[Federal Register Volume 63, Number 204 (Thursday, October 22, 1998)]
[Proposed Rules]
[Pages 56596-56601]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-28269]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 227

[Docket No. 921232-2332; I.D. 092192B]


Endangered and Threatened Species; Proposed Threatened Status for 
the Gulf of Maine Population of Harbor Porpoise

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

ACTION: Proposed rule; reopening of comment period.

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SUMMARY: National Marine Fisheries Service (NMFS) is reopening the 
comment period on the proposed rule to list the Gulf of Maine/Bay of 
Fundy (GOM/BOF) harbor porpoise, (Phocoena phocoena), as a threatened 
species under the Endangered Species Act (ESA). Due to the passage of 
time since the close of the previous comment period, the availability 
of new/additional information and the desire to review the best 
scientific information available during the decision-making process, 
the comment period is being reopened.

DATES: Comments must be received by November 23, 1998.

ADDRESSES: Comments, requests for copies of this notice or a complete 
list of references should be addressed to the Chief, Marine Mammal 
Division (PR2), Office of Protected Resources, National Marine 
Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910.

FOR FURTHER INFORMATION CONTACT: Margot Bohan, F/PR2, NMFS, (301) 713-
2322, Laurie Allen, Northeast Region, NMFS, (978) 281-9291, or Kathy 
Wang, Southeast Region, NMFS, at (727) 570-5312.

SUPPLEMENTARY INFORMATION:

Background

    On January 7, 1993, NMFS published a proposed rule (with a 90-day 
comment period) to list the GOM population of harbor porpoise as 
threatened under the ESA (58 FR 3108). The listing was proposed in 
response to an ESA petition submitted by the Sierra Club Legal Defense 
Fund, on behalf of the International Wildlife Coalition and 12 other 
organizations (notice of receipt of petition to list published on 
December 13, 1991 (56 FR 65044). It was also based on NMFS' research 
findings at the time, which demonstrated that (a) the rate of bycatch 
of harbor porpoise in commercial gillnet fisheries (extending from the 
Bay of Fundy, Canada, south throughout the Gulf of Maine) might reduce 
this population to the point where it would become threatened 
throughout all or a portion of its range and that (b) there were no 
regulatory measures in place to reduce this bycatch.
    Following publication of the proposed rule, NMFS received several 
comments requesting that public hearings be held throughout New 
England. In response to these requests, NMFS extended the comment 
period on the proposed rule until August 7, 1993 (58 FR 17569, April 5, 
1993).
    During the extended comment period, NMFS completed analyses of 
sighting data from the 1992 porpoise abundance surveys and analyses of 
the 1992 observer data used to determine total estimated bycatch in the 
GOM gillnet fishery. These data were presented and discussed at a 
meeting of the New England Fishery Management Council (NEFMC) 
Groundfish Committee, Harbor Porpoise Subgroup, on June 16, 1993. After 
the Harbor Porpoise Subgroup meeting, NEFMC forwarded comments to NMFS 
requesting a 6-month extension of the final decision-making period on 
the proposed rule to

[[Page 56597]]

