Threatened Fish and Wildlife; Listing of the Gulf of Maine/Bay of Fundy Population of Harbor Porpoise as Threatened Under the Endangered Species Act (ESA)

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 227

[Docket No. 981231331-8331-01; I.D. 122898G]

Threatened Fish and Wildlife; Listing of the Gulf of Maine/Bay of

Fundy Population of Harbor Porpoise as Threatened Under the Endangered

Species Act (ESA)

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

Atmospheric Administration (NOAA), Commerce.

ACTION: Proposed rule; withdrawal.

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SUMMARY: NMFS has determined that listing of the Gulf of Maine/Bay of

Fundy (GOM/BOF) population of harbor porpoise, Phocoena phocoena, as

threatened under the ESA is not warranted at this time. Therefore, NMFS

withdraws the January 7, 1993, proposal to list the GOM/BOF population

of harbor porpoise as threatened under the ESA. Since publication of

the proposal to list, additional information regarding the status of

the GOM/BOF harbor porpoise population, its commercial fishery bycatch

rate, and management actions implemented to reduce harbor porpoise

bycatch have become available to justify reevaluation of the factors

that prompted the original proposed listing.

ADDRESSES: Requests for copies of this determination or a complete list

of references should be addressed to the Chief, Marine Mammal Division

(PR2), Office of Protected Resources, NMFS, 1315 East-West Highway,

Silver Spring, MD 20910.

FOR FURTHER INFORMATION CONTACT: Margot Bohan, F/PR2, NMFS, (301) 713-

2322, Laurie Allen, Northeast Region, NMFS, (978) 281-9291, or Kathy

Wang, Southeast Region, NMFS, (727) 570-5312.

SUPPLEMENTARY INFORMATION:

Background

list

of references should be addressed to the Chief, Marine Mammal Division

(PR2), Office of Protected Resources, NMFS, 1315 East-West Highway,

Silver Spring, MD 20910.

FOR FURTHER INFORMATION CONTACT: Margot Bohan, F/PR2, NMFS, (301) 713-

2322, Laurie Allen, Northeast Region, NMFS, (978) 281-9291, or Kathy

Wang, Southeast Region, NMFS, (727) 570-5312.

SUPPLEMENTARY INFORMATION:

Background

Prompted by 1989 and 1990 data indicating that the rate of harbor

porpoise bycatch in the gillnet fishery was large relative to the

available estimates of harbor porpoise abundance in the GOM/BOF, NMFS

announced its intent on February 12, 1991, to review the status of

harbor porpoise in U.S. waters for possible listing as threatened or

endangered under the ESA. At the time that NMFS was reviewing harbor

porpoise status, the Sierra Club Legal Defense Fund, on behalf of the

International Wildlife Coalition and 12 other organizations, pursuant

to 16 U.S.C. 1533(b), submitted a petition to NMFS (September 18, 1991)

to add the GOM/BOF harbor porpoise population to the U.S. List of

Endangered and Threatened Wildlife (50 CFR part 17), as a threatened

species. NMFS determined that the petition presented substantial

information indicating that the petitioned action might be warranted

(56 FR 65044, Dec. 13, 1991). Under section 4(b)(3)(A) of the ESA, if a

petition is found to present such information, a review of the status

of the species concerned is mandated. To ensure a comprehensive status

review, NMFS solicited information and comments specific to harbor

porpoise in the GOM/BOF and adjacent waters.

On May 5-8, 1992, NMFS conducted a workshop to review the status of

the GOM/BOF harbor porpoise and adjacent populations (as described in

Gaskin, 1984) offshore eastern North America (NMFS, 1992). Participants

at that workshop reviewed the best available scientific data on the

population structure, abundance, reproductive rates, and levels of

bycatch for each of the populations considered

s.

On May 5-8, 1992, NMFS conducted a workshop to review the status of

the GOM/BOF harbor porpoise and adjacent populations (as described in

Gaskin, 1984) offshore eastern North America (NMFS, 1992). Participants

at that workshop reviewed the best available scientific data on the

population structure, abundance, reproductive rates, and levels of

bycatch for each of the populations considered. The information

reviewed during the harbor porpoise workshop and that received

during the request for information as part of the status review

provided NMFS with the scientific information necessary to complete the

status review and respond to the petition. NMFS concluded that the

harbor porpoise in the GOM/BOF represented a population sufficiently

discrete to justify management as a separate population under the ESA.

The GOM/BOF population, as proposed, included all harbor porpoise whose

range extended throughout waters of eastern North America from (and

including) the BOF, Nova Scotia, south to eastern Florida.

NMFS further concluded that the level of bycatch in the Northeast

multispecies sink-gillnet fishery, as well as the known, but not

quantified, level of bycatch outside the GOM including the Canadian BOF

multispecies gillnet fishery, and the coastal southern New England/Mid-

Atlantic gillnet fisheries were a threat to the GOM/BOF harbor porpoise

throughout all or a significant portion of its range. The bycatch-to-

abundance ratio indicated that the estimated bycatch by these fisheries

needed to be reduced by more than 50 percent to be sustained by the

present GOM/BOF harbor porpoise population. The regulatory measures in

place at the time were considered inadequate to reduce this bycatch. As

a result, NMFS proposed, in accordance with section 4(b)(3)(B) of the

ESA, to list the GOM/BOF population of harbor porpoise as threatened

under the ESA and provided for a 90-day comment period (58 FR 3108,

January 7, 1993)

cent to be sustained by the

present GOM/BOF harbor porpoise population. The regulatory measures in

place at the time were considered inadequate to reduce this bycatch. As

a result, NMFS proposed, in accordance with section 4(b)(3)(B) of the

ESA, to list the GOM/BOF population of harbor porpoise as threatened

under the ESA and provided for a 90-day comment period (58 FR 3108,

January 7, 1993).

