[Federal Register Volume 63, Number 204 (Thursday, October 22, 1998)]
[Proposed Rules]
[Pages 56596-56601]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-28269]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 227
[Docket No. 921232-2332; I.D. 092192B]
Endangered and Threatened Species; Proposed Threatened Status for
the Gulf of Maine Population of Harbor Porpoise
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; reopening of comment period.
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SUMMARY: National Marine Fisheries Service (NMFS) is reopening the
comment period on the proposed rule to list the Gulf of Maine/Bay of
Fundy (GOM/BOF) harbor porpoise, (Phocoena phocoena), as a threatened
species under the Endangered Species Act (ESA). Due to the passage of
time since the close of the previous comment period, the availability
of new/additional information and the desire to review the best
scientific information available during the decision-making process,
the comment period is being reopened.
DATES: Comments must be received by November 23, 1998.
ADDRESSES: Comments, requests for copies of this notice or a complete
list of references should be addressed to the Chief, Marine Mammal
Division (PR2), Office of Protected Resources, National Marine
Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910.
FOR FURTHER INFORMATION CONTACT: Margot Bohan, F/PR2, NMFS, (301) 713-
2322, Laurie Allen, Northeast Region, NMFS, (978) 281-9291, or Kathy
Wang, Southeast Region, NMFS, at (727) 570-5312.
SUPPLEMENTARY INFORMATION:
Background
On January 7, 1993, NMFS published a proposed rule (with a 90-day
comment period) to list the GOM population of harbor porpoise as
threatened under the ESA (58 FR 3108). The listing was proposed in
response to an ESA petition submitted by the Sierra Club Legal Defense
Fund, on behalf of the International Wildlife Coalition and 12 other
organizations (notice of receipt of petition to list published on
December 13, 1991 (56 FR 65044). It was also based on NMFS' research
findings at the time, which demonstrated that (a) the rate of bycatch
of harbor porpoise in commercial gillnet fisheries (extending from the
Bay of Fundy, Canada, south throughout the Gulf of Maine) might reduce
this population to the point where it would become threatened
throughout all or a portion of its range and that (b) there were no
regulatory measures in place to reduce this bycatch.
Following publication of the proposed rule, NMFS received several
comments requesting that public hearings be held throughout New
England. In response to these requests, NMFS extended the comment
period on the proposed rule until August 7, 1993 (58 FR 17569, April 5,
1993).
During the extended comment period, NMFS completed analyses of
sighting data from the 1992 porpoise abundance surveys and analyses of
the 1992 observer data used to determine total estimated bycatch in the
GOM gillnet fishery. These data were presented and discussed at a
meeting of the New England Fishery Management Council (NEFMC)
Groundfish Committee, Harbor Porpoise Subgroup, on June 16, 1993. After
the Harbor Porpoise Subgroup meeting, NEFMC forwarded comments to NMFS
requesting a 6-month extension of the final decision-making period on
the proposed rule to
[[Page 56597]]
list harbor porpoise. An extension was believed to be appropriate
because, according to the NEFMC and others present at the June 16
meeting, the data presented by NMFS cast doubt on whether the GOM/BOF
porpoise population was distinct and, thus, was a species under the
ESA.
Under section 4 of the ESA, if there is a substantial disagreement
regarding the sufficiency or accuracy of the available data relevant to
the determination or revision concerned, NMFS may extend the 1-year
period of determination. On November 8, 1993 (58 FR 59230),in
accordance with this provision, the date for the final determination on
the proposal was extended for 6 months to allow for further review of
the bycatch trend, analysis of the 1993 bycatch data prior to final
determination, and further consideration of all data, including the
abundance survey data, relevant to the final determination. NMFS
reopened the comment period for an additional 30 days following
completion of these analyses (59 FR 36158, July 15, 1994) to close on
August 11, 1994.