list harbor porpoise. An extension was believed to be appropriate 
because, according to the NEFMC and others present at the June 16 
meeting, the data presented by NMFS cast doubt on whether the GOM/BOF 
porpoise population was distinct and, thus, was a species under the 
ESA.
    Under section 4 of the ESA, if there is a substantial disagreement 
regarding the sufficiency or accuracy of the available data relevant to 
the determination or revision concerned, NMFS may extend the 1-year 
period of determination. On November 8, 1993 (58 FR 59230),in 
accordance with this provision, the date for the final determination on 
the proposal was extended for 6 months to allow for further review of 
the bycatch trend, analysis of the 1993 bycatch data prior to final 
determination, and further consideration of all data, including the 
abundance survey data, relevant to the final determination. NMFS 
reopened the comment period for an additional 30 days following 
completion of these analyses (59 FR 36158, July 15, 1994) to close on 
August 11, 1994.
    In the meantime, the New England Harbor Porpoise Working Group 
(HPWG) met on July 21, 1994, to discuss the 1992 bycatch data under 
consideration with regard to the ESA listing proposal. The HPWG, formed 
in 1990, was a group of fishermen, environmentalists, and scientists 
whose purpose was to define the extent of the harbor porpoise problem 
and to identify solutions to reduce the incidental take of harbor 
porpoise in gillnets while minimizing the impacts on the fishery. The 
HPWG recommended that the updated bycatch estimates should be more 
fully explained so that public review and comment could provide more 
meaningful input to NMFS prior to the final listing determination. NMFS 
prepared a document in August 1994 that addressed HPWG concerns. Given 
that the comment period on the proposed listing was scheduled to close 
on August 11, 1994, and that this would not allow enough time for 
public review of the NMFS document regarding HPWG concerns, the comment 
period on the proposed rule was further extended until September 11, 
1994 (59 FR 41270). NMFS had not yet made a final determination when, 
in fiscal year 1996, Congress imposed a 1-year moratorium on listing 
species under the ESA.
    The Agency has not yet issued a final determination. The final 
determination will need to consider new population abundance and 
bycatch data, NEFMC/NMFS' ongoing fishery management efforts to reduce 
harbor porpoise bycatch, and the progress expected through the Marine 
Mammal Protection Act (MMPA) Section 118 Take Reduction Team process. 
Since publication of the proposed rule, the following information has 
become available to supplement our understanding of the species' status 
and factors affecting the species.

Stock Definition and Geographic Range Data

    Recent analyses involving mitochondrial DNA (Wang, 1996), 
organochlorine contaminants (Westgate, 1997), heavy metals (Johnston, 
1995), and life history parameters (Read and Hohn, 1995) support the 
currently accepted hypothesis that there are four separate populations 
in the western North Atlantic: the Gulf of Maine/Bay of Fundy, Gulf of 
St. Lawrence, Newfoundland, and Greenland populations.

Abundance Data

    Three abundance surveys were conducted during the summers of 1991, 
1992, and 1995. The population estimates were 37,500 harbor porpoises 
in 1991 (coefficient of variation (CV) = 0.29, 95% confidence interval 
(CI) = 26,700-86,400) (Palka, 1995a), 67,500 harbor porpoises in 1992 
(CV = .23, 95 percent CI = 32,900-104,600) (Palka, 1996), and 74,000 
harbor porpoises in 1995 (CV = 0.20, 95 percent CI = 40,900-109,100) 
(Palka, 1996). The inverse variance weighted-average abundance estimate 
was 54,300 harbor porpoises (CV = 0.14, 95 percent CI = 41,300-71,400). 
Possible reasons for inter-annual differences in abundance and 
distribution include experimental error and inter-annual changes in 
water temperature and availability of primary prey species (Palka, 
1995b).

Population Viability Analysis

    Several recent analyses have concluded, using various measures, 
that the current level of mortality/bycatch of GOM/BOF harbor porpoise 
is too high. Current bycatch/mortality levels exceed the calculated PBR 
for the population, which is why the population has been designated as 
``strategic'' under the MMPA. Additionally, a recent uncertainty 
analysis (Caswell et al., In press) concluded that current rates of 
bycatch/mortality are a threat to the GOM/BOF harbor porpoise 
population. Neither of these analyses, however, directly calculates the 
risk of extinction to the population that is relevant for consideration 
of listing under the ESA. To directly examine the potential risk of 
extinction of GOM/BOF harbor porpoise, a population viability analysis 
(PVA) was recently prepared (Preliminary analyses, PR2 draft report). A 
PVA is used to estimate future trends of a population to estimate the 
probability of extinction of the population given certain assumptions. 
Using 1991, 1992, and 1995 abundance data and 1992-1996 bycatch data, 
stochastic population dynamics models of the GOM/BOF harbor porpoise 
population were developed to evaluate the probability of persistence of 
the population over the foreseeable future (the next 20 to 100 years). 
Each of the models predicted a very high probability of extinction 
within 100 years under the current levels of mortality/bycatch, whereas 
the probability of extinction within 20 years was estimated to be low. 
Reducing the current mortality/bycatch level by one-half would 
decrease, but not eliminate, the probability of extinction in 100 
years, but was estimated to eliminate any probability of extinction 
within 20 years. Finally, reducing the current mortality/bycatch to 
one-quarter of the current level was estimated to make the risk of 
extinction within 100 years very low.

