[Federal Register Volume 66, Number 149 (Thursday, August 2, 2001)]
[Proposed Rules]
[Pages 40176-40187]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-19354]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 223

[Docket No. 010723187-1187-01, I.D. 061101I]
RIN 0648-AP33


Threatened Fish and Wildlife; Status Review of the Gulf of Maine/
Bay of Fundy Population of Harbor Porpoise under the Endangered Species 
Act (ESA)

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

ACTION: Notice of preliminary determination; draft status review; 
request for comments.

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SUMMARY: The National Marine Fisheries Service (NMFS) conducted a 
status review of the Gulf of Maine/Bay of Fundy (GOM/BOF) stock of 
harbor porpoise (Phocoena phocoena). Based on analysis of the best 
scientific and commercial data available, as required by the Endangered 
Species Act (ESA), NMFS has made a preliminary determination that 
listing is not warranted at this time and intends to remove this stock 
from the ESA candidate species list. This document requests comments on 
the draft status review.

DATES: Comments must be received on or before 5 pm EST September 4, 
2001.

ADDRESSES: Comments on this action should be sent to: Chief, Marine 
Mammal Division, National Marine

[[Page 40177]]

Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910.

FOR FURTHER INFORMATION CONTACT: Emily Hanson, Office of Protected 
Resources, 301-713-2322 ext. 101; Kim Thounhurst, Northeast Region, 
978-281-9138; or Diane Borggaard, Southeast Region, 727-570-5312. 
Individuals who use a telecommunications device for the deaf may call 
the Federal Information Relay Service at 1-800-877-8339 between 8 a.m. 
and 4 p.m. Eastern time, Monday through Friday, excluding Federal 
holidays.

SUPPLEMENTARY INFORMATION:

Background of ESA Actions

    On September 18, 1991, the Sierra Club Legal Defense Fund, on 
behalf of the International Wildlife Coalition and 12 other 
organizations, submitted a petition to list the harbor porpoise as 
threatened under the Endangered Species Act (ESA). NMFS published a 
notice of receipt of petition to list the GOM/BOF stock as threatened 
on December 13, 1991 (56 FR 65044). On January 7, 1993, NMFS published 
a proposed rule to list the GOM/BOF stock of harbor porpoise as 
threatened under the ESA (58 FR 3108). The proposed listing was based 
on information demonstrating that: (a) the rate of bycatch of harbor 
porpoise in commercial gillnet fisheries (extending from the Bay of 
Fundy, Canada, south throughout the Gulf of Maine) might reduce this 
population to the point where it would become threatened throughout all 
or a portion of its range; and, (b) there were no regulatory measures 
in place to reduce this bycatch. NMFS extended the comment period on 
the proposed rule until August 7, 1993 (58 FR 17569, April 5, 1993) to 
hold public hearings. On November 8, 1993 (58 FR 59230), the date for 
the final determination on the proposal to list was extended for six 
months to allow for further data collection and analyses about harbor 
porpoise stock structure. On July 15, 1994, NMFS reopened the comment 
period for 30 days to allow for public comment on the new analyses (59 
FR 36158).
    The New England Harbor Porpoise Working Group (HPWG), an informal 
stakeholder group, met on July 21, 1994, to discuss harbor porpoise 
bycatch and the ESA listing proposal. As a result of the concerns 
expressed at that meeting, NMFS again extended the comment period on 
the proposed rule until September 11, 1994 (59 FR 41270). At that time, 
NMFS also decided to wait for the 1995 bycatch data prior to proceeding 
with a listing determination.
    NMFS had not yet made a final determination when, in 1996, Congress 
imposed a 1-year moratorium on listing species under the ESA. During 
1997 and 1998, NMFS kept the listing issue under review in light of new 
population abundance and bycatch data, ongoing New England Fishery 
Management Council (NEFMC) and NMFS fishery management efforts to 
reduce harbor porpoise bycatch, and the Marine Mammal Protection Act 
(MMPA) Section 118 Take Reduction Team (TRT) process established 
pursuant to the 1994 amendments to the MMPA.
    On October 22, 1998, NMFS reopened the comment period on the 
proposed rule to list the GOM/BOF harbor porpoise as a threatened 
species under the ESA (63 FR 56596). This action was taken because of 
the amount of time that had passed since the close of the previous 
comment period and to allow for the review of the best scientific 
information available.
    The listing determination was also the subject of litigation with 
the Center for Marine Conservation, the Humane Society of the United 
States, and the International Wildlife Coalition (Center for Marine 
Conservation et al.v. Daley et al., Civ. No. 1:98CV02029 EGS). In the 
settlement agreement arising from this litigation, NMFS agreed to make 
a final listing determination by January 4, 1999. Upon consideration of 
comments received on the proposed rule published in October 1998, 
review of the best available data, and implementation of the Harbor 
Porpoise Take Reduction Plan (HPTRP), NMFS determined that listing of 
the GOM/BOF population of harbor porpoise as threatened under the ESA 
was not warranted. On January 5, 1999, NMFS withdrew the proposal to 
list the GOM/BOF population of harbor porpoise as threatened under the 
ESA (64 FR 465). On January 5, 1999, NMFS also published a notice 
retaining the GOM/BOF population of harbor porpoise on the ESA list of 
candidate species (64 FR 480).
    Pursuant to the settlement agreement in Center for Marine 
Conservation et al. v. Daley et al., in the event that NMFS determined 
not to list harbor porpoise under the ESA, NMFS agreed to commence a 
review of the biological status of the GOM/BOF harbor porpoise 
population on or before March 31, 2001, and to consider the need to 
publish a proposal to list the population based on the review at that 
time. On March 29, 2001, NMFS published a Federal Register notification 
announcing the commencement of the status review and requesting 
information (66 FR 17150).
    The settlement agreement also requires that NMFS make the draft 
status review available for a 30-day public comment period on or before 
July 31, 2001. This document complies with that requirement.
    This status review focuses on new information and analyses 
available since publication of the January 5, 1999, withdrawal of the 
proposed rule. For detailed information on the data and analyses prior 
to January 5, 1999, refer to the Federal Register publications cited 
above. Additionally, detailed information about the GOM/BOF stock of 
harbor porpoise is available in NMFS U.S. Atlantic and Gulf of Mexico 
Marine Mammal Stock Assessment Reports.

