[Federal Register Volume 62, Number 156 (Wednesday, August 13, 1997)]
[Proposed Rules]
[Pages 43302-43307]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-21403]
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DEPARTMENT OF COMMERCE
50 CFR Part 229
[Docket No. 970129015-7127-03; I.D. 042597B]
RIN 0648-AI84
Taking of Marine Mammals Incidental to Commercial Fishing
Operations; Gulf of Maine Harbor Porpoise Take Reduction Plan
Regulations
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
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SUMMARY: NMFS proposes regulations to implement a plan to reduce the
bycatch and mortality of harbor porpoises that occur incidental to sink
gillnet fishing in the Gulf of Maine. These regulations were based on a
draft Harbor Porpoise Take Reduction Plan (HPTRP) submitted by the Gulf
of Maine Harbor Porpoise Take Reduction Team (HPTRT) pursuant to the
Marine Mammal Protection Act (MMPA). NMFS seeks comment on the draft
Harbor Porpoise Take Reduction Plan (HPTRP), NMFS' proposed changes to
the draft plan, the proposed regulations to implement the plan and the
Environmental Assessment (EA) of the plan.
DATES: Comments must be received by October 14, 1997.
ADDRESSES: Send comments to Chief, Marine Mammal Division, Office of
Protected Resources, National Marine Fisheries Service, 1315 East-West
Highway, Silver Spring, MD 20910-3226. Copies of the draft HPTRP and EA
are available upon request from Douglas Beach, Northeast Region, NMFS,
One Blackburn Drive, Gloucester, MA 01930, or from Donna Wieting,
Office of Protected Resources, NMFS, 1315 East-West Highway, Silver
Spring, MD 20910-3226.
FOR FURTHER INFORMATION CONTACT: Kevin Chu, NMFS, 508-495-2291 or Donna
Wieting, NMFS, 301-713-2322.
SUPPLEMENTARY INFORMATION: The Gulf of Maine sink gillnet fishery is
classified as a Category I fishery under section 118 of the MMPA, 16
U.S.C. 1361 et seq.. A Category I fishery is a fishery that has
frequent incidental mortality and serious injury of marine mammals. The
fishery operates year-round in nearshore and offshore waters. Much of
the sink gillnet activity in the Gulf of Maine is regulated by the New
England Multispecies Fishery Management Plan (FMP). Gillnet fishing for
other species, such as monkfish and dogfish, will be governed by FMPs
and implementing regulations that are currently under development by
the New England Fishery Management Council (NEFMC) and the Mid-Atlantic
Fishery Management Council (MAFMC), respectively.
The Gulf of Maine sink gillnet fishery has a historical incidental
bycatch of a strategic marine mammal stock, the harbor porpoise
(Phocoena phocoena). A strategic stock is a stock: (1) For which the
level of direct human-caused mortality exceeds the potential biological
removal (PBR) level; (2) that is declining and is likely to be listed
under the Endangered Species Act (ESA) in the foreseeable future; or
(3) that is listed as a threatened or endangered species under the ESA.
The incidental bycatch of harbor porpoises in the Gulf of Maine sink
gillnet fishery exceeds the PBR level established for that stock. The
Gulf of Maine Stock of harbor porpoise has been proposed for listing as
threatened under the ESA (58 FR 3108, January 7, 1993).
Section 118 of the MMPA requires NMFS to develop and implement a
take reduction plan to assist in the recovery or to prevent the
depletion of each strategic stock that interacts with a Category I or
II fishery. A Category II fishery is a fishery that has occasional
incidental mortality and serious injury of marine mammals. The
immediate goal of a take reduction plan is to reduce, within 6 months
of its implementation, the mortality and serious injury of strategic
stocks incidentally taken in the course of commercial fishing
operations to below the PBR levels established for such stocks. The PBR
level is the maximum number of animals that can be removed annually
from a marine mammal stock by human causes while allowing that
[[Page 43303]]
stock to reach or maintain its optimum sustainable population. The PBR
level for harbor porpoises is 483 animals per year (62 FR 3005, January
21, 1997).
