[Federal Register Volume 63, Number 231 (Wednesday, December 2, 1998)]
[Rules and Regulations]
[Pages 66464-66490]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-31957]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 229

[Docket No. 970129015-8287-08; I.D. 042597B]
RIN 0648-AI84


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: Final rule; notice of availability of take reduction plan.

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SUMMARY: Pursuant to the Marine Mammal Protection Act (MMPA), NMFS 
issues a final rule to implement a harbor porpoise take reduction plan 
(HPTRP) in the Gulf of Maine and Mid-Atlantic waters. The HPTRP is 
contained in the HPTRP/ Environmental Assessment/Final Regulatory 
Flexibility Analysis (HPTRP/EA/FRFA), available upon request (see 
addresses below). In the Gulf of Maine, these final regulations put 
into place a series of time and area closures where pingers are 
required: in the Mid-Coast Closure Area (September 15 through May 31), 
the Massachusetts Bay and Cape Cod South Closure Areas (December 1 
through February 28/29 and April 1 through May 31) and establish a new 
closure area, the Offshore Closure Area, where pingers are required 
November 1 through May 31. A complete closure has been added in the 
Cashes Ledge Closure Area, February 1-28/29. These regulations require 
any fishermen using pingers in the closed areas where pingers are 
allowed, to receive training and be certified in pinger use. A 
certificate must be carried onboard the vessel. In the Mid-Atlantic, 
this plan closes New Jersey waters from January 1 through April 30 to 
large and small mesh gear unless gear meets the specified gear 
modifications. This plan closes southern Mid-Atlantic waters from 
February 1 through April 30 to large and small mesh gear unless gear 
meets the specified gear modifications. This plan closes New Jersey 
waters from April 1-April 20 and southern Mid-Atlantic waters from 
February 15-March 15 for large mesh gear. The region known as the New 
Jersey Mudhole is closed to small and large mesh gear from February 15-
March 15. All small and large mesh gear in the Mid-Atlantic must be 
tagged by January 1, 2000.

DATES: Effective January 1, 1999, except for Sec. 229.33 (a)(2) which 
becomes effective December 2, 1998, Sec. 229.33(a)(5) which becomes 
effective December 8, 1998, and Sec. 229.33(a)(3) and (a)(4) which 
become effective December 16, 1998.

ADDRESSES: Copies of the draft plan prepared by the Gulf of Maine Take 
Reduction Team (GOMTRT), the final report from the Mid-Atlantic Take 
Reduction Team (MATRT) and the HPTRP/EA/FRFA may be obtained from Donna 
Wieting, Office of Protected Resources, National Marine Fisheries 
Service, 1315 East-West Highway, Silver Spring, MD 20910-3226.

FOR FURTHER INFORMATION CONTACT: Donna Wieting, NMFS, 301-713-2322, or 
Laurie Allen, NMFS, Northeast Region, 978-281-9291.

SUPPLEMENTARY INFORMATION: This final rule implements a take reduction 
plan (TRP) for the Gulf of Maine (GOM) stock of harbor porpoise, a 
strategic marine mammal stock that interacts with the Northeast (NE) 
multispecies gillnet fishery and with the Mid-Atlantic coastal gillnet 
fishery. A strategic stock is a stock: (1) for which the level of 
direct human-caused mortality exceeds the potential biological removal 
(PBR) level (the maximum number of animals, not including natural 
mortalities, that may be annually removed from a marine mammal stock 
without compromising the ability of that stock to reach or maintain its 
optimum population 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. NMFS proposed listing the GOM harbor porpoise as 
threatened under the ESA (58 FR 3108, January 7, 1993), but no final 
action has been taken on that proposal.
    The NE multispecies sink gillnet fishery is a Category I fishery, 
and the Mid-Atlantic coastal gillnet fishery is a Category II fishery, 
as classified under Section 118 of the MMPA. A Category I fishery is a 
fishery that has frequent incidental mortality and serious injury

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of marine mammals. A Category II fishery is a fishery that has 
occasional serious injuries and mortalities of marine mammals.
    Section 118 of the MMPA requires NMFS to develop and implement a 
TRP to assist in the recovery or to prevent the depletion of each 
strategic stock that interacts with a Category I or II fishery. The 
immediate goal of a TRP is to reduce, within 6 months of its 
implementation, the level of mortality and serious injury of strategic 
stocks incidentally taken in the course of commercial fishing 
operations to less than the PBR levels established for such stocks. The 
long-term goal of a TRP is to reduce the level of mortality and serious 
injury of strategic stocks incidentally taken in the course of 
commercial fishing operations to a level approaching a zero mortality 
rate (ZMRG).

Stock Assessment and Incidental Takes by Fishery

    The PBR level for GOM harbor porpoise throughout their range is 483 
animals (62 FR 3005, January 21, 1997). The estimated total annual 
average mortality from the NE and Mid-Atlantic gillnet fisheries is 
2,040. This estimate is based on a 5-year (1990-1995) average mortality 
estimate of 1,833 (Waring et al., 1997) for the GOM and based on 
preliminary analysis of 1995 and 1996 data from the Mid-Atlantic of 207 
animals (Palka, unpublished data).

Take Reduction Teams (TRTs)

    NMFS convened the GOMTRT in February 1996. The goal of the GOMTRT 
was to develop a consensus draft TRP to reduce the incidental take of 
harbor porpoise in sink gillnets in the GOM to the PBR level for that 
stock within 6 months of the TRP's implementation. The GOMTRT focused 
only on bycatch off New England's coast (Maine to Rhode Island). The 
GOMTRT was convened with the understanding that a separate take 
reduction team (TRT) would address harbor porpoise bycatch in the Mid-
Atlantic.
    While the individual Teams did not specifically address whether 
measures are necessary to reach the ZMRG at this time, the TRT process 
will address the ZMRG after the initial measures have been monitored. 
NMFS and the TRT can then determine whether further reductions, if any, 
may be necessary to reach the long-term goal.
    The GOMTRT included representatives of the NE multispecies sink 
gillnet fishery, NMFS, state marine resource managers, the New England 
Fishery Management Council (NEFMC), environmental organizations, and 
academic and scientific organizations. The GOMTRT met five times 
between February and July 1996 and submitted a consensus draft TRP 
(draft GOMTRP) to NMFS in August 1996.
    Soon after NMFS received the draft GOMTRP, the NEFMC enacted 
Framework Adjustment 19 (61 FR 55774, October 29, 1996) to the NE 
Multispecies Fishery Management Plan (FMP). Based on this action, NMFS 
modified the draft GOMTRP to be consistent with Framework Adjustment 
19. NMFS published an initial proposed rule to implement a TRP for 
harbor porpoise in the GOM (62 FR 43302, August 13, 1997). The proposed 
rule to implement the GOMTRP was available for a 60-day public comment 
period.
    NMFS reconvened the GOMTRT in December 1997 to evaluate new bycatch 
data that suggested that the GOMTRP would not achieve PBR for harbor 
porpoise in the GOM. NMFS reopened the public comment period on the 
GOMTRP proposed rule for one month during the deliberations of the 
GOMTRT.
    At the December 1997 meeting, the GOMTRT 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). In their 
recommendations, the GOMTRT took into account the significant changes 
in groundfish conservation measures proposed under Framework 25 of the 
NE Multispecies FMP which partially overlapped existing marine mammal 
closures (Framework 25 was under consideration by the NEFMC during the 
GOMTRT meeting in December 1997 and was not implemented until May, 
1998). Framework 25 allowed continued use of pingers in the Mid-coast 
area from March 25 through April 25 and closed the Jeffreys Ledge 
portion of the Mid-Coast area year-round.
    The GOMTRT recommended the following measures to achieve PBR: (1) 
maintain the existing Northeast Closure from August 15 through 
September 13; (2) close Cape Cod South from March 1 through March 31; 
(3) close Massachusetts Bay from March 1 through March 31; (4) close 
the Mid-Coast area from March 24 through April 26; (5) require pingers 
from September 15 through March 24 and April 26 through May 31 in the 
Mid-Coast area; (6) require pingers from September through May in the 
Cape Cod South area; (7) require pingers the months of February and 
April in the Massachusetts Bay area; and (8) require pingers September 
1 through May 31 in the Offshore area.
    In February 1997, NMFS convened the MATRT to address the incidental 
bycatch of harbor porpoise in Mid-Atlantic gillnet fisheries (from New 
York through North Carolina). The MATRT included representatives of the 
Mid-Atlantic coastal gillnet fisheries, NMFS, state marine resource 
managers, the Mid-Atlantic Fishery Management Council (MAFMC), the 
NEFMC, the Atlantic States Marine Fisheries Commission (ASMFC), 
environmental organizations, and academic and scientific organizations. 
The MATRT submitted a report to NMFS on August 25, 1997, which included 
both consensus and non-consensus recommendations.
    The MATRT recommended management measures specific to the two 
predominant coastal gillnet fisheries, i.e., the monkfish and dogfish 
fisheries. It recommended that the timeframe for effectiveness be from 
January through April off New Jersey and from February through April 
off the southern Mid-Atlantic (Delaware, Maryland, Virginia and North 
Carolina). The management measures that the team suggested focused on 
those gear characteristics that demonstrated the most potential for 
bycatch reduction. For the monkfish fishery, these measures included 
reduced floatline length, larger twine size, tie downs, and a limit of 
80 nets. For the dogfish fishery, the measures included reduced 
floatline length, larger twine size, and a 45-net limit. Additionally, 
the MATRT recommended time/area closures for the monkfish fishery in 
New Jersey waters (February 15-March 15) and in the southern Mid-
Atlantic (20 day block between February and April, chosen by the 
fishermen) but no time/area closures for the dogfish fishery.
    Both the GOMTRT and the MATRT recommended certain non-regulatory 
measures. The non-regulatory aspects of the HPTRP are discussed in the 
HPTRP/EA/FRFA. The following summarizes NMFS efforts to address the 
concerns raised by the GOMTRT and MATRT:
    (1) As part of the HPTRP, NMFS is developing a research plan to 
assess long-term ecosystem impacts from widespread use of pingers.
    (2) As part of a monitoring strategy for the HPTRP, NMFS is working 
with the ASMFC on the Atlantic Coastal Cooperative Statistics Program 
to provide managers with more timely bycatch and fisheries information 
on the Atlantic Coast.
    (3) NMFS is investigating options for providing support to 
fishermen for pinger technology.
    (4) NMFS began pinger training and certification for all fishermen 
who wish

[[Page 66466]]

to use pingers in the closed areas in September 1998.
    (5) NMFS has expanded its capabilities to do analytical research by 
hiring additional staff for its Northeast Fisheries Science Center 
(NEFSC). Additional resources will be considered during normal funding 
and staffing allocation discussions in light of other agency 
responsibilities.
    (6) NMFS has expanded its capabilities to observe the Mid-Atlantic 
fisheries by exploring alternative platforms to obtain a better 
characterization of coastal fisheries that were not accessible to the 
traditional Sea Sampling Observer Program.
    (7) The HPTRP provides for voluntary skipper education workshops in 
the Mid-Atlantic.
    (8) Although NMFS has expanded its capabilities with respect to 
observing the Mid-Atlantic fisheries, NMFS will continue to increase 
observer coverage at levels consistent with a valid sampling scheme 
because of limited resources. Additionally, NMFS is expanding 
observation from alternative platforms and is increasing responsiveness 
to observed strandings.
    To provide the necessary coordination between the Teams and 
consistency across the regions, NMFS, at the recommendation of the 
GOMTRT, included several members of the GOMTRT on the MATRT. NMFS will 
strive to ensure that data on bycatch and effort in both areas will be 
shared with both teams. A specific discussion of these recommendations 
and NMFS'' response are contained in the HPTRP/EA/FRFA.

Proposed Rule/HPTRP

    NMFS combined the GOMTRP and MATRT report into one proposed HPTRP 
and proposed rule which was published on September 11, 1998 (63 FR 
48670). The proposed HPTRP was based in large part on recommendations 
by the GOMTRT and the MATRT and was divided into a GOM component and a 
Mid-Atlantic component. NMFS is considering whether or not the two 
Teams should continue to meet separately or whether some or all of the 
meetings should be combined.

Final Rule/HPTRP

Gulf of Maine Component

    Table 1 sets forth the HPTRP management measures for the Gulf of 
Maine in the final rule (see Figure 1).

 Table 1.--Gulf of Maine Time/Area Closures to Gillnet Fishing and Periods During Which Pinger Use Are Required
                                           Under the Final Rule/HPTRP
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Northeast Area:
    August 15-September 13.................  Closed.
Mid-Coast Area:
    September 15-May 31....................  Closed, gillnet with pingers allowed.
Massachusetts Bay Area:
    December 1-February 28/29..............  Closed, gillnet with pingers allowed.
    March 1-31.............................  Closed.
    April 1-May 31.........................  Closed, gillnet with pingers allowed.
Cape Cod South Area:
December 1--February 28/29                   Closed, gillnet with pingers allowed.
    March 1-31.............................  Closed.
    April 1-May 31.........................  Closed, gillnet with pingers allowed.
Offshore Area:
    November 1-May 31......................  Closed, gillnet with pingers allowed.
Cashes Ledge Area:
    February 1-28/29.......................  Closed.
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    The HPTRP regulations maintain the comprehensive approach of the 
proposed rule.
    The proposed HPTRP would have closed the Northeast Area to sink 
gillnet fishing from August 15 through September 13 of each year. The 
final rule makes no changes to this measure.
    The proposed HPTRP did not include a complete closure in the Mid-
Coast Area but required pingers from September 15 through May 31. The 
final rule represents no changes from the proposed rule.
    The proposed HPTRP provided that Massachusetts Bay remain closed in 
March, the time of year during which most known takes in the region 
were recorded, and proposed that pingers be required during February, 
April, and May to reduce the take of harbor porpoise in other spring 
months. Based on public comments and to address data which showed 
observed takes in the winter months in Massachusetts Bay, pinger 
requirements are extended to include the months of December and January 
in this final rule.
    In the South Cape area, the proposed HPTRP would have required 
pingers from September 15 through February, and then again in April to 
account for uncertainty in estimated bycatch in this area throughout 
the year. Based on public comments and on the lack of observed takes in 
the fall months, this final rule changes the beginning of the time 
period for pinger requirements from September 15 to December 1. To 
account for observed takes that have occurred later in the spring, the 
HPTRP has extended the pinger requirement to include May 1 through 31. 
These changes are expected to ease the burden (both in economic terms 
and in terms of the additional effort expended to use pingers) on the 
South Cape fishermen by allowing for more fishing time without pingers. 
This change is not expected to affect projected bycatch reduction from 
the South Cape area because, based on current observer data, the plan 
will achieve the same or greater bycatch reduction in May, when takes 
have been observed, than in the fall months.
    The proposed HPTRP provided for closing the Cashes Ledge section of 
the Offshore area in February and would have required pingers from 
September 15 through May in the broader Offshore area. The final HPTRP 
does not change the Cashes Ledge closure in February but modifies the 
time of pinger use to begin November 1, rather than September 15, based 
on lack of observed takes between September 15 through October 31. 
These changes ease the burden (both in economic terms and in terms of 
the additional effort expended to use pingers) on New Hampshire and 
Maine fishermen during the times of no observed bycatch. This change 
should not affect overall plan effectiveness because, based on current 
observer data, little bycatch reduction is expected in September and 
October in the Offshore area.

Mid-Atlantic Component

    Tables 2 and 3 set forth the HPTRP management measures for the 
large mesh (includes gillnet with mesh size of greater than 7 inches 
(17.78cm) to 18 inches (45.72cm)) and small mesh (includes gillnet with 
mesh size of greater than 5 inches (12.7 cm) to less than 7 inches 
(17.78cm)) gillnet fisheries in the Mid-Atlantic (see Figure 2).