Species Status and Factors Affecting the Species

    For this status review and the preliminary determination not to 
list the GOM/BOF harbor porpoise under the ESA, NMFS considered stock 
definition information, population abundance, bycatch data, NEFMC/NMFS 
ongoing fishery management efforts to reduce harbor porpoise bycatch, 
and progress in bycatch reduction under the Harbor Porpoise Take 
Reduction Plan (HPTRP) since the January 5, 1999, withdrawal of the 
proposed rule to list the GOM/BOF population as threatened under the 
ESA.

Stock Definition

    Gaskin (1984, 1992) proposed that there were four separate 
populations of harbor porpoise in the western North Atlantic: the Gulf 
of Maine/Bay of Fundy population; the Gulf of St. Lawrence population; 
the Newfoundland population; and the Greenland population. Analyses 
involving mitochondrial DNA (Wang, et al. 1996; Rosel, et al. 1999a; 
Rosel, et al. 1999b), organochlorine contaminants (Westgate, et al. 
1997; Westgate and Tolley, 1999), heavy metals (Johnston, 1995), and 
life history parameters (Read and Hohn, 1995) support Gaskin's 
proposal. Genetic studies using mitochondrial DNA (Rosel, et al. 1999a) 
and contaminant studies using total PCBs (Westgate and Tolley, 1999) 
suggest that female Gulf of Maine/Bay of Fundy harbor porpoises are 
distinct from females from the other populations in the Northwest 
Atlantic. Studies comparing mitochondrial DNA (Rosel, et al. 1999a; 
Palka, et al. 1996) and CHLORs, DDTs, PCBs and CHBs (Westgate and 
Tolley, 1999) indicate that male Gulf of Maine/Bay of Fundy harbor 
porpoises are distinct from Newfoundland and Greenland males, but not 
from Gulf of St. Lawrence males. Analyses of stranded animals from the

[[Page 40178]]

Mid-Atlantic states suggest that the Mid-Atlantic aggregation of harbor 
porpoises includes the Gulf of Maine/Bay of Fundy stock and other 
stocks (Rosel, et al. 1999a). However, the majority of the samples used 
in the Rosel, et al. (1999a) study were from stranded juvenile animals. 
Further work is underway to examine adult animals from the Mid-Atlantic 
region.
    Nuclear microsatellite markers have also been applied to samples 
from the four populations, but failed to detect significant population 
sub-division in either males or females (Rosel, et al. 1999a). This 
pattern may be indicative of female philopatry coupled with dispersal 
of male harbor porpoises.
    Analyses since the 1998 status review continue to support the 
hypothesis of four separate populations of harbor porpoise in the 
western North Atlantic.

Abundance

    To estimate the population size of harbor porpoises in the Gulf of 
Maine/Bay of Fundy region, four line-transect sighting surveys were 
conducted during the summers of 1991, 1992, 1995, and 1999. The 
abundance estimates were 37,500 harbor porpoises in 1991 [CV=0.29 and 
95-percent confidence interval (CI)=26,700-86,400] (Palka, 1995a); 
67,500 harbor porpoises in 1992 (CV=0.23 and 95-percent CI=32,900-
104,600) (Palka, 1996); 74,000 harbor porpoises in 1995 (CV=0.20 and 
95-percent CI=40,900-109,100) (Palka, 1996); and 89,700 harbor 
porpoises in 1999 (CV=0.22 and 95-percent CI=53,400-150,900) (Palka, 
2000). The inverse variance weighted-average abundance estimate (Smith, 
et al. 1993) of the 1991 to 1995 estimates was 54,300 harbor porpoises 
(CV=0.14 and 95-percent CI=41,300-71,400). Possible reasons for inter-
annual differences in abundance and distribution include experimental 
error, inter-annual changes in water temperature and availability of 
primary prey species (Palka, 1995b), and movement among population 
units (e.g., between the Gulf of Maine and Gulf of St. Lawrence). The 
upper Bay of Fundy and northern Georges Bank were surveyed in 1999, but 
not in earlier surveys. Harbor porpoises were observed in the upper Bay 
of Fundy and northern George's Bank areas, and therefore the expansion 
of the survey into these two areas may account for some or all of the 
increase in the 1999 abundance estimate (Palka, 2000).
    The best abundance estimate of the Gulf of Maine/Bay of Fundy 
harbor porpoise stock is 89,700 (CV=0.22) animals. The 1999 estimate is 
considered to be the best available because it is the most current and 
because the 1999 survey discovered portions of the harbor porpoise 
range not covered in previous surveys.
    Analyses are underway to determine whether information necessary to 
detect a trend in abundance can be obtained from the four NMFS surveys. 
Until such a trend can be identified, it is not possible to state 
conclusively that the abundance of this stock has increased during any 
time in the survey period.

Potential Biological Removal (PBR) Level

    The PBR level is the product of minimum population size, one-half 
the maximum net productivity rate, and a ``recovery'' factor (MMPA Sec. 
3. 16 U.S.C. 1362, Wade and Angliss, 1997). Based on the 1999 survey, 
NMFS has increased the value for the minimum population size to 74,695 
(CV=0.22) in the draft 2001 Stock Assessment Report (SAR), currently 
undergoing public review (66 FR 30706, June 7, 2001). The maximum net 
productivity rate is 0.04, the default value for cetaceans. The 
``recovery'' factor, which accounts for endangered, depleted, 
threatened stocks, or stocks of unknown status relative to optimum 
sustainable population (OSP) is assumed to be 0.5 because this stock is 
of unknown status. Due to the increased minimum population estimate, 
NMFS has also increased the PBR for the GOM/BOF harbor porpoise stock 
from 483 to 747 in the draft 2001 SAR. NMFS is using a PBR of 747 for 
the purposes of this status review.

