Federal Register / Vol. 75, No. 33 / Friday, February 19, 2010 / Rules and Regulations 7383 

* * * * * 

Issued: February 4, 2010. 

David L. Strickland, 

Administrator. 

[FR Doc. 2010–2837 Filed 2–18–10; 8:45 am] 

BILLING CODE 4910–59–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 229 

[Docket No. 080721862–8864–01] 

RIN 0648–AW51 

Taking of Marine Mammals Incidental 

to Commercial Fishing Operations; 

Harbor Porpoise Take Reduction Plan 

Regulations 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: NMFS issues this final rule to 

amend the regulations implementing the 

Harbor Porpoise Take Reduction Plan 

(HPTRP) to address the increased 

incidental mortality and serious injury 

of the Gulf of Maine/Bay of Fundy 

(GOM/BOF) stock of harbor porpoises 

(Phocoena phocoena) in gillnet fisheries 

throughout the stock’s U.S. range. 

DATES: Effective March 22, 2010. 

ADDRESSES: Copies of the final 

Environmental Assessment (EA) and 

Regulatory Impact Review/Final 

Regulatory Flexibility Analysis (RIR/ 

FRFA) for this action, as well as the 

Harbor Porpoise Take Reduction Team 

(HPTRT) meeting summaries and 

supporting documents, may be obtained 

from the HPTRP Web site (http:// 

www.nero.noaa.gov/hptrp) or by writing 

to Diane Borggaard, NMFS, Northeast 

Region, Protected Resources Division, 

55 Great Republic Drive, Suite 04–400, 

Gloucester, MA 01930. 

FOR FURTHER INFORMATION CONTACT: 

Amanda Johnson, NMFS, Northeast 

Region, 978–282–8463, 

amanda.johnson@noaa.gov; or Melissa 

Andersen, NMFS, Office of Protected 

Resources, 301–713–2322, 

melissa.andersen@noaa.gov. 

SUPPLEMENTARY INFORMATION: 

Background 

The HPTRP was developed pursuant 

to section 118(f) of the Marine Mammal 

Protection Act (MMPA), 16 U.S.C. 

1361–1423h, to reduce the level of 

serious injury and mortality of the 

GOM/BOF stock of harbor porpoises. 

This final rule implements 

modifications to the HPTRP to address 

increased mortalities of harbor 

porpoises in commercial gillnet 

fisheries due to non-compliance with 

the HPTRP requirements and observed 

interactions occurring outside of 

existing HPTRP management areas. 

These modifications implement 

measures that apply to both the New 

England and Mid-Atlantic portions of 

the HPTRP. 

Recent harbor porpoise bycatch 

estimates indicate that, when 

calculating the average estimated 

mortality for the period between 2002 

and 2006, bycatch exceeded the stock’s 

potential biological removal level (PBR). 

The 2008 Stock Assessment Report 

(SAR) indicates that the current annual 

estimated harbor porpoise incidental 

bycatch is 866 animals per year, which 

exceeds the current PBR of 610 animals 

(Waring et al., 2009). In December 2007, 

NMFS reconvened the HPTRT to 

discuss the most recent harbor porpoise 

abundance and bycatch information for 

gillnet fisheries from Maine through 

North Carolina. The HPTRT used this 

information to develop a suite of 

recommended modifications to the 

HPTRP that would reduce takes to 

below the stock’s PBR level and to a rate 

approaching a zero mortality and 

serious injury rate, known as the zero 

mortality rate goal (ZMRG), which is 

defined as 10 percent of PBR. The 

recommendations included expanding 

seasonal and temporal requirements 

within the HPTRP management areas, 

incorporating additional management 

areas, and creating areas that would 

seasonally close to gillnet fisheries if 

certain levels of harbor porpoise bycatch 


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7384 Federal Register / Vol. 75, No. 33 / Friday, February 19, 2010 / Rules and Regulations 

are exceeded (consequence closure area 

strategy). 

The HPTRT also recommended a 

number of non-regulatory measures that 

complement NMFS’ strategy for 

monitoring the effectiveness of the 

HPTRP. NMFS will collaborate with its 

state partners in both the New England 

and Mid-Atlantic regions to conduct 

annual workshops with gillnet 

fishermen to increase compliance with 

the HPTRP and to provide information 

on recent compliance and harbor 

porpoise bycatch data. These meetings 

are especially important for gillnet 

fishermen in New England who fish in 

those HPTRP management areas that 

could potentially be impacted by the 

consequence closure strategy. 

Additionally, codifying the HPTRP into 

state regulations has the potential to 

increase compliance through future 

joint enforcement efforts between NMFS 

and state agencies. 

NMFS supports efforts undertaken by 

the states to develop education and 

enforcement efforts to increase HPTRP 

compliance, and will assist in these 

efforts as needed. NMFS will assist 

these efforts by providing HPTRT 

members with annual compliance and 

bycatch information for both New 

England and the Mid-Atlantic, based on 

observed harbor porpoise serious 

injuries and mortalities. It is crucial that 

HPTRT members disseminate this 

information to their constituents, 

especially the gillnet industry, because 

these updates will analyze harbor 

porpoise bycatch rates in comparison to 

the target bycatch rates specified for the 

consequence closure areas. 

To support the implementation of the 

regulatory and non-regulatory 

components of this action, NMFS will 

continue to work with its partners to 

monitor compliance and enforce the 

regulatory components of the HPTRP. In 

addition to collecting vital fisheries and 

incidental take information, the 

Northeast Fisheries Observer Program 

will continue its efforts to acquire new 

pinger detectors that will be sufficient 

for field use. NMFS also will continue 

its enforcement efforts through 

collaboration with its state enforcement 

partners, as well as the U.S. Coast Guard 

and NOAA Office of Law Enforcement. 

Such efforts include directed 

enforcement patrols and detecting 

functional pingers through the use of inwater pinger detection devices. 

NMFS issued a proposed rule (74 FR 

63058, July 21, 2009) that included a 

suite of additional HPTRP measures that 

will reduce harbor porpoise mortality 

due to interaction with commercial 

gillnet fisheries in New England and the 

Mid-Atlantic to levels below the stock’s 

current PBR of 610 animals. This final 

rule implements the measures, many of 

which were based on consensus 

recommendations from the HPTRT, 

contained in the proposed rule. This 

action pursues the conservation goals 

established by the MMPA to reduce 

harbor porpoise bycatch to below PBR, 

and approaching insignificant levels. 

Detailed background information on 

the development of this action, 

including a review of regional harbor 

porpoise bycatch information and 

recommendations provided to NMFS by 

the HPTRT, was provided in the July 21, 

2009, proposed rule and is not repeated 

here. 

Modifications to the HPTRP 

This action addresses the bycatch of 

harbor porpoises that is currently above 

the stock’s PBR level in New England 

and Mid-Atlantic waters. Many of the 

measures implemented through this rule 

are a result of consensus 

recommendations made by the HPTRT 

during their two recent meetings, which 

occurred in December 2007 and January 

2008. For New England, NMFS is 

expanding seasonal and temporal 

requirements within the HPTRP 

management areas, incorporating 

additional management areas, and 

establishing ‘‘consequence’’ closure 

areas, which would seasonally close 

specific areas to gillnet fishing, should 

the specified target bycatch rate be 

exceeded by the observed average 

bycatch rate over the course of two 

consecutive management seasons. In the 

Mid-Atlantic, NMFS is establishing an 

additional management area and 

modifying the current tie-down 

requirement for large mesh gillnet gear. 

Additionally, NMFS is incorporating a 

provision within both the New England 

and Mid-Atlantic regulations to allow 

research to be conducted within the 

HPTRP management areas when the 

research is authorized through a NMFS 

scientific research permit. Finally, 

NMFS is making regulatory text 

corrections and clarifications. 

New England Component 

In the New England component of the 

HPTRP, NMFS is augmenting the 

existing HPTRP by incorporating two 

new management areas with seasonal 

pinger requirements: The Stellwagen 

Bank and Southern New England 

Management Areas. The Stellwagen 

Bank Management Area will require 

pingers from November through May. 

The Southern New England 

Management Area will require pingers 

on gillnets from December through May, 

while retaining the Cape Cod South 

Closure Area during March. NMFS is 

modifying one of the latitudinal 

boundaries of the Massachusetts Bay 

Management Area to 42°15′ N. lat., to 

eliminate the small gap of unregulated 

waters between this management area 

and the southern boundary of the 

Western Gulf of Maine Closure Area 

under the Northeast Multispecies 

Fishery Management Plan. Additionally, 

NMFS is extending the seasonal pinger 

requirements in the Massachusetts Bay 

Management Area to include November. 

Figure 1 depicts the management 

measures for the New England 

component of the HPTRP implemented 

by this action. 

BILLING CODE 3510–22–P 


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This action also incorporates the 

concept of ‘‘consequence’’ closure areas 

to alleviate non-compliance with pinger 

requirements in certain management 

areas. The Cape Cod South Expansion 

and East of Cape Cod Consequence 

Closure Areas, and their associated 

seasonal gillnet gear closures, will be 

triggered if the observed average bycatch 

rate of harbor porpoises in the Southern 

New England Management Area exceeds 

the target bycatch rate of 0.023 harbor 

porpoise takes/mtons after two 

consecutive management seasons 

(December through May). If triggered, 

these two areas will be closed annually 

to gillnet fishing from February through 

April. When the consequence closure 

areas are not closed (December, January, 

and May), the seasonal pinger 

requirements of the Southern New 

England Management Area will remain 

in effect. 

The Coastal Gulf of Maine 

Consequence Closure Area, and its 

associated seasonal gillnet gear closure, 

will be triggered if the observed average 


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bycatch rates of harbor porpoises in the 

Mid-Coast, Stellwagen Bank, and 

Massachusetts Bay Management Areas 

(combined) exceed the target bycatch 

rate of 0.031 harbor porpoise takes/ 

mtons after two consecutive 

management seasons (September 15 

through May 31 for the Mid-Coast 

Management Area, and November 1 

through May 31 for the Stellwagen Bank 

and Massachusetts Bay Management 

Areas). If the target bycatch rate is met, 

this area will be closed annually to 

gillnet fishing in October and 

November. When this area is not closed, 

the seasonal requirements of the three 

management areas will remain in effect, 

including the March gillnet closure in 

the Massachusetts Bay Management 

Area. 

Figure 2 depicts the management 

measures for the New England 

component implemented by this action, 

including the three consequence closure 

areas. 


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If any of the consequence closure 

areas are triggered, they will remain in 

effect until bycatch levels of the GOM/ 

BOF stock of harbor porpoises approach 

ZMRG, or until the HPTRT and NMFS 

develop and implement new 

conservation measures. If the 

consequence closure areas are not 

triggered after the first two management 

seasons have elapsed, NMFS will 

continue to monitor the observed 

bycatch rates in these management areas 

and adopt a rolling trigger in which the 

most recent 2 years of bycatch 

information will be averaged and 

compared on an annual basis to the 

specified bycatch rates for each 

management area. 

All impacts of the consequence 

closure areas have been evaluated in the 

EA that accompanies this action. If it is 

necessary to establish consequence 

closure areas in the future, based on the 

most recent 2 years of observed harbor 


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porpoise bycatch data, NMFS will 

establish the appropriate consequence 

closure area(s) via notice in the Federal 

Register. 

Technical Corrections—New England 

Component 

This final rule incorporates all of the 

technical corrections for the New 

England component of the HPTRP as 

described in the preamble of the 

proposed rule. These include: (1) 

Incorporating shoreline latitude/ 

longitude coordinates to more clearly 

specify HPTRP management area 

boundaries; (2) renaming ‘‘closure’’ areas 

as ‘‘management’’ areas, except for areas 

that exist only as complete closures; (3) 

clarifying the geographical enclosure of 

the Offshore and Cashes Ledge 

Management Areas by repeating the first 

area coordinate as the last coordinate; 

(4) correcting the regulatory text for the 

Mid-Coast Management Area to indicate 

that gillnet fishing is allowed within 

this area as long as pingers are used; (5) 

including a statement specifying that 

pingers must be placed every 300 ft 

(91.4 m) for gillnets that exceed 300 ft 

(91.4 m) in length; and (6) modifying the 

eastern boundary of the Offshore 

Management Area so that it does not 

cross the boundary of the Exclusive 

Economic Zone (EEZ). 

Mid-Atlantic Component 

In the Mid-Atlantic component of the 

HPTRP, NMFS is creating the Mudhole 

South Management Area, with seasonal 

gear restrictions and a closure period 

from February 1 through March 15 

(Figure 3). 


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BILLING CODE 3510–22–C 

Additionally, this action will increase 

the current tie-down spacing for large 

mesh gillnet gear to no more than 24 ft 

(7.3 m) apart along the floatline. 