Table 2.--Management measures for the Large mesh Gillnet Fishery (Includes Gillnet With Mesh Size Greater Than 7
             Inches (17.78cm) to 18 Inches (45.72cm)) in the Mid-Atlantic Under the Final Rule/HPTRP
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Floatline Length:
    New Jersey Mudhole..............  Less than or equal to 3,900 ft (1188.7 m).
    New Jersey Waters (excluding the  Less than or equal to 4,800 ft (1463.0 m).
     Mudhole).
    Southern Mid-Atlantic waters....  Less than or equal to 3,900 feet (1188.7 m).
Twine Size
    All Mid-Atlantic Waters.........  Greater than or equal to .90 mm (.035 inches).
Tie Downs
    All Mid-Atlantic Waters.........  Required.
Net Cap
    All Mid-Atlantic Waters.........  80 nets.
Net Size............................  A net must be no longer than 300 feet (91.4m) long.
Net Tagging.........................  Requires all nets to be tagged by January 01, 2000.
Time/Area Closures:
    New Jersey waters to 72 deg.30'   Closed from April 1-April 20.
     W. longitude (including the
     Mudhole).
    New Jersey Mudhole..............  Closed from February 15--March 15.
    Southern Mid-Atlantic waters      Closed from February 15-March 15.
     (MD, DE, VA, NC) to 72 deg.30'
     W. longitude.
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  Table 3.--Management Measures for the Small Mesh Gillnet Fishery (Includes Gillnet with Mesh Size of Greater
     Than 5 Inches (12.7 cm) to Less Than 7 Inches (17.78cm)) in the Mid-Atlantic Under the Final Rule/HPTRP
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Floatline Length:
    New Jersey waters...............  Less than or equal to 3,000 feet (914.4 m).
    Southern Mid-Atlantic waters....  Less than or equal to 2,118 feet (645.6 m).
Twine Size:
    All Mid-Atlantic waters.........  Greater than or equal to .81 mm (.031 inches).
Net Cap:
    All Mid-Atlantic waters.........  45 nets.
Net Size............................  A net must be no longer than 300 feet (91.4m) long.
Net Tagging.........................  Requires all nets to be tagged by January 1, 2000.
Time/Area Closures:
    New Jersey Mudhole..............  Closed from February 15-March 15.
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    The Mid-Atlantic component of the HPTRP is generally consistent 
with the proposed HPTRP, except as discussed below. The gear 
modifications in the final HPTRP remain the same as in the proposed 
HPTRP. The effective period remains the same as described in the 
proposed HPTRP: January 1 through April 30 for New Jersey waters, and 
February 1 through April 30 for southern Mid-Atlantic waters. 
Additionally, stratification by fishery based on mesh size remains the 
same as in the proposed HPTRP.
    The most significant change from the proposed HPTRP is the 
application of the management measures within the small mesh fishery. 
In the proposed plan, the small mesh fishery was defined as all those 
fisheries employing mesh size of less than 7 inches (17.78 cm). 
Stranding data and related bycatch information suggest that certain 
small mesh fisheries could be a source of harbor porpoise bycatch. This 
information, along with the assumptions inherent in the bycatch 
analyses, led NMFS to propose that these fisheries be subject to some 
of the regulatory measures in the proposed HPTRP.
    Based upon further review and as the result of public comment, NMFS 
has decided to exclude fisheries with mesh size 5 inches (12.7 cm) and 
less from the HPTRP regulations at this time. The reasons for this are 
that the number of observed takes in these mesh sizes currently 
available in the data is limited. However, given the concerns 
associated with the possible bycatch from these fisheries discussed 
above, NMFS will reevaluate the observer and stranding data, 
particularly from alternative platforms, for these fisheries in the 
spring, 1999 and address the issue of mesh sizes 5 inches (12.7 cm) or 
less at that time.
    Given the models and assumptions used in the subfishery bycatch 
analysis and the predicted effect of using the recommended gear 
characteristics based on small and large mesh gillnet categories, 
excluding the mesh sizes of 5 inches (12.7 cm) and less at this time 
does not change the expected 79 percent or greater reduction in harbor 
porpoise bycatch in the Mid-Atlantic.
    In addition to the 30-day public comment period and publication of 
the proposed rule in the Federal Register, NMFS issued a press release 
announcing the availability of the proposed rule and summarizing the 
major issues in the proposed rule. The final rule will govern fishing 
by the NE Multispecies and Mid-Atlantic gillnet fisheries in the GOM 
and Mid-Atlantic. NMFS expects that implementation of this rule will 
reduce within 6 months of its implementation the bycatch of harbor 
porpoise to below their PBR level.

Response to Comments

Comments on the Take Reduction Team Process and General Comments

    Comment 1: One commenter stated that each country and each region 
should be treated equally and be separately responsible for specified 
shares of PBR and bycatch reduction. This commenter noted that 
combining the two plans raises the issue of how NMFS will allocate PBR 
between the two jurisdictions in the future. Since the Mid-Atlantic 
accounts for only 10 percent of the mortality, this is unfair to them. 
Three commenters recommended keeping PBR only on a jurisdictional 
basis. One commenter recommended reconvening both the GOMTRT and MATRT 
to address the allocation issue.
    Response: NMFS disagrees that there is an allocation problem. Each 
region is treated separately for respective shares of PBR. This issue 
was discussed in detail during the Mid-Atlantic TRT meetings. Combining 
the two plans into one final rule does not change the basis for the 
reductions accepted by the separate TRTs. Specifically, each region 
agreed to reduce its respective bycatch by 79 percent of the estimated 
level of bycatch for that region. For example, if the Mid-Atlantic 
region takes only an estimated 200 animals, they need to achieve a 79 
percent reduction which translates to a reduction of 158 animals. If 
the GOM has an estimated take level of 1800 animals, they also need to 
achieve a 79 percent reduction, but this translates to a reduction of 
1422 animals. These are equal reductions based on the respective levels 
of bycatch; i.e., one region is not compensating for the other. This 
strategy is both equitable and fair and was accepted by the GOMTRT and 
MATRT.
    Comment 2: One commenter noted that the Federal Register 
publication notice for the proposed rule (63 FR 48671) indicated that 
Canadian sink gillnet takes are approximately 100 animals, and the 
HPTRP will achieve the necessary PBR reduction including the Canadian 
takes. The commenter asked how NMFS will incorporate fluctuations in 
Canadian interaction levels in the HPTRP. The commenter also asked how 
a higher level of lethal Canadian interactions would affect the annual 
HPTRP review and why an approximate count is acceptable for Canadian 
take whereas the total PBR estimate is a firm point estimate. Another 
commenter recommended that NMFS strongly encourage efforts to request 
the Department of Fisheries and Oceans (DFO), Canada, to consider the 
HPTRP.
    Response: Under the MMPA, takes throughout the range of the species 
are considered in developing management measures in the TRPs. Since the 
HPTRT is expected to meet semi-annually the first year, and annually 
thereafter, changes in information on Canadian takes, as available, can 
be evaluated by the TRT at the same time U.S. bycatch information is 
discussed and recommendations made on all these issues at the same 
time. NMFS has detailed data on both bycatch in U.S. fisheries and 
Canadian fisheries. This allows for a more accurate estimate of total 
bycatch in U.S. and Canada fisheries. For Canadian takes, the U.S. 
receives information from the Canadian Government on bycatch in its 
fisheries. NMFS has already met with representatives of the Canadian 
government to discuss the HPTRP in U.S. waters and encourage the 
Canadians to participate in reducing the overall fishing mortality on 
this stock. As a result, Canada developed its Harbor Porpoise 
Conservation Plan and has implemented an observer program which has 
documented a continuous reduction in bycatch in their Bay of Fundy 
gillnet fisheries.
    Comment 3: Five commenters asked how NMFS will incorporate the 
anticipated harbor porpoise conservation benefits when the FMPs for 
monkfish and spiny dogfish are published and the American shad 
intercept gillnet fishery is phased out. Another commenter noted that 
upcoming management plans on both dog sharks and monkfish have not been 
considered by NMFS in constructing the HPTRP. This commenter stated 
that the most obvious problem with the HPTRP is the lack of information 
on the restrictions proposed by the FMPs for monkfish and spiny dogfish 
and their anticipated conservation benefits to harbor porpoise. Another 
commenter criticized NMFS for not considering the protection that will 
be afforded under a number of FMPs, including Atlantic Sturgeon, 
Monkfish, Dogfish, Bluefish Amendment 1, Amendment 1 to Shad and River 
Herring.
    Response: NMFS generally discussed the impacts of the proposed FMPs 
for monkfish and dogfish in the proposed HPTRP. NMFS did not analyze 
the proposed FMP management measures in detail because, during the 
development of the proposed HPTRP, these plans were not yet final. 
Given that FMPs may change significantly prior to a final vote by the 
responsible Fishery Management

[[Page 66471]]

Council (FMC), NMFS felt it unwise and impractical to guess at the 
final FMC recommendations. However, concurrent with the development of 
the HPTRP proposed rule, the Monkfish FMP was voted on and a final FMP 
package with a preferred alternative was submitted to NMFS on October 
27, 1998, by the NEFMC and the MAFMC. The preferred alternative, now 
under consideration by the NEFMC and the MAFMC, will provide no 
benefits to harbor porpoise conservation in the near future because the 
regulations do not become effective until May 1, 1999. Since the HPTRP 
must show a reduction in bycatch within 6 months of implementation and 
the majority of harbor porpoise bycatch occurs during the months of 
January through April, the HPTRP must go into effect in early January 
1999 to reduce impacts to harbor porpoise in the spring 1999 fishery.
    If the Monkfish FMP goes into effect, the expected harbor porpoise 
conservation benefits appear to be the result of overall effort 
reduction through Days-At-Sea and Total Allowable Catch restrictions. 
However, any conservation benefits may be negated as a result of the 
relatively high gill net limits set by the FMP. According to the MATRT, 
the average number of nets employed by Mid-Atlantic fishermen is 80 
nets. The Monkfish FMP, if approved, would allow fishermen to use up to 
160 nets.
    The biggest differences between the Monkfish FMP and the HPTRP are 
in the mandatory time outs. The 20-day block during April, May, and 
June required under the Monkfish FMP would have little additional 
reduction in harbor porpoise bycatch. If the fishermen take their 20-
day block (under the Monkfish FMP) in early April in New Jersey, there 
could be a conservation benefit--but it would mirror only what is 
currently required in the HPTRP and would not result in any additional 
benefits. If the 20 days are taken in May or June in New Jersey or 
April through June in the southern Mid-Atlantic, there will be little 
if no benefit to harbor porpoise because harbor porpoise are not 
usually taken in those areas at those times.
    Regarding the other upcoming FMP, the Dogfish FMP is still under 
development; therefore it is unclear what the Councils' preferred 
alternative is regarding that plan. NMFS believes it is premature to 
analyze the possible impacts of the Dogfish FMP without a preferred 
alternative. The other plans are still either in the development phase 
or will not go into effect until after the spring 1999 fishery, thereby 
not providing any clear benefits to harbor porpoise in the required 6-
month time frame.
    As stated in the proposed rule, the HPTRP measures are expected to 
be reevaluated on a yearly basis. NMFS will consider any new 
regulations that may affect harbor porpoise or the implementation of 
this plan and evaluate whether management measures need to be changed 
at that time.
    Comment 4: One commenter recommended that the HPTRT be convened 
semiannually to see if the HPTRP is meeting objectives.
    Response: NMFS intends to reconvene the teams semiannually the 
first year of plan implementation in order to track the plan's progress 
toward the 6-month MMPA goal. Whether or not reconvening the TRTs semi-
annually after that first year is necessary would depend on the 
circumstances.
    Comment 5: One commenter recommended that NMFS coordinate HPTRP 
development with annual FMP adjustments that will occur for the 
Multispecies, Monkfish, and possibly Dogfish FMPs. FMP evaluation will 
begin in November, and recommendations will be provided to the Council 
every December. Any changes to plans will be submitted by the Council 
to NMFS by February 1 each year, with implementation on May 1.
    Response: NMFS agrees that close coordination with the Fishery 
Management Councils on annual changes that will affect fisheries is a 
good idea. During the first year of plan implementation, the TRT will 
meet in the summer of 1999 to discuss the plan's progress and recommend 
any changes to the plan based on the spring fishery's results. In 
finalizing recommendations, NMFS would have the opportunity to 
coordinate with the Councils in the fall at the same time the Councils 
are considering adjustments for fishery management purposes.
    Comment 6: One commenter recommended that NMFS should review 
Framework 25 to see whether there are ancillary benefits to harbor 
porpoise that have not been included in the proposed rule. If Framework 
25 results in more positive benefits than projected, NMFS should 
consider reducing the 8\1/2\-month pinger requirement in the Mid-Coast 
area.
    Response: Framework 25 was evaluated using the available data to 
determine ancillary benefits to harbor porpoise reduction. The benefits 
of Framework 25 were included in the analysis to determine how much 
additional reduction was needed from the HPTRP measures (see the EA for 
detailed information). When bycatch information is reviewed for spring 
of 1999, further information will be available to evaluate the impacts 
of implementation of Framework 25 during 1997 and 1998.
    The HPTRP has an overall strategy for the entire GOM that is 
expected to reach MMPA goals for this fishery. Individual areas cannot 
be viewed in a vacuum. The Mid-Coast area has made progress in reducing 
bycatch by using pingers. Therefore, contrary to supporting a reduction 
in pinger use, this fact supports the continued use of pingers so that 
bycatch continues to remain under control. This plan will not work if 
bycatch reduction achieved in one area is replaced with bycatch 
increases in another area because mitigation measures have been 
removed.
    Comment 7: One comment supported the need for the proposed 
regulations and noted that the proposed regulations can work well with 
the FMPs developed by NEFMC and MAFMC.
    Response: NMFS agrees.
    Comment 8: One commenter stated that the process was 
inappropriately delayed and, consequently, requested an additional 
public comment period.
    Response: NMFS agrees that the process experienced delays for many 
reasons. Significant public comment was received throughout the TRT 
process, including an additional meeting in December 1997 for the GOM. 
Addressing the harbor porpoise bycatch issue has been an ongoing 
process since the early 1990s, and most of the measures in the TRT 
draft plan from 1996 had already been put into place through framework 
actions implemented under the NE Multispecies FMP. While the proposed 
rule published in September 1998 goes beyond these measures, NMFS 
determined that 30 days was sufficient for additional comments, given 
the long history of public involvement.
    Comment 9: Several commenters felt that because small mesh 
fishermen in the Mid-Atlantic were not adequately involved in the TRT 
process, any regulations affecting this segment of the fishery should 
be open to public hearings.
    Response: NMFS disagrees that the small mesh fishermen did not have 
the opportunity to be represented in the MATRT. The MATRT included a 
number of industry representatives and state fishery management 
agencies. In addition, the MATRT meetings were open to the public. 
However, many fishermen typically using this type of gear in nearshore 
fisheries in the Mid-Atlantic, while present at the start of the MATRT 
process, did not participate

[[Page 66472]]

once the MATRT agreed to address only the monkfish and dogfish 
subfisheries.
    Comment 10: One commenter complemented the Press Guide which 
explained the proposed regulations but noted that the northern and 
eastern boundaries of the Mudhole were in error.
    Response: The actual chart provided in the Press Guide was correct. 
However, NMFS agrees that the accompanying text contained errors in the 
northern and eastern boundaries. NMFS will review the Press Guide and 
revise it based on final regulations.
    Comment 11: One commenter requested that the analysis from the GOM 
pinger experiment be given to the MAFMC. The commenter stated that a 
consensus recommendation could be developed with the new results from 
the GOM experiment.
    Response: NMFS will provide the MAFMC with the results of the 1997 
pinger experiment, which can also be discussed at the next meeting of 
the MATRT.
    Comment 12: One commenter stated that combining the Mid-Atlantic 
and GOM TRTs is not a good idea. The fisheries are not the same, and 
this approach would only weaken the position fishermen hold on the 
TRTs.
    Response: NMFS agrees that the fisheries are different; that is why 
distinct strategies were maintained for each region even though both 
geographic areas were included in one set of regulations. The 
regulations would not have been different had they gone through two 
separate rulemaking processes. NMFS is considering whether or not the 
two teams should continue to meet separately or whether some or all of 
the meetings should be combined.
    Comment 13: One commenter notes that the statement ``the HPTRP is 
based in large part on recommendations in the draft GOMTRP and the 
MATRT report'' is not accurate. NMFS has expanded the terms of the 
regulation so significantly that NMFS has jeopardized any future TRT 
discussions because participants cannot be assured that their time, 
deliberations, and consensus will be honored and accepted by NMFS.
    Response: NMFS disagrees that the terms of the regulation have been 
expanded significantly from the two TRT recommendations. The GOM plan 
retained the strategy of discrete closures surrounded by larger areas 
of pinger use as recommended by the TRT at its December 1997 meeting. 
The strategy of gear modifications based on gear types that reflected 
locally prevailing practices in the Mid-Atlantic were retained. In both 
cases, some changes were made in the final regulations based on new 
information and comments received during the public comment period. The 
TRT deliberations are integral to the process and provided valuable 
insight into how these issues between stakeholders might be resolved. 
Individual team member contributions are invaluable, and the teams are 
to be fully commended for persevering through a difficult process. 
Changes made to those recommendations reflect actions considered 
necessary to meet agency obligations under the law, to reflect concerns 
of all constituents, and to be certain that regulations are 
enforceable. This process is relatively new and both TRT participants 
and NMFS have learned ways the process can be improved. NMFS agrees 
that continued efforts at communication between NMFS and the teams 
throughout the process is necessary for the process to maintain its 
integrity.
    Comment 14: One commenter questioned whether the proposed rule 
discusses the new information that has warranted the changes that NMFS 
has made from the 1997 proposed rule. The commenter stated that no 
conclusive information was presented at the December 16--17 meeting 
resulting in any consensus or recommendation from that meeting to 
warrant those changes.
    Response: Recommendations did come out of the December 16--17, 
1997, meeting, and they are reflected in the GOMTRT's report of January 
14, 1998. NMFS agreed with many of the GOMTRT's recommendations, and 
the proposed rule (September 11, 1998) incorporated most of the Team's 
recommendations. NMFS agrees that this was not a consensus report. The 
August 1997 proposed GOMTRP provided for a variety of measures, 
including requirements for fishery closures and closures with pingers 
aimed at harbor porpoise protection that were ultimately implemented 
under the Magnuson-Stevens Fishery Conservation and Management Act 
(Magnuson-Stevens Act). The 1996 bycatch data revealed that these 
measures were ineffective at reducing overall bycatch, and, based on 
this new information, NMFS concluded that the changes to the original 
proposed GOMTRP were warranted. These data and historical management 
measures are discussed in detail in the EA.
    Comment 15: One commenter stated that there is confusion because 
some areas are closed for both groundfish conservation and harbor 
porpoise protection. In some areas that are closed for harbor porpoise 
protection only, fishing with gillnets is permitted with approved 
pingers. This distinction between areas closed for harbor porpoise 
conservation and areas closed for groundfish conservation should be 
clearly articulated as a matter of general policy in the final rule. 
This would obviate the need to initiate a framework adjustment each 
time a groundfish conservation closure was shifted or lifted if it 
occurred in an area also closed for harbor porpoise protection.
    Response: Since the harbor porpoise regulations are promulgated 
under the MMPA, the regulations will remain in effect regardless of 
shifts in groundfish closures under the Magnuson-Stevens Act. However, 
the effects of changes in groundfish closures on the effectiveness of 
the HPTRP would need to be reviewed and changes made to the plan, if 
appropriate, to retain its effectiveness.
    Comment 16: One commenter recommended including a definition of 
baitnets in the rule.
    Response: A description of baitnets is provided in the regulations 
for the NE Multispecies FMP (50 CFR Sec. 648.81 (f)(2)(ii)) as ``a 
single pelagic gillnet, not longer than 300 feet (91.44 m) and not 
greater than 6 ft (1.83 m) deep, with a maximum mesh size of 3 inches 
(7.62 cm), provided that the net is attached to the boat and fished in 
the upper two thirds of the water column, the net is marked, there is 
no retention of regulated species, and there is no other gear onboard 
capable of catching NE multispecies.'' The HPTRP regulations include an 
exception for single pelagic gillnets or baitnets.
    Comment 17: One commenter noted that the capture of harbor porpoise 
in mid-water trawl fisheries has not been adequately addressed within 
the proposed rule. The commenter stated that the mid-water trawl 
fishery for Atlantic herring represents the biggest increase in fishing 
effort and is classified as a Category II fishery. The efforts of 
reducing bycatch through gillnet regulations could be negated if no 
regulatory action is implemented for the mid-water trawl fishery for 
Atlantic herring.
    Response: NMFS agrees that the mid-water trawl fishery for Atlantic 
herring has the potential to take small cetaceans. In the proposed List 
of Fisheries for 1999, the GOM and Mid-Atlantic herring mid-water trawl 
fishery are proposed as Category II, based on comparisons with other 
gear types known to take several species of small cetaceans and the 
fact that herring are an important prey item for several stocks of 
marine mammals. However, NMFS currently has no observed takes of harbor 
porpoise in this fishery, and consequently it is not included in the 
final HPTRP. Monitoring will continue through the Sea Sampling Observer