Human-Caused Mortality

    The U.S. average annual mortality estimate prior to implementation 
of the HPTRP (1994-1998) was 1,521 (CV=0.10) harbor porpoises from U.S. 
fisheries and 57 harbor porpoises from Canadian fisheries. GOM/BOF 
harbor porpoise takes have been documented in the U.S. Northeast sink 
gillnet and Mid-Atlantic coastal gillnet fisheries and in the Canadian 
Bay of Fundy sink gillnet and herring weir fisheries. Data to estimate 
the mortality and serious injury of harbor porpoise comes from U.S. and 
Canadian Sea Sampling Programs and from records of strandings in U.S. 
waters. Implementation of the HPTRP and related Fishery Management Plan 
(FMP) restrictions changed the U.S. gillnet fisheries substantially, 
and therefore only mortality estimates for 1999 and 2000, which 
represents the time since implementation of the HPTRP and FMP 
restrictions, are included in this analysis. The total annual estimated 
average human-caused mortality for 1999 is 366 harbor porpoises, 
derived from the following four components: 323 harbor porpoises 
(CV=0.25) from U.S. fisheries using observer data; approximately 20 
harbor porpoises (preliminary estimate with unknown CV) from Canadian 
fisheries using observer data; 19 harbor porpoises from unknown U.S. 
fisheries using strandings data; 1 harbor porpoise from unknown human-
caused mortality in the U.S. (a mutilated stranded harbor porpoise); 
and 3 documented mortalities from Canadian herring weirs.
    A preliminary estimate of harbor porpoise bycatch in U.S. fisheries 
for 2000 indicates that 529 harbor porpoises were taken in the U.S. 
fisheries in 2000, including 507 (CV=0.37) estimated takes from the 
Northeast sink gillnet fishery, 21 (CV=0.76) estimated takes from the 
Mid-Atlantic coastal gillnet fishery, and 1 take from an unknown 
fishery as indicated by stranding data.
    The 2000 harbor porpoise bycatch estimate for Canadian fisheries is 
not available at this time. However, preliminary raw data indicate that 
in 549 gillnets observed, 8 harbor porpoises were observed taken.

Population Viability Analysis

    The analysis performed by Wade (1998) and presented in the October 
22, 1998, proposed rule was updated using new estimates of abundance 
and mortality for the GOM/BOF harbor porpoise stock. Using the 1999 
survey abundance estimate (89,700 animals) and the 1999 mortality 
estimate (366 animals), there was no chance of extinction (0.0) in 100 
years. A summary of parameter values and distributions used in the 
simulations and results of the analysis can be found in Wade (2001).

Summary of ESA Factors Affecting the Species

Endangered Species Act Listing Criteria

    As defined in 50 CFR 424.02 of the regulations implementing the 
ESA, an ``endangered species'' is a species that is in danger of 
extinction throughout all or a significant portion of its range. 
Similarly, a ``threatened species'' is a species that is likely to 
become an endangered species within the foreseeable future throughout 
all or a significant portion of its range. As described in section 
4(a)(1) of the ESA, the Secretaries of Commerce or Interior determine 
whether any species is an endangered species or threatened species 
because of any of the following factors: (A) The present or threatened 
destruction, modification, or curtailment of its habitat or range; (B) 
overutilization for commercial,

[[Page 40179]]

recreational, scientific, or educational purposes; (C) disease or 
predation; (D) the inadequacy of existing regulatory mechanisms; or (E) 
other natural or manmade factors affecting its continued existence. 
These factors are discussed here, as they apply to the GOM/BOF 
population of harbor porpoise, in light of information that has become 
available since the January 5, 1999, withdrawal of the proposal to list 
the species as threatened.

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

    The GOM/BOF stock of harbor porpoise is found in U.S. and Canadian 
Atlantic waters. During the summer (July to September), harbor porpoise 
are concentrated in the northern Gulf of Maine and southern Bay of 
Fundy region, generally in waters less than 150 meters deep (Gaskin 
1977; Kraus et al. 1983; Palka 1995 a,b). During fall (October to 
December) and spring (April to June), harbor porpoise are widely 
dispersed from New Jersey to Maine, with lower densities farther north 
and south. They are seen from the coastline to deep waters 
(1800 meters; Westgate et al. 1998), although the majority 
of the population is found over the continental shelf. During the 
winter (January to March), intermediate densities of harbor porpoise 
can be found in waters off New Jersey to North Carolina, and lower 
densities are found in waters off New York to New Brunswick, Canada.
    Although the shoreline bordering the nearshore habitat of harbor 
porpoise along the eastern U.S. coastline is developed in many areas 
and may have affected coastal habitat, there is no new or additional 
evidence to indicate that shoreline development has affected the 
habitat of harbor porpoise in a manner that has contributed to a 
decline of the GOM/BOF population or that the range of this species has 
changed significantly as a result of shoreline development or change in 
coastal habitat.