Technical Corrections—Mid-Atlantic 

Component 

This final rule incorporates all of the 

technical corrections for the MidAtlantic component of the HPTRP as 

described in the preamble of the 

proposed rule. These include: (1) 

Incorporating shoreline latitude/ 

longitude coordinates to more clearly 

specify HPTRP management area 

boundaries; (2) clarifying the number of 

nets per string allowed within the 

management areas for both large and 

small mesh gillnet gear; (3) extending 

the northern boundary of the Waters off 

New Jersey Management Area to the 

southern shoreline of Long Island, NY, 

at 40°50.1′ N. lat. and 72°30′ W. long.; 

(4) correcting the geographic boundary 

of the Mudhole North Management Area 

by incorporating a coordinate that 

intersects with the New Jersey shoreline 

at 40°28.1′ N. lat. and 74°00′ W. long.; 

(5) redefining the southern latitudinal 

boundary of the Southern Mid-Atlantic 

Management Area located at the North 

Carolina/South Carolina border to 

correspond with 33°51.1′ N. lat.; (6) 

amending the description of exempted 

waters in Virginia from Chincoteague to 

Ship Shoal Inlet to be the waters 

landward of the 72 COLREGS 

demarcation lines between these two 

inlets; and (7) removing the net tagging 


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requirement for large and small mesh 

gillnet gear. 

Scientific Research 

This action includes a scientific 

research component to the HPTRP 

regulations that would allow scientific 

research on gear and/or fishing practice 

modifications for reducing harbor 

porpoise takes to be conducted within 

the HPTRP management areas during 

the times the seasonal requirements are 

in effect, so long as the research is 

authorized through a scientific research 

permit granted under the MMPA. A 

scientific research permit would be 

obtained through the existing permit 

application process administered by 

NMFS, which includes a regional 

review and public comment period after 

publication of an announcement in the 

Federal Register. 

Comments and Responses 

NMFS published the proposed rule 

amending the HPTRP in the Federal 

Register on July 21, 2009 (74 FR 36058). 

Upon its publication, NMFS issued a 

press release summarizing the rule; 

posted the proposed rule on the HPTRP 

Web site; and notified affected 

fishermen and interested parties via 

several NMFS email distribution outlets. 

The publication of the proposed rule 

was followed by a 30-day public 

comment period, which ended on 

August 20, 2009. NMFS received nine 

comments via facsimile, letter, or 

electronic submission. All comments 

received were thoroughly reviewed by 

NMFS. The comments addressed several 

topics, such as education and outreach, 

management area boundaries and 

requirements, pingers, and the 

consequence closure strategy. The 

comments received are summarized 

below, followed by NMFS’s responses. 

General Comments 

Comment 1: The majority of 

commenters expressed general support 

for the proposed rule. 

Response: NMFS appreciates the 

comments it has received in support of 

this action, and notes that many of the 

proposed measures were based on 

consensus recommendations provided 

by the HPTRT during its December 2007 

and January 2008 meetings. 

Comment 2: One commenter 

expressed general opposition to the 

proposed rule by stating that bycatch of 

harbor porpoises in commercial gillnet 

gear needs to be immediately reduced to 

zero. 

Response: NMFS understands the 

commenter’s concern. However, the 

level of harbor porpoise takes need not 

be set to zero to ensure that the goals of 

the MMPA for harbor porpoise 

protection are met. Over the past two 

decades, NMFS has undertaken a 

variety of efforts to reduce the bycatch 

of harbor porpoises in commercial 

gillnet fisheries. After implementation 

of the HPTRP in late 1998 (63 FR 66464, 

December 2, 1998), bycatch of harbor 

porpoises was significantly reduced to 

below the stock’s PBR level from levels 

as high as 1,500 animals per year, prior 

to implementation of the HPTRP, to a 

low of 310 animals per year. At that 

time, the bycatch level for harbor 

porpoises was below PBR and the 

bycatch trend was approaching ZMRG, 

which is defined in 50 CFR 229.2 as 10 

percent of PBR. 

However, as detailed in the EA 

supporting this rule, when data began to 

show that harbor porpoise interactions 

with gillnet fisheries were rising, NMFS 

immediately took actions to address the 

issue by sending permit holder letters, 

conducting outreach meetings from 

Maine through New Jersey, and 

reconvening the HPTRT in December 

2007 to discuss recent bycatch and 

abundance information to assist the 

HPTRT in providing recommendations 

to NMFS on additional measures to 

reduce harbor porpoise takes. As 

described in the preamble to the 

proposed rule for this action, 

documented interactions between 

harbor porpoises and gillnet gear were 

observed both within and outside of 

existing HPTRP management areas. As 

such, the HPTRT was charged with 

providing recommendations to NMFS 

for modifying the HPTRP that would 

address both issues. The HPTRT 

reached consensus on many of the 

measures that are implemented in this 

final rule. Once implemented, these 

measures will achieve a harbor porpoise 

take level that is below PBR and 

approaching ZMRG, meeting NMFS’ 

obligations under the MMPA. 

Management Areas 

Comment 3: The State of 

Connecticut’s Department of 

Environmental Protection disagreed 

with the upper northwest boundary of 

the proposed Southern New England 

Management Area, requesting that the 

boundary as it crosses Long Island 

Sound be moved eastward to be 

consistent with the Atlantic Large 

Whale Take Reduction Plan (ALWTRP) 

exemption line in this area. 

Response: NMFS has evaluated the 

request to modify the western boundary 

of the Southern New England 

Management Area in the vicinity of 

Long Island Sound, and has determined 

that the modification is not warranted 

for a variety of reasons. First, the basis 

provided for modifying the line to 

become consistent with the exemption 

line in this area as defined by the 

ALWTRP is not appropriate. The 

ALWTRP exemption line was 

established based on the rarity of large 

whale sightings westward of the 

ALWTRP exemption line. The HPTRP 

Southern New England Management 

Area was established based on the 

presence of harbor porpoise in that area. 

Regarding consistency, this line was 

recommended by the HPTRT because it 

is a boundary line that is consistent 

with an existing boundary line under 

the Northeast Multispecies Fishery 

Management Plan, and is a line with 

which gillnet fishermen in this area are 

familiar. The commenter also noted that 

the ALWTRP exemption line delineates 

the locations in which residents of the 

states of New York, Connecticut, and 

Rhode Island are authorized to fish. 

However, these authorizations are statedriven; therefore, the boundary line of 

the Southern New England Management 

Area will not affect state authority in 

determining where state permitted 

vessels may fish. 

Comment 4: Two commenters 

requested that NMFS codify the 

Northeast Multispecies Fishery 

Management Plan (FMP) Western Gulf 

of Maine Closure Area into the HPTRP 

as recommended by the HPTRT. Both 

commenters encouraged this in the 

event that the Western Gulf of Maine 

Closure Area is removed from the 

Northeast Multispecies FMP. One 

commenter noted that the 

Massachusetts Bay Management Area 

was originally a Northeast Multispecies 

FMP closure that was codified into the 

HPTRP and subsequently removed as a 

groundfish closure. 

Response: NMFS acknowledges that 

the HPTRT recommended, by 

consensus, the incorporation of the 

Multispecies FMP Western Gulf of 

Maine Closure Area into the HPTRP. 

However, NMFS disagrees with this 

recommendation. As described in the 

preamble to the regulations 

implementing the HPTRP (63 FR 66464, 

December 2, 1998), NMFS established 

the boundaries of the HPTRP 

management areas based on the 

distribution of harbor porpoises and 

bycatch rates along the New England 

coast. The portion of the Western Gulf 

of Maine Closure Area that had a high 

bycatch of harbor porpoises prior to 

implementation of the HPTRP was 

included under the HPTRP as part of the 

Mid-Coast Management Area. Therefore, 

since the portion of the Western Gulf of 

Maine Closure Area that has 

traditionally had high bycatch rates of 

harbor porpoises is already contained 


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within the Mid-Coast Management Area 

under the HPTRP, should the Western 

Gulf of Maine Closure Area be reopened 

to gillnet fishing in the future, the area 

with historically high harbor porpoise 

bycatch levels is already contained 

within the overlapping Mid-Coast 

Management Area under the HPTRP. At 

the present time, harbor porpoise 

bycatch information within the 

remaining portion of the Western Gulf 

of Maine Closure Area (not overlapping 

with the Mid-Coast Management Area) 

does not exist since this area has been 

closed to gillnet fishing since 1998. 

Consequently, NMFS cannot evaluate 

the conservation benefit or the 

economic impacts of the entire closure 

area if it were codified under the 

HPTRP. For these reasons, NMFS 

believes codifying the Western Gulf of 

Maine Closure Area under the HPTRP is 

not warranted at this time. 

Comment 5: One commenter 

requested that NMFS adjust the mesh 

size requirements or the seasons of the 

Southern Mid-Atlantic Management 

Area to not affect striped bass fishermen 

in this area. Conversely, another 

commenter commended NMFS for not 

making adjustments to the Southern 

Mid-Atlantic Management Area to 

exempt striped bass fishermen, noting 

that it is outside of common practice for 

a take reduction plan to regulate by 

target species, rather than by gear type. 

Response: NMFS decided not to 

modify the closure period or the 

definition of large mesh gillnets for the 

Southern Mid-Atlantic Management 

Area. To ensure adequate management 

of incidental interactions between 

marine mammals and fisheries, take 

reduction plans manage fisheries by 

gear type, rather than by sub-fisheries or 

target species. In addition, modifying 

the definition of large mesh gillnets 

would conflict with the Bottlenose 

Dolphin Take Reduction Plan, as this 

plan uses the same definition, and 

therefore would likely result in 

confusion for gillnet fishermen in this 

region. 

Further, during the December 2007 

HPTRT meeting, a member requested 

that the HPTRT consider a verbal 

proposal to exempt striped bass 

fishermen using large mesh gillnets in 

Virginia state waters from the seasonal 

large mesh gillnet closure from February 

15 through March 15 in the Southern 

Mid-Atlantic Management Area. The 

rationale provided for the exemption 

was that this closure affected the brief 

window of opportunity for fishing for 

the striped bass ocean fishing season for 

southern states. The HPTRT did not 

have sufficient time to fully discuss this 

request at the December meeting. 

Therefore, NMFS included this issue as 

a topic for discussion on the agenda for 

the January 2008 HPTRT follow-up 

teleconference meeting. 

Prior to the teleconference, the 

HPTRT representative from the 

Commonwealth of Virginia sent the 

meeting facilitator a report completed 

by the Virginia Institute of Marine 

Science to further support the request 

for an exemption. This document was 

forwarded to NMFS and the HPTRT for 

consideration during the teleconference. 

The report examined net size 

selectivity for capturing striped bass in 

Virginia’s coastal and estuarine waters 

from mid-February through March of 

2005, indicating that 8-inch (20.32-cm) 

mesh nets captured striped bass of legal 

size 99.9 percent of the time, whereas 7- 

inch (17.78-cm) mesh nets captured 

legal-sized bass only 70 percent of the 

time. 

During the teleconference, the HPTRT 

was unable to reach consensus on this 

issue. After the teleconference, NMFS 

requested that Virginia submit a 

proposal outlining the exemption 

request and justification of its necessity. 

The proposal requested an adjustment 

to the definition of large mesh gillnets 

under the HPTRP by increasing the 

restricted mesh size from the current 7 

inches (17.78 cm) to 8 inches (20.32 cm) 

for Virginia state waters from February 

15 through March 15; the proposal also 

suggested incorporating a consequence 

closure strategy for this area. This 1- 

inch (2.54-cm) increase in mesh size 

would allow striped bass fishing from 

February 15 through March 15, and 

would also reduce the catch of 

undersized striped bass. This proposal, 

along with a separate proposal from 

NMFS, which included either no change 

or an examination of shifting the closure 

period to March 1–31, was considered, 

but, for the reasons provided above, 

none were adopted by the HPTRT or 

NMFS. 

Pingers 

Comment 6: One commenter 

recommended that NMFS allow the use 

of pingers that have different 

specifications from those required by 

the HPTRP, including the use of pingers 

that emit a tone of a frequency higher 

than 10 kHz. 

Response: NMFS has not proposed 

any modifications to the pinger 

specifications that are outlined in the 

HPTRP. Recent analyses completed by 

the NMFS Northeast Fisheries Science 

Center further support the conclusion 

that pingers of the current specifications 

successfully decrease harbor porpoise 

bycatch in gillnet fisheries when the 

pingers function properly and are 

deployed in the correct manner (Palka et 

al., 2008). 

NMFS acknowledges that, in certain 

areas, pingers may alert seals to the 

presence of gillnet gear, which can 

result in depredation on the fish caught 

in the nets. To alleviate this problem, 

the HPTRT and others have discussed 

experimenting with pingers of a higher 

frequency, in which the pinger is 

inaudible to seals but is still within the 

hearing range of harbor porpoises. 

Higher frequency pingers are currently 

being used in some gillnet fisheries in 

Europe. However, to date, no testing has 

been conducted in U.S. waters to 

examine the effects of these devices on 

the Gulf of Maine/Bay of Fundy stock of 

harbor porpoises and U.S. gillnet 

fisheries. NMFS cannot incorporate 

higher frequency pingers into the 

HPTRP without first examining the 

effects on harbor porpoises and other 

marine species. NMFS notes that this 

action will incorporate a scientific 

research provision into the HPTRP, 

which would allow for such 

experimentation within HPTRP 

management areas so long as a scientific 

research permit is acquired. If it 

becomes necessary, NMFS will revise 

this rule through notice and comment 

rulemaking to allow different pinger 

standards. 

Comment 7: One commenter stated 

that NMFS should provide pinger 

detection devices to fishery observers to 

determine if pingers on nets are 

functioning properly. Alternatively, the 

commenter recommended that NMFS 

should provide observers with pingers 

to give to fishermen in exchange for 

collecting pingers on each end of an 

observed harbor porpoise take for 

testing. 