[[Page 66473]]

Program at a level consistent with the valid sampling scheme currently 
used by the program.
    Comment 18: One commenter expressed reservations about NMFS' intent 
to implement the five stated non-regulatory measures recommended by the 
GOMTRT at its December 1997 meeting. The study to evaluate habituation 
and displacement has been concluded, and the results should be 
published. A census of the gillnet fleet should be readily available 
through existing reporting requirements. The commenter also felt that 
there has been sufficient time for NMFS to investigate options for 
providing support to fishermen for pinger technology. The commenter 
questioned why these issues are not addressed with the proposed rule. 
The commenter noted that NMFS will need to have a pinger training 
course available at all times so as not to prevent potential fishermen 
access into the gillnet fishery.
    Response: One study to evaluate habituation and displacement took 
place during the summer of 1998, but a final report was not available 
at the time of the proposed rule. Results of this study will be 
published as soon as possible. The implications of this study for the 
HPTRP will be discussed at the next meeting of the TRTs in 1999.
    A census of the gillnet fleet using existing reporting measures is 
expected to occur in the near future. When the census is complete, the 
results will be reported.
    NMFS has investigated the potential for support for fishermen to 
purchase pingers but no viable options are available at this time.
    The certification program for fishermen using pingers is expected 
to be available as needed.
    Comment 19: One commenter suggested that NMFS track harbor porpoise 
by radar to alert fishermen and thereby give fishermen the opportunity 
to move nets. Another commenter suggested daily tracking of harbor 
porpoise to regulate fishing that day.
    Response: Given current technologies, it would not be feasible for 
harbor porpoise to be tracked by radar. Radar tracking poses 
significant difficulties with small cetaceans, both technically and 
practically. Additionally, because of the nature of the gillnet 
fishery, it would be impractical for fishermen to retrieve their nets 
when harbor porpoise are in the area without significantly reducing 
their catch. Daily regulations of fishing would be nearly impossible to 
administer and impractical for fishermen to comply with.
    Comment 20: One commenter suggested making the gillnets smaller.
    Response: If the comment refers to the actual size of the deployed 
nets, this approach is part of the reasoning behind the reduced 
floatline lengths in the Mid-Atlantic component of the HPTRP.
    Comment 21: One commenter suggested that fishermen should not be 
allowed to fish in the same area where harbor porpoise eat.
    Response: Although the NE multispecies and Mid-Atlantic fisheries 
are not necessarily targeting harbor porpoise prey, they do use many of 
the same feeding areas as harbor porpoise. Since restricting fishing 
away from areas of harbor porpoise feeding would severely restrict 
fishing opportunity and because it is unclear exactly where and if 
harbor porpoise feed on a regular basis, the intent of the pinger 
requirements is to allow fishermen to be in the same general area as 
harbor porpoise while minimizing interactions.
    Comment 22: One commenter suggested closing certain areas to 
fishermen, particularly during harbor porpoise mating seasons. Another 
commenter suggested generally implementing special fishing times.
    Response: The intention of the HPTRP is to close certain areas to 
fishing during times of high bycatch, i.e., when chances of interaction 
between harbor porpoise and gillnet fisheries are high. However, 
because all areas cannot be closed if a viable fishery is to exist, 
fishing during times and areas adjacent to closures can only be allowed 
if pingers are used.
    Comment 23: One commenter recommended that no fishing be allowed 
when harbor porpoise are in Maine.
    Response: The HPTRP closed the NE area, in Maine, from August 15 to 
September 13, the time period when harbor porpoise are most common in 
Maine waters.
    Comment 24: One commenter recommended that the MMPA and ESA be 
strengthened.
    Response: NMFS will reevaluate the effectiveness of the HPTRP 
management measures and the effectiveness of the MMPA to achieve harbor 
porpoise conservation in 1999. NMFS will not reevaluate the ESA with 
regard to TRPs because NMFS regards the MMPA measures sufficient for 
conservation of harbor porpoise.
    Comment 25: One commenter suggested that NMFS list harbor porpoise 
as threatened.
    Response: In 1993, NMFS proposed listing the harbor porpoise as 
threatened under the ESA in response to a petition by Sierra Club Legal 
Defense Fund on behalf of 13 other organizations. NMFS' research 
findings at that time indicated that the rate of bycatch of harbor 
porpoise in gillnet fisheries might reduce the population to the point 
where it would become threatened and that the regulatory measures in 
place to reduce this bycatch were inadequate. NMFS has not yet issued a 
final listing determination. New data, new regulations, and this rule 
to implement the HPTRP provide substantial new information for 
consideration by NMFS and the public. The proposed rule to list the GOM 
harbor porpoise as threatened under the ESA was reopened for public 
comment on October 22, 1998. The public comment period closed on 
November 23, 1998. NMFS plans to make a listing determination in the 
near future based on the new information and public comment on the 
proposed rule.

Comments on Data and Research

    Comment 26: One commenter recommended that the PBR formula be re-
assessed during the next re-authorization of the MMPA because the 
default safety parameters in the model are inaccurate and contrary to 
the available science, which indicates that harbor porpoise have an 
extremely short life span, early maturation, and a very high, 
successful reproductive rate, compared to other odontocete species.
    Response: NMFS is unaware of new scientific information that could 
be used to re-assess the default parameters. Any new, valid scientific 
information would be welcome, evaluated, and incorporated, as 
appropriate, into these assessments. However, in the absence of other 
information, the default model parameters used in the PBR formula 
represent the best available scientific information on this topic. The 
life history of harbor porpoise, among other related issues, was 
discussed in length at a meeting in 1996, the results of which are 
published by Wade and Angliss, 1997, in ``Guidelines for assessing 
marine mammal stocks: report of the GAMMS workshop April 3-5, 1996, 
Seattle Washington.'' A peer-reviewed scientific article that describes 
some of the work that went into defining the parameters is summarized 
by Wade, 1998, in ``Calculating limits to the allowable human-caused 
mortality of cetaceans and pinnipeds.''
    Comment 27: One commenter noted that the PBR level based on 
population dynamics continues to be ultraconservative and asked if NMFS 
considered a peer-review debate on choosing to use this conservative 
reproductive estimate. Many scientists feel that this may be too 
conservative.
    Response: NMFS has used peer reviewed information to choose the

[[Page 66474]]

population dynamic parameters in the evaluation of the PBR calculation. 
See comment number 26 for references to the peer-reviewed work in this 
area.
    Comment 28: One commenter expressed concern about methods used to 
estimate harbor porpoise bycatch because calculations are based on 
takes per haul as the unit of effort and not the number of takes per 
net. This commenter also expressed concern about weighout landings as 
the multiplier and recommended a review of this process for an 
alternative with more precision. Another commenter stated that NMFS is 
unwilling and unable to correct and adjust estimates of fleet size and 
methods of extrapolation used to determine effort and that NMFS has 
never had reliable fleet size information to measure effort. A third 
commenter stated that NMFS' bycatch calculations, based on what the 
gillnet fishery catches, are incorrect. This commenter noted that, 
despite continuous requests to adjust this approach to a more practical 
and realistic method, NMFS continues to do it the wrong way. This 
commenter recommended that units of fishing effort are more appropriate 
means of calculating and estimating harbor porpoise bycatch.
    Response: The current method used to estimate harbor porpoise 
bycatch does not rely on fleet size. Therefore, obtaining the most up-
to-date estimates of fleet size would not change the bycatch estimate.
    Choosing the most appropriate unit of effort for the bycatch 
estimate is a two-step process, and both steps must be accurate and 
reliable before another unit of effort can be used. Step one is 
choosing the best unit of effort using the Sea Sampling data, and step 
two is calculating that unit of effort for the entire fishery.
    By definition, the most appropriate theoretical unit of ``effort'' 
needed in any bycatch estimate is a unit of ``effort'' that is expected 
to relate directly to the number of harbor porpoise that are caught and 
to increase proportionally as the number of harbor porpoise takes 
increase. Therefore, even on a theoretical basis, that unit of 
``effort'' does not have to be a unit that is typically thought of as 
fishing effort, such as days fished or number of boats. Other possible 
acceptable units of ``effort'' could be hours nets are soaked 
multiplied by the number of nets, or pounds of fish species ``X'' 
caught in the net. Again, for the areas and times when there are both 
harbor porpoise and fishing, what is needed is a unit such that as the 
level of that unit increases so does the number of caught harbor 
porpoise.
    After that unit is chosen, it is essential that NMFS estimate the 
total amount of that unit for the entire fishery. So, for example, if 
hours of net soak time represented the best unit of ``effort'' then it 
would be necessary to calculate the total number of hours soaked by all 
nets used by the entire fishery, by the time and areas that are 
appropriate. Data in the fisher trip logbooks could be used to 
calculate this information. However, even in 1997, many of the data 
fields in the logbooks were left blank. Until the logbooks are 
completely and accurately filled out all of the time, it is impossible 
to use net soak time to calculate the total level of ``effort.''
    NMFS is willing to investigate other possible units of ``effort'' 
but, until the total amount of a unit for the whole fishery is 
available and accurate, it is not possible to use any other unit of 
``effort'' except that already being used--tons of fish landed from the 
dealers.
    Comment 29: Two commenters asked how there could be insufficient 
data to determine population trends for this species, but enough 
information to determine a specific PBR point estimate.
    Response: By definition, PBR requires one abundance estimate and 
the level of confidence associated with that estimate. This information 
is available, so PBR can be calculated. However, determining population 
trends require several abundance estimates within a long time series. 
At present we have three abundance estimates taken during 5 years 
(1991, 1992, and 1995). Three abundance estimates with Coefficient of 
Variation's in the 20 percent range during such a short time period are 
not sufficient to accurately determine if there is a trend. However, 
another abundance survey is scheduled for the summer of 1999. The NEFSC 
is intending to use the four abundance estimates (1991, 1992, 1995, and 
1999) taken from the resulting 9 years (1991-1999) to investigate 
whether a trend can be determined and the level of accuracy of that 
conclusion.
    Comment 30: One commenter noted that the proposed rule stated that 
the Assistant Administrator will review, on an annual basis, the effort 
and bycatch data to see if the HPTRP is achieving the PBR goal. The 
commenter then drew the conclusion that, if the HPTRP is effective, the 
number of harbor porpoise should increase each year. NMFS indicated in 
that same rule that sufficient data are not currently available to 
determine trends in harbor porpoise stock size. The commenter then 
asked that the harbor porpoise stock size be assessed to see if it does 
increase with TRP efforts.
    Response: Harbor porpoise stock size will continue to be assessed 
by conducting sighting surveys every few years. There is a survey 
scheduled for the summer of 1999. The frequency of future surveys will 
be determined by considering the level of accuracy of each individual 
estimate and the need to get accurate abundance estimates of all marine 
mammals found in U.S. waters. At the present time, it has been 
suggested that conducting surveys every 4 years would be adequate.
    The HPTRP will be assessed by monitoring the level of by-catch. 
This monitoring program will be on a quarterly basis, at least for the 
next few years.
    Comment 31: One commenter requested that NMFS undertake research on 
pingers to evaluate displacement and habituation of harbor porpoise, 
and long-term effects of pinger use on the ecosystem.
    Response: Research has started on this topic and will be 
continuing. Specifically, during the summer of 1998, research was 
conducted that investigated the small-scale distribution and relative 
abundance of harbor porpoise near and around pingers and herring weirs. 
This project will provide information on displacement and short-term 
habituation (on a monthly scale). Another project will be conducted 
during January to May 1999 and will investigate displacement, short-
term habituation, and short-term effects on the ecosystem. This project 
will involve monitoring the spatial distribution and relative abundance 
of harbor porpoise, other marine mammals, herring, and other fish in 
areas and times with and without pingers.
    Comment 32: One commenter stated that the plan appears to contain a 
number of discrepancies between some numbers in the tables and text of 
the EA that call into question the rigor of the underlying assumptions 
of reductions in mortality; for example, mortality reductions 
calculated based on use of pingers in areas or times where pinger use 
is not required.
    Response: NMFS has thoroughly reviewed the calculations in the 
draft EA with respect to the final rule and has updated the EA. Some of 
the confusion is a result of the complexity of the data and of the 
difficulties in its presentation, rather than actual errors. The shaded 
area in Table 4 of the draft EA represents areas where reductions can 
be made, not necessarily those made by the HPTRP. Discrepancies between 
the text and the charts have been re-evaluated and corrections made

[[Page 66475]]

as appropriate in the final EA. NMFS disagrees that the discrepancies 
call into question the rigor of the underlying assumptions of 
reductions in mortality. The discrepancies were relative to 1994 and 
1995 data that were not available in the 1996 data format, and 
consequently the estimates of reduction were less accurate. The impact 
of Framework 25 could not be incorporated. Because of the nature of 
available data, calculations of plan effectiveness on years prior to 
1996 were not as accurate. These data are provided at the request of 
many GOMTRT members for comparison purposes, but the 1996 data, with 
the analysis of Framework 25, are primarily what are used to support 
the conclusion this plan will reach its goal.
    Comment 33: One commenter challenges the information that 
establishes the PBR of 483 animals although specifics were not given.
    Response: The value of the PBR for the Gulf of Maine/Bay of Fundy 
harbor porpoise has been accepted by the Atlantic Scientific Review 
Group. This is a group of non-government scientists that were formed 
under the MMPA and whose purpose is to review, correct, and monitor the 
data going into the assessments of all the marine mammals (see also 
response to comment 26).
    Comment 34: The commenter stated that their understanding was that 
the bycatch information reflected in the proposed rule was based on a 
``5 year (1990-1995) average mortality estimate'' and then questioned 
how NMFS can justify the expansion of regulatory conditions without 
current information, i.e., later than 1995.
    Response: Information used to evaluate the proposed regulation was 
the most recent available at the time, through 1996 verified and 
complete, and initial estimates for spring of 1997. Therefore, data 
more recent than 1995 were used. Secondly, the impact of the proposed 
regulations were evaluated with respect to the most recent fishery 
management measures, including Framework 25 to the NE Multispecies FMP. 
The average referenced in the preamble was solely to illustrate the 
trend over the years of available data; it was not used to justify any 
regulatory components of the plan, the most recent complete data was 
used (1996). The years 1994 and 1995 were also provided for comparison.
    Comment 35: One commenter suggested that it is time to think about 
opening up some of the closure areas with pinger use now, not expanding 
them. The commenter stated that effort and migration does not 
necessarily equal entanglement due to absence or presence of feed fish 
and that this was accepted by the NEFMC in deciding the appropriate 
closure for Massachusetts Bay.
    Response: Clearly the Massachusetts Bay Closure was not effective 
because bycatch occurred just outside the closure time/areas. Fishing 
effort and the presence of harbor porpoise does increase the 
probability of entanglement. NMFS agrees that there is inter-annual 
variability in porpoise distribution often based on prey distribution; 
however, that justifies, not contradicts, the strategy for expanded 
pinger times and areas.
    Comment 36: One commenter recommended expanding the observer 
program to ensure accurate bycatch estimates under the new management 
regime.
    Response: When applying observer coverage under the new management 
regime, NMFS attempts to insure the best possible, unbiased, and 
accurate harbor porpoise bycatch estimate, given available resources 
and recognizing the need for accurate information on other marine 
mammal stocks. This is just one component of an overall fishery 
observer program.
    Comment 37: One commenter recommended that NMFS provide the GOMTRT 
with a detailed description of its planned scientific research and 
request its comments on those studies.
    Response: NMFS will provide descriptions of planned research to the 
GOMTRT and consider comments as appropriate.
    Comment 38: For the Mid-Atlantic, three commenters felt that 
despite substantial fishery-dependent observer data for other gillnet 
fisheries which indicate little or no harbor porpoise interaction and 
the recommendation by the MATRT which focused only on monkfish and 
dogfish fisheries, NMFS has unfairly expanded the HPTRP to include all 
fishing with gillnets in inshore and offshore waters of the Mid-
Atlantic. One commenter felt that the small mesh gillnet fishery should 
have a minimum mesh size limit of 5 inches.
    Response: NMFS agrees that during the deliberations of the MATRT, 
the Team focused its recommendations on subfisheries rather than all 
Mid-Atlantic gillnet fisheries, as defined in the List of Fisheries. 
The MATRT was warned, however, that analysis of bycatch data by 
subfisheries under the constraints of limited sample sizes required 
highly speculative assumptions. Due to this factor as well as 
enforcement concerns and the lack of FMPs for those fisheries, NMFS 
expanded the definition of Mid-Atlantic fisheries covered by the HPTRP 
to large and small mesh fisheries.
    However, NMFS has excluded mesh sizes of 5 inches (12.7 cm) and 
less from the small mesh regulations at this time. The reasons for this 
is the limited number of observed takes in these mesh sizes currently 
available in the data and because the fishermen typically using this 
gear in the nearshore Mid-Atlantic fishery, while present at the start 
of the TRT process, did not participate once the TRT agreed to address 
only the monkfish and dogfish subfisheries. This does not mean the 
evidence of potential interactions in this sector of the gillnet 
fishery will be ignored. Although the number of observed takes in mesh 
sizes of 5 inches (12.7 cm) or less is small, takes have been 
documented that were not ``dogfish-targeted'' trips. There were 3 takes 
in the menhaden fishery in 1997 in New Jersey and there was a take in 
the southern Mid-Atlantic shad fishery in 1996. Therefore it is likely 
that takes do occur in small mesh fisheries. Given this concern, NMFS 
will reevaluate the observer data (particularly through the expanded 
observer program and alternative platforms) and stranding data for 
these fisheries in the spring, 1999, and reconsider if management 
measures to reduce bycatch are needed.
    Comment 39: One commenter stated that NMFS made assumptions about 
bycatch in the Mid-Atlantic that are erroneous. The EA specifies that 
it was assumed that no mortality occurred in fisheries other than those 
for monkfish and dogfish, which is incorrect. The EA also assumed that 
no porpoise can ever be caught in waters off Virginia and Delaware, 
which is unlikely based on co-occurrence of animals and gillnet 
fisheries in those areas.
    Response: NMFS agrees that harbor porpoise mortalities occur in 
fisheries other than monkfish and dogfish. The assumptions alluded to 
are just some of a number of assumptions that were made in order to 
provide the models that could evaluate specific gear parameters for 
bycatch reduction potential for the MATRT meetings. The regulations 
themselves address small and large mesh gillnet fisheries with 
specified parameters and do not exclude Virginia and Delaware.
    Comment 40: One commenter recommended that NMFS reexamine the 
validity and accuracy of its bycatch estimates in the Mid-Atlantic in 
light of unlikely assumptions, incomplete observer coverage in the past 
and available information on bycatch levels for 1997. The commenter 
recommended that if bycatch estimates are determined to be higher than 
those assumed in the proposed measures, the proposed time/area closures 
should be expanded to account for additional bycatch.