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

    This section discusses serious injury/mortality of harbor porpoise 
incidental to the operation of the Northeast sink gillnet and Mid-
Atlantic coastal gillnet fisheries, unknown U.S. fisheries as suggested 
by stranding data, the Canadian Bay of Fundy groundfish gillnet and 
herring weir fisheries, and takes that may have occurred incidental to 
scientific research activities. It is unknown whether lethal takes of 
harbor porpoises are occurring incidental to recreational fishing 
activities. Detailed information about human-caused mortality to harbor 
porpoise is available in the GOM/BOF Harbor Porpoise chapter of the 
U.S. Atlantic and Gulf of Mexico Marine Mammal Stock Assessment Reports 
for 2000 and draft report for 2001.
Northeast Sink Gillnet Fishery
    Before 1998, most of the documented harbor porpoise takes from U.S. 
fisheries were from the Northeast sink gillnet fishery. Prior to the 
present Sea Sampling Program and fishing effort reporting, Gilbert and 
Wynne (1985, 1987), using rough estimates of fishing effort, calculated 
that a maximum of 600 harbor porpoises were killed annually in this 
fishery in the Gulf of Maine. NMFS started an observer program in 1990 
to investigate marine mammal takes in the Northeast sink gillnet 
fishery. Summing all years, there were 452 harbor porpoise mortalities 
observed in this fishery between 1990 and 2000 and one animal released 
alive and uninjured. Estimated annual bycatch (CV in parentheses) from 
those observed takes in this fishery during 1990-1998 was 2,900 in 1990 
(0.32); 2,000 in 1991 (0.35); 1,200 in 1992 (0.21); 1,400 in 1993 
(0.18) (Bravington and Bisack, 1996; CUD 1994); 2,100 in 1994 (0.18); 
1,400 in 1995 (0.27) (Bisack, 1997a); 1,200 (0.25) in 1996; 782 (0.22) 
in 1997; and 332 (0.46) in 1998. (The increase in the 1998 CV is 
assumed to result from the small number of observed takes.)
    Average estimated harbor porpoise mortality and serious injury in 
the Northeast sink gillnet fishery before implementation of the Take 
Reduction Plan was 1,163 (0.11) animals per year. In 1999 and 2000, 
estimates of harbor porpoise serious injury and mortality were 270 
animals (CV=0.28) and 507 animals (CV=0.37), respectively. The 2-year 
average estimate of serious injury/mortality for this fishery is 389 
animals (CV=0.26) per year.
Mid-Atlantic Coastal Gillnet Fishery
    NMFS started an observer program in the Mid-Atlantic coastal 
gillnet fishery in July of 1993. This fishery, which extends from North 
Carolina to New York, is a combination of small vessel fisheries that 
target a variety of fish species. No harbor porpoises were observed 
taken in the Mid-Atlantic coastal gillnet fishery during 1993 and 1994. 
From 1995 through 2000, 114 harbor porpoises were observed taken in 
this fishery. Annual average estimated harbor porpoise mortality and 
serious injury from the Mid-Atlantic coastal gillnet fishery before 
implementation of the HPTRP (1995-1998) was 358 animals (CV=0.20). In 
1999 and 2000, the estimated harbor porpoise serious injury and 
mortality attributable to this fishery was 53 animals (CV=0.49) and 21 
animals (CV=0.76), respectively. The 2-year average estimate of serious 
injury/mortality for this fishery is 37 animals (CV=0.41) per year. New 
genetic data indicate that more than one population of harbor porpoise 
occurs in the mid-Atlantic in the winter; therefore, it is possible 
that some of the takes are not from the GOM/BOF stock of harbor 
porpoise.
Unknown Fishery
    The NMFS strandings and entanglement database contains 228 reports 
of stranded harbor porpoises during 1999. The stranded carcasses were 
examined for signs of fishery interaction and other human impacts. Of 
the animals for which a determination could be made, evidence of 
fishery interaction involving gillnet gear was found on 38. Of the 38 
fishery-interaction strandings, it was determined that 19 were in areas 
and times that were not included in mortality estimates derived from 
observer data. Twenty-six harbor porpoise mortalities were reported 
from the database in 2000. Of these 26, it was determined that the 
cause of death of one animal was from fishery interactions and that 
this event was not duplicative of the observed take estimate for the 
stratum in which the stranding occurred.
Canadian Bay of Fundy Sink Gillnet
    An observer program was implemented in the summer of 1993 in the 
Canadian Bay of Fundy Sink Gillnet Fishery. Average estimated harbor 
porpoise mortality from 1995 to 1999 was 36 animals per year; the 
mortality from 2000 has not yet been estimated. An estimate of variance 
is not possible.
Bay of Fundy Herring Weirs
    Harbor porpoises are taken frequently in Canadian herring weirs, 
although a program has been implemented to reduce the mortality 
occurring from these takes. There have been no efforts to observe the 
U.S. component of this fishery and no takes reported from opportunistic 
platforms. Average estimated harbor porpoise mortality in the Canadian 
BOF herring weir fishery from 1995 to 1999 was 2.8 animals per year. 
The mortality from 2000 has not yet been estimated. An estimate of 
variance is not possible.

C. Disease or Predation

    Evidence of disease and predation on individuals of the GOM/BOF 
harbor

[[Page 40180]]

porpoise population has been recorded by the Northeast and Southeast 
Marine Mammal Stranding Networks and during various necropsy workshops 
hosted by NMFS. There is no indication that disease has had a 
measurable impact on the GOM/BOF harbor porpoise population. Likewise, 
although it is assumed that predation on harbor porpoise is occurring, 
there is no evidence to suggest that the rate of predation has 
increased such that it would adversely affect the net rate of increase 
of the GOM/BOF population.

