[Federal Register Volume 63, Number 176 (Friday, September 11, 1998)]
[Proposed Rules]
[Pages 48670-48690]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-24306]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 229
[Docket No. 970129015-8157-07; I.D. 042597B]
RIN 0648-AI84
Taking of Marine Mammals Incidental to Commercial Fishing
Operations; Harbor Porpoise Take Reduction Plan Regulations
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; notice of availability of proposed take
reduction plan.
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SUMMARY: NMFS announces the availability of a proposed harbor porpoise
take reduction plan (HPTRP) to reduce the bycatch of harbor porpoise
(Phocoena phocoena) in gillnet fisheries throughout the stock's U.S.
range. NMFS also proposes regulations to implement the HPTRP. The
proposed plan, including a discussion of the recommendations of the
Gulf of Maine Take Reduction Team (GOMTRT) and the Mid-Atlantic Take
Reduction Team (MATRT), is contained in the HPTRP/Environmental
Assessment/Initial Regulatory Flexibility Analysis (HPTRP/EA/IRFA),
available upon request (see addresses below). Changes to the
recommendations of the GOMTRT and the MATRT are described within this
document. This action replaces the proposed rule issued on August 13,
1997 (62 FR 43302).
The potential biological removal (PBR) level for Gulf of Maine
harbor porpoise throughout their range is 483 animals (62 FR 3005,
January 21, 1997). The incidental bycatch of harbor porpoise in the
Gulf of Maine (GOM) and Mid-Atlantic gillnet fisheries exceeds the PBR
level. The proposed HPTRP would use a wide range of management measures
to reduce the bycatch and mortality of harbor porpoise. In the GOM, the
HPTRP proposes time and area closures and time/area periods during
which pinger use would be required in the Northeast, Mid-coast,
Massachusetts Bay, Cape Cod South and Offshore Closure Areas. In the
Mid-Atlantic area, the HPTRP proposes time/area closures and
modifications to gear characteristics, including floatline length,
twine size, tie downs, and number of nets, in the large mesh and small
mesh fisheries. NMFS seeks comment on the proposed HPTRP/EA/IRFA, and
the proposed regulations to implement the plan.
DATES: Comments due October 13, 1998.
ADDRESSES: Copies of the draft plan prepared by the GOMTRT, the final
report from the MATRT and the HPTRP/EA/IRFA may be obtained from Donna
Wieting, Office of Protected Resources, National Marine Fisheries
Service, 1315 East-West Highway, Silver Spring, MD 20910-3226.
FOR FURTHER INFORMATION CONTACT: Donna Wieting, NMFS, 301-713-2322 or
Laurie Allen, NMFS, Northeast Region, 978-281-9291.
SUPPLEMENTARY INFORMATION: The 1994 amendments to the Marine Mammal
Protection Act (MMPA) require the preparation and implementation of
TRPs for strategic marine mammal stocks that interact with Category I
or II fisheries. A Category I fishery is a fishery that has frequent
incidental mortality and serious injury of marine mammals. A Category
II fishery is a fishery that has occasional incidental mortality and
serious injury of marine mammals. A Category III fishery is a fishery
that has a remote likelihood of causing incidental mortality or serious
injury of marine mammals.
This proposed rule addresses preparation and implementation of a
take reduction plan (TRP) for harbor porpoise, a strategic marine
mammal stock, that interacts with the NE multispecies gillnet fishery
and with the Mid-Atlantic coastal gillnet fisheries. The 1996 Stock
Assessment Report (SAR) (Waring et al., 1997) states that harbor
porpoise bycatch has been observed by the NMFS Sea Sampling program in
the following fisheries: (1) the Northeast (NE) multispecies sink
gillnet, (2) the mid-Atlantic coastal gillnet, (3) the Atlantic drift
gillnet, (4) the North Atlantic bottom trawl fisheries, and (5) the
Canadian Bay of Fundy sink gillnet fishery. The fisheries of greatest
concern, and the subject of this TRP, are the NE multispecies sink
gillnet fishery (Category I), and the Mid-Atlantic coastal gillnet
fishery (Category II).
The Atlantic drift gillnet fishery, a Category I fishery, is being
addressed by the Atlantic Offshore Cetacean Take Reduction Team
(AOCTRT). The North Atlantic bottom trawl fishery is a Category III
fishery and is not the subject of take reduction efforts at this time.
The Canadian sink gillnet fishery
[[Page 48671]]
takes approximately 100 harbor porpoise per year. This proposed rule is
expected to reduce harbor porpoise bycatch below the PBR level,
including the 100 takes by the Canadian fishery.
The NE multispecies sink gillnet fishery comprises the majority of
the overall multispecies gillnet activity in New England. Harbor
porpoise may, however, interact with other gillnet fisheries capable of
capturing multispecies. Additionally, new non-sink gillnet fisheries
could be introduced into harbor porpoise conservation areas. Therefore,
this proposed rule would apply to all gillnets in New England capable
of catching NE multispecies.
Under the 1994 Amendments to the MMPA, the short-term goal of a TRP
is to reduce, within 6 months of its implementation, the mortality and
serious injury of strategic stock(s) incidentally taken in the course
of commercial fishing operations to less than the PBR level established
for those stock(s). The PBR level is the maximum number of animals, not
including natural mortalities, that may be annually removed from a
marine mammal stock without compromising the ability of that stock to
reach or maintain its optimum population level. The goal of this TRP is
to bring the combined incidental take of the GOM harbor porpoise stock
below the PBR level for all U.S. fisheries that interact with that
stock.
NMFS convened the GOMTRT in February 1996. The goal of the GOMTRT
was to develop a consensus draft TRP to reduce the incidental take of
harbor porpoise in sink gillnets in the GOM to the PBR level for that
stock within 6 months of the TRP's implementation. NMFS limited the
geographic scope of the 1996 team to focus only on bycatch off New
England's coast (Maine to Rhode Island). The reason for this approach
was because the proportion of incidental take in the NE multispecies
sink gillnet fishery constituted the majority of the total fishery-
related mortality in the United States and because of uncertainty about
the extent of fisheries interactions south of New England. Data on the
bycatch of harbor porpoise in the Mid-Atlantic were not available until
1996 due to low observer effort prior to 1995 and the lag in
availability of appropriate effort data to estimate bycatch. The GOMTRT
convened with the understanding that a separate take reduction team
would be convened to address the harbor porpoise bycatch problem in the
Mid-Atlantic (discussed here).
The GOMTRT included representatives of the NE multispecies sink
gillnet fishery, NMFS, state marine resource management agencies, the
New England Fishery Management Council (NEFMC), environmental
organizations, and academic and scientific organizations. The GOMTRT
met five times between February and July 1996 and submitted a consensus
draft TRP (the GOMTRP) to NMFS in August 1996.
Soon after the GOMTRT submitted a draft TRP, the NEFMC enacted
Framework Adjustment 19 (61 FR 55774, October 29, 1996) to the NE
Multispecies Fishery Management Plan (FMP) which changed the time and
area of the NE Multispecies FMP Mid-Coast Closure Area within the GOM
and established an exemption to allow sink gillnet vessels to fish the
reopened area when utilizing pingers on their nets. Based on this
action, NMFS modified the draft TRP submitted by the GOMTRT to be
consistent with Framework Adjustment 19 and, on August 13, 1997,
published a proposed rule to implement a TRP for harbor porpoise in the
GOM (GOMTRP) (62 FR 43302, August 13, 1997).
NMFS convened the MATRT in February 1997 to address the incidental
bycatch of harbor porpoise in Mid-Atlantic gillnet fisheries (from New
York through North Carolina). The MATRT included representatives of the
Mid-Atlantic coastal gillnet fisheries, NMFS, state marine resource
management agencies, the Mid-Atlantic Fishery Management Council, the
NEFMC, the Atlantic States Marine Fisheries Commission (ASMFC),
environmental organizations, and academic and scientific organizations.
The MATRT did not reach consensus on all issues discussed. The MATRT
submitted a report to NMFS on August 25, 1997 which included both
consensus and non-consensus recommendations. NMFS has not previously
published a proposed rule to implement a Mid-Atlantic Take Reduction
Plan (MATRP).
Harbor Porpoise Take Reduction Plan
This proposed rule would implement the HPTRP for the GOM and Mid-
Atlantic geographic areas. This HPTRP is based in large part on
recommendations in the draft GOMTRP and the MATRT Report. This proposed
rule replaces the previous proposed rule published to implement the
GOMTRP (62 FR 43302, August 13, 1997). The GOMTRP proposed rule is
being replaced because three developments have occurred since the
publication of that rule. First, new bycatch information became
available which indicated that significant changes were needed in the
GOMTRP to achieve the PBR level for harbor porpoise. NMFS reconvened
the GOMTRT on December 16 and 17, 1997, to discuss this new information
and to provide additional comments to NMFS. Secondly, Framework 25 to
the NE Multispecies FMP, published on March 31, 1998 (63 FR 15326), was
implemented on May 1, 1998; this framework implements gillnet fishing
closures throughout the GOM to conserve cod (Gadus morhua). Some of
these closures may indirectly provide harbor porpoise conservation.
Thirdly, the MATRT submitted its report to NMFS which presented new
information on the level of harbor porpoise bycatch in the mid-Atlantic
region.
The combination of these actions led NMFS to integrate the
initially separate plans into one comprehensive TRP. Since the revised
plan is substantially different from the 1997 GOMTRP, NMFS is replacing
the 1997 proposed rule with this proposed rule.
Stock Assessment
The range of the harbor porpoise extends from the Bay of Fundy,
Canada, to the southern border of North Carolina. The cumulative levels
of incidental mortality and serious injury of harbor porpoise occurring
in the New England, Mid-Atlantic, and Canadian gillnet fisheries exceed
the PBR level for this stock.
The PBR level for harbor porpoise is 483 animals per year. This is
a strategic stock because average annual fishery-related mortality and
serious injury exceeds the PBR level. There are insufficient data to
determine population trends for this species. NMFS proposed listing the
GOM harbor porpoise as threatened under the Endangered Species Act (58
FR 3108, January 7, 1993), but no final action has been taken on that
proposal.
Incidental Takes by Fishery
The estimated total annual average mortality from New England and
Mid-Atlantic gillnet fisheries is 2,040. This estimate is based on a 5-
year (1990-1995) average mortality estimate of 1,833 (Waring et al.,
1997) for the GOM and based on preliminary analysis of 1995 and 1996
data from the Mid-Atlantic of 207 animals (Palka, unpublished data).
The NE multispecies sink gillnet fishery sets nets on the ocean
bottom, where they are fixed by anchors. These nets are primarily used
to catch groundfish (cod, haddock, hake, pollock and flounders),
monkfish, and dogfish.
[[Page 48672]]
The fishery primarily consists of small vessels, (about 30-50 feet (10-
17 meters) in length), that operate from numerous ports throughout New
England. A vessel may fish between 40 and 200 nets, depending on target
species. Nets are usually approximately 300 feet (92 meters) long and
are tied together in strings of one to 30 nets.
The Mid-Atlantic coastal gillnet fishery comprises several gillnet
fisheries, which operate from New York to North Carolina. The mesh
sizes range from 2.5 to 12 inches (6.35 to 30.48 cm), with the smallest
mesh sizes used to capture small fish, such as spot and shad. Medium
mesh sizes are used to capture weakfish, striped bass, spiny dogfish,
and bluefish. The largest mesh sizes are used for Atlantic sturgeon and
monkfish. Observer coverage of the Mid-Atlantic coastal gillnet fishery
was initiated by the Northeast Fisheries Science Center (NEFSC) Sea
Sampling Program in July 1993.
HPTRP: Gulf of Maine Component
The GOM portion of the HPTRP would govern and pertain to all
fishing with sink gillnets and other gillnets capable of catching
multispecies, in the inshore and offshore waters of New England, from
Maine through Rhode Island, east of 72 deg.30' W. longitude.
NMFS proposes a schedule of periods and areas which would be closed
to multispecies gillnet fishing unless pingers are employed in the
prescribed manner (Table 1). Some areas are total fishery closures
where no fishing is allowed. In all closed areas, where pingers are
required, vessel operators must complete training in pinger use and
have a valid pinger training certificate on board the vessel.
Table 1.--Gulf of Maine Time/Area Closures to Gillnet Fishing and
Periods During Which Pinger Use Would Be Required
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Northeast Area:
August 15-September 13--Closed.
Mid-Coast Area:
September 15-May 31--Closed, gillnet with pingers allowed.
Massachusetts Bay Area:
February 1-28/29--Closed, gillnet with pingers allowed.
March 1-31--Closed
April 1-May 31--Closed, gillnet with pingers allowed.
Cape Cod South Area:
September 15-February 28/29--Closed, gillnet with pingers allowed.
March 1-31--Closed
April 1-30--Closed, gillnet with pingers allowed.
Offshore Area:
September 15-May 31--Closed, gillnet with pingers allowed.
Cashes Ledge Area:
February 1-28/29--Closed
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Discussion of the Gulf of Maine Component
NMFS determined that the August 13, 1997, proposed rule (62 FR
43302) would not adequately reduce harbor porpoise bycatch in the GOM.
The results of the new GOM bycatch estimates presented at the December
16-17, 1997 GOMTRT meeting suggest that: (1) bycatch reduction is being
achieved in the Mid-Coast and Northern Maine closure areas; (2) bycatch
in 1997 was greater than in 1996 in the Massachusetts Bay and the Cape
Cod South areas; (3) bycatch offshore was noted in 1996 and 1997;
however, it is difficult to compare these data with years prior to
1996, since the offshore fishery had very little observer coverage in
those years; (4) although bycatch reduction is occurring in specific
areas and times, the PBR level is not being achieved overall; and (5)
the August 13, 1997, proposed rule to implement the GOMTRP is unlikely
to achieve the PBR level. Additionally, Framework 25 to the NE
Multispecies FMP has significantly changed the management measures that
are implemented under the Magnuson-Stevens Fishery Conservation and
Management Act (Magnuson-Stevens Act) to protect GOM cod. Existing
closures for marine mammals (which were a key part of the GOMTRP) and
Framework 25 closure periods partially overlap and result in a very
complex system of closures (see Figure 1).