[[Page 66476]]

    Response: The final regulations cover nearly the entire time and 
areas where the 1997 takes occurred. The rule includes times and areas 
where the observer coverage in the past was low. Observer coverage will 
be provided in the Mid-Atlantic at appropriate levels to evaluate 
whether or not the plan is meeting its goals. After HPTRP 
implementation, bycatch estimates will be reviewed; if they are higher 
than expected, NMFS and the TRTs will need to discuss what further 
measures might be necessary.

Comments on Pingers: Specifications, Options, Implementation Issues

    Comment 41: One commenter stated that pingers are not the only 
option in the Gulf of Maine. In the Mid-Atlantic, it has been proven 
that the use of heavier gauge monofilament prevents mammal takes in 
gillnets. Many fishermen in southern New England are already using 
heavier gauge twine. Those fishermen should have the same option as the 
Mid-Atlantic fishermen and NMFS should review the data and present them 
to the TRT.
    Response: Data reviewed by the MATRT on harbor porpoise takes in 
gillnet sets using heavier gauge monofilament appear to show a 
difference in the level of harbor porpoise takes when compared to finer 
twine sizes in sets for monkfish and dogfish. Most of the observed sets 
evaluated in these data were from NJ south. Data has not been analyzed 
for these gear options in the Gulf of Maine and they were not 
considered as a bycatch reduction option by the GOMTRT. In addition, 
because of the level of data available, and the assumptions necessary 
to model these variables, NMFS does not want to expand this mitigation 
measure to a much larger geographic area. In addition, NMFS has 
developed these regional strategies based on TRT recommendations. The 
majority of the New England fishery is diverse and no correlations in 
the data for gear parameters were apparent to TRT members; consequently 
they chose to use a tested take reduction strategy, i.e., pingers. As 
with many fishery management measures, lines are drawn to identify 
where measures change. While it is true that fisheries adjacent to but 
divided by such a management line may show more similarity than with 
fisheries within their appropriate sector, the line chosen represents 
the point where an overall change in the fishery occurs.
    Discussion in the MATRT with respect to pingers as a management 
option was rejected for some of the same reasons that gear 
modifications were not applied in the GOM. While pingers have shown 
success in experimentation, they have not been evaluated (``proven'') 
under widespread use. In addition, pingers are not passive and other 
environmental effects are yet to be evaluated. Harbor porpoise may also 
behave differently while in the southern portion of their range. With 
regard to experimentation with pingers, the character of the fishery is 
much different in the Mid-Atlantic, being more spread out than in the 
Gulf of Maine. Therefore, an experiment in the Mid-Atlantic would have 
to be of such magnitude that the cost and years of effort do not seem 
justified when other options (gear modifications) that have not been 
tested are available. Therefore, the precautionary approach justifies 
limiting these two strategies geographically until further data are 
available. In the future, based on the results of implementation of the 
HPTRP, NMFS will consider, in conjunction with the advice of the TRT, 
whether other strategies are viable for either the GOM or the Mid-
Atlantic. NMFS will analyze available data from the southern New 
England area and provide that information for review at the next 
meeting of the TRT.
    Comment 42: One commenter recommended that NMFS should require that 
vessels carry four spare pingers in the event that there is a pinger 
malfunction. NMFS' own observer data does not support that fishermen 
are diligently maintaining their pingers, but instead indicates that in 
actual use, pinger effectiveness levels are significantly less than 
those in controlled experiments.
    Response: NMFS disagrees and maintains its position that both 
manufacturers and fishermen will be aware of the importance of 
technically correct and properly maintained pingers. This is one of the 
primary objectives of the pinger certification training and outreach 
program, which began in September 1998 and will continue, as needed, 
after implementation of the final rule. Under the HPTRP certification 
is mandatory, as was recommended by the GOMTRT, for the very reason of 
removing some of the uncertainty surrounding the results of the 
experimental fisheries. Since this type of outreach was not in place 
for the experimental fisheries, the results of future commercial use of 
pingers are expected to be more positive. In addition, the results of 
the Pacific TRP are now available, which show high effectiveness of 
pingers under commercial conditions; that plan also incorporated a 
strategy of mandatory skipper education workshops which is partially 
credited for the success.
    Comment 43: One commenter objected to rigid specifications for 
pingers as proposed in the rule, because it limits future pinger 
development. The concerns about the frequency of 10 kHz are about 
limited availability from a single manufacturer and that the specified 
frequency is within seal hearing range and acts as a ``dinner bell'' 
for seals in the area of the gillnets. Concern was also expressed that 
the specified decibel range (132 dB) limits development of a stronger 
pinger that may require less pingers on the net which would decrease 
costs to fishermen.
    Response: NMFS recognizes that the current specifications may limit 
somewhat technological development on pingers. However, the pinger 
specifications need to remain limited during the first year of plan 
implementation. The only pinger for which there is currently sufficient 
scientific documentation regarding effectiveness in the GOM for harbor 
porpoise is the one specified in this rule. The best approach at this 
time is to implement this plan with tested technology and then 
entertain ideas on improving that technology or investigating different 
options after the plan meets its initial goal.
    Comment 44: One commenter recommended that NMFS evaluate the pinger 
(PDM[PICE]) which has been tested in Europe and possibly incorporate 
its specifications. Another commenter stated that although the European 
pinger may be technically superior to the Dukane unit its sonic profile 
is very different from that of the Dukane pinger and, as such, would 
not be approved under the specifications in the proposed rule. This 
commenter urged NMFS to approve the use of pingers with the sonic 
output specifications of the European unit. In addition, NMFS should 
undertake focused experiments to develop a range of approved sonic 
profiles.
    Response: While NMFS agrees that eventually pinger specifications 
may need to be revised based on new technology, new pinger 
specifications are not incorporated into this final rule (see response 
to previous comment 43).
    Comment 45: One commenter recommended that NMFS examine all 
experience to date in use of pingers by fishermen, adopt a more 
conservative approach to reflect uncertainties and reality, and after 
the first year of the HPTRP reexamine the assumed rate of effectiveness 
based on observed bycatch rates. Another commenter stated that bycatch 
and bycatch reductions should

[[Page 66477]]

be projected using a realistic estimate of pinger effectiveness by time 
and area, relying on NMFS data rather than an optimistic region-wide 
estimate of 80 percent effectiveness. These two commenters, in general, 
felt that pingers are projected to be more efficient in reducing 
bycatch than data can support.
    Response: NMFS has examined all experience to date in the use of 
pingers by fishermen in the GOM. The results of the two scientific 
experiments conducted in the fall of 1994 and in spring of 1997 were 
between 80 percent to 100 percent effectiveness. NMFS data indicate 
that for experimental fisheries in some times and areas, pinger 
efficiency was greater than 80 percent while in other times and areas 
the efficiency was less than 80 percent. The EA details the specifics 
on each of the experiments and experimental fisheries. The spring 1997 
experiment was conducted based on GOMTRT recommendations, primarily 
because of the discrepancy in the results of various experimental 
fisheries, in order to remove the uncertainty over the technology's 
effectiveness. The TRT recommended in both the draft GOMTRP (August 
1996) and at the subsequent GOMTRT meeting in December, 1997, that in 
order to avoid any reduction in effectiveness during commercial fishing 
conditions, training of fishermen should be mandatory. Certification of 
fishermen is occurring and is expected to remove problems with improper 
use and maintenance that may have caused disparate results in the 
experimental fisheries. The data currently support the choice of an 
average region-wide 80 percent efficiency, based on controlled 
experimental results, but allowing for some discrepancy in levels of 
effectiveness under actual fishing conditions.
    Comment 46: One commenter recommended that because bycatch 
estimates will go up if a more conservative pinger effectiveness 
estimate is used, and because NMFS has not fully accounted for effort 
displacement outside of time/area management zones, NMFS should adopt a 
blanket provision that requires all gillnets in New England be equipped 
with pingers except at those times when, and in those areas where, 
harbor porpoise are highly unlikely to occur (e.g., Massachusetts Bay 
or Cape Cod South from June 1 to Sept 15).
    Response: NMFS agrees that inter-annual variability in both fishing 
effort and harbor porpoise distribution has been a problem for bycatch 
reduction strategies. However, NMFS has chosen its strategy (discrete 
areas of pinger use) with respect to pinger requirements for several 
reasons. Pingers have not been used in widespread application and a 
number of questions remain such as overall environmental effects and 
habituation and displacement of harbor porpoise or other species. The 
times and area are currently large enough to demonstrate, based on 
available data, that the plan will reach its goal without the 
additional burden on the fishery that such a blanket provision would 
entail. Should monitoring reveal that bycatch indeed shifts to areas 
outside the closures and should research provide answers to address 
these remaining questions, complete implementation of pingers in the 
fishery would be considered along with other options.

Comments on the Gulf of Maine Component--Proposed Schedule of Closures 
and Pinger Use

    Comment 47: One commenter stated that in general, closures are 
insufficient in time and space.
    Response: Detailed responses to comments on time/area closures are 
provided in later comment responses. The EA analyzes the current plan 
based on available data. NMFS has determined that the plan will reach 
MMPA goals.
    Comment 48: One commenter stated that Framework 25 will provide 
greater harbor porpoise conservation than considered by NMFS. This 
includes the 12-month closure and the rolling closures.
    Response: NMFS did evaluate the additional bycatch reduction that 
would be achieved by Framework 25 (see Table 4 in the final EA and text 
of the final EA) and concluded that Framework 25 measures amounted to 
about a 46 percent reduction in bycatch before accounting for bycatch 
reduction from MMPA harbor porpoise measures. This reduction was 
considered together with the HPTRP expected reductions to estimate the 
overall bycatch reduction based on data for 1996.
    Comment 49: One commenter stated that NMFS has failed to analyze 
the benefits of a number of measures under Amendment 7. For example, 
NMFS failed to consider the benefits to harbor porpoise of the net 
restrictions under Amendment 7 and the limits on directed catches of 
cod which further reduce the number of nets deployed by the gillnet 
sector. The cod catch limit was further reduced in Framework 25 which 
has resulted in reduced number of nets deployed. Also the Days-At-Sea 
restrictions have taken a lot of effort out of the fishery. These and 
other fishery management measures have resulted in substantial 
reductions in gillnet fishing effort which translate into lower 
probability of harbor porpoise interactions.
    Response: NMFS now has 1997 data available which indicate that 
these measures have had no effect on the total bycatch of harbor 
porpoise in the GOM, although the distribution of takes geographically 
has shown interannual variability.
    Comment 50: One commenter stated that there is no consistency 
within the regulation or the explained rationale to support the 
differences in regulations among areas. For example, the Mid-Coast is 
closed for seven plus months except for pinger use and the Northeast is 
only closed for 28 days. They are geographically adjacent. The 
commenter also questioned why there is only a four month regulatory 
condition in the Massachusetts Bay area and stated that NMFS does not 
account for the seasonal variability in the areas occupied by 
transiting harbor porpoise and fails to recognize the value of dynamic 
management.
    Response: The regulations were developed based on GOMTRT 
recommendations and existing data. The areas are not managed the same 
because harbor porpoise bycatch varies between areas. Therefore, 
different measures are appropriate for different areas and the GOMTRT 
agreed with this approach. The Massachusetts Bay closure is longer than 
four months; it has been extended in the final regulation to include 
the months of December and January. This change is discussed in detail 
under comment number 60. As discussed during the GOMTRT deliberations, 
the strategy of small discrete complete closures surrounded by longer 
time/area closures where pingers are required was developed to account 
for the inter-annual variability in distribution of harbor porpoise and 
changes in fishing effort.
    Comment 51: One commenter noted with approval that take reduction 
goals for the Northeast and Mid-Coast areas are already being met by 
measures currently in place and that no further restrictions are being 
proposed.
    Response: Bycatch reduction has occurred within discrete closure 
areas, but the data show that bycatch overall has remained the same, 
most likely due to shifted fishing effort and inter-annual variability 
in harbor porpoise distribution. Therefore, these areas need to 
continue to achieve the same amount of bycatch reduction and the 
bycatch that has shifted elsewhere must be dealt with through other 
bycatch reduction measures as provided in the regulations.

[[Page 66478]]

Comments on the Gulf of Maine Component--Area-Specific Measures

    Comment 52: One commenter supported maintaining the closure of the 
Northeast area for August 15 through September 15, citing its 
effectiveness.
    Response: NMFS agrees and the Northeast Closure will remain in 
effect.
    Comment 53: Two commenters requested that the plan maintain the 
spring (March 25 through April 25) NEFMC harbor porpoise closure in the 
Mid-Coast area. In addition, the commenter recommended amending the 
HPTRP to include a time and area closure specifically to protect harbor 
porpoise in the Mid-Coast during May and June because the rolling 
closure would not be effective during those months for reducing harbor 
porpoise bycatch. Another commenter recommended a complete closure 
during March and April.
    Response: The Mid-Coast area has historically had high fishing 
effort and high harbor porpoise bycatch. This area was one of the first 
areas affected by efforts of the NEFMC to reduce harbor porpoise 
bycatch as a result of the NE Multispecies FMP. However, the limited 
one-month closure March 25 through April 25 was ineffective at reducing 
bycatch overall because it simply shifted fishing effort to other 
months and areas outside the closure where bycatch increased. Fishermen 
from this area are to be commended on efforts to develop mitigation 
measures for harbor porpoise bycatch and have been instrumental in 
development and experimentation with pingers as a management option. In 
fact, bycatch overall in the Mid-Coast area has decreased since 1994. 
Pingers have shown a very high effectiveness rate in the Mid-Coast in 
scientific experiments in both spring (1997) and fall (1994), although 
experimental fisheries in spring have shown mixed success. Harbor 
porpoise distribution and abundance as well as fishing effort show 
inter-annual variability. However, because Framework 25 provides for 
periods of complete closures in portions of the Mid-Coast area in the 
months of April, May and June and with the addition of the extensive 
pinger requirements under the HPTRP, a complete closure of the entire 
area during March and April is not considered necessary. The overall 
HPTRP strategy for the GOM is a series of short, discrete, complete 
closures in combination with much larger time/area closures where 
pinger use would be allowed to account for the changes in harbor 
porpoise and fishing effort that may shift bycatch elsewhere. The 
strategy for the Mid-Coast, including requirements for pingers under 
the MMPA, and closures under the Magnuson-Stevens Act are expected to 
achieve adequate results without additional closures.
    Comment 54: Many commenters recommended adopting Framework 25 
closures as harbor porpoise closures under MMPA. One commenter 
specifically suggested that it was inappropriate to rely on NEFMC 
groundfish closures to provide harbor porpoise protection. If the NEFMC 
makes any shifts or lifts closures the resulting harbor porpoise 
bycatch reduction is lost. Consequently, these same closures should be 
adopted under the MMPA regulations.
    Response: NMFS recognizes its responsibility to protect harbor 
porpoise, but disagrees that these efforts need to be restricted to 
MMPA regulations if measures in effect under other statutes will help 
to achieve that goal. The NEFMC has as a stated objective in the NE 
multispecies FMP under Magnuson-Stevens Act that it must reduce the 
bycatch of harbor porpoise in this fishery and as such are also 
mandated to achieve bycatch reduction in this fishery. Adding 
additional closures in the Mid-Coast area on top of the Framework 25 
Multispecies closures would create an undue burden on one segment of 
the fishery when the bycatch reduction for the plan overall meets MMPA 
objectives without such an action.
    Comment 55: One commenter recommended closure of the entire Mid-
Coast area (including Inshore areas II, III, IV under Framework 25) 
from March 25 through May 31. This commenter suggested that fishermen 
will just move from Area III to Area II, for example, and there would 
consequently be no net bycatch reduction.
    Response: As noted above, the overall HPTRP strategy for the GOM is 
a series of short, discrete, complete closures in combination with much 
larger time/area closures where pinger use would be allowed. This is 
specifically to compensate for the inter-annual variability of both 
harbor porpoise and fishing effort that may shift bycatch elsewhere. 
Simply closing the entire Mid-Coast area from March 25 through May 31 
would have the same inherent problems as the closures that have been in 
place under the Magnuson-Stevens Act for several years. Fishing effort 
would likely concentrate in January through March 24 or move just 
outside the Mid-Coast boundaries or into the Offshore area. NMFS 
disagrees that no net bycatch reduction will result from the proposed 
strategy because pingers are required in all of the months not covered 
by closure under Framework 25 surrounding the Area II, III, and IV 
closure months. Pingers were accepted by the GOMTRT as a viable bycatch 
reduction management alternative to time/area closures.
    Closing the entire Mid-coast area would have an economic impact to 
the gillnet fleet would be $170,000 dollars in foregone revenue and it 
would impact 26 vessels. This is in addition to those costs already 
estimated for the Mid-Coast area. Given the extensive pinger 
requirement and a series of closures of Inshore Areas I through IV in 
Framework 25, a March 25 through May 31 closure is unwarranted.
    Comment 56: Many commenters recommended extending the Mid-Coast 
Closure Area to include closure of Areas II and III for the months of 
April and May.
    Response: See response to comment 53. This closure would cost the 
fleet $116 thousand dollars in foregone revenue and would affect 23 
vessels. The overall plan is expected to reach MMPA goals without 
additional complete closures that exact such a cost to the fleet. NMFS 
has concluded that such a closure is currently unjustified.
    Comment 57: One commenter recommended that the Mid-Coast be closed 
from September 15 through March 25 except for vessels using pingers.
    Response: The Mid-Coast is closed in the final rule to vessels 
except those fishing with pingers from September 15 through May 31.
    Comment 58: One commenter noted that the GOMTRT agreed there was a 
need to extend the boundary of Mid-Coast to the south to include a 
portion of Massachusetts Bay in the Mid-Coast closure area because of 
displacement.
    Response: NMFS agrees that the GOMTRT discussed the need for 
dealing with the displaced fishing effort during the Mid-Coast closure 
period, March 25 through April 25, which in past years appears to have 
partially shifted into northern Massachusetts Bay. The final HPTRP 
extended the closure period in Massachusetts Bay when pingers are 
required to include the months of December through May. The HPTRP is 
based on a overall bycatch reduction scenario that is intended to 
spread the bycatch reduction effort throughout the fishery where 
bycatch occurs. This means that a bycatch reduction measure is in place 
(although not a complete closure) during the time period effort shifts 
might occur. Additionally Framework 25 closes the area from March 1 
through March 31, the period