Response: The NMFS Northeast 

Fishery Observer Program (NEFOP) 

currently has six open-air pinger 

detectors that are routinely provided to 

observers on gillnet vessels for the 

detection of functioning pingers. NEFOP 

staff are developing a contract for the 

design and purchase of new, improved 

open-air pinger detectors to replace the 

current detectors. The new detectors 

will be more durable than the current 

detectors. 

According to the NEFOP Fisheries 

Observer Program Manual (revised 

January 1, 2008), observers must record 

the condition of an active deterrent 

device (e.g., pinger) immediately 

following the incidental take of a marine 

mammal, sea turtle, or sea bird. If 

possible, immediately preceding an 

incidental take the observer must also 

record the condition of the active 

deterrent device in use. Based on these 

protocols and the ability of observers to 


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detect functioning pingers, it is not 

necessary to exchange new pingers for 

pingers on gillnet gear in which an 

incidental take is observed. 

Comment 8: One commenter 

recommended that, due to the difficulty 

associated with checking pinger 

functionality at sea, NMFS establish a 

shoreside pinger inspection program to 

ensure that all gillnet fishermen fishing 

in areas in which pingers are mandatory 

have the required number of fully 

functional pingers on their gear. 

Response: NMFS disagrees that there 

are difficulties associated with checking 

pinger functionality at sea. NMFS has 

strategies and tools in place to check for 

functioning pingers at sea. First, NMFS 

has purchased underwater pinger 

detectors that can check for functioning 

pingers on gillnet gear while the gear is 

being fished in the water, or while the 

gear is being hauled back onto the 

vessel. NMFS is currently working with 

state and Federal enforcement partners 

on the use of these detectors within the 

HPTRP management areas in New 

England. The states of Maine, 

Massachusetts, and Rhode Island have 

been loaned four of these detectors for 

use aboard state enforcement vessels 

during patrols. Additionally, as 

described in the response to Comment 

7, the NEFOP staff is in the process of 

purchasing new open-air pinger 

detectors that can check the 

functionality of pingers on gillnet gear 

as it is hauled on board the vessel. 

Additionally, NMFS disagrees with 

the necessity to establish a shoreside 

pinger inspection program, because 

such a program would be costly and 

would ultimately not ensure that all 

gillnet fishermen that fish within the 

HPTRP management areas have the 

required number of functional pingers 

on their gear. NMFS currently has an 

established pinger training and 

authorization program, which ensures 

that gillnet vessel operators receive onetime training in the use of pingers and 

maintain on board their vessel a valid 

pinger training authorization provided 

by NMFS. Additionally, the HPTRT 

recommended a consequence closure 

area strategy in New England for the 

purpose of providing an incentive for 

increasing compliance with the pinger 

requirements. This rule will implement 

this strategy in the GOM and Southern 

New England (SNE) areas, which are 

historically areas of high harbor 

porpoise bycatch. NMFS recognizes the 

importance of compliance to ensure that 

the effectiveness of the HPTRP in 

reducing interactions between harbor 

porpoises and gillnet fisheries is 

maximized. As such, NMFS will 

continue to work with its various 

partners (e.g., states, U.S. Coast Guard, 

NOAA Office of Law Enforcement, 

NEFOP) to monitor compliance with the 

HPTRP and enforce its regulatory 

components. 

Consequence Closure Strategy 

Comment 9: Two commenters 

requested that NMFS act quickly in 

implementing the consequence closure 

areas if the target bycatch rates in their 

respective management areas are 

exceeded. One commenter suggested 

that NMFS complete the required 

analyses for implementing the 

consequence closure areas in 

conjunction with this rulemaking in 

order to expedite the potential 

implementation of these closures in the 

future. 

Response: NMFS agrees that it is 

imperative to act as quickly as possible 

to implement consequence closure 

areas, should target bycatch rates be 

exceeded after two consecutive 

management seasons. Through this 

action and through completion of the 

final EA, NMFS has completed the 

required analyses for implementing 

consequence closure areas, should they 

occur over the course of the next 10 

years. NMFS has also established 

language in the regulatory text of this 

action that explains the annual review 

process for consequence area closure 

actions, including the establishment of 

the consequence closure areas if the 

target bycatch levels are exceeded; 

notification to the HPTRT and affected 

gillnet permit holders (e.g., advance 

notification through mailings, 

publication in the Federal Register, and 

postings on the HPTRP Web site) should 

consequence areas become triggered; 

and continued monitoring of harbor 

porpoise bycatch rates after 

implementation of consequence closure 

areas. 

Outreach and Enforcement 

Comment 10: One commenter, in 

expressing support for the proposed 

rule, stressed the importance of future 

outreach and education efforts with the 

commercial fishing industry as being 

crucial to the effectiveness of this 

management plan. 

Response: NMFS agrees that future 

outreach and education efforts are 

important components for ensuring the 

effectiveness of the HPTRP. The HPTRP 

monitoring strategy incorporates a 

number of measures designed to 

increase education and outreach efforts. 

First, NMFS will provide annual 

updates to the HPTRT to provide 

compliance and bycatch information. 

This information is especially important 

for New England, and therefore this 

information will focus on the 

consequence closure area strategy. Also, 

NMFS will work with its New England 

and Mid-Atlantic state partners to 

conduct annual workshops with the 

gillnet industry to provide updated 

information on compliance and harbor 

porpoise bycatch data. In New England, 

these meetings are especially important 

for reviewing bycatch rates in those 

management areas affected by the 

consequence closure area strategy, and 

for reviewing how those bycatch rates 

relate to the target bycatch rates. Finally, 

NMFS supports the development of 

additional state education and 

enforcement efforts to increase 

compliance with the HPTRP. 

Comment 11: One commenter noted 

that HPTRP enforcement and industry 

outreach efforts must be more vigorous 

in the future than they have been in the 

past. 

Response: NMFS agrees with this 

comment and will continue to work 

with its various partners, such as state 

agencies, the U.S. Coast Guard, and the 

NOAA Office of Law Enforcement, on 

HPTRP enforcement and industry 

outreach efforts. By consensus 

recommendation, the HPTRT state 

agency members committed to 

conducting annual workshops with the 

gillnet industry after publication of this 

rule to increase compliance with the 

HPTRP, as well as to provide updated 

harbor porpoise bycatch and 

compliance information. These 

workshops will be especially important 

in the New England areas that would 

potentially be affected by the 

implementation of consequence closure 

areas. In addition, NMFS will continue 

to provide pinger training. This training 

provides information on the HPTRP 

management areas and requirements, as 

well as information on the use of 

pingers. Also, NMFS will continue to 

maintain its existing outreach efforts, 

which include ensuring that the HPTRP 

Web site contains relevant and current 

information, communicating directly 

with HPTRT members, and sending 

permit holder letters to the gillnet 

industry. 

NMFS is committed to maintaining 

and improving upon its relationship 

with the U.S. Coast Guard and the 

NOAA Office of Law Enforcement, as 

well as its state enforcement partners, to 

monitor the effectiveness of the HPTRP. 

As discussed in response to Comment 8, 

state enforcement officials in Maine, 

Massachusetts, and Rhode Island have 

incorporated in-water pinger detectors 

into their patrols. NMFS is also 

coordinating with its Federal 

enforcement partners on the use of this 

equipment, as well as on the ability to 


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conduct dedicated enforcement patrols 

to ensure gillnet gear is in compliance 

with the HPTRP. Finally, NMFS will 

coordinate with all of these partners to 

ensure updated enforcement 

information is provided to the HPTRT 

in its annual compliance updates. 

Harbor Porpoise Bycatch Estimates 

Comment 12: One commenter stated 

that NMFS should base harbor porpoise 

bycatch estimates on all regional 

fisheries in which mortalities and 

serious injuries occur, including trawl 

gear and Canadian fisheries. 

Response: NMFS monitors harbor 

porpoise bycatch in all commercial 

fisheries through the annual SAR 

process. The majority of fishery 

interactions for the GOM/BOF stock of 

harbor porpoises occurs in the Northeast 

sink gillnet and Mid-Atlantic gillnet 

fisheries. Bycatch estimates in Canadian 

gillnet fisheries are unknown, as the 

fishery has not been observed from 2002 

through the present time. NMFS will 

continue to monitor the annual SARs for 

interactions between harbor porpoises 

and all fisheries. 

Comment 13: One commenter 

recommended that NMFS consult with 

its Canadian counterpart regarding the 

need to increase Canadian gillnet 

observer coverage to assess harbor 

porpoise bycatch in the Canadian sink 

gillnet fishery. 

Response: NMFS agrees. NMFS is 

working with Canada’s Department of 

Fisheries and Oceans (DFO) to address 

this issue. Nonetheless, harbor porpoise 

bycatch in U.S. gillnet fisheries exist 

and must be addressed by NMFS 

through the HPTRP. 

Changes From the Proposed Rule 

There are no changes from the 

proposed rule. 

Classification 

The Office of Management and Budget 

(OMB) has determined that this action 

is significant for the purposes of 

Executive Order 12866. 

A description of the action and its 

legal basis are contained in the 

preamble of this final rule. This final 

rule does not include any reporting or 

recordkeeping requirements, nor does it 

include compliance requirements other 

than those described in the preamble. 

No duplicative, overlapping, or 

conflicting Federal rules have been 

identified. 

NMFS has prepared a final regulatory 

flexibility analysis (FRFA) that 

describes the economic impact this rule 

will have on small entities. A summary 

of the analysis follows. No comments 

were received on the initial regulatory 

flexibility analysis (IRFA) or the 

economic impacts of the proposed rule. 

All of the entities (fishing vessels) 

affected by this action are considered 

small entities under the Small Business 

Act size standards for small fishing 

businesses. The fisheries affected by this 

final rule are the Northeast sink gillnet 

and Mid-Atlantic gillnet fisheries. These 

fisheries are currently regulated under 

the HPTRP to reduce the serious injury 

and mortality of harbor porpoises; this 

rule implements additional restrictions. 

The population of vessels affected by 

this action includes all commercial 

gillnet vessels fishing in Federal waters 

from the U.S./Canada border to North 

Carolina, as well as vessels fishing in 

state waters that are managed under the 

HPTRP. In 2006 and under the current 

HPTRP, there were 975 gillnet vessels 

that landed an estimated 23,276 mt of 

fish, generating approximately 

$40,643,000 in revenue. 

In preparing this action, NMFS 

considered multiple alternatives— 

Alternative 1, no action; Alternative 2, 

immediate implementation of closures; 

Alternative 3, broad-based pinger 

requirements; Alternative 4, this action, 

or the ‘‘preferred alternative’’; and 

Alternative 5, modified preferred 

alternative. 

Under Alternative 1, NMFS would 

maintain the status quo HPTRP. This 

would result in no changes to the 

current measures under the HPTRP and, 

as such, would result in no additional 

economic effects to the affected 

commercial fisheries. However, this 

alternative would not achieve the 

reduction in incidental mortality and 

serious injury of harbor porpoises in 

commercial fishing gear required under 

the MMPA, because it would not reduce 

the estimated harbor porpoise mortality 

of 1,063 animals in 2006, which is 

above the PBR level. Therefore, NMFS 

rejected this alternative. 

Under Alternative 2, NMFS would 

immediately implement additional area 

closures to the existing measures of the 

HPTRP. This alternative includes 

immediate implementation of the 

closure areas recommended by the 

HPTRT, known in this rule as 

consequence closure areas, in New 

England. Out of the five alternatives, 

Alternative 2 had the lowest estimated 

reduction in harbor porpoise bycatch of 

all the alternatives considered, at 54 

percent, or 573 fewer animals from the 

status quo 2006 estimate of 1,063 

animals. Additionally, Alternative 2 had 

the highest estimated cost to the 

commercial fishing industry of all the 

alternatives considered, with a 5- 

percent ($1,947,000) reduction in 

annual revenues. For these reasons, 

NMFS rejected this alternative. 

Under Alternative 3, NMFS would 

implement broad-based pinger 

management areas covering the 

geographic range of the GOM/BOF stock 

of harbor porpoises in New England and 

the Mid-Atlantic region. Alternative 3 

had a higher estimated cost for the 

commercial fishing industry per harbor 

porpoise saved than the preferred 

alternative (if consequence areas are not 

triggered), with less than 1-percent 

($374,000) reduction in annual 

revenues, and a lower estimated 

reduction in harbor porpoise bycatch, at 

60 percent. In part because it would 

result in a higher cost per porpoise 

saved, while providing a lower 

reduction in porpoise bycatch than the 

other alternatives, NMFS rejected this 

alternative. 

Under Alternative 4, existing 

management areas in New England and 

the Mid-Atlantic are expanded and 

additional management areas are 

created to address areas of high harbor 

porpoise bycatch. This alternative 

incorporates additional measures to the 

existing HPTRP. For New England 

(Maine through Rhode Island), new 

measures include (1) additional pinger 

requirements; (2) the establishment of 

new management areas; and (3) the 

incorporation of consequence closure 

areas should the observed average 

bycatch rate in certain management 

areas exceed a specified target bycatch 

rate averaged over the course of two 

consecutive management seasons. For 

the Mid-Atlantic (New York through 

North Carolina), new measures include 

(1) the establishment of a new 

management area, which includes a 

seasonal closure; and (2) a modification 

to the large mesh gillnet tie-down 

spacing requirement (which is not 

included in the analysis because it 

would not result in additional costs to 

gillnet fishermen). 

