[Federal Register Volume 64, Number 2 (Tuesday, January 5, 1999)]
[Proposed Rules]
[Pages 465-471]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-138]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 227

[Docket No. 981231331-8331-01; I.D. 122898G]


Threatened Fish and Wildlife; Listing of the Gulf of Maine/Bay of 
Fundy Population of Harbor Porpoise as Threatened Under the Endangered 
Species Act (ESA)

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

ACTION: Proposed rule; withdrawal.

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SUMMARY: NMFS has determined that listing of the Gulf of Maine/Bay of 
Fundy (GOM/BOF) population of harbor porpoise, Phocoena phocoena, as 
threatened under the ESA is not warranted at this time. Therefore, NMFS 
withdraws the January 7, 1993, proposal to list the GOM/BOF population 
of harbor porpoise as threatened under the ESA. Since publication of 
the proposal to list, additional information regarding the status of 
the GOM/BOF harbor porpoise population, its commercial fishery bycatch 
rate, and management actions implemented to reduce harbor porpoise 
bycatch have become available to justify reevaluation of the factors 
that prompted the original proposed listing.

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

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

SUPPLEMENTARY INFORMATION:

Background

    Prompted by 1989 and 1990 data indicating that the rate of harbor 
porpoise bycatch in the gillnet fishery was large relative to the 
available estimates of harbor porpoise abundance in the GOM/BOF, NMFS 
announced its intent on February 12, 1991, to review the status of 
harbor porpoise in U.S. waters for possible listing as threatened or 
endangered under the ESA. At the time that NMFS was reviewing harbor 
porpoise status, the Sierra Club Legal Defense Fund, on behalf of the 
International Wildlife Coalition and 12 other organizations, pursuant 
to 16 U.S.C. 1533(b), submitted a petition to NMFS (September 18, 1991) 
to add the GOM/BOF harbor porpoise population to the U.S. List of 
Endangered and Threatened Wildlife (50 CFR part 17), as a threatened 
species. NMFS determined that the petition presented substantial 
information indicating that the petitioned action might be warranted 
(56 FR 65044, Dec. 13, 1991). Under section 4(b)(3)(A) of the ESA, if a 
petition is found to present such information, a review of the status 
of the species concerned is mandated. To ensure a comprehensive status 
review, NMFS solicited information and comments specific to harbor 
porpoise in the GOM/BOF and adjacent waters.
    On May 5-8, 1992, NMFS conducted a workshop to review the status of 
the GOM/BOF harbor porpoise and adjacent populations (as described in 
Gaskin, 1984) offshore eastern North America (NMFS, 1992). Participants 
at that workshop reviewed the best available scientific data on the 
population structure, abundance, reproductive rates, and levels of 
bycatch for each of the populations considered. The information 
reviewed during the harbor porpoise workshop and that received