D. The Inadequacy of Existing Regulatory Mechanisms

    This portion of the status review evaluates whether current 
regulatory mechanisms are adequate to prevent impacts that could result 
in a determination that the Gulf of Maine/Bay of Fundy (GOM/BOF) harbor 
porpoise population is threatened or endangered. NMFS' proposed listing 
(58 FR 3108, January 7, 1993), revised proposed listing (63 FR 56596, 
October 22, 1998), and final determination (64 FR 465, January 5, 1999) 
included analyses of regulatory mechanisms in place prior to 
implementation of the Harbor Porpoise Take Reduction Plan (HPTRP). This 
document focuses only on the effect of the HPTRP and other regulatory 
actions taken since the January 5, 1999, final determination.
    The January 7, 1993, proposal to list harbor porpoise as threatened 
was based on high levels of mortality of harbor porpoise incidental to 
commercial fishing and the inadequacy of regulatory mechanisms to 
address that mortality. The final 1999 determination not to list harbor 
porpoise was based on a finding that the bycatch reduction mechanisms 
built into the HPTRP, the Northeast Multispecies FMP, and the Canadian 
Harbor Porpoise Conservation Strategy provided adequate regulatory 
mechanisms to deal with high levels of mortality. The bycatch reduction 
levels built into these measures were analyzed in the January 5, 1999, 
Federal Register document. The following discussion updates that 
analysis with the actual bycatch levels that occurred during 1999 and 
2000, FMP restrictions that have been implemented since the 
implementation of the HPTRP, and Canadian bycatch levels in those same 
years.
Regulatory Mechanisms in Effect During 1999 and 2000
    The key regulatory mechanism specifically addressing harbor 
porpoise bycatch in U.S. commercial fisheries is the HPTRP, which was 
published pursuant to Section 118 of the MMPA on December 2, 1998 (63 
FR 66464). In addition to measures implemented through the HPTRP, NMFS 
also implemented time/area closures for rebuilding groundfish stocks 
under the Multispecies FMP that would also benefit harbor porpoise. To 
avoid duplication, the measures put in place through the Multispecies 
FMP were not incorporated into the HPTRP, but the effects were included 
in the calculation of expected harbor porpoise bycatch reduction. This 
strategy and the predicted bycatch reduction are discussed and analyzed 
in the Environmental Assessment (EA) prepared for the HPTRP and in the 
preamble of the December 2, 1998, HPTRP final rule and are incorporated 
by reference.
Harbor Porpoise Take Reduction Plan (HPTRP)
    NMFS established two take reduction teams to address bycatch of the 
GOM/BOF population of harbor porpoise in commercial fisheries. The Gulf 
of Maine Harbor Porpoise Take Reduction Team (HPTRT) was established on 
February 12, 1996, to address incidental takes of the GOM/BOF stock of 
harbor porpoise in the Northeast sink gillnet fishery. The Mid-Atlantic 
Take Reduction Team (MATRT) was established on February 25, 1997, to 
address interactions between the GOM/BOF population of harbor porpoise 
and the Mid-Atlantic coastal gillnet fishery. Each team submitted take 
reduction plans to NMFS, and NMFS combined the measures recommended by 
each team for harbor porpoise bycatch reduction into one Harbor 
Porpoise Take Reduction Plan (HPTRP). Therefore, the HPTRP addresses 
bycatch in both the Northeast sink gillnet fishery and the Mid-Atlantic 
coastal gillnet fishery. The proposed rule was published on September 
11, 1998 (63 FR 48670), and finalized on December 2, 1998 (63 FR 
66464). NMFS published a notice on December 23, 1998 (63 FR 71041) that 
corrected errors to New England closure boundaries.
    The primary measures to reduce bycatch implemented in the HPTRP 
included time/area closures and time/area periods where use pingers is 
required for the Northeast sink gillnet fishery and time/area closures 
and gear modifications and restrictions for the Mid-Atlantic coastal 
gillnet fishery. The specific measures implemented in the HPTRP are 
incorporated by reference. The analysis presented in the EA prepared 
for the HPTRP estimated that the measures implemented in the HPTRP 
would reduce the incidental mortality and serious injury of harbor 
porpoise from approximately 2,040 animals per year to less than the PBR 
level of 483 animals per year. The measures implemented to address 
harbor porpoise mortality and serious injury in the Northeast sink 
gillnet fishery were expected to reduce the incidental mortality and 
serious injury of harbor porpoise from an average of 1,833 animals per 
year to 309 animals per year. The measures implemented to address 
harbor porpoise mortality and serious injury in the Mid-Atlantic 
coastal gillnet fishery were expected to decrease harbor porpoise 
mortality and serious injury from an average fo 207 animals per year to 
less than 50 animals per year.
    The HPTRT and MATRT have both met twice since implementation of the 
HPTRP to review elements of the Plan, discuss how it is working, 
identify areas for improvement, and discuss approaches to meet further 
bycatch reduction goals mandated by section 118 of the MMPA. At a 
meeting in December of 1999, the HPTRP submitted consensus 
recommendations to NMFS addressing pinger operation and testing, data 
use and reliability, effort measurement, clarification of the impact of 
discards on the bycatch estimates, enforcement, analysis of pinger 
data, gear studies, analysis of and involvement in fishery management 
plans, authorization of the use of higher-frequency pingers, and 
investigation of enhanced acoustically reflective gillnet gear as a 
bycatch reduction tool.
    At a meeting in January of 2000, the MATRT submitted consensus 
recommendations to NMFS regarding observer coverage, non-compliance 
with the requirement to carry an observer, the role of the MATRT in 
reviewing proposed rules, adjustment of the Delaware Bay exemption 
line, the lower bound in the definition of the small mesh fishery, 
fishing industry investigation of mitigation strategies for harbor 
porpoise and bottlenose dolphin including pingers and reflective 
gillnetting, NMFS mitigation strategies, and investigation of 
interactions between recreational gear and harbor porpoise and 
bottlenose dolphins.
    On October 27, 2000, NMFS issued a proposed rule redefining 
Delaware Bay in the list of exempted waters to include waters landward 
of the 72 COLREGS line (65 FR 64415). The MATRT recommended by 
consensus that NMFS redefine the list of exempted waters because, in 
its opinion, harbor porpoise stranding and observer data indicated that 
harbor porpoise were not taken within Delaware Bay. The final rule 
exempting Delaware Bay was published on January 11, 2001 (66 FR 2336).

[[Page 40181]]

    NMFS reconvened the MATRT in November 2000. The team recommended 
that NMFS solicit team input on regulatory changes, streamline 
coordination between fishery management plan measures and take 
reduction plan measures, modify and standardize gear definitions, 
improve the observer program, develop gear research and education 
measures that may result in additional bycatch reduction, and evaluate 
incidental take of harbor porpoise and bottlenose dolphin in 
recreational fisheries.
    NMFS reconvened the HPTRT in December 2000. The team recommended 
that NMFS establish a program in cooperation with the states to certify 
that pingers are operational, develop a schedule for penalties for non-
compliance with the plan, notify permit holders about problems with 
non-compliance, consider moving the southern boundaries of the Cape Cod 
South closure to include takes observed in 2000, and develop a proposal 
for a stand-alone MMPA plan (i.e., one that contains all measures 
necessary for porpoise protection rather than incorporating FMP 
measures designed for fish conservation).
Multispecies Fishery Management Plan (Multispecies FMP)
    The Multispecies FMP measures incorporated into the HPTRP strategy 
at the time of the December 1998 final rule included time/area, 
seasonal, and year-round closures for groundfish protection implemented 
under Framework 25 (63 FR 15326, March 31, 1998), which built on 
Amendments 5 (59 FR 9884, March 1, 1994) and 7 (61 FR 27710, May 31, 
1996) and Framework 9 (60 FR 19364, April 18, 1995) of the Multispecies 
FMP.
    NMFS expanded the time/area closure system in the Multispecies FMP 
in 1999. Framework 26 (64 FR 2601, January 15, 1999), implemented 
shortly after implementation of the HPTRP, expanded one closure and 
added two others. Framework 27 (64 FR 24066, May 5, 1999) expanded the 
GOM inshore seasonal closure areas for March through June, the Cashes 
Ledge closure area and time of closures (as defined under the FMP), 
created an additional closure in Massachusetts Bay, and eliminated the 
Northeast closure as a groundfish closure, although it was retained as 
a harbor porpoise closure area. Framework 28 (64 FR 15704, April 1, 
1999) made several changes for consistency with the HPTRP, including 
opening an area previously closed to gillnet fishing under the 
Multispecies FMP for porpoise protection, as long as pingered nets were 
used.
    Multispecies FMP groundfish time/area closures in effect for 
Calendar Year 2000 included some from the 1999 fishing year as well as 
those implemented in Frameworks 31 and 33. Framework 31 (65 FR 377, 
January 5, 2000) included an additional inshore area closure. Framework 
33 (65 FR 21658, April 24, 2000) expanded the time/area closure system 
for groundfish protection, including a one-year extension of the year-
round Western GOM closure, addition of a closure of a portion of 
Georges Bank east and southeast of Cape Cod during May, and conditional 
closures of a portion of Massachusetts Bay/Stellwagen Bank in January 
and Cashes Ledge (as defined by the FMP) in November that would be 
triggered if cod landings reached certain levels. Both the November 
2000 and the January 2001 conditional closures were triggered, but the 
latter is outside the time period of this analysis.
    NMFS also implemented Framework Adjustments 29, 30, 32, 34, and 35 
to the Multispecies FMP for Fishing Years 1999 and 2000. However, these 
frameworks did not affect time/area closures applicable to gillnet 
gear, and are therefore not discussed here.
Estimated Harbor Porpoise Bycatch During 1999 and 2000 Relative to 
Historical Levels
    The estimates of GOM/BOF harbor porpoise bycatch for 1999 and 2000 
are derived from the following components: (a) bycatch attributable to 
the Northeast sink gillnet fishery, (b) bycatch attributable to the 
Mid-Atlantic coastal gillnet fishery, (c) bycatch attributable to the 
BOF Canadian sink gillnet fishery, (d) bycatch attributable to the BOF 
Canadian herring weir fishery, and (e) records of fishery interactions 
reported in the stranding data, as appropriate.
    NMFS analyzes harbor porpoise bycatch derived from observer 
coverage in the Northeast sink gillnet fishery and Mid-Atlantic coastal 
gillnet fishery in three seasonal components: Winter (January-May), 
Summer (June-August), and Fall (September-December). Other sources of 
bycatch are then added to these estimates to derive the total annual 
estimate.
Northeast Sink Gillnet Fishery
    The estimated bycatch attributable to the Northeast sink gillnet 
fishery (as defined in the MMPA List of Fisheries) during the winter, 
summer, and fall seasons for 1999 and 2000 is presented in Tables 1, 2, 
and 3, respectively.
    During the winter season of 1999, time-area closures and pinger 
restrictions affected this fishery under both the HPTRP and the 
Multispecies FMP. During the winter, the majority of FMP closures 
occurred in the GOM. In 2000, the same HPTRP restrictions were in 
place, but the FMP measures changed. Estimated winter bycatch for this 
fishery was 149 (CV=0.43) in 1999 and 159 (CV=0.64) in 2000 (Table 1). 
Winter fishing effort, measured in tons landed, decreased from 5,380 
metric tons in 1999 to 3,982 metric tons in 2000 (NMFS unpublished 
data). Thus, the bycatch remained approximately the same in 2000 
although fishing catch was reduced relative to 1999.
    The HPTRP incorporates some restrictions that have been in effect 
under the Multispecies FMP since 1994. Therefore, the best baseline 
estimate of harbor porpoise bycatch in New England prior to the 
implementation of porpoise protection measures is the average annual 
bycatch for the earliest years of the NMFS Sea Sampling Program, 1990-
1993. Based on data presented in Bravington and Bisack (1996), the 
average historical (1990-1993) winter bycatch in this fishery was 988 
animals. The winter bycatch in 1999 and 2000 was substantially less 
than historical levels for this season. Winter 1999 and 2000 harbor 
porpoise serious injury and mortality in the Northeast Sink Gillnet 
Fishery is presented in Table 1.

