishermen to be in the same general area as

harbor porpoise while minimizing interactions.

Comment 22: One commenter suggested closing certain areas to

fishermen, particularly during harbor porpoise mating seasons. Another

commenter suggested generally implementing special fishing times.

Response: The intention of the HPTRP is to close certain areas to

fishing during times of high bycatch, i.e., when chances of interaction

between harbor porpoise and gillnet fisheries are high. However,

because all areas cannot be closed if a viable fishery is to exist,

fishing during times and areas adjacent to closures can only be allowed

if pingers are used.

Comment 23: One commenter recommended that no fishing be allowed

when harbor porpoise are in Maine.

Response: The HPTRP closed the NE area, in Maine, from August 15 to

September 13, the time period when harbor porpoise are most common in

Maine waters.

Comment 24: One commenter recommended that the MMPA and ESA be

strengthened.

Response: NMFS will reevaluate the effectiveness of the HPTRP

management measures and the effectiveness of the MMPA to achieve harbor

porpoise conservation in 1999. NMFS will not reevaluate the ESA with

regard to TRPs because NMFS regards the MMPA measures sufficient for

conservation of harbor porpoise.

Comment 25: One commenter suggested that NMFS list harbor porpoise

as threatened.

Response: In 1993, NMFS proposed listing the harbor porpoise as

threatened under the ESA in response to a petition by Sierra Club Legal

Defense Fund on behalf of 13 other organizations. NMFS' research

findings at that time indicated that the rate of bycatch of harbor

porpoise in gillnet fisheries might reduce the population to the point

where it would become threatened and that the regulatory measures in

place to reduce this bycatch were inadequate. NMFS has not yet issued a

final listing determination. New data, new regulations, and this rule

to implement the HPTRP provide substantial new information for

consideration by NMFS and the public. The proposed rule to list the GOM

harbor porpoise as threatened under the ESA was reopened for public

comment on October 22, 1998. The public comment period closed on

November 23, 1998. NMFS plans to make a listing determination in the

near future based on the new information and public comment on the

proposed rule.

Comments on Data and Research

Comment 26: One commenter recommended that the PBR formula be re-

assessed during the next re-authorization of the MMPA because the

default safety parameters in the model are inaccurate and contrary to

the available science, which indicates that harbor porpoise have an

extremely short life span, early maturation, and a very high,

successful reproductive rate, compared to other odontocete species.

Response: NMFS is unaware of new scientific information that could

be used to re-assess the default parameters. Any new, valid scientific

information would be welcome, evaluated, and incorporated, as

appropriate, into these assessments. However, in the absence of other

information, the default model parameters used in the PBR formula

represent the best available scientific information on this topic. The

life history of harbor porpoise, among other related issues, was

discussed in length at a meeting in 1996, the results of which are

published by Wade and Angliss, 1997, in ``Guidelines for assessing

marine mammal stocks: report of the GAMMS workshop April 3-5, 1996,

Seattle Washington.'' A peer-reviewed scientific article that describes

some of the work that went into defining the parameters is summarized

by Wade, 1998, in ``Calculating limits to the allowable human-caused

mortality of cetaceans and pinnipeds.''

Comment 27: One commenter noted that the PBR level based on

population dynamics continues to be ultraconservative and asked if NMFS

considered a peer-review debate on choosing to use this conservative

reproductive estimate. Many scientists feel that this may be too

conservative.

Response: NMFS has used peer reviewed information to choose the

[[Page 66474]]

population dynamic parameters in the evaluation of the PBR calculation.

See comment number 26 for references to the peer-reviewed work in this

area.

Comment 28: One commenter expressed concern about methods used to

estimate harbor porpoise bycatch because calculations are based on

takes per haul as the unit of effort and not the number of takes per

net. This commenter also expressed concern about weighout landings as

the multiplier and recommended a review of this process for an

alternative with more precision. Another commenter stated that NMFS is

unwilling and unable to correct and adjust estimates of fleet size and

methods of extrapolation used to determine effort and that NMFS has

never had reliable fleet size information to measure effort. A third

commenter stated that NMFS' bycatch calculations, based on what the

gillnet fishery catches, are incorrect. This commenter noted that,

despite continuous requests to adjust this approach to a more practical

and realistic method, NMFS continues to do it the wrong way. This

commenter recommended that units of fishing effort are more appropriate

means of calculating and estimating harbor porpoise bycatch.

Response: The current method used to estimate harbor porpoise

bycatch does not rely on fleet size. Therefore, obtaining the most up-

to-date estimates of fleet size would not change the bycatch estimate.

Choosing the most appropriate unit of effort for the bycatch

estimate is a two-step process, and both steps must be accurate and

reliable before another unit of effort can be used. Step one is

choosing the best unit of effort using the Sea Sampling data, and step

two is calculating that unit of effort for the entire fishery.

By definition, the most appropriate theoretical unit of ``effort''

needed in any bycatch estimate is a unit of ``effort'' that is expected

to relate directly to the number of harbor porpoise that are caught and

to increase proportionally as the number of harbor porpoise takes

increase. Therefore, even on a theoretical basis, that unit of

``effort'' does not have to be a unit that is typically thought of as

fishing effort, such as days fished or number of boats. Other possible

acceptable units of ``effort'' could be hours nets are soaked

multiplied by the number of nets, or pounds of fish species ``X''

caught in the net. Again, for the areas and times when there are both

harbor porpoise and fishing, what is needed is a unit such that as the

level of that unit increases so does the number of caught harbor

porpoise.

After that unit is chosen, it is essential that NMFS estimate the

total amount of that unit for the entire fishery. So, for example, if

hours of net soak time represented the best unit of ``effort'' then it

would be necessary to calculate the total number of hours soaked by all

nets used by the entire fishery, by the time and areas that are

appropriate. Data in the fisher trip logbooks could be used to

calculate this information. However, even in 1997, many of the data

fields in the logbooks were left blank. Until the logbooks are

completely and accurately filled out all of the time, it is impossible

to use net soak time to calculate the total level of ``effort.''

NMFS is willing to investigate other possible units of ``effort''

but, until the total amount of a unit for the whole fishery is

available and accurate, it is not possible to use any other unit of

``effort'' except that already being used--tons of fish landed from the

dealers.

Comment 29: Two commenters asked how there could be insufficient

data to determine population trends for this species, but enough

information to determine a specific PBR point estimate.

Response: By definition, PBR requires one abundance estimate and

the level of confidence associated with that estimate. This information

is available, so PBR can be calculated. However, determining population

trends require several abundance estimates within a long time series.

At present we have three abundance estimates taken during 5 years

(1991, 1992, and 1995). Three abundance estimates with Coefficient of

Variation's in the 20 percent range during such a short time period are

not sufficient to accurately determine if there is a trend. However,

another abundance survey is scheduled for the summer of 1999. The NEFSC

is intending to use the four abundance estimates (1991, 1992, 1995, and

1999) taken from the resulting 9 years (1991-1999) to investigate

whether a trend can be determined and the level of accuracy of that

conclusion.

Comment 30: One commenter noted that the proposed rule stated that

the Assistant Administrator will review, on an annual basis, the effort

and bycatch data to see if the HPTRP is achieving the PBR goal. The

commenter then drew the conclusion that, if the HPTRP is effective, the

number of harbor porpoise should increase each year. NMFS indicated in

that same rule that sufficient data are not currently available to

determine trends in harbor porpoise stock size. The commenter then

asked that the harbor porpoise stock size be assessed to see if it does

increase with TRP efforts.

Response: Harbor porpoise stock size will continue to be assessed

by conducting sighting surveys every few years. There is a survey

scheduled for the summer of 1999. The frequency of future surveys will

be determined by considering the level of accuracy of each individual

estimate and the need to get accurate abundance estimates of all marine

mammals found in U.S. waters. At the present time, it has been

suggested that conducting surveys every 4 years would be adequate.

The HPTRP will be assessed by monitoring the level of by-catch.

This monitoring program will be on a quarterly basis, at least for the

next few years.

Comment 31: One commenter requested that NMFS undertake research on

pingers to evaluate displacement and habituation of harbor porpoise,

and long-term effects of pinger use on the ecosystem.

Response: Research has started on this topic and will be

continuing. Specifically, during the summer of 1998, research was

conducted that investigated the small-scale distribution and relative

abundance of harbor porpoise near and around pingers and herring weirs.

This project will provide information on displacement and short-term

habituation (on a monthly scale). Another project will be conducted

during January to May 1999 and will investigate displacement, short-

term habituation, and short-term effects on the ecosystem. This project

will involve monitoring the spatial distribution and relative abundance

of harbor porpoise, other marine mammals, herring, and other fish in

areas and times with and without pingers.

Comment 32: One commenter stated that the plan appears to contain a

number of discrepancies between some numbers in the tables and text of

the EA that call into question the rigor of the underlying assumptions

of reductions in mortality; for example, mortality reductions

calculated based on use of pingers in areas or times where pinger use

is not required.

Response: NMFS has thoroughly reviewed the calculations in the

draft EA with respect to the final rule and has updated the EA. Some of

the confusion is a result of the complexity of the data and of the

difficulties in its presentation, rather than actual errors. The shaded

area in Table 4 of the draft EA represents areas where reductions can

be made, not necessarily those made by the HPTRP. Discrepancies between

the text and the charts have been re-evaluated and corrections made

[[Page 66475]]

as appropriate in the final EA. NMFS disagrees that the discrepancies

call into question the rigor of the underlying assumptions of

reductions in mortality. The discrepancies were relative to 1994 and

1995 data that were not available in the 1996 data format, and

consequently the estimates of reduction were less accurate. The impact

of Framework 25 could not be incorporated. Because of the nature of

available data, calculations of plan effectiveness on years prior to

1996 were not as accurate. These data are provided at the request of

many GOMTRT members for comparison purposes, but the 1996 data, with

the analysis of Framework 25, are primarily what are used to support

the conclusion this plan will reach its goal.