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during the request for information as part of the status review 
provided NMFS with the scientific information necessary to complete the 
status review and respond to the petition. NMFS concluded that the 
harbor porpoise in the GOM/BOF represented a population sufficiently 
discrete to justify management as a separate population under the ESA. 
The GOM/BOF population, as proposed, included all harbor porpoise whose 
range extended throughout waters of eastern North America from (and 
including) the BOF, Nova Scotia, south to eastern Florida.
    NMFS further concluded that the level of bycatch in the Northeast 
multispecies sink-gillnet fishery, as well as the known, but not 
quantified, level of bycatch outside the GOM including the Canadian BOF 
multispecies gillnet fishery, and the coastal southern New England/Mid-
Atlantic gillnet fisheries were a threat to the GOM/BOF harbor porpoise 
throughout all or a significant portion of its range. The bycatch-to-
abundance ratio indicated that the estimated bycatch by these fisheries 
needed to be reduced by more than 50 percent to be sustained by the 
present GOM/BOF harbor porpoise population. The regulatory measures in 
place at the time were considered inadequate to reduce this bycatch. As 
a result, NMFS proposed, in accordance with section 4(b)(3)(B) of the 
ESA, to list the GOM/BOF population of harbor porpoise as threatened 
under the ESA and provided for a 90-day comment period (58 FR 3108, 
January 7, 1993).
    Following publication of the proposed rule, NMFS received several 
comments requesting that public hearings be held throughout New 
England. In response to these requests, NMFS extended the comment 
period on the proposed rule until August 7, 1993 (58 FR 17569, April 5, 
1993).
    During the extended comment period, NMFS completed analyses of data 
from the 1992 harbor porpoise abundance surveys to estimate abundance 
and analyses of the 1992 observer data used to estimate total bycatch 
in the Northeast multispecies sink-gillnet fishery. These analyses were 
presented and discussed at a meeting of the NEFMC Groundfish Committee, 
Harbor Porpoise Subgroup, on June 16, 1993. The information presented 
indicated a decline in the bycatch between 1990 and 1992 and an 
increased abundance estimate in 1992 over 1991. Following this meeting 
(in a letter dated August 7, 1994), NEFMC requested a 6-month extension 
of the final decision-making period on the proposal to list harbor 
porpoise. An extension was appropriate because, according to NEFMC and 
others present at the June 16 meeting, the data presented by NMFS 
suggested that the GOM/BOF harbor porpoise population was not distinct 
and, thus, was not a species under the ESA.
    Under section 4 of the ESA, if there is a substantial disagreement 
regarding the sufficiency or accuracy of the available data relevant to 
the determination or revision concerned, NMFS may extend, for up to 6 
months, the 1-year period of determination. On November 8, 1993 (58 FR 
59230), in accordance with this provision, the date for the final 
determination on the proposal to list was extended for 6 months to 
allow for further data accrual and analyses regarding the harbor 
porpoise stock structure. In addition, during this extension, NMFS 
conducted further review of the bycatch trend, analysis of the 1993 
bycatch data prior to final determination, and further consideration of 
all data, including the abundance survey data, relevant to the final 
determination. NMFS reopened the comment period for an additional 30 
days (to close on August 11, 1994) to allow for public comment 
following completion of these analyses (59 FR 36158, July 15, 1994).
    The New England Harbor Porpoise Working Group (HPWG) met on July 
21, 1994, to discuss the 1992 bycatch data under consideration 
regarding the ESA listing proposal. The HPWG, formed in 1990, was 
composed of fishermen, environmentalists, and scientists whose purpose 
was to define the extent of the harbor porpoise problem and to identify 
solutions to reduce the incidental take of harbor porpoise in gillnets 
and to minimize the impacts on the fishery. The HPWG recommended that 
the updated bycatch estimates should be more fully explained so that 
public review and comment could provide more meaningful input to NMFS 
prior to the final listing determination. NMFS prepared a document in 
August 1994 that addressed HPWG concerns. The comment period on the 
proposed listing was scheduled to close on August 11, 1994, which would 
not have allowed enough time for public review of the NMFS document 
regarding HPWG concerns; therefore, the comment period on the proposed 
rule was further extended until September 11, 1994 (59 FR 41270). 
Additional meetings with conservation groups resulted in a decision to 
wait for 1995 data prior to proceeding with a listing determination.
    NMFS had not yet made a final determination when, in fiscal year 
1996, Congress imposed a 1-year moratorium on listing species under the 
ESA. During 1997 and 1998, NMFS has kept the listing issue under review 
in light of new population abundance and bycatch data, ongoing Fishery 
Management Council and NMFS fishery management efforts to reduce harbor 
porpoise bycatch, and the MMPA Section 118 Take Reduction Team (TRT) 
process. New bycatch data, new fishery regulations, and implementation 
of the HPTRP provide substantial new information to be considered in 
making the final listing determination. For a fuller discussion of the 
new data and management implementations, see the section below entitled 
``Summary of ESA Factors Affecting the Species''.

Summary of Comments and Responses

    Several significant comment period extensions and reopenings have 
occurred since publication of the original proposal to list GOM/BOF 
harbor porpoise. Recently, due to the passage of time, the availability 
of new/additional information and the desire to review the best 
scientific information available during the decision-making process, a 
document was published (63 FR 56596, October 22, 1998) in the Federal 
Register to reopen the comment period on the proposed listing of the 
GOM/BOF population of harbor porpoise for 30 days. This document 
summarized information that has become available since publication of 
the proposed rule to supplement our understanding of the species' 
status and factors affecting the species. The following comments and 
responses address existing concerns regarding the proposed listing of 
GOM/BOF porpoise under the ESA.