BILLING CODE 3510-22-P
[[Page 48673]]
[GRAPHIC] [TIFF OMITTED] TP11SE98.029
BILLING CODE 3510-22-C
[[Page 48674]]
Figure 1 illustrates the change the ``rolling closure'' for cod
conservation makes to current marine mammal closure boundaries and
times in the GOM. The entire old Massachusetts Bay and Mid-Coast
Closure Areas would be divided into four approximately even areas.
The Massachusetts Bay Closure Area would not change on the northern
boundary but would be larger to the east; it would still be closed
March 1-31. The Mid-Coast Closure Area would then be closed completely
in relatively equal sections, Inshore Closure Area II (April), Inshore
Closure Area III (May), and Inshore Closure Area IV (June). Previously,
the entire shaded area labeled ``Mid-Coast'' was closed May 10-30 for
NE Multispecies FMP concerns and March 25-April 25 for harbor porpoise
conservation. Under this proposed rule, the boundary of the Mid-Coast
Closure Area would not change, with the exception of a small area just
east of Inshore Closure Area III, but pingers would be allowed.
The Inshore Area closures provide some protection for harbor
porpoise in Areas II and III; however, the closure in Area IV is
relatively insignificant for reducing bycatch of harbor porpoise due to
the timing of the measures. A year round closure of parts of Jeffreys
Ledge and Stellwagen Bank (Western GOM area closure) has been added by
Framework 25 to the NE Multispecies FMP and it also provides protection
for harbor porpoise. The northeast closure area remains unchanged for
either purpose.
Overall, NMFS expects that these proposed HPTRP implementing
regulations would reduce harbor porpoise bycatch from the current level
of approximately 1,833 animals per year in the Gulf of Maine area to
309 animals per year.
HPTRP: Mid-Atlantic Component
The Mid-Atlantic portion of the HPTRP would govern and pertain to
all fishing with gillnets in the inshore and offshore waters of the
Mid-Atlantic west of 72 deg.30' W. longitude to the Mid-Atlantic
shoreline from NY to NC, with exemptions inshore of the first bridge
over embayments and other similar areas as specified by the proposed
regulations.
Tables 2 and 3 set forth management measures for large mesh and
small mesh gillnet fisheries in the Mid-Atlantic. Separate gear
requirements are specified for large mesh (7 inches (17.78cm) to 18
inches (45.72cm)) and small mesh gear (less than 7 inches (17.78 cm)).
There remain some areas that are total closures where no fishing is
allowed at all. The effective period for the Mid-Atlantic Component of
the HPTRP is:
New Jersey waters, and U.S. waters off New Jersey out to
72 deg.30' W. longitude offshore--January 1 through April 30
Southern Mid-Atlantic (MD, DE, VA, NC) and U.S. waters off
the southern Mid-Atlantic out to 72 deg.30' W. longitude offshore--
February 1 through April 30.
Table 2.--Management Measures for the Large Mesh Gillnet Fishery \1\ in
the Mid-Atlantic
------------------------------------------------------------------------
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Floatline Length:
New Jersey Mudhole............... Less than or equal to 3,900 ft
(1188.7 m).
New Jersey Waters (excluding Less than or equal to 4,800 ft
Mudhole). (1463.0 m).
Southern Mid-Atlantic............ Less than or equal to 3,900 feet
(1188.7 m).
Twine Size:
All Mid-Atlantic Waters.......... Greater than or equal to .90 mm
(.035 inches).
Tie Downs:
All Mid-Atlantic Waters.......... Required.
Net Cap:
All Mid-Atlantic Waters.......... 80 nets \2\ (nets are 300 ft
(91.4 m) long).
Time/Area Closures:
New Jersey waters out to 72 Closed from April 1-April 20.
deg.30' W. longitude offshore
(including the Mudhole).
New Jersey Mudhole............... Closed from February 15-March 15.
Southern Mid-Atlantic waters (MD, Closed from February 15-March 15.
DE, VA, NC) out to 72 deg.30' W.
longitude offshore.
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\1\ Includes gillnet with mesh size of 7 inches (17.78cm) to 18 inches
(45.72cm).
\2\ Requires all nets to be tagged by January 01, 2000.
Table 3.--Management Measures for the Small Mesh Gillnet Fishery \3\ in
the Mid-Atlantic
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Floatline Length:
New Jersey waters--less than or equal to 3,000 feet (914.4 m)
Southern Mid-Atlantic waters--less than or equal to 2,118 feet
(645.6 m).
Twine Size (applies only to mesh sizes greater than 4 inches (10.2 cm)):
greater than or equal to .81 mm (.091 inches) in all Mid-Atlantic
waters.
Net Cap: 45 nets \4\ (nets are 300 feet (91.4 m) long) in all Mid-
Atlantic waters.
Time/Area Closures: New Jersey Mudhole Closed from February 15--March
15.
------------------------------------------------------------------------
\3\ Includes gillnet with mesh size of less than 7 inches (17.78cm).
\4\ Requires all nets to be tagged by January 01, 2000.
The New Jersey Mudhole is defined as an area bounded as follows:
from the point 40 deg.30' N. latitude where it intersects with the
shoreline of New Jersey east to its intersection with 73 deg.20' W.
longitude, then south to its intersection with 40 deg.05' N. latitude,
then west to its intersection with the shoreline of New Jersey.
Discussion of the Mid-Atlantic Component
The Mid-Atlantic portion of the plan divides gillnet activity into
large and small mesh categories and requires gear modifications for
those mesh categories based on observer data. Observer data showed
patterns or trends where reduced bycatch might be achieved if certain
combinations of gear characteristics were used. The gear
characteristics that demonstrated the most potential for bycatch
reduction in the large mesh and small mesh fisheries were floatline
length, twine size, tie downs and soak time. There are no proposed
measures to reduce soak time because this measure is very difficult to
[[Page 48675]]
enforce. Since NMFS believes that the combination of gear modifications
and time/area closures will achieve the PBR goal, soak time is not
proposed as a management measure.
None of the gear characteristics alone were strongly correlated
with reduced bycatch, therefore a number of measures were combined to
achieve the bycatch reduction goal. Since these measures would be
ineffective if effort increases, a net cap or net limit is proposed to
keep effort at current levels.
Additionally, the proposed rule sets forth a schedule of fishery
closures in areas and at times most closely linked with high harbor
porpoise bycatch based on the observer data. NMFS agreed with the MATRT
that closures were essential to achieving the PBR level given that the
correlation between gear modifications and specific levels of reduced
bycatch is not clear.
The small mesh and large mesh categories are specifically designed
to exclude both the large mesh pelagic fishery for swordfish, tuna, and
shark (greater than 18 inches (45.7 cm)) and, for some gear
modifications, the very small mesh gear that is commonly used close to
shore (less than 4 inches (10.16 cm)). The gear modifications include
twine size specifications, net caps, floatline length limits, tie-down
specifications and net panel length limits. The large mesh pelagic
drift gillnet fishery (Category I fishery) is not addressed in this
rule because it is being addressed by the AOCTRT. The inshore fishery,
which would include very small mesh, is not subject to this rule
because observer data is inadequate at this time to determine the
expected take in the inshore fishery. The proposed rule would
completely close the large mesh gillnet fishery for three periods and
the small mesh gillnet fishery for one period. The proposed TRP would
prohibit tie-downs in the small mesh gillnet category to prevent
fishers from effectively fishing for certain species, e.g., monkfish,
using smaller mesh during the closed period for large mesh. This
measure is expected to avoid the potential for effort shifts.
This component of the plan differs from the GOM component because
rather than using a series of time and areas closed to fishing and
times and areas where acoustic deterrents are required, the Mid-
Atlantic portion requires a suite of gear modifications. The
distinction in management measures between the two regions is
appropriate in this case for a number of reasons. The regions differ
markedly in stages of development with regard to harbor porpoise
conservation. Whereas the GOMTRT has been meeting and proposing various
bycatch reduction measures for the GOM for many years, the MATRT has
only met in the last two years. The GOMTRT proposed a number of
measures initially which did not include mandated pinger use prior to
the current recommendation. Based on new information, those measures
were determined to be unsuccessful in achieving the PBR level. With
regard to the use of pingers as an appropriate management measure in
the GOM, no data exist to support other options, except for total
closure to sink gillnet fishing. In the Mid-Atlantic, data indicated
other options in the form of gear modifications that might be
successful in reducing bycatch without some of the uncertainties
surrounding widespread pinger use.
For the Mid-Atlantic area, the HPTRP would institute the first set
of management measures to reduce harbor porpoise bycatch in that
region. Since a number of options are available which may be
successful, NMFS would implement non-acoustic measures before proposing
pinger testing. Additionally, the MATRT did not fully support a pinger
experiment in the Mid-Atlantic area at this time. The gear
modifications and time/area closures recommended by the MATRT and
proposed in this proposed rule are expected to be sufficient to reduce
the incidental mortality of harbor porpoise from approximately 207
animals per year to less than 50 animals per year in the Mid-Atlantic
area. Non-Regulatory Components of the HPTRP
In addition to recommending regulatory measures, both the GOMTRT
and the MATRT recommended certain non-regulatory measures. The GOMTRT
provided specific recommendations at the December 1997 meeting upon
which its acceptance of more widespread pinger use and closures was
contingent. These recommendations included the need for: (1) an
assessment of pingers on habituation and displacement of harbor
porpoise, and long term ecosystem impacts, (2) a census of the gillnet
fleet, (3) investigation of funding for pinger technology development
and purchase, (4) development and implementation of a training and
certification program for fishers that will use pingers, and (5)
additional analytical support for NMFS to ensure the progress of the
plan's effectiveness can be adequately monitored. These components are
part of the proposed HPTRP. A specific discussion of these
recommendations and NMFS'' response to the recommendations are
contained in the HPTRP/EA/IRFA. The following summarizes NMFS efforts
to address the concerns raised by the GOMTRT:
(1) A study to evaluate the habituation and displacement question
is already funded and underway. As part of the HPTRP, NMFS is
developing a research plan to assess long-term ecosystem impacts from
widespread use of pingers.
(2) As part of monitoring strategy for the HPTRP, NMFS is working
with the ASMFC on the Atlantic Coastal Cooperative Statistics Program
(ACCSP) in order to provide managers with more timely bycatch and
fisheries information on the Atlantic Coast. Meanwhile, NMFS is
continuing to look for ways to improve data collection efforts within
the current system.
(3) NMFS is investigating options for providing support to fishers
for pinger technology.
(4) The proposed rule would require all fishers who wish to use
pingers in the closed areas to attend training and obtain
certification. This certification program would not only provide
training in technical aspects of pinger use, but also provide
information on the bycatch problem and the need for fishers to use
pinger technology properly to meet bycatch reduction objectives. NMFS
is investigating the best method of delivering this program to fishers.
(5) NMFS will consider the GOMTRT's recommendation for analytical
resources during normal funding and staffing allocation discussions in
light of other agency responsibilities.
The MATRT made several recommendations that were considered
important in achieving the long-term goals for bycatch reduction in the
Mid-Atlantic. The non-regulatory measures recommended by the team
primarily focus on NMFS' long-term research, monitoring, and management
objectives.
The MATRT recommended that NMFS obtain a characterization of winter
coastal gillnet and small boat fisheries and to designate observer
coverage accordingly.
NMFS has proposed to expand its observer coverage of the Mid-
Atlantic fisheries in 1998 to obtain a better characterization of other
coastal fisheries to ensure observer coverage is representative of
actual fishing effort.
The MATRT recommended that an outreach program be conducted to
inform fishers of both new and existing regulations regarding
incidental takes in their fisheries. The MATRT believes that these
educational efforts should, if possible, be specifically directed
toward those fishers using the fishing gear and/or practices that have
higher levels of harbor porpoise bycatch.
NMFS agrees. The HPTRP provides for voluntary skipper education
[[Page 48676]]
workshops. Additionally, NMFS plans to prepare educational materials
which will describe the take reduction process and explain the key
components of the MATRP and its accompanying regulations. NMFS will
ensure that these educational materials are widely distributed
throughout the fishery.
The MATRT recommended several measures to enhance the effectiveness
of NMFS' observer program, including expanding marine mammal observer
coverage to include all areas covered by the MATRT, increased observer
coverage in small mesh fisheries and better coordination between the
activities of the stranding and observer programs to allow shifts of
observer coverage in response to stranding information.
NMFS is planning to expand observer coverage to ensure that all
components of the fishery are observed. Due to limited resources, NMFS
will not be able to increase observer coverage in areas of the fishery
that are already being observed at some level. Additionally, NMFS is
expanding stranding observer coverage to allow for responsiveness to
observed strandings.
To provide the necessary coordination between the teams and
consistency across the regions, NMFS, at the recommendation of the
GOMTRT, included several members of the GOMTRT on the MATRT. NMFS will
strive to ensure that data on bycatch and effort in both areas will be
shared with both teams.
NMFS' long-term goal is to combine the GOMTRT and the MATRT to
allow for the development of comprehensive strategies to reduce harbor
porpoise bycatch on the east coast. Team Recommendations and NMFS''
Proposed Changes
Gulf of Maine Component
The GOMTRT developed a comprehensive approach to the problem and
included: (1) a core management plan that consisted of a schedule of
time/area closures and periods when pingers would be required for each
of the established management areas, (2) an implementation plan, and
(3) a series of recommendations regarding data collection and analysis
(details regarding these elements can be found in 62 FR 43302, August
13, 1997, and is incorporated by reference).
The August 13, 1997 proposed rule (62 FR 43302) would have
implemented a schedule of time/area closures and periods during which
pingers would be required for each of the established sink gillnet
management areas. The proposed regulations included a comprehensive
approach based on the GOMTRT's draft plan and on the measures
implemented by the NEFMC as discussed above. The proposed GOMTRP
regulations maintained the comprehensive approach recommended by the
GOMTRT. Comments on the proposed rule are addressed in this document.
Following is a discussion of the area-by-area management
recommendations and data and the explanations for why NMFS is proposing
to retain some provisions as recommended by the GOMTRT at its December
16 and 17, 1997 meeting, and why some changes to the GOMTRT's
recommendations are being proposed.
Northeast Area
Currently, the Northeast Area is closed to sink gillnet fishing
from August 15 through September 13 of each year. This closure remains
in effect under Framework 25 to the NE Multispecies FMP so no further
management measures (pingers) are being considered at this time. This
measure was considered sufficient by the GOMTRT and NMFS, and
represents no change from the proposed rule issued on August 13, 1997.