Comment 33: One commenter challenges the information that

establishes the PBR of 483 animals although specifics were not given.

Response: The value of the PBR for the Gulf of Maine/Bay of Fundy

harbor porpoise has been accepted by the Atlantic Scientific Review

Group. This is a group of non-government scientists that were formed

under the MMPA and whose purpose is to review, correct, and monitor the

data going into the assessments of all the marine mammals (see also

response to comment 26).

Comment 34: The commenter stated that their understanding was that

the bycatch information reflected in the proposed rule was based on a

``5 year (1990-1995) average mortality estimate'' and then questioned

how NMFS can justify the expansion of regulatory conditions without

current information, i.e., later than 1995.

Response: Information used to evaluate the proposed regulation was

the most recent available at the time, through 1996 verified and

complete, and initial estimates for spring of 1997. Therefore, data

more recent than 1995 were used. Secondly, the impact of the proposed

regulations were evaluated with respect to the most recent fishery

management measures, including Framework 25 to the NE Multispecies FMP.

The average referenced in the preamble was solely to illustrate the

trend over the years of available data; it was not used to justify any

regulatory components of the plan, the most recent complete data was

used (1996). The years 1994 and 1995 were also provided for comparison.

Comment 35: One commenter suggested that it is time to think about

opening up some of the closure areas with pinger use now, not expanding

them. The commenter stated that effort and migration does not

necessarily equal entanglement due to absence or presence of feed fish

and that this was accepted by the NEFMC in deciding the appropriate

closure for Massachusetts Bay.

Response: Clearly the Massachusetts Bay Closure was not effective

because bycatch occurred just outside the closure time/areas. Fishing

effort and the presence of harbor porpoise does increase the

probability of entanglement. NMFS agrees that there is inter-annual

variability in porpoise distribution often based on prey distribution;

however, that justifies, not contradicts, the strategy for expanded

pinger times and areas.

Comment 36: One commenter recommended expanding the observer

program to ensure accurate bycatch estimates under the new management

regime.

Response: When applying observer coverage under the new management

regime, NMFS attempts to insure the best possible, unbiased, and

accurate harbor porpoise bycatch estimate, given available resources

and recognizing the need for accurate information on other marine

mammal stocks. This is just one component of an overall fishery

observer program.

Comment 37: One commenter recommended that NMFS provide the GOMTRT

with a detailed description of its planned scientific research and

request its comments on those studies.

Response: NMFS will provide descriptions of planned research to the

GOMTRT and consider comments as appropriate.

Comment 38: For the Mid-Atlantic, three commenters felt that

despite substantial fishery-dependent observer data for other gillnet

fisheries which indicate little or no harbor porpoise interaction and

the recommendation by the MATRT which focused only on monkfish and

dogfish fisheries, NMFS has unfairly expanded the HPTRP to include all

fishing with gillnets in inshore and offshore waters of the Mid-

Atlantic. One commenter felt that the small mesh gillnet fishery should

have a minimum mesh size limit of 5 inches.

Response: NMFS agrees that during the deliberations of the MATRT,

the Team focused its recommendations on subfisheries rather than all

Mid-Atlantic gillnet fisheries, as defined in the List of Fisheries.

The MATRT was warned, however, that analysis of bycatch data by

subfisheries under the constraints of limited sample sizes required

highly speculative assumptions. Due to this factor as well as

enforcement concerns and the lack of FMPs for those fisheries, NMFS

expanded the definition of Mid-Atlantic fisheries covered by the HPTRP

to large and small mesh fisheries.

However, NMFS has excluded mesh sizes of 5 inches (12.7 cm) and

less from the small mesh regulations at this time. The reasons for this

is the limited number of observed takes in these mesh sizes currently

available in the data and because the fishermen typically using this

gear in the nearshore Mid-Atlantic fishery, while present at the start

of the TRT process, did not participate once the TRT agreed to address

only the monkfish and dogfish subfisheries. This does not mean the

evidence of potential interactions in this sector of the gillnet

fishery will be ignored. Although the number of observed takes in mesh

sizes of 5 inches (12.7 cm) or less is small, takes have been

documented that were not ``dogfish-targeted'' trips. There were 3 takes

in the menhaden fishery in 1997 in New Jersey and there was a take in

the southern Mid-Atlantic shad fishery in 1996. Therefore it is likely

that takes do occur in small mesh fisheries. Given this concern, NMFS

will reevaluate the observer data (particularly through the expanded

observer program and alternative platforms) and stranding data for

these fisheries in the spring, 1999, and reconsider if management

measures to reduce bycatch are needed.

Comment 39: One commenter stated that NMFS made assumptions about

bycatch in the Mid-Atlantic that are erroneous. The EA specifies that

it was assumed that no mortality occurred in fisheries other than those

for monkfish and dogfish, which is incorrect. The EA also assumed that

no porpoise can ever be caught in waters off Virginia and Delaware,

which is unlikely based on co-occurrence of animals and gillnet

fisheries in those areas.

Response: NMFS agrees that harbor porpoise mortalities occur in

fisheries other than monkfish and dogfish. The assumptions alluded to

are just some of a number of assumptions that were made in order to

provide the models that could evaluate specific gear parameters for

bycatch reduction potential for the MATRT meetings. The regulations

themselves address small and large mesh gillnet fisheries with

specified parameters and do not exclude Virginia and Delaware.

Comment 40: One commenter recommended that NMFS reexamine the

validity and accuracy of its bycatch estimates in the Mid-Atlantic in

light of unlikely assumptions, incomplete observer coverage in the past

and available information on bycatch levels for 1997. The commenter

recommended that if bycatch estimates are determined to be higher than

those assumed in the proposed measures, the proposed time/area closures

should be expanded to account for additional bycatch.

[[Page 66476]]

Response: The final regulations cover nearly the entire time and

areas where the 1997 takes occurred. The rule includes times and areas

where the observer coverage in the past was low. Observer coverage will

be provided in the Mid-Atlantic at appropriate levels to evaluate

whether or not the plan is meeting its goals. After HPTRP

implementation, bycatch estimates will be reviewed; if they are higher

than expected, NMFS and the TRTs will need to discuss what further

measures might be necessary.

Comments on Pingers: Specifications, Options, Implementation Issues

Comment 41: One commenter stated that pingers are not the only

option in the Gulf of Maine. In the Mid-Atlantic, it has been proven

that the use of heavier gauge monofilament prevents mammal takes in

gillnets. Many fishermen in southern New England are already using

heavier gauge twine. Those fishermen should have the same option as the

Mid-Atlantic fishermen and NMFS should review the data and present them

to the TRT.

Response: Data reviewed by the MATRT on harbor porpoise takes in

gillnet sets using heavier gauge monofilament appear to show a

difference in the level of harbor porpoise takes when compared to finer

twine sizes in sets for monkfish and dogfish. Most of the observed sets

evaluated in these data were from NJ south. Data has not been analyzed

for these gear options in the Gulf of Maine and they were not

considered as a bycatch reduction option by the GOMTRT. In addition,

because of the level of data available, and the assumptions necessary

to model these variables, NMFS does not want to expand this mitigation

measure to a much larger geographic area. In addition, NMFS has

developed these regional strategies based on TRT recommendations. The

majority of the New England fishery is diverse and no correlations in

the data for gear parameters were apparent to TRT members; consequently

they chose to use a tested take reduction strategy, i.e., pingers. As

with many fishery management measures, lines are drawn to identify

where measures change. While it is true that fisheries adjacent to but

divided by such a management line may show more similarity than with

fisheries within their appropriate sector, the line chosen represents

the point where an overall change in the fishery occurs.

Discussion in the MATRT with respect to pingers as a management

option was rejected for some of the same reasons that gear

modifications were not applied in the GOM. While pingers have shown

success in experimentation, they have not been evaluated (``proven'')

under widespread use. In addition, pingers are not passive and other

environmental effects are yet to be evaluated. Harbor porpoise may also

behave differently while in the southern portion of their range. With

regard to experimentation with pingers, the character of the fishery is

much different in the Mid-Atlantic, being more spread out than in the

Gulf of Maine. Therefore, an experiment in the Mid-Atlantic would have

to be of such magnitude that the cost and years of effort do not seem

justified when other options (gear modifications) that have not been

tested are available. Therefore, the precautionary approach justifies

limiting these two strategies geographically until further data are

available. In the future, based on the results of implementation of the

HPTRP, NMFS will consider, in conjunction with the advice of the TRT,

whether other strategies are viable for either the GOM or the Mid-

Atlantic. NMFS will analyze available data from the southern New

England area and provide that information for review at the next

meeting of the TRT.

Comment 42: One commenter recommended that NMFS should require that

vessels carry four spare pingers in the event that there is a pinger

malfunction. NMFS' own observer data does not support that fishermen

are diligently maintaining their pingers, but instead indicates that in

actual use, pinger effectiveness levels are significantly less than

those in controlled experiments.

Response: NMFS disagrees and maintains its position that both

manufacturers and fishermen will be aware of the importance of

technically correct and properly maintained pingers. This is one of the

primary objectives of the pinger certification training and outreach

program, which began in September 1998 and will continue, as needed,

after implementation of the final rule. Under the HPTRP certification

is mandatory, as was recommended by the GOMTRT, for the very reason of

removing some of the uncertainty surrounding the results of the

experimental fisheries. Since this type of outreach was not in place

for the experimental fisheries, the results of future commercial use of

pingers are expected to be more positive. In addition, the results of

the Pacific TRP are now available, which show high effectiveness of

pingers under commercial conditions; that plan also incorporated a

strategy of mandatory skipper education workshops which is partially

credited for the success.

Comment 43: One commenter objected to rigid specifications for

pingers as proposed in the rule, because it limits future pinger

development. The concerns about the frequency of 10 kHz are about

limited availability from a single manufacturer and that the specified

frequency is within seal hearing range and acts as a ``dinner bell''

for seals in the area of the gillnets. Concern was also expressed that

the specified decibel range (132 dB) limits development of a stronger

pinger that may require less pingers on the net which would decrease

costs to fishermen.