In the meantime, the New England Harbor Porpoise Working Group
(HPWG) met on July 21, 1994, to discuss the 1992 bycatch data under
consideration with regard to the ESA listing proposal. The HPWG, formed
in 1990, was a group of fishermen, environmentalists, and scientists
whose purpose was to define the extent of the harbor porpoise problem
and to identify solutions to reduce the incidental take of harbor
porpoise in gillnets while minimizing the impacts on the fishery. The
HPWG recommended that the updated bycatch estimates should be more
fully explained so that public review and comment could provide more
meaningful input to NMFS prior to the final listing determination. NMFS
prepared a document in August 1994 that addressed HPWG concerns. Given
that the comment period on the proposed listing was scheduled to close
on August 11, 1994, and that this would not allow enough time for
public review of the NMFS document regarding HPWG concerns, the comment
period on the proposed rule was further extended until September 11,
1994 (59 FR 41270). NMFS had not yet made a final determination when,
in fiscal year 1996, Congress imposed a 1-year moratorium on listing
species under the ESA.
The Agency has not yet issued a final determination. The final
determination will need to consider new population abundance and
bycatch data, NEFMC/NMFS' ongoing fishery management efforts to reduce
harbor porpoise bycatch, and the progress expected through the Marine
Mammal Protection Act (MMPA) Section 118 Take Reduction Team process.
Since publication of the proposed rule, the following information has
become available to supplement our understanding of the species' status
and factors affecting the species.
Stock Definition and Geographic Range Data
Recent analyses involving mitochondrial DNA (Wang, 1996),
organochlorine contaminants (Westgate, 1997), heavy metals (Johnston,
1995), and life history parameters (Read and Hohn, 1995) support the
currently accepted hypothesis that there are four separate populations
in the western North Atlantic: the Gulf of Maine/Bay of Fundy, Gulf of
St. Lawrence, Newfoundland, and Greenland populations.
Abundance Data
Three abundance surveys were conducted during the summers of 1991,
1992, and 1995. The population estimates were 37,500 harbor porpoises
in 1991 (coefficient of variation (CV) = 0.29, 95% confidence interval
(CI) = 26,700-86,400) (Palka, 1995a), 67,500 harbor porpoises in 1992
(CV = .23, 95 percent CI = 32,900-104,600) (Palka, 1996), and 74,000
harbor porpoises in 1995 (CV = 0.20, 95 percent CI = 40,900-109,100)
(Palka, 1996). The inverse variance weighted-average abundance estimate
was 54,300 harbor porpoises (CV = 0.14, 95 percent CI = 41,300-71,400).
Possible reasons for inter-annual differences in abundance and
distribution include experimental error and inter-annual changes in
water temperature and availability of primary prey species (Palka,
1995b).
Population Viability Analysis
Several recent analyses have concluded, using various measures,
that the current level of mortality/bycatch of GOM/BOF harbor porpoise
is too high. Current bycatch/mortality levels exceed the calculated PBR
for the population, which is why the population has been designated as
``strategic'' under the MMPA. Additionally, a recent uncertainty
analysis (Caswell et al., In press) concluded that current rates of
bycatch/mortality are a threat to the GOM/BOF harbor porpoise
population. Neither of these analyses, however, directly calculates the
risk of extinction to the population that is relevant for consideration
of listing under the ESA. To directly examine the potential risk of
extinction of GOM/BOF harbor porpoise, a population viability analysis
(PVA) was recently prepared (Preliminary analyses, PR2 draft report). A
PVA is used to estimate future trends of a population to estimate the
probability of extinction of the population given certain assumptions.
Using 1991, 1992, and 1995 abundance data and 1992-1996 bycatch data,
stochastic population dynamics models of the GOM/BOF harbor porpoise
population were developed to evaluate the probability of persistence of
the population over the foreseeable future (the next 20 to 100 years).
Each of the models predicted a very high probability of extinction
within 100 years under the current levels of mortality/bycatch, whereas
the probability of extinction within 20 years was estimated to be low.
Reducing the current mortality/bycatch level by one-half would
decrease, but not eliminate, the probability of extinction in 100
years, but was estimated to eliminate any probability of extinction
within 20 years. Finally, reducing the current mortality/bycatch to
one-quarter of the current level was estimated to make the risk of
extinction within 100 years very low.
