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[Federal Register Volume 62, Number 156 (Wednesday, August 13, 1997)]
[Proposed Rules]
[Pages 43302-43307]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-21403]

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DEPARTMENT OF COMMERCE

50 CFR Part 229

[Docket No. 970129015-7127-03; I.D. 042597B]
RIN 0648-AI84

Taking of Marine Mammals Incidental to Commercial Fishing 
Operations; Gulf of Maine Harbor Porpoise Take Reduction Plan 
Regulations

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS proposes regulations to implement a plan to reduce the 
bycatch and mortality of harbor porpoises that occur incidental to sink 
gillnet fishing in the Gulf of Maine. These regulations were based on a 
draft Harbor Porpoise Take Reduction Plan (HPTRP) submitted by the Gulf 
of Maine Harbor Porpoise Take Reduction Team (HPTRT) pursuant to the 
Marine Mammal Protection Act (MMPA). NMFS seeks comment on the draft 
Harbor Porpoise Take Reduction Plan (HPTRP), NMFS' proposed changes to 
the draft plan, the proposed regulations to implement the plan and the 
Environmental Assessment (EA) of the plan.

DATES: Comments must be received by October 14, 1997.

ADDRESSES: Send comments to Chief, Marine Mammal Division, Office of 
Protected Resources, National Marine Fisheries Service, 1315 East-West 
Highway, Silver Spring, MD 20910-3226. Copies of the draft HPTRP and EA 
are available upon request from Douglas Beach, Northeast Region, NMFS, 
One Blackburn Drive, Gloucester, MA 01930, or from Donna Wieting, 
Office of Protected Resources, NMFS, 1315 East-West Highway, Silver 
Spring, MD 20910-3226.

FOR FURTHER INFORMATION CONTACT: Kevin Chu, NMFS, 508-495-2291 or Donna 
Wieting, NMFS, 301-713-2322.

SUPPLEMENTARY INFORMATION: The Gulf of Maine sink gillnet fishery is 
classified as a Category I fishery under section 118 of the MMPA, 16 
U.S.C. 1361 et seq.. A Category I fishery is a fishery that has 
frequent incidental mortality and serious injury of marine mammals. The 
fishery operates year-round in nearshore and offshore waters. Much of 
the sink gillnet activity in the Gulf of Maine is regulated by the New 
England Multispecies Fishery Management Plan (FMP). Gillnet fishing for 
other species, such as monkfish and dogfish, will be governed by FMPs 
and implementing regulations that are currently under development by 
the New England Fishery Management Council (NEFMC) and the Mid-Atlantic 
Fishery Management Council (MAFMC), respectively.
    The Gulf of Maine sink gillnet fishery has a historical incidental 
bycatch of a strategic marine mammal stock, the harbor porpoise 
(Phocoena phocoena). A strategic stock is a stock: (1) For which the 
level of direct human-caused mortality exceeds the potential biological 
removal (PBR) level; (2) that is declining and is likely to be listed 
under the Endangered Species Act (ESA) in the foreseeable future; or 
(3) that is listed as a threatened or endangered species under the ESA. 
The incidental bycatch of harbor porpoises in the Gulf of Maine sink 
gillnet fishery exceeds the PBR level established for that stock. The 
Gulf of Maine Stock of harbor porpoise has been proposed for listing as 
threatened under the ESA (58 FR 3108, January 7, 1993).
    Section 118 of the MMPA requires NMFS to develop and implement a 
take reduction plan to assist in the recovery or to prevent the 
depletion of each strategic stock that interacts with a Category I or 
II fishery. A Category II fishery is a fishery that has occasional 
incidental mortality and serious injury of marine mammals. The 
immediate goal of a take reduction plan is to reduce, within 6 months 
of its implementation, the mortality and serious injury of strategic 
stocks incidentally taken in the course of commercial fishing 
operations to below the PBR levels established for such stocks. The PBR 
level is the maximum number of animals that can be removed annually 
from a marine mammal stock by human causes while allowing that