Mid-Coast Area
Since Framework 4 to the NE Multispecies FMP (59 FR 26972, May 25,
1994) went into effect, the Mid-Coast Area has been closed to fishing
with sink gillnets from March 25 to April 25 of each year (this first
took effect in 1995). In the past, the Mid-Coast Area has been closed
from September 15 through the end of the year. In 1995, sink gillnet
fishers were allowed to operate in the area with no restrictions from
September 15 through October 31, and were allowed to participate in an
experimental fishery in certain parts of the area in November and
December, provided they used pingers in accordance with NMFS
specifications. In 1996, gillnetters were also allowed to participate
in an experimental fishery from September 15 to October 31, and
Framework Adjustment 19 to the NEFMP authorized sink gillnet fishing
with pingers in the area for the months of November and December.
Framework Adjustment 19 also closed a portion of the Mid-Coast Area
known as Jeffreys Ledge Closure Area from May 1-May 31 in 1997.
While the HPTRP does not include a complete closure in the Mid-
Coast Area, Framework 25 to the NE Multispecies FMP provides three,
month-long closures in different parts of the Mid-Coast Area
(previously described). The months of April and May had significant
harbor porpoise bycatch in 1994-1996 and therefore, the Framework 25
closure is expected to reduce harbor porpoise bycatch, but it is not
clear to what extent. The requirement for pingers in March will reduce
the likelihood that significant takes would occur because of effort
shifts back into that month. The Western GOM Area Closure (includes
portions of Jeffreys Ledge and Stellwagen Bank) is being implemented as
a year-round closure under Framework 25 to the NE Multispecies FMP.
This overlaps the eastern edge of the current Mid-Coast closure.
The GOMTRT agreed that pingers were likely to reduce harbor
porpoise bycatch by 90 percent during the fall in the Mid-Coast area.
This plan assumes 80 percent effectiveness which would allow for some
uncertainty in spring.
Massachusetts Bay
Currently, Massachusetts Bay is closed to fishing with sink
gillnets during the month of March. This is the time of year during
which most known takes in the region were recorded. This measure is
considered sufficient by the GOMTRT and NMFS and is consistent with
Framework 25 to the NE Multispecies FMP. When combined with the pinger
measure described here, no change in the closures for this area appears
warranted.
In March 1996, NMFS authorized fishers to operate in Massachusetts
Bay as part of an experimental fishery, provided they used pingers in
accordance with NMFS's instructions. The GOMTRT was uncertain that
pingers would significantly reduce the take of harbor porpoises during
the spring in Massachusetts Bay. The GOMTRT agreed, however, to assume
that pingers might reduce the take of harbor porpoises by 50 percent
during the spring, and it recommended that pingers be required during
February, April, and May. Again, NMFS is reluctant to assume
percentages contradictory to the results of controlled scientific
experiments and is proposing to assume 80 percent for the first year of
plan implementation. Refer to the section on acoustic deterrent devices
for further explanation.
Closures during these months would decrease fishing opportunity
significantly, with relatively little additional reduction in bycatch
of harbor porpoises. Because March is the month with the highest risk
of entanglement, the Team recommended that March be closed to sink
gillnet fishing. April bycatch in 1996 was high for this area, possibly
a result of shifted effort from March to April, or differences in
harbor porpoise abundance and distribution. The goal of
[[Page 48677]]
the HPTRP is to reduce the bycatch resulting from such effects by
requiring pingers on the months on either side of the complete closure.
Cape Cod South Closure Area
The possibility that harbor porpoise may be entangled in sink
gillnets operating just south of Cape Cod has only recently been
documented. Observer coverage of sink gillnet trips in this area began
in 1992.
Currently, the Cape Cod South Closure Area is closed to fishing
with sink gillnets during the month of March. Up until 1996, most known
takes in the region occurred during this month. The current closures
are considered sufficient by the GOMTRT and NMFS, and no change in the
complete closures for this area is warranted. Given the relatively low
level of bycatch during these months, the Team believed that the use of
pingers to minimize bycatch would be sufficient.
Offshore Closure Area
Observer coverage in the offshore closure area was limited until
1996, and harbor porpoise takes that year were very high, estimated at
258 in the winter (mostly February) and 45 in the fall (September-
December). This raised significant concerns at the GOMTRT meeting in
December 1997 and offset some of the expected positive effects of many
of the other harbor porpoise measures at reducing the overall bycatch
estimate from 1995 (total bycatch in GOM was approximately 1400 in 1995
and 1500 in 1996). In 1997, there were observed takes in January and
May, again demonstrating the variable nature of these interactions.
Consequently, a complete closure in this area was discussed by the
GOMTRT in December 1997, with a closure requiring pingers in the months
adjacent to that closure to address the possible shifts in bycatch.
Since 71 percent of the bycatch occurred in the Cashes Ledge Area
during February in 1996, complete closure of this area was a logical
choice, with pinger use required in the larger offshore area from
September through May.
Mid-Atlantic Component
The MATRT draft report recommended modifications of those gear
characteristics and fishing activities that appeared to be most closely
linked with higher harbor porpoise bycatch. The intent of the MATRT was
to focus management measures on those fisheries that appeared most
responsible for higher bycatch. In the Mid-Atlantic, those fisheries
are the monkfish and dogfish fisheries. Based on observer data, the
draft report also recommended a schedule of fishery closures in areas
and at times most closely linked with high harbor porpoise.
The MATRT's report reflected the results of the data analysis,
indicating that nets with finer twine size and longer floatline lengths
were correlated with more cetacean interactions than were nets with
larger twine sizes and shorter nets. The MATRT recommended that, in
observed areas of high bycatch, decreasing the total length of nets and
increasing the twine size in fisheries operating in those areas at
critical times might reduce the number of interactions.
The MATRT determined the time frame for effectiveness of the
management measures based on when and where harbor porpoise takes have
been observed to occur. Harbor porpoise takes were observed between
January and April from New Jersey to North Carolina, although January
takes were only observed in New Jersey. The month with the highest
bycatch was March, followed by January. Areas with highest bycatch were
in New Jersey waters and, particularly for the monkfish subfishery, in
the area off New Jersey called the Mudhole.
The MATRT recommended that a number of management measures be
combined to achieve bycatch reduction below the PBR level because none
of the gear characteristics alone were strongly correlated with reduced
bycatch. Since these measures would be ineffective if effort increased,
the MATRT recommended a net cap or net limit to keep effort at current
levels. The net cap was set at the current average of 80 nets for
monkfish and 45 nets for dogfish. Additionally, because of the
uncertainty inherent in the data analysis, the MATRT recommended the
use of time and area closures during times and within areas of highest
bycatch.
Specifically, the MATRT report recommended the following gear
modifications and time/area closures for the monkfish and dogfish
fisheries (Tables 4 and 5): Effective period for both Tables.
New Jersey waters, and U.S. waters off New Jersey out to
200 miles--January 1 through April 30.
Southern Mid-Atlantic (MD, DE, VA, NC) and U.S. waters off
the southern Mid-Atlantic out to 200 miles--February 1 through April
30.
Table 4.--Management Measures for the Monkfish Fishery, as Recommended
by the MATRT in its Report to NMFS
------------------------------------------------------------------------
-------------------------------------------------------------------------
Floatline Length:
New Jersey Mudhole: Less than or equal to 3,900 ft (1188.7 m) New
Jersey Waters (excluding Mudhole): Less than or equal to 4,800 ft
(1463.0 m).
Southern Mid-Atlantic: Less than or equal to 3,900 ft (1188.7 m).
Twine Size:
All Mid-Atlantic Waters: Greater than or equal to .90 mm (.35
inches).
Mesh Size:
All Mid-Atlantic Waters: 12 inches (3.1 cm).
Tie Downs:
All Mid-Atlantic Waters: Required.
Net Cap:
All Mid-Atlantic Waters: 80 nets (nets are 300 ft (91.4 m) long).
Time/Area Closures:
New Jersey waters and 200 nm (370.4 km) offshore (including the
Mudhole): Closed from February 15--March 15.
Southern Mid-Atlantic (MD, DE, VA, NC) waters and 200 nm (370.4 km)
offshore: Closed for a block of 20 days between February and
April.\1\
------------------------------------------------------------------------
\1\ The specific timing of the southern Mid-Atlantic 20-day closure
would be determined by individual fishers.
[[Page 48678]]
Table 5.--Management Measures for the Dogfish Fishery, as Recommended by
the MATRT in Its Report to NMFS
------------------------------------------------------------------------
-------------------------------------------------------------------------
Floatline Length:
New Jersey waters: Less than or equal to 3,000 feet (914.4 m)
Southern Mid-Atlantic waters: Less than or equal to 2,118 feet
(645.6 m).
Twine Size:
All Mid-Atlantic Waters: Greater than or equal to .81 mm (.32
inches).
Mesh Size:
All Mid-Atlantic Waters: Less than or equal to 6.5 inches (1.7 cm).
Net Cap:
All Mid-Atlantic waters:\2\ 45 nets.
Time/area Closures:
None.
------------------------------------------------------------------------
\2\ Nets are 300 feet long.
The Mid-Atlantic component of the HPTRP follows the MATRT's
recommendations, except as discussed below. The non-consensus portions
of the MATRT's report are discussed in the HPTRP/EA/IRFA. NMFS concurs
with the MATRT's determination that the proposed management measures be
effective from January 1 through April 30 in waters off New Jersey and
from February 1 to April 30 in the southern Mid-Atlantic waters. The
difference in effective dates between New Jersey and the southern Mid-
Atlantic is based on the difference in observed harbor porpoise takes
between those areas. There were no observed takes of harbor porpoise
between July and December throughout the Mid-Atlantic because there is
little evidence that harbor porpoise are present in the Mid-Atlantic
during the summer, fall, and winter months.
The proposed HPTRP varies from the recommendations of the MATRT
because the HPTRP proposes extending jurisdiction from the seaward edge
of the coast to 72 deg.30' W. longitude offshore instead of 200 miles
offshore.
The proposed HPTRP differs from the MATRT's recommendations with
regard to basing management measures on subfisheries. The Mid-Atlantic
coastal gillnet fishery consists of both local Mid-Atlantic vessels and
New England vessels that fish in Mid-Atlantic waters during the winter
months. The New England vessels fishing in the Mid-Atlantic region use
a finer-twine gear type and more nets than the local Mid-Atlantic
vessels.
Current data indicate that the fine-twine gear used by New England
vessels is associated with a higher level of harbor porpoise bycatch
than the gear used by local fishers. As a result, the MATRT's Report
was based on bycatch reduction options that reinforced or were based on
the fishing practices used by local Mid-Atlantic fishers. The intent of
the MATRT was to address those fisheries that appeared to be correlated
with higher bycatch.
The MATRT recommended management measures specific to the two
predominant coastal gillnet fisheries, i.e., the monkfish and dogfish
fisheries. NMFS proposes management measures specific to large and
small mesh size fisheries. This approach should not change the
effectiveness of the management measures in achieving the PBR level
because the mesh size categories are consistent with the mesh size
categories of the dogfish (small mesh) and monkfish (large mesh)
fisheries. The major benefits of this modification is to make the
provisions of this action more enforceable.
Given the considerable assumptions inherent in the bycatch analysis
by subfishery, NMFS determined that regulatory measures should not be
based on subfisheries, as the MATRT intended. Rather, the regulatory
measures should be based on the characteristic(s) that appear most
related to harbor porpoise bycatch, regardless of which subfishery
employs such gear characteristics. It is the nature of the gear and how
that gear is employed, rather than the target species, that determines
whether harbor porpoise are entangled. In addition, basing regulatory
measures on the dogfish and monkfish subfisheries would be very
difficult to enforce, since the definition and prosecution of those
fisheries differs greatly among fishermen and no FMP or permit system
is currently in place under the Magnuson-Stevens Act for either
fishery. Likewise, defining ``directed fishing'' for these species and
imposing bycatch restrictions would be difficult to administer and
enforce.
In this case, twine size and floatline length appear to be the
predominant gear characteristics that are correlated with harbor
porpoise bycatch in the Mid-Atlantic. NMFS has partitioned the
regulatory measures according to large and small mesh categories. The
large mesh category, defined as mesh of 7 inches (17.78 cm) to 18
inches (45.72 cm), includes the monkfish subfishery; the small mesh
category, defined as mesh size less than 7 inches (17.78 cm), includes
the dogfish fishery.
Given the models used in the subfishery bycatch analysis, and with
the same assumptions that were used in the subfishery bycatch analysis
(with the exception of the assumption that the only subfisheries that
could potentially ever catch harbor porpoise are the dogfish and
monkfish subfisheries), the predicted effect of using the recommended
gear characteristics based on large mesh and small mesh gillnet
categories instead of dogfish and monkfish subfisheries is still
expected to result in a 79 percent or greater reduction in harbor
porpoise bycatch in the Mid-Atlantic.
The proposed HPTRP differs from the MATRT's recommendations with
regard to the timing of area closures. For the large mesh fishery (the
monkfish fishery), the MATRT recommended New Jersey waters, including
the Mudhole be closed from February 15 through March 15. NMFS proposes
that the February 15 through March 15 closure apply only to vessels
fishing in the Mudhole. Data indicate high bycatch in the rest of New
Jersey in April, therefore NMFS proposes a closure in the rest of New
Jersey from April 1 through April 20. The MATRT also recommended that
the southern Mid-Atlantic be closed for a block of 20 days between
February and April, the timing of the closure to be determined by the
individual fishers. Such a closure would be very difficult to enforce,
therefore NMFS proposes a set closure from February 15 through March 15
in the southern Mid-Atlantic. The timing of this closure is consistent
with the timing of high harbor porpoise bycatch and is consistent with
the timeframe envisioned by the MATRT.