   Table 1. Harbor Porpoise Serious Injury/Mortality Attributed to the
      Northeast Sink Gillnet Fishery -- Winter Season 1999 and 2000
                      Winter Season (January - May)
------------------------------------------------------------------------
                                                           Bycatch Based
                                                            on Observed
                          Area                                 Takes
                                                         ---------------
                                                           1999    2000
------------------------------------------------------------------------
Port Group Strata
Northern Maine                                            CBD\a\     CBD
Southern Maine                                               CBD       0
New Hampshire                                                CBD     CBD
North of Boston                                                0       0
South of Boston                                                0      12
South Cape                                                   CBD     132
East Cape                                                      0       0
Offshore                                                     108       0
Closure Strata
Northeast                                                    CBD     CBD
Mid-coast                                                      0      15
Massachusetts Bay                                              0       0
Cape Cod Bay                                                 CBD     CBD
South Cape                                                    41       0
Great South Channel                                          CBD       0
Offshore                                                       0       0
Cashes Ledge                                                   0     CBD

[[Page 40182]]

 
Estimated Total Winter Bycatch in New England                149     159
------------------------------------------------------------------------
CBD\a\=cannot be determined and represents strata where the bycatch is
  unknown because there was no observer coverage.

    During the summer season, relatively few time-area closures and no 
pinger restrictions affected this fishery in 1999 or 2000. Estimated 
summer bycatch for this fishery was 29 (CV=0.94) in 1999 and 0 in 2000. 
Fishing effort in the summer season consisted of 7,509 metric tons 
landed in 1999 and 5,656 metric tons in 2000 (NMFS unpublished data). 
Based on data presented in Bravington and Bisack (1996), the average 
historical (1990-1993) summer bycatch in this fishery was 107 animals. 
Thus, the summer bycatch for both 1999 and 2000 was below the 
historical average. This is not unusual because most of the GOM/BOF 
harbor porpoise population moves north into the Bay of Fundy during the 
summer. Summer 1999 and 2000 harbor porpoise serious injury and 
mortality in the Northeast Sink Gillnet Fishery is presented in Table 
2.

   Table 2. Harbor Porpoise Serious Injury/Mortality Attributed to the
      Northeast Sink Gillnet Fishery -- Summer Season 1999 and 2000
                      Summer Season (June - August)
------------------------------------------------------------------------
                                                           Bycatch Based
                                                            on Observed
                          Area                                 Takes
                                                         ---------------
                                                           1999    2000
------------------------------------------------------------------------
Port Group Strata
Northern Maine                                            CBD\a\     CBD
Southern Maine                                                 0       0
New Hampshire                                                 29       0
North of Boston                                                0       0
South of Boston                                                0       0
South Cape                                                     0       0
East Cape                                                      0       0
Offshore                                                       0       0
Closure Strata
Northeast                                                    CBD     CBD
Mid-coast                                                    CBD     CBD
Massachusetts Bay                                            CBD     CBD
Cape Cod Bay                                                 CBD     CBD
South Cape                                                   CBD     CBD
Great South Channel                                          CBD       0
Offshore                                                     CBD     CBD
Cashes Ledge                                                 CBD     CBD
Estimated Total Summer Bycatch in New England                 29       0
------------------------------------------------------------------------
CBD\a\=cannot be determined and represents strata where the bycatch is
  unknown because there was no observer coverage.

    During the fall, HPTRP restrictions for this fishery are primarily 
pinger restrictions, with the exception of the Northeast closure. FMP 
time-area closures were also in place during the fall of 1999 and 2000. 
Estimated fall bycatch for this fishery was 92 (CV=0.43) in 1999 and 
348 (CV=0.45) in 2000. Fall fishing effort was measured at 5,793 metric 
tons in 1999 and 4,849 metric tons in 2000. Based on data presented in 
Bravington and Bisack (1996), the average historical (1990-1993) fall 
bycatch in this fishery was 770 animals. Thus, the fall bycatch for 
both 1999 and 2000 was below the historical average. Fall 1999 and 2000 
harbor porpoise serious injury and mortality in the Northeast Sink 
Gillnet Fishery is presented in Table 3.