Supplemental Summary of ESA Factors Affecting the Species
Species may be determined to be threatened or endangered due to one
or more of five factors described in section 4(a)(1) of the ESA. These
factors are discussed here, as they apply to the GOM/BOF harbor
porpoise in light of additional/new information that has become
available since the species was originally proposed for listing. This
information is intended to supplement the information on the status of
the species contained in the proposed rule.
A. The Present or Threatened Destruction, Modification, or Curtailment
of Habitat or Range
Although the shoreline bordering the nearshore habitat of this
species along the eastern U.S. coastline is developed in many areas and
is potentially threatened with further destruction or physical
modification, there is no new/additional evidence to indicate that such
modification or destruction has contributed to a decline of this
population or that the range of this species has changed significantly
as a result of habitat loss. This factor was not a basis for the
proposed listing.
B. Overutilization for Commercial, Recreational, Scientific, or
Educational Purposes
One of the principal factors for proposing to list the GOM/BOF
population of harbor porpoise as
[[Page 56598]]
threatened under the ESA was the level of harbor porpoise bycatch in
commercial fisheries in the GOM/Bay of Fundy/Mid-Atlantic. GOM/BOF
harbor porpoise takes have been documented in the U.S. New England
multispecies sink gillnet, Mid-Atlantic coastal gillnet, and Atlantic
pelagic drift gillnet fisheries, and in the Canadian Bay of Fundy sink
gillnet fishery and herring weir fishery. The average annual mortality
estimate from 1992 to 1996 for the above U.S. fisheries is 1,667 (CV =
0.09) harbor porpoise. The average annual mortality estimate in Canada
from 1993 to 1996 is 162 harbor porpoise.
Recent data on incidental takes in U.S. fisheries are available
from observer programs monitoring the New England multispecies sink
gillnet fishery, U.S. Atlantic coastal gillnet fisheries, the Atlantic
pelagic drift gillnet fishery, the North Atlantic bottom trawl fishery,
Canada's Bay of Fundy sink gillnet fishery, and Canada's herring
fishing weirs.
New England multispecies sink gillnet fishery: Most of the harbor
porpoise takes in U.S. fisheries are from the New England multispecies
sink gillnet fishery. In 1990, NMFS started an observer program to
investigate marine mammal takes in this fishery. Between 1990 and 1996,
362 harbor porpoise mortalities related to this fishery were observed.
In 1993, there were approximately 349 full and part-time vessels in the
New England multispecies sink gillnet fishery, which covered the Gulf
of Maine and southern New England. An additional 187 vessels were
reported to occasionally fish in the Gulf of Maine with gillnets for
bait or personal use; however, these vessels were not covered by the
observer program (Walden, 1996) and their fishing effort was not used
in estimating mortality. Observer coverage in terms of trips has been
1, 6, 7, 5, 7, 5, and 4 percent for years 1990 to 1996, respectively.
Annual estimates of harbor porpoise by-catch in the New England
multispecies sink gillnet fishery reflect seasonal distribution of the
species and of fishing effort. By-catch estimates include a correction
factor for the under-recorded number of by-caught animals that occurred
during unobserved hauls on trips with observers on the boat, when
applicable. Need for such a correction became evident following a 1994
re-analysis of data from the sea sampling program indicating that, for
some years, by-catch rates from unobserved hauls were lower than for
observed hauls (Palka, 1994; CUD, 1994; and Bravington and Bisack,
1996). These revised by-catch estimates replace those published earlier
(Smith et al., 1993). These estimates remain negatively biased because
they do not include harbor porpoises that may have fallen out of the
net while still underwater. This bias cannot be quantified at this
time. Estimated annual by-catch (CV in parentheses) from this fishery
during 1990-1996 was 2,900 in 1990 (0.32), 2,000 in 1991 (0.35), 1,200
in 1992 (0.21), 1,400 in 1993 (0.18) (Bravington and Bisack 1996; CUD
1994), 2100 in 1994 (0.18), 1400 in 1995 (0.27) (Bisack, 1997a), and
1200 (0.23) in 1996. Average estimated harbor porpoise mortality and
serious injury in the New England multispecies sink gillnet fishery
during 1992-1996 was 1,460 (0.10).