Supplemental Summary of ESA Factors Affecting the Species

    Species may be determined to be threatened or endangered due to one 
or more of five factors described in section 4(a)(1) of the ESA. These 
factors are discussed here, as they apply to the GOM/BOF harbor 
porpoise in light of additional/new information that has become 
available since the species was originally proposed for listing. This 
information is intended to supplement the information on the status of 
the species contained in the proposed rule.

A. The Present or Threatened Destruction, Modification, or Curtailment 
of Habitat or Range

    Although the shoreline bordering the nearshore habitat of this 
species along the eastern U.S. coastline is developed in many areas and 
is potentially threatened with further destruction or physical 
modification, there is no new/additional evidence to indicate that such 
modification or destruction has contributed to a decline of this 
population or that the range of this species has changed significantly 
as a result of habitat loss. This factor was not a basis for the 
proposed listing.

B. Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes

    One of the principal factors for proposing to list the GOM/BOF 
population of harbor porpoise as

[[Page 56598]]

threatened under the ESA was the level of harbor porpoise bycatch in 
commercial fisheries in the GOM/Bay of Fundy/Mid-Atlantic. GOM/BOF 
harbor porpoise takes have been documented in the U.S. New England 
multispecies sink gillnet, Mid-Atlantic coastal gillnet, and Atlantic 
pelagic drift gillnet fisheries, and in the Canadian Bay of Fundy sink 
gillnet fishery and herring weir fishery. The average annual mortality 
estimate from 1992 to 1996 for the above U.S. fisheries is 1,667 (CV = 
0.09) harbor porpoise. The average annual mortality estimate in Canada 
from 1993 to 1996 is 162 harbor porpoise.
    Recent data on incidental takes in U.S. fisheries are available 
from observer programs monitoring the New England multispecies sink 
gillnet fishery, U.S. Atlantic coastal gillnet fisheries, the Atlantic 
pelagic drift gillnet fishery, the North Atlantic bottom trawl fishery, 
Canada's Bay of Fundy sink gillnet fishery, and Canada's herring 
fishing weirs.
    New England multispecies sink gillnet fishery: Most of the harbor 
porpoise takes in U.S. fisheries are from the New England multispecies 
sink gillnet fishery. In 1990, NMFS started an observer program to 
investigate marine mammal takes in this fishery. Between 1990 and 1996, 
362 harbor porpoise mortalities related to this fishery were observed. 
In 1993, there were approximately 349 full and part-time vessels in the 
New England multispecies sink gillnet fishery, which covered the Gulf 
of Maine and southern New England. An additional 187 vessels were 
reported to occasionally fish in the Gulf of Maine with gillnets for 
bait or personal use; however, these vessels were not covered by the 
observer program (Walden, 1996) and their fishing effort was not used 
in estimating mortality. Observer coverage in terms of trips has been 
1, 6, 7, 5, 7, 5, and 4 percent for years 1990 to 1996, respectively. 
Annual estimates of harbor porpoise by-catch in the New England 
multispecies sink gillnet fishery reflect seasonal distribution of the 
species and of fishing effort. By-catch estimates include a correction 
factor for the under-recorded number of by-caught animals that occurred 
during unobserved hauls on trips with observers on the boat, when 
applicable. Need for such a correction became evident following a 1994 
re-analysis of data from the sea sampling program indicating that, for 
some years, by-catch rates from unobserved hauls were lower than for 
observed hauls (Palka, 1994; CUD, 1994; and Bravington and Bisack, 
1996). These revised by-catch estimates replace those published earlier 
(Smith et al., 1993). These estimates remain negatively biased because 
they do not include harbor porpoises that may have fallen out of the 
net while still underwater. This bias cannot be quantified at this 
time. Estimated annual by-catch (CV in parentheses) from this fishery 
during 1990-1996 was 2,900 in 1990 (0.32), 2,000 in 1991 (0.35), 1,200 
in 1992 (0.21), 1,400 in 1993 (0.18) (Bravington and Bisack 1996; CUD 
1994), 2100 in 1994 (0.18), 1400 in 1995 (0.27) (Bisack, 1997a), and 
1200 (0.23) in 1996. Average estimated harbor porpoise mortality and 
serious injury in the New England multispecies sink gillnet fishery 