Accordingly, NMFS established the HPTRT on February 12, 1996 (61 FR
5384, February 12, 1996), to prepare a draft take reduction plan. The
HPTRT included representatives of the sink gillnet fishery, NMFS, state
marine resource management agencies, the NEFMC, environmental
organizations, and academic and scientific organizations. In selecting
these team members, NMFS sought an equitable balance among
representatives of resource user and non-user interests.
The HPTRT was tasked with developing a consensus draft plan for
reducing incidental mortality and serious injury of harbor porpoises in
the Gulf of Maine sink gillnet fishery. The HPTRT met five times
between February and July 1996 and submitted a consensus draft plan to
NMFS on August 8, 1996. The draft HPTRP is a comprehensive approach to
the problem and includes:
1. A Core Management Plan that consists of a schedule of time/area
closures and periods when pingers (acoustic deterrent devices) would be
required for each of the established management areas. Consensus on the
Core Management Plan was contingent on the following understandings:
(A) That the regime was recommended only for the first year of the plan
and that the team reconvene 7 months after the plan has been
implemented; (B) that a scientific experiment be conducted to study the
effectiveness of pingers in reducing harbor porpoise bycatch in the
Mid-Coast Area in the spring, and (C) that research on the effect of
pingers on harbor porpoises and other marine life be conducted at the
same time, including the initiation of research on the possible
habituation of harbor porpoise to pingers.
2. An Implementation Plan that includes recommendations regarding a
detailed census of the gillnet fleet; outreach, training and
certification programs for fishers who wish to use pingers; NMFS' and
the HPTRT's coordination and consultation with Canadian counterparts
regarding the reduction of harbor porpoise takes in Canadian waters;
enforcement of the HPTRP; coordination of HPTRT's efforts with those of
the Mid-Atlantic Take Reduction Team; investigation of impacts on
harbor porpoise by the state gillnet and bait gillnet fisheries; and
the reconvening of the team to provide periodic evaluations of the
HPTRP.
3. A series of recommendations regarding NMFS' collection,
analysis, and management of data on the status of the harbor porpoise
stock, sink gillnet fishery effort, by-catch rate, and total by-catch
estimates; and recommendations regarding design of pinger experiments
and gear technology research.
The HPTRP would govern and pertain to all fishing with sink
gillnets and other gillnets capable of catching multispecies in the
inshore and offshore waters of New England from Maine through Rhode
Island.
The Core Management Plan
As part of the Core Management Plan, the HPTRT recommended a
schedule of time/area closures and periods during which pinger use is
required for each of the established sink gillnet management areas
(Table 1). The HPTRT expects that these restrictions would result in a
reduction of harbor porpoise bycatch to below the PBR level.
Table 1.--Time/Area Closures to Sink Gillnet Fishing and Periods During
Which Pinger Use Would Be Required, Under the Draft HPTRP
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Downeast Area:............................
Aug. 15 to Sep. 13...................... Closed.
Mid-coast Area:
Jan. 1-31............................... Closed.
Mar. 1 to May 15........................ Closed.
Sept. 15 to Oct. 31..................... Open, pingers required on
all sink gillnets.
Nov. 1 to Dec. 31....................... Closed.
Massachusetts Bay Area:
Feb. 1-28/29............................ Open, pingers required on
all sink gillnets.
Mar. 1-31............................... Closed.
Apr. 1-30............................... Open, pingers required on
all sink gillnets.
South Cape Cod Area:
Feb. 1-28/29............................ Open, pingers required on
all sink gillnets.
Mar. 1-31............................... Closed.
Apr. 1-30............................... Open, pingers required on
all sink gillnets.
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The New England sink gillnet fishery is governed by the Northeast
Multispecies FMP and implementing regulations. The NEFMC developed the
FMP to meet groundfish conservation and marine mammal conservation
goals. Concurrent with the HPTRT's proceeding, the NEFMC considered new
FMP changes which would affect sink gillnet fishing. This action--
specifically, opening the Mid-Coast Area to gillnet fishing with
pingers during November and December--was implemented subsequent to
NMFS' receipt of the HPTRT plan. As the NEFMC actions altered the
assumptions upon which the HPTRT's consensus proceedings were based,
NMFS has strived to propose a take reduction plan that maintains the
spirit of the HPTRT's comprehensive consensus plan. NMFS is proposing
to adopt the HPTRT's recommendations for closures and pinger use in the
Downeast Area, Massachusetts Bay Area, and Cape Cod South Area.