Response: NMFS recognizes that the current specifications may limit

somewhat technological development on pingers. However, the pinger

specifications need to remain limited during the first year of plan

implementation. The only pinger for which there is currently sufficient

scientific documentation regarding effectiveness in the GOM for harbor

porpoise is the one specified in this rule. The best approach at this

time is to implement this plan with tested technology and then

entertain ideas on improving that technology or investigating different

options after the plan meets its initial goal.

Comment 44: One commenter recommended that NMFS evaluate the pinger

(PDM[PICE]) which has been tested in Europe and possibly incorporate

its specifications. Another commenter stated that although the European

pinger may be technically superior to the Dukane unit its sonic profile

is very different from that of the Dukane pinger and, as such, would

not be approved under the specifications in the proposed rule. This

commenter urged NMFS to approve the use of pingers with the sonic

output specifications of the European unit. In addition, NMFS should

undertake focused experiments to develop a range of approved sonic

profiles.

Response: While NMFS agrees that eventually pinger specifications

may need to be revised based on new technology, new pinger

specifications are not incorporated into this final rule (see response

to previous comment 43).

Comment 45: One commenter recommended that NMFS examine all

experience to date in use of pingers by fishermen, adopt a more

conservative approach to reflect uncertainties and reality, and after

the first year of the HPTRP reexamine the assumed rate of effectiveness

based on observed bycatch rates. Another commenter stated that bycatch

and bycatch reductions should

[[Page 66477]]

be projected using a realistic estimate of pinger effectiveness by time

and area, relying on NMFS data rather than an optimistic region-wide

estimate of 80 percent effectiveness. These two commenters, in general,

felt that pingers are projected to be more efficient in reducing

bycatch than data can support.

Response: NMFS has examined all experience to date in the use of

pingers by fishermen in the GOM. The results of the two scientific

experiments conducted in the fall of 1994 and in spring of 1997 were

between 80 percent to 100 percent effectiveness. NMFS data indicate

that for experimental fisheries in some times and areas, pinger

efficiency was greater than 80 percent while in other times and areas

the efficiency was less than 80 percent. The EA details the specifics

on each of the experiments and experimental fisheries. The spring 1997

experiment was conducted based on GOMTRT recommendations, primarily

because of the discrepancy in the results of various experimental

fisheries, in order to remove the uncertainty over the technology's

effectiveness. The TRT recommended in both the draft GOMTRP (August

1996) and at the subsequent GOMTRT meeting in December, 1997, that in

order to avoid any reduction in effectiveness during commercial fishing

conditions, training of fishermen should be mandatory. Certification of

fishermen is occurring and is expected to remove problems with improper

use and maintenance that may have caused disparate results in the

experimental fisheries. The data currently support the choice of an

average region-wide 80 percent efficiency, based on controlled

experimental results, but allowing for some discrepancy in levels of

effectiveness under actual fishing conditions.

Comment 46: One commenter recommended that because bycatch

estimates will go up if a more conservative pinger effectiveness

estimate is used, and because NMFS has not fully accounted for effort

displacement outside of time/area management zones, NMFS should adopt a

blanket provision that requires all gillnets in New England be equipped

with pingers except at those times when, and in those areas where,

harbor porpoise are highly unlikely to occur (e.g., Massachusetts Bay

or Cape Cod South from June 1 to Sept 15).

Response: NMFS agrees that inter-annual variability in both fishing

effort and harbor porpoise distribution has been a problem for bycatch

reduction strategies. However, NMFS has chosen its strategy (discrete

areas of pinger use) with respect to pinger requirements for several

reasons. Pingers have not been used in widespread application and a

number of questions remain such as overall environmental effects and

habituation and displacement of harbor porpoise or other species. The

times and area are currently large enough to demonstrate, based on

available data, that the plan will reach its goal without the

additional burden on the fishery that such a blanket provision would

entail. Should monitoring reveal that bycatch indeed shifts to areas

outside the closures and should research provide answers to address

these remaining questions, complete implementation of pingers in the

fishery would be considered along with other options.

Comments on the Gulf of Maine Component--Proposed Schedule of Closures

and Pinger Use

Comment 47: One commenter stated that in general, closures are

insufficient in time and space.

Response: Detailed responses to comments on time/area closures are

provided in later comment responses. The EA analyzes the current plan

based on available data. NMFS has determined that the plan will reach

MMPA goals.

Comment 48: One commenter stated that Framework 25 will provide

greater harbor porpoise conservation than considered by NMFS. This

includes the 12-month closure and the rolling closures.

Response: NMFS did evaluate the additional bycatch reduction that

would be achieved by Framework 25 (see Table 4 in the final EA and text

of the final EA) and concluded that Framework 25 measures amounted to

about a 46 percent reduction in bycatch before accounting for bycatch

reduction from MMPA harbor porpoise measures. This reduction was

considered together with the HPTRP expected reductions to estimate the

overall bycatch reduction based on data for 1996.

Comment 49: One commenter stated that NMFS has failed to analyze

the benefits of a number of measures under Amendment 7. For example,

NMFS failed to consider the benefits to harbor porpoise of the net

restrictions under Amendment 7 and the limits on directed catches of

cod which further reduce the number of nets deployed by the gillnet

sector. The cod catch limit was further reduced in Framework 25 which

has resulted in reduced number of nets deployed. Also the Days-At-Sea

restrictions have taken a lot of effort out of the fishery. These and

other fishery management measures have resulted in substantial

reductions in gillnet fishing effort which translate into lower

probability of harbor porpoise interactions.

Response: NMFS now has 1997 data available which indicate that

these measures have had no effect on the total bycatch of harbor

porpoise in the GOM, although the distribution of takes geographically

has shown interannual variability.

Comment 50: One commenter stated that there is no consistency

within the regulation or the explained rationale to support the

differences in regulations among areas. For example, the Mid-Coast is

closed for seven plus months except for pinger use and the Northeast is

only closed for 28 days. They are geographically adjacent. The

commenter also questioned why there is only a four month regulatory

condition in the Massachusetts Bay area and stated that NMFS does not

account for the seasonal variability in the areas occupied by

transiting harbor porpoise and fails to recognize the value of dynamic

management.

Response: The regulations were developed based on GOMTRT

recommendations and existing data. The areas are not managed the same

because harbor porpoise bycatch varies between areas. Therefore,

different measures are appropriate for different areas and the GOMTRT

agreed with this approach. The Massachusetts Bay closure is longer than

four months; it has been extended in the final regulation to include

the months of December and January. This change is discussed in detail

under comment number 60. As discussed during the GOMTRT deliberations,

the strategy of small discrete complete closures surrounded by longer

time/area closures where pingers are required was developed to account

for the inter-annual variability in distribution of harbor porpoise and

changes in fishing effort.

Comment 51: One commenter noted with approval that take reduction

goals for the Northeast and Mid-Coast areas are already being met by

measures currently in place and that no further restrictions are being

proposed.

Response: Bycatch reduction has occurred within discrete closure

areas, but the data show that bycatch overall has remained the same,

most likely due to shifted fishing effort and inter-annual variability

in harbor porpoise distribution. Therefore, these areas need to

continue to achieve the same amount of bycatch reduction and the

bycatch that has shifted elsewhere must be dealt with through other

bycatch reduction measures as provided in the regulations.

[[Page 66478]]

Comments on the Gulf of Maine Component--Area-Specific Measures

Comment 52: One commenter supported maintaining the closure of the

Northeast area for August 15 through September 15, citing its

effectiveness.

Response: NMFS agrees and the Northeast Closure will remain in

effect.

Comment 53: Two commenters requested that the plan maintain the

spring (March 25 through April 25) NEFMC harbor porpoise closure in the

Mid-Coast area. In addition, the commenter recommended amending the

HPTRP to include a time and area closure specifically to protect harbor

porpoise in the Mid-Coast during May and June because the rolling

closure would not be effective during those months for reducing harbor

porpoise bycatch. Another commenter recommended a complete closure

during March and April.

Response: The Mid-Coast area has historically had high fishing

effort and high harbor porpoise bycatch. This area was one of the first

areas affected by efforts of the NEFMC to reduce harbor porpoise

bycatch as a result of the NE Multispecies FMP. However, the limited

one-month closure March 25 through April 25 was ineffective at reducing

bycatch overall because it simply shifted fishing effort to other

months and areas outside the closure where bycatch increased. Fishermen

from this area are to be commended on efforts to develop mitigation

measures for harbor porpoise bycatch and have been instrumental in

development and experimentation with pingers as a management option. In

fact, bycatch overall in the Mid-Coast area has decreased since 1994.

Pingers have shown a very high effectiveness rate in the Mid-Coast in

scientific experiments in both spring (1997) and fall (1994), although

experimental fisheries in spring have shown mixed success. Harbor

porpoise distribution and abundance as well as fishing effort show

inter-annual variability. However, because Framework 25 provides for

periods of complete closures in portions of the Mid-Coast area in the

months of April, May and June and with the addition of the extensive

pinger requirements under the HPTRP, a complete closure of the entire

area during March and April is not considered necessary. The overall

HPTRP strategy for the GOM is a series of short, discrete, complete

closures in combination with much larger time/area closures where

pinger use would be allowed to account for the changes in harbor

porpoise and fishing effort that may shift bycatch elsewhere. The

strategy for the Mid-Coast, including requirements for pingers under

the MMPA, and closures under the Magnuson-Stevens Act are expected to

achieve adequate results without additional closures.

Comment 54: Many commenters recommended adopting Framework 25

closures as harbor porpoise closures under MMPA. One commenter

specifically suggested that it was inappropriate to rely on NEFMC

groundfish closures to provide harbor porpoise protection. If the NEFMC

makes any shifts or lifts closures the resulting harbor porpoise

bycatch reduction is lost. Consequently, these same closures should be

adopted under the MMPA regulations.