during 1992-1996 was 1,460 (0.10).
    Differential mortality by age or sex in animals collected before 
1994 was not evident in U.S. or Canadian gillnet fisheries; no pattern/
propensity could be discerned based on available data. In addition, 
substantial inter-annual variation in the age and sex composition of 
the by-catch existed (Read and Hohn, 1995). However, with a larger 
sample, from the harbor porpoises that were examined by necropsy or 
from tissues received from sea sampling observers (n=171 between 1989 
and 1997), the sex ratio is now 0.34 females per male (A. Read, pers. 
comm.). Investigations are currently underway to determine spatial-
temporal patterns in the sex ratio.
    Two preliminary experiments, using acoustic alarms (pingers) 
attached to gillnets, that were conducted in the Gulf of Maine during 
1992 and 1993 took 10 and 33 harbor porpoises, respectively. During 
fall 1994, a controlled scientific experiment was conducted in the 
southern Gulf of Maine where all nets with and without active pingers 
were observed (Kraus et al. 1997). In this experiment, 25 harbor 
porpoises were taken in 423 strings with non-active pingers (controls), 
and two harbor porpoises were taken in 421 strings with active pingers. 
In addition, 17 other harbor porpoises were taken in nets with pingers 
that were not in the experiment. During 1995 to 1996, experimental 
fisheries were conducted where all nets in a designated area used 
pingers and only a sample of the nets were observed. During November 
through December 1995, the experimental fishery was conducted in the 
southern Gulf of Maine (Jeffreys Ledge) region where no harbor 
porpoises were observed taken in 225 pingered nets. During April 1996, 
three other experimental fisheries occurred. In the Jeffreys Ledge 
area, in 88 observed hauls using pingered nets, nine harbor porpoises 
were taken. In the Massachusetts Bay region, in 171 observed hauls 
using pingered nets, two harbor porpoises were taken. And, in a region 
just south of Cape Cod, in 53 observed hauls using pingered nets, no 
harbor porpoises were taken. All takes from pingered nets were added 
directly to the estimated total bycatch for the rest of that year in 
the rest of the fishery. As a result of seeming inconsistency in spring 
results compared to fall results, the GOMTRT recommended an additional 
scientific experiment in the spring of 1997. Again, there were similar 
mean fish catch rates and similar numbers of seals caught between all 
treatments; zero harbor porpoise were caught in nets with active 
pingers, demonstrating that pingers reduced the incidental catch of 
harbor porpoise in sink gillnets during spring (Kraus et al., 1997).
    U.S. Mid-Atlantic coastal gillnet fisheries: In July 1993, an 
observer program was initiated in the U.S. Atlantic coastal gillnet 
fishery by the Northeast Fisheries Science Center (NEFSC) Sea Sampling 
program. Twenty trips were observed during 1993. During 1994 and 1995, 
221 and 382 trips were observed, respectively. This fishery, which 
extends from North Carolina to the New York/Connecticut/Rhode Island 
border, is actually a combination of small vessel fisheries that target 
a variety of fish species, some of which operate right off the beach. 
The number of vessels in this fishery is unknown because records which 
are held by both state and Federal agencies have not been centralized 
and standardized. Observer coverage, expressed as percent of tons of 
fish landed, was 5 percent and 4 percent for 1995 and 1996. During 1995 
and 1996, respectively, 6 and 19 harbor porpoises were observed taken. 
During 1995 and 1996, observed fishing effort was concentrated off NJ 
and scattered between DE and NC from 1 to 50 miles (1500 meters) off 
the beach. All documented by-catches during 1995 and 1996 were from 
January to April. By-catch estimates were determined by using methods 
similar to that used for by-catch estimates in the New England 
multispecies gillnet fishery (Bravington and Bisack, 1996; Bisack, 
1997a). Using the observed takes, the estimated annual mortality (CV in 
parentheses) attributed to this fishery was 103 (0.57) and 311 (0.31) 
for 1995 and 1996, respectively. Average annual estimated harbor 
porpoise mortality and serious injury from the Mid-Atlantic coastal 
gillnet fishery during 1995 and 1996 was 207 (CV=0.27).
    Atlantic pelagic drift gillnet fishery: One harbor porpoise was 
observed taken from the 1991-1996 Atlantic pelagic

