36058 Federal Register / Vol. 74, No. 138 / Tuesday, July 21, 2009 / Proposed Rules 

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: Proposed rule; request for 

comments. 

SUMMARY: The National Marine 

Fisheries Service (NMFS) proposes 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 stock 

of harbor porpoises (Phocoena 

phocoena) in gillnet fisheries 

throughout the stock’s U.S. range. 

DATES: Comments on the proposed rule 

must be received by 5 p.m. EST on 

August 20, 2009. 

ADDRESSES: Comments may be 

submitted on this proposed rule, 

identified by RIN 0648–AW51, by any 

one of the following methods: 

(1) Electronic Submissions: Submit all 

electronic public comments via the 

Federal eRulemaking Portal: http:// 

www.regulations.gov. 

(2) Mail: Mary Colligan, Assistant 

Regional Administrator for Protected 

Resources, NMFS, Northeast Region, 

Protected Resources Division, 55 Great 

Republic Drive, Suite 04–400, 

Gloucester, MA 01930, ATTN: HPTRP 

Proposed Rule. 

(3) Facsimile (fax) to: 978–281–9394, 

ATTN: HPTRP Proposed Rule. 

Instructions: All comments received 

are a part of the public record and will 

generally be posted to http:// 

www.regulations.gov without change. 

All personal identifying information (for 

example, name, address, etc.) 

voluntarily submitted by the commenter 

may be publicly accessible. Do not 

submit confidential business 

information or otherwise sensitive or 

protected information. 

NMFS will accept anonymous 

comments (enter ‘‘N/A’’ in the required 

fields if you wish to remain 

anonymous). Attachments to electronic 

comments will be accepted in Microsoft 

Word, Excel, WordPerfect, or Adobe 

PDF file formats only. 

Copies of the draft HPTRP 

Environmental Assessment (EA) and 

Regulatory Impact Review/Initial 

Regulatory Flexibility Analysis (RIR/ 

IRFA) prepared for this proposed rule 

may be obtained from the HPTRP Web 

site (http://www.nero.noaa.gov/hptrp) 

or by writing to Amanda Johnson, 

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 1994 amendments to the Marine 

Mammal Protection Act (MMPA) 

established Section 118, which includes 

provisions for addressing commercial 

fishery interactions with marine 

mammal stocks. The HPTRP was 

developed pursuant to Section 118(f) of 

the MMPA to reduce the level of serious 

injury and mortality of the Gulf of 

Maine/Bay of Fundy (GOM/BOF) stock 

of harbor porpoise interacting with 

Category I and II fisheries (i.e., those 

with frequent or occasional incidental 

serious injury or mortality of marine 

mammals). Under Section 118, take 

reduction plans (TRPs) are required for 

all strategic marine mammal stocks that 

are incidentally seriously injured or 

killed in Category I or II commercial 

fisheries. A strategic stock is a stock: (1) 

For which the level of direct humancaused mortality exceeds the stock’s 

potential biological removal (PBR) level, 

(2) that is declining and is likely to be 

listed under the Endangered Species Act 

of 1973 (ESA) in the foreseeable future, 

or (3) that is listed as a threatened or 

endangered species under the ESA, or is 

designated as depleted under the 

MMPA. PBR is the maximum number of 

animals that may be removed from a 

marine mammal stock annually, not 

including natural mortalities, while 

allowing that stock to reach or maintain 

its optimum sustainable population. 

Because the current average annual 

human-related mortality and serious 

injury of harbor porpoise incidental to 

Category I and II commercial gillnet 

fisheries exceeds PBR, the GOM/BOF 

stock is considered strategic under the 

MMPA (Waring et al., 2007a). 

At the time the 1994 amendments to 

the MMPA were enacted, the GOM/BOF 

harbor porpoise stock was considered 

strategic due to interactions with the 

Northeast sink gillnet fishery and the 

Mid-Atlantic gillnet fishery. As such, 

NMFS was required by the MMPA to 

take action by forming a take reduction 

team to reduce the serious injury and 

mortality of harbor porpoises in gillnet 

gear. The MMPA directs take reduction 

teams to submit recommendations to 

NMFS to immediately reduce bycatch to 

below PBR within six months and to 

achieve the long-term goal of reducing 

bycatch to insignificant levels 

approaching a zero mortality and 

serious injury rate. As stated in Section 

118(f)(6)(D) of the MMPA, take 

reduction teams are not subject to the 

Federal Advisory Committee Act and 

are open to the public. 

NMFS published a notice in the 

Federal Register on February 12, 1996 

(61 FR 5384), establishing the Gulf of 

Maine Harbor Porpoise Take Reduction 

Team (GOMTRT) and announcing the 

first GOMTRT meeting. The GOMTRT 

included representatives of the 

Northeast sink gillnet fishery, state 

fishery management agencies, the 

Northeast Fishery Management Council 

(NEFMC), the Atlantic States Marine 

Fisheries Commission (ASMFC), 

environmental organizations, academic 

and scientific organizations, and NMFS. 

The GOMTRT met five times between 

February and July 1996 before 

producing a consensus draft TRP that 

was submitted to NMFS on August 8, 

1996. Additionally, the GOMTRT 

convened with the understanding that a 

separate take reduction team would be 

formed to address harbor porpoise 

bycatch in the Mid-Atlantic region. 

In February 1997, NMFS established 

the Mid-Atlantic Harbor Porpoise Take 

Reduction Team (MATRT) to address 

the incidental serious injury and 

mortality of harbor porpoises in MidAtlantic gillnet fisheries from New York 

through North Carolina (62 FR 8428, 

February 25, 1997). The MATRT 

included representatives of the MidAtlantic coastal gillnet fisheries, state 

fishery management agencies, the MidAtlantic Fishery Management Council 

(MAFMC), the NEFMC, the ASMFC, 

environmental organizations, academic 

and scientific organizations, and NMFS. 

The MATRT submitted a report to 

NMFS on August 25, 1997, which 

included both consensus and nonconsensus recommendations. 

On September 11, 1998, NMFS 

published a proposed rule (63 FR 

48670) to implement the HPTRP, which 

included both GOMTRT and MATRT 

recommendations. A final rule 

implementing the HPTRP to reduce 

serious injury and mortality of harbor 

porpoise in both the Gulf of Maine and 

Mid-Atlantic was published on 


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December 2, 1998 (63 FR 66464). 

Shortly following, a correction notice 

was published to remedy incorrect 

management area coordinates that were 

published in the final rule (63 FR 71041, 

December 23, 1998). On January 11, 

2001, NMFS published a final rule (66 

FR 2336) amending the HPTRP by 

exempting Delaware Bay from HPTRP 

regulations landward of the 72 

COLREGS demarcation line. 

The current HPTRP regulations are 

separated into two components—Gulf of 

Maine (GOM) and Mid-Atlantic. Among 

other measures, the GOM component 

regulates sink gillnet gear or gillnet gear 

capable of catching multispecies 

through time and area regulations from 

Maine to Rhode Island during the 

months of August through May. In four 

of the six GOM management areas, 

measures include seasonal gillnet 

closures during the months of the year 

when harbor porpoises are most 

concentrated in these areas. During 

several other times of the year, the 

HPTRP management areas require the 

use of acoustic deterrent devices 

(pingers) on sink gillnet gear. 

The Mid-Atlantic component of the 

HPTRP regulates gillnet fishing in three 

management areas through time and 

area regulations from New York through 

North Carolina from January through 

April. In lieu of pinger requirements, 

the Mid-Atlantic component of the 

HPTRP established large and small 

mesh gear specification requirements in 

which fishermen set gear that is less 

likely to result in harbor porpoise 

entanglement. Large mesh gillnets 

include gillnets with a mesh size of 

seven to 18 inches (18–46 cm) and small 

mesh gillnets include gillnets with a 

mesh size of greater than five to less 

than seven inches (>13–<18 cm). Gear 

specification requirements for MidAtlantic gillnets include measures 

specifying a net limit per net string, 

twine size, net size, number of nets per 

vessel, and tie-down provisions. The 

three management areas of the MidAtlantic component of the HPTRP also 

include seasonal gillnet closures to 

coincide with high abundances of 

harbor porpoises. 

Along with implementation of the 

HPTRP, regulations implementing 

restrictions developed under various 

Fishery Management Plans (FMP) have 

closed areas to gillnetting and reduced 

or constrained effort in groundfish, 

monkfish, and dogfish gillnet fisheries. 

Need for Additional Action 

After implementation of the HPTRP in 

late 1998, the annual average harbor 

porpoise bycatch decreased from a high 

of 1,500 animals per year prior to 

implementation of the HPTRP to a low 

of 310 animals per year (Waring et al., 

2004). This was below the stock’s PBR 

level, which increased from 483 to 747 

animals as reported in the 2001 Stock 

Assessment Report (Waring et al., 2001). 

Up to the 2006 Stock Assessment 

Report, harbor porpoise serious injury 

and mortality levels remained below 

PBR, with a mean annual mortality of 

515 animals per year between 2000 and 

2004 (Waring et al., 2007b). Although 

the HPTRP regulations achieved the 

immediate goal of reducing harbor 

porpoise bycatch to levels below PBR, 

these regulations did not achieve the 

long-term goal of reducing bycatch to 

insignificant levels approaching a zero 

mortality and serious injury rate 

(referred to as the zero mortality rate 

goal or ZMRG), as required under the 

MMPA. NMFS defined this 

insignificance threshold as ten percent 

of a stock’s PBR (50 CFR 229.2). Instead, 

the yearly observed takes and estimated 

mortality rates have shown an 

increasing trend rather than a 

decreasing trend to bycatch levels 

approaching the insignificance 

threshold. 