Response: NMFS recognizes its responsibility to protect harbor

porpoise, but disagrees that these efforts need to be restricted to

MMPA regulations if measures in effect under other statutes will help

to achieve that goal. The NEFMC has as a stated objective in the NE

multispecies FMP under Magnuson-Stevens Act that it must reduce the

bycatch of harbor porpoise in this fishery and as such are also

mandated to achieve bycatch reduction in this fishery. Adding

additional closures in the Mid-Coast area on top of the Framework 25

Multispecies closures would create an undue burden on one segment of

the fishery when the bycatch reduction for the plan overall meets MMPA

objectives without such an action.

Comment 55: One commenter recommended closure of the entire Mid-

Coast area (including Inshore areas II, III, IV under Framework 25)

from March 25 through May 31. This commenter suggested that fishermen

will just move from Area III to Area II, for example, and there would

consequently be no net bycatch reduction.

Response: As noted above, the overall HPTRP strategy for the GOM is

a series of short, discrete, complete closures in combination with much

larger time/area closures where pinger use would be allowed. This is

specifically to compensate for the inter-annual variability of both

harbor porpoise and fishing effort that may shift bycatch elsewhere.

Simply closing the entire Mid-Coast area from March 25 through May 31

would have the same inherent problems as the closures that have been in

place under the Magnuson-Stevens Act for several years. Fishing effort

would likely concentrate in January through March 24 or move just

outside the Mid-Coast boundaries or into the Offshore area. NMFS

disagrees that no net bycatch reduction will result from the proposed

strategy because pingers are required in all of the months not covered

by closure under Framework 25 surrounding the Area II, III, and IV

closure months. Pingers were accepted by the GOMTRT as a viable bycatch

reduction management alternative to time/area closures.

Closing the entire Mid-coast area would have an economic impact to

the gillnet fleet would be $170,000 dollars in foregone revenue and it

would impact 26 vessels. This is in addition to those costs already

estimated for the Mid-Coast area. Given the extensive pinger

requirement and a series of closures of Inshore Areas I through IV in

Framework 25, a March 25 through May 31 closure is unwarranted.

Comment 56: Many commenters recommended extending the Mid-Coast

Closure Area to include closure of Areas II and III for the months of

April and May.

Response: See response to comment 53. This closure would cost the

fleet $116 thousand dollars in foregone revenue and would affect 23

vessels. The overall plan is expected to reach MMPA goals without

additional complete closures that exact such a cost to the fleet. NMFS

has concluded that such a closure is currently unjustified.

Comment 57: One commenter recommended that the Mid-Coast be closed

from September 15 through March 25 except for vessels using pingers.

Response: The Mid-Coast is closed in the final rule to vessels

except those fishing with pingers from September 15 through May 31.

Comment 58: One commenter noted that the GOMTRT agreed there was a

need to extend the boundary of Mid-Coast to the south to include a

portion of Massachusetts Bay in the Mid-Coast closure area because of

displacement.

Response: NMFS agrees that the GOMTRT discussed the need for

dealing with the displaced fishing effort during the Mid-Coast closure

period, March 25 through April 25, which in past years appears to have

partially shifted into northern Massachusetts Bay. The final HPTRP

extended the closure period in Massachusetts Bay when pingers are

required to include the months of December through May. The HPTRP is

based on a overall bycatch reduction scenario that is intended to

spread the bycatch reduction effort throughout the fishery where

bycatch occurs. This means that a bycatch reduction measure is in place

(although not a complete closure) during the time period effort shifts

might occur. Additionally Framework 25 closes the area from March 1

through March 31, the period

[[Page 66479]]

previously closed for harbor porpoise protection under the Magnuson-

Stevens Act. Allowing the use of pingers in the Mid-Coast, instead of

prohibiting them from the area, allows fishermen to fish, making it

less attractive and/or necessary to travel to the southern border to

escape the closure. Therefore, the need to address bycatch in the

northern portion of Massachusetts Bay is covered as part of the overall

HPTRP strategy.

Comment 59: One commenter noted that the current proposal was

beyond GOMTRT consensus and reasonable justification for pinger use in

the Mid-Coast area. Instead, the commenter recommended pingers be

required March 25 through April 25, October 1 through December 31, and

that no complete closures be included.

Response: NMFS agrees that these measures are beyond the GOMTRT's

recommended consensus plan as submitted in August, 1996. However, these

measures were based, in part, on the recommendations of GOMTRT members

at an additional meeting that was held in 1997. Since the GOMTRT's

proposed plan was very similar to the closures in effect under the

Magnuson-Stevens Act, both NMFS and many GOMTRT members concluded that

the plan as originally proposed would not bring bycatch to below PBR as

required by the MMPA. Therefore, more expansive measures were required.

Because the Mid-Coast area has historically had high bycatch, a short

closure both geographically and temporally that allowed pingers would

provide limited bycatch reduction. Particularly, since pinger use has

been more widespread in the Mid-Coast, NMFS agrees that bycatch has

decreased. This further supports the requirement for continued closure

with pingers in such a high bycatch area.

Comment 60: One commenter suggested that the months of December and

January be added to the time period when pingers are required in

Massachusetts Bay.

Response: NMFS agrees that adding the months of December and

January to the Massachusetts Bay closure would provide additional

bycatch reduction. Both the first proposed rule (August 13, 1997) and

the December 16-17, 1997 GOMTRT meeting recommended that Massachusetts

Bay be closed from February through May. Since the HPTRP relies on each

of its components working together collectively to reach MMPA goals, it

is possible to shift some of the time/area measures where data are less

consistent and still meet the overall objectives. NMFS therefore

decided to add the months of December and January to Massachusetts Bay

which creates little additional burden on the fishermen who already

have to purchase pingers.

Comment 61: One commenter agreed with the March closure and

recommended that pingers be expanded to October through January in

addition to the proposed time period of February through May. Table 4

in the draft EA shows that the bycatch reduction appears to be

calculated based on the use of pingers in Massachusetts Bay in the

Fall, yet the plan does not stipulate their use during those months.

Response: The shaded areas in Table 4 of the draft EA represent

areas where pingers could be applied because they are areas that do not

represent complete closures under the Magnuson-Stevens Act; they were

selectively included in the calculations.

Bycatch has been high in the fall in Massachusetts Bay in previous

years, but in more recent years (1996, 1997) bycatch has decreased

significantly during that period. This final rule has extended the

Massachusetts Bay pinger closure two months earlier than recommended by

the GOMTRT and the proposed rule to include both January and December;

this will gain further bycatch reduction in this area and will deflect

some of the observed shifts in effort out of the Mid-Coast into the

northern portion of Massachusetts Bay. Adding the months of December

and January was recommended by another commenter. Since bycatch in the

most recent years in October and November has decreased, which may be a

result of decreased Days-At-Sea available to fishermen from fishery

management measures, or to pinger use in the Mid-Coast which prevented

some shifting of effort south into Massachusetts Bay, extending the

requirement further into the fall is unwarranted at this time given the

measures in the overall HPTRP.

Comment 62: One commenter recommended closing the area south of

Cape Cod during May except to pingers, noting that bycatch was high in

1994 in this area and that it was recommended by the GOMTRT in

December, 1997. This commenter also supported the March 1 through 31

closure and the September 15 through February and February through

April pinger requirement.

Response: NMFS agrees with extending the spring pinger requirement

into May. The recommended closure in the proposed rule addressed

concern by the GOMTRT that observer coverage has been low in the Cape

Cod South area. However, since zero takes have been observed in the

September though November time period and additional bycatch reduction

is expected in May, this will more than offset the fall period.

Therefore in the final rule NMFS has changed the closure period in Cape

Cod South to December through May.

Comment 63: One commenter requested that by June, 1999, NMFS

analyze use of larger twine and other gear characteristics as a

mechanism for reducing bycatch in the Cape Cod South area. Based on

current information, this commenter recommended that pingers be

required for December 1 through the end of February, instead of

September 15 through April 30.

Response: NMFS agrees that gear characteristics should be analyzed

for the Cape Cod South area and will provide that information when the

GOMTRT meets in mid-1999. NMFS agrees that the start of the fall pinger

requirement should be December 1, but disagrees that it should not be

extended past February.

Comment 64: Many commenters recommended that the closure of Cape

Cod South be expanded to include at least two weeks at the end of

February and two weeks at the beginning of April, based on historically

high bycatch during these periods. One commenter noted that under the

current plan, fishing will be allowed without use of pingers during

May, a month of high mortality in 1994. This block appears to be shaded

in Table 4 of the draft EA, yet pingers are not stipulated in this area

during May. This one commenter further recommended that fishing should

only be permitted in May with use of pingers.

Response: See response to comment 61 with respect to shading in

Table 4 of the draft EA. NMFS agrees that pingers should be used in May

in Cape Cod South. NMFS also agrees that bycatch has historically been

high between February and April. However, the one-month closure in

March, surrounded by a closure where pingers are required (December

through May) is consistent with the basic strategy of the overall plan,

a complete closure surrounded by a much larger time when pingers are

required. Additionally, such a closure would cost the fleet $53

thousand dollars in foregone revenue and affect 23 vessels. For all of

these reasons a larger complete closure is not justified at this time.

Comment 65: One commenter recommended requiring pinger use in the

entire Offshore area during the month of February instead of complete

closure in February in Cashes Ledge and required pinger use for the

rest of the Offshore area from September 15 through December 31. This

would

[[Page 66480]]

eliminate the February gear closure of Cashes Ledge.

Response: NMFS disagrees with allowing pingers during February in

Cashes Ledge and with shortening the pinger use period to the fall

only. Bycatch has been observed in both November and in February and is

estimated at 45 and 258 animals respectively (1996). Therefore, to make

management of this area consistent with the other areas in the HPTRP, a

one-month closure surrounded by a period of pinger use during times

when bycatch is expected is the most appropriate response. This means

retaining the closure in February in Cashes Ledge and extending pinger

use in the Offshore area November through March. Even though NMFS

agrees that pingers are effective, they are not 100 percent effective.