Differential mortality by age or sex in animals collected before
1994 was not evident in U.S. or Canadian gillnet fisheries; no pattern/
propensity could be discerned based on available data. In addition,
substantial inter-annual variation in the age and sex composition of
the by-catch existed (Read and Hohn, 1995). However, with a larger
sample, from the harbor porpoises that were examined by necropsy or
from tissues received from sea sampling observers (n=171 between 1989
and 1997), the sex ratio is now 0.34 females per male (A. Read, pers.
comm.). Investigations are currently underway to determine spatial-
temporal patterns in the sex ratio.
Two preliminary experiments, using acoustic alarms (pingers)
attached to gillnets, that were conducted in the Gulf of Maine during
1992 and 1993 took 10 and 33 harbor porpoises, respectively. During
fall 1994, a controlled scientific experiment was conducted in the
southern Gulf of Maine where all nets with and without active pingers
were observed (Kraus et al. 1997). In this experiment, 25 harbor
porpoises were taken in 423 strings with non-active pingers (controls),
and two harbor porpoises were taken in 421 strings with active pingers.
In addition, 17 other harbor porpoises were taken in nets with pingers
that were not in the experiment. During 1995 to 1996, experimental
fisheries were conducted where all nets in a designated area used
pingers and only a sample of the nets were observed. During November
through December 1995, the experimental fishery was conducted in the
southern Gulf of Maine (Jeffreys Ledge) region where no harbor
porpoises were observed taken in 225 pingered nets. During April 1996,
three other experimental fisheries occurred. In the Jeffreys Ledge
area, in 88 observed hauls using pingered nets, nine harbor porpoises
were taken. In the Massachusetts Bay region, in 171 observed hauls
using pingered nets, two harbor porpoises were taken. And, in a region
just south of Cape Cod, in 53 observed hauls using pingered nets, no
harbor porpoises were taken. All takes from pingered nets were added
directly to the estimated total bycatch for the rest of that year in
the rest of the fishery. As a result of seeming inconsistency in spring
results compared to fall results, the GOMTRT recommended an additional
scientific experiment in the spring of 1997. Again, there were similar
mean fish catch rates and similar numbers of seals caught between all
treatments; zero harbor porpoise were caught in nets with active
pingers, demonstrating that pingers reduced the incidental catch of
harbor porpoise in sink gillnets during spring (Kraus et al., 1997).
U.S. Mid-Atlantic coastal gillnet fisheries: In July 1993, an
observer program was initiated in the U.S. Atlantic coastal gillnet
fishery by the Northeast Fisheries Science Center (NEFSC) Sea Sampling
program. Twenty trips were observed during 1993. During 1994 and 1995,
221 and 382 trips were observed, respectively. This fishery, which
extends from North Carolina to the New York/Connecticut/Rhode Island
border, is actually a combination of small vessel fisheries that target
a variety of fish species, some of which operate right off the beach.
The number of vessels in this fishery is unknown because records which
are held by both state and Federal agencies have not been centralized
and standardized. Observer coverage, expressed as percent of tons of
fish landed, was 5 percent and 4 percent for 1995 and 1996. During 1995
and 1996, respectively, 6 and 19 harbor porpoises were observed taken.
During 1995 and 1996, observed fishing effort was concentrated off NJ
and scattered between DE and NC from 1 to 50 miles (1500 meters) off
the beach. All documented by-catches during 1995 and 1996 were from
January to April. By-catch estimates were determined by using methods
similar to that used for by-catch estimates in the New England
multispecies gillnet fishery (Bravington and Bisack, 1996; Bisack,
1997a). Using the observed takes, the estimated annual mortality (CV in
parentheses) attributed to this fishery was 103 (0.57) and 311 (0.31)
for 1995 and 1996, respectively. Average annual estimated harbor
porpoise mortality and serious injury from the Mid-Atlantic coastal
gillnet fishery during 1995 and 1996 was 207 (CV=0.27).