Comment on Definition of Distinct Population or ``Species''

    Comment 1: To consider harbor porpoise in the GOM/BOF for ESA 
listing, that group of animals needs to qualify as a distinct 
population or ``species'' under the ESA. Until recently, questions 
remained as to whether harbor porpoise in the GOM/BOF qualify for 
protection under the ESA's definition of ``species.''
    Response: On February 7, 1996, NMFS and the U.S. Fish and Wildlife 
Service (USFWS) published a policy to clarify their interpretation of 
the phrase ``distinct population segment of any species of vertebrate 
fish or wildlife'' for the purposes of listing, delisting, and 
reclassifying species under the ESA (61 FR 4722).
    The policy outlines three elements to be considered in deciding the 
status of a possible distinct population segment as endangered or 
threatened under the ESA: (1) Discreteness of the population segment in 
relation to the remainder of the species to which it belongs; (2) the

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significance of the population segment to the species to which it 
belongs; (3) the population segment's conservation status in relation 
to ESA standards for listing (i.e., is the population segment, when 
treated as if it were a species, endangered or threatened?).
    Discreteness. A population segment of a vertebrate species may be 
considered discrete if it satisfies either one of the following 
conditions: (a) It is markedly separated from other populations of the 
same taxon as a consequence of physical, physiological, ecological, or 
behavioral factors (quantitative measures of genetic or morphological 
discontinuity may provide evidence of this separation); or (b) it is 
delimited by international governmental boundaries within which 
differences in control of exploitation, management of habitat, 
conservation status, or regulatory mechanisms exist that are 
significant in light of section 4(a)(1)(D) of the ESA.
    The former criterion is particularly relevant for GOM/BOF harbor 
porpoise. Seasonal movements into the northern GOM/BOF during summer, 
the known summer reproductive periodicity and spatial segregation from 
other conspecific groups, and the subsequent dispersal during late fall 
and winter from the GOM south to at least North Carolina strongly 
suggest a unified, single breeding assemblage. All lines of biological 
evidence (genetic, life history, organochlorine, heavy metal and 
movement data) strongly support a species status recognition under the 
ESA.
    Significance. If a population segment is considered discrete under 
one or more of the above conditions, its biological and ecological 
significance should then be considered. NMFS, therefore, considered 
available scientific evidence of the discrete population segment's 
importance to the taxon to which it belongs. This consideration 
included, but was not limited to, the following: (a) Persistence of the 
discrete population segment in an ecological setting unusual or unique 
for this taxon; (b) evidence that loss of the discrete population 
segment would result in a significant gap in the range of a taxon; (c) 
evidence that the discrete population segment represents the only 
surviving natural occurrence of a taxon that may be more abundant 
elsewhere as an introduced population outside its historical range; or 
(d) evidence that the discrete population segment differs markedly from 
other populations of the species in its genetic characteristics.
    Specifically, the GOM/BOF population of harbor porpoise is an 
important upper trophic level predator in the GOM and there is a 
significant genetic difference between the GOM/BOF population of harbor 
porpoises and the Gulf of St. Lawrence and Newfoundland harbor 
porpoises. This difference is even greater when considering only 
females, thus indicating that females are more site-specific to the 
GOM/BOF than are males (Wang et al. 1996).
    Harbor porpoise that concentrate in the GOM/BOF during the 
reproductive season also occupy shelf water habitat of the eastern 
United States during other times of the year. Therefore, the viability 
of harbor porpoise in shelf waters of the eastern U.S. is strongly 
dependent on the existence of a healthy, reproductive population of 
harbor porpoise in the GOM/BOF.
    Based on current information available to NMFS, the only 
supportable decision that can be reached is that the harbor porpoise 
that occur in the GOM and BOF do represent a distinct population 
segment and, therefore, a species under section 3(15) of the ESA.
    Status. If a population segment is discrete and significant (i.e., 
it is a distinct population segment), its evaluation for an endangered 
or threatened status will be primarily based on a review of the factors 
enumerated in ESA section 4(a) after taking into account conservation 
efforts implemented pursuant to section 4(b)(1)(A). In the next several 
sections of this document, the conservation status of GOM/BOF harbor 
porpoise is evaluated and discussed within these contexts. 