Following publication of the proposed rule, NMFS received several

comments requesting that public hearings be held throughout New

England. In response to these requests, NMFS extended the comment

period on the proposed rule until August 7, 1993 (58 FR 17569, April 5,

1993).

During the extended comment period, NMFS completed analyses of data

from the 1992 harbor porpoise abundance surveys to estimate abundance

and analyses of the 1992 observer data used to estimate total bycatch

in the Northeast multispecies sink-gillnet fishery. These analyses were

presented and discussed at a meeting of the NEFMC Groundfish Committee,

Harbor Porpoise Subgroup, on June 16, 1993. The information presented

indicated a decline in the bycatch between 1990 and 1992 and an

increased abundance estimate in 1992 over 1991. Following this meeting

(in a letter dated August 7, 1994), NEFMC requested a 6-month extension

of the final decision-making period on the proposal to list harbor

porpoise. An extension was appropriate because, according to NEFMC and

others present at the June 16 meeting, the data presented by NMFS

suggested that the GOM/BOF harbor porpoise population was not distinct

and, thus, was not a species under the ESA.

Under section 4 of the ESA, if there is a substantial disagreement

regarding the sufficiency or accuracy of the available data relevant to

the determination or revision concerned, NMFS may extend, for up to 6

months, the 1-year period of determination

the data presented by NMFS

suggested that the GOM/BOF harbor porpoise population was not distinct

and, thus, was not a species under the ESA.

Under section 4 of the ESA, if there is a substantial disagreement

regarding the sufficiency or accuracy of the available data relevant to

the determination or revision concerned, NMFS may extend, for up to 6

months, the 1-year period of determination. On November 8, 1993 (58 FR

59230), in accordance with this provision, the date for the final

determination on the proposal to list was extended for 6 months to

allow for further data accrual and analyses regarding the harbor

porpoise stock structure. In addition, during this extension, NMFS

conducted further review of the bycatch trend, analysis of the 1993

bycatch data prior to final determination, and further consideration of

all data, including the abundance survey data, relevant to the final

determination. NMFS reopened the comment period for an additional 30

days (to close on August 11, 1994) to allow for public comment

following completion of these analyses (59 FR 36158, July 15, 1994).

The New England Harbor Porpoise Working Group (HPWG) met on July

21, 1994, to discuss the 1992 bycatch data under consideration

regarding the ESA listing proposal. The HPWG, formed in 1990, was

composed of fishermen, environmentalists, and scientists whose purpose

was to define the extent of the harbor porpoise problem and to identify

solutions to reduce the incidental take of harbor porpoise in gillnets

and to minimize the impacts on the fishery. The HPWG recommended that

the updated bycatch estimates should be more fully explained so that

public review and comment could provide more meaningful input to NMFS

prior to the final listing determination. NMFS prepared a document in

August 1994 that addressed HPWG concerns

ify

solutions to reduce the incidental take of harbor porpoise in gillnets

and to minimize the impacts on the fishery. The HPWG recommended that

the updated bycatch estimates should be more fully explained so that

public review and comment could provide more meaningful input to NMFS

prior to the final listing determination. NMFS prepared a document in

August 1994 that addressed HPWG concerns. The comment period on the

proposed listing was scheduled to close on August 11, 1994, which would

not have allowed enough time for public review of the NMFS document

regarding HPWG concerns; therefore, the comment period on the proposed

rule was further extended until September 11, 1994 (59 FR 41270).

Additional meetings with conservation groups resulted in a decision to

wait for 1995 data prior to proceeding with a listing determination.

NMFS had not yet made a final determination when, in fiscal year

1996, Congress imposed a 1-year moratorium on listing species under the

ESA. During 1997 and 1998, NMFS has kept the listing issue under review

in light of new population abundance and bycatch data, ongoing Fishery

Management Council and NMFS fishery management efforts to reduce harbor

porpoise bycatch, and the MMPA Section 118 Take Reduction Team (TRT)

process. New bycatch data, new fishery regulations, and implementation

of the HPTRP provide substantial new information to be considered in

making the final listing determination. For a fuller discussion of the

new data and management implementations, see the section below entitled

``Summary of ESA Factors Affecting the Species''.

Summary of Comments and Responses

8 Take Reduction Team (TRT)

process. New bycatch data, new fishery regulations, and implementation

of the HPTRP provide substantial new information to be considered in

making the final listing determination. For a fuller discussion of the

new data and management implementations, see the section below entitled

``Summary of ESA Factors Affecting the Species''.