However, for the Mid-Coast Area, NMFS proposes to combine the
recommendations from the HPTRT and the NEFMC regarding closures and
pinger use (Table 2).
Table 2.--Summary of Differences Between Draft and Proposed Plan in the
Mid-Coast Area
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NMFS' proposed
Period HPTRT's Plan change to the plan
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Jan............................. Closed............ Closed.
Mar. 1-May 15................... Closed............ Closed.\1\
Sep. 15-Oct. 31................. Open, pingers Open, pingers
required. required.
Nov. 1-Dec. 31.................. Closed............ Open, pingers
required.
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\1\ In 1996, the Mid-Coast Closure Area was closed from March 25-April
25. Framework Adjustment 19 to Amendment 7 of the Multi-species
Fishery Management Plan implemented a closure of Jeffrey's Ledge
Closure Area (a subset of the Mid-Coast Area) from May 1 through May
31, 1997. The same regulatory action implements a closure of the
entire Mid-Coast Area from May 10 through May 30 of each year after
1997. NMFS' proposed change melds Framework Adjustment 19 with the
actions proposed by the HPTRT.
NMFS' proposed change increases the fishing opportunities for sink
gillnet fishermen who would have been excluded from fishing during
November and December in the draft HPTRP. Based on the historical by-
catch records and the determined/assumed effectiveness of pingers in
reducing by-catch in the Mid-Coast Area during the fall, this change
from the draft HPTRP is expected to result in about eight additional
harbor porpoise takes. However, the total annual take of harbor
porpoise is still expected to be below the PBR level. The change from
the draft HPTRP would increase the amount of time when pingers are
broadcasting in the ocean.
NMFS' proposed implementing regulations include the following
periods and areas which would be closed to sink gillnet fishing or
would be open to sink gillnet fishing only if
[[Page 43304]]
pingers are employed in the prescribed manner (Table 3).
Table 3.--Time/Area Closures to Sink Gillnet Fishing and Periods During
Which Pinger Use Would Be Required, as Proposed by NMFS
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Downeast Area: Aug.15 to Sep.13........... Closed.
Mid-coast Area:
Jan. 1-31............................... Closed.
Mar. 1 to May 15........................ Closed.
Sep. 15 to Dec. 31...................... Open, pingers required on
all sink gillnets.
Massachusetts Bay Area:
Feb. 1-28/29............................ Open, pingers required on
all sink gillnets.
Mar. 1-31............................... Closed.
Apr. 1-30............................... Open, pingers required on
all sink gillnets.
South Cape Cod Area:
Feb. 1-28/29............................ Open, pingers required on
all sink gillnets.
Mar. 1-31............................... Closed.
Apr. 1-30............................... Open, pingers required on
all sink gillnets.
------------------------------------------------------------------------
The proposed regulations would implement the modified Core
Management Plan under the authority of the MMPA. As the conservation of
harbor porpoise is one of the goals of the Multispecies FMP, NMFS will
request that the NEFMC consider the measures herein and prepare
regulations implementing the take reduction plan, consistent with
groundfish management goals, under the Magnuson-Stevens Fishery
Conservation and Management Act (Magnuson-Stevens Act). The MMPA
regulations proposed herein would govern sink gillnet fishing by anyone
in all state and Federal waters of New England from Maine through Rhode
Island; the Magnuson-Stevens Act regulations would govern only the
fishing of federally permitted fishers in those areas. Otherwise, the
actions and management areas described in the regulatory text below are
consistent with the Northeast Multispecies FMP at the time of this
proposed rule's publication. Council action under the Magnuson-Stevens
Act that satisfies the intent of the MMPA would make preparation of
final regulations under the MMPA unnecessary.