[[Page 66479]]

previously closed for harbor porpoise protection under the Magnuson-
Stevens Act. Allowing the use of pingers in the Mid-Coast, instead of 
prohibiting them from the area, allows fishermen to fish, making it 
less attractive and/or necessary to travel to the southern border to 
escape the closure. Therefore, the need to address bycatch in the 
northern portion of Massachusetts Bay is covered as part of the overall 
HPTRP strategy.
    Comment 59: One commenter noted that the current proposal was 
beyond GOMTRT consensus and reasonable justification for pinger use in 
the Mid-Coast area. Instead, the commenter recommended pingers be 
required March 25 through April 25, October 1 through December 31, and 
that no complete closures be included.
    Response: NMFS agrees that these measures are beyond the GOMTRT's 
recommended consensus plan as submitted in August, 1996. However, these 
measures were based, in part, on the recommendations of GOMTRT members 
at an additional meeting that was held in 1997. Since the GOMTRT's 
proposed plan was very similar to the closures in effect under the 
Magnuson-Stevens Act, both NMFS and many GOMTRT members concluded that 
the plan as originally proposed would not bring bycatch to below PBR as 
required by the MMPA. Therefore, more expansive measures were required. 
Because the Mid-Coast area has historically had high bycatch, a short 
closure both geographically and temporally that allowed pingers would 
provide limited bycatch reduction. Particularly, since pinger use has 
been more widespread in the Mid-Coast, NMFS agrees that bycatch has 
decreased. This further supports the requirement for continued closure 
with pingers in such a high bycatch area.
    Comment 60: One commenter suggested that the months of December and 
January be added to the time period when pingers are required in 
Massachusetts Bay.
    Response: NMFS agrees that adding the months of December and 
January to the Massachusetts Bay closure would provide additional 
bycatch reduction. Both the first proposed rule (August 13, 1997) and 
the December 16-17, 1997 GOMTRT meeting recommended that Massachusetts 
Bay be closed from February through May. Since the HPTRP relies on each 
of its components working together collectively to reach MMPA goals, it 
is possible to shift some of the time/area measures where data are less 
consistent and still meet the overall objectives. NMFS therefore 
decided to add the months of December and January to Massachusetts Bay 
which creates little additional burden on the fishermen who already 
have to purchase pingers.
    Comment 61: One commenter agreed with the March closure and 
recommended that pingers be expanded to October through January in 
addition to the proposed time period of February through May. Table 4 
in the draft EA shows that the bycatch reduction appears to be 
calculated based on the use of pingers in Massachusetts Bay in the 
Fall, yet the plan does not stipulate their use during those months.
    Response: The shaded areas in Table 4 of the draft EA represent 
areas where pingers could be applied because they are areas that do not 
represent complete closures under the Magnuson-Stevens Act; they were 
selectively included in the calculations.
    Bycatch has been high in the fall in Massachusetts Bay in previous 
years, but in more recent years (1996, 1997) bycatch has decreased 
significantly during that period. This final rule has extended the 
Massachusetts Bay pinger closure two months earlier than recommended by 
the GOMTRT and the proposed rule to include both January and December; 
this will gain further bycatch reduction in this area and will deflect 
some of the observed shifts in effort out of the Mid-Coast into the 
northern portion of Massachusetts Bay. Adding the months of December 
and January was recommended by another commenter. Since bycatch in the 
most recent years in October and November has decreased, which may be a 
result of decreased Days-At-Sea available to fishermen from fishery 
management measures, or to pinger use in the Mid-Coast which prevented 
some shifting of effort south into Massachusetts Bay, extending the 
requirement further into the fall is unwarranted at this time given the 
measures in the overall HPTRP.
    Comment 62: One commenter recommended closing the area south of 
Cape Cod during May except to pingers, noting that bycatch was high in 
1994 in this area and that it was recommended by the GOMTRT in 
December, 1997. This commenter also supported the March 1 through 31 
closure and the September 15 through February and February through 
April pinger requirement.
    Response: NMFS agrees with extending the spring pinger requirement 
into May. The recommended closure in the proposed rule addressed 
concern by the GOMTRT that observer coverage has been low in the Cape 
Cod South area. However, since zero takes have been observed in the 
September though November time period and additional bycatch reduction 
is expected in May, this will more than offset the fall period. 
Therefore in the final rule NMFS has changed the closure period in Cape 
Cod South to December through May.
    Comment 63: One commenter requested that by June, 1999, NMFS 
analyze use of larger twine and other gear characteristics as a 
mechanism for reducing bycatch in the Cape Cod South area. Based on 
current information, this commenter recommended that pingers be 
required for December 1 through the end of February, instead of 
September 15 through April 30.
    Response: NMFS agrees that gear characteristics should be analyzed 
for the Cape Cod South area and will provide that information when the 
GOMTRT meets in mid-1999. NMFS agrees that the start of the fall pinger 
requirement should be December 1, but disagrees that it should not be 
extended past February.
    Comment 64: Many commenters recommended that the closure of Cape 
Cod South be expanded to include at least two weeks at the end of 
February and two weeks at the beginning of April, based on historically 
high bycatch during these periods. One commenter noted that under the 
current plan, fishing will be allowed without use of pingers during 
May, a month of high mortality in 1994. This block appears to be shaded 
in Table 4 of the draft EA, yet pingers are not stipulated in this area 
during May. This one commenter further recommended that fishing should 
only be permitted in May with use of pingers.
    Response: See response to comment 61 with respect to shading in 
Table 4 of the draft EA. NMFS agrees that pingers should be used in May 
in Cape Cod South. NMFS also agrees that bycatch has historically been 
high between February and April. However, the one-month closure in 
March, surrounded by a closure where pingers are required (December 
through May) is consistent with the basic strategy of the overall plan, 
a complete closure surrounded by a much larger time when pingers are 
required. Additionally, such a closure would cost the fleet $53 
thousand dollars in foregone revenue and affect 23 vessels. For all of 
these reasons a larger complete closure is not justified at this time.
    Comment 65: One commenter recommended requiring pinger use in the 
entire Offshore area during the month of February instead of complete 
closure in February in Cashes Ledge and required pinger use for the 
rest of the Offshore area from September 15 through December 31. This 
would

[[Page 66480]]

eliminate the February gear closure of Cashes Ledge.
    Response: NMFS disagrees with allowing pingers during February in 
Cashes Ledge and with shortening the pinger use period to the fall 
only. Bycatch has been observed in both November and in February and is 
estimated at 45 and 258 animals respectively (1996). Therefore, to make 
management of this area consistent with the other areas in the HPTRP, a 
one-month closure surrounded by a period of pinger use during times 
when bycatch is expected is the most appropriate response. This means 
retaining the closure in February in Cashes Ledge and extending pinger 
use in the Offshore area November through March. Even though NMFS 
agrees that pingers are effective, they are not 100 percent effective. 
This is the reason why the strategy for the overall HPTRP remains a 
combination of complete closure and pinger use.
    Comment 66: One commenter recommends that additional observer 
coverage was needed in the Offshore area to see if a closure in the 
month of November should be added to allow for additional bycatch 
reduction.
    Response: See response to comment number 65. Observer coverage of 
this area will continue.
    Comment 67: One commenter noted that there was never a 
recommendation for a closure in the Offshore area during the December 
1997 meeting, nor did it recommend an expanded area of pinger use of 
the magnitude proposed. The commenter asked NMFS to justify the 
Offshore closure area and expanded pinger use.
    Response: NMFS agrees that the GOMTRT did not recommend a complete 
closure in this area. However, NMFS disagrees with the second claim; 
the GOMTRT members present at the December 16-17, 1997 meeting did 
recommend expanding areas where pingers are required. Specifically, 
their recommendation was for NMFS to look at the bycatch data and 
consider closing statistical areas ``515, 522 and maybe 521'' and 
require pingers in that area. The Offshore Closure Area defined in the 
regulations is only part of area 515 and the very northernmost section 
of areas 521 and 522 and encompasses the area where takes have been 
observed.
    Comment 68: One commenter stated that the current Offshore 
recommendation is excessive since it is based on short time frame of 
data and observer coverage. The commenter recommended that Cashes Ledge 
be closed for the month of February unless vessels have pingers but 
that the expanded Offshore area should be suspended until more 
information is gathered.
    Response: NMFS agrees that data is limited in the Offshore area, 
but limiting the closure to a small area for short duration has all the 
inherent problems that have already proven this strategy to be 
ineffective. In addition, there have been observed takes in other 
months including November in 1996 and January and May in 1997. 
Therefore, the proposed strategy is similar to the strategy employed in 
the other areas of observed bycatch in the GOM, a one month closure 
followed by a more extensive closure with pingers allowed. However, 
consistent with other minor changes to the time/area closures in the 
proposed rule in the fall already discussed (Cape Cod South, 
Massachusetts Bay), the start of the closure in the Offshore area has 
been delayed to November 1 in the final rule.
    Comment 69: One commenter noted that the proposed closure of Cashes 
Ledge would affect four Maine offshore gillnet vessels that often make 
a few sets in this area on their way to George's Bank. However the 
commenter was more concerned with vessels from ports in the Mid-Coast 
area which do fish this area regularly. The commenter noted that the 
Mid-Coast area had already met or exceeded its take reduction goals. 
This commenter recommended that rather than closing the Cashes Ledge 
area in February, NMFS should leave it open to vessels with pingers and 
that additional reductions should come from areas which have not yet 
achieved the results that the Mid-Coast has, like Massachusetts Bay and 
South Cape Cod.
    Response: NMFS agrees with the characterization of fishing in the 
Offshore area, but disagrees that bycatch does not need to be reduced 
in the Offshore area. The Mid-Coast area never had take reduction goals 
separate from an overall HPTRP, with the exception of goals stated in 
the NE Multispecies FMP, goals which have not yet been met. As stated 
earlier, Mid-Coast fishermen are to be commended for the innovative and 
expansive efforts they have undertaken to make pingers a viable bycatch 
reduction alternative to complete closures during some times and areas. 
However, the reason that the NEFMC measures have not been effective at 
reducing bycatch overall is that bycatch shifted out of the closed 
areas into new areas. Increases have been seen in several areas 
including Massachusetts Bay, Cape Cod South and the Offshore area. 
Achieving the MMPA goal will not be easy, but most certainly, the 
overall level of bycatch in the GOM must be reduced. It would be 
counter productive to allow reduction in one area to be replaced with 
bycatch occurring elsewhere, i.e. if you reduce the amount of harbor 
porpoise take in the Mid-Coast by 100, but then increase it by 100 in 
the Offshore area, you have a net gain of no bycatch reduction. 
Therefore, all areas where bycatch has historically occurred in the GOM 
must be part of this HPTRP. NMFS agrees that further reductions are 
necessary in areas other than the Offshore area; the plan does contain 
measures beyond the status quo to reduce observed bycatch in the Cape 
Cod South area and the Massachusetts Bay area.
    Comment 70: One commenter stated that the importance of and 
difficulties in enforcement have been overlooked based on comments by 
NMFS and the Coast Guard. Specifically, neither enforcement body can 
determine whether pingers are operational. The U.S. Coast Guard has 
also stated that anything short of complete closures are difficult to 
enforce. The commenter concluded that effective mortality reduction is 
most likely to be achieved by closures, not by use of pingers.
    Response: NMFS agrees that currently neither NMFS or the U.S. Coast 
Guard can determine whether or not pingers are working on deployed 
fishing gear. A hydrophone has been developed that can be used as an 
enforcement tool to determine whether or not pingers are working. The 
hydrophone can be towed to evaluate set gear. This will be made 
available to U.S. Coast Guard and NMFS Enforcement personnel. NMFS also 
agrees that anything short of complete closures is difficult to 
enforce, but not impossible.
    NMFS disagrees that the closures are more likely to achieve 
effective mortality reduction. In fact, the closures that have been in 
effect under the Magnuson-Stevens Act have been ineffective primarily 
because of the inter-annual variability in harbor porpoise distribution 
and fishing effort shifts. In order for closures to be effective and to 
avoid these phenomena, closures would have to be so large that the 
impact on the fishery would be very disruptive. Such widespread 
closures are evaluated as an alternative in the EA, which should be 
consulted for the specific information. Pingers have been demonstrated 
to be effective, and NMFS has concluded that they are a better 
alternative for achieving effective mortality reduction while allowing 
the fishery to continue.

Comments on the Overall Mid-Atlantic Strategy

    Comment 71: One commenter asked how the new expanded closures 
affect the harbor porpoise bycatch estimate

[[Page 66481]]