Comments on the Need for the ESA Threatened Listing

     Comment 2: Several commenters support a final determination to 
list the GOM/BOF harbor porpoise as threatened under the ESA. According 
to these commenters, the factors that formed the basis for the proposed 
listing still exist, and the current mortality rate is not sustainable.
    Response: NMFS has implemented appropriate conservation strategies 
that are expected to reduce bycatch to the extent that an ESA listing 
is unnecessary. NMFS recognizes that the fishery bycatch rate has not 
yet been reduced to a sustainable level. However, it appears that 
bycatch levels are on a downward trend due to bycatch reduction 
measures currently in place as a result of state, Federal and Canadian 
fishery management. In particular, the HPTRP is in place and is 
expected to reduce bycatch below the potential biological removal (PBR) 
level for harbor porpoise. Based on available data, the current times 
and areas of protective coverage are broad-based and demonstrate that 
the HPTRP can expect to reach its goal without placing additional 
burdens on the fishery.
     Comment 3: Several commenters are opposed to a determination to 
list at this time, in light of NMFS' intent to implement an HPTRP to 
take effect in December 1998.
    Response: NMFS agrees that an ESA listing at this time is not 
warranted. Federal legislative and regulatory actions have been taken 
in the U.S. to protect the GOM/BOF harbor porpoise. NMFS expects that 
the recently implemented HPTRP will provide the measures and mechanisms 
necessary to assure that harbor porpoises do not become threatened as a 
result of fishing practices. Also, Canada has begun to address the need 
for bycatch mitigation in the Canadian BOF.
    Comment 4: One commenter proposed that listing harbor porpoise as a 
threatened species in North Carolina waters is not necessary for the 
protection of this species. Although a small number of harbor porpoise, 
five to be exact, were taken during observer trips off North Carolina, 
the commenter explained that these porpoises were taken by large mesh 
monkfish gillnets or dogfish gillnets, which will be eliminated from 
North Carolina waters in the near future as a result of fishery 
management plan restrictions and stock rebuilding measures. 
Furthermore, observer data indicate, at most, a remote likelihood that 
the state's traditional small net gillnet fishery would cause 
incidental mortality or serious injury. Response: NMFS has determined 
that an ESA threatened listing is not warranted at this time. 

Comments on Bycatch Reduction Measures

    The final rule that implements the HPTRP (63 FR 66464, December 2, 
1998) contains a number of comments/responses on bycatch reduction 
measures.
    Comment 5: Several commenters claimed that NMFS has failed to take 
necessary actions under the MMPA or ESA to protect the GOM/BOF harbor 
porpoise. Another commenter supported and urged NMFS to follow through 
with the adoption of a bycatch reduction program that incorporates 
reasonable management measures (such as time and area closures), with 
assistance directed to the gillnet fishery for gear mitigation research 
and field experiments.
     Response: The final rule implementing the HPTRP (63 FR 66464, 
December 2, 1998), as well as the notice reopening the comment period 
regarding this listing determination (63