The HPTRT's full consensus on the Core Management Plan was
contingent on three additional measures. First, that the regime be
implemented for only 1 year and that NMFS reconvene the team in the
seventh month after the HPTRP's implementation, and semiannually
thereafter, in order to review the effectiveness of the recommended
actions and to revise the take reduction plan, if necessary. The
proposed regulations to implement the proposed HPTRT would be effective
for more than 1 year because of the burden of having to conduct another
rulemaking. However, NMFS will consider modifying the regulations based
on the HPTRT's recommendations when the team reconvenes. The HPTRT
requested that NMFS provide a variety of detailed and updated
information regarding fishery effort, by-catch rates, by-catch
estimates throughout the species' range (to include Canada and the Mid-
Atlantic), and compliance with the plan. NMFS intends to reconvene the
HPTRT and will strive to provide the latest and best information, as
requested. However, in order to ensure the HPTRT is provided with the
requested data and that meetings are productive, the timing of the
meetings must allow sufficient time for NMFS to assemble and analyze
effort and by-catch data for the period of concern.
The second measure upon which the HPTRT's full consensus on the
Core Management Plan was contingent, is that a scientific experiment be
conducted during the spring closure in the Mid-Coast Area in 1997 to
determine the effectiveness of pingers as a harbor porpoise
conservation technique. The team recommended that the experiment last a
maximum of 45 days and that it be stopped immediately if 70 harbor
porpoises were caught in the course of the experiment. The HPTRT also
made several specific recommendations to ensure that the experiment is
statistically significant and scientifically valid. This experiment was
conducted in March and April of 1997, and an analysis of the results of
this experiment is currently underway.
A third measure upon which the HPTRT's full consensus on the Core
Management Plan was contingent is that research be conducted on the
effects of pingers on harbor porpoise and other marine life. The HPTRT
recommended that research be conducted in the Mid-Coast Area from
September 15 to October 31 (when pingers would be in use) to begin to
address: (1) Whether harbor porpoise are displaced from important
habitat areas by pingers, (2) whether the rate of entanglement of
porpoise in sink gillnets changes with continued pinger use, and (3)
whether pingers affect other marine life. NMFS has contracted with the
Woods Hole Oceanographic Institution to conduct this research.
Implementation Measures
A second part of the draft HPTRP consists of recommendations for
implementing the Core Management Plan. The HPTRT noted that effective
implementation of the plan depends on enhanced cooperation between
researchers, regulators and fishers, and the plan includes
recommendations for increased outreach, training, and cooperative
efforts. The team acknowledged the changing nature of fishing
activities in response to a variety of recent and on-going fishery
management and protected species conservation actions. The recommended
implementation measures address the need for more up-to-date and
continually updated methods of estimating fishery effort and by-catch
throughout the species' range.
Census of the Gillnet Fleet
The HPTRT recommended that NMFS conduct or support a census of the
sink gillnet fleet to determine seasonal effort, type and amount of
gear fished, target species, and areas fished. The HPTRT recommended
that the census include interviews with fishers and, for the purpose of
facilitating NMFS' public outreach efforts, identify points of contact
in each port and mailing/phone lists for the fishery participants. The
draft HPTRP states that since the reliability of total by-catch
estimates is dependent on the quality of the fishery effort data, NMFS
should consider adopting a system that uses nets as the measure of
effort versus the current landings weighout process. In the interest of
achieving a real-time measure of fishing effort, the HPTRT also
recommended that NMFS investigate the practicability of dock-side
interviews or a computer automated or call-in system to augment the
weighout system.
NMFS is concerned that a census of the fleet would only provide a
snapshot of fishing activity, and the information collected may be of
little value for the purpose of estimating by-catch on a real-time
basis. NMFS is currently assessing the usefulness of vessel logbooks
for this purpose. However, the development of a reporting system that
provides timely, consistent, and thorough measures of fishery effort
may require an overhaul of existing reporting mechanisms. NMFS is
investigating the feasibility and value of the technological
alternatives proposed by the HPTRT. Ideally, improvements in
determining fishery effort could be applied across areas and fisheries
beyond the scope of this plan as well. NMFS seeks comments on these and
[[Page 43305]]
other potential effort assessment and reporting mechanisms.