For the small mesh fishery (the dogfish fishery), the MATRT
recommended no time and area closures. Closures may not be necessary
for most of the small mesh fishery, except in the Mudhole. The majority
of the takes in the northern area are from
[[Page 48679]]
vessels landing in New Jersey from February through April and the
fishing activity in the is particularly high during the February
through March time period. The level of effort for both the small mesh
and large mesh fisheries are very high in the Mudhole, therefore NMFS
proposes a one month closure from February 15 through March 15 in the
Mudhole for the small mesh fishery consistent with the one month
closure for the large mesh fishery. Data on Acoustic Deterrent Devices
and Implications for TRP Bycatch Reduction
NMFS, the fishing community, and the NEFMC have been exploring the
potential of mitigating incidental bycatch of harbor porpoise in
gillnets by using active acoustic alarms to warn harbor porpoise of the
presence of a gillnet. These devices have shown promise as a bycatch
reduction measure with varying success rates in both controlled
scientific experimentation and experimental fisheries. However,
scientists note that the results of these experiments should be
cautiously applied when evaluating the success or failure of bycatch
reduction in very different geographic areas or during other times than
those investigated within the experiment. Harbor porpoise may respond
differently seasonally, between geographic areas, or with differing
oceanographic conditions.
In the fall of 1994, NMFS authorized and provided support for a
cooperative scientific experiment by New England gillnet fishers and
scientists. Building on work completed in previous years (1992-1993),
the experiment sought to evaluate the effectiveness of pingers attached
to gillnets to prevent entanglement of harbor porpoise. The pingers
used in this experiment employed a wide range of frequencies, and
acoustic features of the devices may have varied due to battery life;
yet the result was a dramatic reduction in harbor porpoise bycatch
(Kraus et al., 1995). Scientific concerns remained after this
experiment. It was still uncertain why the alarms worked; harbor
porpoise may have responded directly to the sound or the sound may have
mediated the behavior of harbor porpoise prey (herring). Other
unanswered questions include the possibility of habituation of harbor
porpoise and other mammals to pingers over time and the overall
environmental effects of widespread pinger use.
As a result of the success of the scientific experiment,
experimental fisheries (an experimental fishery is not a scientifically
designed experiment, but pinger use under uncontrolled fishing
conditions) operated in the fall of both 1995 and 1996 and in the
spring of 1996. In the fall of 1996 (Sept. 15-Oct 31) experimental
fishery, three harbor porpoise were caught in 51 observed trips (198
hauls). Unfortunately, the results of the spring 1996 experimental
fishery were different from the other experiments--11 harbor porpoise
were caught in nets with pingers in the Jeffreys Ledge area (88 hauls,
9 harbor porpoise), Massachusetts Bay (171 hauls, 2 harbor porpoise),
and in the Cape Cod South Closure Area (53 hauls, no harbor porpoise)
(Waring et al., 1997).
One possible explanation is that the positive fall results may have
been due to the pingers' deterrent effects on herring (a prey species),
which are not present in the region in spring. Consequently, the GOMTRT
recommended an additional scientific pinger experiment in the spring of
1997. No harbor porpoise were caught in nets with active pingers in the
1997 experiment, demonstrating that pingers reduced the incidental
catch of harbor porpoise in sink gillnets during the spring by almost
100 percent (Kraus et al., 1997). Based on these findings, Kraus
concluded that these results appear to disprove the hypothesis that
deterrent effects on herring explain the discrepancy between results of
the fall and spring experimental fisheries. However, the 1997
experiment did not yield any alternative explanations for the
contradictory results of the spring experimental fishery.
The unanswered questions regarding pinger success add uncertainty
to predictions of pinger effectiveness in areas other than those where
the experiments occurred (in both time and area). In addition, because
of a lack of a control in the 1996 experimental fishery, conclusions
cannot be drawn about the high bycatch observed during that experiment.
Because of these uncertainties, this proposed rule uses the results of
the scientific experiments to assess the effectiveness of pingers in
reducing harbor porpoise bycatch in the GOM. NMFS recognizes that
sufficient monitoring of this fishery must occur during plan
implementation to ensure that pingers adequately reduce harbor porpoise
bycatch.
Closures for short periods of time in discrete areas have a number
of problems that decrease their effectiveness in reducing marine mammal
bycatch. Changes in distribution of fishing effort or in annual
abundance and distribution of harbor porpoise may render these closures
ineffective. The advantage of using pingers is that they can be
employed over a wide geographic area for a long period of time while
still allowing the fishery to continue. The principle findings of the
Acoustic Deterrence Workshop in 1996 (Reeves, et al.) noted that ``it
is appropriate to proceed with the full-scale integration of pingers
into the management regime for the NE multispecies sink gillnet fishery
provided that the regime includes observer and monitoring programs
adequate to verify that the bycatch remains acceptably low and that no
non-target species is affected adversely'.
Summary
In summary, based on reviewing the results of previous pinger
experiments, the recommendations from the 1996 Acoustic Deterrence
Workshop, and the discussion during the GOMTRT meeting in December
1997, this proposed rule would require widespread pinger use in the NE
multispecies sink gillnet fishery. Data from the scientific experiments
support a minimum 80 percent effectiveness rate estimate in the Mid-
Coast area in the fall and in the spring. Therefore, NMFS will apply
these pinger effectiveness rates to fall and spring pinger closures
proposed in other areas (Cape Cod South and Offshore) that lack
experimental data.
After implementation of this plan, NMFS will review harbor porpoise
bycatch rate by June 30 (i.e., after the spring fishing season) of each
calendar year to ensure that the expected pinger effectiveness rate is
being realized. Additionally, this proposed rule includes a provision
that would allow the Assistant Administrator to make adjustments in the
time or area of closures if unexpected high bycatch occurs during a
given year.
The major benefit of this aspect of the HPTRP is that by
establishing closures requiring pingers, it implements a bycatch
reduction strategy for several months on either side of complete
closures. This should help with the inter-annual and monthly
variability problem that may have contributed to keeping total bycatch
at relatively unchanged or increasing levels for the last several
years.
Pingers were discussed at length as a management option by the
MATRT. As a management strategy, it is appropriate for many reasons to
proceed with full scale integration of pingers to reduce the incidental
bycatch of marine mammals in the NE multispecies sink gillnet fishery
as a whole. However, caution has been urged by scientists and the
GOMTRT and MATRT in applying the assumptions demonstrated in New
England to other geographic areas, gear types, and times. Based on
recommendations of the Acoustic Deterrence Workshop, acoustic
[[Page 48680]]
deterrents should not be used in fisheries where other non-acoustic
management strategies are likely to be equally effective.
Comments and Responses
NMFS received numerous comments during the 60-day comment period
following its August 13, 1997, proposed rule. NMFS received further
comments when it reopened the public comment period following the
December 16-17, 1997, meeting of the GOMTRT (97 FR 32474). The
following are NMFS' responses to the comments received on the August
1997 proposed rule.
Proposed Schedule of Closures/Pinger Use
NMFS received several comments regarding the proposed schedule of
fishery closures and required pinger use. NMFS has considered these
comments in light of new information on harbor porpoise bycatch and
relevant fishery management actions that have occurred since the
publication of the proposed rule. NMFS believes that the proposed HPTRP
represents the best comprehensive management strategy for both reducing
U.S. harbor porpoise bycatch and rebuilding groundfish stocks under
Framework 25 the NE Multispecies FMP.
Comment 1: For the Mid-Coast Area, several commenters suggested
alternative schedules of fishery closures and required pinger use from
that proposed.
Response: The new proposed rule would close the Mid-Coast Area from
September 15 through May 31, but allow sink gillnet gear with pingers
during that time period. The proposed rule does not include a complete
closure in the Mid-Coast Area. However, Framework 25 to the NE
Multispecies FMP provides three 1-month closures in different sections
of the Mid-Coast Area. Additionally, Framework 25 includes a year-round
closure of parts of Jeffreys Ledge and Stellwagen Bank which NMFS
expects will provide protection for harbor porpoise.
NMFS expects that the closures under Framework 25, in combination
with pinger requirements for extended periods of time in the months on
either side of the closure, will ensure adequate bycatch reduction. If
the NEFMC makes changes to Framework 25 that NMFS expects would result
in increased harbor porpoise bycatch, the Assistant Administrator
could, under the new proposed rule, make adjustments to the timing or
area of a closure.
Comment 2: One commenter proposed an alternative schedule of
closures and pinger use for the Massachusetts Bay area as follows: (1)
maintain March 1 through March 31 closure and (2) close this area to
fishing during February and April except to vessels participating in an
experimental fishery with pingers.
Response: NMFS is proposing for the Massachusetts Bay Area: (1)
March 1 through March 31 closure, (2) February 1 through February 28/29
and April 1 through May 31 closures, but fishing with pingers allowed.
Therefore, an experimental fishery under the Magnuson-Stevens Act will
not be necessary because the NEFMC will be asked to mirror the MMPA
regulations in the current Magnuson-Stevens Act closures.
Comment 3: One commenter supported the Downeast closure as proposed
by both the GOMTRT and NMFS in its draft plan.
Response: NMFS is maintaining this closure, referred to as the
Northeast closure, in the proposed rule.
Comment 4: One commenter proposed an alternative schedule of
closures South of Cape Cod: (1) maintain March 1 through March 31
closure and (2) close this area to fishing during January, February,
April, May, September, October, November, and December except to
vessels participating in an experimental fishery with pingers.
Response: NMFS is proposing a similar schedule of closures and
pinger use for the Cape Cod South Area: (1) March 1 through March 31
closure and (2) September 15 through February 28/29 and April 1 through
April 30 closures, but fishing with pingers allowed.
Comment 5: One commenter mentioned that harbor porpoise takes have
now been observed in the offshore gillnet area, which was previously
unobserved. The commenter proposed closing the offshore gillnet area
from January 1 through May 31, and September 1 through December 31,
except to vessels participating in a experimental fishery with pingers.
Response: NMFS is proposing to close the offshore area from
September 15 through May 31, allowing pingers during that time period,
with the exception of the Cashes Ledge Closure Area (as defined in
Framework 25 to the NEFMP), which will be closed February 1 through
February 28/29. In 1996, the Cashes Ledge Closure Area contained 71
percent of approximately 258 total takes in the month of February. The
high bycatch previously undocumented in the offshore area was one of
the reasons that overall bycatch in the GOM has not decreased, in spite
of efforts by the NEFMC. Consequently, in order for the overall plan to
achieve its bycatch reduction objectives, NMFS is proposing a closure
in February with pingers required in the months adjacent to that
closure to address possible shifts in bycatch. This is the approach
used in all the other high bycatch areas (Mid-Coast, Massachusetts Bay,
and Cape Cod South).
Comment 6: One commenter stated that the harbor porpoise bycatch
data presented to the GOMTRT for the Southern New England area
exhibited significant inter-annual variability within the 3 years of
data collected. The GOMTRT agreed to extend pinger usage to this area,
but expressed concern over the minimal amount of observed data (1992-
1994) and the lack of current data. As a result, the commenter
recommended a re-examination of the alternatives for the area to better
substantiate the optimal period for closures and pinger usage.
Response: NMFS agrees that there is seasonal variability in both
harbor porpoise bycatch and fishing effort. However, based on recent
data, overall harbor porpoise distribution, and fishing effort
distribution, the HPTRP incorporates adequate bycatch reduction
measures during those months (September--April) when harbor porpoise
and fishing effort are most likely to result in high bycatch, taking
into account possible shifts in harbor porpoise distribution and
abundance or shifts in fishing effort.
Comment 7: One commenter urged NMFS to maintain and enforce the
current closures mandated by the NEFMC.
Response: See response to Comment 1 for a description of NEFMC and
harbor porpoise proposed closures. The only change to the current NEFMC
closures is in the Mid-Coast where pingers would be allowed during
March 25 through April 25. In combination with the other components of
the HPTRP, this is not expected to result in increased bycatch overall.
Pingers: Specifications and Implementation Issues
Comment 8: Two commenters noted that NMFS defined pinger broadcast
parameters in the proposed rule, but did not provide regulatory
guidance as to how it intends to either certify pingers as ``NMFS
approved'' or test and enforce the defined parameters.
Response: The proposed rule included specifications for pingers
that are required to be used in the NE multispecies sink gillnet
fishery. All pingers used in this fishery must meet those
specifications. Pinger manufacturers would be required to provide
documentation that their
[[Page 48681]]
pingers meet the specifications of this proposed rule. NMFS is not
requiring that manufacturers have their pingers certified by an
independent company to ensure they meet the specifications. NMFS will
periodically monitor whether the pingers used by the fishery meet the
specifications.
Because the harbor porpoise bycatch rate will be carefully
monitored, NMFS expects that both manufacturers and fishers will be
aware of the importance of technically correct and properly maintained
pingers. If bycatch increases because of improper pinger use or non-
effective acoustics, more restrictive measures to reduce bycatch may be
warranted. Additionally, a program that is part of the HPTRP would be
in place to monitor pingers during normal use to ensure that acoustics
of pingers do not change with time and that they maintain the
acoustical characteristics specified by the manufacturer.
Comment 9: In the proposed rule, NMFS included a description of a
pinger, including specific pinger parameters. The manufacturer and
technical supporter which provided pingers used in the GOM pinger tests
believes the following to be a more accurate description of the
acoustic deterrent device used in the NE multispecies sink gillnet
fishery: ``operates at 10kHz (plus-minus 1 kHz) broadband (contains
important harmonics) frequency at 134dB (plus-minus 4dB) re 1
micropascal at 1 meter output level, with 300 milliseconds (plus-minus
30 milliseconds) pulse width, and 4 seconds (plus-minus 400
milliseconds) pulse rate''.
Response: The pinger specifications defined in NMFS' August 13,
1997, proposed rule accurately reflect the pingers used in the GOM
pinger experiments, yet allow for a reasonable range of manufacturing
variability to ensure these pinger broadcast parameters can be produced
by different manufacturers. Therefore, no change in the specifications
is proposed.
Comment 10: One commenter suggested that NMFS require that vessels
carry four spare pingers in case of pinger malfunction.
Response: NMFS does not agree that vessel owners should be required
to carry a specific number of spare pingers in case of pinger
malfunction; the requirement that all pingers deployed must be
``operating and functional'' provides adequate direction to vessel
owners.
Comment 11: One commenter supported the NMFS proposal that
gillnetters be required to use the same pinger placement as was used in
the GOM pinger experiment.
Response: NMFS has maintained this provision in this proposed rule.
Comment 12: Two commenters urged NMFS to immediately conduct the
GOMTRT's recommended research on the effect of pingers on harbor
porpoise and other marine life and on the habituation of harbor
porpoise to pingers.