This is the reason why the strategy for the overall HPTRP remains a

combination of complete closure and pinger use.

Comment 66: One commenter recommends that additional observer

coverage was needed in the Offshore area to see if a closure in the

month of November should be added to allow for additional bycatch

reduction.

Response: See response to comment number 65. Observer coverage of

this area will continue.

Comment 67: One commenter noted that there was never a

recommendation for a closure in the Offshore area during the December

1997 meeting, nor did it recommend an expanded area of pinger use of

the magnitude proposed. The commenter asked NMFS to justify the

Offshore closure area and expanded pinger use.

Response: NMFS agrees that the GOMTRT did not recommend a complete

closure in this area. However, NMFS disagrees with the second claim;

the GOMTRT members present at the December 16-17, 1997 meeting did

recommend expanding areas where pingers are required. Specifically,

their recommendation was for NMFS to look at the bycatch data and

consider closing statistical areas ``515, 522 and maybe 521'' and

require pingers in that area. The Offshore Closure Area defined in the

regulations is only part of area 515 and the very northernmost section

of areas 521 and 522 and encompasses the area where takes have been

observed.

Comment 68: One commenter stated that the current Offshore

recommendation is excessive since it is based on short time frame of

data and observer coverage. The commenter recommended that Cashes Ledge

be closed for the month of February unless vessels have pingers but

that the expanded Offshore area should be suspended until more

information is gathered.

Response: NMFS agrees that data is limited in the Offshore area,

but limiting the closure to a small area for short duration has all the

inherent problems that have already proven this strategy to be

ineffective. In addition, there have been observed takes in other

months including November in 1996 and January and May in 1997.

Therefore, the proposed strategy is similar to the strategy employed in

the other areas of observed bycatch in the GOM, a one month closure

followed by a more extensive closure with pingers allowed. However,

consistent with other minor changes to the time/area closures in the

proposed rule in the fall already discussed (Cape Cod South,

Massachusetts Bay), the start of the closure in the Offshore area has

been delayed to November 1 in the final rule.

Comment 69: One commenter noted that the proposed closure of Cashes

Ledge would affect four Maine offshore gillnet vessels that often make

a few sets in this area on their way to George's Bank. However the

commenter was more concerned with vessels from ports in the Mid-Coast

area which do fish this area regularly. The commenter noted that the

Mid-Coast area had already met or exceeded its take reduction goals.

This commenter recommended that rather than closing the Cashes Ledge

area in February, NMFS should leave it open to vessels with pingers and

that additional reductions should come from areas which have not yet

achieved the results that the Mid-Coast has, like Massachusetts Bay and

South Cape Cod.

Response: NMFS agrees with the characterization of fishing in the

Offshore area, but disagrees that bycatch does not need to be reduced

in the Offshore area. The Mid-Coast area never had take reduction goals

separate from an overall HPTRP, with the exception of goals stated in

the NE Multispecies FMP, goals which have not yet been met. As stated

earlier, Mid-Coast fishermen are to be commended for the innovative and

expansive efforts they have undertaken to make pingers a viable bycatch

reduction alternative to complete closures during some times and areas.

However, the reason that the NEFMC measures have not been effective at

reducing bycatch overall is that bycatch shifted out of the closed

areas into new areas. Increases have been seen in several areas

including Massachusetts Bay, Cape Cod South and the Offshore area.

Achieving the MMPA goal will not be easy, but most certainly, the

overall level of bycatch in the GOM must be reduced. It would be

counter productive to allow reduction in one area to be replaced with

bycatch occurring elsewhere, i.e. if you reduce the amount of harbor

porpoise take in the Mid-Coast by 100, but then increase it by 100 in

the Offshore area, you have a net gain of no bycatch reduction.

Therefore, all areas where bycatch has historically occurred in the GOM

must be part of this HPTRP. NMFS agrees that further reductions are

necessary in areas other than the Offshore area; the plan does contain

measures beyond the status quo to reduce observed bycatch in the Cape

Cod South area and the Massachusetts Bay area.

Comment 70: One commenter stated that the importance of and

difficulties in enforcement have been overlooked based on comments by

NMFS and the Coast Guard. Specifically, neither enforcement body can

determine whether pingers are operational. The U.S. Coast Guard has

also stated that anything short of complete closures are difficult to

enforce. The commenter concluded that effective mortality reduction is

most likely to be achieved by closures, not by use of pingers.

Response: NMFS agrees that currently neither NMFS or the U.S. Coast

Guard can determine whether or not pingers are working on deployed

fishing gear. A hydrophone has been developed that can be used as an

enforcement tool to determine whether or not pingers are working. The

hydrophone can be towed to evaluate set gear. This will be made

available to U.S. Coast Guard and NMFS Enforcement personnel. NMFS also

agrees that anything short of complete closures is difficult to

enforce, but not impossible.

NMFS disagrees that the closures are more likely to achieve

effective mortality reduction. In fact, the closures that have been in

effect under the Magnuson-Stevens Act have been ineffective primarily

because of the inter-annual variability in harbor porpoise distribution

and fishing effort shifts. In order for closures to be effective and to

avoid these phenomena, closures would have to be so large that the

impact on the fishery would be very disruptive. Such widespread

closures are evaluated as an alternative in the EA, which should be

consulted for the specific information. Pingers have been demonstrated

to be effective, and NMFS has concluded that they are a better

alternative for achieving effective mortality reduction while allowing

the fishery to continue.

Comments on the Overall Mid-Atlantic Strategy

Comment 71: One commenter asked how the new expanded closures

affect the harbor porpoise bycatch estimate

[[Page 66481]]

given that the MATRT proposal was expected to achieve a 79 percent

reduction in harbor porpoise bycatch?

Response: If all assumptions of the statistical models are correct,

the additional closures would likely achieve between 88 percent--99

percent reduction in takes over the entire area for all months.

However, it is unlikely that all the assumptions used in the data

analysis will be proven 100 percent accurate; therefore, the additional

measures will help to ensure that the 79 percent reduction in harbor

porpoise take is achieved. The reason the assumptions are unlikely to

be 100 percent accurate appear to be borne out in the 1997 data. In

that year harbor porpoise were taken in the menhaden fishery,

countering the assumption that the only subfisheries that catch harbor

porpoise are the monkfish and dogfish subfisheries (Palka, 1997).

Comment 72: One commenter stated that the changes from fishery-

specific strategies to specific gear type strategies appear largely

consistent with the MATRT proposal.

Response: NMFS agrees.

Comment 73: One commenter requested that the gillnet cap of 80 nets

and tagging requirements of 2 tags per net be changed to a 160-net-cap

and a 1 tag per net requirement to be consistent with the proposed

Monkfish FMP requirements.

Response: NMFS disagrees with changing the 80-net-cap limit, as

proposed in the HPTRP, to a net cap of 160 nets to be consistent with

the proposed Monkfish FMP. The 160 net cap set by the Monkfish FMP is

too high to achieve the goal of maintaining current fishing effort in

the Mid-Atlantic that has historically been associated with locally

prevailing practices. NMFS has followed the recommendation of the MATRT

to support locally prevailing fishing practices and an 80 net cap limit

reflects those practices. The average large mesh fisherman in the Mid-

Atlantic employs 80 nets, therefore this average was agreed to be an

appropriate limit to cap effort. By allowing 160 nets, the positive

benefits expected from the HPTRP measures could be negated. Anyone

wishing to fish in the Mid-Atlantic during these time periods can only

have a total of 80 nets on board, hauled, or deployed. NMFS agrees with

the recommendation to change the net tag requirement to one tag per

net, beginning January 1, 2000, to be consistent with the net tag

requirement under the Monkfish FMP. This change should not affect NMFS'

ability to enforce the HPTRP measures.

Comment 74: Several commenters felt that the requirement for a

twine size greater than or equal to .81 mm is unfair and uncalled for

in those fisheries targeting bluefish, croaker, weakfish (i.e., some of

the very small mesh fisheries) which have not been observed to take

harbor porpoise. They felt that the MATRT, including NMFS, agreed that

there was not enough data to support any restrictions to the small mesh

fishery.

Response: NMFS did not restrict fisheries with mesh sizes 4 inches

(10.2 cm) and smaller with regard to twine size regulations in the

proposed HPTRP.

Based on further review and public comment, mesh sizes of 5 inches

(12.7 cm) and smaller are not required to comply with the small mesh

regulations at this time.

Comment 75: Two commenters questioned how the proposed rule applies

to all fishing with gillnets in inshore and offshore waters of the Mid-

Atlantic despite the fact that North Carolina gillnet fisheries

targeting bluefish, croaker, and weakfish, have little or no

interactions with harbor porpoise.

Response: NMFS agrees there were no documented observed takes with

very small mesh gear in North Carolina. However, there were takes in

North Carolina waters. Harbor porpoise stranding data, discussed by the

MATRT but not considered part of the MATRT process for management

measures, suggests that very small mesh fisheries, and fisheries in

nearshore as well as offshore waters, may indeed take harbor porpoise.

However, NMFS is exempting the gear that is less than 5 inches (12.7

cm) mesh size from the regulatory measures at this time. The definition

of the small mesh gear that must comply with the management measures

has been changed. Only mesh sizes of greater than 5 inches (12.7 cm) to

less than 7 inches (17.78 cm) must comply with the small mesh

management measures.

Comment 76: One commenter felt that the small mesh fishery in North

Carolina should be classified as a Category III fishery. If not

designated as Category III, then they felt that the restrictions on

small mesh should only apply north of the North Carolina/Virginia

border and not include North Carolina waters. If small mesh

restrictions were to be implemented for North Carolina waters, those

restrictions should absolutely not apply south of Cape Hatteras.

Response: Until NMFS gets additional information, the small mesh

fishery is still categorized as part of the Mid-Atlantic coastal

gillnet fishery. As discussed in the Final List of Fisheries for 1998

(63 FR 5748), the information currently available on the composition

and distribution of the Mid-Atlantic coastal gillnet fishery and on its

incidental take levels is insufficient to identify distinct

subcomponents of this fishery. NMFS has allocated funding in 1998 to

expand its observer coverage of this fishery and to obtain a better

characterization of the individual subcomponents that comprise it.