Outreach and Certification Programs
The HPTRT recommended that NMFS conduct certification programs for
all fishers who wish to participate in a pinger fishery. Under the
HPTRT's proposed plan, the program would be a forum in which fishers
would learn about the take reduction team process, MMPA reporting
requirements, and proper pinger use. Also, NMFS could use the sessions
to invite further take reduction and plan implementation ideas from
fishers. The HPTRT recommended that completion of the certification
program by sink gillnet fishers be a prerequisite for the issuance of
an certificate authorizing the incidental take of marine mammals under
section 118 of the MMPA and for participation in those segments of the
fishery wherein pingers are required. While the value of informative
workshops is clear, NMFS is not proposing a mandatory certification
program at this time, due to the administrative burden it would present
to fishers and to the agency. NMFS is proposing instead to prepare
informative printed materials that fully describe the use of pingers
and the elements of the take reduction plan. NMFS also proposes to
conduct a series of workshops in conjunction with existing fishery
gatherings throughout New England to explain not only components of
this take reduction plan but also of the existing and forthcoming
measures to protect endangered large whales from entanglements in fixed
fishing gear. NMFS requests comments on this approach to public
outreach and training of fishery participants.
Under the HPTRT's proposed certification program, there is a
recommendation that NMFS establish specifications for pingers, their
use and maintenance, and various NMFS' reporting requirements. NMFS
concurs with the recommendations and has included the following
definition incorporating such pinger specifications in the proposed
rule: A pinger is an acoustic deterrent device that, when immersed in
water, broadcasts a 10 kHz sound ( 2 kHz) at
132 dB ( 4 dB) re 1 micropascal at 1 meter, that lasts 300
milliseconds ( 15 milliseconds), and repeats every 4
seconds ( .2 seconds). An operational and functioning
pinger must be attached at the end of each string of sink gillnets and
at the bridle of every net within a string of nets. The HPTRT's
recommendations regarding reporting of marine mammal takes within 48
hours, the requirement to carry an observer if so requested by NMFS,
and submittal of weekly trip reports are addressed under separate
regulations found at 50 CFR 229.6, 229.7, and 648.7.
Takes of Harbor Porpoise in Canadian and US Mid-Atlantic Waters
The HPTRT recognized that its area of concern did not reflect the
full range of the harbor porpoise and that takes incidental to fishing
operations occur throughout its range in Canadian waters and along the
US Mid-Atlantic coast. In hopes of ensuring that the Canadian
Department of Fisheries and Oceans (DFO) implements measures in the
northern range of the harbor porpoise commensurate with the HPTRP, the
team recommended that NMFS consult extensively with DFO. Specifically,
the HPTRT recommends that NMFS seek DFO's comments on the plan, urge
DFO to develop a complementary plan, review with DFO the progress of
the HPTRP and any Canadian take reduction strategies, and outline a
schedule for meetings between NMFS, representatives of the HPTRT, DFO,
and representatives of the DFO's Harbor Porpoise Advisory Team to
jointly review population and by-catch data. NMFS has a collegial
relationship with DFO and values the exchange of data and ideas that
such a relationship affords. In the interest of continuing that
relationship, NMFS will request that DFO consider the HPTRT's
recommendations.
In U.S. Mid-Atlantic waters, harbor porpoises are taken in a number
of coastal fisheries. These takes occur in significant numbers, and
NMFS convened the Mid-Atlantic Take Reduction Team in March 1997 to
address the matter. During the HPTRT's deliberations, information was
not available on the number of takes that occur in the Mid-Atlantic,
and therefore, the HPTRT was not able to take into account the
significance and magnitude of these extra-regional takes. When NMFS
reconvenes the HPTRT, the latest and best information on porpoise by-
catch in the Mid-Atlantic will be considered, and an equitable PBR
level allocation scheme will be developed for each segment of the
fishery. To provide the necessary coordination between the teams and
consistency across the regions, NMFS, at the recommendation of the
HPTRT, has included several members of the HPTRT on the Mid-Atlantic
Take Reduction Team and will strive to ensure that data on by-catch and
effort in both areas will be shared with both teams. NMFS requests
comments on its plans for addressing takes of harbor porpoises
throughout the full range of the species.
Enforcement Priority
To meet the goals of significantly reducing by-catch of harbor
porpoises, the HPTRT recommended that NMFS give enforcement of the
HPTRP a high priority. Further, the HPTRT recommended that NMFS provide
the team and other interested parties the opportunity to review and
comment on enforcement guidelines.