The most recent estimates indicate 

that, when calculating the average 

estimated mortality for the period 

between 2001 and 2005, bycatch 

exceeded PBR. The 2007 Stock 

Assessment Report indicates that the 

current annual estimated harbor 

porpoise incidental bycatch of 652 

animals per year exceeds the current 

PBR of 610 animals (Waring et al., 

2007a). Of the 652 takes, 475 are 

attributed to the Northeast sink gillnet 

fishery and 177 to the Mid-Atlantic 

gillnet fishery. 

After preliminary discussions, NMFS 

originally believed the recent increase 

in harbor porpoise bycatch was the 

result of a lack of compliance with the 

HPTRP requirements. In New England, 

compliance rates dropped precipitously 

between 2002 and 2003 (as indicated by 

the low percentage of observed hauls 

using the correct number of pingers per 

string when pingers were required), 

when fewer than 10 percent of the 

observed hauls were deployed with the 

proper number of pingers (Palka et al., 

2008). However, after reviewing more 

recent observer information depicting 

the locations of gillnet hauls in which 

harbor porpoise takes were recorded, 

NMFS concluded that the increase in 

harbor porpoise takes was a twopronged problem. It not only involved 

non-compliance with the current 

HPTRP requirements, but also involved 

observed harbor porpoise takes 

occurring outside of existing HPTRP 

management areas. These data 

prompted NMFS to initiate a targeted 

HPTRP outreach effort in the fall of 

2006. This effort included development 

of laminated outreach cards 

summarizing and graphically depicting 

the HPTRP management areas and 

requirements for New England and the 

Mid-Atlantic. In October 2006, the 

outreach cards and a laminated pinger 

training authorization were mailed to 

over 300 fishermen who had previously 

received pinger training. The pinger 

training authorization, when kept on 

board the vessel, allows gillnet fishing 

with pingers inside the HPTRP 

management areas and illustrates proper 

pinger placement. 

A large component of the outreach 

effort involved commercial gillnet 

industry outreach meetings. Between 

October and November 2006, NMFS 

conducted a series of eight voluntary 

outreach meetings for commercial 

gillnet fishermen throughout New 

England from Maine through Rhode 

Island. The outreach meetings were 

intended to provide commercial gillnet 

fishermen with an update on the status 

of the HPTRP, summarize the existing 

HPTRP requirements for both New 

England and the Mid-Atlantic, and 

provide pinger training where necessary 

(New England only). The outreach 

meetings supplemented ongoing efforts 

by NMFS gear specialists to train local 

and Federal enforcement personnel. As 

such, where possible, NMFS and U.S. 

Coast Guard (USCG) enforcement agents 

also attended the outreach meetings. 

In the fall of 2006, while the outreach 

meetings were ongoing, an increase in 

compliance was already evident. 

Through May 2007, compliance in 2007 

increased to nearly 60 percent. 

In addition to conducting outreach to 

gillnet fishermen, NMFS participated in 

enforcement cruises with state 

enforcement personnel in Massachusetts 

and Rhode Island. NMFS held a number 

of joint meetings with local law 

enforcement personnel, including eight 

presentations made in New England 

between 2003 and 2008. Beginning in 

2005, the US Coast Guard (USCG) 

increased patrols in HPTRP 

management areas in the Gulf of Maine. 

During March of 2006, the 

Massachusetts Environmental Police 

joined the USCG in their patrols. 

Increased patrols continued into 2007. 

In the Mid-Atlantic, NMFS gear 

specialists held two meetings (in 2003 

and 2005) with the Atlantic States 

Marine Fisheries Commission’s Law 

Enforcement Committee to review the 

current requirements of the HPTRP. 

Outreach and enforcement efforts 

alone, however, did not address the 

increased bycatch of harbor porpoises 


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occurring outside of the existing HPTRP 

management areas, where harbor 

porpoise bycatch reduction measures 

are not in place. Consequently, NMFS 

determined that it was necessary to 

reconvene the Harbor Porpoise Take 

Reduction Team (HPTRT). 

HPTRT Reconvened 

The HPTRP utilizes two harbor 

porpoise take reduction teams (TRT), 

the Gulf of Maine and Mid-Atlantic 

TRTs, to address the incidental serious 

injury and mortality of harbor porpoises 

that result from incidental interactions 

with gillnet fisheries. Specifically, the 

TRTs were charged with developing 

conservation strategies to reduce the 

incidental serious injury and mortality 

of harbor porpoises to levels below the 

PBR level and approaching ZMRG. The 

GOMTRT was charged with reducing 

the serious injury and mortality of 

harbor porpoises that result from 

incidental interactions with gillnet 

fisheries from Maine to Rhode Island, 

while the MATRT addressed the serious 

injury and mortality of harbor porpoises 

that result from incidental interactions 

with gillnet fisheries from New York 

through North Carolina. The TRTs were 

each last convened in 2000 to discuss 

harbor porpoise/fisheries interactions 

and potential mitigation measures on a 

regional level. 

However, to address the recent 

increase in harbor porpoise bycatch, 

NMFS decided to combine the two 

TRTs and hold one full HPTRT meeting 

for three reasons. First, since it had been 

nearly eight years since either TRT had 

met, the updated stock abundance and 

bycatch information presented would be 

pertinent to both TRTs. Additionally, 

some members had served on both the 

GOMTRT and MATRT, and would 

receive redundant information if two 

separate meetings were held. Finally, 

holding one full HPTRT meeting could 

more efficiently utilize limited 

resources. 

The HPTRT was reconvened for a 

meeting in December 2007, and a 

follow-up teleconference meeting was 

held on January 31, 2008. The proposed 

modifications to the HPTRP, as well as 

the other alternatives considered within 

the draft Environmental Assessment 

(EA) that accompanies this proposed 

rule, were developed through these 

consultations with the HPTRT to reduce 

mortality and serious injury of harbor 

porpoises in the Northeast and MidAtlantic gillnet fisheries to levels below 

PBR and approaching ZMRG. 

Review of Gulf of Maine Harbor 

Porpoise Bycatch Information 

In preparation for the HPTRT 

December 2007 meeting, NMFS 

analyzed observer data from January 1, 

1999, through May 31, 2007 from 

different geographic areas to identify 

patterns in the overall increase in harbor 

porpoise bycatch in the New England 

and Mid-Atlantic areas and to identify 

any trends in compliance with HPTRP 

requirements. NMFS also identified a 

number of issues contributing to the 

observed increase in harbor porpoise 

takes, primarily poor compliance with 

existing measures and increased bycatch 

outside of existing management areas. 

In the Gulf of Maine region, observed 

harbor porpoise takes from January 1, 

1999, through May 31, 2007, occurred 

during all months of the year (although 

the bycatch rates were very low during 

the summer months) in gear targeting a 

variety of fish species, including 

American cod, monkfish, pollock, 

yellowtail flounder, spiny dogfish, 

unknown groundfish, and other 

flounders (Palka et al., 2008). The 

highest bycatch rates were observed in 

the Western Gulf of Maine Closure Area 

(a Northeast Multispecies FMP yearround closure) and in the HPTRP MidCoast Management Area (from this point 

forward, the HPTRP areas will be 

termed ‘‘management areas’’ rather than 

‘‘closure areas’’ unless the area exists 

solely as a closure). A relatively high 

bycatch rate (0.040 harbor porpoise 

takes per metric tons [mtons] landed) 

was also observed in the currently 

unregulated Stellwagen Bank 

Management Area (proposed as a new 

management area in this proposed rule). 

Bycatch rates were highest during the 

following five months, with the rates 

listed in order from highest to lowest: 

November, February, December, April, 

and March (Palka et al., 2008). More 

specifically, the highest bycatch rates 

were found in the Massachusetts Bay 

and Mid-Coast Management Areas 

during March, the Multispecies FMP 

Western Gulf of Maine Closure Area and 

proposed Stellwagen Bank Management 

Area during February, and the 

Multispecies FMP Western Gulf of 

Maine Closure Area and the 

Massachusetts Bay, Mid-Coast, and 

proposed Stellwagen Bank Management 

Areas during November and December 

(Palka et al., 2008). Notably, the 

Massachusetts Bay Management Area 

had a high bycatch rate in the month of 

November (0.052 harbor porpoise takes/ 

mtons), despite its being closed to 

gillnet fishing during October and 

November through the Northeast 

Multispecies FMP Rolling Closure Area 

V restrictions (Palka et al., 2008). These 

data indicate non-compliance with the 

current HPTRP requirements, 

demonstrated through high bycatch 

rates in the Massachusetts Bay and MidCoast Management Areas, as well as 

takes occurring outside existing 

management areas, demonstrated 

through seasonally high bycatch rates in 

the proposed Stellwagen Bank 

Management Area. It also demonstrates 

takes occurring within the year-round 

Western Gulf of Maine Closure Area 

under the Multispecies FMP. 

In the Gulf of Maine region from 

January 1, 1999, through May 31, 2007, 

the number of vessels using at least 90 

percent of the required number of 

pingers in times and areas when pingers 

were required varied throughout the 

time period examined. Approximately 

75 percent of observed vessels used the 

proper number of pingers in 1999, 

which was the first year that the HPTRP 

requirements were in effect. This 

number dropped to a low of 10 percent 

in 2003 and 2004, and rose again to 

about 60 percent between January and 

May of 2007 (Palka et al., 2008), 

possibly as a result of the NMFS 

targeted outreach efforts in the fall of 

2006. 

In the New England waters south of 

Cape Cod (which refers to waters within 

the Cape Cod South Management Area 

and waters surrounding this 

management area), all observed takes 

from January 1, 1999, through May 31, 

2007, occurred during the months of 

December to May in gear targeting 

monkfish or winter skate (Palka et al., 

2008). The data show an increasing rate 

of harbor porpoise bycatch in this area 

between 1999 and 2007, with rates in 

2007 (only January through May are 

included) being the highest. The overall 

average bycatch rate in this region 

during this time period was 0.089 

harbor porpoise takes/mtons landed. 