This alternative incorporates the 

potential for future closures. 

Accordingly, this analysis examines 

four different scenarios for this 

alternative, based on the potential for 

implementation of consequence closure 

areas. The first scenario examines 

impacts of additional HPTRP 

conservation measures (e.g., 

establishment of new pinger and closure 

areas) prior to triggering the closure of 

any consequence closure area (Preclosure). The second scenario examines 

the impacts if only the Coastal Gulf of 

Maine Consequence Closure Area is 

implemented (GOM-closure), and the 

third scenario analyzes the impacts if 

only the Cape Cod South Expansion and 

Eastern Cape Cod Consequence Closure 


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Areas are implemented (SNE-closure). 

The fourth scenario investigates the 

impacts should all three consequence 

closure areas be implemented 

simultaneously, which would occur if 

both target bycatch rates are exceeded 

(GOM/SNE-closures). 

(1) The Pre-closure scenario would 

have the smallest impact on the gillnet 

industry out of the four scenarios that 

are possible under this alternative, 

because it is assumed that, for GOM 

ports (Maine to South of Boston), 82 to 

98 percent of these vessels already own 

pingers. Therefore, the expanded 

requirements for the use of pingers are 

not expected to result in significant 

impacts. The majority of the affected 

vessels under this scenario at the 

regional, or port, level consist of vessels 

in port groups East of Cape Cod to New 

Jersey, due to the creation of the 

Southern New England Management 

Area with new pinger requirements and 

the Mudhole South Management Area, 

which incorporates a seasonal closure. 

In addition, the impact of the Preclosure scenario in terms of landings is 

small. For the East of Cape Cod through 

New Jersey port groups, the percentage 

change in landings varies between a 1- 

percent increase (East of Cape Cod) and 

a 1-percent reduction. Percentage 

reductions in revenues for these port 

groups range from 1 to 3-percent, with 

the highest (3 percent) in the New York 

port group. 

Revenues for affected vessels under 

the Pre-closure scenario vary for small 

vessels (less than 40 ft (12.2 m)) and for 

large vessels (40 ft (12.2 m) and greater). 

Revenues for small vessels would be 

reduced between 1 and 6 percent 

(approximately $800 to $4,700), while 

annual revenues for large vessels would 

be reduced between 1 and 7 percent 

(approximately $2,600 to $7,200). At the 

industry (i.e., small entity) level, the 

Pre-closure scenario can be expected to 

affect 10 percent of gillnet vessels in the 

fleet, or 101 vessels. This equates to less 

than a 1-percent reduction in landings 

and revenues. Less than a 1-percent (6- 

mt) decline in overall industry landings 

is expected, which equates to an 

approximate $183,000 decrease in 

revenues. 

(2) The GOM-closure scenario would 

implement the Coastal Gulf of Maine 

Consequence Closure Area as a result of 

non-compliance with the HPTRP in 

three GOM management areas. 

Therefore, this scenario would most 

heavily affect GOM port groups, which 

include those from Maine to South of 

Boston. At the regional level, the impact 

on port group landings varies by port 

group. The New Hampshire port group, 

which is estimated to face a 14-percent 

reduction in landings, and the North of 

Boston port group, with an expected 6- 

percent decrease, would feel most of the 

impacts. Slight landings reductions 

would also be apparent from South of 

Cape Cod through New Jersey, due to 

the creation of the SNE and Mudhole 

South Management Areas. 

Percentage reductions in revenues for 

these port groups would vary consistent 

with the percentage reductions seen in 

landings, with the highest reduction, of 

11-percent, for the New Hampshire port 

group, a 5-percent reduction for the 

North of Boston port group, and a 1- 

percent reduction for each of four port 

groups, including Maine, South of Cape 

Cod, New York, and New Jersey. 

Similar to the Pre-closure scenario, 

revenues for affected vessels under the 

GOM-closure scenario vary by vessel 

size class. For small vessels, revenues 

are reduced in the range of less than 1 

percent to 28 percent (approximately 

$160 to $26,400), while large vessels’ 

revenues would be reduced by less than 

1 percent to 4 percent (approximately 

$160 to $7,800). At the industry level, 

approximately 17.5 percent of the 

gillnet fleet, which equates to 171 

vessels, could be affected by the GOMclosure scenario, and most of these 

vessels would be from GOM port 

groups. Under this scenario, a decrease 

of approximately 2 percent (466 mt) in 

annual landings would be expected, 

which amounts to a decline of 

approximately $815,000 in annual 

revenue. 

(3) The SNE-closure scenario would 

implement two consequence closure 

areas resulting from non-compliance in 

the Southern New England Management 

Area: The Cape Cod South Expansion 

and Eastern Cape Cod Consequence 

Closure Areas. In this scenario, the 

South of Cape Cod port group would be 

most heavily affected, because 64 

percent of landings in this port group 

are caught in the Cape Cod South 

Expansion Consequence Closure Area. 

Reductions in landings for the South of 

Cape Cod port group could be as high 

as 6 percent. In addition, closure of the 

Eastern Cape Cod Consequence Closure 

Area would affect vessels originating 

from the East of Cape Cod port group, 

with an approximately 2 percent 

reduction in landings. Other affected 

port groups, from New Hampshire 

through New Jersey, could expect 

annual landing reductions of up to 

approximately 3 percent. Percentage 

reductions in annual revenues for these 

port groups vary similarly to the percent 

reductions seen in landings, with the 

highest reduction, of 10 percent, in the 

South of Cape Cod port group. 

The range of annual revenue 

reductions for affected vessels differs for 

small and large vessels, with expected 

reductions of 1 to 10 percent 

(approximately $1,300 to $8,100) for 

small vessels, and reductions of 1 to 25 

percent (approximately $1,500 to 

$15,300) for large vessels. At the 

industry level, approximately 21.1 

percent of gillnet vessels, or 206 vessels, 

could be affected, with the largest group 

being from the South of Cape Cod port 

group. Under this scenario, a decrease 

in landings of 2 percent (378 mt) could 

be expected, totaling approximately $1.2 

million decline in annual revenues. 

(4) The GOM/SNE-closure scenario 

would result from non-compliance in 

both the GOM and SNE areas, and 

would trigger the closure of all three 

consequence closure areas. Port groups 

most heavily affected by this scenario 

include GOM ports from Maine to South 

of Boston (resulting from 

implementation of the Coastal Gulf of 

Maine Consequence Closure Area) and 

the South of Cape Cod and East of Cape 

Cod port groups (resulting from 

implementation of the Cape Cod South 

Expansion and Eastern Cape Cod 

Consequence Closure Areas). The New 

Hampshire and South of Cape Cod port 

groups would experience the highest 

reductions in revenues, with 11 percent 

(approximately $293,000) and 10 

percent (approximately $734,000) 

declines, respectively. Similar 

percentage losses in landings for these 

port groups would also be expected. 

As with the scenarios described 

above, the range of annual revenue 

reductions for affected vessels differs for 

small and large vessels. Small vessels 

are expected to face reductions between 

2 to 28 percent (approximately $2,600 to 

$26,400), while large vessels are 

expected to have revenue reductions 

between 1 to 25 percent (approximately 

$1,500 to $15,300). At the industry 

level, approximately 29.7 percent of 

gillnet vessels (290 vessels) could be 

affected. Under this scenario, a decrease 

in annual landings of 4 percent (838 mt) 

can be expected. An approximately $2- 

million decrease in revenues per year 

could also occur. 

Based on this analysis, the Pre-closure 

scenario has the least amount of annual 

impacts of the four proposed action 

scenarios considered, because no 

consequence closure areas would be 

seasonally closed. A cost-effectiveness 

analysis using a 10-yr time horizon was 

conducted to examine the temporal 

differences in the impacts of the 

scenarios considered. Costs in future 

years were discounted at a rate of 3 

percent and 7 percent (for comparison 

purposes), because the future dollar 


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does not have the same value as today’s 

dollar. The discounted annual costs 

were summed to provide an estimate of 

the Present Value of Cost (PVC) over the 

10-yr time period for both a 3 and 7 

percent discount rate. The total PVC 

does not change over the 10-yr time 

period for scenarios that are fully 

implemented in the first year, such as 

the Pre-closure scenario, if consequence 

closure areas are never triggered. For the 

other three scenarios that involve the 

triggering of consequence closure areas 

at any point during the 10-yr time 

period, after the third year of 

implementation of the final rule, the 

earlier the closure area is implemented, 

the higher the total PVC would be over 

the 10-yr period. This occurs because a 

closure costs more than pinger 

requirements, so delaying the onset of a 

closure lowers the total cost. 

Of the four proposed action scenarios 

examined, using a 3-percent discount 

rate, the Pre-closure scenario had the 

lowest PVC across the 10-yr time period: 

$770,000 for each year, which means 

that no consequence closure areas are 

triggered during that time period. When 

using a 7-percent discount rate, the PVC 

across the 10-yr time period is even 

lower, at $674,000 for each year. 

For the GOM-closure scenario, if the 

Coastal Gulf of Maine Consequence 

Closure Area were triggered in year 3 

using a 3-percent discount rate, the PVC 

would be $5,810,000. However, if it 

were triggered in year 10, the PVC 

would be $1,337,000. When using a 7- 

percent discount rate, triggering the 

consequence area in year 3 would result 

in a PVC of $4,801,000, and a value of 

$1,076,000 if triggered in year 10. 

Similarly, for the SNE-closure 

scenario, implementing the 

consequence closure areas in year 3 

using a 3-percent discount rate would 

cost $8,558,000, whereas it would cost 

$1,646,000 if implemented in year 10. 

When using a 7-percent discount rate, 

triggering these consequence closure 

areas in year 3 would cost $7,051,000, 

and $1,296,000 in year 10. 

Finally, for the GOM/SNE-closure 

scenario, implementing all three 

consequence areas in year 3 would have 

a PVC of $13,585,000, whereas the PVC 

would be $2,211,000 if implemented in 

year 10. When using a 7-percent 

discount rate, triggering the three 

consequence closure areas in year 3 

would cost $11,168,000, and $1,697,000 

if triggered in year 10. 

Therefore, of the four scenarios 

presented, the Pre-closure scenario is 

the most cost-effective overall when 

discounting using both a 3 and 7- 

percent rate. This demonstrates the 

necessity for immediate industry 

compliance with the HPTRP 

requirements in order to avoid triggering 

the closure of the consequence closure 

areas and thus higher costs. If any or all 

of the consequence closure areas are 

triggered, it is more cost-effective if they 

are triggered later in the 10-yr time 

period rather than sooner, under both 

the 3 and 7-percent discount rate 

scenarios. 

The Alternative 4 Pre-closure scenario 

is estimated to result in a 59-percent 

reduction in harbor porpoise bycatch, 

while the Alternative 4 SNE-closure 

scenario is estimated to result in a 60- 

percent reduction. The GOM-closure 

scenario and the GOM/SNE-closure 

scenario demonstrated a similar 

estimated reduction in harbor porpoise 

bycatch of 63 percent. The GOM/SNEclosure scenario showed a slightly 

higher decline in the number of animals 

taken at 671, with a total estimated 

bycatch for this alternative scenario of 

392 animals. This alternative is 

estimated to cost the commercial fishing 

industry $108 (7-percent discount rate) 

or $124 (3-percent discount rate) per 

harbor porpoise saved in the preconsequence closure scenario, and $729 

(7-percent discount rate) or $882 (3- 

percent discount rate) per harbor 

porpoise saved in the consequence 

closure scenario if triggered in Year 3. 

Based on these analyses, Alternative 4 

is the preferred alternative because it 

will achieve the goals of the MMPA 

while minimizing the overall economic 

impact to the affected fisheries. 

Under Alternative 5, NMFS would 

implement a modified version of 

Alternative 4, the preferred alternative. 

Alternative 5 would remove the 

Offshore Management Area, remove the 

large mesh gillnet closure period in the 

Southern Mid-Atlantic Management 

Area (February 15 through March 15), 

and codify the Northeast Multispecies 

Western Gulf of Maine Closure Area 

under the HPTRP. Note that this 

analysis examines two rather than four 

scenarios for Alternative 5: Pre-closure 

and GOM/SNE closure. The Alternative 

5 Pre-closure scenario is estimated to 

reduce harbor porpoise bycatch by 59 

percent, and the GOM/SNE-closure 

scenario is estimated to reduce harbor 

porpoise bycatch by 63 percent. The 

decline in revenues for the commercial 

gillnet industry for this alternative are 

estimated to be less than 1 percent 

($127,000) in the pre-consequence 

closure scenario, and 5 percent 

($1,901,000) in the Alternative 5 GOM/ 

SNE closure scenario. These costs are 

comparatively similar to those incurred 

under the Pre-closure and GOM/SNE 

closure scenarios in Alternative 4. 

However, when considering the range of 

harbor porpoise bycatch levels that 

could be expected under each 

Alternative, Alternative 5 results in a 

higher maximum bycatch level (i.e., 

closer to PBR) than all the scenarios 

considered under Alternative 4. In 

considering this alternative, NMFS also 

concluded that the removal of existing 

HPTRP management areas while harbor 

porpoise bycatch levels remain above 

PBR was not warranted. Based on these 

analyses, NMFS rejected this 

alternative. 