Summary of Comments and Responses

Several significant comment period extensions and reopenings have

occurred since publication of the original proposal to list GOM/BOF

harbor porpoise. Recently, due to the passage of time, the availability

of new/additional information and the desire to review the best

scientific information available during the decision-making process, a

document was published (63 FR 56596, October 22, 1998) in the Federal

Register to reopen the comment period on the proposed listing of the

GOM/BOF population of harbor porpoise for 30 days. This document

summarized information that has become available since publication of

the proposed rule to supplement our understanding of the species'

status and factors affecting the species. The following comments and

responses address existing concerns regarding the proposed listing of

GOM/BOF porpoise under the ESA.

Comment on Definition of Distinct Population or ``Species''

Comment 1: To consider harbor porpoise in the GOM/BOF for ESA

listing, that group of animals needs to qualify as a distinct

population or ``species'' under the ESA. Until recently, questions

remained as to whether harbor porpoise in the GOM/BOF qualify for

protection under the ESA's definition of ``species.''

Response: On February 7, 1996, NMFS and the U.S. Fish and Wildlife

Service (USFWS) published a policy to clarify their interpretation of

the phrase ``distinct population segment of any species of vertebrate

fish or wildlife'' for the purposes of listing, delisting, and

reclassifying species under the ESA (61 FR 4722)

e GOM/BOF qualify for

protection under the ESA's definition of ``species.''

Response: On February 7, 1996, NMFS and the U.S. Fish and Wildlife

Service (USFWS) published a policy to clarify their interpretation of

the phrase ``distinct population segment of any species of vertebrate

fish or wildlife'' for the purposes of listing, delisting, and

reclassifying species under the ESA (61 FR 4722).

The policy outlines three elements to be considered in deciding the

status of a possible distinct population segment as endangered or

threatened under the ESA: (1) Discreteness of the population segment in

relation to the remainder of the species to which it belongs; (2) the

significance of the population segment to the species to which it

belongs; (3) the population segment's conservation status in relation

to ESA standards for listing (i.e., is the population segment, when

treated as if it were a species, endangered or threatened?).

Discreteness. A population segment of a vertebrate species may be

considered discrete if it satisfies either one of the following

conditions: (a) It is markedly separated from other populations of the

same taxon as a consequence of physical, physiological, ecological, or

behavioral factors (quantitative measures of genetic or morphological

discontinuity may provide evidence of this separation); or (b) it is

delimited by international governmental boundaries within which

differences in control of exploitation, management of habitat,

conservation status, or regulatory mechanisms exist that are

significant in light of section 4(a)(1)(D) of the ESA.

The former criterion is particularly relevant for GOM/BOF harbor

porpoise. Seasonal movements into the northern GOM/BOF during summer,

the known summer reproductive periodicity and spatial segregation from

other conspecific groups, and the subsequent dispersal during late fall

and winter from the GOM south to at least North Carolina strongly

suggest a unified, single breeding assemblage

ESA.

The former criterion is particularly relevant for GOM/BOF harbor

porpoise. Seasonal movements into the northern GOM/BOF during summer,

the known summer reproductive periodicity and spatial segregation from

other conspecific groups, and the subsequent dispersal during late fall

and winter from the GOM south to at least North Carolina strongly

suggest a unified, single breeding assemblage. All lines of biological

evidence (genetic, life history, organochlorine, heavy metal and

movement data) strongly support a species status recognition under the

ESA.

Significance. If a population segment is considered discrete under

one or more of the above conditions, its biological and ecological

significance should then be considered. NMFS, therefore, considered

available scientific evidence of the discrete population segment's

importance to the taxon to which it belongs. This consideration

included, but was not limited to, the following: (a) Persistence of the

discrete population segment in an ecological setting unusual or unique

for this taxon; (b) evidence that loss of the discrete population

segment would result in a significant gap in the range of a taxon; (c)

evidence that the discrete population segment represents the only

surviving natural occurrence of a taxon that may be more abundant

elsewhere as an introduced population outside its historical range; or

(d) evidence that the discrete population segment differs markedly from

other populations of the species in its genetic characteristics.

Specifically, the GOM/BOF population of harbor porpoise is an

important upper trophic level predator in the GOM and there is a

significant genetic difference between the GOM/BOF population of harbor

porpoises and the Gulf of St. Lawrence and Newfoundland harbor

porpoises. This difference is even greater when considering only

females, thus indicating that females are more site-specific to the

GOM/BOF than are males (Wang et al. 1996)

rbor porpoise is an

important upper trophic level predator in the GOM and there is a

significant genetic difference between the GOM/BOF population of harbor

porpoises and the Gulf of St. Lawrence and Newfoundland harbor

porpoises. This difference is even greater when considering only

females, thus indicating that females are more site-specific to the

GOM/BOF than are males (Wang et al. 1996).

Harbor porpoise that concentrate in the GOM/BOF during the

reproductive season also occupy shelf water habitat of the eastern

United States during other times of the year. Therefore, the viability

of harbor porpoise in shelf waters of the eastern U.S. is strongly

dependent on the existence of a healthy, reproductive population of

harbor porpoise in the GOM/BOF.

Based on current information available to NMFS, the only

supportable decision that can be reached is that the harbor porpoise

that occur in the GOM and BOF do represent a distinct population

segment and, therefore, a species under section 3(15) of the ESA.