[[Page 56599]]

drift gillnet fishery. Although the estimated total number of hauls in 
this fishery increased from 714 in 1989 to 1,144 in 1990, effort was 
severely reduced, thereafter, with the introduction of quotas.
    Observer coverage, expressed as percent of sets observed was 8 
percent in 1989, 6 percent in 1990, 20 percent in 1991, 40 percent in 
1992, 42 percent in 1993, 87 percent in 1994, 99 percent in 1995, and 
64 percent in 1996. (The decline in observer coverage in 1996 is 
attributable to trips made by vessels that were deemed unsafe (size/
condition) for observers.) Estimates of the total by-catch, for each 
year from 1989 to 1993, were obtained using the aggregated (pooled 
1989-1993) catch rates, by strata (Northridge, 1996). Estimates of 
total annual by-catch for 1994, 1995, and 1996 were estimated from the 
sum of the observed caught and the product of the average by-catch per 
haul and the number of unobserved hauls as recorded in logbooks. 
Variances were estimated using bootstrap re-sampling techniques 
(Bisack, 1997b). Estimated annual fishery-related mortality (CV in 
parentheses) attributable to this fishery was 0.4 in 1992 (1.00), 1.5 
in 1993 (0.34), 0 in 1994, and 0 in 1996. The average estimated harbor 
porpoise mortality and serious injury in the Atlantic pelagic drift 
gillnet fishery during 1992-1996 was 0.4 (0.34) (Waring et al., in 
review).
    North Atlantic bottom trawl fishery: One harbor porpoise was 
observed incidentally captured in the North Atlantic bottom trawl 
fishery between 1989 and 1996. The animal was clearly dead prior to 
being taken by the trawl because it was severely decomposed and the tow 
duration of 3.3 hours was insufficient to allow extensive 
decomposition; therefore, there is no estimated by-catch for this 
fishery (Waring et al., in review).
    Canadian Bay of Fundy sink gillnet fishery: During the 1980s, total 
harbor porpoise by-catch in the Canadian Bay of Fundy sink gillnet 
fishery was thought to be low, based on casual observations and 
discussions with fishermen. The estimated harbor porpoise by-catch in 
1986 was 94 to 116, and, in 1989, it was 130 (Trippel et al., 1996). 
The Canadian gillnet fishery occurs mostly in the western portion of 
the Bay of Fundy during the summer and early autumn months when the 
density of harbor porpoises is the highest. Polacheck (1989) reported 
there were 19 gillnetters active in 1986; 28 active in 1987; and 21 in 
1988.
    More recently, an observer program implemented in the summer of 
1993 provided a total by-catch estimates of 424 harbor porpoises. No 
measure of variability was estimated. The observer program was expanded 
in 1994, and the by-catch was estimated to be between 80 and 120 harbor 
porpoises where the fishing fleet consisted of 28 vessels (Trippel et 
al., 1996). During 1995, due to groundfish quotas being exceeded, the 
gillnet fishery was closed during July 21 to August 31, 1995. During 
the open fishing period of 1995, 89 percent of the fishing trips were 
observed, all in the Swallowtail region. Approximately 30 percent of 
these observed trips used pingered nets. The estimated by-catch was 87 
harbor porpoises (Trippel et al., 1996). No confidence interval was 
able to be computed due to lack of coverage in the Wolves fishing 
grounds. During 1996, the Canadian gillnet fishery was closed from 
August 20 to September 30, 1996. Preliminary estimates of by-catch from 
1996 were in the range of 20 to 50 harbor porpoises. By-catch estimates 
are currently not available for the 1997 observer program.
    Canadian herring fishing weirs: Harbor porpoise takes have been 
observed in Canadian fishing weirs, though not in U.S. fishing weirs. 
However, no program has been set up to observe U.S. fishing weirs. In 
the Bay of Fundy, weirs are presently operating from May to September 
each year. Weirs are found along the southwestern shore of the Bay of 
Fundy and scattered along the western Nova Scotia and northern Maine 
coasts. There were 180 active weirs in the western Bay of Fundy and 56 
active weirs in Maine in 1990 (Read, 1994). It is unknown how many 
herring weirs currently exist in U.S. and Canadian waters. Smith et al. 
(1983) estimated that approximately 70 harbor porpoises become trapped 
annually, an average of 27 die, and the rest are released alive. At 
least 43 harbor porpoises were trapped in Bay of Fundy weirs in 1990, 
but the number killed is unknown. In 1993, after a cooperative program 
between fishermen and Canadian biologistsbegan, over 100 harbor 
porpoises were released alive, and an unknown number died (Read, 1994).