Bycatch rates were highest from 

February through May, and lowest in 

December. The bycatch rate in the area 

south of the Cape Cod South 

Management Area, which is not 

currently regulated under the HPTRP, 

was about 50 percent higher than the 

bycatch rate observed in the Cape Cod 

South Management Area itself, where 

pingers and closures are seasonally 

required (Palka et al., 2008). Most of the 

harbor porpoise bycatch occurred in the 

area south of the Cape Cod South 

Management Area (from the southern 

boundary of this management area at 

40°40′ N. lat. south to 40°00′ N. lat., and 

east to 70°00′ W. long.) in which pingers 

are not required. 

Of the 1,665 hauls observed in the 

Cape Cod South Management Area 


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during the period and season that 

pingers are required from January 1, 

1999, through May 31, 2007, 47 percent 

were deployed with 90 percent or more 

of the required number of pingers. Forty 

percent did not have any pingers, and 

the remaining 13 percent had fewer than 

90 percent of the required number of 

pingers (Palka et al., 2008). 

Review of Mid-Atlantic Harbor Porpoise 

Bycatch Information 

In the Waters off New Jersey 

Management Area, the majority of the 

observed takes from January 1, 1999, 

through May 31, 2007, occurred in the 

Hudson Canyon area in or near the 

existing Mudhole Management Area, 

and all occurred in monkfish large mesh 

gillnet gear from January through April 

(Palka et al., 2008). During this time, the 

bycatch rate was 0.233 harbor porpoise 

takes/mtons landed (Palka et al., 2008). 

A number of factors appeared to 

correlate well with increased bycatch 

rates. Net strings that were greater than 

4,000 ft (1,219 m) in total length 

entangled harbor porpoises three times 

more often than net strings that were 

less than 4,000 ft (1,219 m) in total 

length. All of the harbor porpoise takes 

occurred in nets with soak times that 

were greater than 48 hours, even though 

37 percent of the observed hauls and 19 

percent of the landings were from nets 

that had soaked for fewer than 48 hours. 

Nets hauled after more than one week 

had a bycatch rate five times higher than 

hauls of nets that soaked for one week 

(Palka et al., 2008). 

Exceeding the allowable net string 

length—3,900 ft (1,189 m) in the 

Mudhole Management Area and 4,800 ft 

(1,463 m) in the Waters off New Jersey 

Management Area—was the most 

common occurrence of non-compliance 

recorded from the Waters off New Jersey 

Management Area. This was determined 

by examining the gear characteristics of 

gillnets with observed harbor porpoise 

takes. Most of the observed hauls of 

large mesh nets were out of compliance 

with at least one of the gear restrictions 

of the HPTRP, and a majority of harbor 

porpoise takes occurred in gear that was 

out of compliance with the HPTRP 

(Palka et al., 2008). Observer effort for 

large mesh gillnet hauls in the Waters 

off New Jersey and Mudhole 

Management Areas was very low in 

some years (especially from 2000 

through 2003). However, it appears that 

compliance rates for the Waters off New 

Jersey Management Area show a pattern 

similar to that seen in New England. 

Compliance rates decreased rapidly 

after the first few years of the HPTRP 

implementation, and increased in 2007 

after HPTRP outreach occurred. 

In the Southern Mid-Atlantic Waters, 

the eight harbor porpoise incidental 

takes between January 1, 1999, and May 

31, 2007, occurred in February, March, 

or April, the period in which the HPTRP 

is in effect in these waters (Palka et al., 

2008). Half of the observed takes 

occurred in the shad fine mesh gillnet 

fishery (mesh size ≤5 inches [13 cm]), 

which has since been closed. The four 

other observed takes occurred in large 

mesh hauls targeting monkfish or 

striped bass and all four were out of 

compliance with the HPTRP. Only 21 

percent of all the large mesh hauls 

observed in this area were fishing in 

compliance with the current HPTRP 

regulations and no takes were observed 

in these hauls. Hauls that were out of 

compliance used twine sizes that were 

too small, did not use tie-downs, and/ 

or occurred during the February 15 

through March 15 large mesh closure 

period. No takes were observed in small 

mesh nets, although 35 percent of these 

nets were out of compliance, primarily 

with the HPTRP twine size requirement 

(Palka et al., 2008). 

HPTRT Recommendations 

During the December 2007 meeting, 

the HPTRT considered and discussed 

harbor porpoise bycatch and HPTRP 

compliance information, as well as 

other information contained within the 

meeting materials provided. NMFS 

provided the HPTRT with information 

about harbor porpoise takes in the Gulf 

of Maine, southern New England, and 

Mid-Atlantic areas. The bycatch 

information was based on observed 

harbor porpoise injuries and mortalities 

that occurred after the HPTRP was 

implemented (January 1, 1999, through 

May 31, 2007). Details on the locations 

and timing of observed takes were 

presented to assist HPTRT discussions. 

The follow-up January 2008 meeting 

(via teleconference) focused on those 

items that lacked consensus, required 

clarification, and would benefit from 

reconfirming the recommended 

approach. At both meetings, the HPTRT 

took a regional approach to discussing 

the information presented, and based 

their recommendations on the best 

available information that was 

presented. For certain topics, NMFS 

completed additional analyses after the 

meetings, if needed, and presented the 

information for consideration by the 

HPTRT. The HPTRT’s 

recommendations, summarized below, 

are described in more detail in the draft 

EA that accompanies this proposed rule. 

Recommendations for the Southern New 

England Region 

For the southern New England area, 

the HPTRT examined the harbor 

porpoise bycatch information; locations 

of observed takes occurred primarily 

within and south of the Cape Cod South 

Management Area, as well as to the east 

of Cape Cod, Massachusetts. The 

HPTRT recommended the creation of a 

new management area (termed the 

Southern New England Management 

Area, which is proposed as a new 

management area in this proposed rule), 

which is a large area located to the 

south and east of Cape Cod. The HPTRT 

recommended adding the area east of 

Cape Cod to this area to address harbor 

porpoise bycatch within the waters east 

of Cape Cod. The HPTRT discussed the 

possibility of creating a new 

management area solely for the waters 

east of Cape Cod. However, the bycatch 

analysis indicated that the harbor 

porpoise bycatch occurred during the 

same season as the bycatch occurring in 

the Cape Cod South Management Area 

and the area to its south. Therefore, the 

HPTRT recommended that the waters to 

the east of Cape Cod be incorporated 

into the Southern New England 

Management Area. In this area, the 

HPTRT recommended that pingers be 

required from December through May, 

which coincides with the seasonality of 

the Cape Cod South Management Area, 

and would be absorbed by this larger 

area. 

During the December 2007 meeting, 

the HPTRT discussed possible ways of 

reducing harbor porpoise takes that are 

occurring within existing HPTRP 

management areas. Rather than 

recommending an immediate closure of 

current HPTRP management areas due 

to poor pinger compliance in the past, 

the HPTRT recommended a 

management strategy that would 

establish ‘‘consequence’’ closure areas. 

Consequence closure areas are specified 

areas of high harbor porpoise bycatch 

that would become seasonally closed if 

the observed average bycatch rates over 

two consecutive management seasons 

indicate that harbor porpoise exceed a 

specified target bycatch rate. The 

HPTRT’s rationale for recommending 

consequence closure areas is to decrease 

harbor porpoise bycatch within HPTRP 

management areas by increasing 

compliance with the HPTRP through 

targeted outreach and education efforts. 

The consequence closure area concept 

was first recommended by the HPTRT 

for the region south of Cape Cod. Harbor 

porpoise takes in commercial gillnet 

gear have been observed seasonally 

within, as well as south of, the Cape 


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Cod South Management Area, and to the 

east of Cape Cod. The HPTRT 

recommended creating the Southern 

New England Management Area and 

requiring pingers there, but also needed 

to address consequences for noncompliance with the HPTRP pinger 

requirements. After some deliberation, 

the HPTRT recommended creating a 

consequence area that included the 

existing Cape Cod South Management 

Area as well as its expansion to the 

south (termed the Cape Cod South 

Expansion Consequence Closure Area, 

proposed management area in this 

proposed rule). This area is located 

entirely within the proposed Southern 

New England Management Area. 

The HPTRT discussed the conditions 

under which the Cape Cod South 

Expansion Consequence Closure Area 

would become closed. For the 

seasonality of the closure, the HPTRT 

recommended that, once triggered, the 

area would be closed from February 

through April, as these three months 

had the highest bycatch rates of the 

months between December and May. 

From January 1, 1999, through May 31, 

2007, the bycatch rate in the region 

south of Cape Cod in February was 

0.160 harbor porpoise takes/mtons, 

0.065 harbor porpoise takes/mtons in 

March, and 0.145 harbor porpoise takes/ 

mtons in April (Palka et al., 2008). The 

HPTRT also discussed the trigger 

mechanism by which the consequence 

area would close and recommended 

using the bycatch rate. Initially, a target 

bycatch rate of 0.03 harbor porpoise 

takes/mtons was agreed upon, which 

represents a bycatch rate with 90 

percent pinger compliance. After further 

analysis after the meeting, NMFS 

determined that the bycatch rate 

reflecting 90 percent compliance with 

the pinger requirements in place for the 

entire Southern New England 

Management Area would be 0.023 

harbor porpoise takes/mtons. 

During the January 2008 meeting, the 

HPTRT recommended a second 

consequence closure area east of Cape 

Cod, termed the Eastern Cape Cod 

Consequence Closure Area. Establishing 

a consequence closure area here would 

provide an incentive for gillnet 

fishermen fishing east of Cape Cod to 

comply with the new seasonal pinger 

requirements established for the 

Southern New England Management 

Area, as the observed annual bycatch 

rates would be calculated for the entire 

Southern New England Management 

Area. The target bycatch rate and 

closure time period, if triggered, for the 

Eastern Cape Cod Consequence Closure 

Area would be the same as the Cape Cod 

South Expansion Closure Area. 