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FR 56596, October 22, 1998), address management actions that were 
implemented and are currently in place to reduce bycatch. NMFS believes 
that the actions will effectively reduce the threats to the species to 
prevent a need for listing. A specific discussion of the Gulf of Maine 
and Mid-Atlantic Take Reduction Teams' progress and negotiations toward 
this objective is contained in the HPTRP Environmental Assessment and 
Final Regulatory Flexibility Act analysis (HPTRP/EA/FRFA) and the final 
rule (63 FR 66464, December 2, 1998) implementing the HPTRP.
    Comment 6: Several other commenters raised concerns regarding the 
MMPA as a mechanism for further reducing the incidental kill of harbor 
porpoise. They explained that there is little assurance that the 
reauthorized MMPA would be successful in providing protection, 
especially if the GOM/BOF harbor porpoise were not listed under the 
ESA. They also claimed that the proposed HPTRP relies on an overly 
optimistic pinger effectiveness rate of 80 percent and that it does not 
contain sufficient closures and pinger requirements to achieve PBR. The 
term PBR is defined as ``the maximum number of animals not including 
natural mortalities, that may be annually removed from a marine mammal 
stock without compromising the ability of the stock to reach or 
maintain its optimum population level. The commenters further stated 
that, although the MMPA provides a timetable and process by which the 
kill of marine mammals should be reduced to an insignificant level that 
approaches zero, this process is not yet in place and may or may not 
result in meaningful reduction in kill rates.
    Response: Section 118(f) of the MMPA authorizes NMFS to develop 
take reduction plans designed to assist in the recovery or to prevent 
the depletion of each strategic stock which interacts with a commercial 
fishery. The immediate goal of a take reduction plan is to reduce the 
incidental mortality or serious injury of that species incidentally 
taken in the course of commercial fishing operations to levels less 
than the PBR level established for that species under MMPA section 117. 
The long-term goal of the take reduction plan 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. NMFS expects the HPTRP to reduce fishery takes of 
harbor porpoise to below PBR within the next 6 months, thus preventing 
a need to list.
    The overall HPTRP strategy for the GOM is a series of short, 
discrete, and complete closures in combination with much larger time/
area closures where pinger use is required. Pingers have been proven to 
be effective in reducing harbor porpoise takes in gillnets; however 
NMFS recognizes that pingers are not 100 percent effective. Thus, the 
strategy for the overall HPTRP remains a combination of complete 
closures and pinger use. This combination is expected to reduce bycatch 
in those areas of high harbor porpoise bycatch through complete 
closures while requiring pinger use outside closure times and areas to 
compensate for the interannual variability of both harbor porpoise and 
fishing effort that may shift bycatch outside the discrete closure 
areas. NMFS expects these strategies to achieve adequate results 
without the need for additional closures.
    The HPTRP is based on an 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 during the time period in which effort shifts might occur. It 
relies on each of its components working together collectively to reach 
MMPA PBR goals. NMFS will review harbor porpoise bycatch rates to 
ensure that the pinger effectiveness rate is being realized.
    Comment 7: A commenter recommended that NMFS review the impacts of 
the HPTRP immediately following the first year of plan implementation 
to determine if consideration of an ESA listing is still warranted.
    Response: NMFS intends to reevaluate the effectiveness of the HPTRP 
management measures and the effectiveness of the MMPA to achieve harbor 
porpoise conservation in 1999. If bycatch goals are not achieved, more 
restrictive measures to reduce bycatch may be warranted. NMFS and the 
TRTs will need to identify other measures that may reduce bycatch to 
MMPA-required levels. 
    Comment 8: Several commenters expressed concern that further 
restrictions on fishermen as a result of listing would be a 
significant, unnecessary hardship.
     Response: NMFS has determined not to list GOM/BOF harbor porpoise 
under the ESA; therefore, no hardship would result.
    Comment 9: The commenter stated that the current management 
provisions should be tested.
    Response: NMFS intends to continually review harbor porpoise 
bycatch to determine whether the time-area closures and pinger 
requirements are effective at reducing the bycatch to the specified 
levels within the designated time frame. The MMPA requires TRP 
evaluation at 6-month intervals and modifications as necessary.
    Comment 10: Several comments referred to the fact that the ESA 
listing determination needs to take into account the bycatch in Canada 
as well as the bycatch in U.S. fisheries. The Magnuson-Stevens Fishery 
Conservation and Management Act (Magnuson-Stevens Act) gives the 
Secretary of Commerce authority to place pressure on foreign 
governments who fail to take adequate steps to protect and preserve 
marine resources. Rather than simply focus on the U.S. fleet, the 
commenter suggested that pressure should be brought to bear on Canada 
to reduce their bycatch.
    Response: NMFS agrees with the commenter that bycatch must be 
reduced throughout the range of this population. NMFS, therefore, is 
working with DFO-Canada, and other appropriate state and Federal 
agencies to develop protective measures that will result in a reduction 
of bycatch of the GOM/BOF harbor porpoise throughout their range. These 
programs are described in ``Summary of Factors Affecting the Species, 
D. The Inadequacy of Existing Regulatory Mechanisms''.
    Relative to the GOM and BOF, NMFS and DFO-Canada further recognize 
that this issue, being transboundary, requires the cooperative efforts 
of both agencies if the situation is to be resolved. Toward that end, 
both agencies acknowledge that management and legal requirements differ 
in each country; however, both agencies are committed to the reduction 
of the incidental take of porpoise in their respective fisheries.
    Furthermore, NMFS has met with representatives of the Canadian 
Government to discuss the HPTRP in U.S. waters and to encourage Canada 
to participate in reducing the overall fishing mortality on this stock. 
DFO-Canada developed its Harbor Porpoise Conservation Plan and has 
implemented an observer program that has documented a continuous 
reduction in bycatch in their BOF gillnet fisheries.