given that the MATRT proposal was expected to achieve a 79 percent 
reduction in harbor porpoise bycatch?
    Response: If all assumptions of the statistical models are correct, 
the additional closures would likely achieve between 88 percent--99 
percent reduction in takes over the entire area for all months. 
However, it is unlikely that all the assumptions used in the data 
analysis will be proven 100 percent accurate; therefore, the additional 
measures will help to ensure that the 79 percent reduction in harbor 
porpoise take is achieved. The reason the assumptions are unlikely to 
be 100 percent accurate appear to be borne out in the 1997 data. In 
that year harbor porpoise were taken in the menhaden fishery, 
countering the assumption that the only subfisheries that catch harbor 
porpoise are the monkfish and dogfish subfisheries (Palka, 1997).
    Comment 72: One commenter stated that the changes from fishery-
specific strategies to specific gear type strategies appear largely 
consistent with the MATRT proposal.
    Response: NMFS agrees.
    Comment 73: One commenter requested that the gillnet cap of 80 nets 
and tagging requirements of 2 tags per net be changed to a 160-net-cap 
and a 1 tag per net requirement to be consistent with the proposed 
Monkfish FMP requirements.
    Response: NMFS disagrees with changing the 80-net-cap limit, as 
proposed in the HPTRP, to a net cap of 160 nets to be consistent with 
the proposed Monkfish FMP. The 160 net cap set by the Monkfish FMP is 
too high to achieve the goal of maintaining current fishing effort in 
the Mid-Atlantic that has historically been associated with locally 
prevailing practices. NMFS has followed the recommendation of the MATRT 
to support locally prevailing fishing practices and an 80 net cap limit 
reflects those practices. The average large mesh fisherman in the Mid-
Atlantic employs 80 nets, therefore this average was agreed to be an 
appropriate limit to cap effort. By allowing 160 nets, the positive 
benefits expected from the HPTRP measures could be negated. Anyone 
wishing to fish in the Mid-Atlantic during these time periods can only 
have a total of 80 nets on board, hauled, or deployed. NMFS agrees with 
the recommendation to change the net tag requirement to one tag per 
net, beginning January 1, 2000, to be consistent with the net tag 
requirement under the Monkfish FMP. This change should not affect NMFS' 
ability to enforce the HPTRP measures.
    Comment 74: Several commenters felt that the requirement for a 
twine size greater than or equal to .81 mm is unfair and uncalled for 
in those fisheries targeting bluefish, croaker, weakfish (i.e., some of 
the very small mesh fisheries) which have not been observed to take 
harbor porpoise. They felt that the MATRT, including NMFS, agreed that 
there was not enough data to support any restrictions to the small mesh 
fishery.
    Response: NMFS did not restrict fisheries with mesh sizes 4 inches 
(10.2 cm) and smaller with regard to twine size regulations in the 
proposed HPTRP.
    Based on further review and public comment, mesh sizes of 5 inches 
(12.7 cm) and smaller are not required to comply with the small mesh 
regulations at this time.
    Comment 75: Two commenters questioned how the proposed rule applies 
to all fishing with gillnets in inshore and offshore waters of the Mid-
Atlantic despite the fact that North Carolina gillnet fisheries 
targeting bluefish, croaker, and weakfish, have little or no 
interactions with harbor porpoise.
    Response: NMFS agrees there were no documented observed takes with 
very small mesh gear in North Carolina. However, there were takes in 
North Carolina waters. Harbor porpoise stranding data, discussed by the 
MATRT but not considered part of the MATRT process for management 
measures, suggests that very small mesh fisheries, and fisheries in 
nearshore as well as offshore waters, may indeed take harbor porpoise. 
However, NMFS is exempting the gear that is less than 5 inches (12.7 
cm) mesh size from the regulatory measures at this time. The definition 
of the small mesh gear that must comply with the management measures 
has been changed. Only mesh sizes of greater than 5 inches (12.7 cm) to 
less than 7 inches (17.78 cm) must comply with the small mesh 
management measures.
    Comment 76: One commenter felt that the small mesh fishery in North 
Carolina should be classified as a Category III fishery. If not 
designated as Category III, then they felt that the restrictions on 
small mesh should only apply north of the North Carolina/Virginia 
border and not include North Carolina waters. If small mesh 
restrictions were to be implemented for North Carolina waters, those 
restrictions should absolutely not apply south of Cape Hatteras.
    Response: Until NMFS gets additional information, the small mesh 
fishery is still categorized as part of the Mid-Atlantic coastal 
gillnet fishery. As discussed in the Final List of Fisheries for 1998 
(63 FR 5748), the information currently available on the composition 
and distribution of the Mid-Atlantic coastal gillnet fishery and on its 
incidental take levels is insufficient to identify distinct 
subcomponents of this fishery. NMFS has allocated funding in 1998 to 
expand its observer coverage of this fishery and to obtain a better 
characterization of the individual subcomponents that comprise it.
    Regarding the geographic application of the small mesh measures to 
North Carolina waters, the final rule will continue to apply to all 
waters off North Carolina, including waters south of Cape Hatteras to 
the South Carolina border. The geographic application of the HPTRP is 
consistent with the MATRT report (RESOLVE, 1997). Additionally, 
although there were takes in North Carolina waters with large mesh gear 
but no documented observed takes with small mesh gear, this does not 
preclude the likelihood that takes may occur in North Carolina waters 
in small mesh gear (see response to comment 38).
    Comment 77: One commenter felt that the statement on page 48678 of 
the proposed rule distorts the consensus agreement of the MATRT because 
there was never an assumption that the only subfisheries that could 
potentially ever catch harbor porpoise are dogfish and monkfish.
    Response: NMFS did not intend to distort the consensus agreement of 
the MATRT. The assumption that harbor porpoise are only caught in 
dogfish and monkfish fisheries was discussed at the MATRT meetings and 
is outlined in the paper by Palka (handout at the August 4-6 meeting of 
the MATRT, Page 8) and used in the statistical analysis presented at 
the MATRT. Because of the nature of the assumptions in that analysis, 
discussed in detail in the EA/HPTRP, NMFS felt additional regulatory 
measures were appropriate.
    Comment 78: Several commenters were concerned that NMFS had not 
considered the difficulty for small mesh fishermen in ordering and 
rigging the new gear. Mesh sizes used to target weakfish and croaker 
are normally not stocked by local net shops in .81 twine size. The time 
to order, receive and hang webbing would be as long as six months. 
Fishermen need 180 days advanced public notice or fishermen would lose 
out on whole season. So .81 mm should only apply to gill nets greater 
than 5 inches (12.7 cm) and less than 7 inches (17.78 cm) stretched 
mesh.
    Response: In the final rule, NMFS changed the requirements for the 
small mesh fisheries so that the requirements apply only to mesh sizes 
of greater than

[[Page 66482]]

5 inches (12.7 cm) to less than 7 inches (17.78 cm). Fisheries which 
use greater than 5 inches (12.7 cm) to less than 7 inch (17.78 cm) mesh 
sizes should be able to buy the gear and re-rig in the allotted time. 
Southern Mid-Atlantic fishermen would have more time to buy and re-rig 
because measures do not go into effect in the southern Mid-Atlantic 
until February 1, 1999.

Comments on the Mid-Atlantic Area and Gear Specific Measures

    Comment 79: One commenter asked why NMFS expanded the closure in 
the Mudhole from February 15 through March 15, as recommended by the 
MATRT, to an additional closure from April 1 through April 20.
    Response: The HPTRP calls for closures in the Mudhole from February 
15 through March 15 for small mesh and large mesh gear, and April 1 
through April 20 for large mesh gear. This differs from the MATRT 
report, which only recommended closures in the Mudhole from February 15 
through March 15 for monkfish (large mesh). NMFS added a closure to New 
Jersey for large mesh gear in April. Given the considerable assumptions 
inherent in the subfishery bycatch analysis, NMFS determined that 
additional regulatory measures would be prudent to realistically 
achieve the bycatch reduction goals of the HPTRP. For New Jersey, 
January and April are the months of highest bycatch. Since a closure in 
January would be very costly for the fishermen, as discussed by the 
MATRT, NMFS chose to limit fishing opportunity in April instead of 
January. A closure in April would still afford significant harbor 
porpoise conservation benefits, still be consistent with the proposed 
Monkfish FMP regulations and not cause undue impact on fishermen. The 
Mudhole is part of New Jersey waters.
    Comment 80: One commenter asked that NMFS explain the reason for 
expansions of the original 20-day monkfish closure for the southern 
Mid-Atlantic, as proposed by the MATRT, to a one month closure for 
large mesh fishery.
    Response: The MATRT recommended a 20-day floating closure in the 
southern Mid-Atlantic, sometime between February and April, for the 
monkfish (i.e., large mesh) fishery. The exact 20 days would be chosen 
by the individual fishermen. This proposal was changed by NMFS in two 
ways: (1) The proposal for a floating closure was rejected in favor of 
a fixed closure and (2) the 20-day closure was expanded by 10 days to a 
full one month closure.
    NMFS changed the floating closure because an FMP and associated 
permit system will not be in place for the spring 1999 fishery, thereby 
making it extremely difficult to enforce and administer a call-in 
system for this fishery. Therefore, a set period for the closure was 
favored.
    The 20-day closure recommended by the MATRT was expanded to 30 days 
as a way to more strongly address the harbor porpoise bycatch in the 
southern Mid-Atlantic during this time period by avoiding a 10-day 
window of possible fishing effort displacement.
    Comment 81: One commenter proposed that NMFS move the southern 
border of the area defined as the Mudhole to 39 deg.50' N. Latitude, 
instead of 40 deg.05' N. Latitude, to include documented take of harbor 
porpoise.
    Response: NMFS disagrees that any changes are needed in the Mudhole 
definition at this time. The definition of the Mudhole is based on 
topographic features that support concentrations of target fish species 
at certain times of the year. Since the majority of takes that occur 
just south of the Mudhole occur in April in the large mesh fishery, 
this area has been included in the closure from April 1 through 20 for 
large mesh gear only. During February, another time of high bycatch 
inside the Mudhole for both large and small mesh gear, the Mudhole will 
be closed to both small and large mesh gear. There is little bycatch of 
harbor porpoise outside the boundaries of the Mudhole, in the rest of 
New Jersey, during February and March. It is possible that effort could 
shift outside the Mudhole boundaries during this time period, but gear 
modifications will be in effect for all areas in New Jersey outside of 
the Mudhole. This means that a bycatch reduction measure, although it 
is not a complete closure, is in place for the area outside the Mudhole 
closure. This is consistent with the overall HPTRP strategy.
    Comment 82: One commenter questioned the conclusion that the entire 
state of North Carolina should have a time/area closure. The commenter 
noted that 250 observer trips on North Carolina boats between 1993 and 
1997 using small mesh gear with no reports of harbor porpoise takes and 
95 trips with North Carolina Division of Marine Fisheries on striped 
bass, and 30 more in 1991 on weakfish and no harbor porpoise takes. The 
commenter objected to the changes in closures for North Carolina for 
the following reasons: there is no documented bycatch of harbor 
porpoise in small mesh, the take of 5 harbor porpoise in monkfish and 
dogfish does not equal high harbor porpoise bycatch, the proposed 
closure is 50 percent longer than what was recommended by MATRT, the 
monkfish fishery will no longer exist off North Carolina, and no 
observer data for areas south of Ocracoke, North Carolina. The 
commenter then concluded that for all those reasons, time/area closures 
should not apply to waters south of the North Carolina/Virginia border. 
The definition of southern Mid-Atlantic includes the North Carolina/
South Carolina border, but the commenter recommended that under no 
circumstances should south of Cape Hatteras be closed to small mesh 
gillnets. Several commenters noted that observer data does not justify 
extending small mesh restrictions to the North Carolina/South Carolina 
border.
    Response: The time/area closure applies to the large mesh fishery 
for one month in the southern Mid-Atlantic. Between 1995 and 1996 there 
were 89 takes in North Carolina in the large mesh fishery, warranting 
the need for a closure during times of high bycatch. The small mesh 
fishery is closed for one month in the New Jersey Mudhole, but not in 
the southern Mid-Atlantic.
    Although 5 observed takes does not appear to equal a high harbor 
porpoise bycatch, when estimated for the entire fishery it does appear 
to be a significant number of takes, resulting in an estimated take of 
132 for the North Carolina fishery in 1996.
    The proposed large mesh closure is 10 days longer than what was 
recommended by the MATRT as explained in response to comment number 80.
    Although monkfish may not be able to be legally fished off North 
Carolina in the future, the mesh size (i.e, greater than 7 inch (17.78 
cm) mesh) may be used to fish for other species. As mentioned 
previously, it is the type of gear and not the target species that is 
of concern to harbor porpoise bycatch reduction.
    There are observer data south of Ocracoke, in fact, observer data 
span the entire North Carolina coast. NMFS agrees that observer data 
through 1996 shows that there are no observed takes from January 
through April south of Cape Hatteras. However, this is the boundary 
that was agreed to by the MATRT and is documented in the MATRT report. 
Additionally, even though stranding data were not used in developing 
the plan, stranding data do indicate that there is a gillnet fishery 
interaction problem south of Cape Hatteras. Primarily because it was a 
MATRT recommendation, NMFS is retaining the boundary of the plan at the 
North Carolina/South Carolina boundary.
    Comment 83: One commenter supported a 30-day closure from mid-

[[Page 66483]]

February through mid-March rather than allowing individual fishermen to 
determine the 30-day block.
    Response: The final rule implements the 30-day closure from mid-
February to mid-March.
    Comment 84: One commenter noted that the MATRT was generally 
supportive of a pinger study in the Mid-Atlantic. If pingers are 
effective in New England, they should also be effective in the Mid-
Atlantic. The commenter questioned why NMFS is only proposing time/area 
closures and gear modifications and not supporting a pinger study in 
the Mid-Atlantic. Several commenters stated that the industry has 
indicated support for experimental pinger studies, and questioned why 
NMFS suggests only time/area closures to achieve goals and recommended 
that Mid-Atlantic fishermen should be given the option of choosing 
between gear modifications and time/area closures and participating in 
experimental fisheries using pingers. Two commenters stated that no 
consensus was reached in the MATRT because of the unjustified 
objections of one scientist/advocate and a small number of conservation 
members.
    Response: See response to comment 41 for a discussion of why 
pingers were not chosen as an alternative in the Mid-Atlantic. NMFS 
agrees that the industry indicated support for a pinger study in the 
Mid-Atlantic but disagrees that objections were of lesser magnitude or 
lesser justification. Both points of view were strongly supported by 
respective advocates.
    Comment 85: One comment supported the determination not to use 
pingers in the Mid-Atlantic.
    Response: This component of the plan differs from the GOM component 
because rather than using a series of time and areas closed to fishing 
and times and areas where acoustic deterrents are required, the Mid-
Atlantic portion requires a suite of gear modifications. The 
distinction in management measures between the two regions is 
appropriate in this case for a number of reasons. The regions differ 
markedly in stages of development with regard to harbor porpoise 
conservation. Whereas the GOMTRT and similar groups have been meeting 
and proposing various bycatch reduction measures for the GOM for many 
years, the MATRT has only met in the last two years. The GOMTRT 
proposed a number of measures initially which did not include mandated 
pinger use prior to the current recommendation. Based on new 
information, those measures were determined to be unsuccessful in 
achieving the PBR level. With regard to the use of pingers as an 
appropriate management measure in the GOM, no data exist to support 
other options, except for total closure to sink gillnet fishing. In the 
Mid-Atlantic, data indicated other options in the form of gear 
modifications might be successful in reducing bycatch without some of 
the uncertainties surrounding widespread pinger use.
    For the Mid-Atlantic area, the HPTRP would institute the first set 
of management measures to reduce harbor porpoise bycatch in that 
region. Since a number of options are available which may be 
successful, NMFS would implement non-acoustic measures before proposing 
pinger testing. Additionally, the MATRT did not fully support a pinger 
experiment in the Mid-Atlantic area at this time. The gear 
modifications and time/area closures recommended by the MATRT and 
included in this final rule are expected to be sufficient.
    Comment 86: One commenter questioned the justification for the 
prohibition of tie downs in the small mesh gillnet fisheries for the 
sole purpose of avoiding the potential for effort shifts (i.e., into 
the monkfish fishery). The commenter stated that this is inconsistent 
with NMFS' stated intent to avoid subfishery-specific regulations, it 
is a regional council issue, and it is non-substantive since inshore 
gillnet fishermen do not tie down their nets because that would 
decrease harvest efficiency. Another commenter argued that given the 
monkfish and dogfish proposed management measures under the FMPs, it is 
highly unlikely that individual fishermen will try to circumvent the 
monkfish regulations and land monkfish through tieing down their nets.
    Response: It is difficult to speculate what fishermen will do. 
While it is true that this overall plan is meant to avoid the sub-
fishery specific regulations and while the potential for effort shifts 
is speculative, removing this uncertainty is important to this HPTRP 
being able to reach its goals. It is unclear why the prohibition would 
be a problem to fishermen since the commenter states that inshore 
fishermen do not tie-down their nets for any other reason.
    Comment 87: One commenter noted that the proposed rule responded to 
their comment addressing concern over the boundary line between the GOM 
and Mid-Atlantic, but they were still not satisfied with where the line 
was drawn. The recommendation is to use the boundary between the New 
England and Mid-Atlantic FMCs as specified in the Magnuson-Stevens Act, 
with the exception of the GOM closed area south of Cape Cod that is 
slightly west of the two Councils. Further the commenter recommended 
that vessels employing small mesh less than 5 inches (12.7 cm) should 
not be subject to twine size modification requirements and noted that 
all small mesh less than 7 inches (17.78 cm) will still have to comply 
with the closure in the New Jersey Mudhole from February 15 through 
March 15 and other requirements.
    Response: NMFS maintains the position as stated in the proposed 
rule, that the line used to separate the two plans indicates the area 
where the characteristics of the fisheries on either side of that line 
diverge; it is a line already familiar to fishermen because it is used 
for fishery management purposes, and is overall a more appropriate 
boundary than a purely administrative boundary.
    NMFS has changed the requirements for the small mesh fishery. Mesh 
sizes of 5 inches (12.7 cm) and less will not have to comply with the 
management measures at this time.
    Comment 88: One commenter stated that NMFS should commit to 
providing observer coverage to small mesh fishery because data are 
lacking.
    Response: NMFS has already provided observer coverage during 1998 
to the Mid-Atlantic small mesh fishery and plans to continue such 
coverage in the future.

Comments on Enforcement

    Comment 89: One commenter stated that enforcement of fishing in 
closed areas or fishing without pingers must be enforced.
    Response: NMFS agrees and is currently investigating information 
concerning noncompliance.
    Comment 90: Two commenters suggested that NMFS can address the 
difficulty in inspecting pingers by requiring that working pingers be 
on all nets at all times, except for the summer months when porpoise 
are not interacting with the fishery. This may also facilitate dockside 
inspection and remove some of the enforcement concerns.
    Response: NMFS is addressing the difficulty in inspecting pingers 
by developing an enforcement hydrophone. NMFS is not proposing 
deployment of pingers on every gillnet in the Gulf of Maine during the 
time harbor porpoise are interacting with the fishery for several 
reasons. First, the overall environmental effects of widespread pinger 
use cannot be predicted with current information and research is just 
beginning at this point. Habituation and displacement of harbor 
porpoise and questions of pingers attracting seals are

[[Page 66484]]

still being evaluated. Second, the plan appears to be able to reach its 
bycatch reduction goal by a more limited approach. Requiring pingers on 
every net would increase the economic burden to fishermen, when a more 
limited version that will achieve plan goals is available.
    Comment 91: One commenter recommended that NMFS expand the HPTRP 
and the EA to provide a thorough description of the steps that could be 
taken to ensure that pingers are properly deployed and maintained.
    Response: The HPTRP requires fishermen to attend a certification 
program in order to fish with pingers in areas that otherwise are 
closed by the HPTRP. In addition, outreach and education will be 
ongoing during plan implementation and will include information on 
proper deployment and maintenance of pingers.
    Comment 92: One commenter recommended that NMFS provide regulatory 
guidance as to how NMFS intends to certify and enforce proposed pinger 
parameters.
    Response: The regulations include specifications for pingers that 
are required to be used in the NE multispecies gillnet fishery. All 
pingers used in this fishery must meet those specifications. Pinger 
manufacturers would need to provide documentation to consumers that 
their pingers meet the specifications of these regulations. NMFS is not 
requiring that these manufacturers have their pingers certified by an 
independent company to ensure that they meet the specifications. NMFS 
will be periodically monitoring whether the pingers used by the fishery 
meet the specifications.
    Because the harbor porpoise bycatch rate will be carefully 
monitored, NMFS expects that both manufacturers and fishermen will be 
aware of the importance of technically correct and properly maintained 
pingers. If bycatch goals are not achieved because of improper pinger 
use or non-effective acoustics, more restrictive measures to reduce 
bycatch may be warranted. Additionally, a specific research program 
begins with rule implementation that will monitor pingers during normal 
use to ensure that the acoustics of pingers do not change with time, 
and that they maintain the acoustical characteristics specified by the 
manufacturer.
    Comment 93: Two commenters felt that rather than focusing on 
subfisheries according to the MATRT recommendations, NMFS has extended 
the regulations to all gillnet activity because of enforcement 
concerns. One commenter suggested that the basis for NMFS differing 
with the MATRT's ``solution'' was that NMFS does not have enough 
manpower to enforce the regulations. Those fisheries without 
interaction should not be penalized for NMFS' lack of enforcement 
staff.
    Response: Enforcement of regulations is a valid concern but the 
enforcement issues with regard to the HPTRP are not just a matter of 
adequate staff. A regulation must be legally as well as 
administratively enforceable. For example, a call-in system, which was 
recommended by the MATRT, is very difficult to enforce because there is 
no defined monkfish fishery or dogfish fishery at this time, so no one 
is legally defined as a monkfisherman or a dogfisherman. To do so under 
this rule, being promulgated under the MMPA, would go well beyond the 
scope of this plan. NMFS did not contemplate instituting a permit 
system of the dogfish and monkfish fisheries pending the development of 
permit systems under the Magnuson-Stevens Act system. Without a permit 
system, a fisherman can say they are targeting any number of species 
and still use the same gear that will take harbor porpoise. NMFS' 
intent in this HPTRP is to avoid the opportunity to take harbor 
porpoise because of the gear employed.

