[Federal Register Volume 63, Number 231 (Wednesday, December 2, 1998)]
[Rules and Regulations]
[Pages 66464-66490]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-31957]
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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
[[Page 66465]]
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
[[Page 66471]]
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
gillnet (as described in Sec. 648.81(f)(2)(ii) of this title). The
Cashes Ledge Closure Area is the area bounded by straight lines
connecting the following points in the order stated:
Cashes Ledge Closure Area
------------------------------------------------------------------------
Point N. Lat. W. Long.
------------------------------------------------------------------------
CL1 42 deg.30' 69 deg.00'
CL2 42 deg.30' 68 deg.30'
CL3 43 deg.00' 68 deg.30'
CL4 43 deg.00' 69 deg.00'
CL5 42 deg.30' 69 deg.00'
------------------------------------------------------------------------
(b) Pingers--(1) Pinger specifications. For the purposes of this
subpart, a pinger is an acoustic deterrent device which, when immersed
in water, broadcasts a 10 kHz (2 kHz) sound at 132 dB
(4 dB) re 1 micropascal at 1 m, lasting 300 milliseconds
(15 milliseconds), and repeating every 4 seconds
(.2 seconds).
(2) Pinger attachment. An operating and functional pinger must be
attached at the end of each string of the gillnets and at the bridle of
every net within a string of nets.
(c) Pinger training and certification. Beginning on January 1,
1999, the operator of a vessel may not fish with, set or haul back sink
gillnets or gillnet gear, or allow such gear to be in closed areas
where pingers are required as specified under paragraph (b) of this
section, unless the operator has satisfactorily completed the pinger
certification training program and possesses on board the vessel a
valid pinger training certificate issued by NMFS. Notice will be given
announcing the times and locations of pinger certification training
programs.
(d) Use of pingers in closed areas--(1) Vessels, subject to the
restrictions and regulations specified in paragraph (a)(2) of this
section, may fish in the Mid-coast Closure Area from September 15
through May 31 of each fishing year, provided that pingers are used in
accordance with the requirements of paragraphs (b) (1) and (2) of this
section.
(2) Vessels, subject to the restrictions and regulations specified
in paragraph (a)(3) of this section, may fish in the Massachusetts Bay
Closure Area from December 1 through the last day of February and from
April 1 through May 31 of each fishing year, provided that pingers are
used in accordance with the requirements of paragraphs (b) (1) and (2)
of this section.
(3) Vessels, subject to the restrictions and regulations specified
in paragraph (a)(4) of this section, may fish in the Cape Cod South
Closure Area from December 1 through the last day of February and from
April 1 through May 31 of each fishing year, provided that pingers are
used in accordance with the requirements of paragraphs (b) (1) and (2)
of this section.
(4) Vessels, subject to the restrictions and regulations specified
in paragraph (a)(5) of this section, may fish in the Offshore Closure
Area from November 1 through May 31 of each fishing year, with the
exception of the Cashes Ledge Closure Area. From February 1 through the
end of February, the area within the Offshore Closure Area defined as
``Cashes Ledge'' is closed to all fishing with sink gillnets. Vessels
subject to the restrictions and regulation specified in paragraph
(a)(5) of this section may fish in the Offshore Closure Area outside
the Cashes Ledge Area from February 1 through the end of February
provided that pingers are used in accordance with the requirements of
paragraphs (b) (1) and (2) of this section.
[[Page 66489]]
(e) Other special measures. The Assistant Administrator may revise
the requirements of this section through notification published in the
Federal Register if:
(1) After plan implementation, NMFS determines that pinger
operating effectiveness in the commercial fishery is inadequate to
reduce bycatch to the PBR level with the current plan.
(2) NMFS determines that the boundary or timing of a closed area is
inappropriate, or that gear modifications (including pingers) are not
reducing bycatch to below the PBR level.
Sec. 229.34 Harbor Porpoise Take Reduction Plan--Mid-Atlantic.
(a)(1) Regulated waters. The regulations in this section apply to
all waters in the Mid-Atlantic bounded on the east by 72 deg.30' W.
longitude and on the south by the North Carolina/South Carolina border
(33 deg.51' N. latitude), except for the areas exempted in paragraph
(a)(2) of this section.