In summary, Alternative 4 will best 

allow NMFS to achieve its mandates 

under the MMPA. This action will 

implement modifications to the HPTRP 

that will reduce harbor porpoise takes to 

below the stock’s PBR level, while also 

minimizing the overall impact to 

affected gillnet fisheries. Impacts will 

remain low so long as compliance with 

the pinger requirements in New England 

does not trigger the implementation of 

consequence closure areas in the future. 

NMFS has determined that this action 

is consistent to the maximum extent 

practicable with the approved coastal 

management programs of Maine, New 

Hampshire, Massachusetts, Rhode 

Island, Connecticut, New York, New 

Jersey, Delaware, Maryland, Virginia, 

and North Carolina. This determination 

was submitted for review by the 

responsible state agencies under section 

307 of the Coastal Zone Management 

Act. The following states submitted 

responses concurring with NMFS’ 

determination: New Hampshire, Rhode 

Island, Connecticut, New Jersey, 

Delaware, Virginia, and North Carolina. 

Maine, Massachusetts, New York, and 

Maryland did not respond; therefore, 

consistency is inferred. 

This action contains policies with 

federalism implications that were 

sufficient to warrant preparation of a 

federalism assessment under Executive 

Order 13132. Accordingly, the Assistant 

Secretary for Legislative and 

Intergovernmental Affairs provided 

notice of the action to the appropriate 

officials in the states of Maine, New 

Hampshire, Massachusetts, Rhode 

Island, Connecticut, New York, New 

Jersey, Delaware, Maryland, Virginia, 

and North Carolina. 

If a member of the public requests a 

scientific research permit for conducting 

research with fishing gear within a 

HPTRP management area, an existing 

information collection requirement, 

approved under OMB Control No. 0648– 

0084, would apply. The public reporting 

burden for completing an application 

for a scientific research permit is 

estimated to average 32 hr per response, 

including the time for reviewing 

instructions, searching existing data 


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sources, gathering and maintaining the 

data needed, and completing and 

reviewing the collection of information. 

Notwithstanding any other provision of 

the law, no person is required to 

respond to, nor shall any person be 

subject to a penalty for failure to comply 

with, a collection of information subject 

to the requirements of the Paperwork 

Reduction Act, unless that collection of 

information displays a currently valid 

OMB Control Number. 

NMFS conducted a section 7 

consultation on this action pursuant to 

the Endangered Species Act (ESA), 

which was concluded on November 19, 

2008. Because this action will not have 

effects on listed species that were not 

previously considered during the 

informal consultation on the initial 

HPTRP (concluded on November 12, 

1998), reinitiating consultation on this 

action is not warranted. 

The Small Business Regulatory 

Enforcement Fairness Act of 1996 states 

that, for each rule or group of related 

rules for which an agency is required to 

prepare a FRFA, the agency shall 

publish one or more guides to assist 

small entities in complying with the 

rule, and shall designate such 

publications as ‘‘small entity compliance 

guides.’’ The agency shall explain the 

actions a small entity is required to take 

to comply with a rule or a group of 

rules. As part of this rulemaking 

process, NMFS will send a letter to state 

and Federal gillnet permit holders in the 

states of Maine through North Carolina, 

which letters will serve as the small 

entity compliance guide. In addition, 

copies of this final rule and compliance 

guide (i.e., permit holder letter) are 

available from NMFS (see ADDRESSES) as 

well as the HPTRP Web site: http:// 

www.nero.noaa.gov/hptrp. 

References 

Palka, D., M. Rossman, A. VanAtten, and C. 

Orphanides. 2008. Effect of Pingers on 

Harbor Porpoise and Seal Bycatch in the 

US Northeast Gillnet Fishery. Paper SC/ 

60/SM2 presented to the Scientific 

Committee, June 2008 (unpublished); 

27pp. Paper available from the IWC 

Secretariat: secretariat@iwcoffice.org. 

Waring, G.T., E. Josephson, C.P. FairfieldWalsh, and K. Maze-Foley (ed). 2009. 

U.S. Atlantic and Gulf of Mexico Marine 

Mammal Stock Assessments—2008. 

NOAA Tech Memo NMFS–NE–210; 440 

p. 

List of Subjects in 50 CFR Part 229 

Administrative practice and 

procedure, Confidential business 

information, Fisheries, Marine 

mammals, Reporting and recordkeeping 

requirements. 

Dated: February 5, 2010. 

James W. Balsiger, 

Acting Assistant Administrator for Fisheries, 

National Marine Fisheries Service. 

■ For the reasons stated in the preamble, 

50 CFR part 229 is amended as follows: 

PART 229—AUTHORIZATION FOR 

COMMERCIAL FISHERIES UNDER THE 

MARINE MAMMAL PROTECTION ACT 

OF 1972 

■ 1. The authority citation for 50 CFR 

part 229 continues to read as follows: 

Authority: 16 U.S.C. 1361 et seq. 

■ 2. In § 229.2, the definitions of 

‘‘Mudhole’’, ‘‘Southern Mid-Atlantic 

waters’’, and ‘‘Waters off New Jersey’’ are 

removed. 

■ 3. In § 229.3, paragraphs (q) and (r) are 

removed and reserved, and paragraphs 

(m), (n), (o), and (p) are revised to read 

as follows: 

§ 229.3 Prohibitions. 

* * * * * 

(m) It is prohibited to fish with, set, 

haul back, possess on board a vessel 

unless stowed in accordance with 

§ 229.2, or fail to remove sink gillnet 

gear or gillnet gear capable of catching 

multispecies from the areas and for the 

times specified in § 229.33(a)(1), (a)(3), 

(a)(6), and (a)(8). This prohibition also 

applies to areas where pingers are 

required, unless the vessel owner or 

operator complies with the pinger 

provisions specified in § 229.33 (a)(2) 

through (a)(5) and (a)(7). This 

prohibition does not apply to vessels 

fishing with a single pelagic gillnet (as 

described and used as set forth in 

§ 648.81(f)(2)(ii) of this title). 

(n) It is prohibited to fish with, set, 

haul back, possess on board a vessel 

unless stowed in accordance with 

§ 229.2, or fail to remove gillnet gear 

from the areas and for the times as 

specified in § 229.34 (b)(1)(i), (b)(2)(i), 

(b)(3)(i), or (b)(4)(i). 

(o) It is prohibited to fish with, set, 

haul back, possess on board a vessel 

unless stowed in accordance with 

§ 229.2, or fail to remove any large mesh 

or small mesh gillnet gear from the areas 

and for the times specified in 

§ 229.34(b) unless the gear complies 

with the specified gear restrictions set 

forth in the provisions of paragraphs 

(b)(1)(ii) or (iii), (b)(2)(ii) or (iii), 

(b)(3)(ii) or (iii), or (b)(4)(ii) or (iii) of 

§ 229.34. 

(p) It is prohibited to fish with, set, 

haul back, possess on board a vessel 

unless stowed in accordance with 

§ 229.2, or fail to remove sink gillnet 

gear or gillnet gear capable of catching 

multispecies in areas where pingers are 

required, as specified under § 229.33 

(a)(2) through (a)(5) and (a)(7), unless 

the operator on board the vessel during 

fishing operations possesses and retains 

on board the vessel a valid pinger 

training authorization issued by NMFS 

as specified under § 229.33(c). 

* * * * * 

■ 4. Section 229.33 is revised to read as 

follows: 

§ 229.33 Harbor Porpoise Take Reduction 

Plan Regulations—New England. 

(a) Restrictions—(1) Northeast Closure 

Area—(i) Area restrictions. From August 

15 through September 13, it is 

prohibited to fish with, set, haul back, 

possess on board a vessel unless stowed 

in accordance with § 229.2, or fail to 

remove sink gillnet gear or gillnet gear 

capable of catching multispecies from 

the Northeast Closure Area. This 

restriction does not apply to vessels 

fishing with a single pelagic gillnet (as 

described and used as set forth in 

§ 648.81(f)(2)(ii) of this title). 

(ii) Area boundaries. The Northeast 

Closure Area is bounded by straight 

lines connecting the following points in 

the order stated: 

NORTHEAST CLOSURE AREA

Point N. Lat. W. Long. 

NE1 ............... 44°27.3′ ........ 68°55.0′ (ME 

shoreline) 

NE2 ............... 43°29.6′ ........ 68°55.0′ 

NE3 ............... 44°04.4′ ........ 67°48.7′ 

NE4 ............... 44°06.9′ ........ 67°52.8′ 

NE5 ............... 44°31.2′ ........ 67°02.7′ 

NE6 ............... 44°45.8′ ........ 67°02.7′ (ME 

shoreline) 

(2) Mid-Coast Management Area—(i) 

Area restrictions. From September 15 

through May 31, it is prohibited to fish 

with, set, haul back, possess on board a 

vessel unless stowed in accordance with 

§ 229.2, or fail to remove sink gillnet 

gear or gillnet gear capable of catching 

multispecies from the Mid-Coast 

Management Area, unless the gillnet 

gear is equipped with pingers in 

accordance with paragraphs (b) and (c) 

of this section. This prohibition does 

not apply to vessels fishing with a single 

pelagic gillnet (as described and used as 

set forth in § 648.81(f)(2)(ii) of this title). 

(ii) Area boundaries. The Mid-Coast 

Management Area is the area bounded 

by straight lines connecting the 

following points in the order stated: 

MID-COAST MANAGEMENT AREA

Point N. Lat. W. Long. 

MC1 .............. 42°30.0′ ........ 70°50.1′ (MA 

shoreline) 


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MID-COAST MANAGEMENT AREA— 

Continued 

Point N. Lat. W. Long. 

MC2 .............. 42°30.0′ ........ 70°15.0′ 

MC3 .............. 42°40.0′ ........ 70°15.0′ 

MC4 .............. 42°40.0′ ........ 70°00.0′ 

MC5 .............. 43°00.0′ ........ 70°00.0′ 

MC6 .............. 43°00.0′ ........ 69°30.0′ 

MC7 .............. 43°30.0′ ........ 69°30.0′ 

MC8 .............. 43°30.0′ ........ 69°00.0′ 

MC9 .............. 44°17.8′ ........ 69°00.0′ (ME 

shoreline) 

(iii) Closing procedures. According to 

paragraphs (d)(1), (d)(3), and (d)(4) of 

this section, NMFS shall close the 

western portion of the Mid-Coast 

Management Area (west of 70°15′ W. 

long.) from October 1 through November 

30 annually by incorporating it into the 

Coastal Gulf of Maine Closure Area if, 

after two full, consecutive management 

seasons, the average observed bycatch 

rate of harbor porpoises for the MidCoast, Massachusetts Bay, and 

Stellwagen Bank Management Areas 

combined exceeds the target harbor 

porpoise bycatch rate of 0.031 harbor 

porpoises per metric tons of landings. 

(3) Massachusetts Bay Management 

Area—(i) Area restrictions. From 

November 1 through February 28/29 

and from April 1 through May 31, it is 

prohibited to fish with, set, haul back, 

possess on board a vessel unless stowed 

in accordance with § 229.2, or fail to 

remove sink gillnet gear or gillnet gear 

capable of catching multispecies from 

the Massachusetts Bay Management 

Area, unless the gillnet gear is equipped 

with pingers in accordance with 

paragraphs (b) and (c) of this section. 

From March 1 through March 31, it is 

prohibited to fish with, set, haul back, 

possess on board a vessel unless stowed 

in accordance with § 229.2, or fail to 

remove sink gillnet gear or gillnet gear 

capable of catching multispecies from 

the Massachusetts Bay Management 

Area. These restrictions do not apply to 

vessels fishing with a single pelagic 

gillnet (as described in § 648.81(f)(2)(ii) 

of this title). 

(ii) Area boundaries. The 

Massachusetts Bay Management Area is 

bounded by straight lines connecting 

the following points in the order stated: 

MASSACHUSETTS BAY MANAGEMENT

AREA

Point N. Lat. W. Long. 

MB1 .............. 42°30.0′ ........ 70°50.1′ (MA 

shoreline) 

MB2 .............. 42°30.0′ ........ 70°30.0′ 

MB3 .............. 42°15.0′ ........ 70°30.0′ 

MB4 .............. 42°15.0′ ........ 70°00.0′ 

MASSACHUSETTS BAY MANAGEMENT

AREA—Continued 

Point N. Lat. W. Long. 

MB5 .............. 42°00.0′ ........ 70°00.0′ 

MB6 .............. 42°00.0′ ........ 70°01.2′ (MA 

shoreline) 

MB7 .............. 42°00.0′ ........ 70°04.8′ (MA 

shoreline) 

MB8 .............. 42°00.0′ ........ 70°42.2′ (MA 

shoreline) 

(iii) Closing procedures. According to 

paragraphs (d)(1), (d)(3), and (d)(4) of 

this section, NMFS shall close a portion 

of the Massachusetts Bay Management 

Area (north of 42°15′ N. lat.) from 

October 1 through November 30 

annually by incorporating it into the 

Coastal Gulf of Maine Closure Area if, 

after two full, consecutive management 

seasons, the average observed bycatch 

rate of harbor porpoises for the 

Massachusetts Bay, Mid-Coast, and 

Stellwagen Bank Management Areas 

combined exceeds the target harbor 

porpoise bycatch rate of 0.031 harbor 

porpoises per metric tons of landings. 