The NMFS Enforcement Division will enforce the final regulations
implementing the plan. The policies and priorities of the NMFS
Enforcement Division are constantly evolving to provide the best
possible response to changing regulations, seasonality of fisheries,
levels of compliance, sensitivity of resources, and a number of other
factors. Given the dynamic and broad range of conditions and
contingencies with which the NMFS Enforcement Division must contend, it
would be impractical and highly unusual for NMFS to develop and seek
public comment on an enforcement plan focused on this specific take
reduction plan. In an effort to enhance communications and to
facilitate enforcement of the take reduction plan, Special Agents from
the NMFS Enforcement Division will attempt to attend upcoming HPTRT
meetings. Also, the HPTRT and other interested parties are encouraged
to submit written comments to the NMFS Enforcement Division at any
time.
Baitnets and Other Gillnets
The HPTRT recognized that certain gillnet fisheries that are not
regulated and/or not subject to the requirements of the Federal
observer program may occur in waters covered by the take reduction plan
and may pose a by-catch risk to harbor porpoises. The team noted that
the HPTRP is focused on the sink gillnet fishery and, with the intent
of ensuring that the gillnet fisheries that may be exempted from
regulations or monitoring do not set nets in time-areas closed for the
protection of harbor porpoises, the HPTRT recommended that NMFS
restrict all gillnets, with the exception of baitnets, as provided in
the HPTRP. The exception for baitnets recognizes the use of small mesh
pelagic gillnets to harvest bait for the tuna and lobster fisheries.
Framework Adjustment 16 to the New England Multispecies FMP defines a
baitnet as a single pelagic gillnet, not more than 300 ft (90.9 m) long
nor more than 6 ft (1.8 m) deep, with a maximum mesh size of 3 in (7.6
cm), and requires that the net be attached to the boat and fished in
the upper two-thirds of the water column (50 CFR 648.81(f)(2)(ii)). The
HPTRT
[[Page 43306]]
assumed that these small mesh nets, which are constantly monitored,
pose little risk to harbor porpoises. Accordingly, the proposed
regulations would be applicable to all fishers who use sink gillnets or
other gillnets capable of catching multispecies except for a single
pelagic gillnet as described in 50 CFR 648.81(f)(2)(ii). Furthermore,
under the authority of the MMPA, the proposed regulations would apply
to fisheries operating in both state and Federal waters. NMFS will
request that the NEFMC consider the measures herein and prepare
regulations implementing the measures under the Magnuson-Stevens Act as
a Framework Adjustment to the Multispecies FMP. Should the NEFMC do so,
the language restricting all gillnets capable of catching multispecies,
with the exception of baitnets, would likely remain in the regulatory
text. However, under the Magnuson-Stevens Act, the regulation would not
have quite as broad effect as under the MMPA. Fishers who do not hold a
Federal fishery permit and who fish in state waters would not be
subject to the regulations under the Magnuson-Stevens Act. NMFS seeks
comments from the public on this regulatory implementation strategy.
Data Collection and Management Recommendations
Throughout its proceedings, the HPTRT examined the available data
on harbor porpoise abundance, by-catch estimates, fishing effort, and
pinger use. In the draft HPTRP, the team identified additional research
needs, adjustments to existing data collection methods, and changes to
database management and reporting.
The draft HPTRP included several recommendations regarding the
conduct and analysis of harbor porpoise abundance surveys. NMFS will
follow the recommendations to the extent that good scientific practice
and resources allow. To learn more about the harbor porpoise and its
environment, the team recommended that NMFS conduct studies of
migration with respect to salinity, water temperatures, and other
oceanographic variables. NMFS will consider these research needs when
the agency reviews priorities for resources allocation.
The HPTRT made several recommendations regarding NMFS' management
of observers and use of data collected by observers. NMFS will comply
with the recommendations to the extent that good scientific practice
and available resources allow.