Therefore, if the target bycatch rate of 

0.023 harbor porpoise takes/mtons for 

the Southern New England Management 

Area is exceeded after two consecutive 

management seasons (December through 

May), both the Cape Cod South 

Expansion Consequence Closure Area 

and the Eastern Cape Cod Consequence 

Closure Area would be closed to gillnet 

fishing each year from February through 

April. 

HPTRT Recommendations for the Gulf 

of Maine Region 

For the Gulf of Maine region, the 

HPTRT provided NMFS with a suite of 

consensus recommendations for 

reducing harbor porpoise bycatch and 

increasing compliance with the HPTRP 

in this region. These recommendations 

included: (1) Closing the currently 

unregulated Stellwagen Bank 

Management Area during February and 

require pingers in December and 

January; (2) expanding the pinger 

requirements in the Massachusetts Bay 

Management Area to include the month 

of November; (3) expanding the 

northeastern boundary of the Southern 

New England Management Area on the 

east side of Cape Cod and implementing 

targeted closures if allowable bycatch 

rates are exceeded; (4) codifying the 

Multispecies FMP year-round Western 

Gulf of Maine Closure Area under the 

HPTRP; (5) eliminating the Offshore 

Management Area; and (6) expanding 

efforts by states and others to foster and 

certify fishermen in the use of pingers 

as a method of reducing harbor porpoise 

bycatch. 

During the December 2007 meeting, 

the HPTRT discussed non-compliance 

within existing HPTRP management 

areas in the Gulf of Maine, but did not 

discuss a consequence closure area 

strategy in this region, although 

implementing an immediate closure in 

the Mid-Coast Management Area was 

discussed. In the Gulf of Maine region, 

observed takes of harbor porpoises 

between January 1, 1999 and May 31, 

2007, in the Mid-Coast Management 

Area (0.052 harbor porpoise takes/ 

mtons), indicate a high bycatch rate and 

poor compliance with the seasonal 

pinger requirements (September 15 

through May 31), particularly during the 

fall months and in the western half of 

the area (Palka et al., 2008). 

Additionally, harbor porpoise takes in 

gillnet gear have been observed 

seasonally in the northern portion of the 

Massachusetts Bay Management Area 

and throughout the proposed 

Stellwagen Bank Management Area. 

Prior to the January 2008 HPTRT 

meeting, the states of Maine, New 

Hampshire, and Massachusetts 

submitted a proposal to NMFS for 

review by the HPTRT for a suggested 

suite of conservation measures for the 

Gulf of Maine. The proposal included 

the use of a consequence closure area 

similar to the strategy employed for the 

Southern New England Management 

Area. The proposed area encompasses 

the entire Stellwagen Bank Management 

Area and portions of the Mid-Coast 

(west of 70°15′ W. long.) and 

Massachusetts Bay (north of 42°15′ N. 

lat.) Management Areas. This area, 

called the Coastal Gulf of Maine 

Consequence Closure Area, is bounded 

on the west by the coastlines of Maine, 

New Hampshire, and Massachusetts, on 

the south by 42°15′ N. lat., and on the 

east by 70°15′ W. long. If triggered, the 

timing of the consequence closure area 

was suggested as October and November 

annually, as these two months have a 

high bycatch rate in the Mid-Coast 

Management Area (0.066 and 0.121 

harbor porpoise takes/mtons, 

respectively) (Palka et al., 2008). The 

proposal was discussed during the 

January 2008 meeting and supported by 

the HPTRT and was recommended to 

NMFS. 

The HPTRT recommended that the 

target bycatch rate for the Gulf of Maine 

region would be distinct from the 

bycatch rate that applies to the Southern 

New England Management Area to 

ensure that the bycatch rate applied is 

consistent with the broad area’s past 

HPTRP compliance. It was not possible 

to calculate the target bycatch rate for 

the three Gulf of Maine management 

areas prior to the January 2008 meeting, 

and as such a target bycatch rate was not 

determined at that time. Following the 

meeting, NMFS calculated the target 

bycatch rate from observed compliant 

hauls, averaging the rates for the three 

management areas, and calculated an 

average rate of 0.031 harbor porpoise 

takes/mtons. Following the January 

2008 meeting, those HPTRT members 

that responded to follow-up materials 

sent by NMFS recommended the use of 

this rate. 

HPTRT Recommendations for the MidAtlantic Region 

For the Mid-Atlantic region, HPTRT 

discussions during the December 2007 

meeting centered on the high number of 

harbor porpoise takes occurring within 

the Waters off New Jersey Management 

Area. Many options were discussed for 

addressing the increased harbor 

porpoise bycatch within this area, 

including expanding or shifting the 

existing Mudhole Management Area to 

encompass the locations of observed 

harbor porpoise takes. As a result of the 

meeting, the HPTRT recommended 


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creating a new management area with 

an annual closure period for large and 

small mesh gillnet gear from February 1 

through March 15. 

Additionally, the HPTRT 

recommended a change to the gear 

modification requirements such that the 

tie-down spacing for large mesh gillnet 

gear would be increased from the 

current 15 ft (4.6 m) to no more than 24 

ft (7.3 m) apart along the floatline. This 

change would not affect the profile of 

gillnets in the water column and thus 

not increase harbor porpoise bycatch. 

The HPTRT also recommended a 

number of non-regulatory measures, 

mostly related to compliance 

monitoring and education/outreach 

efforts, which is discussed in further 

detail later in the preamble. 

Other HPTRT Consensus 

Recommendations 

In addition to the discussions 

focusing on potential new conservation 

measures for New England and MidAtlantic gillnet fisheries, the HPTRT 

also emphasized the necessity of a 

scientific research provision within the 

HPTRP. At the December 2007 meeting, 

NMFS provided a description of a 

suggested scientific research component 

that could be added to the HPTRP that 

would allow research within the HPTRP 

management areas provided researchers 

obtain a scientific research permit. The 

HPTRT recommended including this 

provision in the HPTRP. Additionally, 

NMFS provided a description of 

technical corrections, clarifications, and 

other modifications to the HPTRT at its 

December 2007 meeting. By consensus, 

the HPTRT recommended the adoption 

of these corrections, clarifications, and 

other modifications with little 

discussion. 

Preferred Alternative for Modifications 

to the HPTRP 

As a result of HPTRT discussions and 

recommendations provided to NMFS 

after the two HPTRT meetings 

(December 2007 and January 2008), 

NMFS developed and analyzed five 

alternatives in the draft EA, including a 

‘‘No Action’’ or status quo alternative, to 

modify the HPTRP. 

All five of the alternatives are 

described and analyzed in the draft EA 

prepared to accompany this proposed 

rule (NMFS, 2009). The array of 

alternatives developed for the draft EA 

include many of the concepts and 

strategies discussed by the HPTRT. Out 

of the five alternatives considered, 

NMFS has identified one Preferred 

Alternative (Alternative 4, the proposed 

action) for amending the HPTRP. 

Although one alternative has been 

identified as the preferred, NMFS is 

seeking comments on all of the 

alternatives. NMFS proposes to 

implement the preferred alternative. 

The Preferred Alternative described in 

this proposed rule is intended to 

address the bycatch of the GOM/BOF 

stock of harbor porpoises that is 

currently above the PBR level in New 

England and Mid-Atlantic waters. The 

Preferred Alternative further pursues 

the conservation goals established by 

the MMPA to reduce harbor porpoise 

bycatch to below the PBR, approaching 

insignificant levels. 

The Preferred Alternative includes a 

suite of measures for both New England 

and the Mid-Atlantic. Many of the 

proposed modifications described in 

this rule are a result of consensus 

recommendations made by the HPTRT 

during their two recent meetings. For 

New England, NMFS proposes 

expanding seasonal and temporal 

requirements in current HPTRP 

management areas, incorporating 

additional management areas, and 

establishing ‘‘consequence’’ closure 

areas should a specified target bycatch 

rate be exceeded by the observed 

average bycatch rate in certain 

management areas over the course of 

two consecutive management seasons. 

In the Mid-Atlantic, NMFS proposes 

establishing an additional management 

area and modifying the current tie-down 

requirement for large mesh gillnet gear. 

Additionally, NMFS is including 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. Also, since 

finalizing the HPTRP in December 1998 

(63 FR 66464, December 2, 1998), NMFS 

has identified a number of necessary 

technical corrections to the regulations. 

Finally, in some sections of the current 

HPTRP regulatory text there are 

ambiguities that need clarification. As 

such, this proposed rule addresses these 

corrections, clarifications, and other 

necessary modifications. 

New England Component 

In the New England component of the 

HPTRP, NMFS proposes to include a 

suite of conservation measures to 

augment the existing HPTRP to reduce 

the serious injury and mortality of 

harbor porpoises to levels below PBR 

(Figure 1). In three existing HPTRP 

management areas, modifications are 

not warranted because the most recent 

harbor porpoise bycatch data indicate 

that existing measures are sufficient. 

Management areas for which 

modifications are not proposed include 

the Northeast Closure, Cashes Ledge 

Closure, and Offshore Management 

Areas. 

Some occurrences of increased harbor 

porpoise bycatch are associated with 

areas that are not currently regulated 

under the HPTRP. However, bycatch is 

also documented within existing HPTRP 

management areas. In select HPTRP 

management areas, the proposed action 

expands the areas and seasons during 

which pingers are required. These areas 

and seasons correspond to the locations 

and times of recently observed harbor 

porpoise serious injuries and mortalities 

from interactions with commercial 

gillnet gear. This proposed action would 

also incorporate the concept of 

‘‘consequence’’ closure areas. 

In southern New England, observed 

interactions between harbor porpoises 

and gillnet gear have been occurring in 

a currently unregulated area south of the 

existing Cape Cod South Management 

Area, as well as within this management 

area. To address this, the proposed 

action would establish the Southern 

New England Management Area, in 

which pingers would be required 

seasonally in a large area to the south 

and east of Cape Cod, Massachusetts 

from December through May (Figure 1). 