[[Page 43303]]

stock to reach or maintain its optimum sustainable population. The PBR 
level for harbor porpoises is 483 animals per year (62 FR 3005, January 
21, 1997).
    Accordingly, NMFS established the HPTRT on February 12, 1996 (61 FR 
5384, February 12, 1996), to prepare a draft take reduction plan. The 
HPTRT included representatives of the sink gillnet fishery, NMFS, state 
marine resource management agencies, the NEFMC, environmental 
organizations, and academic and scientific organizations. In selecting 
these team members, NMFS sought an equitable balance among 
representatives of resource user and non-user interests.
    The HPTRT was tasked with developing a consensus draft plan for 
reducing incidental mortality and serious injury of harbor porpoises in 
the Gulf of Maine sink gillnet fishery. The HPTRT met five times 
between February and July 1996 and submitted a consensus draft plan to 
NMFS on August 8, 1996. The draft HPTRP is a comprehensive approach to 
the problem and includes:
    1. A Core Management Plan that consists of a schedule of time/area 
closures and periods when pingers (acoustic deterrent devices) would be 
required for each of the established management areas. Consensus on the 
Core Management Plan was contingent on the following understandings: 
(A) That the regime was recommended only for the first year of the plan 
and that the team reconvene 7 months after the plan has been 
implemented; (B) that a scientific experiment be conducted to study the 
effectiveness of pingers in reducing harbor porpoise bycatch in the 
Mid-Coast Area in the spring, and (C) that research on the effect of 
pingers on harbor porpoises and other marine life be conducted at the 
same time, including the initiation of research on the possible 
habituation of harbor porpoise to pingers.
    2. An Implementation Plan that includes recommendations regarding a 
detailed census of the gillnet fleet; outreach, training and 
certification programs for fishers who wish to use pingers; NMFS' and 
the HPTRT's coordination and consultation with Canadian counterparts 
regarding the reduction of harbor porpoise takes in Canadian waters; 
enforcement of the HPTRP; coordination of HPTRT's efforts with those of 
the Mid-Atlantic Take Reduction Team; investigation of impacts on 
harbor porpoise by the state gillnet and bait gillnet fisheries; and 
the reconvening of the team to provide periodic evaluations of the 
HPTRP.
    3. A series of recommendations regarding NMFS' collection, 
analysis, and management of data on the status of the harbor porpoise 
stock, sink gillnet fishery effort, by-catch rate, and total by-catch 
estimates; and recommendations regarding design of pinger experiments 
and gear technology research.
    The HPTRP would govern and pertain to all fishing with sink 
gillnets and other gillnets capable of catching multispecies in the 
inshore and offshore waters of New England from Maine through Rhode 
Island.

The Core Management Plan

    As part of the Core Management Plan, the HPTRT recommended a 
schedule of time/area closures and periods during which pinger use is 
required for each of the established sink gillnet management areas 
(Table 1). The HPTRT expects that these restrictions would result in a 
reduction of harbor porpoise bycatch to below the PBR level.

 Table 1.--Time/Area Closures to Sink Gillnet Fishing and Periods During
        Which Pinger Use Would Be Required, Under the Draft HPTRP       
------------------------------------------------------------------------
                                                                        
------------------------------------------------------------------------
Downeast Area:............................                              
  Aug. 15 to Sep. 13......................  Closed.                     
Mid-coast Area:                                                         
  Jan. 1-31...............................  Closed.                     
  Mar. 1 to May 15........................  Closed.                     
  Sept. 15 to Oct. 31.....................  Open, pingers required on   
                                             all sink gillnets.         
  Nov. 1 to Dec. 31.......................  Closed.                     
Massachusetts Bay Area:                                                 
  Feb. 1-28/29............................  Open, pingers required on   
                                             all sink gillnets.         
  Mar. 1-31...............................  Closed.                     
  Apr. 1-30...............................  Open, pingers required on   
                                             all sink gillnets.         
South Cape Cod Area:                                                    
  Feb. 1-28/29............................  Open, pingers required on   
                                             all sink gillnets.         
  Mar. 1-31...............................  Closed.                     
  Apr. 1-30...............................  Open, pingers required on   
                                             all sink gillnets.         
------------------------------------------------------------------------

    The New England sink gillnet fishery is governed by the Northeast 
Multispecies FMP and implementing regulations. The NEFMC developed the 
FMP to meet groundfish conservation and marine mammal conservation 
goals. Concurrent with the HPTRT's proceeding, the NEFMC considered new 
FMP changes which would affect sink gillnet fishing. This action--
specifically, opening the Mid-Coast Area to gillnet fishing with 
pingers during November and December--was implemented subsequent to 
NMFS' receipt of the HPTRT plan. As the NEFMC actions altered the 
assumptions upon which the HPTRT's consensus proceedings were based, 
NMFS has strived to propose a take reduction plan that maintains the 
spirit of the HPTRT's comprehensive consensus plan. NMFS is proposing 
to adopt the HPTRT's recommendations for closures and pinger use in the 
Downeast Area, Massachusetts Bay Area, and Cape Cod South Area. 
However, for the Mid-Coast Area, NMFS proposes to combine the 
recommendations from the HPTRT and the NEFMC regarding closures and 
pinger use (Table 2).