Classification

    The Assistant Administrator, NMFS, determined that the TRP is 
necessary for the conservation of harbor porpoise and is consistent 
with the MMPA and other laws.
    This rule has been determined to be significant for purposes of 
E.O. 12866.
    NMFS prepared an FRFA that describes the impact of this rule on 
small entities. The need for, and objectives of this rule and a summary 
of the significant issues are described elsewhere in this preamble. 
Comments on the economic aspects of the proposed rule (comments 55, 56, 
64) and NMFS' responses to those comments stated in the preamble to the 
final rule are incorporated in the FRFA. The GOM sink gillnet and Mid-
Atlantic coastal gillnet fisheries are directly affected by the action 
and are composed primarily of small business entities.
    In formulating this action, NMFS considered a number of 
alternatives: Alternative 1, the proposed action or Preferred 
Alternative; Alternative 2, no action; Alternative 3, wide-spread use 
of pingers; and Alternative 4, wide-spread time and area closures. In 
addition, a number of alternatives suggested in the comments were also 
considered. These alternatives were discussed in comments 19, 20, 21, 
22, 23 and 41 above.
    Alternative 1, a combination of area closures, pinger requirements, 
and gear modifications, is the preferred alternative because it will 
achieve the goals of the MMPA while minimizing the overall economic 
impact to the affected fisheries.
    Under Alternative 1, it is estimated that 95 vessels (35 percent of 
total, 54 percent of impacted) would see their total costs increase 
more than 5 percent. The cost increase is due to purchasing new gear or 
pingers, and the cost of gear marking requirements. Vessels could avoid 
these cost increases by not fishing during the time periods when they 
would have to modify their gear or by using pingers. However, they 
would then lose some percentage of their yearly profit. The total 
economic losses of the Preferred Alternative to the GOM and the Mid-
Atlantic regions are estimated to be between $609 thousand dollars and 
$4.5 million dollars, depending on the number of vessels that can shift 
their effort to open areas and the number that use pingers.
    The costs associated with this rule are not related to reporting 
requirements. To the extent that the rule would allow fishery 
participants to select whether to acquire a new gear type or to avoid 
the time/area closures, performance requirements can be substituted for 
design requirements at the participant's discretion. Since most of the 
affected entities are small entities, providing an exemption for small 
entities would not enable the agency to meet the conservation and 
management goals of the MMPA.
    Currently, the NE Multispecies sink gillnet fishery is subject to 
regulations under the NE Multispecies FMP. Recent groundfish 
conservation measures for the Gulf of Maine were proposed under 
Framework Adjustment 25 to the NE Multispecies FMP. The predominant 
Mid-Atlantic gillnet fisheries are not subject to regulations under an 
FMP at this time. The final rule is designed to complement Framework 25 
and other fishery management regulations. The recommendations of the 
GOMTRT were modified by NMFS to take into consideration the combined 
effect of Framework 25 and the HPTRP on Gulf of Maine fishermen.
    Under Alternative 2, there would be no additional costs to the 
fleet either through gear modifications and purchase of pingers or 
through losses in surplus due to time and area closures. Therefore, 
based on costs which the fleet would incur, this alternative is the 
least costly when compared with the Preferred Alternative or non-
preferred alternatives. However, there is a much larger cost in terms 
of foregone harbor

[[Page 66485]]

porpoise protection. Based on the contingent valuation study conducted 
by the University of Maryland (Strand, et al., 1994), households in 
Massachusetts were willing to pay between $176 and $364 to eliminate 
human induced mortality of 1,000 harbor porpoise. Using the lower 
figure of $176 multiplied by the number of Massachusetts households, 
and amortizing the total using a 7 percent rate yielded a yearly value 
of roughly $28 million. This means that decreasing mortality by 1,000 
animals would increase consumer surplus by $28 million. Therefore, when 
compared against the other alternatives, the status quo is far inferior 
because it does not achieve the same level of consumer surplus due to a 
higher level of harbor porpoise mortality.
    Alternative 3 would require all vessels fishing between September 
and May in the Gulf of Maine and between January and April in the Mid-
Atlantic to use pingers. Each vessel owner would decide whether to 
purchase pingers based on his or her own set of circumstances. Each 
pinger was estimated to cost $50 dollars based on information obtained 
from NMFS Sea Sampling personnel. It is assumed that there would be one 
pinger required per net, and one on each buoy line. Using the average 
number of nets and strings fished in each region, a weighted average 
$3,437 dollars per vessel was estimated for the cost of pingers which 
translates into a total fleet cost of $608 thousand dollars.
    The cost of pingers was estimated to be $608 thousand dollars if 
all vessels purchase pingers. However, some vessels may be unable to 
afford pingers. This would increase the total losses because vessels 
that were unable to afford pingers would have to stay tied up at the 
dock and, therefore, lose revenue. It is assumed that losses in 
producer surplus are linearly related to the percent of vessels that 
purchase pingers. For example, if 50 percent of the vessels use 
pingers, then the losses in producer surplus and crew rents will be 
reduced by 50 percent. Total pinger costs are also estimated based on 
the percent of vessels which purchase pingers. Losses calculated using 
these assumptions are estimated to be between zero and $7.4 million 
dollars.
    In reality, vessels can either purchase pingers and continue to 
fish and shift their effort to other areas, or elect not to purchase 
pingers and stay tied up at the dock. Because the time and areas where 
pingers are required are quite extensive, it is unlikely that vessels 
will be able to switch areas and continue fishing without pingers. 
Without a more formal model, it is not possible to predict the number 
of vessels which will adopt either strategy.
    This alternative is not preferred because it is unclear whether it 
could achieve the bycatch reduction goals, particularly in the Mid-
Atlantic, because pingers have not been proven to be effective in this 
area. In addition, there are a number of scientific concerns regarding 
the impacts of widespread pinger use on harbor porpoise and other 
marine organisms. This alternative is not preferred given that more 
data is needed on the ecosystem effects of widespread pinger and given 
that other methods are available in the Mid-Atlantic to reduce harbor 
porpoise bycatch.
    Alternative 4 would result in a total loss in producer surplus and 
crew rents for both regions of $7.4 million dollars. Overall, 177 
vessels would be impacted for a per vessel loss of roughly $42 thousand 
dollars. As described in the FRFA, the cost to the fishery in terms of 
economic impacts would vary by area closure. Refer to the FRFA for a 
discussion of the impacts of this alternative based on the closure 
variations.
    Vessels could shift their operations to other areas and make up for 
any revenue loss. This puts bounds on the losses of between zero, if 
revenue was totally replaced in other areas, and $7.4 million dollars. 
For this alternative, it will be more difficult for vessels to shift to 
other times and areas because the areas are all closed at the same 
time. There is the opportunity for vessels from New England to move to 
the Mid-Atlantic in the fall or to the NE closure area. Some may do so, 
but it is likely that most would not be able to switch. Gillnet vessels 
have traditionally fished in certain times and areas depending on many 
factors, including the vessels homeport. Because these times and areas 
are so extensive, it is unlikely that many vessels will be able to 
shift their operations and replace lost revenue.
    Because the times and areas designated for closure are so 
extensive, it is likely that this alternative would reduce harbor 
porpoise mortality to close to zero. The trade-off for this reduction 
would be a much higher cost to the fishing fleet and possibly a higher 
likelihood of business failure; therefore this alternative is not 
preferred. However, it is not possible to evaluate the trade-off 
between reduced harbor porpoise mortality and increased costs. Based on 
the contingent valuation study discussed earlier (Strand et al., 1994), 
harbor porpoise are highly valued by consumers.
    The potential losses of the Preferred Alternative discussed above 
depend on assumptions about how individual vessels will react to the 
regulations. In most cases, these assumptions were very conservative in 
order to estimate the maximum possible losses. Non-Preferred 
Alternative 4 has the potential to cost more than either the Preferred 
Alternative, Non-Preferred Alternative 2 and Non-Preferred Alternative 
3. This is because the area closures are large, and last for multiple 
months. The losses for Alternative 4 are expected to be $7.4 million 
dollars, and it is unlikely that vessels would be able to fish 
elsewhere to offset their losses. Allowing the use of pingers in the 
Preferred Alternative will lower the cost to the fleet, even with the 
price of pingers included. The provisions in the plan which allows the 
use of pingers in the New England region lowers the losses in the 
Preferred Alternative for New England vessels to $0.49 million dollars 
if all vessels elected to use pingers. The actual losses which will 
occur depend on which strategy vessels adopt to continue operating in 
the face of these regulations. Clearly, allowing pingers to be used 
will lower the cost to the fleet because it gives vessels added 
flexibility.
    Non-Preferred Alternative 2 is lower in cost than any of the 
alternatives in terms of losses the fleet will incur. However, the 
losses in consumer surplus because of high harbor porpoise mortality 
are likely to be far greater than the losses in producer surplus and 
crew rents. If the contingent valuation study conducted by the 
University of Maryland is accurate, then the value of losses from 
harbor porpoise mortality would be far greater than any of the other 
options.
    Non-Preferred Alternative 3 is the least costly alternative if all 
vessels impacted by the plan chose to fish with pingers. To the extent 
that some vessels would not be able to afford pingers, the costs will 
increase. Implicit in the analysis of this alternative was the 
assumption that the mortality reduction was the same as the Preferred 
Alternative. This assumption may not be true because pingers have not 
been formally tested in some of the times and areas where they would be 
allowed under this alternative. If mortality was higher, gains in 
consumer surplus would not be as high as under the Preferred 
Alternative, which means this alternative would have lower benefits 
than the Preferred Alternative.
    In response to public comments, NMFS shortened the time periods 
when pingers would be required in certain areas, and reduced the number 
of net

[[Page 66486]]

tags required in the Mid-Atlantic region. This lowered the estimated 
costs by approximately $613,000 from the proposed rule which was 
submitted.
    In summary, Alternative 1 will allow NMFS to achieve MMPA goals, 
reduction of harbor porpoise bycatch to acceptable levels, while 
minimizing the overall impact to affected fisheries, compared to the 
other available alternatives. Alternative 1 accomplishes this by 
placing carefully considered time-area closures in place, and allowing 
the use of bycatch reduction devices instead of total closures. This 
allows fishermen to continue to generate revenue. Further, Alternative 
1 is less costly than other alternatives that would require pingers in 
the Gulf of Maine the entire time harbor porpoise are present there. A 
copy of this analysis is available from NMFS (see ADDRESSES).
    This rule contains a collection-of-information requirement subject 
to the Paperwork Reduction Act (PRA). The collection of this 
information has been approved by the Office of Management and Budget, 
OMB control number 0648-0357.
    Notwithstanding any other provision of law, no person is required 
to respond to nor shall a 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 the OMB control 
number.
    The final rule requires nets in the Mid-Atlantic region to be 
marked in order to identify the vessel and enforce net cap provisions. 
It is estimated that each tag will take 1 minute to attach to the net, 
and each net requires one net tag. The total number of nets which will 
need to be tagged is estimated by assuming that combination gillnet 
vessels are, on average, fishing 60 nets, and all other vessels are, on 
average, fishing 30 nets. This gives a weighted average of 49 nets per 
vessel. Using these figures, the total burden hours is estimated to be 
49 minutes per vessel.
    The 76 vessel owner/operators will have to order net tags, 
estimated at 2 minutes per request. Depending on whether net tags are 
lost or damaged, vessels are expected to only have to comply once over 
three years. The annual average over the 3 years would be 25.3 vessels 
affected.
    Send comments regarding this burden estimate, or any other aspect 
of this data collection, including suggestions for reducing the burden, 
to NMFS and OMB (see ADDRESSES).
    An informal consultation under the ESA was concluded for the HPTRP 
on November 12, 1998. As a result of the informal consultation, the 
Assistant Administrator determined that these actions are not likely to 
adversely affect endangered or threatened species or their critical 
habitat.
    The 30-day delayed effectiveness requirement under the 
Administrative Procedure Act has been shortened in part. The 
requirements in 50 CFR 229.33(a)(2), the Mid-Coast Closure Area, become 
effective immediately upon publication; the requirements in 50 CFR 
229.33(a)(5), the Offshore Closure Area, become effective December 8, 
1998; and 50 CFR 229.33 (a)(3), (a)(4), the Massachusetts Bay and Cape 
Cod South Closure Areas become effective December 16, 1998. For all 
other components of the HPTRP, the requirements become effective 
January 1, 1999. The shortened time periods are necessary to reduce 
take of harbor porpoise at the beginning of the high-take season. The 
areas identified have different effective dates based on the need to 
have take reduction measures in place for harbor porpoise and on the 
ability of fishermen in that area to acquire additional pingers. 
Specifically, the current closure in the Mid-Coast area under the 
Magnuson-Stevens Act allows fishermen to fish with pingers in the 
closed area from November 1 through December 31. In addition, 
experimental fisheries have occurred in this area from September 15 
through October 31 and again also during the March 25 through April 25 
Magnuson-Stevens Act harbor porpoise closure. Therefore, most of the 
Mid-Coast fleet that intends to fish in December already has gear 
outfitted with pingers. A limited number of fishermen in both the Cape 
Cod South and Massachusetts Bay areas already have pingers from limited 
experimental fisheries that occurred in those areas. This means that 
fishermen that will need to purchase pingers in December are those 
fishing in the Cape Cod South, Offshore, and Massachusetts Bay Closure 
areas. NMFS has inquired and believes that enough pingers will be 
available to supply fishermen that choose to fish at that time. These 
areas will have a week to two weeks, depending on the area, to purchase 
the pingers and deploy them on the nets. Providing a delayed 
effectiveness period for requiring pingers in the Offshore Closure area 
a week later than the Mid-Coast area is justified because bycatch is 
known to be consistently high in the Mid-Coast area at the time this 
rule will be effective. Shortening the delay of effectiveness period 
for requiring pingers in the Offshore Closure area to a week less than 
other areas is justified because less than 10 fishermen are known to 
use the Offshore Closure area year round, and moreover, it is an area 
of high bycatch. Accordingly, the Assistant Administrator finds that 
there is good cause to shorten the 30-day delayed effectiveness period 
under 5 U.S.C. 553(d)(3) regarding pinger requirements.

References

Kraus, S., A. Read, E. Anderson, A. Solow, T. Spradlin, and J. 
Williamson. 1995. A field test of the use of acoustic alarms to 
reduce incidental mortality of harbor porpoise in gillnets. Draft 
final report to the Gulf of Maine Take Reduction Team.
Kraus, S., A. Read, E. Anderson, A. Solow, T. Spradlin, and J. 
Williamson. 1997. Acoustic alarms reduce porpoise mortality. Nature. 
Vol. 388: p.525.
Kraus, S., S. Brault, and K. Baldwin. 1997. A springtime field test 
of the use of pingers to reduce incidental mortality of harbor 
porpoises in gill nets. Draft Final Report.
Palka, D. 1997. Effects of Gear Characteristics on the Mid-Atlantic 
Harbor Porpoise Bycatch. Report to the Mid-Atlantic Take Reduction 
Team. Unpublished.
Reeves, R., R. Hofman, G. Silber, and D. Wilkinson. 1996. Acoustic 
deterrence of harmful marine mammal-fishery interactions: 
Proceedings of a workshop held in Seattle, Washington, 20-22 March 
1996. U.S. Dept. Commerce, NOAA Tech. Memo. NMFS-OPR-10, 68 pp.
RESOLVE, 1997. The Mid-Atlantic Take Reduction Team Report. 
Submitted to Mr. Rollie Schmitten, NMFS. Prepared by RESOLVE Center 
for Environmental Dispute Resolution, Washington, DC.
Wade, P.R. 1998. Calculating limits to the allowable human-caused 
mortality of cetaceans and pinnipeds. Marine Mammal Science. 14:1-
37.
Wade, P.R. and R.P. Angliss, 1997. Guidelines for Assessing Marine 
Mammal Stocks: Report of the GAMMS Workshop April 3-5, 1996, Seattle 
Washington. NOAA Technical Memorandum NMFS-OPR-12.
Waring, G., D. Palka, K. Mullin, J. Hain, L. Hansen, and K. Bisack. 
1997. U.S. Atlantic and Gulf of Mexico Marine Mammal Stock 
Assessments--1996. Woods Hole, MA: NMFS, NEFSC, NOAA Technical 
Memo., NMFS-NE-114.