This area would include all waters in 

which harbor porpoise bycatch was 

observed (generally from the Cape Cod 

South Management Area south to 40° 

00′ N. lat.), as well as sufficient 

surrounding waters to prevent potential 

future shifts in fishing effort to nearby 

areas where takes would likely occur. 

In the Gulf of Maine, harbor porpoise 

takes have been observed in the 

unregulated area between the HPTRP 

Massachusetts Bay Management Area 

and the Northeast Multispecies FMP 

Western Gulf of Maine Closure Area 

(year-round closure) between December 

and May. As such, this area, termed the 

Stellwagen Bank Management Area, 

would be created under the HPTRP as 

a pinger management area from 

November through May (Figure 1). The 

HPTRT’s recommendation on the 

management strategy for this area differs 

from the proposed conservation 

measures for this area in this proposed 

rule. The proposal drafted by the states 

of Maine, New Hampshire, and 

Massachusetts suggested requiring 

pingers from December through May in 

this area, similar to the Massachusetts 

Bay Management Area, without 

including the March gillnet closure. The 

states believed that new pinger 

requirements in a currently unregulated 

area should sufficiently reduce harbor 

porpoise takes, and that an immediate 

gillnet closure was not warranted at this 

time. Although the proposal received 


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strong support from the HPTRT, NMFS 

is proposing in this action a the seasonal 

period for pinger requirements in the 

Stellwagen Bank Management Area that 

includes November for consistency with 

the proposed addition of November to 

the pinger requirements in the 

Massachusetts Bay Management Area. 

NMFS proposes to amend the 

seasonal requirements in the 

Massachusetts Bay Management Area to 

include the month of November. 

Currently, pingers are required in the 

Massachusetts Bay Management Area 

from December through May, with the 

exception of March, during which time 

gillnet fishing is prohibited. The March 

closure is in place due to the high 

abundance of harbor porpoises in the 

area during this time. Pingers are 

required during the months before and 

after the closure to further reduce harbor 

porpoise bycatch and to reduce the 

likelihood of harbor porpoises 

habituating to the sound of pingers. 

One of the Massachusetts Bay 

Management Area’s latitudinal 

boundaries, located at 42°12′ N. lat., 

leaves a small gap of unregulated waters 

between it and the southern boundary of 

the Northeast Multispecies FMP 

Western Gulf of Maine Closure Area, 

which is bounded on the south by 

42°15′ N. lat. This proposed rule would 

modify the Massachusetts Bay 

Management Area to move this 

boundary north to 42°15′ N. lat. to 

eliminate the small gap of unregulated 

waters (Figure 1). 

In addition to focusing on harbor 

porpoise bycatch located in unregulated 

waters, this proposed rule would 

address harbor porpoise takes that are 

occurring within existing HPTRP 

management areas through the HPTRTrecommended consequence closure area 

concept. Although pinger compliance 

was high after implementation of the 

HPTRP in 1998 (63 FR 66464, December 

2, 1998), since that time compliance 

with pinger requirements in New 

England has declined. With increased 

outreach and enforcement efforts 

beginning in the fall of 2006, observer 

information indicated that compliance 

began to rise again, as evidenced 

through a calculation of the percentage 

of observed gillnet hauls that used the 

correct number of pingers per gillnet 

string in management areas when 

pingers were required. 

In New England, NMFS is proposing 

three consequence areas that are based 

on the recommendations provided by 

the HPTRT: Two in southern New 

England and one in the Gulf of Maine 

(Figure 2). The Cape Cod South 

Expansion and East of Cape Cod 

Consequence Closure Areas would be 

triggered if the observed average bycatch 

rate in the Southern New England 

Management Area exceeded the target 

bycatch rate of 0.023 harbor porpoise 

takes/mtons after two consecutive 

management seasons (December through 

May), and would 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 would 

remain in effect. The Coastal Gulf of 

Maine Consequence Closure Area would 

be triggered if the observed average 

bycatch rates in the Mid-Coast, 

Stellwagen Bank, and Massachusetts 

Bay Management Areas (combined) 

exceeded 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), and would be 

closed annually to gillnet fishing in 

October and November. When this area 

is not closed, the seasonal requirements 

of the three management areas would 

remain in effect, including the March 

gillnet closure in the Massachusetts Bay 

Management Area. 

If any of the consequence closure 

areas are triggered, they would remain 

in effect until bycatch levels approach a 

zero mortality and serious injury rate 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 two 

years of bycatch information would 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 

draft EA. If it is necessary to establish 

the consequence closure areas in the 

future based on the most recent two 

years of observed harbor porpoise 

bycatch data, NMFS would establish the 

appropriate consequence closure areas 

via appropriate rulemaking in the 

Federal Register. 

Mid-Atlantic Component 

To address the high harbor porpoise 

bycatch in the Mid-Atlantic region, this 

proposed rule would create an 

additional management area within the 

Waters off New Jersey Management 

Area, which would include more 

stringent gear restrictions and a closure 

period (Figure 3). This additional 

management area is located to the south 

and east of the current Mudhole 

Management Area and would 

encompass many of the recently 

observed harbor porpoise takes 

occurring in that region. The proposed 

management area would be named the 

Mudhole South Management Area, and 

the current Mudhole Management Area 

would be renamed the Mudhole North 

Management Area. The more stringent 

gear modification requirements already 

in effect in the Mudhole North 

Management Area would also be in 

effect in the Mudhole South 

Management Area from January 1 

through January 30 and from March 16 

through March 31. Also, the large mesh 

gillnet closure from April 1 through 20 

would still apply. 

Additionally, this proposed rule 

would increase the current tie-down 

spacing for large mesh gillnet gear from 

the required 15 ft (4.6 m) to no more 

than 24 ft (7.3 m) apart along the 

floatline. This change would not affect 

the profile of gillnets in the water 

column and thus not increase harbor 

porpoise bycatch. 

Scientific Research 

Currently, the HPTRP regulations 

make no exemption for scientific 

research on methods for reducing harbor 

porpoise bycatch in the HPTRP 

management areas when the seasonal 

area requirements are in effect. Since 

the publication of the HPTRP in 1998 

(63 FR 66464, December 2, 1998), 

subsequent HPTRT meeting 

recommendations have urged NMFS to 

promote the advancement of harbor 

porpoise bycatch reduction research in 

New England and Mid-Atlantic areas. 

To better facilitate scientific research on 

harbor porpoise bycatch reduction, this 

proposed rule includes a scientific 

research component to the HPTRP 

regulations. The proposed modification 

includes a provision 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. The 

scientific research permit application 

would be managed by NMFS in the 

same manner that it currently handles 

permit applications, which includes a 

regional review and public comment 


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period after publication of an 

announcement in the Federal Register. 

Technical Corrections and 

Clarifications 

Since finalizing the HPTRP in 

December 1998 (63 FR 66464, December 

2, 1998), a number of technical errors in 

the HPTRP regulations have been 

identified. Furthermore, in some 

sections of the regulations there are 

ambiguities that need clarification. This 

proposed rule addresses these necessary 

corrections, clarifications, and other 

modifications, which would also ensure 

consistent and correct terminology for 

both the New England and Mid-Atlantic 

regulations. 

In New England, HPTRP management 

areas are termed ‘‘closure areas’’ though 

some areas are not completely closed to 

gillnet fishing at any point during the 

year. This proposed rule would rename 

the HPTRP closure areas in both New 

England and the Mid-Atlantic 

‘‘management areas,’’ except for areas 

that exist only as a complete closure 

(e.g., the Cashes Ledge Closure Area). 

Currently, the regulatory text for the 

Mid-Coast Management Area 

requirements does not include an 

exemption for gillnets equipped with 

pingers as described in each of the other 

areas requiring pingers. This proposed 

rule would add text to clarify that 

gillnet fishing is allowed within this 

management area as long as pingers are 

used. Furthermore, this proposed rule 

would clarify the requirements for 

‘‘pinger attachment’’ by 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. Currently the pinger placement 

requirement only specifies that pingers 

must be placed at each end of the net 

string and at the bridle of each net. 

The current eastern boundary of the 

Offshore Management Area crosses the 

boundary of the U.S. Exclusive 

Economic Zone (EEZ). This proposed 

rule would create three additional 

coordinates for the eastern edge of the 

Offshore Management Area so the 

boundary line follows along the 

boundary of the EEZ but does not cross 

it. 

For the HPTRP regulations in the 

Mid-Atlantic, this proposed rule would 

clarify the number of nets per string 

allowed within the management areas 

for both large and small mesh gillnet 

gear. Currently, only the allowable net 

length (300 ft or 91.4 m) and floatline 

lengths are specified. The number of 

nets per string is implied by dividing 

the floatline length by the allowable net 

length, but is not clearly defined in the 

regulations. For example, the proposed 

modifications to the Mid-Atlantic 

regulations would clearly specify the 

net limit of 13 large mesh nets when 

fishing in the Waters off New Jersey 

Management Area. Also, in the final 

rule implementing the HPTRP (63 FR 

66464, December 2, 1998), the definition 

for the Waters off New Jersey 

Management Area is inconsistent with 

the graphic depiction of the area, and is 

inconsistent with the ‘‘regulated waters’’ 

text. This proposed rule would remove 

the current northern boundary of the 

Waters off New Jersey Management 

Area, located at 40°40′ N. lat. and would 

extend the northern boundary to the 

southern shoreline of Long Island, NY at 

40°50.1′ N. lat. and 72°30′ W. long. 

For all HPTRP management areas 

with coordinates that intersect the 

shoreline, this proposed rule includes 

shoreline latitude/longitude coordinates 

to more clearly specify the boundaries 

of HPTRP management areas. 

Additionally, this proposed rule would 

clarify the geographical enclosure of the 

Offshore and Cashes Ledge Management 

Areas by repeating the first area 

coordinate as the last coordinate. In the 

Mudhole North Management Area, the 

current northwestern boundary does not 

intersect with the shoreline of New 

Jersey as stated in the current 

management area description. This 

proposed rule would correct 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. 