 Table 2.--Summary of Differences Between Draft and Proposed Plan in the
                             Mid-Coast Area                             
------------------------------------------------------------------------
                                                        NMFS' proposed  
             Period                  HPTRT's Plan     change to the plan
------------------------------------------------------------------------
Jan.............................  Closed............  Closed.           
Mar. 1-May 15...................  Closed............  Closed.\1\        
Sep. 15-Oct. 31.................  Open, pingers       Open, pingers     
                                   required.           required.        
Nov. 1-Dec. 31..................  Closed............  Open, pingers     
                                                       required.        
------------------------------------------------------------------------
\1\ In 1996, the Mid-Coast Closure Area was closed from March 25-April  
  25. Framework Adjustment 19 to Amendment 7 of the Multi-species       
  Fishery Management Plan implemented a closure of Jeffrey's Ledge      
  Closure Area (a subset of the Mid-Coast Area) from May 1 through May  
  31, 1997. The same regulatory action implements a closure of the      
  entire Mid-Coast Area from May 10 through May 30 of each year after   
  1997. NMFS' proposed change melds Framework Adjustment 19 with the    
  actions proposed by the HPTRT.                                        

    NMFS' proposed change increases the fishing opportunities for sink 
gillnet fishermen who would have been excluded from fishing during 
November and December in the draft HPTRP. Based on the historical by-
catch records and the determined/assumed effectiveness of pingers in 
reducing by-catch in the Mid-Coast Area during the fall, this change 
from the draft HPTRP is expected to result in about eight additional 
harbor porpoise takes. However, the total annual take of harbor 
porpoise is still expected to be below the PBR level. The change from 
the draft HPTRP would increase the amount of time when pingers are 
broadcasting in the ocean.
    NMFS' proposed implementing regulations include the following 
periods and areas which would be closed to sink gillnet fishing or 
would be open to sink gillnet fishing only if

[[Page 43304]]

pingers are employed in the prescribed manner (Table 3).

 Table 3.--Time/Area Closures to Sink Gillnet Fishing and Periods During
         Which Pinger Use Would Be Required, as Proposed by NMFS        
------------------------------------------------------------------------
                                                                        
------------------------------------------------------------------------
Downeast Area: Aug.15 to Sep.13...........  Closed.                     
Mid-coast Area:                                                         
  Jan. 1-31...............................  Closed.                     
  Mar. 1 to May 15........................  Closed.                     
  Sep. 15 to Dec. 31......................  Open, pingers required on   
                                             all sink gillnets.         
Massachusetts Bay Area:                                                 
  Feb. 1-28/29............................  Open, pingers required on   
                                             all sink gillnets.         
  Mar. 1-31...............................  Closed.                     
  Apr. 1-30...............................  Open, pingers required on   
                                             all sink gillnets.         
South Cape Cod Area:                                                    
  Feb. 1-28/29............................  Open, pingers required on   
                                             all sink gillnets.         
  Mar. 1-31...............................  Closed.                     
  Apr. 1-30...............................  Open, pingers required on   
                                             all sink gillnets.         
------------------------------------------------------------------------