(4) Stellwagen Bank Management 

Area—(i) Area restrictions. From 

November 1 through May 31, it is 

prohibited to fish with, set, haul back, 

possess on board a vessel unless stowed 

in accordance with § 229.2, or fail to 

remove sink gillnet gear or gillnet gear 

capable of catching multispecies from 

the Stellwagen Bank Management Area, 

unless the gillnet gear is equipped with 

pingers in accordance with paragraphs 

(b) and (c) of this section. This 

restriction does not apply to vessels 

fishing with a single pelagic gillnet (as 

described in § 648.81(f)(2)(ii) of this 

title). 

(ii) Area boundaries. The Stellwagen 

Bank Management Area is bounded by 

straight lines connecting the following 

points in the order stated: 

STELLWAGEN BANK MANAGEMENT

AREA

Point N. Lat. W. Long. 

SB1 ............... 42°30.0′ ........ 70°30.0′ 

SB2 ............... 42°30.0′ ........ 70°15.0′ 

SB3 ............... 42°15.0′ ........ 70°15.0′ 

SB4 ............... 42°15.0′ ........ 70°30.0′ 

SB1 ............... 42°30.0′ ........ 70°30.0′ 

(iii) Closing procedures. According to 

paragraphs (d)(1), (d)(3), and (d)(4) of 

this section, NMFS shall close the 

Stellwagen Bank Management Area 

from October 1 through November 30 

annually by incorporating it into the 

Coastal Gulf of Maine Closure Area if, 

after two full, consecutive management 

seasons, the average observed bycatch 

rate of harbor porpoises for the 

Stellwagen Bank, Mid-Coast, and 

Massachusetts Bay Management Areas 

combined exceeds the target harbor 

porpoise bycatch rate of 0.031 harbor 

porpoises per metric tons of landings. 

(5) Southern New England 

Management Area—(i) Area restrictions. 

From December 1 through May 31, it is 

prohibited to fish with, set, haul back, 

possess on board a vessel unless stowed 

in accordance with § 229.2, or fail to 

remove sink gillnet gear or gillnet gear 

capable of catching multispecies from 

the Southern New England Management 

Area, unless the gillnet gear is equipped 

with pingers in accordance with 

paragraphs (b) and (c) of this section. 

This prohibition does not apply to 

vessels fishing with a single pelagic 

gillnet (as described in § 648.81(f)(2)(ii) 

of this title). 

(ii) Area boundaries. The Southern 

New England Management Area is 

bounded by straight lines connecting 

the following points in the order stated: 

SOUTHERN NEW ENGLAND

MANAGEMENT AREA

Point N. Lat. W. Long. 

SNE1 ............ Western boundary as specified 1. 

SNE2 ............ 40°00.0′ ........ 72°30.0′ 

SNE3 ............ 40°00.0′ ........ 69°30.0′ 

SNE4 ............ 42°15.0′ ........ 69°30.0′ 

SNE5 ............ 42°15.0′ ........ 70°00.0′ 

SNE6 ............ 41°58.3′ ........ 70°00.0′ (MA 

shoreline) 

1Bounded on the west by a line running 

from the Rhode Island shoreline at 41°18.2′ N. 

lat. and 71°51.5′ W. long. (Watch Hill, RI), 

southwesterly through Fishers Island, NY, to 

Race Point, Fishers Island, NY; and from 

Race Point, Fishers Island, NY; southeasterly 

to the intersection of the 3-nautical mile line 

east of Montauk Point; southwesterly along 

the 3-nautical mile line to the intersection of 

72°30.0′ W. long. 

(iii) Closing procedures. According to 

paragraphs (d)(2), (d)(3), and (d)(4) of 

this section, NMFS shall close two areas 

(Cape Cod South Expansion Closure 

Area and Eastern Cape Cod Closure 

Area) within the Southern New England 

Management Area from February 1 

through April 30 annually if, after two 

full, consecutive management seasons, 

the average observed bycatch rate of 

harbor porpoises for the Southern New 

England Management Area exceeds the 

target harbor porpoise bycatch rate of 

0.023 harbor porpoises per metric tons 

of landings. 

(6) Cape Cod South Closure Area—(i) 

Area restrictions. From March 1 through 

March 31, it is prohibited to fish with, 

set, haul back, possess on board a vessel 

unless stowed in accordance with 


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7398 Federal Register / Vol. 75, No. 33 / Friday, February 19, 2010 / Rules and Regulations 

§ 229.2, or fail to remove sink gillnet 

gear or gillnet gear capable of catching 

multispecies from the Cape Cod South 

Closure Area. This prohibition does not 

apply to vessels fishing with a single 

pelagic gillnet (as described in 

§ 648.81(f)(2)(ii) of this title). 

(ii) Area boundaries. The Cape Cod 

South Closure Area is bounded by 

straight lines connecting the following 

points in the order stated: 

CAPE COD SOUTH CLOSURE AREA

Point N. Lat. W. Long. 

CCS1 ............ 41°19.6′ ........ 71°45.0′ (RI 

shoreline) 

CCS2 ............ 40°40.0′ ........ 71°45.0′ 

CCS3 ............ 40°40.0′ ........ 70°30.0′ 

CCS4 ............ 41°20.9′ ........ 70°30.0′ 

CCS5 ............ 41°23.1′ ........ 70°30.0′ 

CCS6 ............ 41°33.1′ ........ 70°30.0′ (MA 

shoreline) 

(iii) Closing procedures. According to 

paragraphs (d)(2), (d)(3), and (d)(4) of 

this section, NMFS shall close the Cape 

Cod South Closure Area and an area to 

its south (Cape Cod South Expansion 

Closure Area) from February 1 through 

April 30 annually if, after two full, 

consecutive management seasons, the 

average observed bycatch rate of harbor 

porpoises for the Southern New England 

Management Area exceeds the target 

harbor porpoise bycatch rate of 0.023 

harbor porpoises per metric tons of 

landings. 

(7) Offshore Management Area—(i) 

Area restrictions. From November 1 

through May 31, it is prohibited to fish 

with, set, haul back, possess on board a 

vessel unless stowed in accordance with 

§ 229.2, or fail to remove sink gillnet 

gear or gillnet gear capable of catching 

multispecies from the Offshore 

Management Area, unless the gillnet 

gear is equipped with pingers in 

accordance with paragraphs (b) and (c) 

of this section. This restriction does not 

apply to vessels fishing with a single 

pelagic gillnet (as described in 

§ 648.81(f)(2)(ii) of this title). 

(ii) Area boundaries. The Offshore 

Management Area is bounded by 

straight lines connecting the following 

points in the order stated: 

OFFSHORE MANAGEMENT AREA

Point N. Lat. W. Long. 

OFS1 ......... 42°50.0′ ..... 69°30.0′ 

OFS2 ......... 43°10.0′ ..... 69°10.0′ 

OFS3 ......... 43°10.0′ ..... 67°40.0′ 

OFS4 ......... 43°05.8′ ..... 67°40.0′ (EEZ 

boundary) 

OFS5 ......... 42°53.1′ ..... 67°44.5′ (EEZ 

boundary) 

OFFSHORE MANAGEMENT AREA— 

Continued 

Point N. Lat. W. Long. 

OFS6 ......... 42°47.3′ ..... 67°40.0′ (EEZ 

boundary) 

OFS7 ......... 42°10.0′ ..... 67°40.0′ 

OFS8 ......... 42°10.0′ ..... 69°30.0′ 

OFS1 ......... 42°50.0′ ..... 69°30.0′ 

(8) Cashes Ledge Closure Area—(i) 

Area restrictions. During the month of 

February, it is prohibited to fish with, 

set, haul back, possess on board a vessel 

unless stowed in accordance with 

§ 229.2, or fail to remove sink gillnet 

gear or gillnet gear capable of catching 

multispecies from the Cashes Ledge 

Closure Area. This restriction does not 

apply to vessels fishing with a single 

pelagic gillnet (as described in 

§ 648.81(f)(2)(ii) of this title). 

(ii) Area boundaries. The Cashes 

Ledge Closure Area is bounded by 

straight lines connecting the following 

points in the order stated: 

CASHES LEDGE CLOSURE AREA

Point N. Lat. W. Long. 

CL1 ............ 42°30.0′ ..... 69°00.0′ 

CL2 ............ 42°30.0′ ..... 68°30.0′ 

CL3 ............ 43°00.0′ ..... 68°30.0′ 

CL4 ............ 43°00.0′ ..... 69°00.0′ 

CL1 ............ 42°30.0′ ..... 69°00.0′ 

(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 (plus or minus 2 

kHz) sound at 132 dB (plus or minus 4 

dB) re 1 micropascal at 1 m, lasting 300 

milliseconds (plus or minus 15 

milliseconds), and repeating every 4 

seconds (plus or minus 0.2 seconds). 

(2) Pinger attachment. An operating 

and functional pinger must be attached 

at each end of a string of gillnets and at 

the bridle of every net, or every 300 feet 

(91.4 m or 50 fathoms), whichever is 

closer. 

(c) Pinger training and authorization. 

The operator of a vessel may not fish 

with, set, haul back, possess on board a 

vessel unless stowed in accordance with 

§ 229.2, or fail to remove sink gillnet 

gear or gillnet gear capable of catching 

multispecies in closed areas where 

pingers are required as specified under 

paragraph (b) of this section, unless the 

operator has satisfactorily received 

pinger training and possesses and 

retains on board the vessel a valid 

pinger training authorization issued by 

NMFS. 

(d) Annual review for consequence 

area actions—(1) Coastal Gulf of Maine 

Closure Area—(i) Establishment. If, after 

two full, consecutive management 

seasons, the calculated average observed 

bycatch rate of the Mid-Coast, 

Massachusetts Bay, and Stellwagen 

Bank Management Areas exceeds the 

target bycatch rate of 0.031 harbor 

porpoises per metric tons of landings, 

the Coastal Gulf of Maine Closure Area 

shall be established. 

(ii) Restrictions. From October 1 

through November 30, it will be 

prohibited to fish with, set, haul back, 

possess on board a vessel unless stowed 

in accordance with § 229.2, or fail to 

remove sink gillnet gear or gillnet gear 

capable of catching multispecies from 

the Coastal Gulf of Maine Closure Area. 

This prohibition will not apply to 

vessels fishing with a single pelagic 

gillnet (as described in § 648.81(f)(2)(ii) 

of this title). When the area is open to 

fishing, the requirements of the MidCoast (as described in paragraph (a)(2) 

of this section), Massachusetts Bay (as 

described in paragraph (a)(3) of this 

section), and Stellwagen Bank (as 

described in paragraph (a)(4) of this 

section) Management Areas will remain 

in effect. 

(iii) Area boundaries. The Coastal 

Gulf of Maine Closure Area is bounded 

by straight lines connecting the 

following points in the order stated: 

COASTAL GULF OF MAINE CLOSURE

AREA

Point N. Lat. W. Long. 

CGM1 ........ 43°33.0′ ..... 70°15.0′ (ME 

shoreline) 

CGM2 ........ 42°15.0′ ..... 70°15.0′ 

CGM3 ........ 42°15.0′ ..... 70°46.0′ (MA 

shoreline) 

(2) Cape Cod South Expansion and 

Eastern Cape Cod Closure Areas—(i) 

Establishment. If, after two full, 

consecutive management seasons, the 

calculated average observed bycatch rate 

of the Southern New England 

Management Area exceeds the target 

bycatch rate of 0.023 harbor porpoises 

per metric tons of landings, the Cape 

Cod South Expansion Closure Area and 

the Eastern Cape Cod Closure Area shall 

be established. 

(ii) Restrictions. From February 1 

through April 30, it will be prohibited 

to fish with, set, haul back, possess on 

board a vessel unless stowed in 

accordance with § 229.2, or fail to 

remove sink gillnet gear or gillnet gear 

capable of catching multispecies from 

the Cape Cod South Expansion Closure 

Area and the Eastern Cape Cod Closure 

Area. This prohibition will not apply to 

vessels fishing with a single pelagic 


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Federal Register / Vol. 75, No. 33 / Friday, February 19, 2010 / Rules and Regulations 7399 

gillnet (as described in § 648.81(f)(2)(ii) 

of this title). When the areas are open to 

fishing, the requirements of the 

Southern New England Management 

Area, as described in paragraph (a)(5) of 

this section, will remain in effect. 

(iii) Area boundaries. (A) The Cape 

Cod South Expansion Closure Area is 

bounded by straight lines connecting 

the following points in the order stated: 

CAPE COD SOUTH EXPANSION

CLOSURE AREA

Point N. Lat. W. Long. 

CCSE1 .......... 41°19.6′ ........ 71°45.0′ (RI 

shoreline) 

CCSE2 .......... 40°00.0′ ........ 71°45.0′ 

CCSE3 .......... 40°00.0′ ........ 70°00.0′ 

CCSE4 .......... 40°30.0′ ........ 70°00.0′ 

CCSE5 .......... 40°30.0′ ........ 70°30.0′ 

CCSE6 .......... 41°20.9′ ........ 70°30.0′ 

CCSE7 .......... 41°23.1′ ........ 70°30.0′ 

CCSE8 .......... 41°33.1′ ........ 70°30.0′ (MA 

shoreline) 

(B) The Eastern Cape Cod Closure 

Area is bounded by straight lines 

connecting the following points in the 

order stated: 

EASTERN CAPE COD CLOSURE AREA

Point N. Lat. W. Long. 