Atlantic pelagic drift gillnet fishery: One harbor porpoise was
observed taken from the 1991-1996 Atlantic pelagic
[[Page 56599]]
drift gillnet fishery. Although the estimated total number of hauls in
this fishery increased from 714 in 1989 to 1,144 in 1990, effort was
severely reduced, thereafter, with the introduction of quotas.
Observer coverage, expressed as percent of sets observed was 8
percent in 1989, 6 percent in 1990, 20 percent in 1991, 40 percent in
1992, 42 percent in 1993, 87 percent in 1994, 99 percent in 1995, and
64 percent in 1996. (The decline in observer coverage in 1996 is
attributable to trips made by vessels that were deemed unsafe (size/
condition) for observers.) Estimates of the total by-catch, for each
year from 1989 to 1993, were obtained using the aggregated (pooled
1989-1993) catch rates, by strata (Northridge, 1996). Estimates of
total annual by-catch for 1994, 1995, and 1996 were estimated from the
sum of the observed caught and the product of the average by-catch per
haul and the number of unobserved hauls as recorded in logbooks.
Variances were estimated using bootstrap re-sampling techniques
(Bisack, 1997b). Estimated annual fishery-related mortality (CV in
parentheses) attributable to this fishery was 0.4 in 1992 (1.00), 1.5
in 1993 (0.34), 0 in 1994, and 0 in 1996. The average estimated harbor
porpoise mortality and serious injury in the Atlantic pelagic drift
gillnet fishery during 1992-1996 was 0.4 (0.34) (Waring et al., in
review).
North Atlantic bottom trawl fishery: One harbor porpoise was
observed incidentally captured in the North Atlantic bottom trawl
fishery between 1989 and 1996. The animal was clearly dead prior to
being taken by the trawl because it was severely decomposed and the tow
duration of 3.3 hours was insufficient to allow extensive
decomposition; therefore, there is no estimated by-catch for this
fishery (Waring et al., in review).
Canadian Bay of Fundy sink gillnet fishery: During the 1980s, total
harbor porpoise by-catch in the Canadian Bay of Fundy sink gillnet
fishery was thought to be low, based on casual observations and
discussions with fishermen. The estimated harbor porpoise by-catch in
1986 was 94 to 116, and, in 1989, it was 130 (Trippel et al., 1996).
The Canadian gillnet fishery occurs mostly in the western portion of
the Bay of Fundy during the summer and early autumn months when the
density of harbor porpoises is the highest. Polacheck (1989) reported
there were 19 gillnetters active in 1986; 28 active in 1987; and 21 in
1988.
More recently, an observer program implemented in the summer of
1993 provided a total by-catch estimates of 424 harbor porpoises. No
measure of variability was estimated. The observer program was expanded
in 1994, and the by-catch was estimated to be between 80 and 120 harbor
porpoises where the fishing fleet consisted of 28 vessels (Trippel et
al., 1996). During 1995, due to groundfish quotas being exceeded, the
gillnet fishery was closed during July 21 to August 31, 1995. During
the open fishing period of 1995, 89 percent of the fishing trips were
observed, all in the Swallowtail region. Approximately 30 percent of
these observed trips used pingered nets. The estimated by-catch was 87
harbor porpoises (Trippel et al., 1996). No confidence interval was
able to be computed due to lack of coverage in the Wolves fishing
grounds. During 1996, the Canadian gillnet fishery was closed from
August 20 to September 30, 1996. Preliminary estimates of by-catch from
1996 were in the range of 20 to 50 harbor porpoises. By-catch estimates
are currently not available for the 1997 observer program.
Canadian herring fishing weirs: Harbor porpoise takes have been
observed in Canadian fishing weirs, though not in U.S. fishing weirs.