    The proposed regulations would implement the modified Core 
Management Plan under the authority of the MMPA. As the conservation of 
harbor porpoise is one of the goals of the Multispecies FMP, NMFS will 
request that the NEFMC consider the measures herein and prepare 
regulations implementing the take reduction plan, consistent with 
groundfish management goals, under the Magnuson-Stevens Fishery 
Conservation and Management Act (Magnuson-Stevens Act). The MMPA 
regulations proposed herein would govern sink gillnet fishing by anyone 
in all state and Federal waters of New England from Maine through Rhode 
Island; the Magnuson-Stevens Act regulations would govern only the 
fishing of federally permitted fishers in those areas. Otherwise, the 
actions and management areas described in the regulatory text below are 
consistent with the Northeast Multispecies FMP at the time of this 
proposed rule's publication. Council action under the Magnuson-Stevens 
Act that satisfies the intent of the MMPA would make preparation of 
final regulations under the MMPA unnecessary.
    The HPTRT's full consensus on the Core Management Plan was 
contingent on three additional measures. First, that the regime be 
implemented for only 1 year and that NMFS reconvene the team in the 
seventh month after the HPTRP's implementation, and semiannually 
thereafter, in order to review the effectiveness of the recommended 
actions and to revise the take reduction plan, if necessary. The 
proposed regulations to implement the proposed HPTRT would be effective 
for more than 1 year because of the burden of having to conduct another 
rulemaking. However, NMFS will consider modifying the regulations based 
on the HPTRT's recommendations when the team reconvenes. The HPTRT 
requested that NMFS provide a variety of detailed and updated 
information regarding fishery effort, by-catch rates, by-catch 
estimates throughout the species' range (to include Canada and the Mid-
Atlantic), and compliance with the plan. NMFS intends to reconvene the 
HPTRT and will strive to provide the latest and best information, as 
requested. However, in order to ensure the HPTRT is provided with the 
requested data and that meetings are productive, the timing of the 
meetings must allow sufficient time for NMFS to assemble and analyze 
effort and by-catch data for the period of concern.
    The second measure upon which the HPTRT's full consensus on the 
Core Management Plan was contingent, is that a scientific experiment be 
conducted during the spring closure in the Mid-Coast Area in 1997 to 
determine the effectiveness of pingers as a harbor porpoise 
conservation technique. The team recommended that the experiment last a 
maximum of 45 days and that it be stopped immediately if 70 harbor 
porpoises were caught in the course of the experiment. The HPTRT also 
made several specific recommendations to ensure that the experiment is 
statistically significant and scientifically valid. This experiment was 
conducted in March and April of 1997, and an analysis of the results of 
this experiment is currently underway.
    A third measure upon which the HPTRT's full consensus on the Core 
Management Plan was contingent is that research be conducted on the 
effects of pingers on harbor porpoise and other marine life. The HPTRT 
recommended that research be conducted in the Mid-Coast Area from 
September 15 to October 31 (when pingers would be in use) to begin to 
address: (1) Whether harbor porpoise are displaced from important 
habitat areas by pingers, (2) whether the rate of entanglement of 
porpoise in sink gillnets changes with continued pinger use, and (3) 
whether pingers affect other marine life. NMFS has contracted with the 
Woods Hole Oceanographic Institution to conduct this research.

Implementation Measures

    A second part of the draft HPTRP consists of recommendations for 
implementing the Core Management Plan. The HPTRT noted that effective 
implementation of the plan depends on enhanced cooperation between 
researchers, regulators and fishers, and the plan includes 
recommendations for increased outreach, training, and cooperative 
efforts. The team acknowledged the changing nature of fishing 
activities in response to a variety of recent and on-going fishery 
management and protected species conservation actions. The recommended 
implementation measures address the need for more up-to-date and 
continually updated methods of estimating fishery effort and by-catch 
throughout the species' range.

Census of the Gillnet Fleet

    The HPTRT recommended that NMFS conduct or support a census of the 
sink gillnet fleet to determine seasonal effort, type and amount of 
gear fished, target species, and areas fished. The HPTRT recommended 
that the census include interviews with fishers and, for the purpose of 
facilitating NMFS' public outreach efforts, identify points of contact 
in each port and mailing/phone lists for the fishery participants. The 
draft HPTRP states that since the reliability of total by-catch 
estimates is dependent on the quality of the fishery effort data, NMFS 
should consider adopting a system that uses nets as the measure of 
effort versus the current landings weighout process. In the interest of 
achieving a real-time measure of fishing effort, the HPTRT also 
recommended that NMFS investigate the practicability of dock-side 
interviews or a computer automated or call-in system to augment the 
weighout system.
    NMFS is concerned that a census of the fleet would only provide a 
snapshot of fishing activity, and the information collected may be of 
little value for the purpose of estimating by-catch on a real-time 
basis. NMFS is currently assessing the usefulness of vessel logbooks 
for this purpose. However, the development of a reporting system that 
provides timely, consistent, and thorough measures of fishery effort 
may require an overhaul of existing reporting mechanisms. NMFS is 
investigating the feasibility and value of the technological 
alternatives proposed by the HPTRT. Ideally, improvements in 
determining fishery effort could be applied across areas and fisheries 
beyond the scope of this plan as well. NMFS seeks comments on these and

[[Page 43305]]

other potential effort assessment and reporting mechanisms.