Response: A study to evaluate the habituation and displacement
question has been funded. As part of the non-regulatory components of
this HPTRP, NMFS is developing a research plan to assess long-term
ecosystem impacts from widespread use of pingers.
Comment 13: One commenter suggested that if pingers are shown to
have an adverse impact on harbor porpoise and other animals in the
ecosystem, NMFS should close those areas that are currently proposed to
be open with required pinger usage.
Response: If pingers are shown to have an adverse impact on harbor
porpoise, NMFS will reconvene the TRTs to evaluate other alternatives,
including, but not limited to, fishery closures.
Comment 14: Three commenters stated that NMFS' proposal to provide
printed educational material on pingers is inadequate, and that NMFS
should conduct pinger workshops and make attendance mandatory.
Additionally, one comment added that the GOMTRT, at its December 1997
meeting, strongly urged NMFS to undertake the recommended certification
process.
Response: NMFS agrees and plans to conduct a pinger certification
training program. After reviewing the 1996 bycatch data and proposing
to rely further on the widespread use of pingers in this proposed rule,
NMFS determined that a pinger certification program should be required
for fishers that want to fish with pingers in closed areas. NMFS
believes that this is an important aspect of the plan, especially given
the anomalous results of the 1996 experimental fishery. If these
results were partially due to improper pinger use by fishers, NMFS
would expect that this mandatory training and certification program
would increase the chances that pingers would be highly effective.
The GOM component of the HPTRP would require that all fishers who
wish to fish in an area where pingers are required must attend a pinger
certification training program. The exact delivery method of this
program has not been determined, but operators of fishing vessels would
be required to have a certificate documenting that they have received
training/certification on board their vessels if they are fishing in a
closed area, with pingers.
Comment 15: Two commenters stated that concerns of unintended
effects of pinger use are greatly overblown. Based on the results of
the spring 1997 experiment, NMFS should allow widespread use of pingers
in GOM.
Response: Uncertainties do exist surrounding potential unintended
effects of pinger use, but these effects are not expected to be
significant. However, this cannot be tested until put into application.
Therefore, NMFS is proposing widespread pinger use, accompanied by
scientific studies, to evaluate both habituation and displacement of
harbor porpoise and over-reaching environmental effects from widespread
use. If data from the monitoring program indicate that pingers are not
working, the Assistant Administrator could, under this proposed rule,
make adjustments in the time or area of closures.
Census of Gillnet Fleet
Comment 16: Several commenters stressed the need for NMFS to
conduct a census of the NE multispecies sink gillnet fishery. Without
this, one commenter questioned how NMFS will conduct outreach to the
fishing community, determine if all fishers are registered, calculate
an accurate bycatch estimate, or evaluate whether it is achieving the
goals of the MMPA.
Response: The GOMTRT recommended that NMFS conduct or support a
census of the sink gillnet fleet to determine seasonal effort type, and
amount of gear fished, target species, and areas fished. NMFS has
assessed the usefulness of vessel logbooks for a number of purposes and
has more clearly defined the procedures used in collecting both fisher
and dealer information to insure accuracy. However, the GOMTRT noted
that development of a reporting system that provides timely,
consistent, and thorough measures of fishery effort may require an
overhaul of existing reporting mechanisms. Toward this end, NMFS is
working as a partner in a cooperative effort between the Atlantic
coastal states and the ASMFC on development of the ACCSP. The ACCSP has
been designed to solve some of the inherent problems of current fishery
statistic data collection systems. NMFS partially funded and
participated in development of the bycatch component of this system and
expects that it will improve the agency's ability to accurately reflect
fishing effort and bycatch in both state and Federal fisheries. When
fully operational, this system is expected to solve some of the
problems addressed by this comment.
[[Page 48682]]
Comment 17: In the preamble to the earlier proposed rule, NMFS
stated that it was examining the usefulness of fishing logbooks for
effort estimation and the feasibility of technological alternatives and
requested comments. One commenter recommended that NMFS summarize what
it has done to investigate the possible alternative methods of
estimating fishing effort and the results of such efforts. Two
additional commenters urged NMFS to make the technological changes
necessary to achieve real-time monitoring of effort, landings, and
bycatch.
Response: The ACCSP (discussed in response to Comment 16) has been
designed to solve some of the inherent problems of current fishery
statistic data collection systems. This system was designed with
considerations such as whether or not new reporting mechanisms or new
methods of effort calculation were needed. The program's implementation
phase has already begun, but NMFS expects that such a comprehensive
system will require a significant amount of time to become completely
operational. NMFS will provide an update on the progress of this
program at the next meeting of the GOMTRT.
Reconvening the GOMTRT
Comment 18: Three commenters suggested that NMFS reconvene the
GOMTRT and provide it with the results of the spring 1997 pinger
experiment.
Response: NMFS reconvened the GOMTRT on December 16 through 17,
1997. NMFS provided the GOMTRT with an analysis of the results of the
spring 1997 pinger experiment and with updated estimates of harbor
porpoise takes in both the GOM and Mid-Atlantic. Based on this
information, the GOMTRT made recommendations to NMFS for further
reducing the incidental take of harbor porpoise in the GOM which have
been incorporated into this proposed rule.
Comment 19: One commenter commended NMFS for conducting the spring
1997 pinger experiment, immediately completing the experimental
analysis, and providing this information to the GOMTRT.
Response: No response necessary.
Comment 20: NMFS should consider combining the two harbor porpoise
TRTs, or having joint meetings to more effectively reduce harbor
porpoise bycatch throughout the range of the species.
Response: NMFS is considering combining the GOMTRT and MATRT (see
response to Comment 23). NMFS is proposing one HPTRP to address the
bycatch of harbor porpoise throughout their U.S. range. The gillnet
fisheries in the GOM and Mid-Atlantic have different characteristics
and, thus, have different management strategies available for reducing
bycatch. To address the individual management needs of these gillnet
fisheries, NMFS'' proposed HPTRP includes separate GOM and Mid-Atlantic
components.
Comment 21: NMFS should reconvene the GOMTRT semi-annually and
provide it with data necessary to review whether the HPTRP is meeting
its objectives.
Response: NMFS intends to continually review the data to determine
when a team meeting is warranted. The GOMTRT is expected to be
reconvened no less than annually.
Bycatch Reduction--Allocation of PBR
Comment 22: One commenter supported the approach recommended by the
GOMTRT for allocating PBR between the GOM and the Mid-Atlantic areas.
The commenter stated that PBR can not be allocated by region, and that
each fishery should reduce takes by the same percentage.
Response: NMFS has taken this approach, proposing a 79 percent
reduction in both regions as agreed to by the TRTs.
Comment 23: Two commenters suggested that NMFS reconvene both teams
jointly to address the PBR allocation issue, and that NMFS should
provide guidance on what type of allocation would be acceptable.
Response: NMFS agrees that this idea has merit with respect to
looking at harbor porpoise bycatch issues overall, but the fisheries
involved are so different that it would be difficult to deal with
specific plan elements in combination. Accordingly, NMFS will consider
reconvening both teams jointly to address several aspects of the
bycatch reduction strategies for harbor porpoise.
Comment 24: One commenter noted that the preamble to the earlier
proposed rule stated that ``an equitable allocation scheme will be
developed for each segment of the fishery''. The commenter further
noted that separate plans have been developed between the regions with
available PBR accounted for within each plan, and any allocation scheme
or reallocation scheme is unnecessary for discussion in the final rule.
Response: No reallocation is proposed. See response to Comment 22.
Implementation of HPTRP
Comment 25: Several commenters opposed implementation of a TRP
under the Magnuson-Stevens Act. Three commenters noted that it would
not have as broad effect as implementation under the MMPA and would
exempt those fishers who fish in state waters but do not have a Federal
permit. Two commenters expressed concern that implementation under the
Magnuson-Stevens Act would further delay the implementation of the TRP.
Two commenters objected because fishery management councils were
officially represented on the GOMTRT, and their subsequent involvement
in this plan might undermine the take reduction process. Two commenters
stated that implementation solely under the Magnuson-Stevens Act
violates the intent of the MMPA. Finally, one commenter noted that NMFS
would not be able to effectively monitor whether the TRP is achieving
its objectives if implemented under the Magnuson-Stevens Act.
Response: The current proposed rule would implement the proposed
HPTRP under the authority of the MMPA. Therefore, fisheries in state
waters would be subject to the regulations. Baitnets are exempted in
this proposed rule, as discussed in NMFS' response to Comment 28.
Through the ACCSP program of cooperation with the States, and through
NMFS' monitoring activities, fisheries in state waters will be
monitored for potential bycatch (see response to Comment 16).
NMFS disagrees that implementation under the Magnuson-Stevens Act
violates the MMPA. The MMPA requires NMFS to reduce the incidental
bycatch of marine mammals in commercial fisheries to below the PBR
level for strategic stocks. If this goal could be accomplished through
Magnuson-Stevens Act actions, it would not be in violation of MMPA
requirements.
Comment 26: Two commenters urged NMFS to implement a TRP under the
emergency authority of the MMPA because harbor porpoise takes exceed
the PBR level and because it is illegal for NMFS to delay further.
Response: An emergency action under MMPA requires any such action
to be based on a commercial fisheries bycatch that is ``having, or is
likely to have, an immediate and significant adverse impact.'' The
current bycatch levels have long been recognized as having a
significant and adverse, but not immediate, impact on this population.
This is recognized by the agency in recent Stock Assessment Reports and
the establishment of the GOMTRT. The total bycatch is high, but does
not trigger the need for an immediate response due to the possibility
for irreversible harm to the population.
[[Page 48683]]
Outreach
Comment 27: One commenter commended NMFS for its extensive efforts
to educate the fishing industry about whale bycatch issues and to bring
about more whale-friendly fishing gear and practices. The commenter
suggested that NMFS include harbor porpoise in this initiative. Because
the constituent groups largely overlap, the two initiatives could
reinforce each other with little additional effort. One commenter
suggested that public outreach programs encompass all take reduction
plans so that such efforts could be focused and coordinated.
Response: NMFS agrees and has coordinated the public outreach
efforts for the Atlantic coast take reduction efforts. NMFS has
recently conducted TRP informational programs to communicate the
purposes and goals of the plans to the commercial fishing industry.
These programs, conducted in conjunction with East Coast commercial
fishermen's exhibitions, gave commercial fishers the opportunity to
learn more about the TRP process, and to express their concerns in
person to NMFS managers and biologists. Informational programs were
held in several locations in the Northeast and Mid-Atlantic region.
Handouts were developed and distributed describing the TRPs and the new
mandated process for managing interactions between commercial fisheries
and marine mammals. Educational fact sheets informed fishers of
appropriate action to take in cases of whale entanglement and provided
guidance on identifying specific species of marine mammals. Seminars
and panel discussions were conducted detailing the specific
requirements of the existing take reduction process and provided an
opportunity for input from fishers and other interest groups.
Harbor Porpoise Mortality in Other Fisheries
Comment 28: Several commenters noted that harbor porpoise bycatch
is likely in other fisheries, including baitnets and other fisheries in
state waters. NMFS should ensure that bycatch in these fisheries is
addressed. One commenter further noted that baitnets and other
fisheries in state waters may be exempt from the restrictions of the
HPTRP if it is implemented under the Magnuson-Stevens Act.
Response: Because the regulations would be issued under the
authority of the MMPA, fisheries in state waters would be subject to
them. Baitnets would be exempt under the new proposed rule because they
are tended, are limited in length, and only fished for short periods of
time. The GOMTRT agreed that they are unlikely to take harbor porpoise.
Through the ACCSP program of cooperation with the States, and through
NMFS monitoring activities, fisheries in state waters will be monitored
for potential bycatch.
Comment 29: One commenter expressed concern that mid-water trawls
are operating in harbor porpoise habitat at times of high use by the
animals, and urged NMFS to investigate this possible source of
mortality.
Response: NMFS is aware that an Atlantic herring trawl fishery may
be operating in the Northeast at times and in locations where there is
a high density of harbor porpoise. This fishery is comprised of
approximately 35 vessels operating in the Northwest Atlantic. NMFS
currently has the authority to place observers on pelagic herring trawl
vessels under the Magnuson-Stevens Act.
Because this herring trawl fishery uses similar gear to the
Atlantic squid, mackerel, butterfish trawl fishery (a Category II
fishery), and because of its potential to interact with harbor
porpoise, NMFS is analyzing existing information on the levels of
serious injury and mortality of marine mammals that are occurring
incidental to this fishery and will propose adding this fishery to the
List of Fisheries for 1999.
Enforcement
Comment 30: Two comments were received concerning enforcement. At
the re-convening of the GOMTRT in December 1997, data indicated that
fishers are fishing in closed areas and, in some cases, are fishing
without pingers in areas and during periods when they are required. No
enforcement action had been taken. Both the U.S. Coast Guard and NMFS
Enforcement representatives present at the meeting admitted that, at
this time, they have no means to monitor compliance with requirements
for using pingers. The commenter urged NMFS to enforce the provisions
of the HPTRP and the Multispecies FMP.
Response: NMFS is concerned about enforcement. The primary
objective of the observer program, which is a function of the Northeast
Fisheries Science Center, is to provide NMFS with unbiased scientific
information on protected species and fishery issues for purposes of
stock assessments and bycatch estimates. For fisheries where observer
coverage is mandated, those data can be made available to investigators
if requested. NMFS Enforcement is investigating this information and
has already initiated dialogue with the observer program on the issue
of confidentiality of observer data, but this has not yet been
resolved. However, an important part of the message to fishers is that
if pingers are not used, or are used improperly, bycatch will most
likely increase. If this occurs, more restrictive measures (i.e.,
closures) to reduce bycatch will be considered.
Comment 31: One commenter supported NMFS' proposal to have Special
Agents from the NMFS' Enforcement Division attend upcoming GOMTRT
meetings in an effort to facilitate enforcement of the HPTRP.
Response: Officials from both NMFS Enforcement Division and the
U.S. Coast Guard attended the December 1997 meeting of the GOMTRT. This
is expected to continue.
Re-Evaluate Proposed HPTRP
Comment 32: Several commenters noted that new information suggests
the proposed GOMTRP will not be sufficient to reduce harbor porpoise
takes below the PBR level and urged NMFS to reconsider its proposal.