C. Disease or Predation

    There continues to be no indication, from stranding data or tissue 
analyses, that disease has had a measurable impact on GOM/BOF harbor 
porpoise. Likewise, there is no new evidence, since the proposed 
listing, to indicate that predation has contributed to the decline of 
GOM/BOF porpoise. This particular factor was not a basis for the 
proposed listing.

D. The Inadequacy of Existing Regulatory Mechanisms

    This factor and Factor B formed the basis for the proposed listing. 
Discussed here in chronological order of implementation are the 
regulatory mechanisms that have gone into effect since publication of 
the proposed rule. In addition, those proposed regulations that may go 
into effect in the near future through the MMPA Section 118 Take 
Reduction Team process are described.

Management Actions Since the Proposed Listing

    In 1994, as part of Amendment 5 to the Northeast Multispecies 
Fishery Management Plan (NE Multispecies FMP), the NEFMC proposed,under 
authority of the Magnuson Fishery Conservation and Management Act (16 
U.S.C. 1801 et seq.) a 4-year program to reduce the harbor porpoise 
bycatch off New England to 2 percent of the estimated harbor porpoise 
population size per year. To achieve this goal, the NEFMC recommended 
phasing in time and area closures to sink gillnet gear, such that take 
levels would be reduced by 20 percent each year over the 4-year period. 
NMFS adopted and implemented NEFMC's first-year closure recommendations 
on May 25, 1994 (59 FR 26972).
    In the fall of 1994, NMFS authorized and provided support for a 
cooperative experiment by New England gillnet fishermen and for 
scientists to develop methods to deter harbor porpoise away from 
fishing nets. Building on work in previous years, the experiment sought 
to evaluate the effectiveness of acoustic deterrent devices or 
``pingers'' attached to gillnets to prevent entanglement of harbor 
porpoise. The experiment was conducted in the Mid-Coast Closed Area 
(closed under Amendment 5 to the NE Multispecies FMP) off the New 
Hampshire-Massachusetts border. The result of that experiment showed 
that pingers can reduce the bycatch of porpoise substantially during 
the fall in this area (Kraus et al., 1995).
    Harbor porpoise bycatch rates increased in 1994 despite the new 
time-area gillnet fishing closures enacted by NMFS on May 25, 1994. The 
increased rate occurred before the fall area closure and occurred in 
waters that are adjacent to the closure area, in an area known as 
Jeffreys ledge. Based on this information, the NEFMC recommended 
expanding both the time and area of the fall closure around Jeffreys 
ledge. NMFS adopted a rule to do so on October 30, 1995 (60 FR 57207).
    In November 1995, NMFS adopted NEFMC's recommendations to expand

[[Page 56600]]