Outreach and Certification Programs

    The HPTRT recommended that NMFS conduct certification programs for 
all fishers who wish to participate in a pinger fishery. Under the 
HPTRT's proposed plan, the program would be a forum in which fishers 
would learn about the take reduction team process, MMPA reporting 
requirements, and proper pinger use. Also, NMFS could use the sessions 
to invite further take reduction and plan implementation ideas from 
fishers. The HPTRT recommended that completion of the certification 
program by sink gillnet fishers be a prerequisite for the issuance of 
an certificate authorizing the incidental take of marine mammals under 
section 118 of the MMPA and for participation in those segments of the 
fishery wherein pingers are required. While the value of informative 
workshops is clear, NMFS is not proposing a mandatory certification 
program at this time, due to the administrative burden it would present 
to fishers and to the agency. NMFS is proposing instead to prepare 
informative printed materials that fully describe the use of pingers 
and the elements of the take reduction plan. NMFS also proposes to 
conduct a series of workshops in conjunction with existing fishery 
gatherings throughout New England to explain not only components of 
this take reduction plan but also of the existing and forthcoming 
measures to protect endangered large whales from entanglements in fixed 
fishing gear. NMFS requests comments on this approach to public 
outreach and training of fishery participants.
    Under the HPTRT's proposed certification program, there is a 
recommendation that NMFS establish specifications for pingers, their 
use and maintenance, and various NMFS' reporting requirements. NMFS 
concurs with the recommendations and has included the following 
definition incorporating such pinger specifications in the proposed 
rule: A pinger is an acoustic deterrent device that, when immersed in 
water, broadcasts a 10 kHz sound ( 2 kHz) at 
132 dB ( 4 dB) re 1 micropascal at 1 meter, that lasts 300 
milliseconds ( 15 milliseconds), and repeats every 4 
seconds ( .2 seconds). An operational and functioning 
pinger must be attached at the end of each string of sink gillnets and 
at the bridle of every net within a string of nets. The HPTRT's 
recommendations regarding reporting of marine mammal takes within 48 
hours, the requirement to carry an observer if so requested by NMFS, 
and submittal of weekly trip reports are addressed under separate 
regulations found at 50 CFR 229.6, 229.7, and 648.7.

Takes of Harbor Porpoise in Canadian and US Mid-Atlantic Waters

    The HPTRT recognized that its area of concern did not reflect the 
full range of the harbor porpoise and that takes incidental to fishing 
operations occur throughout its range in Canadian waters and along the 
US Mid-Atlantic coast. In hopes of ensuring that the Canadian 
Department of Fisheries and Oceans (DFO) implements measures in the 
northern range of the harbor porpoise commensurate with the HPTRP, the 
team recommended that NMFS consult extensively with DFO. Specifically, 
the HPTRT recommends that NMFS seek DFO's comments on the plan, urge 
DFO to develop a complementary plan, review with DFO the progress of 
the HPTRP and any Canadian take reduction strategies, and outline a 
schedule for meetings between NMFS, representatives of the HPTRT, DFO, 
and representatives of the DFO's Harbor Porpoise Advisory Team to 
jointly review population and by-catch data. NMFS has a collegial 
relationship with DFO and values the exchange of data and ideas that 
such a relationship affords. In the interest of continuing that 
relationship, NMFS will request that DFO consider the HPTRT's 
recommendations.
    In U.S. Mid-Atlantic waters, harbor porpoises are taken in a number 
of coastal fisheries. These takes occur in significant numbers, and 
NMFS convened the Mid-Atlantic Take Reduction Team in March 1997 to 
address the matter. During the HPTRT's deliberations, information was 
not available on the number of takes that occur in the Mid-Atlantic, 
and therefore, the HPTRT was not able to take into account the 
significance and magnitude of these extra-regional takes. When NMFS 
reconvenes the HPTRT, the latest and best information on porpoise by-
catch in the Mid-Atlantic will be considered, and an equitable PBR 
level allocation scheme will be developed for each segment of the 
fishery. To provide the necessary coordination between the teams and 
consistency across the regions, NMFS, at the recommendation of the 
HPTRT, has included several members of the HPTRT on the Mid-Atlantic 
Take Reduction Team and will strive to ensure that data on by-catch and 
effort in both areas will be shared with both teams. NMFS requests 
comments on its plans for addressing takes of harbor porpoises 
throughout the full range of the species.