Regarding the geographic application of the small mesh measures to

North Carolina waters, the final rule will continue to apply to all

waters off North Carolina, including waters south of Cape Hatteras to

the South Carolina border. The geographic application of the HPTRP is

consistent with the MATRT report (RESOLVE, 1997). Additionally,

although there were takes in North Carolina waters with large mesh gear

but no documented observed takes with small mesh gear, this does not

preclude the likelihood that takes may occur in North Carolina waters

in small mesh gear (see response to comment 38).

Comment 77: One commenter felt that the statement on page 48678 of

the proposed rule distorts the consensus agreement of the MATRT because

there was never an assumption that the only subfisheries that could

potentially ever catch harbor porpoise are dogfish and monkfish.

Response: NMFS did not intend to distort the consensus agreement of

the MATRT. The assumption that harbor porpoise are only caught in

dogfish and monkfish fisheries was discussed at the MATRT meetings and

is outlined in the paper by Palka (handout at the August 4-6 meeting of

the MATRT, Page 8) and used in the statistical analysis presented at

the MATRT. Because of the nature of the assumptions in that analysis,

discussed in detail in the EA/HPTRP, NMFS felt additional regulatory

measures were appropriate.

Comment 78: Several commenters were concerned that NMFS had not

considered the difficulty for small mesh fishermen in ordering and

rigging the new gear. Mesh sizes used to target weakfish and croaker

are normally not stocked by local net shops in .81 twine size. The time

to order, receive and hang webbing would be as long as six months.

Fishermen need 180 days advanced public notice or fishermen would lose

out on whole season. So .81 mm should only apply to gill nets greater

than 5 inches (12.7 cm) and less than 7 inches (17.78 cm) stretched

mesh.

Response: In the final rule, NMFS changed the requirements for the

small mesh fisheries so that the requirements apply only to mesh sizes

of greater than

[[Page 66482]]

5 inches (12.7 cm) to less than 7 inches (17.78 cm). Fisheries which

use greater than 5 inches (12.7 cm) to less than 7 inch (17.78 cm) mesh

sizes should be able to buy the gear and re-rig in the allotted time.

Southern Mid-Atlantic fishermen would have more time to buy and re-rig

because measures do not go into effect in the southern Mid-Atlantic

until February 1, 1999.

Comments on the Mid-Atlantic Area and Gear Specific Measures

Comment 79: One commenter asked why NMFS expanded the closure in

the Mudhole from February 15 through March 15, as recommended by the

MATRT, to an additional closure from April 1 through April 20.

Response: The HPTRP calls for closures in the Mudhole from February

15 through March 15 for small mesh and large mesh gear, and April 1

through April 20 for large mesh gear. This differs from the MATRT

report, which only recommended closures in the Mudhole from February 15

through March 15 for monkfish (large mesh). NMFS added a closure to New

Jersey for large mesh gear in April. Given the considerable assumptions

inherent in the subfishery bycatch analysis, NMFS determined that

additional regulatory measures would be prudent to realistically

achieve the bycatch reduction goals of the HPTRP. For New Jersey,

January and April are the months of highest bycatch. Since a closure in

January would be very costly for the fishermen, as discussed by the

MATRT, NMFS chose to limit fishing opportunity in April instead of

January. A closure in April would still afford significant harbor

porpoise conservation benefits, still be consistent with the proposed

Monkfish FMP regulations and not cause undue impact on fishermen. The

Mudhole is part of New Jersey waters.

Comment 80: One commenter asked that NMFS explain the reason for

expansions of the original 20-day monkfish closure for the southern

Mid-Atlantic, as proposed by the MATRT, to a one month closure for

large mesh fishery.

Response: The MATRT recommended a 20-day floating closure in the

southern Mid-Atlantic, sometime between February and April, for the

monkfish (i.e., large mesh) fishery. The exact 20 days would be chosen

by the individual fishermen. This proposal was changed by NMFS in two

ways: (1) The proposal for a floating closure was rejected in favor of

a fixed closure and (2) the 20-day closure was expanded by 10 days to a

full one month closure.

NMFS changed the floating closure because an FMP and associated

permit system will not be in place for the spring 1999 fishery, thereby

making it extremely difficult to enforce and administer a call-in

system for this fishery. Therefore, a set period for the closure was

favored.

The 20-day closure recommended by the MATRT was expanded to 30 days

as a way to more strongly address the harbor porpoise bycatch in the

southern Mid-Atlantic during this time period by avoiding a 10-day

window of possible fishing effort displacement.

Comment 81: One commenter proposed that NMFS move the southern

border of the area defined as the Mudhole to 39 deg.50' N. Latitude,

instead of 40 deg.05' N. Latitude, to include documented take of harbor

porpoise.

Response: NMFS disagrees that any changes are needed in the Mudhole

definition at this time. The definition of the Mudhole is based on

topographic features that support concentrations of target fish species

at certain times of the year. Since the majority of takes that occur

just south of the Mudhole occur in April in the large mesh fishery,

this area has been included in the closure from April 1 through 20 for

large mesh gear only. During February, another time of high bycatch

inside the Mudhole for both large and small mesh gear, the Mudhole will

be closed to both small and large mesh gear. There is little bycatch of

harbor porpoise outside the boundaries of the Mudhole, in the rest of

New Jersey, during February and March. It is possible that effort could

shift outside the Mudhole boundaries during this time period, but gear

modifications will be in effect for all areas in New Jersey outside of

the Mudhole. This means that a bycatch reduction measure, although it

is not a complete closure, is in place for the area outside the Mudhole

closure. This is consistent with the overall HPTRP strategy.

Comment 82: One commenter questioned the conclusion that the entire

state of North Carolina should have a time/area closure. The commenter

noted that 250 observer trips on North Carolina boats between 1993 and

1997 using small mesh gear with no reports of harbor porpoise takes and

95 trips with North Carolina Division of Marine Fisheries on striped

bass, and 30 more in 1991 on weakfish and no harbor porpoise takes. The

commenter objected to the changes in closures for North Carolina for

the following reasons: there is no documented bycatch of harbor

porpoise in small mesh, the take of 5 harbor porpoise in monkfish and

dogfish does not equal high harbor porpoise bycatch, the proposed

closure is 50 percent longer than what was recommended by MATRT, the

monkfish fishery will no longer exist off North Carolina, and no

observer data for areas south of Ocracoke, North Carolina. The

commenter then concluded that for all those reasons, time/area closures

should not apply to waters south of the North Carolina/Virginia border.

The definition of southern Mid-Atlantic includes the North Carolina/

South Carolina border, but the commenter recommended that under no

circumstances should south of Cape Hatteras be closed to small mesh

gillnets. Several commenters noted that observer data does not justify

extending small mesh restrictions to the North Carolina/South Carolina

border.

Response: The time/area closure applies to the large mesh fishery

for one month in the southern Mid-Atlantic. Between 1995 and 1996 there

were 89 takes in North Carolina in the large mesh fishery, warranting

the need for a closure during times of high bycatch. The small mesh

fishery is closed for one month in the New Jersey Mudhole, but not in

the southern Mid-Atlantic.

Although 5 observed takes does not appear to equal a high harbor

porpoise bycatch, when estimated for the entire fishery it does appear

to be a significant number of takes, resulting in an estimated take of

132 for the North Carolina fishery in 1996.

The proposed large mesh closure is 10 days longer than what was

recommended by the MATRT as explained in response to comment number 80.

Although monkfish may not be able to be legally fished off North

Carolina in the future, the mesh size (i.e, greater than 7 inch (17.78

cm) mesh) may be used to fish for other species. As mentioned

previously, it is the type of gear and not the target species that is

of concern to harbor porpoise bycatch reduction.

There are observer data south of Ocracoke, in fact, observer data

span the entire North Carolina coast. NMFS agrees that observer data

through 1996 shows that there are no observed takes from January

through April south of Cape Hatteras. However, this is the boundary

that was agreed to by the MATRT and is documented in the MATRT report.

Additionally, even though stranding data were not used in developing

the plan, stranding data do indicate that there is a gillnet fishery

interaction problem south of Cape Hatteras. Primarily because it was a

MATRT recommendation, NMFS is retaining the boundary of the plan at the

North Carolina/South Carolina boundary.

Comment 83: One commenter supported a 30-day closure from mid-

[[Page 66483]]

February through mid-March rather than allowing individual fishermen to

determine the 30-day block.

Response: The final rule implements the 30-day closure from mid-

February to mid-March.

Comment 84: One commenter noted that the MATRT was generally

supportive of a pinger study in the Mid-Atlantic. If pingers are

effective in New England, they should also be effective in the Mid-

Atlantic. The commenter questioned why NMFS is only proposing time/area

closures and gear modifications and not supporting a pinger study in

the Mid-Atlantic. Several commenters stated that the industry has

indicated support for experimental pinger studies, and questioned why

NMFS suggests only time/area closures to achieve goals and recommended

that Mid-Atlantic fishermen should be given the option of choosing

between gear modifications and time/area closures and participating in

experimental fisheries using pingers. Two commenters stated that no

consensus was reached in the MATRT because of the unjustified

objections of one scientist/advocate and a small number of conservation

members.

Response: See response to comment 41 for a discussion of why

pingers were not chosen as an alternative in the Mid-Atlantic. NMFS

agrees that the industry indicated support for a pinger study in the

Mid-Atlantic but disagrees that objections were of lesser magnitude or

lesser justification. Both points of view were strongly supported by

respective advocates.

Comment 85: One comment supported the determination not to use

pingers in the Mid-Atlantic.

Response: 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 and similar groups have 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 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

included in this final rule are expected to be sufficient.