However, no program has been set up to observe U.S. fishing weirs. In
the Bay of Fundy, weirs are presently operating from May to September
each year. Weirs are found along the southwestern shore of the Bay of
Fundy and scattered along the western Nova Scotia and northern Maine
coasts. There were 180 active weirs in the western Bay of Fundy and 56
active weirs in Maine in 1990 (Read, 1994). It is unknown how many
herring weirs currently exist in U.S. and Canadian waters. Smith et al.
(1983) estimated that approximately 70 harbor porpoises become trapped
annually, an average of 27 die, and the rest are released alive. At
least 43 harbor porpoises were trapped in Bay of Fundy weirs in 1990,
but the number killed is unknown. In 1993, after a cooperative program
between fishermen and Canadian biologistsbegan, over 100 harbor
porpoises were released alive, and an unknown number died (Read, 1994).
C. Disease or Predation
There continues to be no indication, from stranding data or tissue
analyses, that disease has had a measurable impact on GOM/BOF harbor
porpoise. Likewise, there is no new evidence, since the proposed
listing, to indicate that predation has contributed to the decline of
GOM/BOF porpoise. This particular factor was not a basis for the
proposed listing.
D. The Inadequacy of Existing Regulatory Mechanisms
This factor and Factor B formed the basis for the proposed listing.
Discussed here in chronological order of implementation are the
regulatory mechanisms that have gone into effect since publication of
the proposed rule. In addition, those proposed regulations that may go
into effect in the near future through the MMPA Section 118 Take
Reduction Team process are described.
Management Actions Since the Proposed Listing
In 1994, as part of Amendment 5 to the Northeast Multispecies
Fishery Management Plan (NE Multispecies FMP), the NEFMC proposed,under
authority of the Magnuson Fishery Conservation and Management Act (16
U.S.C. 1801 et seq.) a 4-year program to reduce the harbor porpoise
bycatch off New England to 2 percent of the estimated harbor porpoise
population size per year. To achieve this goal, the NEFMC recommended
phasing in time and area closures to sink gillnet gear, such that take
levels would be reduced by 20 percent each year over the 4-year period.
NMFS adopted and implemented NEFMC's first-year closure recommendations
on May 25, 1994 (59 FR 26972).
In the fall of 1994, NMFS authorized and provided support for a
cooperative experiment by New England gillnet fishermen and for
scientists to develop methods to deter harbor porpoise away from
fishing nets. Building on work in previous years, the experiment sought
to evaluate the effectiveness of acoustic deterrent devices or
``pingers'' attached to gillnets to prevent entanglement of harbor
porpoise. The experiment was conducted in the Mid-Coast Closed Area
(closed under Amendment 5 to the NE Multispecies FMP) off the New
Hampshire-Massachusetts border. The result of that experiment showed
that pingers can reduce the bycatch of porpoise substantially during
the fall in this area (Kraus et al., 1995).
Harbor porpoise bycatch rates increased in 1994 despite the new
time-area gillnet fishing closures enacted by NMFS on May 25, 1994. The
increased rate occurred before the fall area closure and occurred in
waters that are adjacent to the closure area, in an area known as
Jeffreys ledge. Based on this information, the NEFMC recommended
expanding both the time and area of the fall closure around Jeffreys
ledge. NMFS adopted a rule to do so on October 30, 1995 (60 FR 57207).
In November 1995, NMFS adopted NEFMC's recommendations to expand
[[Page 56600]]
the closures contained in Framework Adjustment 4 to the NE Multispecies
FMP for sink gillnet gear by implementing Framework Adjustment 14 (60
FR 55207). Framework 14 enlarged and redefined the Mid-Coast Closure
Area in both time and area during 1995 in an effort to achieve the
necessary reductions in harbor porpoise bycatch. The Mid-Coast closure
was closed to fishing with sink gillnets from March 25 through April
25. Framework Adjustment 14 also required closure of an area in
southern New England, south of Cape Cod, from March 1 to 30.
Amendment 7 to the NE Multispecies FMP, implemented in July 1996,
included a revised objective to address new provisions in the MMPA (61
FR 27709). With Amendment 7, NMFS adopted and implemented NEFMC's
recommendations concerning marine mammal gillnet closures as additional
groundfish conservation closures for all types of gear other than
gillnets capable of catching multispecies, as part of an overall
groundfish effort reduction program. In addition, the NEFMC recommended
the use of pingers in several experimental fisheries to evaluate their
use as bycatch reduction tools.