Species Status and Factors Affecting the Species

    This final determination gives consideration to new geographic 
range data, population abundance and bycatch data, NEFMC/NMFS' ongoing 
fishery management efforts to reduce harbor porpoise bycatch, and the 
progress in

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mortality reduction under the MMPA. Since publication of the proposed 
rule and as indicated in the notice reopening the comment period on the 
proposed rule, the following information has become available to 
supplement our understanding of the species' status and factors 
affecting the species.

Stock Structure (Discreteness)

    Recent analyses involving mitochondrial DNA (Wang, 1996), 
organochlorine contaminants (Westgate, 1997), heavy metals (Johnston, 
1995), and life-history parameters (Read and Hohn, 1995) support the 
currently accepted hypothesis of four separate distinct populations in 
the western North Atlantic: the Gulf of Maine/Bay of Fundy, Gulf of St. 
Lawrence, Newfoundland, and Greenland populations (See response to 
Comment 1).

Abundance

    Three abundance surveys were conducted during the summers of 1991, 
1992, and 1995. The population estimates were 37,500 in 1991, 67,500 in 
1992, and 74,000 in 1995. Refer to Palka (1995a and 1996) for detailed 
information.

Summary of ESA Factors Affecting the Species

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

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

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

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

    One of the principal factors for proposing to list the GOM/BOF 
population of harbor porpoise as threatened under the ESA was the level 
of harbor porpoise bycatch in commercial fisheries in the GOM/Bay of 
Fundy/Mid-Atlantic. GOM/BOF harbor porpoise takes have been documented 
in the Northeast multispecies sink gillnet, Mid-Atlantic coastal 
gillnet, and Atlantic pelagic drift gillnet fisheries, and in the 
Canadian Bay of Fundy sink gillnet fishery and herring weir fishery. 
The average annual mortality estimate from 1992 to 1997 for the above 
U.S. fisheries is 1,749 harbor porpoise. Refer to the U.S. Atlantic and 
Gulf of Mexico Marine Mammal Stock Assessment Report (Waring, et al., 
1997) and the notice reopening the comment period (63 FR 56596, October 
22, 1998) for detailed fishery bycatch information. Additionally, the 
HPTRP EA provides detailed bycatch information for the Gulf of Maine 
sink gillnet and Mid-Atlantic coastal gillnet fisheries.

C. Disease or Predation

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

D. The Inadequacy of Existing Regulatory Mechanisms

    This factor and Factor B formed the basis for the proposed listing. 
As discussed in the notice reopening the comment period (63 FR 56596, 
October 22, 1998), following are the regulatory mechanisms that have 
gone into effect since publication of the proposed rule.
    NMFS/NEFMC Bycatch Reduction Measures: In 1994, as part of 
Amendment 5 to the NE Multispecies FMP, the NEFMC proposed, under 
authority of the Magnuson Fishery Conservation and Management Act (16 
U.S.C. 1801 et seq.), a 4-year program to reduce the harbor porpoise 
bycatch off New England to 2 percent of the estimated harbor porpoise 
population size per year by phasing-in time and area closures to sink 
gillnet gear. NMFS adopted and implemented NEFMC's first year closure 
recommendations on May 25, 1994 (59 FR 26972). Harbor porpoise bycatch 
rates increased in 1994 despite the new time-area gillnet fishing 
closures enacted by NMFS on May 25, 1994, therefore, NMFS expanded both 
the time and area of the fall closure around an area of high bycatch 
called Jeffreys ledge (60 FR 57207).
    In November 1995, NMFS implemented Framework Adjustment 14 (60 FR 
55207) which enlarged and redefined the Mid-Coast Closure Area in both 
time and area during 1995 in an effort to achieve the necessary 
reductions in harbor porpoise bycatch. The Mid-Coast closure was closed 
to fishing with sink gillnets from March 25 through April 25. Framework 
Adjustment 14 also required closure of an area in southern New England, 
south of Cape Cod, from March 1 to 30.
    Amendment 7 to the NE Multispecies FMP, implemented in July 1996, 
implemented marine mammal gillnet closures as part of an overall 
groundfish effort reduction program. In addition, the NEFMC recommended 
the use of pingers (based on results of the 1994 experiment) in several 
experimental fisheries to evaluate their use as bycatch reduction 
tools.
    Framework 25 to the NE Multispecies FMP (63 FR 15326, March 31, 
1998), was implemented on May 1, 1998. Framework 25 implemented gillnet 
fishing closures throughout the GOM to conserve cod (Gadus morhua). 
However, these closures are expected to have bycatch reduction benefits 
to harbor porpoise as well.
    Coastal Atlantic States Bycatch Reduction Efforts: In the fall of 
1994, NMFS met with the Atlantic States Marine Fisheries Commission's 
(ASMFC), Management and Science Committee, to discuss ways that the 
ASMFC could address marine mammal bycatch in its interstate fishery 
management plans. Since November 1995, the ASMFC has amended its 
Interstate Fishery Management Program charter so that protected 
species/fishery interactions are addressed in the ASMFC's fisheries 
management planning process. This means that each state fishery 
management plan will contain a section that describes protected species 
issues relevant to the fishery in question. Additionally, NMFS and 
USFWS representatives with protected species expertise have been 
incorporated into the ASMFC's species technical committees, and plan 
development and review teams.
    The ASMFC is in the final stages of developing the Atlantic Coastal 
Cooperative Statistics Program. This program will coordinate a wide 
range of fisheries data and information, including protected species 
bycatch data, from all Atlantic coastal states. This data management 
system will improve the ability of NMFS and other regulatory agencies 
in identifying the most effective management measures to address 
protected species bycatch in state and Federal waters.
    Harbor Porpoise Take Reduction Teams and Plan: For detailed 
information on the Gulf of Maine and