ECC1 ............ 41°58.3′ ........ 70°00.0′ (MA 

shoreline) 

ECC2 ............ 42°15.0′ ........ 70°00.0′ 

ECC3 ............ 42°15.0′ ........ 69°30.0′ 

ECC4 ............ 41°40.0′ ........ 69°30.0′ 

ECC5 ............ 41°40.0′ ........ 69°56.8′ (MA 

shoreline) 

(3) Notification. Upon determining 

that establishing a consequence closure 

area as described in paragraphs (d)(1) 

and (d)(2) of this section is necessary, 

NMFS will notify, in advance of the 

closure, the Harbor Porpoise Take 

Reduction Team and gillnet permit 

holders through mail notification. 

NMFS will also publish notification in 

the Federal Register and post 

information on the Harbor Porpoise 

Take Reduction Plan Web site related to 

the establishment of the closure area(s). 

(4) If any or all of the closure areas 

discussed in paragraphs (d)(1) and (d)(2) 

are implemented, NMFS will monitor 

harbor porpoise bycatch rates 

throughout the New England region. 

The provisions set forth in paragraphs 

(d)(1) and (d)(2) shall remain in effect 

each year after implementation until 

bycatch levels approach a zero mortality 

and serious injury rate (ZMRG), or until 

NMFS, in collaboration with the Harbor 

Porpoise Take Reduction Team, 

develops and implements new 

measures. 

(e) Research permits. An exemption to 

the requirements set forth in this section 

may be acquired for the purposes of 

conducting scientific or gear research 

within the restricted areas described in 

this section. A scientific research permit 

must be acquired through NMFS’s 

existing permit application process, 

administered by NMFS. 

(f) Other special measures. The 

Assistant Administrator may revise the 

requirements of this section through 

notification published in the Federal 

Register if: 

(1) NMFS determines that pinger 

operating effectiveness in the 

commercial gillnet fishery is inadequate 

to reduce bycatch below the stock’s PBR 

level; or 

(2) NMFS determines that the 

boundary or timing of a closed area is 

inappropriate, or that gear modifications 

(including pingers) are not reducing 

bycatch to below the PBR level. 

■ 5. Section 229.34 is revised to read as 

follows: 

§ 229.34 Harbor Porpoise Take Reduction 

Plan Regulations—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°30′ W. long. at the 

southern coast of Long Island, NY at 

40°50.1′ N. lat. and on the south by the 

NC/SC border (33°51.1′ N. lat.), except 

for the areas exempted in paragraph 

(a)(2) of this section. 

(2) Exempted waters. The regulations 

within this section are not applicable to 

waters landward of the first bridge over 

any embayment, harbor, or inlet, or to 

waters landward of the following lines: 

New York 

40°45.70′ N., 72°45.15′ W. to 40°45.72′ 

N., 72°45.30′ W. (Moriches Bay 

Inlet) 

40°37.32′ N., 73°18.40′ W. to 40°38.00′ 

N., 73°18.56′ W. (Fire Island Inlet) 

40°34.40′ N., 73°34.55′ W. to 40°35.08′ 

N., 73°35.22′ W. (Jones Inlet) 

New Jersey/Delaware 

39°45.90′ N., 74°05.90′ W. to 39°45.15′ 

N., 74°06.20′ W. (Barnegat Inlet) 

39°30.70′ N., 74°16.70′ W. to 39°26.30′ 

N., 74°19.75′ W. (Beach Haven to 

Brigantine Inlet) 

38°56.20′ N., 74°51.70′ W. to 38°56.20′ 

N., 74°51.90′ W. (Cape May Inlet) 

All marine and tidal waters landward 

of the 72 COLREGS demarcation line 

(International Regulations for 

Preventing Collisions at Sea, 1972), as 

depicted or noted on nautical charts 

published by NOAA (Coast Charts 

1:80,000 scale), and as described in 33 

CFR part 80. (Delaware Bay) 

Maryland/Virginia 

38°19.48′ N., 75°05.10′ W. to 38°19.35′ 

N., 75°05.25′ W. (Ocean City Inlet) 

All marine and tidal waters landward 

of the 72 COLREGS demarcation line 

(International Regulations for 

Preventing Collisions at Sea, 1972), as 

depicted or noted on nautical charts 

published by NOAA (Coast Charts 

1:80,000 scale), and as described in 33 

CFR part 80. (Chincoteague to Ship 

Shoal Inlet) 

37°11.10′ N., 75°49.30′ W. to 37°10.65′ 

N., 75°49.60′ W. (Little Inlet) 

37°07.00′ N., 75°53.75′ W. to 37°05.30′ 

N., 75°56.′ W. (Smith Island Inlet) 

North Carolina 

All marine and tidal waters landward 

of the 72 COLREGS demarcation line 

(International Regulations for 

Preventing Collisions at Sea, 1972), as 

depicted or noted on nautical charts 

published by NOAA (Coast Charts 

1:80,000 scale), and as described in 33 

CFR part 80. 

(b) Restrictions—(1) Waters off New 

Jersey Management Area. The Waters off 

New Jersey Management Area is 

bounded by straight lines connecting 

the following points in the order stated: 

WATERS OFF NEW JERSEY

MANAGEMENT AREA

Point N. Lat. W. Long. 

WNJ1 ............ 40°50.1′ ........ 72°30.0′ (NY 

shoreline) 

WNJ2 ............ 38°47.0′ ........ 72°30.0′ 

WNJ3 ............ 38°47.0′ ........ 75°05.0′ (DE 

shoreline) 

(i) Closure. From April 1 through 

April 20, it is prohibited to fish with, 

set, haul back, possess on board a vessel 

unless stowed in accordance with 

§ 229.2, or fail to remove any large mesh 

gillnet gear from the Waters off New 

Jersey Management Area. 

(ii) Gear limitations and 

requirements—large mesh gillnet gear. 

From January 1 through April 30, except 

during April 1 through April 20, as 

described in paragraph (b)(1)(i) of this 

section, no person may fish with, set, 

haul back, possess on board a vessel 

unless stowed in accordance with 

§ 229.2, or fail to remove any large mesh 

gillnet gear in the Waters off New Jersey 

Management Area, unless the gear 

complies with the specified gear 

characteristics described in paragraphs 

(b)(1)(ii)(A) through (F) of this section. 

During this period, no vessel may enter 

or remain in the Waters off New Jersey 

Management Area with large mesh 

gillnet gear on board, unless the gear 

complies with the specified gear 

characteristics described in paragraphs 

(b)(1)(ii)(A) through (F) of this section, 


srobinson on DSKHWCL6B1PROD with RULES
7400 Federal Register / Vol. 75, No. 33 / Friday, February 19, 2010 / Rules and Regulations 

or is stowed in accordance with § 229.2. 

In order to comply with these specified 

gear characteristics, the gear must have 

all the following characteristics: 

(A) Floatline length. The floatline is 

not more than 4,800 ft (1,463.0 m). 

(B) Twine size. The twine is at least 

0.035 inches (0.90 mm) in diameter. 

(C) Size of nets. Individual nets or net 

panels are not more than 300 ft (91.44 

m or 50 fathoms) in length. 

(D) 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. 

(E) Number of nets per string. The 

total number of nets or net panels in a 

net string does not exceed 16. 

(F) Tie-down system. The gillnet gear 

is equipped with tie-downs spaced not 

more than 24 ft (7.3 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. 

(iii) Gear limitations and 

requirements—small mesh gillnet gear. 

From January 1 through April 30, no 

person may fish with, set, haul back, 

possess on board a vessel unless stowed 

in accordance with § 229.2, or fail to 

remove any small mesh gillnet gear in 

the Waters off New Jersey Management 

Area unless the gear complies with the 

specified gear characteristics described 

in paragraphs (b)(1)(iii)(A) through (F) 

of this section. During this period, no 

vessel may enter or remain in the 

Waters off New Jersey Management Area 

with small mesh gillnet gear on board, 

unless the gear complies with the 

specified gear characteristics described 

in paragraphs (b)(1)(iii)(A) through (F) 

of this section, or is stowed in 

accordance with § 229.2. In order to 

comply with these specified gear 

characteristics, the gear must have all 

the following characteristics: 

(A) Floatline length. The floatline is 

not more than 3,000 ft (914.4 m) in 

length. 

(B) Twine size. The twine is at least 

0.031 inches (0.81 mm) in diameter. 

(C) Size of nets. Individual nets or net 

panels are not more than 300 ft (91.4 m 

or 50 fathoms) in length. 

(D) 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. 

(E) Number of nets per string. The 

total number of nets or net panels in a 

net string does not exceed 10. 

(F) Tie-down system. Tie-downs are 

prohibited. 

(2) Mudhole North Management Area. 

The Mudhole North Management Area 

is bounded by straight lines connecting 

the following points in the order stated: 

MUDHOLE NORTH MANAGEMENT AREA

Point N. Lat. W. Long. 

MN1 .............. 40°28.1′ ........ 74°00.0′ (NJ 

shoreline) 

MN2 .............. 40°30.0′ ........ 74°00.0′ 

MN3 .............. 40°30.0′ ........ 73°20.0′ 

MN4 .............. 40°05.0′ ........ 73°20.0′ 

MN5 .............. 40°05.0′ ........ 74°02.0′ (NJ 

shoreline) 

(i) Closures. From February 15 

through March 15, it is prohibited to 

fish with, set, haul back, possess on 

board a vessel unless stowed in 

accordance with § 229.2, or fail to 

remove any large or small mesh gillnet 

gear from the Mudhole North 

Management Area. In addition, from 

April 1 through April 20, it is prohibited 

to fish with, set, haul back, possess on 

board a vessel unless stowed in 

accordance with § 229.2, or fail to 

remove any large mesh gillnet gear from 

the Mudhole North Management Area. 

(ii) Gear limitations and 

requirements—large mesh gillnet gear. 

From January 1 through April 30, except 

during February 15 through March 15 

and April 1 through April 20 as 

described in paragraph (b)(2)(i) of this 

section, no person may fish with, set, 

haul back, possess on board a vessel 

unless stowed in accordance with 

§ 229.2, or fail to remove any large mesh 

gillnet gear in the Mudhole North 

Management Area unless the gear 

complies with the specified gear 

characteristics described in paragraphs 

(b)(2)(ii)(A) through (F) of this section. 

During this period, no vessel may enter 

or remain in the Mudhole North 

Management Area with large mesh 

gillnet gear on board, unless the gear 

complies with the specified gear 

characteristics described in paragraphs 

(b)(2)(ii)(A) through (F) of this section, 

or is stowed in accordance with § 229.2. 

In order to comply with these specified 

gear characteristics, the gear must have 

all the following characteristics: 

(A) Floatline length. The floatline is 

not more than 3,900 ft (1,188.7 m). 

(B) Twine size. The twine is at least 

0.035 inches (0.90 mm) in diameter. 

(C) Size of nets. Individual nets or net 

panels are not more than 300 ft (91.44 

m or 50 fathoms) in length. 

(D) 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. 

(E) Number of nets per string. The 

total number of nets or net panels in a 

net string does not exceed 13. 

(F) Tie-down system. The gillnet gear 

is equipped with tie-downs spaced not 

more than 24 ft (7.3 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. 

(iii) Gear limitations and 

requirements—small mesh gillnet gear. 

From January 1 through April 30, except 

during February 15 through March 15 as 

described in paragraph (b)(2)(i) of this 

section, no person may fish with, set, 

haul back, possess on board a vessel 

unless stowed in accordance with 

§ 229.2, or fail to remove any small 

mesh gillnet gear in the Mudhole North 

Management Area unless the gear 

complies with the specified gear 

characteristics described in paragraphs 

(b)(2)(iii)(A) through (F) of this section. 

During this period, no vessel may enter 

or remain in the Mudhole North 

Management Area with small mesh 

gillnet gear on board unless the gear 

complies with the specified gear 

characteristics described in paragraphs 

(b)(2)(iii)(A) through (F) of this section, 

or is stowed in accordance with § 229.2. 

In order to comply with these specified 

gear characteristics, the gear must have 

all the following characteristics: 

(A) Floatline length. The floatline is 

not more than 3,000 ft (914.4 m) in 

length. 

(B) Twine size. The twine is at least 

0.031 inches (0.81 mm) in diameter. 

(C) Size of nets. Individual nets or net 

panels are not more than 300 ft (91.4 m 

or 50 fathoms) in length. 

(D) 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. 

(E) Number of nets per string. The 

total number of nets or net panels in a 

net string does not exceed 10. 

(F) Tie-down system. Tie-downs are 

prohibited. 

(3) Mudhole South Management Area. 

The Mudhole South Management Area 

is bounded by straight lines connecting 

the following points in the order stated: 

MUDHOLE SOUTH MANAGEMENT AREA

Point N. Lat. W. Long. 