One of the commenters recommended that NMFS proceed with a separate
emergency rule to reduce harbor porpoise bycatch south of New England
in winter/spring 1998 and/or modify the proposed GOMTRP to further
reduce projected bycatch levels, given the expected takes south of New
England.
Response: NMFS has re-evaluated its August 1997 proposed rule in
light of new information on harbor porpoise bycatch, the results of the
spring 1997 pinger experiment, and relevant fishery management actions
and agrees that the 1997 proposed rule would not be adequate to reduce
bycatch to required levels. This new proposed rule is expected to
reduce the incidental takes of harbor porpoise in the GOM and Mid-
Atlantic to the PBR level.
Comment 33: One commenter indicated that a vessel buyback program
in the GOM, designed to reduce groundfish effort, has reduced the
number of sink gillnet vessels. Additionally, the commenter noted that
some vessels have left the fishery for other fisheries or for other
reasons. The commenter urges NMFS to consider this issue, as a
reduction in fishing effort should effect the potential for
interactions with harbor porpoise.
Response: The bycatch rate for harbor porpoise in the GOM provides
the basis for the plan and considers fishing effort. In the past,
regardless of the possible decrease in fleet size and/or fishing
effort, neither the bycatch rate nor the
[[Page 48684]]
total bycatch of harbor porpoise in the GOM has decreased.
General Comments
Comment 34: One commenter was concerned that Canadian bycatch of
harbor porpoise has decreased significantly due to the extraordinary
limitation of fishing effort in Canada to protect groundfish. As these
groundfish stocks recover, and fisheries resume normal operations, the
commenter was concerned that mortality of harbor porpoise in Canadian
waters will increase. The commenter recommended that NMFS work formally
with the Department of Fisheries and Oceans in Canada to assure
equivalent planning to reduce mortality.
Response: Canada has, within the last few years, developed its own
harbor porpoise conservation strategy. It has developed an observer
program to document takes and has also developed its own bycatch
estimates. Canada also has a restriction in place that allows them to
immediately close the fishery if more than a certain number of animals
are caught. Canada has also incorporated pingers into its management
strategy. NMFS intends to keep abreast of Canadian conservation
activities and the status of the fisheries.
Comment 35: One commenter expressed overall support for the
proposed GOMTRP.
Response: Given the information on bycatch and the distribution of
fishing effort available when the proposed GOMTRP was published, the
proposed take reduction measures were expected to adequately reduce
harbor porpoise bycatch levels in the GOM.
Since the publication of the earlier proposed rule, however, new
bycatch and fishery information became available which indicated
significant changes were needed in the original draft HPTRP and
proposed rule to achieve the PBR level. In addition, the MATRT
submitted its report to NMFS which presented new information on the
level of bycatch in the Mid-Atlantic region. The GOMTRT reconvened on
December 16 through 17, 1997, to discuss this information and to
provide additional comments to NMFS. The combination of these actions
led NMFS to decide to integrate the initially separate plans into one
comprehensive plan. Since the HPTRP is substantially different than the
GOMTRP, NMFS is publishing this new proposed rule to replace the
earlier proposal.
Comment 36: One commenter stated that NMFS is in violation of the
MMPA for inadequately protecting harbor porpoise. The most recent data
indicate that: (1) current harbor porpoise bycatch is three times the
PBR level, and there has been no meaningful reduction in harbor
porpoise bycatch; bycatch has actually increased in some areas, (2)
there are takes occurring in the offshore gillnet fishery (which was
previously unobserved), (3) pingers are not as effective in
experimental fisheries as in controlled experiments, (4) NMFS has not
completed research on the unintended effects of pingers, (5) illegal
fishing with harbor porpoise takes are occurring in closed areas, and
(6) no enforcement actions are being taken. Additionally, the commenter
noted that NMFS has not complied with the statutory deadlines for
convening a GOMTRT or publishing an HPTRP. The commenter noted that
NMFS must take strict and immediate action to reduce the deaths of
harbor porpoise in the GOM.
Response: NMFS agrees that data indicate that harbor porpoise
bycatch is close to 3.5 times the PBR level. Bycatch has decreased in
those areas where take reduction measures have been applied, and
bycatch has increased outside of those areas. Consequently, the overall
bycatch has remained relatively unchanged. NMFS acknowledges that there
are harbor porpoise takes in offshore areas and has incorporated
management measures into this proposed rule to reduce this bycatch. It
is currently unknown whether pingers are as effective in experimental
fisheries as they were in scientific experiments since the experimental
fisheries had no controls--therefore, it was unknown whether the
bycatch rate would have been higher in nets without pingers and if so,
how much higher. Consequently, NMFS is preparing to monitor bycatch as
an indicator of whether or not pingers are enough of a management
option. NMFS is currently supporting a research project to study
habituation and displacement of harbor porpoise by pingers. NMFS agrees
that observer data are available that appears to indicate that fishers
may have been in closed areas, and is conducting an investigation that
will result in enforcement actions.
Comment 37: One commenter suggested that NMFS reevaluate the
current weighout landings system for determining bycatch levels because
commenter believes it is an inaccurate method of derivation of actual
bycatch rate.
Response: In order to estimate bycatch levels, the unit of fishing
effort must be correlated to bycatch and must be an accurate
representation of what is occurring in the fishery. Currently, weighout
data are considered the best and most complete unit of effort for the
sink gillnet fishery that meets this requirement. Logbooks are being
evaluated for their contributions to effort projections and were used
in the 1996 analysis to estimate the distribution of effort by area. As
logbooks improve, they may become more useful. However, at the current
time many of them are inaccurately or incompletely filled out.
Therefore, fishers need to realize the importance of providing complete
and accurate information that allows NMFS to make better analyses in
many areas including bycatch.
Comment 38: One commenter requested that NMFS consider the trip
boat category in developing the final GOMTRP. The commenter noted that
this would promote the use of ``day setting'' where vessels retrieve
gear before returning to port; this results in shorter trips and a
cleaner, more directed fishery.
Response: The HPTRP is expected to meet bycatch reduction goals.
However, this idea has merit for future discussions at take reduction
team meetings should additional measures be necessary in the future.
Comment 39: One commenter noted that NMFS should specifically state
in the final HPTRP that the goal of the HPTRP was to reduce incidental
takes of harbor porpoise to below the PBR level within 6 months of the
plan's implementation.
Response: This is described above in the supplemental information
section.
Comment 40: One commenter requested that NMFS specifically state in
the final rule that the HPTRP had determined that its draft plan would
reduce incidental take levels in the New England fisheries to 376
harbor porpoises. NMFS should further specify the total number of
harbor porpoises projected to be taken under its proposed plan.
Response: The HPTRP and EA document includes a discussion of the
expected harbor porpoise bycatch levels under this proposed HPTRP.
Overall, NMFS expects harbor porpoise bycatch in the NE multispecies
sink gillnet fishery to be reduced to 309 animals per year and expects
harbor porpoise bycatch in the Mid-Atlantic coastal gillnet fishery to
be reduced to below 50 animals per year.
Comment 41: One commenter requested that NMFS explain the reason
for delay in publishing the TRP and how it will avoid delays in future.
NMFS should commit to acting expeditiously on future TRPs.
Response: Two primary reasons caused delays in acting on the rule
proposed in 1997: (1) New information
[[Page 48685]]
on bycatch was available and the GOMTRT had requested that NMFS convene
the team when the 1996 bycatch estimates became available and (2)
management actions being considered under the Magnuson-Stevens Act for
GOM cod were expected to have a significant impact on the sink gillnet
fishery in New England in the areas that are also responsible for high
bycatch of harbor porpoise. Development of a revised proposal was
pending an analysis of the impacts of this new information.
Classification
The proposed rule has been determined to be significant for
purposes of E.O. 12866.
NMFS prepared an IRFA that describes the impact this proposed rule,
if adopted, would have on small entities. The need for, and objectives
of this proposed rule and a summary of the significant issues are
described elsewhere in this preamble. The GOM sink gillnet and Mid-
Atlantic coastal gillnet fisheries are directly affected by the
proposed action and are composed primarily of small business entities.
In formulating this proposed rule, NMFS considered a number of
alternatives: Alternative 1, the proposed action; Alternative 2, no
action; Alternative 3, wide-spread use of pingers; and Alternative 4,
wide-spread time and area closures.
Alternative 1, the proposed action, a combination of area closures
and pinger requirements, is the preferred alternative because it will
achieve the goals of the MMPA while minimizing the overall economic
impact.
Under Alternative 1, it is estimated that 113 vessels (41% of
total, 64% of impacted) would see their total costs increase more than
5%. If the 10% threshold is used, 70 vessels (26% of total, 40% of
impacted) would see their total costs increase more than 10%. The cost
increase was due to purchasing new gear or pingers, and the cost of
gear marking requirements. Vessels could avoid these cost increases by
not fishing during the time periods when they would have to modify
their gear or use pingers. However, they would then lose some
percentage of their yearly profit. The total economic losses of the
proposed action from the New England and the Mid-Atlantic regions are
estimated to be between $613 thousand dollars and $5.3 million dollars
depending on the number of vessels which can shift their effort to open
areas and the number which use pingers.
The costs associated with this proposed rule are not related to
reporting requirements. To the extent that the proposed rule would
allow fishery participants to select whether to acquire a new gear type
or avoid the time/area closures, performance requirements can be
substituted for design requirements at the participant's discretion.
Since most of the affected entities are small entities, providing an
exemption for small entities would not enable the agency to meet the
conservation and management goals of the MMPA.
Currently, the NE sink gillnet fishery is subject to regulations
under the NE Multispecies Fishery Management Plan. Recent NE groundfish
conservation measures were proposed under Framework Adjustment 25 to
the NE Multispecies FMP. The predominant Mid-Atlantic gillnet fisheries
are not subject to regulations under a fishery management plan at this
time. The proposed rule is designed to complement Framework 25 and
other fishery management regulations. The recommendations of the GOMTRT
were modified by NMFS to take into consideration the combined effect of
Framework 25 and the HPTRP on NE fishermen.
Under Alternative 2, there would be no additional costs to the
fleet either through gear modifications, purchase of pingers or losses
in surplus due to time and area closures. Therefore, based on costs
which the fleet would incur, this alternative is the least costly when
compared to the proposed action or non-preferred alternatives. However,
there is a much larger cost in terms of foregone harbor porpoise
protection. Based on the contingent valuation study conducted by the
University of Maryland (Strand, et al., 1994), households in
Massachusetts were willing to pay between $176 dollars and $364 dollars
to eliminate human induced mortality of 1,000 harbor porpoise. Using
the lower figure of $176 dollars multiplied by the number of
Massachusetts households, and amortizing the total using a 7% rate
yielded a yearly value of roughly $28 million dollars. This means that
decreasing mortality by 1,000 animals would increase consumer surplus
by $28 million dollars. Therefore, when compared against the other
alternatives, the status quo is far inferior because it does not
achieve the same level of consumer surplus due to a higher level of
harbor porpoise mortality.
Alternative 3 would require all vessels fishing between September
and May in New England, and between January and April in the Mid-
Atlantic to use pingers. Each vessel owner would decide whether to
purchase pingers based on their own set of circumstances. Each pinger
was estimated to cost $50 dollars based on information obtained from
Sea Sampling personnel. It is assumed that there would be one pinger
required per net, and one on each buoy line. Using the average number
of nets and strings fished in each region, a weighted average $3,437
dollars per vessel was estimated for the cost of pingers which
translates into a total fleet cost of $608 thousand dollars.
The cost of pingers was estimated to be $608 thousand dollars if
all vessels purchase pingers. However, some vessels may be unable to
afford pingers. This would increase the total losses because vessels
which were unable to afford pingers would have to stay tied up at the
dock and therefore lose revenue. It is assumed that losses in producer
surplus are linearly related to the percent of vessels which purchase
pingers. For example, if 50 percent of the vessels use pingers, then
the losses in producer surplus and crew rents will be reduced by 50
percent. Total pinger costs are also estimated based on the percent of
vessels which purchase pingers. Losses calculated using these
assumptions are estimated to be between zero and $7.4 million dollars.
In reality, vessels can either purchase pingers and continue to
fish, shift their effort to other areas, or elect not to purchase
pingers and stay tied up at the dock. Because the time and areas where
pingers are required are quite extensive, it is unlikely that vessels
will be able to switch areas and continue fishing without pingers.
Without a more formal model, it is not possible to predict the number
of vessels which will adopt either strategy.
This alternative is not preferred because it is highly unlikely
that it could achieve the bycatch reduction goals of the MMPA for
harbor porpoise because pingers have not been proven to be effective in
all areas at all times. In addition, there are a number of scientific
concerns regarding the impacts of widespread pinger use on harbor
porpoise and other marine organisms.
The total loss in producer surplus and crew rents for both regions
from Alternative 4 would be $7.4 million dollars. Overall, 177 vessels
would be impacted for a per vessel loss of roughly $42 thousand
dollars. As described in the IRFA, the cost to the fishery in terms of
economic impacts would vary by area closure. Refer to the IRFA for a
discussion of the impacts of this alternative based on the closure
variations.
Vessels could shift their operations to other areas and make up for
any revenue loss. This puts bounds on the losses of
[[Page 48686]]
between zero, if revenue was totally replaced in other areas, and $7.4
million dollars. For this alternative, it will be more difficult for
vessels to shift to other times and areas because the areas are all
closed at the same time. There is the opportunity for New England
vessels to move to the Mid-Atlantic in the fall, or the NE closure
area. Some may do so, but it is likely that most would not be able to
switch. Gillnet vessels have traditionally fished in certain times and
areas depending on many factors, including the vessels homeport.
Because these times and areas are so extensive, it is unlikely that
many vessels will be able to shift their operations and replace lost
revenue.
Because the times and areas designated for closure are so
extensive, it is likely that this alternative would reduce harbor
porpoise mortality to close to zero. The trade-off for this reduction
would be a much higher cost to the fishing fleet, and possibly higher
likelihood of business failure, therefore this alternative is not
preferred. However, it is not possible to evaluate the trade-off
between reduced harbor porpoise mortality and increased costs. Based on
the contingent valuation study (Strand et al., 94) discussed earlier,
harbor porpoise are highly valued by consumers.