In February 1996, NMFS convened the Gulf of Maine Take Reduction
Team (GOMTRT) to develop a plan to reduce the incidental take of harbor
porpoise in sink gillnets (61 FR 5384). The 1994 amendments to the MMPA
require the preparation and implementation of Take Reduction Plans
(TRPs) for certain marine mammals stocks. The GOMTRT convened with the
understanding that a separate take reduction team would meet to address
the harbor porpoise bycatch problem in the Mid-Atlantic. The GOMTRT
included representatives of the Northeast multispecies sink gillnet
fishery, NMFS, state marine resource management agencies, NEFMC,
environmental organizations, and academic and scientific organizations.
The environmental organizations included the Center for Marine
Conservation and the Humane Society of the United States. The GOMTRT
met five times between February and July 1996 and submitted a consensus
draft TRP to NMFS in August of 1996.
A proposed rule to implement the GOMTRP was published on August 13,
1997 (62 FR 43302). The proposed rule would outline a schedule of time/
area closures and periods during which acoustic deterrents or
``pingers'' would be required for each of the established management
areas.
NMFS convened the Mid-Atlantic Take Reduction Team (MATRT) on
February 25, 1997, to address the interactions between strategic marine
mammal stocks and the Mid-Atlantic coastal gillnet fisheries (62 FR
8428). The MATRT met five times between January 1997 and August 1997
and delivered a draft report to NMFS on August 23, 1997. The MATRT
report consists of the take reduction measures, both regulatory and
non-regulatory, which the MATRT agreed to by consensus, and a
discussion of several non-consensus issues. Because the MATRT did not
reach consensus on the use of a pinger experiment in the Mid-Atlantic,
it was not able to deliver a consensus TRP to NMFS.
NMFS re-convened the GOMTRT in December 1997 to evaluate new
bycatch data that had become available since the GOMTRP was proposed by
NMFS (62 FR 65402). The new bycatch data suggested that the measures
proposed under the August 13 GOMTRP proposed rule would not be
sufficient to achieve potential biological removal (PBR) for harbor
porpoise. NMFS reopened the public comment period on the proposed rule
for 1-month during the deliberations of the GOMTRT. At the December
meeting, the GOMTRT developed new recommendations and 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).
Framework 25 to the NE Multispecies FMP (63 FR 15326, March 31,
1998), was implemented on May 1, 1998. Framework 25 implements gillnet
fishing closures throughout the GOM to conserve cod (Gadus morhua).
Framework 25 implements management measures that include 1-month
sequential closures for each of four Gulf of Maine inshore areas
starting in Massachusetts Bay and extending to Penobscot Bay and for an
offshore area comprising Cashes Ledge; a year-round closure
encompassing parts of Stellwagen Bank, Jeffreys Ledge, and Wildcat
Knoll; and a reduction in the Gulf of Maine cod landing limit.
On September 11, 1998 (63 FR 48670), NMFS proposed a Harbor
Porpoise Take Reduction Plan (HPTRP) to replace the GOMTRP proposed on
August 13, 1997. The GOMTRP is proposed to be replaced due to three
developments. First, new bycatch information became available which
indicates that significant changes to the August 13 GOMTRP are needed
to achieve the PBR level for harbor porpoise. Second, some of the cod
fishery closures under Framework 25 are expected to indirectly provide
harbor porpoise conservation. Third, the MATRT submitted its report to
NMFS which presented new information on the level of harbor porpoise
bycatch in the Mid-Atlantic region. The combination of these actions
led NMFS to integrate the initially separate plans into one
comprehensive TRP and to replace the GOMTRP proposed rule.