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Mid-Atlantic Take Reduction Teams and the development of the HPTRP, see 
ADDRESSES.
    On December 2, 1998, (63 FR 66464) NMFS issued a final rule to 
implement a HPTRP in the Gulf of Maine and Mid-Atlantic waters. The 
HPTRP and final rule include a range of management measures to reduce 
the bycatch and mortality of harbor porpoise. In the GOM, the HPTRP 
includes time and area closures and time/area periods during which 
pinger use would be required in the Northeast, Mid-coast, Massachusetts 
Bay, Cape Cod South, and Offshore Closure Areas. In the Mid-Atlantic 
area, the HPTRP includes time/area closures and modifications to gear 
characteristics, including floatline length, twine size, tie downs, and 
number of nets, in the large mesh and small mesh fisheries. NMFS 
expects that the HPTRP and implementing final rule will reduce bycatch 
to below the designated PBR level within 6 months of implementation.
    Canadian Mitigation Measures: In the mid-1990s, several Canadian 
initiatives, including fishery effort reduction, required pinger use, 
expanded observer coverage, and fisher education programs, resulted in 
a significant reduction of harbor porpoise bycatch in the BOF. On 
October 7, 1994, NMFS received a Harbor Porpoise Conservation Plan for 
the BOF, drafted by DFO-Canada, for comment. Following responses to 
comments, the HPCP was incorporated into DFO-Canada's long-term 
management of fisheries to reduce harbor porpoise entanglements. In 
1995, DFO-Canada published the ``Harbor Porpoise Conservation Strategy 
for the Bay of Fundy.'' The strategy combines effort reduction, 
required pinger use, expanded observer coverage, and fisher education 
program to reduce bycatch. Since implementation of their conservation 
strategy, Canadian fishery bycatch has been reduced progressively to 
approximately 20 to 50 harbor porpoise per year.
    Regarding harbor porpoise that have been trapped each summer in 
herring weirs in the western BOF and along southwestern Nova Scotia 
(Smith, Read, and Gaskin, 1983), the DFO-Canada is now requiring that a 
grate be placed over the entrance to the weir in order to stop anything 
larger than herring (i.e., marine mammals, basking sharks, etc.) from 
entering through the entrance of the weir.

E. Other Natural or Manmade Factors Affecting its Continued

    Existence
    Other potential human-induced factors that may be affecting this 
harbor porpoise population include high levels of contaminants in their 
tissues. Concentrations of organochlorine contaminants from 110 GOM/BOF 
harbor porpoise were recently measured (Westgate, 1995). 
Polychlorinated biphenyl (PCB) levels, the most prominent contaminant, 
and dichloro-diphenyl trichloroethane (DDT) levels were both higher in 
the GOM/BOF harbor porpoise than in the Gulf of St. Lawrence and 
Newfoundland harbor porpoise, although they are now much lower they 
were 10 years ago, as reported in Gaskin et al. (1983). Trace metal 
contaminants were also measured, and it was found that mean 
concentrations of copper, zinc, and mercury were similar to values 
previously reported for harbor porpoise in other regions of the world 
(Johnston, 1995). No obvious pathology has been noted in more than 300 
necropsies of harbor porpoise incidentally captured in gillnets in the 
Bay of Fundy (A.J. Read, unpublished data). Although it is not known 
whether these contaminants have other effects, the presence of these 
contaminants in harbor porpoise tissues does not appear to pose a 
serious threat to this population.