This proposed rule contains a collection-of-information requirement
subject to the Paperwork Reduction Act (PRA). This collection-of-
information requirement has been submitted to the Office of Management
and Budget for approval. Under the PRA, gear marking regulations are
considered a reporting requirement, and the burden hours need to be
estimated.
The proposed rule requires nets in the Mid-Atlantic region to be
marked in order to identify the vessel and enforce net cap provisions.
It is estimated that each tag will take 1 minute to attach to the net.
Each net requires two net tags. The total number of nets which will
need to be tagged is estimated by assuming that combination gillnet
vessels are, on average, fishing 60 nets, and all other vessels are, on
average, fishing 30 nets. This gives a weighted average of 49 nets per
vessel. Using these figures, the total burden hours for all vessels
impacted in the Mid-Atlantic region is estimated to be 123.9 hours, or
1.63 hours per vessel.
The 76 vessel owner/operators will have to order net tags.
Estimated at 2 minutes per request, this adds a burden of 2.5 hours.
Depending on whether net tags are lost or damaged, vessels are expected
to only have to comply once over three years. The annual average over
the 3 years would be 25.3 vessels affected and 42 hours.
Public comment is sought regarding: Whether this proposed
collection of information is necessary for the proper performance of
the functions of the agency, including whether the information has
practical utility; the accuracy of the burden estimate; ways to enhance
the quality, utility, and clarity of the information to be collected;
and ways to minimize the burden of the collection of information,
including through the use of automated collection techniques or other
forms of information technology.
Send comments regarding these burden estimates or any other aspect
of the data requirements, including suggestions for reducing the
burden, to NMFS (see ADDRESSES) and to the Office of Information and
Regulatory Affairs, Office of Management and Budget, Washington, DC
20503 (ATTN: NOAA Desk Officer).
Notwithstanding any other provision of law, no person is required
to respond to nor shall a person be subject to a penalty for failure to
comply with a collection of information subject to the requirements of
the PRA unless that collection of information displays a currently
valid OMB control number.
References
Kraus, S., A. Read, E. Anderson, A. Solow, T. Spradlin, and J.
Williamson. 1995. A field test of the use of acoustic alarms to
reduce incidental mortality of harbor porpoise in gillnets. Draft
final report to the Gulf of Maine Take Reduction Team.
Kraus, S., A. Read, E. Anderson, A. Solow, T. Spradlin, and J.
Williamson. 1997. Acoustic alarms reduce porpoise mortality. Nature.
Vol. 388: p. 525.
Kraus, S., S. Brault, and K. Baldwin. 1997. A springtime field test
of the use of pingers to reduce incidental mortality of harbor
porpoises in gill nets. Draft Final Report.
Reeves, R., R. Hofman, G. Silber, and D. Wilkinson. 1996. Acoustic
deterrence of harmful marine mammal-fishery interactions:
Proceedings of a workshop held in Seattle, Washington, 20-22 March
1996. U.S. Dept. Commerce, NOAA Tech. Memo. NMFS-OPR-10, 68 pp.
Waring, G., D. Palka, K. Mullin, J. Hain, L. Hansen, and K. Bisack.
1997. U.S. Atlantic and Gulf of Mexico Marine Mammal Stock
Assessments--1996. Woods Hole, MA: NMFS, NEFSC, NOAA Technical
Memo., NMFS-NE-114
List of Subjects in 50 CFR Part 229
Administrative practice and procedure, Confidential business
information, Fisheries, Marine mammals, Reporting and recordkeeping
requirements.
Dated: September 3, 1998.
Rolland A. Schmitten,
Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For the reasons set out in the preamble, 50 CFR part 229 is
proposed to be amended as follows:
PART 229--AUTHORIZATION FOR COMMERCIAL FISHERIES UNDER THE MARINE
MAMMAL PROTECTION ACT OF 1972
1. The authority citation for part 229 continues to read as
follows:
Authority: 16 U.S.C. 1361 et seq.
2. In Sec. 229.2, definitions for ``large mesh gillnet,'' ``mesh
size,'' ``Mudhole,'' ``small mesh gillnet,'' ``southern Mid-Atlantic
waters,'' ``stowed,'' ``tie-down,'' and ``waters off New Jersey'' are
added, in alphabetical order, to read as follows:
Sec. 229.2 Definitions.
* * * * *
Large mesh gillnet means a gillnet constructed with a mesh size of
7(17.78 cm) inches to 18 inches (45.72 cm).
* * * * *
Mesh size means the distance between inside knot to inside knot.
Mesh size is measured as described in Sec. 648.80(f)(1).
* * * * *
Mudhole means waters off New Jersey bounded as follows: From the
point 40 deg.30' N. latitude where it intersects with the shoreline of
New Jersey east to its intersection with 73 deg.20' W. longitude, then
south to its intersection with 40 deg.05' N. latitude, then west to its
intersection with the shoreline of New Jersey.
* * * * *
Small mesh gillnet means a gillnet constructed with a mesh size
less than 7 inches (17.78 cm).
Southern Mid-Atlantic waters means all state and Federal waters off
the States of Delaware, Maryland, Virginia, and North Carolina, bounded
on the north by a line extending eastward from the northern shoreline
of Delaware at 38 deg.47' N. latitude (the latitude that corresponds
with Cape Henlopen, DE), east to its intersection with 72 deg.30'W
longitude, south to the 33 deg.51' N. latitude (the latitude that
corresponds with the North Carolina/South Carolina border), and then
west to its intersection with the shoreline of the North Carolina/South
Carolina border.
* * * * *
Stowed means nets that are unavailable for use and that are stored
in accordance with the regulations found in Sec. 648.81(e) of this
title.
* * * * *
[[Page 48687]]
Tie-down refers to twine used between the floatline and the lead
line as a way to create a pocket or bag of netting to trap fish alive.
* * * * * *
Waters off New Jersey means all state and Federal waters off New
Jersey, bounded on the north by a line extending eastward from the
southern shoreline of Long Island, NY at 40 deg.40' N. latitude, on the
south by a line extending eastward from the northern shoreline of
Delaware at 38 deg.47' N. latitude (the latitude that corresponds with
Cape Henlopen, DE), and on the east by the 72 deg.30'W longitude. This
area includes the Mudhole.
* * * * *
3. In Sec. 229.3, paragraphs (l) through (q) are added to read as
follows:
Sec. 229.3 Prohibitions.
* * * * *
(l) It is prohibited to fish with, set, haul back, possess on board
a vessel unless stowed, or fail to remove sink gillnet gear or gillnet
gear capable of catching multispecies, with the exception of a single
pelagic gillnet (as described and used as set forth in
Sec. 648.81(f)(2)(ii)) of this title, from the areas and for the times
specified in Sec. 229.33(a)(1) through (a)(6), except as provided in
Sec. 229.33(d)(1) through (d)(4).
(m) It is prohibited to fish with, set, haul back, possess on board
a vessel unless stowed, or fail to remove any gillnet gear from the
areas and for the times as specified in Sec. 229.34(b)(1)(ii) or (iii)
or (b)(2)(ii).
(n) It is prohibited to fish with, set, haul back, possess on board
a vessel unless stowed, or fail to remove any large mesh or small mesh
gillnet gear from the areas and for the times specified in
Sec. 229.34(c)(1) through (4) unless the gear complies with the
specified gear restrictions set forth in those provisions.
(o) Beginning on January 1, 1999, it is prohibited to fish with,
set, or haul back sink gillnets or gillnet gear, or leave such gear in
closed areas where pingers are required, as specified under
Sec. 229.33(c)(1) through (4), unless the operator possesses on board
the vessel a valid pinger certification training certificate issued by
NMFS.
(p) Beginning on January 1, 2000, it is prohibited to fish with,
set, haul back, or possess any gillnet gear in Mid-Atlantic waters in
the areas and during the times specified under Sec. 229.34(d) unless
the gear is properly tagged in compliance with that provision and
unless a net tag certificate is on board the vessel. It is prohibited
to refuse to produce a net tag certificate or net tags upon the request
of an authorized officer.
(q) Net tag requirement. Beginning on January 1, 2000, no vessel
may fish with gillnet gear in New Jersey waters from January 1 through
April 30 or in southern Mid-Atlantic waters from February 1 through
April 30 unless the gillnet is properly tagged. In order to be properly
tagged, one tag must be secured to each bridle of every net within the
string of nets. The owner or operator of fishing vessels must indicate
to NMFS the number of gillnet tags that they are requesting up to the
maximum number of nets allowed in those paragraphs and must include a
check for the cost of the tags. Vessel owners and operators will be
given notice with instructions informing them of the costs associated
with this tagging requirement and directions for obtaining tags. Tag
numbers will be unique for each vessel and recorded on a certificate.
The vessel operator must produce the certificate and all net tags upon
request by an authorized officer.
4. In subpart C, a new Sec. 229.33 is added to read as follows:
Sec. 229.33 Harbor Porpoise Take Reduction Plan implementing
regulations--Gulf of Maine.
(a) Restrictions--(1) Northeast Closure Area. From August 15
through September 13 of each fishing year, it is prohibited to fish
with, set, haul back, possess on board a vessel unless stowed, or fail
to remove sink gillnet gear or gillnet gear capable of catching
multispecies, with the exception of a single pelagic gillnet (as
described in Sec. 648.81(f)(2)(ii) of this title), from Northeast
Closure Area. The Northeast Closure Area is the area bounded by
straight lines connecting the following points in the order stated.
Northeast Closure Area
------------------------------------------------------------------------
Point N. Lat. W. Long.
------------------------------------------------------------------------
NE1.............................. (\1\) 68 deg.55.0',
NE2.............................. 43 deg.29.6' 68 deg.55.0',
NE3.............................. 44 deg.04.4 \1\ 67 deg.48.7',
NE4.............................. 44 deg.06.9' 67 deg.52.8',
NE5.............................. 44 deg.31.2' 67 deg.02.7',
NE6.............................. (\1\) 67 deg.02.7'
------------------------------------------------------------------------
\1\ Maine shoreline.
(2) Mid-coast Closure Area. From September 15 through May 31, it is
prohibited to fish with, set, haul back, possess on board a vessel
unless stowed, or fail to remove sink gillnet gear or gillnet gear
capable of catching multispecies, with the exception of a single
pelagic gillnet (as described in Sec. 648.81(f)(2)(ii) of this title),
from the Mid-Coast Closure Area, except as provided in
Sec. 229.33(d)(1).
The Mid-Coast Closure Area is the area bounded by straight lines
connecting the following points in the order stated:
Mid-Coast Closure Area
------------------------------------------------------------------------
Point N. Lat. W. Long.
------------------------------------------------------------------------
MC1.............................. 42 deg.30' (\1\)
MC2.............................. 42 deg.30 \1\ 70 deg.15'
MC3.............................. 42 deg.40' 70 deg.15'
MC4.............................. 42 deg.40' 70 deg.00'
MC5.............................. 43 deg.00' 70 deg.00'
MC6.............................. 43 deg.00' 69 deg.o30'
MC7.............................. 43 deg.30' 69 deg.30'
MC8.............................. 43 deg.30' 69 deg.00'
MC9.............................. (\2\) 69 deg.00'
------------------------------------------------------------------------
\1\ Massachusetts shoreline.
\2\ Maine shoreline.
(3) Massachusetts Bay Closure Area. From February 1 through May 31,
it is prohibited to fish with, set, haul back, possess on board a
vessel unless stowed, or fail to remove sink gillnet gear or gillnet
gear capable of catching multispecies, with the exception of a single
pelagic gillnet (as described in Sec. 648.81(f)(2)(ii) of this title),
from the Massachusetts Bay Closure Area, except as provided in
Sec. 229.33(d)(2). The Massachusetts Bay Closure Area is the area
bounded by straight lines connecting the following points in the order
stated.
Massachusetts Bay Closure Area
------------------------------------------------------------------------
Point N. Lat. W. Long.
------------------------------------------------------------------------
MB1.............................. 42 deg.30' (\1\)',
MB2.............................. 42 deg.30' 70 deg.30',
MB3.............................. 42 deg.12' 70 deg.30',
MB4.............................. 42 deg.12' 70 deg.00',
MB5.............................. (\2\) 70 deg.00',
MB6.............................. 42 deg.00' (\2\),
MB7.............................. 42 deg.00' (\1\)
------------------------------------------------------------------------
\1\ Massachusetts shoreline.
\2\ Cape Cod shoreline.
(4) Cape Cod South Closure Area. From September 15 through April
30, it is prohibited to fish with, set, haul back, possess on board a
vessel unless stowed, or fail to remove sink gillnet gear or gillnet
gear capable of catching multispecies, with the exception of a single
pelagic gillnet (as described in Sec. 648.81(f)(2)(ii) of this title),
from Cape Cod South Closure Area, except as provided in
Sec. 229.33(d)(3).
The Cape Cod South Closure Area is the area bounded by straight
lines connecting the following points in the order stated.
Cape Cod South Closure Area
------------------------------------------------------------------------
Point N. Lat. W. Long.
------------------------------------------------------------------------
CCS1............................. (\1\) 71 deg.45',
[[Page 48688]]
CCS2............................. 40 deg.40' 71 deg.45',
CCS3............................. 40 deg.40' 70 deg.30',
CCS4............................. (\2\) 70 deg.30'
------------------------------------------------------------------------
\1\ Rhode Island shoreline
\2\ Massachusetts shoreline.
( 5) Offshore Closure Area. From September 15 through May 31, it is
prohibited to fish with, set, haul back, possess on board a vessel
unless stowed, or fail to remove sink gillnet gear or gillnet gear
capable of catching multispecies, with the exception of a single
pelagic gillnet (as described in Sec. 648.81(f)(2)(ii)of this title),
from Offshore Closure Area, except as provided in Sec. 229.33(d)(4).
This requirement becomes effective November 1, 1998.
The Offshore Closure Area is the area bounded by straight lines
connecting the following points in the order stated:
Offshore Closure Area
------------------------------------------------------------------------
Point N. Lat. W. Long.