Finally, the HPTRT identified several long-term research goals. The
team recommended that NMFS: (1) Conduct or support a study of by-catch
rates with respect to variations in gillnet gear and fishing practices;
(2) join with fishers and conservation engineers to develop gear
modifications to reduce interactions with harbor porpoises; and (3)
investigate ambient noise levels and transmission conditions for the
various harbor porpoise management areas. NMFS will consider these
long-term research goals when establishing funding priorities. NMFS
will request that the HPTRT revisit and refine these recommendations at
future meetings of the HPTRT. NMFS seeks comments on the research needs
and priorities to address the problem of harbor porpoise by-catch in
gillnets.
Classification
This proposed rule has been determined to be not significant for
purposes of E.O. 12866.
The Assistant General Counsel for Legislation and Regulation of the
Department of Commerce certified to the Chief Counsel for Advocacy of
the Small Business Administration that the proposed regulations, if
adopted as proposed, would not have a significant economic impact on a
substantial number of small entities as follows:
The economic impacts of this proposed rule are minimal and could
be offset by reductions in marine mammal entanglement and subsequent
reductions in fisher's costs due to net damage or loss. As a worst-
case scenario, if fishers were unable to use fishing grounds other
than those proposed for closures, or were unable to purchase pingers
to use fishing grounds that are closed except to vessels with
pingers, the total economic loss experienced as a result of this
rule could be as high as $882K per year for the entire fishery. If
vessels were to purchase pingers, total net losses (surplus minus
the cost of pingers) could be as high as $436K per year for the
entire fishery. Individual vessel costs to equip gillnets with
pingers would be approximately $4K (80 pingers at $50/pinger). If
fishers were able to displace fishing effort and use pingers to
access otherwise closed areas, economic impact on the fishery could
be as low as $171K per year for the entire fishery. For the 1995
fishing year, there were 378 gillnet category permits issued out of
a total number of 4738 multispecies permits, or 8.0 percent. Because
the number of vessels affected by this proposed action account for
less than 20 percent of the small business entities in the northeast
multispecies fishery, the proposed action will not have a
significant economic impact on a substantial number of small
entities and a Regulatory Flexibility Analysis was not prepared.
The Assistant Administrator for Fisheries, NOAA (AA) has
preliminarily determined, based on an EA prepared under the National
Environmental Policy Act, that implementation of these regulations
would not have a significant impact on the human environment. A copy of
the EA prepared for this rule is available for comment upon request
(see ADDRESSES).
List of Subjects in 50 CFR Part 229
Administrative practice and procedure, Confidential business
information, Fisheries, Marine mammals, Reporting and recordkeeping
requirements.
Dated: July 30, 1997.
Rolland A. Schmitten,
Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For the reasons set out in the preamble, 50 CFR part 229 is
proposed to be amended as follows:
PART 229--AUTHORIZATION FOR COMMERCIAL FISHERIES UNDER THE MARINE
MAMMAL PROTECTION ACT OF 1972
1. The authority citation for part 229 continues to read as
follows:
Authority: 16 U.S.C. 1361 et seq.
2. In subpart C, new Sec. 229.33 is added to read as follows:
Sec. 229.33 Gulf of Maine harbor porpoise take reduction plan.
(a) It is prohibited to fish with, set, haul back, possess on board
a vessel, unless stowed in accordance with 50 CFR 648.81(e), or fail to
remove sink gillnet gear or gillnet gear capable of catching
multispecies, with the exception of a single pelagic gillnet (as
described in Sec. 648.81(f)(2)(ii)), from the areas and for the times
specified in paragraphs (a)(1) through (a)(4) of this section, except
as provided in paragraphs (b)(1) through (b)(3) of this section.
(1) Northeast Closure Area. From August 15-September 13 of each
fishing year, the restrictions and requirements specified in paragraph
(a) of this section apply to the Northeast Closure Area, which is the
area bounded by straight lines connecting the following points in the
order stated.
Northeast Closure Area
------------------------------------------------------------------------
Point N. Lat. W. Long.
------------------------------------------------------------------------
NE1............................ (\1\) 68 deg.55.0'
NE2............................ 43 deg.29.6' 68 deg.55.0'
NE3............................ 44 deg.04.4' 67 deg.48.7'
NE4............................ 44 deg.06.9' 67 deg.52.8'
NE5............................ 44 deg.31.2' 67 deg.02.7'
NE6............................ (\1\) 67 deg.02.7'
------------------------------------------------------------------------
\1\ Maine shoreline.
