[Federal Register Volume 74, Number 138 (Tuesday, July 21, 2009)]
[Proposed Rules]
[Pages 36058-36075]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-17190]
[[Page 36057]]
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Part V
Department of Commerce
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National Oceanic and Atmospheric Administration
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50 CFR Part 229
Taking of Marine Mammals Incidental to Commercial Fishing Operations;
Harbor Porpoise Take Reduction Plan Regulations; Proposed Rule
Federal Register / Vol. 74 , No. 138 / Tuesday, July 21, 2009 /
Proposed Rules
[[Page 36058]]
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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.
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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, [email protected]; or Melissa Andersen,
NMFS, Office of Protected Resources, 301-713-2322,
[email protected].
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 human-caused 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 Mid-Atlantic gillnet fisheries
from New York through North Carolina (62 FR 8428, February 25, 1997).
The MATRT included representatives of the Mid-Atlantic coastal gillnet
fisheries, state fishery management agencies, the Mid-Atlantic 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 non-consensus 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
[[Page 36059]]
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 Mid-Atlantic
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 Mid-Atlantic 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 two-pronged 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
[[Page 36060]]
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 Mid-Atlantic 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 year-round closure) and in the HPTRP Mid-
Coast 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 Mid-Coast 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[deg]40' N. lat.
south to 40[deg]00' N. lat., and east to 70[deg]00' W. long.) in which
pingers are not required.
Of the 1,665 hauls observed in the Cape Cod South Management Area
[[Page 36061]]
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
[[Page 36062]]
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
non-compliance 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[deg]15'
W. long.) and Massachusetts Bay (north of 42[deg]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[deg]15' N.
lat., and on the east by 70[deg]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 Mid-Atlantic 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
[[Page 36063]]
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 Mid-Atlantic 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[deg] 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
[[Page 36064]]
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[deg]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[deg]15' N. lat. This proposed rule would
modify the Massachusetts Bay Management Area to move this boundary
north to 42[deg]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 HPTRT-recommended 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
[[Page 36065]]
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[deg]40' N. lat. and would extend
the northern boundary to the southern shoreline of Long Island, NY at
40[deg]50.1' N. lat. and 72[deg]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[deg]28.1' N. lat. and 74[deg]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[deg]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[deg]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 Mid-Atlantic. 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
[[Page 36066]]
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
Mid-Atlantic 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 Mid-Atlantic 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 [email protected], 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
[[Page 36067]]
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 Pre-closure 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
[[Page 36068]]
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 cost-effectiveness
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 cost-effectiveness, 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
[[Page 36069]]
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/SNE-closure 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 Pre-closure scenario (59 percent
reduction), Alternative 4 Pre-closure scenario (59 percent reduction),
Alternative 4 SNE-closure 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 Pre-closure 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/SNE-closure
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 ten-year 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 Mid-Atlantic 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.
Sec. 229.2 [Amended]
2. In Sec. 229.2, the definitions of ``Mudhole'', ``Southern Mid-
Atlantic waters'', and ``Waters off New Jersey'' are removed.
3. In Sec. 229.3, paragraphs (q) and (r) are removed, and
paragraphs (m), (n), (o), and (p) are revised to read as follows:
Sec. 229.3 Prohibitions.
* * * * *
(m) It is prohibited to fish with, set, haul back, possess on board
a vessel unless stowed in accordance with Sec. 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 Sec.
229.33(a), unless the vessel owner or operator complies with closure or
pinger provisions specified in Sec. 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 Sec. 648.81(f)(2)(ii) of this
title).
[[Page 36070]]
(n) It is prohibited to fish with, set, haul back, possess on board
a vessel unless stowed in accordance with Sec. 229.2, or fail to
remove gillnet gear from the areas and for the times as specified in
Sec. 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 Sec. 229.2, or fail to
remove any large mesh or small mesh gillnet gear from the areas and for
the times specified in Sec. 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 Sec. 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
Sec. 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 Sec. 229.33(c).
* * * * *
4. Section 229.33 is revised to read as follows:
Sec. 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 Sec. 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 Sec. 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[deg]27.3' 68[deg]55.0' (ME
shoreline).