------------------------------------------------------------------------
OFS1............................. 42 deg.50' 69 deg.35'
OFS2............................. 43 deg.10' 69 deg.10'
OFS3............................. 43 deg.10' 67 deg.40'
OFS4............................. 42 deg.10' 69 deg.10'
OFS5............................. 42 deg.10' 69 deg.30'
------------------------------------------------------------------------
(6) Cashes Ledge Closure Area. For the month of February of each
fishing year, it is prohibited to fish with, set, haul back, possess on
board a vessel unless stowed, or fail to remove sink gillnet gear or
gillnet gear capable of catching multispecies, with the exception of a
single pelagic gillnet (as described in Sec. 648.81(f)(2)(ii) of this
title), from the Cashes Ledge Closure Area. The Cashes Ledge Closure
Area is the area bounded by straight lines connecting the following
points in the order stated:
Cashes Ledge Closure Area
------------------------------------------------------------------------
Point N. Lat. W. Long.
------------------------------------------------------------------------
CL1.............................. 42 deg.30' 69 deg.00',
CL2.............................. 42 deg.30' 68 deg.30',
CL3.............................. 43 deg.00' 68 deg.30',
CL4.............................. 43 deg.00' 69 deg.00',
CL5.............................. 42 deg.30' 69 deg.00'
------------------------------------------------------------------------
(b) Pingers. (1) Pinger Specifications. For the purposes of this
subpart, a pinger is an acoustic deterrent device which, when immersed
in water, broadcasts a 10 kHz (2 kHz) sound at 132 dB
(4 dB) re 1 micropascal at 1 m, lasting 300 milliseconds
( 15 milliseconds), and repeating every 4 seconds
( .2 seconds).
(2) Pinger attachment. An operating and functional pinger must be
attached at the end of each string of the gillnets and at the bridle of
every net within a string of nets.
(c) Pinger training and certification. Beginning on January 1,
1999, the operator of a vessel may not fish with, set or haul back sink
gillnets or gillnet gear, or allow such gear to be in closed areas
where pingers are required as specified under paragraph (b) of this
section, unless the operator has satisfactorily completed the pinger
certification training program, and, possesses on board the vessel a
valid pinger training certificate issued by NMFS. Notice will be given
announcing the times and locations of pinger certification training
programs.
(d) Use of pingers in closed areas. (1) Vessels, subject to the
restrictions and regulations specified in paragraph (a) of this
section, may fish in the Mid-coast Closure Area from September 15
through May 31 of each fishing year, provided that pingers are used in
accordance with the requirements of paragraph (b) of this section.
(2) Vessels, subject to the restrictions and regulations specified
in paragraph (a) of this section, may fish in the Massachusetts Bay
Closure Area from February 1 through the last day of February and from
April 1 through May 31 of each fishing year, provided that pingers are
used in accordance with the requirements of paragraph (b) of this
section.
(3) Vessels, subject to the restrictions and regulations specified
in paragraph (a) of this section, may fish in the Cape Cod South
Closure Area from September 15 through the last day of February and
from April 1 through April 30 of each fishing year, provided that
pingers are used in accordance with the requirements of paragraph (b)
of this section.
(4) Vessels, subject to the restrictions and regulations specified
in paragraph (a) of this section, may fish in the Offshore Closure Area
from September 15 through May 31 of each fishing year, with the
exception of the Cashes Ledge Closure Area. From February 1 through the
end of February the area within the Offshore Closure Area defined as
``Cashes Ledge'' is closed to all fishing with sink gillnets. Vessels
subject to the restrictions and regulation specified in paragraph (a)
of this section may fish in the Offshore Closure Area outside of the
Cashes Ledge Area from February 1 through the end of February provided
that pingers are used in accordance with the requirements of paragraph
(b) of this section.
(e) Other special measures. The Assistant Administrator may revise
the requirements of this section through notification published in the
Federal Register if:
(1) NMFS verifies one year after plan implementation, that pinger
operating effectiveness in the commercial fishery is not adequate to
reduce bycatch to acceptable levels with the current plan.
(2) NMFS determines that the boundary or timing of a closed area
are not appropriate, or that gear modifications (including pingers) are
not meeting bycatch reduction expectations. Specifically, observer data
shows that PBR has been exceeded between January 1 and April 30 every
year between 1992-1996. Therefore, NMFS will review effort and bycatch
data and make a determination by June 30 each year if additional
bycatch reduction measures beyond the TRP are needed for the remainder
of the calendar year to keep the annual bycatch level below the PBR
level.
5. In subpart C, a new Sec. 229.34 is added to read as follows:
Sec. 229.34 Harbor Porpoise Take Reduction Plan--Mid-Atlantic.
(a)(1) Regulated waters. The regulations in this section apply to
all waters in the Mid-Atlantic bounded on the east by 72 deg.30' W.
longitude and on the south by the North Carolina/South Carolina border
(33 deg.51' N. latitude), except for the areas exempted in paragraph
(a)(2) of this section.
(2) Exempted waters. All waters landward of the first bridge over
any embayment, harbor, or inlet will be exempted. The regulations in
this section do not apply to waters landward of the following lines:
New York
40 deg.45.70' N 72 deg.45.15'W TO 40 deg. 45.72' N 72 deg.45.30' W
(Moriches Bay Inlet)
40 deg.37.32' N 73 deg. 18.40' W TO 40 deg. 38.00' N 73 deg.18.56' W
(Fire Island Inlet)
40 deg.34.40' N 73 deg.34.55' W TO 40 deg.35.08' N 73 deg.35.22' W
(Jones Inlet)
New Jersey
39 deg. 45.90# N 74 deg.05.90' W TO 39 deg.45.15' N 74 deg. 06.20' W
(Barnegat Inlet)
39 deg.30.70' N 74 deg.16.70' W TO 39 deg.26.30' N 74 deg.19.75' W
(Beach Haven to Brigantine Inlet)
38 deg.56.20' N 74 deg.51.70' W TO 38 deg.56.20' N 74 deg.51.90' W
(Cape May Inlet)
39 deg.16.70# N 75 deg.14.60' W TO 39 deg.11.25' N 75 deg.23.90' W
(Delaware Bay)
Maryland/Virginia 38 deg.19.48' N 75 deg.05.10' W TO 38 deg.19.35' N
75 deg.05.25' W (Ocean City Inlet)
[[Page 48689]]
37 deg.52.' N 75 deg.24.30' W TO 37 deg.11.90' N 75 deg.48.30' W
(Chincoteague to Ship Shoal Inlet)
37 deg.11.10' N 75 deg.49.30' W TO 37 deg.10.65' N 75 deg.49.60' W
(Little Inlet)
37 deg.07.00' N 75 deg.53.75' W TO 37 deg.05.30' N 75 deg.56.' W
(Smith Island Inlet)
North Carolina
All marine and tidal waters landward of the 72 COLREGS
demarcation line (International Regulations for Preventing
Collisions at Sea, 1972), as depicted or noted on nautical charts
published by the National Oceanic and Atmospheric Administration
(Coast Charts 1:80,000 scale), and as described in 33 CFR part 80.
(b) Restrictions--(1) Waters off New Jersey.
(i) General Restrictions. From January 1 through April 30, it is
prohibited to fish with, set, haul back, possess on board a vessel
unless stowed, or fail to remove any gillnet gear from the waters off
New Jersey unless the gear complies with the applicable gear
characteristics specified under paragraph (c)(1) or (2) of this
section.
(ii) Closure for large mesh gear. From April 1 through April 20, it
is prohibited to fish with, set, haul back, possess on board a vessel
unless stowed, or fail to remove any large mesh gillnet gear from the
waters off New Jersey.
(iii) Mudhole closure. From February 15 through March 15, it is
prohibited to fish with, set, haul back, possess on board a vessel
unless stowed, or fail to remove any gillnet gear from the waters off
New Jersey known as the Mudhole.
(2) Southern Mid-Atlantic waters. (i) General restrictions. From
February 1 through April 30, it is prohibited to fish with, set, haul
back, possess on board a vessel unless stowed, or fail to remove any
gillnet gear from the southern Mid-Atlantic waters unless the gear
complies with the applicable gear characteristics specified under
paragraph (c)(2) or (3) of this section.
(ii) Closure for large mesh gear. From February 15 through March
15, it is prohibited to fish with, set, haul back, possess on board a
vessel unless stowed, or fail to remove any large mesh gillnet gear
from the southern Mid-Atlantic waters.
(c) Gear requirements and limitations. (1) Waters off New Jersey-
large mesh gear requirements and limitations. From January 1 through
April 30 of each year, no person may fish with large mesh gillnet gear
in waters off New Jersey unless the gear complies with the specified
gear characteristics. During this period, no person who owns or
operates the vessel may allow the vessel to enter or remain in waters
off New Jersey with large mesh gillnet gear on board unless the gear
complies with the specified gear characteristics or unless the gear is
stowed. In order to comply with these specified gear characteristics,
the gear must have all the following characteristics:
(i) Floatline Length. The floatline is no longer than 4,800 ft
(1,463.0 m), and if the gear is used in the Mudhole, the floatline is
no longer than 3,900 ft (1,188.7 m).
(ii) Twine Size. The twine is at least 0.04 inches (0.090 cm) in
diameter.
(iii) Size of nets. Individual nets or net panels are not more than
300 ft (91.44 m), or 50 fathoms, in length.
(iv) Number of nets. The total number of individual nets or net
panels for a vessel, including all nets on board the vessel, hauled by
the vessel or deployed by the vessel, does not exceed 80.
(v) Tie-down system. The gillnet is equipped with tie-downs spaced
not more than 15 ft (4.6 m) apart along the floatline, and each tie-
down is not more than 48 inches (18.90 cm) in length from the point
where it connects to the floatline to the point where it connects to
the lead line.
(vi) Tagging requirements. Beginning January 1, 2000, the gillnet
is equipped with two tags per net, with one tag secured to each bridle
of every net within a string of nets.
(2) Waters off New Jersey--small mesh gillnet gear requirements and
limitations. From January 1 through April 30 of each year, no person
may fish with small mesh gillnet gear in waters off New Jersey unless
the gear complies with the specified gear characteristics. During this
period, no person who owns or operates the vessel may allow the vessel
to enter or remain in waters off New Jersey with small mesh gillnet
gear on board unless the gear complies with the specified gear
characteristics or unless the gear is stowed. In order to comply with
these specified gear characteristics, the gear must have all the
following characteristics:
(i) Floatline Length. The floatline is less than 3,000 ft (914.4
m).
(ii) Twine Size. The twine is at least 0.03 inches (0.080 cm) in
diameter. This requirement only applies to mesh more than 4 inches
(10.2 cm) but less than 7 inches (17.78 cm) in size.
(iii) Size of nets. Individual nets or net panels are not more than
300 ft (1.4 m or 50 fathoms) in length.
(iv) Number of nets. The total number of individual nets or net
panels for a vessel, including all nets on board the vessel, hauled by
the vessel or deployed by the vessel, does not exceed 45.
(v) Tie-down System. Tie-downs are prohibited.
(vi) Tagging requirements. Beginning January 1, 2000, the gillnet
is equipped with two tags per net, with one tag secured to each bridle
of every net within a string of nets.
(3) Southern Mid-Atlantic waters--large mesh gear requirements and
limitations. From February 1 through April 30 of each year, no person
may fish with large mesh gillnet gear in Southern Mid-Atlantic waters
unless the gear complies with the specified gear characteristics.
During this period, no person who owns or operates the vessel may allow
the vessel to enter or remain in Southern Mid-Atlantic waters with
large mesh sink gillnet gear on board unless the gear complies with the
specified gear characteristics or unless the gear is stowed. In order
to comply with these specified gear characteristics, the gear must have
all the following characteristics:
(i) Floatline Length. The floatline is no longer than 3,900 ft
(1,188.7 m).
(ii) Twine Size. The twine is at least 0.04 inches (0.090 cm) in
diameter.
(iii) Size of nets. Individual nets or net panels are not more than
300 ft (91.4 m or 50 fathoms) in length.
(iv) Number of nets. The total number of individual nets or net
panels for a vessel, including all nets on board the vessel, hauled by
the vessel or deployed by the vessel, does not exceed 80.
(v) Tie-down system. The gillnet is equipped with tie-downs spaced
not more than 15 ft (4.6 m) apart along the floatline, and each tie-
down is not more than 48 inches (18.90 cm) in length from the point
where it connects to the floatline to the point where it connects to
the lead line.
(vi) Tagging requirements. Beginning January 1, 2000, the gillnet
is equipped with two tags per net, with one tag secured to each bridle
of every net within a string of nets.
(4) Southern Mid-Atlantic waters--small mesh gillnet gear
requirements and limitations. From February 1 through April 30 of each
year, no person may fish with small mesh gillnet gear in waters off New
Jersey unless the gear complies with the specified gear
characteristics. During this period, no person who owns or operates the
vessel may allow the vessel to enter or remain in Southern Mid-Atlantic
waters with small mesh gillnet gear on board unless the gear complies
with the specified gear characteristics or unless the gear is stowed.
In order to comply with these specified gear characteristics, the gear
must have all the following characteristics:
(i) Floatline Length. The floatline is no longer than 2118 ft
(645.6 m).
[[Page 48690]]
(ii) Twine Size. The twine is at least 0.03 inches (0.080 cm) in
diameter. This requirement applies only to mesh sizes <4 inches="" but="">7
inches.
(iii) Size of nets. Individual nets or net panels are not more than
300 ft (91.4 m or 50 fathoms) in length.
(iv) Number of nets. The total number of individual nets or net
panels for a vessel, including all nets on board the vessel, hauled by
the vessel or deployed by the vessel, does not exceed 45.
(v) Tie-down System. Tie-downs are prohibited.
(vi) Tagging requirements. Beginning January 1, 2000, the gillnet
is equipped with two tags per net, with one tag secured to each bridle
of every net within a string of nets.
(d) Other special measures. The Assistant Administrator may revise
the requirements of this section through notification published in the
Federal Register if:
(1) NMFS verifies one year after plan implementation, that pinger
operating effectiveness in the commercial fishery is not adequate to
reduce bycatch to acceptable levels with the current plan.
(2) NMFS determines that the boundary or timing of a closed area
are not appropriate, or that gear modifications (including pingers)are
not meeting bycatch reduction expectations. Specifically, NMFS will
review effort and bycatch data and make a determination by June 30 each
year if additional bycatch reduction measures are needed for the
remainder of the calendar year to keep the annual bycatch level below
the PBR level.
[FR Doc. 98-24306 Filed 9-8-98; 11:40 am]
BILLING CODE 3510-22-P
