[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
[[Page 467]]
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
[[Page 469]]
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]
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