NE2............................ 43[deg]29.6' 68[deg]55.0'
NE3............................ 44[deg]04.4' 67[deg]48.7'
NE4............................ 44[deg]06.9' 67[deg]52.8'
NE5............................ 44[deg]31.2' 67[deg]02.7'
NE6............................ 44[deg]45.8' 67[deg]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 Sec.
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 Sec.
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[deg]30.0' 70[deg]50.1' (MA
shoreline).
MC2............................ 42[deg]30.0' 70[deg]15.0'
MC3............................ 42[deg]40.0' 70[deg]15.0'
MC4............................ 42[deg]40.0' 70[deg]00.0'
MC5............................ 43[deg]00.0' 70[deg]00.0'
MC6............................ 43[deg]00.0' 69[deg]30.0'
MC7............................ 43[deg]30.0' 69[deg]30.0'
MC8............................ 43[deg]30.0' 69[deg]00.0'
MC9............................ 44[deg]17.8' 69[deg]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[deg]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 Sec. 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 Sec.
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
Sec. 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[deg]30.0' 70[deg]50.1' (MA
shoreline).
MB2............................ 42[deg]30.0' 70[deg]30.0'
MB3............................ 42[deg]15.0' 70[deg]30.0'
MB4............................ 42[deg]15.0' 70[deg]00.0'
MB5............................ 42[deg]00.0' 70[deg]00.0'
MB6............................ 42[deg]00.0' 70[deg]01.2' (MA
shoreline).
MB7............................ 42[deg]00.0' 70[deg]04.8' (MA
shoreline).
MB8............................ 42[deg]00.0' 70[deg]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[deg]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 Sec.
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 Sec. 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[deg]30.0' 70[deg]30.0'
SB2............................ 42[deg]30.0' 70[deg]15.0'
SB3............................ 42[deg]15.0' 70[deg]15.0'
SB4............................ 42[deg]15.0' 70[deg]30.0'
SB1............................ 42[deg]30.0' 70[deg]30.0'
------------------------------------------------------------------------
[[Page 36071]]
(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
Sec. 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
Sec. 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[deg]00.0' 72[deg]30.0'
SNE3........................... 40[deg]00.0' 69[deg]30.0'
SNE4........................... 42[deg]15.0' 69[deg]30.0'
SNE5........................... 42[deg]15.0' 70[deg]00.0'
SNE6........................... 41[deg]58.3' 70[deg]00.0' (MA
shoreline).
------------------------------------------------------------------------
\1\ Bounded on the west by a line running from the Rhode Island
shoreline at 41[deg]18.2' N. lat. and 71[deg]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[deg]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 Sec. 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 Sec.
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[deg]19.6' 71[deg]45.0' (RI
shoreline).
CCS2........................... 40[deg]40.0' 71[deg]45.0'
CCS3........................... 40[deg]40.0' 70[deg]30.0'
CCS4........................... 41[deg]20.9' 70[deg]30.0'
CCS5........................... 41[deg]23.1' 70[deg]30.0'
CCS6........................... 41[deg]33.1' 70[deg]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 Sec. 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 Sec. 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[deg]50.0' 69[deg]30.0'
OFS2........................... 43[deg]10.0' 69[deg]10.0'
OFS3........................... 43[deg]10.0' 67[deg]40.0'
OFS4........................... 43[deg]05.8' 67[deg]40.0' (EEZ
boundary).
OFS5........................... 42[deg]53.1' 67[deg]44.5' (EEZ
boundary).
OFS6........................... 42[deg]47.3' 67[deg]40.0' (EEZ
boundary).
OFS7........................... 42[deg]10.0' 67[deg]40.0'
OFS8........................... 42[deg]10.0' 69[deg]30.0'
OFS1........................... 42[deg]50.0' 69[deg]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 Sec. 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 Sec.
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[deg]30.0' 69[deg]00.0'
CL2............................ 42[deg]30.0' 68[deg]30.0'
CL3............................ 43[deg]00.0' 68[deg]30.0'
CL4............................ 43[deg]00.0' 69[deg]00.0'
CL1............................ 42[deg]30.0' 69[deg]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 Sec. 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
[[Page 36072]]
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 Sec. 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 Sec. 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[deg]33.0' 70[deg]15.0' (ME
shoreline).
CGM2.......................... 42[deg]15.0' 70[deg]15.0'
CGM3.......................... 42[deg]15.0' 70[deg]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 Sec. 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 Sec. 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[deg]19.6' 71[deg]45.0' (RI
shoreline).