the closures contained in Framework Adjustment 4 to the NE Multispecies 
FMP for sink gillnet gear by implementing Framework Adjustment 14 (60 
FR 55207). Framework 14 enlarged and redefined the Mid-Coast Closure 
Area in both time and area during 1995 in an effort to achieve the 
necessary reductions in harbor porpoise bycatch. The Mid-Coast closure 
was closed to fishing with sink gillnets from March 25 through April 
25. Framework Adjustment 14 also required closure of an area in 
southern New England, south of Cape Cod, from March 1 to 30.
    Amendment 7 to the NE Multispecies FMP, implemented in July 1996, 
included a revised objective to address new provisions in the MMPA (61 
FR 27709). With Amendment 7, NMFS adopted and implemented NEFMC's 
recommendations concerning marine mammal gillnet closures as additional 
groundfish conservation closures for all types of gear other than 
gillnets capable of catching multispecies, as part of an overall 
groundfish effort reduction program. In addition, the NEFMC recommended 
the use of pingers in several experimental fisheries to evaluate their 
use as bycatch reduction tools.
    In February 1996, NMFS convened the Gulf of Maine Take Reduction 
Team (GOMTRT) to develop a plan to reduce the incidental take of harbor 
porpoise in sink gillnets (61 FR 5384). The 1994 amendments to the MMPA 
require the preparation and implementation of Take Reduction Plans 
(TRPs) for certain marine mammals stocks. The GOMTRT convened with the 
understanding that a separate take reduction team would meet to address 
the harbor porpoise bycatch problem in the Mid-Atlantic. The GOMTRT 
included representatives of the Northeast multispecies sink gillnet 
fishery, NMFS, state marine resource management agencies, NEFMC, 
environmental organizations, and academic and scientific organizations. 
The environmental organizations included the Center for Marine 
Conservation and the Humane Society of the United States. The GOMTRT 
met five times between February and July 1996 and submitted a consensus 
draft TRP to NMFS in August of 1996.
    A proposed rule to implement the GOMTRP was published on August 13, 
1997 (62 FR 43302). The proposed rule would outline a schedule of time/
area closures and periods during which acoustic deterrents or 
``pingers'' would be required for each of the established management 
areas.
    NMFS convened the Mid-Atlantic Take Reduction Team (MATRT) on 
February 25, 1997, to address the interactions between strategic marine 
mammal stocks and the Mid-Atlantic coastal gillnet fisheries (62 FR 
8428). The MATRT met five times between January 1997 and August 1997 
and delivered a draft report to NMFS on August 23, 1997. The MATRT 
report consists of the take reduction measures, both regulatory and 
non-regulatory, which the MATRT agreed to by consensus, and a 
discussion of several non-consensus issues. Because the MATRT did not 
reach consensus on the use of a pinger experiment in the Mid-Atlantic, 
it was not able to deliver a consensus TRP to NMFS.
    NMFS re-convened the GOMTRT in December 1997 to evaluate new 
bycatch data that had become available since the GOMTRP was proposed by 
NMFS (62 FR 65402). The new bycatch data suggested that the measures 
proposed under the August 13 GOMTRP proposed rule would not be 
sufficient to achieve potential biological removal (PBR) for harbor 
porpoise. NMFS reopened the public comment period on the proposed rule 
for 1-month during the deliberations of the GOMTRT. At the December 
meeting, the GOMTRT developed new recommendations and agreed on a 
number of additional measures for bycatch reduction that were presented 
to NMFS in the form of a report on January 14, 1998 (RESOLVE, 1998).
    Framework 25 to the NE Multispecies FMP (63 FR 15326, March 31, 
1998), was implemented on May 1, 1998. Framework 25 implements gillnet 
fishing closures throughout the GOM to conserve cod (Gadus morhua). 
Framework 25 implements management measures that include 1-month 
sequential closures for each of four Gulf of Maine inshore areas 
starting in Massachusetts Bay and extending to Penobscot Bay and for an 
offshore area comprising Cashes Ledge; a year-round closure 
encompassing parts of Stellwagen Bank, Jeffreys Ledge, and Wildcat 
Knoll; and a reduction in the Gulf of Maine cod landing limit.
    On September 11, 1998 (63 FR 48670), NMFS proposed a Harbor 
Porpoise Take Reduction Plan (HPTRP) to replace the GOMTRP proposed on 
August 13, 1997. The GOMTRP is proposed to be replaced due to three 
developments. First, new bycatch information became available which 
indicates that significant changes to the August 13 GOMTRP are needed 
to achieve the PBR level for harbor porpoise. Second, some of the cod 
fishery closures under Framework 25 are expected to indirectly provide 
harbor porpoise conservation. Third, the MATRT submitted its report to 
NMFS which presented new information on the level of harbor porpoise 
bycatch in the Mid-Atlantic region. The combination of these actions 
led NMFS to integrate the initially separate plans into one 
comprehensive TRP and to replace the GOMTRP proposed rule.
    The proposed HPTRP would require a wide range of management 
measures to reduce the bycatch and mortality of harbor porpoise. In the 
Gulf of Maine, the proposed HPTRP included time and area closures and 
time/area periods during which pinger use would be required in the 
Northeast, Mid-coast, Massachusetts Bay, Cape Cod south and Offshore 
Closure Areas. In the Mid-Atlantic area, the proposed HPTRP included 
time/ area closures and modifications to gear characteristics. NMFS 
expects that the proposed HPTRP will reduce bycatch to the PBR level.
    NMFS intends to issue a final rule to implement the HPTRP on or 
about December 1, 1998.