(2) Mid-coast Closure Area. From January 1-January 31, from March
1-
[[Page 43307]]
May 15, and from September 15-December 31, except as provided in
paragraph (b)(1) of this section; the restrictions and requirements
specified in paragraph (a) of this section apply to the Mid-Coast
Closure Area, which is the area bounded by straight lines connecting
the following points in the order stated.
Mid-Coast Closure Area
------------------------------------------------------------------------
Point N. Lat. W. Long.
------------------------------------------------------------------------
MC1............................ 42 deg.30' (\1\)
MC2............................ 42 deg.30' 70 deg.15'
MC3............................ 42 deg.40' 70 deg.15'
MC4............................ 42 deg.40' 70 deg.00'
MC5............................ 43 deg.00' 70 deg.00'
MC6............................ 43 deg.00' 69 deg.30'
MC7............................ 43 deg.15' 69 deg.30'
MC8............................ 43 deg.15' 69 deg.00'
MC9............................ (\2\) 69 deg.00'
------------------------------------------------------------------------
\1\ Massachusetts shoreline.
\2\ Maine shoreline.
(3) Massachusetts Bay Closure Area. From February 1-April 30,
except as provided in paragraph (b)(2) of this section, the
restrictions and requirements specified in paragraph (a) of this
section apply to the Massachusetts Bay Closure Area, which is the area
bounded by straight lines connecting the following points in the order
stated.
Massachusetts Bay Closure Area
------------------------------------------------------------------------
Point N. Lat. W. Long.
------------------------------------------------------------------------
MB1............................ 42 deg.30' (\1\),
MB2............................ 42 deg.30' 70 deg.30'
MB3............................ 42 deg.12' 70 deg.30'
MB4............................ 42 deg.12' 70 deg.00'
MB5............................ (\2\) 70 deg.00'
MB6............................ 42 deg.00' (\2\),
MB7............................ 42 deg.00' (\1\)
------------------------------------------------------------------------
\1\ Massachusetts shoreline.
\2\ Cape Cod shoreline.
(4) Cape Cod South Closure Area. From February 1-April 30, except
as provided in paragraph (b)(3) of this section, the restrictions and
requirements specified in paragraph (a) of this section apply to the
Cape Cod South Closure Area, which is the area bounded by straight
lines connecting the following points in the order stated.
Cape Cod South Closure Area
------------------------------------------------------------------------
Point N. Lat. W. Long.
------------------------------------------------------------------------
CCS1........................... (\1\) 71 deg.45'
CCS2........................... 40 deg.40' 71 deg.45'
CCS3........................... 40 deg.40' 70 deg.30'
CCS4........................... (\2\) 70 deg.30'
------------------------------------------------------------------------
\1\ Rhode Island shoreline.
\2\ Massachusetts shoreline.
(b) For the purposes of this subpart, a pinger is an acoustic
deterrent device which, when immersed in water, broadcasts a 10 kHz
( 2 kHz) sound at 132 dB ( 4 dB) re 1
micropascal at 1 m, lasting 300 milliseconds ( 15
milliseconds), and repeating every 4 seconds ( .2 seconds).
An operating and functional pinger must be attached at the end of each
string of the gillnets and at the bridle of every net within a string
of nets.
(1) Vessels, subject to the restrictions and regulations specified
in paragraph (a) of this section, may fish in the Mid-coast Closure
Area from September 15 through December 31 of each fishing year,
provided that pingers are used in accordance with the requirements of
paragraph (b) of this section.
(2) Vessels, subject to the restrictions and regulations specified
in paragraph (a) of this section, may fish in the Massachusetts Bay
Closure Area from February 1 through the last day of February and from
April 1-April 30 of each fishing year, provided that pingers are used
in accordance with the requirements of paragraph (b) of this section.
(3) Vessels, subject to the restrictions and regulations specified
in paragraph (a) of this section, may fish in the Cape Cod South
Closure Area from February 1 through the last day of February and from
April 1-April 30 of each fishing year, provided that pingers are used
in accordance with the requirements of paragraph (b) of this section.
[FR Doc. 97-21403 Filed 8-12-97; 8:45 am]
BILLING CODE 3510-22-P