   Table 3. Harbor Porpoise Serious Injury/Mortality Attributed to the
        Northeast Sink Gillnet Fishery--Fall Season 1999 and 2000
                       Fall Season (June - August)
------------------------------------------------------------------------
                                                           Bycatch Based
                                                            on Observed
                          Area                                 Takes
                                                         ---------------
                                                           1999    2000
------------------------------------------------------------------------
Port Group Strata
Northern Maine                                            CBD\a\     CBD
Southern Maine                                               CBD       0
New Hampshire                                                CBD       0
North of Boston                                                0       0
South of Boston                                                0       0
South Cape                                                     0       0
East Cape                                                      0       0
Offshore                                                       0       0
Closure Strata
Northeast                                                    CBD     CBD
Mid-coast                                                     92     348
Massachusetts Bay                                              0       0
Cape Cod Bay                                                 CBD     CBD
South Cape                                                     0       0
Great South Channel                                          CBD     CBD
Offshore                                                       0     CBD
Cashes Ledge                                                 CBD     CBD
Estimated Total Fall Bycatch in New England                   92     348
------------------------------------------------------------------------
CBD\a\=cannot be determined and represents strata where the bycatch is
  unknown because there was no observer coverage.

    Adding the bycatch from the three seasons results in a total 
bycatch of 270 (CV=0.28) for the New England sink gillnet fishery in 
1999 and 507 (CV=0.37) in 2000. Inter-annual variability in harbor 
porpoise and groundfish distribution is expected, and this variability 
will likely be reflected in observed bycatch patterns. Therefore, NMFS 
typically takes an average of several years to derive the best 
representation of the bycatch scenario. The average annual estimated 
bycatch for this fishery during 1999-2000 was 389 (CV=0.26) animals.
    The historical (1990-1993) average harbor porpoise serious injury/
mortality for this fishery was estimated at 1,875 (CV=0.32) animals 
(Blaylock, et al. 1995). The goal of the HPTRP was to reduce the 
bycatch by 79 percent, resulting in an expected reduction to 385 takes 
per year. This value represents a level below the PBR, which was 483 in 
1998, and considered the potential for mortality from sources other 
than the Northeast sink gillnet and Mid-Atlantic coastal gillnet 
fisheries. As discussed in the EA for the HPTRP final rule, the 
estimated bycatch for this fishery, taking into account measures 
implemented through Framework 25, was expected to be 157. This bycatch 
reduction was not realized in either 1999 or 2000 despite expansion of 
Multispecies FMP closures since Framework 25. The reasons for the 
observed take levels in 1999 and 2000 are currently not known. In 
addition, it is likely that non-compliance with HPTRP and FMP 
regulations in the fall of 2000 contributed to the increase in bycatch 
for that year. However, both the 1999 and 2000 bycatch levels represent 
a substantial decrease over the historical level of 1,875 estimated 
porpoise takes in this fishery. In addition, the take in

[[Page 40183]]

this fishery combined with that from other sources was below the 
current PBR in both 1999 and 2000.
Mid-Atlantic Coastal Gillnet Fishery
    The estimated bycatch attributable to the Mid-Atlantic coastal 
gillnet fishery in 1999 and 2000 is presented in Table 4. In 1999 and 
2000, bycatch was observed in the Mid-Atlantic only during the winter 
season. NMFS did not incorporate any FMP restrictions into the HPTRP 
strategy for the Mid-Atlantic coastal gillnet fishery. HPTRP 
restrictions for the Mid-Atlantic include time-area closures and gear 
restrictions, which were developed to target the monkfish and dogfish 
subfisheries and based on gear characteristics most closely associated 
with harbor porpoise bycatch in these fisheries.
    Most of the Mid-Atlantic measures in the HPTRP are divided into two 
categories, which correspond to ``large mesh'' and ``small mesh'' gear 
as defined in the HPTRP. Only one time-area closure, the ``Mudhole'' 
closure off New Jersey, applies to both mesh categories. The lower 
bound of ``small mesh'' is defined in the HPTRP as mesh of sizes 
greater than 5.0 inches (12.7 cm), so mesh sizes of 5.0 inches (12.7 
cm) and smaller are not regulated by the HPTRP in the Mid-Atlantic. 
Although takes have been observed in gear with mesh sizes 5.0 inches 
(12.7 cm) and smaller, there is no basis at this time to apply the 
current gear restrictions to those mesh sizes. Further information 
obtained from observer coverage and gear research may yield information 
which can be used to develop additional gear modifications.
    The monkfish and dogfish fisheries have changed significantly as a 
result of FMP measures. The stock rebuilding programs in the FMPs for 
monkfish and dogfish have substantially reduced fishing effort in these 
two subfisheries of the Mid-Atlantic coastal gillnet fishery.
    As presented in Table 4, the estimated annual harbor porpoise 
mortality attributable to the Mid-Atlantic coastal gillnet fishery was 
53 (CV=0.49) in 1999 and 21 (CV=0.76) in 2000. The goal for the Mid-
Atlantic component of the HPTRP was to reduce takes in this fishery 
from 207 per year to 43 per year. According to the bycatch estimates 
based on observed takes for 1999 and 2000, this goal was not reached in 
1999 but was reached in 2000. However, the HPTRP measures for the Mid-
Atlantic were intended to address bycatch in the monkfish and dogfish 
subfisheries. The takes documented in 1999 and 2000 did not occur in 
either the monkfish or dogfish subfisheries; rather, they occurred in 
the shad subfishery. The bycatch estimates for both 1999 and 2000 
represent a substantial reduction from the goal of 207. The average 
estimated bycatch for this fishery during 1999-2000 was 37 (CV=0.41) 
animals per year.