The current southern boundary of the 

Southern Mid-Atlantic Management 

Area is the North Carolina/South 

Carolina border. It is currently defined 

as 33°51′ N. lat., but it does not 

accurately reflect the actual border. This 

proposed rule would modify the 

coordinate to ensure a more accurate 

reflection of the North Carolina/South 

Carolina border based on 50 CFR 622.2 

(Fisheries of the Caribbean, Gulf, and 

South Atlantic—Definitions and 

Acronyms). The new border would be 

defined as the latitude line 

corresponding with 33°51.1′ N. lat. 

This proposed rule would amend the 

HPTRP exempted waters in Virginia 

from Chincoteague to Ship Shoal Inlet 

to be consistent with the exempted 

waters for this area in the Atlantic Large 

Whale and the Bottlenose Dolphin Take 

Reduction Plans. Currently, the 

exempted area is landward of a line 

extending south from Chincoteague to 

Ship Shoal Inlet, and this line crosses 

the three nautical mile state waters line. 

The exempted waters in Virginia from 

Chincoteague to Ship Shoal Inlet would 

become the waters landward of the 72 

COLREGS demarcation lines between 

these two inlets. 

Finally, NMFS proposes to remove 

the net tagging requirement for large and 

small mesh gillnet gear in the MidAtlantic. A net tagging program was not 

implemented after the final HPTRP was 

published in late 1998 (63 FR 66464, 

December 2, 1998). 

Monitoring HPTRP Effectiveness 

NMFS identified a number of issues 

contributing to the observed increase in 

harbor porpoise takes, primarily poor 

compliance with existing measures and 

increased bycatch outside of existing 

management areas. To address these 

issues, NMFS has based this proposed 

action on recommendations provided by 

the HPTRT. To support the 

implementation of this action, NMFS 

will continue to work with various 

partners (e.g., USCG, NOAA Office of 

Law Enforcement, states, NMFS 

Northeast Fisheries Observer Program) 

to monitor compliance and to enforce 

the regulatory components of the 

HPTRP. NMFS recognizes that 

compliance with HPTRP requirements 

is critical to maximizing the 

effectiveness of the HPTRP. With this 

considered, NMFS is planning to 

increase HPTRP monitoring to 

correspond with the expansion of pinger 

requirements in New England. The 

expansion of management areas with 

pinger requirements will require some 

fishing vessels that have not been 

subject to the HPTRP pinger 

requirements to purchase pingers in 

order to continue fishing during times 

and in areas where pingers are required. 

The total pinger cost for materials and 

labor for vessels fishing in New England 

can range from $5,953 to $13,969 

depending on the number of nets being 

fished. More discussion on the impacts 

of the proposed action can be found in 

the Classification section. 

NMFS has the resources necessary to 

monitor and ensure compliance with 

the HPTRP. These resources include: 

observer information for calculating 

bycatch rates, continued enforcement 

efforts, and education/outreach. To 

assist in achieving this goal, NMFS has 

purchased pinger detector devices to 

monitor the presence of pingers on set 

gillnet gear during the times when 

pingers are required under the HPTRP. 

NMFS has coordinated with the states of 

Maine, Massachusetts, and Rhode Island 

by distributing pinger detectors to state 

enforcement personnel, providing them 

with the ability to monitor pinger 

compliance under the HPTRP. NMFS 

will continue to use this technology in 

conjunction with observer information 


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to continually monitor the level of 

pinger compliance in New England. 

In addition, during their recent 

meetings, the HPTRT reached consensus 

on a number of non-regulatory 

components that NMFS will pursue 

outside of the rulemaking process. After 

a final rule has been published, NMFS 

will collaborate with the New England 

states of Maine, New Hampshire, 

Massachusetts, and Rhode Island to 

conduct annual workshops with gillnet 

fishermen to further compliance with 

the HPTRP regulations and to provide 

information on recent compliance and 

harbor porpoise bycatch data. The 

HPTRT state representatives also agreed 

to work within their state regulations to 

codify the HPTRP gear requirements in 

their individual state laws. This could 

potentially provide a mechanism for 

future increased joint enforcement 

efforts between the states and NMFS, 

and will provide an effective means for 

increasing compliance. 

Additionally, NMFS supports the 

states’ efforts to develop and implement 

an education and enforcement effort to 

increase HPTRP compliance. The 

HPTRT and NMFS agreed that it is 

critical to the success of these proposed 

conservation measures for members of 

the commercial gillnet fishing industry 

to thoroughly comprehend the 

mechanisms of the consequence closure 

areas should compliance continue to 

remain low in the Gulf of Maine and 

southern New England. The states may 

also explore the possibility of certifying 

commercial gillnet fishermen and their 

gear to further increase compliance, 

although the details of this were not 

considered during the HPTRT meetings. 

Finally, in an effort to monitor the 

HPTRP to determine if consequence 

closure area implementation is 

warranted, NMFS will provide the 

HPTRT members with annual 

compliance and bycatch information in 

New England based on observed harbor 

porpoise serious injuries and 

mortalities. 

The HPTRT also reached consensus 

on a number of non-regulatory 

components targeting the Mid-Atlantic, 

which include collaborating with MidAtlantic states to conduct annual 

workshops with gillnet fishermen to 

attempt to increase compliance with the 

HPTRP regulations and to provide 

information on recent compliance and 

harbor porpoise bycatch data. 

Additionally, an analysis of observed 

harbor porpoise interactions with gillnet 

gear in the Mid-Atlantic indicated that 

increased soak times may lead to an 

increase in harbor porpoise bycatch 

(Palka et al., 2008). NMFS supports 

Mid-Atlantic States’ efforts to develop 

and implement an education and 

enforcement effort to increase 

compliance and to stress the need to 

reduce the soak times of gillnets, 

although this is not a required measure. 

The Mid-Atlantic States may also 

explore the possibility of certifying 

commercial gillnet fishermen and their 

gear to further increase compliance, 

although the details of this were not 

considered during the HPTRT meetings. 

Finally, in an effort to monitor the 

HPTRP, NMFS will keep the HPTRT 

members informed of annual 

compliance information in the MidAtlantic based on observed harbor 

porpoise serious injuries and 

mortalities. 

Classification 

The Office of Management and Budget 

(OMB) has determined that this action 

is significant for the purposes of 

Executive Order 12866. 

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 hours per 

response, including the time for 

reviewing instructions, searching 

existing data sources, gathering and 

maintaining the data needed, and 

completing and reviewing the collection 

of information. Send comments 

regarding this burden estimate, or any 

other aspect of this data collection, 

including suggestions for reducing the 

burden, to NMFS (see ADDRESSES) and 

by e-mail to 

David_Rostker@omb.eop.gov, or fax to 

(202) 395–7285. 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 PRA, unless that collection of 

information displays a currently valid 

OMB Control Number. 

NMFS has prepared an initial 

regulatory flexibility analysis (IRFA) 

that describes the economic impact this 

proposed rule, if adopted, would have 

on small entities. A description of the 

action, why it is being considered, and 

its legal basis are contained in the 

preamble of this proposed rule. This 

proposed rule does not include any 

reporting or recordkeeping 

requirements, or compliance 

requirements other than those described 

in the preamble. No duplicative, 

overlapping, or conflicting Federal rules 

have been identified. A summary of the 

analysis follows. 

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 

proposed 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, and the proposed 

action implements additional 

restrictions. The population of vessels 

affected by this proposed 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. 

The proposed action 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 incur additional costs to 

gillnet fishermen). 

Other regulatory components, 

discussed above, are included within 

the new measures, such as the addition 

of a provision that would allow research 

within HPTRP management areas and 

incorporate technical clarifications and 

corrections where needed. None of these 

provisions contribute any additional 

costs to gillnet vessels regulated by the 

HPTRP and thus are not included in the 

analysis. 

For the analysis of impacts, the data 

used are from calendar year 2006 to 

correspond to the last full year of data 

used in the harbor porpoise bycatch 

analysis described previously in the 

preamble. In 2006 and under the current 

HPTRP, there were 975 gillnet vessels 

that landed an estimated 23,276 metric 

tons, generating approximately 

$40,643,000 in revenue. NMFS uses a 

Closed Area Model to distribute an 

individual vessel’s fishing effort over 

time and space, optimizing its 

distribution to maximize individual 


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profits. The model is able to account for 

possible changes in fishing effort based 

on regulation changes while predicting 

behavior that would maximize profits. 

These possible changes in effort are 

determined by a vessel’s fishing history 

as well as the history of similar vessels 

that land in the same port. The model 

predicts the most profitable fishing 

choice based on the measures of the 

proposed actions outlined in this 

proposed rule. 

In the event of an area closure to 

gillnet fishing, a vessel could choose not 

to fish at all or could fish in another 

location. Similarly, where management 

areas that require pingers are 

established, vessels that had previously 

fished in that area could either choose 

to purchase pingers and continue 

fishing in that area, or to not purchase 

pingers and move their fishing activities 

to areas that do not require pingers. 

Note that for the purposes of this 

analysis, vessels that had previously 

fished in areas that require pingers 

under the current HPTRP are assumed 

to already possess pingers and thus 

would not incur additional costs due to 

expanded pinger requirements in any of 

the alternatives. 

Pinger costs are calculated as the cost 

per pinger unit, and include the cost of 

the pinger, batteries, and installation. 

The cost is based on the number of nets 

per vessel and therefore is calculated 

based on the maximum allowable 

number of nets. The total pinger cost for 

materials and labor for vessels fishing in 

New England or the Mid-Atlantic can 

range from $5,953 to $13,969. Naturally, 

vessels with fewer nets have lower 

pinger costs. 

The proposed action incorporates the 

potential for future closures. As such, 

the analysis examines four scenarios for 

the proposed action, 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 the trigger of any 

consequence closure area (Pre-closure). 

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 

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 proposed action. 