Status. If a population segment is discrete and significant (i.e.,

it is a distinct population segment), its evaluation for an endangered

or threatened status will be primarily based on a review of the factors

enumerated in ESA section 4(a) after taking into account conservation

efforts implemented pursuant to section 4(b)(1)(A). In the next several

sections of this document, the conservation status of GOM/BOF harbor

porpoise is evaluated and discussed within these contexts.

Comments on the Need for the ESA Threatened Listing

or threatened status will be primarily based on a review of the factors

enumerated in ESA section 4(a) after taking into account conservation

efforts implemented pursuant to section 4(b)(1)(A). In the next several

sections of this document, the conservation status of GOM/BOF harbor

porpoise is evaluated and discussed within these contexts.

Comments on the Need for the ESA Threatened Listing

Comment 2: Several commenters support a final determination to

list the GOM/BOF harbor porpoise as threatened under the ESA. According

to these commenters, the factors that formed the basis for the proposed

listing still exist, and the current mortality rate is not sustainable.

Response: NMFS has implemented appropriate conservation strategies

that are expected to reduce bycatch to the extent that an ESA listing

is unnecessary. NMFS recognizes that the fishery bycatch rate has not

yet been reduced to a sustainable level. However, it appears that

bycatch levels are on a downward trend due to bycatch reduction

measures currently in place as a result of state, Federal and Canadian

fishery management. In particular, the HPTRP is in place and is

expected to reduce bycatch below the potential biological removal (PBR)

level for harbor porpoise. Based on available data, the current times

and areas of protective coverage are broad-based and demonstrate that

the HPTRP can expect to reach its goal without placing additional

burdens on the fishery.

Comment 3: Several commenters are opposed to a determination to

list at this time, in light of NMFS' intent to implement an HPTRP to

take effect in December 1998.

Response: NMFS agrees that an ESA listing at this time is not

warranted. Federal legislative and regulatory actions have been taken

in the U.S. to protect the GOM/BOF harbor porpoise. NMFS expects that

the recently implemented HPTRP will provide the measures and mechanisms

necessary to assure that harbor porpoises do not become threatened as a

result of fishing practices

ct in December 1998.

Response: NMFS agrees that an ESA listing at this time is not

warranted. Federal legislative and regulatory actions have been taken

in the U.S. to protect the GOM/BOF harbor porpoise. NMFS expects that

the recently implemented HPTRP will provide the measures and mechanisms

necessary to assure that harbor porpoises do not become threatened as a

result of fishing practices. Also, Canada has begun to address the need

for bycatch mitigation in the Canadian BOF.

Comment 4: One commenter proposed that listing harbor porpoise as a

threatened species in North Carolina waters is not necessary for the

protection of this species. Although a small number of harbor porpoise,

five to be exact, were taken during observer trips off North Carolina,

the commenter explained that these porpoises were taken by large mesh

monkfish gillnets or dogfish gillnets, which will be eliminated from

North Carolina waters in the near future as a result of fishery

management plan restrictions and stock rebuilding measures.

Furthermore, observer data indicate, at most, a remote likelihood that

the state's traditional small net gillnet fishery would cause

incidental mortality or serious injury. Response: NMFS has determined

that an ESA threatened listing is not warranted at this time.

Comments on Bycatch Reduction Measures

The final rule that implements the HPTRP (63 FR 66464, December 2,

1998) contains a number of comments/responses on bycatch reduction

measures.

Comment 5: Several commenters claimed that NMFS has failed to take

necessary actions under the MMPA or ESA to protect the GOM/BOF harbor

porpoise. Another commenter supported and urged NMFS to follow through

with the adoption of a bycatch reduction program that incorporates

reasonable management measures (such as time and area closures), with

assistance directed to the gillnet fishery for gear mitigation research

and field experiments

MFS has failed to take

necessary actions under the MMPA or ESA to protect the GOM/BOF harbor

porpoise. Another commenter supported and urged NMFS to follow through

with the adoption of a bycatch reduction program that incorporates

reasonable management measures (such as time and area closures), with

assistance directed to the gillnet fishery for gear mitigation research

and field experiments.

Response: The final rule implementing the HPTRP (63 FR 66464,

December 2, 1998), as well as the notice reopening the comment period

regarding this listing determination (63

FR 56596, October 22, 1998), address management actions that were

implemented and are currently in place to reduce bycatch. NMFS believes

that the actions will effectively reduce the threats to the species to

prevent a need for listing. A specific discussion of the Gulf of Maine

and Mid-Atlantic Take Reduction Teams' progress and negotiations toward

this objective is contained in the HPTRP Environmental Assessment and

Final Regulatory Flexibility Act analysis (HPTRP/EA/FRFA) and the final

rule (63 FR 66464, December 2, 1998) implementing the HPTRP.

Comment 6: Several other commenters raised concerns regarding the

MMPA as a mechanism for further reducing the incidental kill of harbor

porpoise. They explained that there is little assurance that the

reauthorized MMPA would be successful in providing protection,

especially if the GOM/BOF harbor porpoise were not listed under the

ESA. They also claimed that the proposed HPTRP relies on an overly

optimistic pinger effectiveness rate of 80 percent and that it does not

contain sufficient closures and pinger requirements to achieve PBR. The

term PBR is defined as ``the maximum number of animals not including

natural mortalities, that may be annually removed from a marine mammal

stock without compromising the ability of the stock to reach or

maintain its optimum population level

GOM is a series of short,

discrete, and complete closures in combination with much larger time/

area closures where pinger use is required. Pingers have been proven to

be effective in reducing harbor porpoise takes in gillnets; however

NMFS recognizes that pingers are not 100 percent effective. Thus, the

strategy for the overall HPTRP remains a combination of complete

closures and pinger use. This combination is expected to reduce bycatch

in those areas of high harbor porpoise bycatch through complete

closures while requiring pinger use outside closure times and areas to

compensate for the interannual variability of both harbor porpoise and

fishing effort that may shift bycatch outside the discrete closure

areas. NMFS expects these strategies to achieve adequate results

without the need for additional closures.