(2) Exempted waters. All waters landward of the first bridge over
any embayment, harbor, or inlet will be exempted. The regulations in
this section do not apply to waters landward of the following lines:
New York
40 deg. 45.70' N 72 deg. 45.15' W TO 40 deg. 45.72' N 72 deg. 45.30'
W (Moriches Bay Inlet)
40 deg. 37.32' N 73 deg. 18.40' W TO 40 deg. 38.00' N 73 deg. 18.56'
W (Fire Island Inlet)
40 deg. 34.40' N 73 deg. 34.55' W TO 40 deg. 35.08' N 73 deg. 35.22'
W (Jones Inlet)
New Jersey
39 deg. 45.90' N 74 deg. 05.90' W TO 39 deg. 45.15' N 74 deg. 06.20'
W (Barnegat Inlet)
39 deg. 30.70' N 74 deg. 16.70' W TO 39 deg. 26.30' N 74 deg. 19.75'
W (Beach Haven to Brigantine Inlet)
38 deg. 56.20' N 74 deg. 51.70' W TO 38 deg. 56.20' N 74 deg. 51.90'
W (Cape May Inlet)
39 deg. 16.70' N 75 deg. 14.60' W TO 39 deg. 11.25' N 75 deg. 23.90'
W (Delaware Bay)
Maryland/Virginia
38 deg. 19.48' N 75 deg. 05.10' W TO 38 deg. 19.35' N 75 deg. 05.25'
W (Ocean City Inlet)
37 deg. 52.' N 75 deg. 24.30' W TO 37 deg. 11.90' N 75 deg. 48.30' W
(Chincoteague to Ship Shoal Inlet)
37 deg. 11.10' N 75 deg. 49.30' W TO 37 deg. 10.65' N 75 deg. 49.60'
W (Little Inlet)
37 deg. 07.00' N 75 deg. 53.75' W TO 37 deg. 05.30' N 75 deg. 56.' W
(Smith Island Inlet)
North Carolina
All marine and tidal waters landward of the 72 COLREGS
demarcation line (International Regulations for Preventing
Collisions at Sea, 1972), as depicted or noted on nautical charts
published by NOAA (Coast Charts 1:80,000 scale), and as described in
33 CFR part 80.
(b) Closures--(1) New Jersey waters. From April 1 through April 20,
it is prohibited to fish with, set, haul back, possess on board a
vessel unless stowed, or fail to remove any large mesh gillnet gear
from the waters off New Jersey.
(2) Mudhole. From February 15 through March 15, it is prohibited to
fish with, set, haul back, possess on board a vessel unless stowed, or
fail to remove any large mesh or small mesh gillnet gear from the
waters off New Jersey known as the Mudhole.
(3) Southern Mid-Atlantic waters. From February 15 through March
15, it is prohibited to fish with, set, haul back, possess on board a
vessel unless stowed, or fail to remove any large mesh gillnet gear
from the southern Mid-Atlantic waters.
(c) Gear requirements and limitations--(1) Waters off New Jersey--
large mesh gear requirements and limitations. From January 1 through
April 30 of each year, no person may fish with, set, haul back, possess
on board a vessel unless stowed, or fail to remove any large mesh
gillnet gear in waters off New Jersey, unless the gear complies with
the specified gear characteristics. During this period, no person who
owns or operates the vessel may allow the vessel to enter or remain in
waters off New Jersey with large mesh gillnet gear on board, unless the
gear complies with the specified gear characteristics or unless the
gear is stowed. In order to comply with these specified gear
characteristics, the gear must have all the following characteristics:
(i) Floatline length. The floatline is no longer than 4,800 ft
(1,463.0 m), and, if the gear is used in the Mudhole, the floatline is
no longer than 3,900 ft (1,188.7 m).
(ii) Twine size. The twine is at least 0.04 inches (0.090 cm) in
diameter.
(iii) Size of nets. Individual nets or net panels are not more than
300 ft (91.44 m, or 50 fathoms), in length.
(iv) Number of nets. The total number of individual nets or net
panels for a vessel, including all nets on board the vessel, hauled by
the vessel or deployed by the vessel, does not exceed 80.
(v) Tie-down system. The gillnet is equipped with tie-downs spaced
not more than 15 ft (4.6 m) apart along the floatline, and each tie-
down is not more than 48 inches (18.90 cm) in length from the point
where it connects to the floatline to the point where it connects to
the lead line.
(vi) Tagging requirements. Beginning January 1, 2000, the gillnet
is equipped with one tag per net, with one tag secured to each bridle
of every net within a string of nets.
(2) Waters off New Jersey--small mesh gillnet gear requirements and
limitations. From January 1 through April 30 of each year, no person
may fish with, set, haul back, possess on board a vessel unless stowed,
or fail to remove any small mesh gillnet gear in waters off New Jersey,
unless the gear complies with the specified gear characteristics.