The model assumes that for Gulf of 

Maine 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 originate from 

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, percent change 

in landings vary between a one percent 

increase (East of Cape Cod) and a one 

percent reduction. Percent reductions in 

revenues for these port groups range 

from a one to three percent reduction, 

with the highest (three 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]), versus 

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

Revenues for small vessels would be 

reduced between one and six percent 

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

revenues for large vessels would be 

reduced between one and seven 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, which is 101 vessels. This equates 

to less than one percent reduction in 

landings and revenues. Less than a one 

percent (6 metric tons) decline in 

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 Gulf of Maine management areas. 

As such, this scenario would most 

heavily affect Gulf of Maine port groups, 

which include Maine to South of 

Boston. At the regional level, the impact 

on port group landings varies by port 

group. The New Hampshire port group, 

demonstrating a 14 percent reduction in 

landings, and North of Boston port 

group, with a six percent decrease, 

would feel most of the impacts. Slight 

landings reductions would be apparent 

from South of Cape Cod through New 

Jersey due to the creation of the 

Southern New England and Mudhole 

South Management Areas. Percent 

reductions in revenues for these port 

groups would vary similarly to the 

percent reductions seen in landings, 

with the highest being an 11 percent 

reduction for the New Hampshire port 

group, a five percent reduction for the 

North of Boston port group, and a one 

percent reduction in 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 by less than one percent to 

28 percent (approximately $160 to 

$26,400) and by less than one percent to 

four percent (approximately $160 to 

$7,800) for large vessels. At the industry 

level, approximately 17.5 percent of the 

gillnet fleet could be affected by the 

GOM-closure scenario, which equates to 

171 vessels, most being from Gulf of 

Maine port groups. Under this scenario, 

a decrease of approximately two percent 

(466 metric tons) would be expected, 

amounting to a decline of approximately 

$815,000 in revenues. 

(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. As such, the South of 

Cape Cod port group would be most 

heavily affected, as 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 six 

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 two percent 

reduction in landings. Other affected 

port groups from New Hampshire 

through New Jersey could expect up to 

an approximately three percent 

reduction in landings. Percent 

reductions in revenues for these port 

groups vary similarly to the percent 

reductions seen in landings, with the 

highest reduction of ten percent in the 

South of Cape Cod port group. 

The range of revenue reductions for 

affected vessels varies for small versus 

large vessels, with expected reductions 

of one to ten percent (approximately 

$1,300 to $8,100) for small vessels and 

reductions of one to 25 percent 

(approximately $1,500 to $15,300) for 

large vessels. At the industry level, 

approximately 21.1 percent of gillnet 

vessels could be affected, which equates 

to 206 vessels, with the largest group 


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36068 Federal Register / Vol. 74, No. 138 / Tuesday, July 21, 2009 / Proposed Rules 

being from the South of Cape Cod port 

group. Under this scenario, a decrease 

in landings of two percent (378 metric 

tons) could be expected, totaling 

approximately $1.2 million decline in 

revenues. 

(4) The GOM/SNE-closure scenario 

would result from non-compliance in 

both the Gulf of Maine and Southern 

New England areas, and would trigger 

the closure of all three consequence 

closure areas. Port groups most heavily 

affected by this scenario include Gulf of 

Maine 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 percent 

losses in landings for these port groups 

would also be expected. 

As with the scenarios described 

previously, the range of revenue 

reductions for affected vessels varies for 

small versus large vessels, with 

expected reductions of two to 28 

percent (approximately $2,600 to 

$26,400) for small vessels and 

reductions of one to 25 percent 

(approximately $1,500 to $15,300) for 

large vessels. At the industry level, 

approximately 29.7 percent of gillnet 

vessels could be affected, which equates 

to 290 vessels. Under this scenario, a 

decrease in landings of four percent 

(838 metric tons) can be expected. An 

approximately $2 million decrease in 

revenues per year could also be 

expected. 

Clearly, 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 triggered. A costeffectiveness analysis using a ten-year 

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 

three percent because the future dollar 

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 

ten-year time period. The total PVC does 

not change over the ten-year 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 ten-year 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 ten-year 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, the Pre-closure scenario had 

the lowest PVC across the ten-year time 

period: $1,457,000 for each year, which 

means that no consequence closure 

areas are triggered during that time 

period. For the GOM-closure scenario, if 

the Coastal Gulf of Maine Consequence 

Closure Area were triggered in year 

three, the PVC would be $5,810,000. 

However, if it were triggered in year ten, 

the PVC would be $1,337,000. Similarly, 

for the SNE-closure scenario, a 

consequence closure area implemented 

in year three would cost $8,558,000, 

whereas it would cost $1,646,000 if 

implemented in year ten. Finally, for the 

GOM/SNE-closure scenario, a 

consequence area implemented in year 

three would have a PVC value of 

$13,585,000, whereas the PVC would be 

$2,211,000 if implemented in year ten. 

Therefore, of the four scenarios 

presented, the Pre-closure scenario is 

the most cost-effective overall. This 

demonstrates the necessity for 

immediate industry compliance with 

the HPTRP requirements in order to 

avoid the trigger of 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 ten-year time 

period rather than sooner. 

Besides the proposed action, NMFS 

examines four additional alternatives in 

the draft EA. All alternatives, which 

have related components, are analyzed 

and compared to Alternative 1 (No 

Action). They are compared here for 

their ability to reduce impacts on small 

entities, which is related to their costeffectiveness, as well as their ability to 

reduce harbor porpoise bycatch. 

Alternative 1, no action, maintains the 

status quo requirements under the 

HPTRP. As such, no additional costs are 

incurred by the gillnet fleet, as vessels 

that had previously fished in pinger 

management areas are assumed to 

already own pingers. Therefore, this 

alternative is the least costly of the five. 

While this alternative would result in 

the least impacts on small entities, for 

the reasons identified in the preamble, 

this alternative was rejected because the 

status quo HPTRP is no longer achieving 

the goals of the MMPA. As such, NMFS 

is required to take additional action to 

achieve its mandates under the MMPA. 

Alternative 2, immediate closures, 

would immediately implement the 

Coastal Gulf of Maine, Cape Cod South 

Expansion, and Eastern Cape Cod 

Closure Areas (which are the same areas 

as the consequence closure areas 

described for the proposed action), in 

addition to the Mudhole South 

Management Area closure. Alternative 

3, broad-scale seasonal pinger 

requirements, would immediately 

implement pinger requirements in New 

England and the Mid-Atlantic 

throughout much of the range of harbor 

porpoises. Alternative 4 (Preferred) is 

the proposed action described in this 

proposed rule. Alternative 5 would 

implement the components of 

Alternative 4 (Preferred) with additional 

modifications, including removal of the 

Offshore Management Area, 

incorporation of the Multispecies FMP 

Western Gulf of Maine Closure Area 

(year-round) under the HPTRP, and 

elimination of the February 15 to March 

15 large mesh gillnet closure in the 

Southern Mid-Atlantic Management 

Area. Similar to Alternative 4, two 

scenarios were examined for Alternative 

5: the first being prior to the trigger of 

any consequence closure areas 

(Alternative 5 Pre-closure scenario) and 

the second being after the trigger of all 

three consequence closure areas 

(Alternative 5 GOM/SNE closure 

scenario). 

To estimate the cost-effectiveness of 

each alternative, the model requires an 

estimate of the reduction in harbor 

porpoise bycatch. To examine the 

biological effects of each of the five 

alternatives on harbor porpoises, the 

bycatch analyses discussed in the draft 

EA provide a minimum and maximum 

range of outcomes based on fishing 

effort and predicted bycatch rates. For 

the economic analyses, a harbor 

porpoise bycatch estimate is calculated 

for each alternative by applying the 

landings from the Closed Area Model to 

the time-area specific bycatch rate used 

to predict the maximum harbor porpoise 

bycatch. An ‘‘economic bycatch’’ 

estimate is determined by calculating 

the percent reduction in bycatch by 

region and season between Alternative 1 

and each of the four scenarios of the 

proposed action and applying the 

percent reduction to the bycatch 

estimates (discussed in the draft EA). 

The economic bycatch estimates are 

sensitive to the assumptions used in the 

Closed Area Model as well as the model 

used to estimate bycatch rates. To 

summarize, the economic bycatch is 

another method of calculating a 

predicted harbor porpoise bycatch 


hsrobinson on PROD1PC76 with PROPOSALS3
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estimate. In 2006, NMFS estimates that 

1,063 harbor porpoises were 

incidentally taken in gillnet gear. 

When calculating the economic 

bycatch, the alternatives would achieve 

a harbor porpoise bycatch reduction 

ranging from 54 to 64 percent, or a 

reduction of 573 to 673 animals (i.e., 

reducing bycatch from 1,063 animals 

taken in 2006, to a range of between 390 

and 490 animals per year), which 

achieves an estimate that is below the 

current PBR of 610 animals. Besides 

Alternative 1, the ‘‘no action’’ 

alternative, which would not result in a 

reduction in harbor porpoise bycatch, 

Alternative 2 has the smallest reduction 

in harbor porpoise bycatch, at 54 

percent or 573 fewer animals from the 

status quo 2006 estimate of 1,063 

animals. A reduction of 573 animals 

would bring the total bycatch to 490 

animals after implementation of this 

alternative. Under Alternative 4 

(proposed action), the GOM-closure 

scenario and the GOM/SNE-closure 

scenario demonstrate similar reductions 

of 63 percent, with the GOM/SNEclosure scenario showing a slightly 

higher decline in the number of animals 

taken at 671, bringing the total bycatch 

for this alternative scenario to 392 

animals. 