The HPTRP is based on an 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 during the time period in which effort shifts might occur. It

relies on each of its components working together collectively to reach

MMPA PBR goals. NMFS will review harbor porpoise bycatch rates to

ensure that the pinger effectiveness rate is being realized.

Comment 7: A commenter recommended that NMFS review the impacts of

the HPTRP immediately following the first year of plan implementation

to determine if consideration of an ESA listing is still warranted.

Response: NMFS intends to reevaluate the effectiveness of the HPTRP

management measures and the effectiveness of the MMPA to achieve harbor

porpoise conservation in 1999. If bycatch goals are not achieved, more

restrictive measures to reduce bycatch may be warranted. NMFS and the

TRTs will need to identify other measures that may reduce bycatch to

MMPA-required levels

ing is still warranted.

Response: NMFS intends to reevaluate the effectiveness of the HPTRP

management measures and the effectiveness of the MMPA to achieve harbor

porpoise conservation in 1999. If bycatch goals are not achieved, more

restrictive measures to reduce bycatch may be warranted. NMFS and the

TRTs will need to identify other measures that may reduce bycatch to

MMPA-required levels.

Comment 8: Several commenters expressed concern that further

restrictions on fishermen as a result of listing would be a

significant, unnecessary hardship.

Response: NMFS has determined not to list GOM/BOF harbor porpoise

under the ESA; therefore, no hardship would result.

Comment 9: The commenter stated that the current management

provisions should be tested.

Response: NMFS intends to continually review harbor porpoise

bycatch to determine whether the time-area closures and pinger

requirements are effective at reducing the bycatch to the specified

levels within the designated time frame. The MMPA requires TRP

evaluation at 6-month intervals and modifications as necessary.

Comment 10: Several comments referred to the fact that the ESA

listing determination needs to take into account the bycatch in Canada

as well as the bycatch in U.S. fisheries. The Magnuson-Stevens Fishery

Conservation and Management Act (Magnuson-Stevens Act) gives the

Secretary of Commerce authority to place pressure on foreign

governments who fail to take adequate steps to protect and preserve

marine resources. Rather than simply focus on the U.S. fleet, the

commenter suggested that pressure should be brought to bear on Canada

to reduce their bycatch.

Response: NMFS agrees with the commenter that bycatch must be

reduced throughout the range of this population. NMFS, therefore, is

working with DFO-Canada, and other appropriate state and Federal

agencies to develop protective measures that will result in a reduction

of bycatch of the GOM/BOF harbor porpoise throughout their range

should be brought to bear on Canada

to reduce their bycatch.

Response: NMFS agrees with the commenter that bycatch must be

reduced throughout the range of this population. NMFS, therefore, is

working with DFO-Canada, and other appropriate state and Federal

agencies to develop protective measures that will result in a reduction

of bycatch of the GOM/BOF harbor porpoise throughout their range. These

programs are described in ``Summary of Factors Affecting the Species,

D. The Inadequacy of Existing Regulatory Mechanisms''.

Relative to the GOM and BOF, NMFS and DFO-Canada further recognize

that this issue, being transboundary, requires the cooperative efforts

of both agencies if the situation is to be resolved. Toward that end,

both agencies acknowledge that management and legal requirements differ

in each country; however, both agencies are committed to the reduction

of the incidental take of porpoise in their respective fisheries.

Furthermore, NMFS has met with representatives of the Canadian

Government to discuss the HPTRP in U.S. waters and to encourage Canada

to participate in reducing the overall fishing mortality on this stock.

DFO-Canada developed its Harbor Porpoise Conservation Plan and has

implemented an observer program that has documented a continuous

reduction in bycatch in their BOF gillnet fisheries.

Species Status and Factors Affecting the Species

This final determination gives consideration to new geographic

range data, population abundance and bycatch data, NEFMC/NMFS' ongoing

fishery management efforts to reduce harbor porpoise bycatch, and the

progress in

mortality reduction under the MMPA. Since publication of the proposed

rule and as indicated in the notice reopening the comment period on the

proposed rule, the following information has become available to

supplement our understanding of the species' status and factors

affecting the species.

Stock Structure (Discreteness)

ement efforts to reduce harbor porpoise bycatch, and the

progress in

mortality reduction under the MMPA. Since publication of the proposed

rule and as indicated in the notice reopening the comment period on the

proposed rule, the following information has become available to

supplement our understanding of the species' status and factors

affecting the species.

Stock Structure (Discreteness)

Recent analyses involving mitochondrial DNA (Wang, 1996),

organochlorine contaminants (Westgate, 1997), heavy metals (Johnston,

1995), and life-history parameters (Read and Hohn, 1995) support the

currently accepted hypothesis of four separate distinct populations in

the western North Atlantic: the Gulf of Maine/Bay of Fundy, Gulf of St.