The proposed HPTRP would require a wide range of management
measures to reduce the bycatch and mortality of harbor porpoise. In the
Gulf of Maine, the proposed HPTRP included time and area closures and
time/area periods during which pinger use would be required in the
Northeast, Mid-coast, Massachusetts Bay, Cape Cod south and Offshore
Closure Areas. In the Mid-Atlantic area, the proposed HPTRP included
time/ area closures and modifications to gear characteristics. NMFS
expects that the proposed HPTRP will reduce bycatch to the PBR level.
NMFS intends to issue a final rule to implement the HPTRP on or
about December 1, 1998.
E. Other Natural or Manmade Factors Affecting its Continued Existence
Sixty-four harbor porpoise strandings were reported from Maine to
North Carolina between January and June 1993. Fifty of those harbor
porpoise were reported stranded in the U.S. Atlantic region from New
York to North Carolina between February and May. Many of the carcasses
recovered in this area during this time period had cuts and body damage
suggestive of net marking (Haley and Read, 1993). Five out of eight
carcasses and fifteen heads from the strandings that were examined
showed signs of human interactions (net markings on skin and missing
flippers or flukes). Decomposition of the remaining animals prevented
determination of the cause of death. Earlier reports of harbor porpoise
entangled in gillnets in the Chesapeake Bay and along the New Jersey
coast and reports of apparent mutilation of harbor porpoise carcasses
raised concern that the 1993 strandings were related to a coastal net
fishery, such as the American shad coastal gillnet fishery (Haley and
Read, 1993).
Between 1994 and 1996, 107 harbor porpoise carcasses were recovered
from beaches in Maryland, Virginia, and North Carolina. Only juvenile
harbor porpoises were present in this sample. Of the 40 harbor
porpoises for which cause of death could be established, 25 displayed
definitive evidence of entanglement in fishing gear. In four cases, it
was possible to determine that the animal was entangled in monofilament
nets (Cox et al., in press).
Stranding data may be misleading, however, because not all of the
marine
[[Page 56601]]
mammals that die or are seriously injured may wash ashore, nor will all
of those that do wash ashore necessarily show clear signs of the cause
of death. Finally, the level of technical expertise among stranding
network personnel varies widely as does the ability to recognize signs
that indicate the cause of death.
Other potentially human-induced factors that may be affecting this
harbor porpoise population include high levels of contaminants in their
tissues. Concentrations of organochlorine contaminants from 110 GOM/BOF
harbor porpoises were recently measured (Westgate, 1995).
Polychlorinated biphenyl (PCB) levels, the most prominent contaminant,
and dichloro-diphenyl trichloroethane (DDT) levels were both higher in
the Gulf of Maine/Bay of Fundy harbor porpoises than in the Gulf of St.
Lawrence and Newfoundland harbor porpoises, although they are now much
lower than that found in animals 10 years ago, as reported in Gaskin et
al. (1983). Trace metal contaminants were also measured, and it was
found that mean concentrations of copper, zinc, and mercury were
similar to values previously reported for harbor porpoises in other
regions of the world (Johnston, 1995). No obvious pathology has been
noted in more than 300 necropsies of harbor porpoises incidentally
captured in gillnets in the Bay of Fundy (A.J. Read, unpublished data).
Although it is not known whether these contaminants have other effects,
the presence of these contaminants in harbor porpoise tissues does not
appear to pose a serious threat to this population.
Critical Habitat
NMFS has not completed the analysis necessary for the designation
of critical habitat. A decision regarding critical habitat will be made
in a separate rulemaking, as warranted, in accordance with the final
listing determination.
Public Comments Solicited
Due to the availability of new/additional information, the passage
of time since the close of the previous comment period, and the desire
to review the best scientific information available during the
decision-making process, the public comment period for the proposed ESA
listing of GOM/BOF harbor porpoise as a threatened species is being
reopened. All comments will be considered in NMFS' final determination
(see DATES).
Authority: 16 U.S.C. 1531 et seq.
Dated: October 15, 1998.
Rolland A. Schmitten,
Assistant Administrator for Fisheries, National Marine Fisheries
Service.
[FR Doc. 98-28269 Filed 10-16-98; 4:35 pm]
BILLING CODE 3510-22-F