List of Subjects in 50 CFR Part 229

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

    Dated: November 25, 1998.
Andrew A. Rosenberg,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

    For the reasons set out in the preamble, 50 CFR part 229 is amended 
as follows:

[[Page 66487]]

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 Sec. 229.2, definitions for ``Large mesh gillnet'', ``Mesh 
size'', ``Mudhole'', ``Small mesh gillnet'', ``Southern Mid-Atlantic 
waters'', ``Stowed'', ``Tie-down'', and ``Waters off New Jersey'' are 
added, in alphabetical order, to read as follows:


Sec. 229.2  Definitions.

* * * * *
    Large mesh gillnet means a gillnet constructed with a mesh size of 
7 inches (17.78 cm) to 18 inches (45.72 cm).
* * * * *
    Mesh size means the distance between inside knot to inside knot. 
Mesh size is measured as described in Sec. 648.80(f)(1) of this title.
* * * * *
    Mudhole means waters off New Jersey bounded as follows: From the 
point 40 deg.30' N. latitude where it intersects with the shoreline of 
New Jersey east to its intersection with 73 deg.20' W. longitude, then 
south to its intersection with 40 deg.05' N. latitude, then west to its 
intersection with the shoreline of New Jersey.
* * * * *
    Small mesh gillnet means a gillnet constructed with a mesh size of 
greater than 5 inches (12.7 cm) to less than 7 inches (17.78 cm).
* * * * *
    Southern Mid-Atlantic waters means all state and Federal waters off 
the States of Delaware, Maryland, Virginia, and North Carolina, bounded 
on the north by a line extending eastward from the northern shoreline 
of Delaware at 38 deg.47' N. latitude (the latitude that corresponds 
with Cape Henlopen, DE), east to its intersection with 72 deg.30' W. 
longitude, south to the 33 deg.51' N. latitude (the latitude that 
corresponds with the North Carolina/South Carolina border), and then 
west to its intersection with the shoreline of the North Carolina/South 
Carolina border.
* * * * *
    Stowed means nets that are unavailable for use and that are stored 
in accordance with the regulations found in Sec. 648.81(e) of this 
title.
* * * * *
    Tie-down refers to twine used between the floatline and the lead 
line as a way to create a pocket or bag of netting to trap fish alive.
* * * * * *
    Waters off New Jersey means all state and Federal waters off New 
Jersey, bounded on the north by a line extending eastward from the 
southern shoreline of Long Island, NY at 40 deg.40' N. latitude, on the 
south by a line extending eastward from the northern shoreline of 
Delaware at 38 deg.47' N. latitude (the latitude that corresponds with 
Cape Henlopen, DE), and on the east by the 72 deg.30' W. longitude. 
This area includes the Mudhole.
* * * * *
    3. In Sec. 229.3, paragraphs (k) through (p) are added to read as 
follows:


Sec. 229.3  Prohibitions.

* * * * *
    (k) It is prohibited to fish with, set, haul back, possess on board 
a vessel unless stowed, 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)(1) through (a)(6), except with the use of 
pingers as provided in Sec. 229.33 (d)(1) through (d)(4). 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).
    (l) It is prohibited to fish with, set, haul back, possess on board 
a vessel unless stowed, or fail to remove any gillnet gear from the 
areas and for the times as specified in Sec. 229.34 (b)(1) (ii) or 
(iii) or (b)(2)(ii).
    (m) It is prohibited to fish with, set, haul back, possess on board 
a vessel unless stowed, or fail to remove any large mesh or small mesh 
gillnet gear from the areas and for the times specified in Sec. 229.34 
(c)(1) through (c)(4) unless the gear complies with the specified gear 
restrictions set forth in those provisions.
    (n) Beginning on January 1, 1999, it is prohibited to fish with, 
set, or haul back sink gillnets or gillnet gear, or leave such gear in 
closed areas where pingers are required, as specified under Sec. 229.33 
(c)(1) through (c)(4), unless a person on board the vessel during 
fishing operations possesses a valid pinger certification training 
certificate issued by NMFS.
    (o) Beginning on January 1, 2000, it is prohibited to fish with, 
set, haul back, or possess any large mesh or small mesh gillnet gear in 
Mid-Atlantic waters in the areas and during the times specified under 
Sec. 229.34(d), unless the gear is properly tagged in compliance with 
that provision and unless a net tag certificate is on board the vessel. 
It is prohibited to refuse to produce a net tag certificate or net tags 
upon the request of an authorized officer.
    (p) Net tag requirement. Beginning on January 1, 2000, all gillnets 
fished, hauled, possessed, or deployed during the times and areas 
specified below must have one tag per net, with one tag secured to 
every other bridle of every net and with one tag secured to every other 
bridle of every net within a string of nets. This applies to small mesh 
and large mesh gillnet gear in New Jersey waters from January 1 through 
April 30 or in southern Mid-Atlantic waters from February 1 through 
April 30. The owner or operator of fishing vessels must indicate to 
NMFS the number of gillnet tags that they are requesting up to the 
maximum number of nets allowed in those paragraphs and must include a 
check for the cost of the tags. Vessel owners and operators will be 
given notice with instructions informing them of the costs associated 
with this tagging requirement and directions for obtaining tags. Tag 
numbers will be unique for each vessel and recorded on a certificate. 
The vessel operator must produce the certificate and all net tags upon 
request by an authorized officer.
    4. In subpart C, new Secs. 229.33 and 229.34 are added to read as 
follows:


Sec. 229.33  Harbor Porpoise Take Reduction Plan Implementing 
Regulations--Gulf of Maine.

    (a) Restrictions--(1) Northeast Closure Area. From August 15 
through September 13 of each fishing year, it is prohibited to fish 
with, set, haul back, possess on board a vessel unless stowed, or fail 
to remove sink gillnet gear or gillnet gear capable of catching 
multispecies, from Northeast Closure Area. 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). The Northeast Closure Area 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 September 15 through May 31, it is 
prohibited to fish with, set, haul back, possess on board a vessel 
unless stowed, or fail to remove sink gillnet gear or gillnet gear 
capable of catching multispecies. 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). The Mid-

[[Page 66488]]

Coast Closure Area 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                    42 deg.00'             69 deg.30'
MC7                    43 deg.30'             69 deg.30'
MC8                    43 deg.00'             69 deg.00'
MC9                    (\2\)                  69 deg.00'
------------------------------------------------------------------------
\1\ Massachusetts shoreline.
\2\ Maine shoreline.

    (3) Massachusetts Bay Closure Area. From December 1 through May 31, 
it is prohibited to fish with, set, haul back, possess on board a 
vessel unless stowed, or fail to remove sink gillnet gear or gillnet 
gear capable of catching multispecies from the Massachusetts Bay 
Closure Area, except with the use of pingers as provided in paragraph 
(d)(2) 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). 
The Massachusetts Bay Closure Area 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\)
MC7                    42 deg.00'             (\1\)
------------------------------------------------------------------------
\1\ Massachusetts shoreline.
\2\ Cape Cod shoreline.

    (4) Cape Cod South Closure Area. From December 1 through May 31, it 
is prohibited to fish with, set, haul back, possess on board a vessel 
unless stowed, or fail to remove sink gillnet gear or gillnet gear 
capable of catching multispecies from Cape Cod South Closure Area, 
except with the use of pingers as provided in paragraph (d)(3) 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). The Cape Cod 
South Closure Area 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.

    (5) Offshore Closure Area. From November 1 through May 31, it is 
prohibited to fish with, set, haul back, possess on board a vessel 
unless stowed, or fail to remove sink gillnet gear or gillnet gear 
capable of catching multispecies from Offshore Closure Area, except for 
the use of pingers as provided in Sec. 229.33(d)(4). This prohibition 
does not apply to a single pelagic gillnet (as described in 
Sec. 648.81(f)(2)(ii) of this title). The Offshore Closure Area is the 
area bounded by straight lines connecting the following points in the 
order stated:

                          Offshore Closure Area
------------------------------------------------------------------------
        Point                 N. Lat.                  W. Long.
------------------------------------------------------------------------
OFS1                   42 deg.50'             69 deg.30'
OFS2                   43 deg.10'             69 deg.10'
OFS3                   43 deg.10'             67 deg.40'
OFS4                   42 deg.10'             67 deg.40'
OFS5                   42 deg.10'             69 deg.30'
------------------------------------------------------------------------

    (6) Cashes Ledge Closure Area. For the month of February of each 
fishing year, it is prohibited to fish with, set, haul back, possess on 
board a vessel unless stowed, or fail to remove sink gillnet gear or 
gillnet gear capable of catching multispecies from the Cashes Ledge 
Closure Area. This prohibition does not apply to a single pelagic 
gillnet (as described in Sec. 648.81(f)(2)(ii) of this title). The 
Cashes Ledge Closure Area is the area 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'             69 deg.00'
CL2                    42 deg.30'             68 deg.30'
CL3                    43 deg.00'             68 deg.30'
CL4                    43 deg.00'             69 deg.00'
CL5                    42 deg.30'             69 deg.00'
------------------------------------------------------------------------

    (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 (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).
    (2) Pinger attachment. 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.
    (c) Pinger training and certification. Beginning on January 1, 
1999, the operator of a vessel may not fish with, set or haul back sink 
gillnets or gillnet gear, or allow such gear to be in closed areas 
where pingers are required as specified under paragraph (b) of this 
section, unless the operator has satisfactorily completed the pinger 
certification training program and possesses on board the vessel a 
valid pinger training certificate issued by NMFS. Notice will be given 
announcing the times and locations of pinger certification training 
programs.
    (d) Use of pingers in closed areas--(1) Vessels, subject to the 
restrictions and regulations specified in paragraph (a)(2) of this 
section, may fish in the Mid-coast Closure Area from September 15 
through May 31 of each fishing year, provided that pingers are used in 
accordance with the requirements of paragraphs (b) (1) and (2) of this 
section.
    (2) Vessels, subject to the restrictions and regulations specified 
in paragraph (a)(3) of this section, may fish in the Massachusetts Bay 
Closure Area from December 1 through the last day of February and from 
April 1 through May 31 of each fishing year, provided that pingers are 
used in accordance with the requirements of paragraphs (b) (1) and (2) 
of this section.
    (3) Vessels, subject to the restrictions and regulations specified 
in paragraph (a)(4) of this section, may fish in the Cape Cod South 
Closure Area from December 1 through the last day of February and from 
April 1 through May 31 of each fishing year, provided that pingers are 
used in accordance with the requirements of paragraphs (b) (1) and (2) 
of this section.
    (4) Vessels, subject to the restrictions and regulations specified 
in paragraph (a)(5) of this section, may fish in the Offshore Closure 
Area from November 1 through May 31 of each fishing year, with the 
exception of the Cashes Ledge Closure Area. From February 1 through the 
end of February, the area within the Offshore Closure Area defined as 
``Cashes Ledge'' is closed to all fishing with sink gillnets. Vessels 
subject to the restrictions and regulation specified in paragraph 
(a)(5) of this section may fish in the Offshore Closure Area outside 
the Cashes Ledge Area from February 1 through the end of February 
provided that pingers are used in accordance with the requirements of 
paragraphs (b) (1) and (2) of this section.

[[Page 66489]]

    (e) Other special measures. The Assistant Administrator may revise 
the requirements of this section through notification published in the 
Federal Register if:
    (1) After plan implementation, NMFS determines that pinger 
operating effectiveness in the commercial fishery is inadequate to 
reduce bycatch to the PBR level with the current plan.
    (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.


Sec. 229.34  Harbor Porpoise Take Reduction Plan--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. 
longitude and on the south by the North Carolina/South Carolina border 
(33 deg.51' N. latitude), except for the areas exempted in paragraph 
(a)(2) of this section.
    (2) Exempted waters. All waters landward of the first bridge over 
any embayment, harbor, or inlet will be exempted. The regulations in 
this section do not apply 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

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)
39 deg. 16.70' N 75 deg. 14.60' W TO 39 deg. 11.25' N 75 deg. 23.90' 
W (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)
37 deg. 52.' N 75 deg. 24.30' W TO 37 deg. 11.90' N 75 deg. 48.30' W 
(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) Closures--(1) New Jersey waters. From April 1 through April 20, 
it is prohibited to fish with, set, haul back, possess on board a 
vessel unless stowed, or fail to remove any large mesh gillnet gear 
from the waters off New Jersey.
    (2) Mudhole. From February 15 through March 15, it is prohibited to 
fish with, set, haul back, possess on board a vessel unless stowed, or 
fail to remove any large mesh or small mesh gillnet gear from the 
waters off New Jersey known as the Mudhole.
    (3) Southern Mid-Atlantic waters. From February 15 through March 
15, it is prohibited to fish with, set, haul back, possess on board a 
vessel unless stowed, or fail to remove any large mesh gillnet gear 
from the southern Mid-Atlantic waters.
    (c) Gear requirements and limitations--(1) Waters off New Jersey--
large mesh gear requirements and limitations. From January 1 through 
April 30 of each year, no person may fish with, set, haul back, possess 
on board a vessel unless stowed, or fail to remove any large mesh 
gillnet gear in waters off New Jersey, unless the gear complies with 
the specified gear characteristics. During this period, no person who 
owns or operates the vessel may allow the vessel to enter or remain in 
waters off New Jersey with large mesh gillnet gear on board, unless the 
gear complies with the specified gear characteristics or unless the 
gear is stowed. In order to comply with these specified gear 
characteristics, the gear must have all the following characteristics:
    (i) Floatline length. The floatline is no longer than 4,800 ft 
(1,463.0 m), and, if the gear is used in the Mudhole, the floatline is 
no longer than 3,900 ft (1,188.7 m).
    (ii) Twine size. The twine is at least 0.04 inches (0.090 cm) in 
diameter.
    (iii) Size of nets. Individual nets or net panels are not more than 
300 ft (91.44 m, or 50 fathoms), in length.
    (iv) 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.
    (v) Tie-down system. The gillnet is equipped with tie-downs spaced 
not more than 15 ft (4.6 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.
    (vi) Tagging requirements. Beginning January 1, 2000, the gillnet 
is equipped with one tag per net, with one tag secured to each bridle 
of every net within a string of nets.
    (2) Waters off New Jersey--small mesh gillnet gear requirements and 
limitations. From January 1 through April 30 of each year, no person 
may fish with, set, haul back, possess on board a vessel unless stowed, 
or fail to remove any small mesh gillnet gear in waters off New Jersey, 
unless the gear complies with the specified gear characteristics. 
During this period, no person who owns or operates the vessel may allow 
the vessel to enter or remain in waters off New Jersey with small mesh 
gillnet gear on board, unless the gear complies with the specified gear 
characteristics or unless the gear is stowed. In order to comply with 
these specified gear characteristics, the gear must have all the 
following characteristics:
    (i) Floatline length. The floatline is less than 3,000 ft (914.4 
m).
    (ii) Twine size. The twine is at least 0.031 inches (0.081 cm) in 
diameter.
    (iii) Size of nets. Individual nets or net panels are not more than 
300 ft (91.4 m or 50 fathoms) in length.
    (iv) 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.
    (v) Tie-down system. Tie-downs are prohibited.
    (vi) Tagging requirements. Beginning January 1, 2000, the gillnet 
is equipped with one tag per net, with one tag secured to each bridle 
of every net within a string of nets.
    (3) Southern Mid-Atlantic waters--large mesh gear requirements and 
limitations. From February 1 through April 30 of each year, no person 
may fish with, set, haul back, possess on board a vessel unless stowed, 
or fail to remove any large mesh gillnet gear in Southern Mid-Atlantic 
waters, unless the gear complies with the specified gear 
characteristics. During this period, no person who owns or operates the 
vessel may allow the vessel to enter or remain in Southern Mid-Atlantic 
waters with large mesh sink gillnet gear on board, unless the gear 
complies with the specified gear characteristics or unless the gear is 
stowed. In order to comply with these specified gear characteristics, 
the gear must have all the following characteristics:
    (i) Floatline length. The floatline is no longer than 3,900 ft 
(1,188.7 m).
    (ii) Twine size. The twine is at least 0.04 inches (0.090 cm) in 
diameter.
    (iii) Size of nets. Individual nets or net panels are not more than 
300 ft (91.4 m or 50 fathoms) in length.
    (iv) 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.

[[Page 66490]]

    (v) Tie-down system. The gillnet is equipped with tie-downs spaced 
not more than 15 ft (4.6 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.
    (vi) Tagging requirements. Beginning January 1, 2000, the gillnet 
is equipped with one tag per net, with one tag secured to each bridle 
of every net within a string of nets.
    (4) Southern Mid-Atlantic waters--small mesh gillnet gear 
requirements and limitations. From February 1 through April 30 of each 
year, no person may fish with, set, haul back, possess on board a 
vessel unless stowed, or fail to remove any small mesh gillnet gear in 
waters off New Jersey, unless the gear complies with the specified gear 
characteristics. During this period, no person who owns or operates the 
vessel may allow the vessel to enter or remain in Southern Mid-Atlantic 
waters with small mesh gillnet gear on board, unless the gear complies 
with the specified gear characteristics or unless the gear is stowed. 
In order to comply with these specified gear characteristics, the gear 
must have all the following characteristics:
    (i) Floatline length. The floatline is no longer than 2118 ft 
(645.6 m).
    (ii) Twine size. The twine is at least 0.03 inches (0.080 cm) in 
diameter.
    (iii) Size of nets. Individual nets or net panels are not more than 
300 ft (91.4 m or 50 fathoms) in length.
    (iv) 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.
    (v) Tie-down system. Tie-downs are prohibited.
    (vi) Tagging requirements. Beginning January 1, 2000, the gillnet 
is equipped with one tag per net, with one tag secured to each bridle 
of every net within a string of nets.
    (d) Other special measures. The Assistant Administrator may revise 
the requirements of this section through notification published in the 
Federal Register if:
    (1) After plan implementation, NMFS determines that pinger 
operating effectiveness in the commercial fishery is inadequate to 
reduce bycatch to the PBR level with the current plan.
    (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.
[FR Doc. 98-31957 Filed 11-25-98; 4:21 pm]
BILLING CODE 3510-22-P