Enforcement Priority

    To meet the goals of significantly reducing by-catch of harbor 
porpoises, the HPTRT recommended that NMFS give enforcement of the 
HPTRP a high priority. Further, the HPTRT recommended that NMFS provide 
the team and other interested parties the opportunity to review and 
comment on enforcement guidelines.
    The NMFS Enforcement Division will enforce the final regulations 
implementing the plan. The policies and priorities of the NMFS 
Enforcement Division are constantly evolving to provide the best 
possible response to changing regulations, seasonality of fisheries, 
levels of compliance, sensitivity of resources, and a number of other 
factors. Given the dynamic and broad range of conditions and 
contingencies with which the NMFS Enforcement Division must contend, it 
would be impractical and highly unusual for NMFS to develop and seek 
public comment on an enforcement plan focused on this specific take 
reduction plan. In an effort to enhance communications and to 
facilitate enforcement of the take reduction plan, Special Agents from 
the NMFS Enforcement Division will attempt to attend upcoming HPTRT 
meetings. Also, the HPTRT and other interested parties are encouraged 
to submit written comments to the NMFS Enforcement Division at any 
time.

Baitnets and Other Gillnets

    The HPTRT recognized that certain gillnet fisheries that are not 
regulated and/or not subject to the requirements of the Federal 
observer program may occur in waters covered by the take reduction plan 
and may pose a by-catch risk to harbor porpoises. The team noted that 
the HPTRP is focused on the sink gillnet fishery and, with the intent 
of ensuring that the gillnet fisheries that may be exempted from 
regulations or monitoring do not set nets in time-areas closed for the 
protection of harbor porpoises, the HPTRT recommended that NMFS 
restrict all gillnets, with the exception of baitnets, as provided in 
the HPTRP. The exception for baitnets recognizes the use of small mesh 
pelagic gillnets to harvest bait for the tuna and lobster fisheries. 
Framework Adjustment 16 to the New England Multispecies FMP defines a 
baitnet as a single pelagic gillnet, not more than 300 ft (90.9 m) long 
nor more than 6 ft (1.8 m) deep, with a maximum mesh size of 3 in (7.6 
cm), and requires that the net be attached to the boat and fished in 
the upper two-thirds of the water column (50 CFR 648.81(f)(2)(ii)). The 
HPTRT

[[Page 43306]]

assumed that these small mesh nets, which are constantly monitored, 
pose little risk to harbor porpoises. Accordingly, the proposed 
regulations would be applicable to all fishers who use sink gillnets or 
other gillnets capable of catching multispecies except for a single 
pelagic gillnet as described in 50 CFR 648.81(f)(2)(ii). Furthermore, 
under the authority of the MMPA, the proposed regulations would apply 
to fisheries operating in both state and Federal waters. NMFS will 
request that the NEFMC consider the measures herein and prepare 
regulations implementing the measures under the Magnuson-Stevens Act as 
a Framework Adjustment to the Multispecies FMP. Should the NEFMC do so, 
the language restricting all gillnets capable of catching multispecies, 
with the exception of baitnets, would likely remain in the regulatory 
text. However, under the Magnuson-Stevens Act, the regulation would not 
have quite as broad effect as under the MMPA. Fishers who do not hold a 
Federal fishery permit and who fish in state waters would not be 
subject to the regulations under the Magnuson-Stevens Act. NMFS seeks 
comments from the public on this regulatory implementation strategy.

Data Collection and Management Recommendations

     Throughout its proceedings, the HPTRT examined the available data 
on harbor porpoise abundance, by-catch estimates, fishing effort, and 
pinger use. In the draft HPTRP, the team identified additional research 
needs, adjustments to existing data collection methods, and changes to 
database management and reporting.
    The draft HPTRP included several recommendations regarding the 
conduct and analysis of harbor porpoise abundance surveys. NMFS will 
follow the recommendations to the extent that good scientific practice 
and resources allow. To learn more about the harbor porpoise and its 
environment, the team recommended that NMFS conduct studies of 
migration with respect to salinity, water temperatures, and other 
oceanographic variables. NMFS will consider these research needs when 
the agency reviews priorities for resources allocation.
    The HPTRT made several recommendations regarding NMFS' management 
of observers and use of data collected by observers. NMFS will comply 
with the recommendations to the extent that good scientific practice 
and available resources allow.
    Finally, the HPTRT identified several long-term research goals. The 
team recommended that NMFS: (1) Conduct or support a study of by-catch 
rates with respect to variations in gillnet gear and fishing practices; 
(2) join with fishers and conservation engineers to develop gear 
modifications to reduce interactions with harbor porpoises; and (3) 
investigate ambient noise levels and transmission conditions for the 
various harbor porpoise management areas. NMFS will consider these 
long-term research goals when establishing funding priorities. NMFS 
will request that the HPTRT revisit and refine these recommendations at 
future meetings of the HPTRT. NMFS seeks comments on the research needs 
and priorities to address the problem of harbor porpoise by-catch in 
gillnets.