E. Other Natural or Manmade Factors Affecting its Continued Existence

    Sixty-four harbor porpoise strandings were reported from Maine to 
North Carolina between January and June 1993. Fifty of those harbor 
porpoise were reported stranded in the U.S. Atlantic region from New 
York to North Carolina between February and May. Many of the carcasses 
recovered in this area during this time period had cuts and body damage 
suggestive of net marking (Haley and Read, 1993). Five out of eight 
carcasses and fifteen heads from the strandings that were examined 
showed signs of human interactions (net markings on skin and missing 
flippers or flukes). Decomposition of the remaining animals prevented 
determination of the cause of death. Earlier reports of harbor porpoise 
entangled in gillnets in the Chesapeake Bay and along the New Jersey 
coast and reports of apparent mutilation of harbor porpoise carcasses 
raised concern that the 1993 strandings were related to a coastal net 
fishery, such as the American shad coastal gillnet fishery (Haley and 
Read, 1993).
    Between 1994 and 1996, 107 harbor porpoise carcasses were recovered 
from beaches in Maryland, Virginia, and North Carolina. Only juvenile 
harbor porpoises were present in this sample. Of the 40 harbor 
porpoises for which cause of death could be established, 25 displayed 
definitive evidence of entanglement in fishing gear. In four cases, it 
was possible to determine that the animal was entangled in monofilament 
nets (Cox et al., in press).
    Stranding data may be misleading, however, because not all of the 
marine

[[Page 56601]]

mammals that die or are seriously injured may wash ashore, nor will all 
of those that do wash ashore necessarily show clear signs of the cause 
of death. Finally, the level of technical expertise among stranding 
network personnel varies widely as does the ability to recognize signs 
that indicate the cause of death.
    Other potentially human-induced factors that may be affecting this 
harbor porpoise population include high levels of contaminants in their 
tissues. Concentrations of organochlorine contaminants from 110 GOM/BOF 
harbor porpoises were recently measured (Westgate, 1995). 
Polychlorinated biphenyl (PCB) levels, the most prominent contaminant, 
and dichloro-diphenyl trichloroethane (DDT) levels were both higher in 
the Gulf of Maine/Bay of Fundy harbor porpoises than in the Gulf of St. 
Lawrence and Newfoundland harbor porpoises, although they are now much 
lower than that found in animals 10 years ago, as reported in Gaskin et 
al. (1983). Trace metal contaminants were also measured, and it was 
found that mean concentrations of copper, zinc, and mercury were 
similar to values previously reported for harbor porpoises in other 
regions of the world (Johnston, 1995). No obvious pathology has been 
noted in more than 300 necropsies of harbor porpoises incidentally 
captured in gillnets in the Bay of Fundy (A.J. Read, unpublished data). 
Although it is not known whether these contaminants have other effects, 
the presence of these contaminants in harbor porpoise tissues does not 
appear to pose a serious threat to this population.

Critical Habitat

    NMFS has not completed the analysis necessary for the designation 
of critical habitat. A decision regarding critical habitat will be made 
in a separate rulemaking, as warranted, in accordance with the final 
listing determination.

Public Comments Solicited

    Due to the availability of new/additional information, the passage 
of time since the close of the previous comment period, and the desire 
to review the best scientific information available during the 
decision-making process, the public comment period for the proposed ESA 
listing of GOM/BOF harbor porpoise as a threatened species is being 
reopened. All comments will be considered in NMFS' final determination 
(see DATES).

    Authority: 16 U.S.C. 1531 et seq.

    Dated: October 15, 1998.
Rolland A. Schmitten,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
[FR Doc. 98-28269 Filed 10-16-98; 4:35 pm]
BILLING CODE 3510-22-F