Final Determination

    Section 4(b)(1) of the ESA requires the Secretary to make final 
listing determinations solely on the basis of the best scientific and 
commercial data available and after taking into account state and 
Federal efforts being made to protect the species. Therefore, in making 
this listing determination, NMFS has assessed the status of the 
species, identified factors that have led to the decline of the 
species, and evaluated available
    conservation measures to determine whether such measures ameliorate 
risks to the species.
    The most significant factor that NMFS considered in this decision 
is the existing mechanisms to reduce the level of bycatch which was 
published after the proposal to list. NMFS evaluated the likelihood 
that the bycatch reduction programs implemented in Canada and at the 
state and Federal levels would affect the GOM/BOF harbor porpoise 
population in the future.
    NMFS believes these conservation efforts will help the 
sustainability of the GOM/BOF population of harbor porpoise based on 
the following: (1) Strong commitments have been made to carry out these 
programs; (2) the parties with the authority to implement the bycatch 
reduction efforts have followed appropriate procedures and formalized 
the necessary documentation and; (3) objectives and time frames for 
achieving these objectives have been established and include adaptive 
management principles. NMFS believes that the bycatch reduction 
programs currently in place will effectively address the factors 
causing the decline of the GOM/BOF harbor porpoise population and 
increase the population's sustainability.
    To directly examine the potential risk of extinction of GOM/BOF 
harbor porpoise, a population viability analysis (PVA) was recently 
prepared (Wade Draft Report to NMFS). A PVA is used to estimate future 
trends of a population to estimate the probability of extinction of the 
population given certain assumptions. Using 1991, 1992, and 1995 
abundance data and 1992 through 1996 bycatch data, stochastic 
population dynamics models of the GOM/BOF harbor porpoise population 
were developed to evaluate the probability of persistence of the 
population over the foreseeable future (the next 20 to 100 years). Each 
of the models predicted a very high probability of extinction within 
100 years under the current levels of mortality/bycatch, whereas the 
probability of extinction within 20 years was estimated to be low. 
Reducing the current mortality/bycatch level by one-half would 
decrease, but not eliminate, the probability of extinction in 100 
years; but it was estimated to eliminate any probability of extinction 
within 20 years. Finally, reducing the current mortality/bycatch to 
one-quarter of the current level was estimated to make the risk of 
extinction within 100 years unlikely.
    HPTRP implementation is expected to reduce the current fishery 
mortality/bycatch level to below PBR within the next 6 months. Hence, 
based on this PVA and successful reduction of bycatch through HPTRP 
implementation, NMFS anticipates the elimination of any probability of 
extinction within the next 100 years.
    The current measures enable NMFS to achieve reduction of harbor 
porpoise bycatch to sustainable levels, while minimizing the overall 
impact to affected fisheries. In view of the currently decreasing 
levels of bycatch in Canadian fisheries and the regulatory mechanisms 
now being implemented under the MMPA, NMFS concludes that listing the 
GOM/BOF population of harbor porpoise as threatened under the ESA is 
not warranted at this time.
    NMFS and the appropriate agencies will continue to monitor the 
bycatch levels and adjust the bycatch reduction programs as necessary 
to promote reduced bycatch. NMFS will consider

[[Page 471]]

any new regulations that may affect harbor porpoise or the 
implementation of the HPTRP and evaluate whether management measures 
need to be changed at that time. NMFS intends to reconvene the TRTs 
semiannually during the first year of plan implementation in order to 
track the HPTRP's progress toward the 6-month MMPA PBR goal.
    This action is exempt from review under E.O. 12866.

    Dated December 30, 1998.
Andrew A. Rosenberg,
Deputy Assistant Administrator for Fisheries,National Marine Fisheries 
Service.
[FR Doc. 99-138 Filed 1-4-99; 8:45 am]
BILLING CODE 3510-22-F