Lawrence, Newfoundland, and Greenland populations (See response to

Comment 1).

Abundance

Three abundance surveys were conducted during the summers of 1991,

1992, and 1995. The population estimates were 37,500 in 1991, 67,500 in

1992, and 74,000 in 1995. Refer to Palka (1995a and 1996) for detailed

information.

Summary of ESA Factors Affecting the Species

Species may be determined to be threatened or endangered due to one

or more of five factors described in section 4(a)(1) of the ESA. These

factors are discussed here, as they apply to the GOM/BOF harbor

porpoise, in light of additional/new information that has become

available since the species was originally proposed for listing.

A. The Present or Threatened Destruction, Modification, or Curtailment

of Habitat or Range

be threatened or endangered due to one

or more of five factors described in section 4(a)(1) of the ESA. These

factors are discussed here, as they apply to the GOM/BOF harbor

porpoise, in light of additional/new information that has become

available since the species was originally proposed for listing.

A. The Present or Threatened Destruction, Modification, or Curtailment

of Habitat or Range

The shoreline bordering the nearshore habitat of this species along

the eastern U.S. coastline is developed in many areas and is

potentially threatened with further physical modification. There is no

new or additional evidence to indicate that such modification or

destruction has contributed to a decline of this population or that the

range of this species has changed significantly as a result of habitat

loss. In addition, habitat modification does not appear to have

contributed to a decline of this population. This factor was not a

basis for the proposed listing.

B. Overutilization for Commercial, Recreational, Scientific, or

Educational Purposes

One of the principal factors for proposing to list the GOM/BOF

population of harbor porpoise as threatened under the ESA was the level

of harbor porpoise bycatch in commercial fisheries in the GOM/Bay of

Fundy/Mid-Atlantic. GOM/BOF harbor porpoise takes have been documented

in the Northeast multispecies sink gillnet, Mid-Atlantic coastal

gillnet, and Atlantic pelagic drift gillnet fisheries, and in the

Canadian Bay of Fundy sink gillnet fishery and herring weir fishery.

The average annual mortality estimate from 1992 to 1997 for the above

U.S. fisheries is 1,749 harbor porpoise. Refer to the U.S. Atlantic and

Gulf of Mexico Marine Mammal Stock Assessment Report (Waring, et al.,

1997) and the notice reopening the comment period (63 FR 56596, October

22, 1998) for detailed fishery bycatch information. Additionally, the

HPTRP EA provides detailed bycatch information for the Gulf of Maine

sink gillnet and Mid-Atlantic coastal gillnet fisheries.

is 1,749 harbor porpoise. Refer to the U.S. Atlantic and

Gulf of Mexico Marine Mammal Stock Assessment Report (Waring, et al.,

1997) and the notice reopening the comment period (63 FR 56596, October

22, 1998) for detailed fishery bycatch information. Additionally, the

HPTRP EA provides detailed bycatch information for the Gulf of Maine

sink gillnet and Mid-Atlantic coastal gillnet fisheries.

C. Disease or Predation

There is no indication that disease has had a measurable impact on

GOM/BOF harbor porpoise. Likewise, there is no new evidence, since the

proposed listing, to indicate that predation has contributed to the

decline of GOM/BOF porpoise. This particular factor was not a basis for

the proposed listing.

D. The Inadequacy of Existing Regulatory Mechanisms

This factor and Factor B formed the basis for the proposed listing.

As discussed in the notice reopening the comment period (63 FR 56596,

October 22, 1998), following are the regulatory mechanisms that have

gone into effect since publication of the proposed rule.

NMFS/NEFMC Bycatch Reduction Measures: In 1994, as part of

Amendment 5 to the NE Multispecies FMP, the NEFMC proposed, under

authority of the Magnuson Fishery Conservation and Management Act (16

U.S.C. 1801 et seq.), a 4-year program to reduce the harbor porpoise

bycatch off New England to 2 percent of the estimated harbor porpoise

population size per year by phasing-in time and area closures to sink

gillnet gear. NMFS adopted and implemented NEFMC's first year closure

recommendations on May 25, 1994 (59 FR 26972). Harbor porpoise bycatch

rates increased in 1994 despite the new time-area gillnet fishing

closures enacted by NMFS on May 25, 1994, therefore, NMFS expanded both

the time and area of the fall closure around an area of high bycatch

called Jeffreys ledge (60 FR 57207)

es to sink

gillnet gear. NMFS adopted and implemented NEFMC's first year closure

recommendations on May 25, 1994 (59 FR 26972). Harbor porpoise bycatch

rates increased in 1994 despite the new time-area gillnet fishing

closures enacted by NMFS on May 25, 1994, therefore, NMFS expanded both

the time and area of the fall closure around an area of high bycatch

called Jeffreys ledge (60 FR 57207).

In November 1995, NMFS implemented Framework Adjustment 14 (60 FR

55207) which enlarged and redefined the Mid-Coast Closure Area in both

time and area during 1995 in an effort to achieve the necessary

reductions in harbor porpoise bycatch. The Mid-Coast closure was closed

to fishing with sink gillnets from March 25 through April 25. Framework

Adjustment 14 also required closure of an area in southern New England,

south of Cape Cod, from March 1 to 30.