Comment 86: One commenter questioned the justification for the

prohibition of tie downs in the small mesh gillnet fisheries for the

sole purpose of avoiding the potential for effort shifts (i.e., into

the monkfish fishery). The commenter stated that this is inconsistent

with NMFS' stated intent to avoid subfishery-specific regulations, it

is a regional council issue, and it is non-substantive since inshore

gillnet fishermen do not tie down their nets because that would

decrease harvest efficiency. Another commenter argued that given the

monkfish and dogfish proposed management measures under the FMPs, it is

highly unlikely that individual fishermen will try to circumvent the

monkfish regulations and land monkfish through tieing down their nets.

Response: It is difficult to speculate what fishermen will do.

While it is true that this overall plan is meant to avoid the sub-

fishery specific regulations and while the potential for effort shifts

is speculative, removing this uncertainty is important to this HPTRP

being able to reach its goals. It is unclear why the prohibition would

be a problem to fishermen since the commenter states that inshore

fishermen do not tie-down their nets for any other reason.

Comment 87: One commenter noted that the proposed rule responded to

their comment addressing concern over the boundary line between the GOM

and Mid-Atlantic, but they were still not satisfied with where the line

was drawn. The recommendation is to use the boundary between the New

England and Mid-Atlantic FMCs as specified in the Magnuson-Stevens Act,

with the exception of the GOM closed area south of Cape Cod that is

slightly west of the two Councils. Further the commenter recommended

that vessels employing small mesh less than 5 inches (12.7 cm) should

not be subject to twine size modification requirements and noted that

all small mesh less than 7 inches (17.78 cm) will still have to comply

with the closure in the New Jersey Mudhole from February 15 through

March 15 and other requirements.

Response: NMFS maintains the position as stated in the proposed

rule, that the line used to separate the two plans indicates the area

where the characteristics of the fisheries on either side of that line

diverge; it is a line already familiar to fishermen because it is used

for fishery management purposes, and is overall a more appropriate

boundary than a purely administrative boundary.

NMFS has changed the requirements for the small mesh fishery. Mesh

sizes of 5 inches (12.7 cm) and less will not have to comply with the

management measures at this time.

Comment 88: One commenter stated that NMFS should commit to

providing observer coverage to small mesh fishery because data are

lacking.

Response: NMFS has already provided observer coverage during 1998

to the Mid-Atlantic small mesh fishery and plans to continue such

coverage in the future.

Comments on Enforcement

Comment 89: One commenter stated that enforcement of fishing in

closed areas or fishing without pingers must be enforced.

Response: NMFS agrees and is currently investigating information

concerning noncompliance.

Comment 90: Two commenters suggested that NMFS can address the

difficulty in inspecting pingers by requiring that working pingers be

on all nets at all times, except for the summer months when porpoise

are not interacting with the fishery. This may also facilitate dockside

inspection and remove some of the enforcement concerns.

Response: NMFS is addressing the difficulty in inspecting pingers

by developing an enforcement hydrophone. NMFS is not proposing

deployment of pingers on every gillnet in the Gulf of Maine during the

time harbor porpoise are interacting with the fishery for several

reasons. First, the overall environmental effects of widespread pinger

use cannot be predicted with current information and research is just

beginning at this point. Habituation and displacement of harbor

porpoise and questions of pingers attracting seals are

[[Page 66484]]

still being evaluated. Second, the plan appears to be able to reach its

bycatch reduction goal by a more limited approach. Requiring pingers on

every net would increase the economic burden to fishermen, when a more

limited version that will achieve plan goals is available.

Comment 91: One commenter recommended that NMFS expand the HPTRP

and the EA to provide a thorough description of the steps that could be

taken to ensure that pingers are properly deployed and maintained.

Response: The HPTRP requires fishermen to attend a certification

program in order to fish with pingers in areas that otherwise are

closed by the HPTRP. In addition, outreach and education will be

ongoing during plan implementation and will include information on

proper deployment and maintenance of pingers.

Comment 92: One commenter recommended that NMFS provide regulatory

guidance as to how NMFS intends to certify and enforce proposed pinger

parameters.

Response: The regulations include specifications for pingers that

are required to be used in the NE multispecies gillnet fishery. All

pingers used in this fishery must meet those specifications. Pinger

manufacturers would need to provide documentation to consumers that

their pingers meet the specifications of these regulations. NMFS is not

requiring that these manufacturers have their pingers certified by an

independent company to ensure that they meet the specifications. NMFS

will be periodically monitoring 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 fishermen will be

aware of the importance of technically correct and properly maintained

pingers. If bycatch goals are not achieved because of improper pinger

use or non-effective acoustics, more restrictive measures to reduce

bycatch may be warranted. Additionally, a specific research program

begins with rule implementation that will monitor pingers during normal

use to ensure that the acoustics of pingers do not change with time,

and that they maintain the acoustical characteristics specified by the

manufacturer.

Comment 93: Two commenters felt that rather than focusing on

subfisheries according to the MATRT recommendations, NMFS has extended

the regulations to all gillnet activity because of enforcement

concerns. One commenter suggested that the basis for NMFS differing

with the MATRT's ``solution'' was that NMFS does not have enough

manpower to enforce the regulations. Those fisheries without

interaction should not be penalized for NMFS' lack of enforcement

staff.

Response: Enforcement of regulations is a valid concern but the

enforcement issues with regard to the HPTRP are not just a matter of

adequate staff. A regulation must be legally as well as

administratively enforceable. For example, a call-in system, which was

recommended by the MATRT, is very difficult to enforce because there is

no defined monkfish fishery or dogfish fishery at this time, so no one

is legally defined as a monkfisherman or a dogfisherman. To do so under

this rule, being promulgated under the MMPA, would go well beyond the

scope of this plan. NMFS did not contemplate instituting a permit

system of the dogfish and monkfish fisheries pending the development of

permit systems under the Magnuson-Stevens Act system. Without a permit

system, a fisherman can say they are targeting any number of species

and still use the same gear that will take harbor porpoise. NMFS'

intent in this HPTRP is to avoid the opportunity to take harbor

porpoise because of the gear employed.

Classification

The Assistant Administrator, NMFS, determined that the TRP is

necessary for the conservation of harbor porpoise and is consistent

with the MMPA and other laws.

This rule has been determined to be significant for purposes of

E.O. 12866.

NMFS prepared an FRFA that describes the impact of this rule on

small entities. The need for, and objectives of this rule and a summary

of the significant issues are described elsewhere in this preamble.

Comments on the economic aspects of the proposed rule (comments 55, 56,

64) and NMFS' responses to those comments stated in the preamble to the

final rule are incorporated in the FRFA. The GOM sink gillnet and Mid-

Atlantic coastal gillnet fisheries are directly affected by the action

and are composed primarily of small business entities.

In formulating this action, NMFS considered a number of

alternatives: Alternative 1, the proposed action or Preferred

Alternative; Alternative 2, no action; Alternative 3, wide-spread use

of pingers; and Alternative 4, wide-spread time and area closures. In

addition, a number of alternatives suggested in the comments were also

considered. These alternatives were discussed in comments 19, 20, 21,

22, 23 and 41 above.

Alternative 1, a combination of area closures, pinger requirements,

and gear modifications, is the preferred alternative because it will

achieve the goals of the MMPA while minimizing the overall economic

impact to the affected fisheries.

Under Alternative 1, it is estimated that 95 vessels (35 percent of

total, 54 percent of impacted) would see their total costs increase

more than 5 percent. The cost increase is 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 by using pingers. However, they

would then lose some percentage of their yearly profit. The total

economic losses of the Preferred Alternative to the GOM and the Mid-

Atlantic regions are estimated to be between $609 thousand dollars and

$4.5 million dollars, depending on the number of vessels that can shift

their effort to open areas and the number that use pingers.

The costs associated with this rule are not related to reporting

requirements. To the extent that the rule would allow fishery

participants to select whether to acquire a new gear type or to 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 Multispecies sink gillnet fishery is subject to

regulations under the NE Multispecies FMP. Recent groundfish

conservation measures for the Gulf of Maine were proposed under

Framework Adjustment 25 to the NE Multispecies FMP. The predominant

Mid-Atlantic gillnet fisheries are not subject to regulations under an

FMP at this time. The final 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 Gulf of Maine fishermen.

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

fleet either through gear modifications and purchase of pingers or

through 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 with the Preferred Alternative or non-

preferred alternatives. However, there is a much larger cost in terms

of foregone harbor

[[Page 66485]]

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 and $364 to eliminate

human induced mortality of 1,000 harbor porpoise. Using the lower

figure of $176 multiplied by the number of Massachusetts households,

and amortizing the total using a 7 percent rate yielded a yearly value

of roughly $28 million. This means that decreasing mortality by 1,000

animals would increase consumer surplus by $28 million. 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 the Gulf of Maine and between January and April in the Mid-

Atlantic to use pingers. Each vessel owner would decide whether to

purchase pingers based on his or her own set of circumstances. Each

pinger was estimated to cost $50 dollars based on information obtained

from NMFS 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

that 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 that

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 and 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 unclear whether it

could achieve the bycatch reduction goals, particularly in the Mid-

Atlantic, because pingers have not been proven to be effective in this

area. In addition, there are a number of scientific concerns regarding

the impacts of widespread pinger use on harbor porpoise and other

marine organisms. This alternative is not preferred given that more

data is needed on the ecosystem effects of widespread pinger and given

that other methods are available in the Mid-Atlantic to reduce harbor

porpoise bycatch.

Alternative 4 would result in a total loss in producer surplus and

crew rents for both regions of $7.4 million dollars. Overall, 177

vessels would be impacted for a per vessel loss of roughly $42 thousand

dollars. As described in the FRFA, the cost to the fishery in terms of

economic impacts would vary by area closure. Refer to the FRFA 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 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 vessels from New England to move to

the Mid-Atlantic in the fall or to 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 a 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 discussed earlier (Strand et al., 1994),

harbor porpoise are highly valued by consumers.