During this period, no person who owns or operates the vessel may allow
the vessel to enter or remain in waters off New Jersey with small mesh
gillnet gear on board, unless the gear complies with the specified gear
characteristics or unless the gear is stowed. In order to comply with
these specified gear characteristics, the gear must have all the
following characteristics:
(i) Floatline length. The floatline is less than 3,000 ft (914.4
m).
(ii) Twine size. The twine is at least 0.031 inches (0.081 cm) in
diameter.
(iii) Size of nets. Individual nets or net panels are not more than
300 ft (91.4 m or 50 fathoms) in length.
(iv) Number of nets. The total number of individual nets or net
panels for a vessel, including all nets on board the vessel, hauled by
the vessel or deployed by the vessel, does not exceed 45.
(v) Tie-down system. Tie-downs are prohibited.
(vi) Tagging requirements. Beginning January 1, 2000, the gillnet
is equipped with one tag per net, with one tag secured to each bridle
of every net within a string of nets.
(3) Southern Mid-Atlantic waters--large mesh gear requirements and
limitations. From February 1 through April 30 of each year, no person
may fish with, set, haul back, possess on board a vessel unless stowed,
or fail to remove any large mesh gillnet gear in Southern Mid-Atlantic
waters, unless the gear complies with the specified gear
characteristics. During this period, no person who owns or operates the
vessel may allow the vessel to enter or remain in Southern Mid-Atlantic
waters with large mesh sink gillnet gear on board, unless the gear
complies with the specified gear characteristics or unless the gear is
stowed. In order to comply with these specified gear characteristics,
the gear must have all the following characteristics:
(i) Floatline length. The floatline is no longer than 3,900 ft
(1,188.7 m).
(ii) Twine size. The twine is at least 0.04 inches (0.090 cm) in
diameter.
(iii) Size of nets. Individual nets or net panels are not more than
300 ft (91.4 m or 50 fathoms) in length.
(iv) Number of nets. The total number of individual nets or net
panels for a vessel, including all nets on board the vessel, hauled by
the vessel or deployed by the vessel, does not exceed 80.
[[Page 66490]]
(v) Tie-down system. The gillnet is equipped with tie-downs spaced
not more than 15 ft (4.6 m) apart along the floatline, and each tie-
down is not more than 48 inches (18.90 cm) in length from the point
where it connects to the floatline to the point where it connects to
the lead line.
(vi) Tagging requirements. Beginning January 1, 2000, the gillnet
is equipped with one tag per net, with one tag secured to each bridle
of every net within a string of nets.
(4) Southern Mid-Atlantic waters--small mesh gillnet gear
requirements and limitations. From February 1 through April 30 of each
year, no person may fish with, set, haul back, possess on board a
vessel unless stowed, or fail to remove any small mesh gillnet gear in
waters off New Jersey, unless the gear complies with the specified gear
characteristics. During this period, no person who owns or operates the
vessel may allow the vessel to enter or remain in Southern Mid-Atlantic
waters with small mesh gillnet gear on board, unless the gear complies
with the specified gear characteristics or unless the gear is stowed.
In order to comply with these specified gear characteristics, the gear
must have all the following characteristics:
(i) Floatline length. The floatline is no longer than 2118 ft
(645.6 m).
(ii) Twine size. The twine is at least 0.03 inches (0.080 cm) in
diameter.
(iii) Size of nets. Individual nets or net panels are not more than
300 ft (91.4 m or 50 fathoms) in length.
(iv) Number of nets. The total number of individual nets or net
panels for a vessel, including all nets on board the vessel, hauled by
the vessel or deployed by the vessel, does not exceed 45.
(v) Tie-down system. Tie-downs are prohibited.
(vi) Tagging requirements. Beginning January 1, 2000, the gillnet
is equipped with one tag per net, with one tag secured to each bridle
of every net within a string of nets.
(d) Other special measures. The Assistant Administrator may revise
the requirements of this section through notification published in the
Federal Register if:
(1) After plan implementation, NMFS determines that pinger
operating effectiveness in the commercial fishery is inadequate to
reduce bycatch to the PBR level with the current plan.
(2) NMFS determines that the boundary or timing of a closed area is
inappropriate, or that gear modifications (including pingers) are not
reducing bycatch to below the PBR level.
[FR Doc. 98-31957 Filed 11-25-98; 4:21 pm]
BILLING CODE 3510-22-P