Classification

    This proposed rule has been determined to be not significant for 
purposes of E.O. 12866.
    The Assistant General Counsel for Legislation and Regulation of the 
Department of Commerce certified to the Chief Counsel for Advocacy of 
the Small Business Administration that the proposed regulations, if 
adopted as proposed, would not have a significant economic impact on a 
substantial number of small entities as follows:

    The economic impacts of this proposed rule are minimal and could 
be offset by reductions in marine mammal entanglement and subsequent 
reductions in fisher's costs due to net damage or loss. As a worst-
case scenario, if fishers were unable to use fishing grounds other 
than those proposed for closures, or were unable to purchase pingers 
to use fishing grounds that are closed except to vessels with 
pingers, the total economic loss experienced as a result of this 
rule could be as high as $882K per year for the entire fishery. If 
vessels were to purchase pingers, total net losses (surplus minus 
the cost of pingers) could be as high as $436K per year for the 
entire fishery. Individual vessel costs to equip gillnets with 
pingers would be approximately $4K (80 pingers at $50/pinger). If 
fishers were able to displace fishing effort and use pingers to 
access otherwise closed areas, economic impact on the fishery could 
be as low as $171K per year for the entire fishery. For the 1995 
fishing year, there were 378 gillnet category permits issued out of 
a total number of 4738 multispecies permits, or 8.0 percent. Because 
the number of vessels affected by this proposed action account for 
less than 20 percent of the small business entities in the northeast 
multispecies fishery, the proposed action will not have a 
significant economic impact on a substantial number of small 
entities and a Regulatory Flexibility Analysis was not prepared.

    The Assistant Administrator for Fisheries, NOAA (AA) has 
preliminarily determined, based on an EA prepared under the National 
Environmental Policy Act, that implementation of these regulations 
would not have a significant impact on the human environment. A copy of 
the EA prepared for this rule is available for comment upon request 
(see ADDRESSES).

List of Subjects in 50 CFR Part 229

    Administrative practice and procedure, Confidential business 
information, Fisheries, Marine mammals, Reporting and recordkeeping 
requirements.

    Dated: July 30, 1997.
Rolland A. Schmitten,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
    For the reasons set out in the preamble, 50 CFR part 229 is 
proposed to be amended as follows:

PART 229--AUTHORIZATION FOR COMMERCIAL FISHERIES UNDER THE MARINE 
MAMMAL PROTECTION ACT OF 1972

    1. The authority citation for part 229 continues to read as 
follows:

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

    2. In subpart C, new Sec. 229.33 is added to read as follows:

Sec. 229.33  Gulf of Maine harbor porpoise take reduction plan.

    (a) It is prohibited to fish with, set, haul back, possess on board 
a vessel, unless stowed in accordance with 50 CFR 648.81(e), or fail to 
remove sink gillnet gear or gillnet gear capable of catching 
multispecies, with the exception of a single pelagic gillnet (as 
described in Sec. 648.81(f)(2)(ii)), from the areas and for the times 
specified in paragraphs (a)(1) through (a)(4) of this section, except 
as provided in paragraphs (b)(1) through (b)(3) of this section.
    (1) Northeast Closure Area. From August 15-September 13 of each 
fishing year, the restrictions and requirements specified in paragraph 
(a) of this section apply to the Northeast Closure Area, which is the 
area bounded by straight lines connecting the following points in the 
order stated.

                         Northeast Closure Area                         
------------------------------------------------------------------------
             Point                     N. Lat.             W. Long.     
------------------------------------------------------------------------
NE1............................  (\1\)                68 deg.55.0'      
NE2............................  43 deg.29.6'         68 deg.55.0'      
NE3............................  44 deg.04.4'         67 deg.48.7'      
NE4............................  44 deg.06.9'         67 deg.52.8'      
NE5............................  44 deg.31.2'         67 deg.02.7'      
NE6............................  (\1\)                67 deg.02.7'      
------------------------------------------------------------------------
\1\ Maine shoreline.                                                    

    (2) Mid-coast Closure Area. From January 1-January 31, from March 
1-

[[Page 43307]]

May 15, and from September 15-December 31, except as provided in 
paragraph (b)(1) of this section; the restrictions and requirements 
specified in paragraph (a) of this section apply to the Mid-Coast 
Closure Area, which is the area bounded by straight lines connecting 
the following points in the order stated.