The potential losses of the Preferred Alternative discussed above

depend on assumptions about how individual vessels will react to the

regulations. In most cases, these assumptions were very conservative in

order to estimate the maximum possible losses. Non-Preferred

Alternative 4 has the potential to cost more than either the Preferred

Alternative, Non-Preferred Alternative 2 and Non-Preferred Alternative

3. This is because the area closures are large, and last for multiple

months. The losses for Alternative 4 are expected to be $7.4 million

dollars, and it is unlikely that vessels would be able to fish

elsewhere to offset their losses. Allowing the use of pingers in the

Preferred Alternative will lower the cost to the fleet, even with the

price of pingers included. The provisions in the plan which allows the

use of pingers in the New England region lowers the losses in the

Preferred Alternative for New England vessels to $0.49 million dollars

if all vessels elected to use pingers. The actual losses which will

occur depend on which strategy vessels adopt to continue operating in

the face of these regulations. Clearly, allowing pingers to be used

will lower the cost to the fleet because it gives vessels added

flexibility.

Non-Preferred Alternative 2 is lower in cost than any of the

alternatives in terms of losses the fleet will incur. However, the

losses in consumer surplus because of high harbor porpoise mortality

are likely to be far greater than the losses in producer surplus and

crew rents. If the contingent valuation study conducted by the

University of Maryland is accurate, then the value of losses from

harbor porpoise mortality would be far greater than any of the other

options.

Non-Preferred Alternative 3 is the least costly alternative if all

vessels impacted by the plan chose to fish with pingers. To the extent

that some vessels would not be able to afford pingers, the costs will

increase. Implicit in the analysis of this alternative was the

assumption that the mortality reduction was the same as the Preferred

Alternative. This assumption may not be true because pingers have not

been formally tested in some of the times and areas where they would be

allowed under this alternative. If mortality was higher, gains in

consumer surplus would not be as high as under the Preferred

Alternative, which means this alternative would have lower benefits

than the Preferred Alternative.

In response to public comments, NMFS shortened the time periods

when pingers would be required in certain areas, and reduced the number

of net

[[Page 66486]]

tags required in the Mid-Atlantic region. This lowered the estimated

costs by approximately $613,000 from the proposed rule which was

submitted.

In summary, Alternative 1 will allow NMFS to achieve MMPA goals,

reduction of harbor porpoise bycatch to acceptable levels, while

minimizing the overall impact to affected fisheries, compared to the

other available alternatives. Alternative 1 accomplishes this by

placing carefully considered time-area closures in place, and allowing

the use of bycatch reduction devices instead of total closures. This

allows fishermen to continue to generate revenue. Further, Alternative

1 is less costly than other alternatives that would require pingers in

the Gulf of Maine the entire time harbor porpoise are present there. A

copy of this analysis is available from NMFS (see ADDRESSES).

This rule contains a collection-of-information requirement subject

to the Paperwork Reduction Act (PRA). The collection of this

information has been approved by the Office of Management and Budget,

OMB control number 0648-0357.

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 the OMB control

number.

The final 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,

and each net requires one net tag. 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 is estimated to be

49 minutes per vessel.

The 76 vessel owner/operators will have to order net tags,

estimated at 2 minutes per request. 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.

Send comments regarding this burden estimate, or any other aspect

of this data collection, including suggestions for reducing the burden,

to NMFS and OMB (see ADDRESSES).

An informal consultation under the ESA was concluded for the HPTRP

on November 12, 1998. As a result of the informal consultation, the

Assistant Administrator determined that these actions are not likely to

adversely affect endangered or threatened species or their critical

habitat.

The 30-day delayed effectiveness requirement under the

Administrative Procedure Act has been shortened in part. The

requirements in 50 CFR 229.33(a)(2), the Mid-Coast Closure Area, become

effective immediately upon publication; the requirements in 50 CFR

229.33(a)(5), the Offshore Closure Area, become effective December 8,

1998; and 50 CFR 229.33 (a)(3), (a)(4), the Massachusetts Bay and Cape

Cod South Closure Areas become effective December 16, 1998. For all

other components of the HPTRP, the requirements become effective

January 1, 1999. The shortened time periods are necessary to reduce

take of harbor porpoise at the beginning of the high-take season. The

areas identified have different effective dates based on the need to

have take reduction measures in place for harbor porpoise and on the

ability of fishermen in that area to acquire additional pingers.

Specifically, the current closure in the Mid-Coast area under the

Magnuson-Stevens Act allows fishermen to fish with pingers in the

closed area from November 1 through December 31. In addition,

experimental fisheries have occurred in this area from September 15

through October 31 and again also during the March 25 through April 25

Magnuson-Stevens Act harbor porpoise closure. Therefore, most of the

Mid-Coast fleet that intends to fish in December already has gear

outfitted with pingers. A limited number of fishermen in both the Cape

Cod South and Massachusetts Bay areas already have pingers from limited

experimental fisheries that occurred in those areas. This means that

fishermen that will need to purchase pingers in December are those

fishing in the Cape Cod South, Offshore, and Massachusetts Bay Closure

areas. NMFS has inquired and believes that enough pingers will be

available to supply fishermen that choose to fish at that time. These

areas will have a week to two weeks, depending on the area, to purchase

the pingers and deploy them on the nets. Providing a delayed

effectiveness period for requiring pingers in the Offshore Closure area

a week later than the Mid-Coast area is justified because bycatch is

known to be consistently high in the Mid-Coast area at the time this

rule will be effective. Shortening the delay of effectiveness period

for requiring pingers in the Offshore Closure area to a week less than

other areas is justified because less than 10 fishermen are known to

use the Offshore Closure area year round, and moreover, it is an area

of high bycatch. Accordingly, the Assistant Administrator finds that

there is good cause to shorten the 30-day delayed effectiveness period

under 5 U.S.C. 553(d)(3) regarding pinger requirements.

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.

Palka, D. 1997. Effects of Gear Characteristics on the Mid-Atlantic

Harbor Porpoise Bycatch. Report to the Mid-Atlantic Take Reduction

Team. Unpublished.

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.

RESOLVE, 1997. The Mid-Atlantic Take Reduction Team Report.

Submitted to Mr. Rollie Schmitten, NMFS. Prepared by RESOLVE Center

for Environmental Dispute Resolution, Washington, DC.

Wade, P.R. 1998. Calculating limits to the allowable human-caused

mortality of cetaceans and pinnipeds. Marine Mammal Science. 14:1-

37.

Wade, P.R. and R.P. Angliss, 1997. Guidelines for Assessing Marine

Mammal Stocks: Report of the GAMMS Workshop April 3-5, 1996, Seattle

Washington. NOAA Technical Memorandum NMFS-OPR-12.

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: November 25, 1998.

Andrew A. Rosenberg,

Deputy Assistant Administrator for Fisheries, National Marine Fisheries

Service.

For the reasons set out in the preamble, 50 CFR part 229 is amended

as follows:

[[Page 66487]]

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 inches (17.78 cm) 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) of this title.

* * * * *

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 of

greater than 5 inches (12.7 cm) to 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.

* * * * *

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 (k) through (p) are added to read as

follows:

Sec. 229.3 Prohibitions.

* * * * *

(k) 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, from the areas and for the times

specified in Sec. 229.33 (a)(1) through (a)(6), except with the use of

pingers as provided in Sec. 229.33 (d)(1) through (d)(4). This

prohibition does not apply to the use of a single pelagic gillnet (as

described and used as set forth in Sec. 648.81(f)(2)(ii) of this

title).

(l) 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).

(m) 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 (c)(4) unless the gear complies with the specified gear

restrictions set forth in those provisions.

(n) 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 (c)(4), unless a person on board the vessel during

fishing operations possesses a valid pinger certification training

certificate issued by NMFS.

(o) Beginning on January 1, 2000, it is prohibited to fish with,

set, haul back, or possess any large mesh or small mesh 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.

(p) Net tag requirement. Beginning on January 1, 2000, all gillnets

fished, hauled, possessed, or deployed during the times and areas

specified below must have one tag per net, with one tag secured to

every other bridle of every net and with one tag secured to every other

bridle of every net within a string of nets. This applies to small mesh

and large mesh gillnet gear in New Jersey waters from January 1 through

April 30 or in southern Mid-Atlantic waters from February 1 through

April 30. 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, new Secs. 229.33 and 229.34 are 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, from Northeast Closure Area. This prohibition does not

apply to a single pelagic gillnet (as described and used as set forth

in Sec. 648.81(f)(2)(ii) of this title). 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' 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. This prohibition does not apply to a

single pelagic gillnet (as described and used as set forth in

Sec. 648.81(f)(2)(ii) of this title). The Mid-

[[Page 66488]]

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' 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 42 deg.00' 69 deg.30'

MC7 43 deg.30' 69 deg.30'

MC8 43 deg.00' 69 deg.00'

MC9 (\2\) 69 deg.00'

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

\1\ Massachusetts shoreline.

\2\ Maine shoreline.

(3) Massachusetts Bay Closure Area. From December 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 from the Massachusetts Bay

Closure Area, except with the use of pingers as provided in paragraph

(d)(2) of this section. This prohibition does not apply to a single

pelagic gillnet (as described in Sec. 648.81(f)(2)(ii) of this title).

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\)

MC7 42 deg.00' (\1\)

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

\1\ Massachusetts shoreline.

\2\ Cape Cod shoreline.

(4) Cape Cod South Closure Area. From December 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 from Cape Cod South Closure Area,

except with the use of pingers as provided in paragraph (d)(3) of this

section. This prohibition does not apply to a single pelagic gillnet

(as described in Sec. 648.81(f)(2)(ii) of this title). 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'

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 November 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 from Offshore Closure Area, except for

the use of pingers as provided in Sec. 229.33(d)(4). This prohibition

does not apply to a single pelagic gillnet (as described in

Sec. 648.81(f)(2)(ii) of this title). 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.30'

OFS2 43 deg.10' 69 deg.10'

OFS3 43 deg.10' 67 deg.40'

OFS4 42 deg.10' 67 deg.40'

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 from the Cashes Ledge

Closure Area. This prohibition does not apply to a single pelagic

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