CCSE2......................... 40[deg]00.0' 71[deg]45.0'
CCSE3......................... 40[deg]00.0' 70[deg]00.0'
CCSE4......................... 40[deg]30.0' 70[deg]00.0'
CCSE5......................... 40[deg]30.0' 70[deg]30.0'
CCSE6......................... 41[deg]20.9' 70[deg]30.0'
CCSE7......................... 41[deg]23.1' 70[deg]30.0'
CCSE8......................... 41[deg]33.1' 70[deg]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[deg]58.3' 70[deg]00.0' (MA
shoreline).
ECC2.......................... 42[deg]15.0' 70[deg]00.0'
ECC3.......................... 42[deg]15.0' 69[deg]30.0'
ECC4.......................... 41[deg]40.0' 69[deg]30.0'
ECC5.......................... 41[deg]40.0' 69[deg]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:
Sec. 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[deg]30' W.
long. at the southern coast of Long Island, NY at 40[deg]50.1' N. lat.
and on the south by the North Carolina/South Carolina border
(33[deg]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[deg]45.70' N., 72[deg]45.15' W. to 40[deg]45.72' N., 72[deg]45.30'
W. (Moriches Bay Inlet)
40[deg]37.32' N., 73[deg]18.40' W. to 40[deg]38.00' N., 73[deg]18.56'
W. (Fire Island Inlet)
40[deg]34.40' N., 73[deg]34.55' W. to 40[deg]35.08' N., 73[deg]35.22'
W. (Jones Inlet)
New Jersey/Delaware
39[deg]45.90' N., 74[deg]05.90' W. to 39[deg]45.15' N., 74[deg]06.20'
W. (Barnegat Inlet)
39[deg]30.70' N., 74[deg]16.70' W. to 39[deg]26.30' N., 74[deg]19.75'
W. (Beach Haven to Brigantine Inlet)
38[deg]56.20' N., 74[deg]51.70' W. to 38[deg]56.20' N., 74[deg]51.90'
W. (Cape May Inlet)
All marine and tidal waters landward of the 72 COLREGS demarcation line
[[Page 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[deg]19.48' N., 75[deg]05.10' W. to 38[deg]19.35' N., 75[deg]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[deg]11.10' N., 75[deg]49.30' W. to 37[deg]10.65' N., 75[deg]49.60'
W. (Little Inlet)
37[deg]07.00' N., 75[deg]53.75' W. to 37[deg]05.30' N., 75[deg]56' W.
(Smith Island Inlet)
North Carolina
All marine and tidal waters landward of the 72 COLREGS demarcation line
(International Regulations for Preventing Collisions at Sea, 1972), as
depicted or noted on nautical charts published by 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[deg]50.1' 72[deg]30.0' (NY
shoreline).
WNJ2.......................... 38[deg]47.0' 72[deg]30.0'
WNJ3.......................... 38[deg]47.0' 75[deg]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 Sec. 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 Sec. 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 Sec. 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 Sec.
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 Sec.
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[deg]28.1' 74[deg]00.0' (NJ
shoreline).
MN2........................... 40[deg]30.0' 74[deg]00.0'
MN3........................... 40[deg]30.0' 73[deg]20.0'
MN4........................... 40[deg]05.0' 73[deg]20.0'
MN5........................... 40[deg]05.0' 74[deg]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 Sec. 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 Sec.
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 Sec. 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 Sec. 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.
[[Page 36074]]
(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 Sec. 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 Sec. 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[deg]05.0' 73[deg]31.0'
MS2........................... 40[deg]05.0' 73[deg]00.0'
MS3........................... 39[deg]51.0' 73[deg]00.0'
MS4........................... 39[deg]51.0' 73[deg]31.0'
MS1........................... 40[deg]05.0' 73[deg]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 Sec. 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 Sec.
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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Mid-
Atlantic 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[deg]47.0' 75[deg]05.0' (DE
shoreline).
SMA2.......................... 38[deg]47.0' 72[deg]30.0'
SMA3.......................... 33[deg]51.1' 72[deg]30.0'
SMA4.......................... 33[deg]51.1' 78[deg]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 Sec. 229.2, or fail to remove any large mesh
gillnet gear from
[[Page 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 Sec. 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 Sec. 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 Sec.
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 Sec.
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