Amendment 7 to the NE Multispecies FMP, implemented in July 1996,

implemented marine mammal gillnet closures as part of an overall

groundfish effort reduction program. In addition, the NEFMC recommended

the use of pingers (based on results of the 1994 experiment) in several

experimental fisheries to evaluate their use as bycatch reduction

tools.

Framework 25 to the NE Multispecies FMP (63 FR 15326, March 31,

1998), was implemented on May 1, 1998. Framework 25 implemented gillnet

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

However, these closures are expected to have bycatch reduction benefits

to harbor porpoise as well.

Coastal Atlantic States Bycatch Reduction Efforts: In the fall of

1994, NMFS met with the Atlantic States Marine Fisheries Commission's

(ASMFC), Management and Science Committee, to discuss ways that the

ASMFC could address marine mammal bycatch in its interstate fishery

management plans. Since November 1995, the ASMFC has amended its

Interstate Fishery Management Program charter so that protected

species/fishery interactions are addressed in the ASMFC's fisheries

management planning process

tes Marine Fisheries Commission's

(ASMFC), Management and Science Committee, to discuss ways that the

ASMFC could address marine mammal bycatch in its interstate fishery

management plans. Since November 1995, the ASMFC has amended its

Interstate Fishery Management Program charter so that protected

species/fishery interactions are addressed in the ASMFC's fisheries

management planning process. This means that each state fishery

management plan will contain a section that describes protected species

issues relevant to the fishery in question. Additionally, NMFS and

USFWS representatives with protected species expertise have been

incorporated into the ASMFC's species technical committees, and plan

development and review teams.

The ASMFC is in the final stages of developing the Atlantic Coastal

Cooperative Statistics Program. This program will coordinate a wide

range of fisheries data and information, including protected species

bycatch data, from all Atlantic coastal states. This data management

system will improve the ability of NMFS and other regulatory agencies

in identifying the most effective management measures to address

protected species bycatch in state and Federal waters.

Harbor Porpoise Take Reduction Teams and Plan: For detailed

information on the Gulf of Maine and

Mid-Atlantic Take Reduction Teams and the development of the HPTRP, see

ADDRESSES.

On December 2, 1998, (63 FR 66464) NMFS issued a final rule to

implement a HPTRP in the Gulf of Maine and Mid-Atlantic waters. The

HPTRP and final rule include a range of management measures to reduce

the bycatch and mortality of harbor porpoise. In the GOM, the HPTRP

includes time and area closures and time/area periods during which

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

Bay, Cape Cod South, and Offshore Closure Areas

o

implement a HPTRP in the Gulf of Maine and Mid-Atlantic waters. The

HPTRP and final rule include a range of management measures to reduce

the bycatch and mortality of harbor porpoise. In the GOM, the HPTRP

includes time and area closures and time/area periods during which

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

Bay, Cape Cod South, and Offshore Closure Areas. In the Mid-Atlantic

area, the HPTRP includes time/area closures and modifications to gear

characteristics, including floatline length, twine size, tie downs, and

number of nets, in the large mesh and small mesh fisheries. NMFS

expects that the HPTRP and implementing final rule will reduce bycatch

to below the designated PBR level within 6 months of implementation.

Canadian Mitigation Measures: In the mid-1990s, several Canadian

initiatives, including fishery effort reduction, required pinger use,

expanded observer coverage, and fisher education programs, resulted in

a significant reduction of harbor porpoise bycatch in the BOF. On

October 7, 1994, NMFS received a Harbor Porpoise Conservation Plan for

the BOF, drafted by DFO-Canada, for comment. Following responses to

comments, the HPCP was incorporated into DFO-Canada's long-term

management of fisheries to reduce harbor porpoise entanglements. In

1995, DFO-Canada published the ``Harbor Porpoise Conservation Strategy

for the Bay of Fundy.'' The strategy combines effort reduction,

required pinger use, expanded observer coverage, and fisher education

program to reduce bycatch. Since implementation of their conservation

strategy, Canadian fishery bycatch has been reduced progressively to

approximately 20 to 50 harbor porpoise per year

In

1995, DFO-Canada published the ``Harbor Porpoise Conservation Strategy

for the Bay of Fundy.'' The strategy combines effort reduction,

required pinger use, expanded observer coverage, and fisher education

program to reduce bycatch. Since implementation of their conservation

strategy, Canadian fishery bycatch has been reduced progressively to

approximately 20 to 50 harbor porpoise per year.

Regarding harbor porpoise that have been trapped each summer in

herring weirs in the western BOF and along southwestern Nova Scotia

(Smith, Read, and Gaskin, 1983), the DFO-Canada is now requiring that a

grate be placed over the entrance to the weir in order to stop anything

larger than herring (i.e., marine mammals, basking sharks, etc.) from

entering through the entrance of the weir.

E. Other Natural or Manmade Factors Affecting its Continued

Existence

Other potential human-induced factors that may be affecting this

harbor porpoise population include high levels of contaminants in their

tissues. Concentrations of organochlorine contaminants from 110 GOM/BOF

harbor porpoise were recently measured (Westgate, 1995).