If the five alternatives were ranked 

from smallest percent decline in bycatch 

(least favorable for harbor porpoises) to 

the highest percent decline (most 

favorable for harbor porpoises) based on 

their economic bycatch estimates, the 

order would be Alternative 2 (54 

percent reduction), Alternative 5 Preclosure scenario (59 percent reduction), 

Alternative 4 Pre-closure scenario (59 

percent reduction), Alternative 4 SNEclosure scenario (60 percent reduction), 

Alternative 3 (60 percent reduction), 

Alternative 5 GOM/SNE-closure 

scenario (63 percent reduction), 

Alternative 4 GOM-closure scenario (63 

percent reduction), and Alternative 4 

GOM/SNE-closure scenario (63 percent 

reduction). 

In conclusion, at the regional level, 

the impacts on the Maine, South of 

Boston, New Jersey, Virginia, and North 

Carolina ports are small (less than or 

equal to plus or minus 3 percent change 

from Alternative 1) for all the 

alternatives. From an industry 

perspective, Alternatives 2, 4 (GOM/ 

SNE-closure scenario), and 5 (GOM/ 

SNE-closure scenario) have the highest 

annual impacts on revenues whereas 

Alternatives 3, 4 Pre-closure, and 5 Preclosure have the lowest annual impacts 

on revenues. The most cost-effective 

alternatives from a national perspective 

are Alternative 3 due to the initial cost 

of purchasing pingers, as well as 

Alternatives 4 and 5 when consequence 

closure areas are never triggered or are 

triggered very late in the ten-year time 

period. Alternative 2 would incur the 

highest cost of all the alternatives over 

the ten-year time horizon examined and 

would provide the least amount of 

harbor porpoise bycatch reduction of 

the five alternatives. 

The alternatives can be compared on 

a cost-effectiveness basis where the 

costs include lost revenues and pinger 

costs for those that did not have pingers, 

and the unit of comparison is the cost 

per unit of bycatch reduction (dollars 

per animal) where the reductions in 

harbor porpoise bycatch differ between 

the alternatives. This is the most 

conservative measure of costs when a 

full cost-benefits analysis cannot be 

completed. If the five alternatives were 

ranked from those with the least impact 

on small entities to those with the most 

impact based on the costs incurred per 

animal, the order would be: Alternative 

5 Pre-closure scenario ($45 per animal), 

Alternative 4 Pre-closure scenario ($124 

per animal), Alternative 3 ($162 per 

animal), Alternative 4 GOM-closure 

scenario ($882 per animal), Alternative 

4 SNE-closure scenario ($1,341 per 

animal), Alternative 5 GOM/SNEclosure scenario ($1,973 per animal), 

Alternative 4 GOM/SNE-closure 

scenario ($2,054 per animal), and 

Alternative 2 ($2,985 per animal). The 

discounted costs summed over the tenyear time horizon (known as the present 

value of costs) would not change for 

Alternatives 2, 3, 4 Pre-closure, and 5 

Pre-closure. These costs, however, 

would decrease over the ten-year time 

horizon should consequence closure 

areas be implemented in the future 

under the closure scenarios for 

Alternatives 4 (Preferred) and 5. 

References 

NMFS. 2009. Draft Environmental 

Assessment on the Proposed Rule to 

Amend the Harbor Porpoise Take 

Reduction Plan. Northeast Region. 

Available for download from the HPTRP 

Web site: http://www.nero.noaa.gov/ 

hptrp. 

Palka, D.L., C.D. Orphanides, and M.L. 

Warden. 2008. Summary of harbor 

porpoise bycatch, covariates and levels 

of compliance in the Northeast and MidAtlantic gillnet fisheries after the 

implementation of the Take Reduction 

Plan: January 1, 1999 through May 31, 

2007. In press. 

Waring, G.T., Josephson, E., Fairfield-Walsh, 

C.P., Maze-Foley, K., editors. 2007a. U.S. 

Atlantic and Gulf of Mexico Marine 

Mammal Stock Assessments—2007. 

NOAA Tech Memo NMFS NE 205; 415 

p. 

Waring, G.T., E. Josephson, C.P. Fairfield, 

and K. Maze-Foley (ed). 2007b. U.S. 

Atlantic and Gulf of Mexico Marine 

Mammal Stock Assessments—2006. 

NOAA Tech Memo NMFS–NE–201; 378 

p. 

Waring, G.T., Pace, R.M., Quintal, J.M., 

Fairfield, C.P., and Maze-Foley, K., 

editors. 2004. U.S. Atlantic and Gulf of 

Mexico Marine Mammal Stock 

Assessments—2003. NOAA Technical 

Memorandum NMFS–NE–182; 287 p. 

Waring, G.T., Quintal, J.M., Swartz, S.L., 

editors. 2001. U.S. Atlantic and Gulf of 

Mexico Marine Mammal Stock 

Assessments—2001. NOAA Technical 

Memorandum NMFS–NE–168; 307 p. 

Waring, G.T., Quintal, J.M., Swartz, S.L., 

editors. 2000. U.S. Atlantic and Gulf of 

Mexico Marine Mammal Stock 

Assessments—2000. NOAA Technical 

Memorandum NMFS–NE–162; 298 p. 

List of Subjects in 50 CFR Part 229 

Administrative practice and 

procedure, Confidential business 

information, Fisheries, Marine 

mammals, Reporting and recordkeeping 

requirements. 

Dated: July 14, 2009. 

Samuel D. Rauch III, 

Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service. 

For the reasons stated in the 

preamble, 50 CFR part 229 is proposed 

to be amended as follows to implement 

the Preferred Alternative: 

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. 

§ 229.2 [Amended] 

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 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), unless the 

vessel owner or operator complies with 

closure or pinger provisions specified in 

§ 229.33(a)(1) through (8). This 

prohibition does not apply to the use of 

a single pelagic gillnet (as described and 

used as set forth in § 648.81(f)(2)(ii) of 

this title). 


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(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). 

(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 (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 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 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). 

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 through November 

annually by incorporating it into the 

Coastal Gulf of Maine Consequence 

Closure Area if, after two consecutive 

management seasons, the target harbor 

porpoise bycatch rate of 0.031 harbor 

porpoises per metric tons of landings is 

exceeded by the average observed 

bycatch rate for the Mid-Coast, 

Massachusetts Bay, and Stellwagen 

Bank Management Areas combined. 

(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 

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′ 

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), (3), and (4) of this 

section, NMFS shall close a portion of 

the Massachusetts Bay Management 

Area (north of 42°15′ N. lat.) from 

October through November annually if, 

after two consecutive management 

seasons, the target harbor porpoise 

bycatch rate of 0.031 harbor porpoises 

per metric tons of landings is exceeded 

by the average observed bycatch rate for 

the Massachusetts Bay, Mid-Coast, and 

Stellwagen Bank Management Areas 

combined. 

(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 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′ 


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(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 through November 

annually if, after two consecutive 

management seasons, the target harbor 

porpoise bycatch rate of 0.031 harbor 

porpoises per metric tons of landings is 

exceeded by the average observed 

bycatch rate for the Stellwagen Bank, 

Mid-Coast, and Massachusetts Bay 

Management Areas combined. 

(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 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 

through April annually if, after two 

consecutive management seasons, the 

target harbor porpoise bycatch rate of 

0.023 harbor porpoises per metric tons 

of landings is exceeded by the average 

observed bycatch rate for the Southern 

New England Management Area. 

(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 

§ 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 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 through 

April annually if, after two consecutive 

management seasons, the target harbor 

porpoise bycatch rate of 0.023 harbor 

porpoises per metric tons of landings is 

exceeded by the average observed 

bycatch rate for the Southern New 

England Management Area. 

(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 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′ 

OFFSHORE MANAGEMENT AREA— 

Continued 

Point N. lat. W. long. 

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). 

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 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 


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36072 Federal Register / Vol. 74, No. 138 / Tuesday, July 21, 2009 / Proposed Rules 

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 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 a 

single pelagic gillnet (as described in 

§ 648.81(f)(2)(ii) of this title). When not 

closed during October and November, 

the requirements of the Mid-Coast (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 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 

a single pelagic gillnet (as described in 

§ 648.81(f)(2)(ii) of this title). When not 

closed during February through April, 

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 as well as 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 or 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’ 

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 fishery is inadequate to 

reduce bycatch below the stock’s PBR 

level. 

(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 

North Carolina/South Carolina 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 


hsrobinson on PROD1PC76 with PROPOSALS3
Federal Register / Vol. 74, No. 138 / Tuesday, July 21, 2009 / Proposed Rules 36073 

(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 below. During 

this period, no person who owns or 

operates the vessel may allow the vessel 

to 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 below 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 

below. During this period, no person 

who owns or operates the vessel may 

allow the vessel to 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 

below 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 below. During 

this period, no person who owns or 

operates the vessel may allow the vessel 

to 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 below 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. 


hsrobinson on PROD1PC76 with PROPOSALS3
36074 Federal Register / Vol. 74, No. 138 / Tuesday, July 21, 2009 / Proposed Rules 

(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 below. During 

this period, no person who owns or 

operates the vessel may allow the vessel 

to 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 below 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′ 

MUDHOLE SOUTH MANAGEMENT

AREA—Continued 

Point N. lat. W. long. 

MS3 ............ 39°51.0′ 73°00.0′ 

MS4 ............ 39°51.0′ 73°31.0′ 

MS1 ............ 40°05.0′ 73°31.0′ 

(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 below. During 

this period, no person who owns or 

operates the vessel may allow the vessel 

to 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 below 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 

below. During this period, no person 

who owns or operates the vessel may 

allow the vessel to 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 

below 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 


hsrobinson on PROD1PC76 with PROPOSALS3
Federal Register / Vol. 74, No. 138 / Tuesday, July 21, 2009 / Proposed Rules 36075 

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 

below. During this period, no person 

who owns or operates the vessel may 

allow the vessel to 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 

below 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 

below. During this period, no person 

who owns or operates the vessel may 

allow the vessel to 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 

below 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). 

(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. E9–17190 Filed 7–20–09; 8:45 am] 

BILLING CODE 3510–22–P 


hsrobinson on PROD1PC76 with PROPOSALS3