MS1 .................. 40°05.0′ ........... 73°31.0′ 

MS2 .................. 40°05.0′ ........... 73°00.0′ 

MS3 .................. 39°51.0′ ........... 73°00.0′ 

MS4 .................. 39°51.0′ ........... 73°31.0′ 

MS1 .................. 40°05.0′ ........... 73°31.0′ 


srobinson on DSKHWCL6B1PROD with RULES
Federal Register / Vol. 75, No. 33 / Friday, February 19, 2010 / Rules and Regulations 7401 

(i) Closures. From February 1 through 

March 15, it is prohibited to fish with, 

set, haul back, possess on board a vessel 

unless stowed in accordance with 

§ 229.2, or fail to remove any large or 

small mesh gillnet gear in the Mudhole 

South Management Area. In addition, 

from April 1 through April 20, it is 

prohibited to fish with, set, haul back, 

possess on board a vessel unless stowed 

in accordance with § 229.2, or fail to 

remove any large mesh gillnet gear from 

the Mudhole South Management Area. 

(ii) Gear limitations and 

requirements—large mesh gillnet gear. 

From January 1 through April 30, except 

during February 1 through March 15 

and April 1 through April 20 as 

described in paragraph (b)(3)(i) of this 

section, no person may fish with, set, 

haul back, possess on board a vessel 

unless stowed in accordance with 

§ 229.2, or fail to remove any large mesh 

gillnet gear in the Mudhole South 

Management Area unless the gear 

complies with the specified gear 

characteristics described in paragraphs 

(b)(3)(ii)(A) through (F) of this section. 

During this period, no vessel may enter 

or remain in the Mudhole South 

Management Area with large mesh 

gillnet gear on board, unless the gear 

complies with the specified gear 

characteristics described in paragraphs 

(b)(3)(ii)(A) through (F) of this section, 

or is stowed in accordance with § 229.2. 

In order to comply with these specified 

gear characteristics, the gear must have 

all the following characteristics: 

(A) Floatline length. The floatline is 

not more than 3,900 ft (1,188.7 m). 

(B) Twine size. The twine is at least 

0.035 inches (0.90 mm) in diameter. 

(C) Size of nets. Individual nets or net 

panels are not more than 300 ft (91.44 

m or 50 fathoms) in length. 

(D) 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. 

(E) Number of nets per string. The 

total number of nets or net panels in a 

net string does not exceed 13. 

(F) Tie-down system. The gillnet gear 

is equipped with tie-downs spaced not 

more than 24 ft (7.3 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. 

(iii) Gear limitations and 

requirements—small mesh gillnet gear. 

From January 1 through April 30 of each 

year, except during February 1 through 

March 15 as described in paragraph 

(b)(3)(i) of this section, no person may 

fish with, set, haul back, possess on 

board a vessel unless stowed in 

accordance with § 229.2, or fail to 

remove any small mesh gillnet gear in 

the Mudhole South Management Area 

unless the gear complies with the 

specified gear characteristics described 

in paragraphs (b)(3)(iii)(A) through (F) 

of this section. During this period, no 

vessel may enter or remain in the 

Mudhole South Management Area with 

small mesh gillnet gear on board unless 

the gear complies with the specified 

gear characteristics described in 

paragraphs (b)(3)(iii)(A) through (F) of 

this section, or is stowed in accordance 

with § 229.2. In order to comply with 

these specified gear characteristics, the 

gear must have all the following 

characteristics: 

(A) Floatline length. The floatline is 

not more than 3,000 ft (914.4 m) in 

length. 

(B) Twine size. The twine is at least 

0.031 inches (0.81 mm) in diameter. 

(C) Size of nets. Individual nets or net 

panels are not more than 300 ft (91.4 m 

or 50 fathoms) in length. 

(D) 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. 

(E) Number of nets per string. The 

total number of nets or net panels in a 

net string does not exceed 10. 

(F) Tie-down system. Tie-downs are 

prohibited. 

(4) Southern Mid-Atlantic 

Management Area. The Southern MidAtlantic Management Area is bounded 

by straight lines connecting the 

following points in the order stated: 

SOUTHERN MID-ATLANTIC

MANAGEMENT AREA

Point N. Lat. W. Long. 

SMA1 ......... 38°47.0′ ..... 75°05.0′ (DE 

shoreline) 

SMA2 ......... 38°47.0′ ..... 72°30.0′ 

SMA3 ......... 33°51.1′ ..... 72°30.0′ 

SMA4 ......... 33°51.1′ ..... 78°32.5′ (NC/SC 

border) 

(i) Closures. From February 15 

through March 15, it is prohibited to 

fish with, set, haul back, possess on 

board a vessel unless stowed in 

accordance with § 229.2, or fail to 

remove any large mesh gillnet gear from 

the Southern Mid-Atlantic Management 

Area. 

(ii) Gear limitations and 

requirements—large mesh gillnet gear. 

From February 1 through April 30, 

except during February 15 through 

March 15 as described in paragraph 

(b)(4)(i) of this section, no person may 

fish with, set, haul back, possess on 

board a vessel unless stowed in 

accordance with § 229.2, or fail to 

remove any large mesh gillnet gear in 

the Southern Mid-Atlantic Management 

Area unless the gear complies with the 

specified gear characteristics described 

in paragraphs (b)(4)(ii)(A) through (F) of 

this section. During this period, no 

vessel may enter or remain in the 

Southern Mid-Atlantic Management 

Area with large mesh gillnet gear on 

board, unless the gear complies with the 

specified gear characteristics described 

in paragraphs (b)(4)(ii)(A) through (F) of 

this section, or is stowed in accordance 

with § 229.2. In order to comply with 

these specified gear characteristics, the 

gear must have all the following 

characteristics: 

(A) Floatline length. The floatline is 

not more than 3,900 ft (1,188.7 m) in 

length. 

(B) Twine size. The twine is at least 

0.035 inches (0.90 mm) in diameter. 

(C) Size of nets. Individual nets or net 

panels are not more than 300 ft (91.4 m 

or 50 fathoms) in length. 

(D) 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. 

(E) Number of nets per string. The 

total number of nets or net panels in a 

net string does not exceed 13. 

(F) Tie-down system. The gillnet gear 

is equipped with tie-downs spaced not 

more than 24 ft (7.3 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. 

(iii) Gear limitations and 

requirements—small mesh gillnet gear. 

From February 1 through April 30, no 

person may fish with, set, haul back, 

possess on board a vessel unless stowed 

in accordance with § 229.2, or fail to 

remove any small mesh gillnet gear in 

the Southern Mid-Atlantic Management 

Area unless the gear complies with the 

specified gear characteristics described 

in paragraphs (b)(4)(iii)(A) through (F) 

of this section. During this period, no 

vessel may enter or remain in the 

Southern Mid-Atlantic Management 

Area with small mesh gillnet gear on 

board, unless the gear complies with the 

specified gear characteristics described 

in paragraphs (b)(4)(iii)(A) through (F) 

of this section, or is stowed in 

accordance with § 229.2. In order to 

comply with these specified gear 

characteristics, the gear must have all 

the following characteristics: 

(A) Floatline length. The floatline is 

no longer than 2,118 ft (645.6 m). 


srobinson on DSKHWCL6B1PROD with RULES
7402 Federal Register / Vol. 75, No. 33 / Friday, February 19, 2010 / Rules and Regulations 

(B) Twine size. The twine is at least 

0.031 inches (0.81 mm) in diameter. 

(C) Size of nets. Individual nets or net 

panels are not more than 300 ft (91.4 m 

or 50 fathoms) in length. 

(D) 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. 

(E) Number of nets per string. The 

total number of nets or net panels in a 

net string does not exceed 7. 

(F) Tie-down system. Tie-downs are 

prohibited. 

(c) Research permits. An exemption to 

the requirements set forth in this section 

may be acquired for the purposes of 

conducting scientific or gear research 

within the restricted areas described in 

this section. A scientific research permit 

must be acquired through NMFS’ 

existing permit application process, 

administered by NMFS. 

(d) Other special measures. The 

Assistant Administrator may revise the 

requirements of this section through 

notification published in the Federal 

Register if NMFS determines that the 

boundary or timing of a closed area is 

inappropriate, or that gear modifications 

are not reducing bycatch to below the 

stock’s PBR level. 

[FR Doc. 2010–3273 Filed 2–18–10; 8:45 am] 

BILLING CODE 3510–22–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 622 

[Docket No. 001005281–0369–02] 

RIN 0648–XU33 

Fisheries of the Caribbean, Gulf of 

Mexico, and South Atlantic; Coastal 

Migratory Pelagic Resources of the 

Gulf of Mexico and South Atlantic; 

Closure 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Temporary rule; closure. 

SUMMARY: NMFS closes the commercial 

hook-and-line fishery for king mackerel 

in the southern Florida west coast 

subzone. This closure is necessary to 

protect the Gulf king mackerel resource. 

DATES: This rule is effective 12:01 a.m., 

local time, February 15, 2010, through 

June 30, 2010. 

FOR FURTHER INFORMATION CONTACT: 

Susan Gerhart, telephone 727–824– 

5305, fax 727–824–5308, e-mail 

susan.gerhart@noaa.gov. 

SUPPLEMENTARY INFORMATION: The 

fishery for coastal migratory pelagic fish 

(king mackerel, Spanish mackerel, cero, 

cobia, little tunny, and, in the Gulf of 

Mexico only, dolphin and bluefish) is 

managed under the Fishery 

Management Plan for the Coastal 

Migratory Pelagic Resources of the Gulf 

of Mexico and South Atlantic (FMP). 

The FMP was prepared by the Gulf of 

Mexico and South Atlantic Fishery 

Management Councils (Councils) and is 

implemented under the authority of the 

Magnuson-Stevens Fishery 

Conservation and Management Act 

(Magnuson-Stevens Act) by regulations 

at 50 CFR part 622. 

On April 27, 2000, NMFS 

implemented the final rule (65 FR 

16336, March 28, 2000) that divided the 

Florida west coast subzone of the 

eastern zone into northern and southern 

subzones, and established their separate 

quotas. The quota for the hook-and-line 

fishery in the southern Florida west 

coast subzone is 520,312 lb (236,010 

kg)(50 CFR 622.42(c)(1)(i)(A)(2)(i)). 

Under 50 CFR 622.43(a), NMFS is 

required to close any segment of the 

king mackerel commercial fishery when 

its quota has been reached, or is 

projected to be reached, by filing a 

notification at the Office of the Federal 

Register. NMFS has determined the 

commercial quota for Gulf group king 

mackerel in the southern Florida west 

coast subzone will be reached by 

February 15, 2010. Accordingly, the 

commercial fishery for Gulf group king 

mackerel in the southern subzone is 

closed effective 12:01 a.m., local time, 

February 15, 2010, through June 30, 

2010, the end of the fishing year. 

From November 1 through March 31, 

the southern subzone is that part of the 

Florida west coast subzone off Collier 

and Monroe Counties, Florida. This is 

the area south and west from 25° 20.4’ 

N. lat. (a line directly east from the 

Miami-Dade/Monroe County boundary 

on the east coast of Florida) to 26° 19.8’ 

N. lat. (a line directly west from the Lee/ 

Collier County boundary on the west 

coast of Florida). Beginning April 1, the 

southern subzone is reduced to the area 

off Collier County, Florida, between 25° 

48’ N. lat. and 26° 19.8’ N. lat. 

During the closure period, no person 

aboard a vessel for which a commercial 

permit for king mackerel has been 

issued may fish for or retain Gulf group 

king mackerel in Federal waters of the 

closed subzone. There is one exception, 

however, for a person aboard a charter 

vessel or headboat. A person aboard a 

vessel that has a valid charter/headboat 

permit and also has a commercial king 

mackerel permit for coastal migratory 

pelagic fish may continue to retain king 

mackerel in or from the closed subzone 

under the 2–fish daily bag limit, 

provided the vessel is operating as a 

charter vessel or headboat. Charter 

vessels or headboats that hold a 

commercial king mackerel permit are 

considered to be operating as a charter 

vessel or headboat when they carry a 

passenger who pays a fee or when more 

than three persons are aboard, including 

operator and crew. 

Classification 

This action responds to the best 

available information recently obtained 

from the fishery. The Assistant 

Administrator for Fisheries, NOAA 

(AA), finds that the need to immediately 

implement this action to close the 

fishery constitutes good cause to waive 

the requirements to provide prior notice 

and opportunity for public comment 

pursuant to the authority set forth in 5 

U.S.C. 553(b)(B), as such procedures 

would be unnecessary and contrary to 

the public interest. Such procedures 

would be unnecessary because the rule 

itself already has been subject to notice 

and comment, and all that remains is to 

notify the public of the closure. 

Allowing prior notice and 

opportunity for public comment is 

contrary to the public interest because 

of the need to immediately implement 

this action to protect the fishery since 

the capacity of the fishing fleet allows 

for rapid harvest of the quota. Prior 

notice and opportunity for public 

comment would require time and would 

potentially result in a harvest well in 

excess of the established quota. 

For the aforementioned reasons, the 

AA also finds good cause to waive the 

30–day delay in effectiveness of the 

action under 5 U.S.C. 553(d)(3). 

This action is taken under 50 CFR 

622.43(a) and is exempt from review 

under Executive Order 12866. 

Authority: 16 U.S.C. 1801 et seq. 

Dated: February 12, 2010. 

Emily H. Menashes, 

Acting Director, Office of Sustainable 

Fisheries, National Marine Fisheries Service. 

[FR Doc. 2010–3092 Filed 2–12–10; 4:15 pm] 

BILLING CODE 3510–22–S 


srobinson on DSKHWCL6B1PROD with RULES