Polychlorinated biphenyl (PCB) levels, the most prominent contaminant,

and dichloro-diphenyl trichloroethane (DDT) levels were both higher in

the GOM/BOF harbor porpoise than in the Gulf of St. Lawrence and

Newfoundland harbor porpoise, although they are now much lower they

were 10 years ago, as reported in Gaskin et al. (1983). Trace metal

contaminants were also measured, and it was found that mean

concentrations of copper, zinc, and mercury were similar to values

previously reported for harbor porpoise in other regions of the world

(Johnston, 1995). No obvious pathology has been noted in more than 300

necropsies of harbor porpoise incidentally captured in gillnets in the

Bay of Fundy (A.J. Read, unpublished data)

Trace metal

contaminants were also measured, and it was found that mean

concentrations of copper, zinc, and mercury were similar to values

previously reported for harbor porpoise in other regions of the world

(Johnston, 1995). No obvious pathology has been noted in more than 300

necropsies of harbor porpoise incidentally captured in gillnets in the

Bay of Fundy (A.J. Read, unpublished data). Although it is not known

whether these contaminants have other effects, the presence of these

contaminants in harbor porpoise tissues does not appear to pose a

serious threat to this population.

Final Determination

Section 4(b)(1) of the ESA requires the Secretary to make final

listing determinations solely on the basis of the best scientific and

commercial data available and after taking into account state and

Federal efforts being made to protect the species. Therefore, in making

this listing determination, NMFS has assessed the status of the

species, identified factors that have led to the decline of the

species, and evaluated available

conservation measures to determine whether such measures ameliorate

risks to the species.

The most significant factor that NMFS considered in this decision

is the existing mechanisms to reduce the level of bycatch which was

published after the proposal to list. NMFS evaluated the likelihood

that the bycatch reduction programs implemented in Canada and at the

state and Federal levels would affect the GOM/BOF harbor porpoise

population in the future.

NMFS believes these conservation efforts will help the

sustainability of the GOM/BOF population of harbor porpoise based on

the following: (1) Strong commitments have been made to carry out these

programs; (2) the parties with the authority to implement the bycatch

reduction efforts have followed appropriate procedures and formalized

the necessary documentation and; (3) objectives and time frames for

achieving these objectives have been established and include adaptive

management principles

rbor porpoise based on

the following: (1) Strong commitments have been made to carry out these

programs; (2) the parties with the authority to implement the bycatch

reduction efforts have followed appropriate procedures and formalized

the necessary documentation and; (3) objectives and time frames for

achieving these objectives have been established and include adaptive

management principles. NMFS believes that the bycatch reduction

programs currently in place will effectively address the factors

causing the decline of the GOM/BOF harbor porpoise population and

increase the population's sustainability.

To directly examine the potential risk of extinction of GOM/BOF

harbor porpoise, a population viability analysis (PVA) was recently

prepared (Wade Draft Report to NMFS). A PVA is used to estimate future

trends of a population to estimate the probability of extinction of the

population given certain assumptions. Using 1991, 1992, and 1995

abundance data and 1992 through 1996 bycatch data, stochastic

population dynamics models of the GOM/BOF harbor porpoise population

were developed to evaluate the probability of persistence of the

population over the foreseeable future (the next 20 to 100 years). Each

of the models predicted a very high probability of extinction within

100 years under the current levels of mortality/bycatch, whereas the

probability of extinction within 20 years was estimated to be low.

Reducing the current mortality/bycatch level by one-half would

decrease, but not eliminate, the probability of extinction in 100

years; but it was estimated to eliminate any probability of extinction

within 20 years. Finally, reducing the current mortality/bycatch to

one-quarter of the current level was estimated to make the risk of

extinction within 100 years unlikely.

HPTRP implementation is expected to reduce the current fishery

mortality/bycatch level to below PBR within the next 6 months

lity of extinction in 100

years; but it was estimated to eliminate any probability of extinction

within 20 years. Finally, reducing the current mortality/bycatch to

one-quarter of the current level was estimated to make the risk of

extinction within 100 years unlikely.

HPTRP implementation is expected to reduce the current fishery

mortality/bycatch level to below PBR within the next 6 months. Hence,

based on this PVA and successful reduction of bycatch through HPTRP

implementation, NMFS anticipates the elimination of any probability of

extinction within the next 100 years.

The current measures enable NMFS to achieve reduction of harbor

porpoise bycatch to sustainable levels, while minimizing the overall

impact to affected fisheries. In view of the currently decreasing

levels of bycatch in Canadian fisheries and the regulatory mechanisms

now being implemented under the MMPA, NMFS concludes that listing the

GOM/BOF population of harbor porpoise as threatened under the ESA is

not warranted at this time.

NMFS and the appropriate agencies will continue to monitor the

bycatch levels and adjust the bycatch reduction programs as necessary

to promote reduced bycatch. NMFS will consider

any new regulations that may affect harbor porpoise or the

implementation of the HPTRP and evaluate whether management measures

need to be changed at that time. NMFS intends to reconvene the TRTs

semiannually during the first year of plan implementation in order to

track the HPTRP's progress toward the 6-month MMPA PBR goal.

This action is exempt from review under E.O. 12866.

Dated December 30, 1998.

Andrew A. Rosenberg,

Deputy Assistant Administrator for Fisheries,National Marine Fisheries

Service.

[FR Doc. 99-138 Filed 1-4-99; 8:45 am]

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