                         Mid-Coast Closure Area                         
------------------------------------------------------------------------
             Point                     N. Lat.             W. Long.     
------------------------------------------------------------------------
MC1............................  42 deg.30'           (\1\)             
MC2............................  42 deg.30'           70 deg.15'        
MC3............................  42 deg.40'           70 deg.15'        
MC4............................  42 deg.40'           70 deg.00'        
MC5............................  43 deg.00'           70 deg.00'        
MC6............................  43 deg.00'           69 deg.30'        
MC7............................  43 deg.15'           69 deg.30'        
MC8............................  43 deg.15'           69 deg.00'        
MC9............................  (\2\)                69 deg.00'        
------------------------------------------------------------------------
\1\ Massachusetts shoreline.                                            
\2\ Maine shoreline.                                                    

    (3) Massachusetts Bay Closure Area. From February 1-April 30, 
except as provided in paragraph (b)(2) of this section, the 
restrictions and requirements specified in paragraph (a) of this 
section apply to the Massachusetts Bay Closure Area, which is the area 
bounded by straight lines connecting the following points in the order 
stated.

                     Massachusetts Bay Closure Area                     
------------------------------------------------------------------------
             Point                     N. Lat.             W. Long.     
------------------------------------------------------------------------
MB1............................  42 deg.30'           (\1\),            
MB2............................  42 deg.30'           70 deg.30'        
MB3............................  42 deg.12'           70 deg.30'        
MB4............................  42 deg.12'           70 deg.00'        
MB5............................  (\2\)                70 deg.00'        
MB6............................  42 deg.00'           (\2\),            
MB7............................  42 deg.00'           (\1\)             
------------------------------------------------------------------------
\1\ Massachusetts shoreline.                                            
\2\ Cape Cod shoreline.                                                 

    (4) Cape Cod South Closure Area. From February 1-April 30, except 
as provided in paragraph (b)(3) of this section, the restrictions and 
requirements specified in paragraph (a) of this section apply to the 
Cape Cod South Closure Area, which is the area bounded by straight 
lines connecting the following points in the order stated.

                       Cape Cod South Closure Area                      
------------------------------------------------------------------------
             Point                     N. Lat.             W. Long.     
------------------------------------------------------------------------
CCS1...........................  (\1\)                71 deg.45'        
CCS2...........................  40 deg.40'           71 deg.45'        
CCS3...........................  40 deg.40'           70 deg.30'        
CCS4...........................  (\2\)                70 deg.30'        
------------------------------------------------------------------------
\1\ Rhode Island shoreline.                                             
\2\ Massachusetts shoreline.                                            

    (b) For the purposes of this subpart, a pinger is an acoustic 
deterrent device which, when immersed in water, broadcasts a 10 kHz 
( 2 kHz) sound at 132 dB ( 4 dB) re 1 
micropascal at 1 m, lasting 300 milliseconds ( 15 
milliseconds), and repeating every 4 seconds ( .2 seconds). 
An operating and functional pinger must be attached at the end of each 
string of the gillnets and at the bridle of every net within a string 
of nets.
    (1) Vessels, subject to the restrictions and regulations specified 
in paragraph (a) of this section, may fish in the Mid-coast Closure 
Area from September 15 through December 31 of each fishing year, 
provided that pingers are used in accordance with the requirements of 
paragraph (b) of this section.
    (2) Vessels, subject to the restrictions and regulations specified 
in paragraph (a) of this section, may fish in the Massachusetts Bay 
Closure Area from February 1 through the last day of February and from 
April 1-April 30 of each fishing year, provided that pingers are used 
in accordance with the requirements of paragraph (b) of this section.
    (3) Vessels, subject to the restrictions and regulations specified 
in paragraph (a) of this section, may fish in the Cape Cod South 
Closure Area from February 1 through the last day of February and from 
April 1-April 30 of each fishing year, provided that pingers are used 
in accordance with the requirements of paragraph (b) of this section.

[FR Doc. 97-21403 Filed 8-12-97; 8:45 am]
BILLING CODE 3510-22-P
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