Table 4. Harbor Porpoise Serious Injury/Mortality Attributed to the Mid-
       Atlantic Sink Gillnet Fishery - Winter Season 1999 and 2000
                      Winter Season (January - May)
------------------------------------------------------------------------
                                                           Bycatch Based
                                                            on Observed
                          State                                Takes
                                                         ---------------
                                                           1999    2000
------------------------------------------------------------------------
New York                                                       0       0
New Jersey                                                     0       0
Delaware                                                       0      21
Maryland                                                      53       0
Virginia                                                       0       0
North Carolina                                                 0       0
Estimated Total Winter Bycatch in the Mid-Atlantic            53      21
------------------------------------------------------------------------

Unknown Mid-Atlantic Fishery
    In 1999, 228 harbor porpoise stranded along the U.S. East Coast. 
With regard to the strandings for which a fishery interaction 
determination could be made, 38 exhibited signs of fishery interaction 
involving monofilament line or mesh. Of those 38, one was in New 
England and the remainder in the Mid-Atlantic. NMFS estimates that 19 
of the 37 in the Mid-Atlantic resulted from events occurring in times/
areas where they would not have been detected by the Sea Sampling 
Program. An extrapolated estimate cannot be derived from the stranding 
numbers because the extrapolation factor is unknown. However, these 19 
strandings are added to the extrapolated estimates of mortality and 
serious injury for 1999.
    The Mid-Atlantic coastal gillnet fishery is the only fishery with 
documented takes of harbor porpoise in the Mid-Atlantic. However, there 
are other commercial and recreational fisheries in the Mid-Atlantic 
which may use gear that would make net marks similar to the gear used 
in the Mid-Atlantic coastal gillnet fishery. Therefore, NMFS is 
currently attributing the 19 takes to an unknown fishery. Should any 
Mid-Atlantic fisheries not currently regulated by the HPTRP be 
identified as sources of harbor porpoise serious injury/mortality, 
section 118 of the MMPA gives NMFS the authority to add representatives 
of these fisheries to the MATRT. However, restrictions can only be 
implemented through the HPTRP for commercial fisheries at this time, 
i.e., not recreational fisheries.

Summary and Discussion of U.S. Fishery Takes

    The bycatch in both the Northeast sink gillnet fishery and the Mid-
Atlantic coastal gillnet fishery in 1999 and 2000 reflects a 
substantial reduction from historical levels of harbor porpoise 
mortality and serious injury. NMFS assumes that this reduction has been 
achieved through measures implemented through the HPTRP and FMP 
actions.
    The combination of HPTRP and FMP measures was sufficient to reduce 
the bycatch to below PBR in both 1999 and 2000. However, because FMP 
closures are subject to change in a different management process than 
the HPTRP, the degree of harbor porpoise protection realized from the 
combined strategy will always be vulnerable to changes in the FMP 
closure system when the goal of maintaining the bycatch below PBR is 
dependent upon the FMP closures. As long as this strategy is 
maintained, active monitoring and response to changes in FMP 
restrictions will be required. Furthermore, if the goals of the FMPs 
are met, the closures could be lifted, resulting in an unknown effect 
on harbor porpoise bycatch. NMFS will monitor actions taken under the 
FMPs to ensure that any changes to fishery management measures that may 
or do result in unanticipated increases in harbor porpoise bycatch 
rates are mitigated through one of the available regulatory mechanisms. 
NMFS may also revise the HPTRP to incorporate all measures necessary to 
ensure reduced harbor porpoise bycatch rather than relying on FMP time/
area closures.
    In the Multispecies FMP, NMFS has maintained porpoise protection 
measures up through Framework 28. Because porpoise bycatch reduction is 
also an objective of the Multispecies FMP, the FMP authority represents 
a supplementary regulatory mechanism for addressing harbor porpoise 
bycatch.
    In addition, the Atlantic States Marine Fisheries Commission 
(ASMFC) has adopted protected species items in their charter for 
development of inter-state FMPs. This provides another potential 
regulatory mechanism for implementing porpoise bycatch reduction 
measures.

Mechanisms for Addressing Take Incidental to Canadian Commercial 
Fisheries

    Canadian regulatory mechanisms were described in the October 22, 
1998, Federal Register notice. The two commercial fisheries in the Bay 
of

[[Page 40184]]

Fundy known to take harbor porpoise are the groundfish sink gillnet 
fishery and the herring weir fishery.
Bay of Fundy (Canadian) Sink Gillnet Fishery
    The Canada Department of Fisheries and Oceans (DFO) finalized the 
Harbor Porpoise Conservation Plan in 1994. This plan was intended to 
reduce the mortality of harbor porpoise in the BOF sink gillnet fishery 
to sustainable levels. In 1995, DFO developed an expanded program 
called Harbor Porpoise Conservation Strategy for the Bay of Fundy 
(HPCS). This plan incorporated gillnet fishing effort reduction, 
required pinger use, expanded observer coverage, and included a fisher 
education program. In 1999 and 2000, no porpoise-specific changes have 
been made to the HPCS.
    The goal of the HPCS was to reduce the bycatch to a level below two 
percent of the GOM/BOF porpoise population abundance estimate, a target 
of 110 animals per year in the Bay of Fundy. This goal was reached in 
1999 and is expected to have been met in 2000. The bycatch for 1999 is 
estimated at 20 animals, and the 2000 estimate is not expected to 
exceed 20. By comparison, bycatch was estimated to be 424 animals in 
1993 and 101 animals in 1994 (Trippel, et al. 1996). Thus, the bycatch 
in recent years is well below the level prior to implementation of the 
HPCS.
    Since 1998, DFO has been assisting the Bay of Fundy sink gillnet 
fishery in testing alternative gillnet gear developed in the U.S. by 
individuals involved in porpoise bycatch reduction efforts throughout 
the GOM/BOF. This gear shows promise as a bycatch reduction tool for 
harbor porpoise (and possibly marine birds) and may be tested in U.S. 
waters in the near future.

Mechanisms for Addressing Take Incidental to Recreational Fisheries 
and Other Sources of Incidental Take

    Although no takes of harbor porpoise in recreational gear have been 
documented, it is possible that such takes are occurring. Any takes 
that occur by recreational fisheries would be in violation of the take 
provisions of the MMPA unless authorized under section 101(a)(5) of the 
MMPA.
    Other human activities could result in lethal takes of harbor 
porpoise, and such takes would also be addressed in section 101 (a)(5) 
of the MMPA. No lethal takes of harbor porpoise have been documented 
incidental to human activities other than commercial fisheries, except 
for scientific research activities, as discussed in the following 
section.

Mechanisms for Addressing Take Resulting from Scientific Research 
Activities

    In the U.S., scientists wishing to undertake research activities 
specifically targeting harbor porpoise are required to obtain permits 
under the scientific research provision of the MMPA. NMFS is not aware 
of any reports of mortality or serious injury from scientific research 
activities other than a mortality of a harbor porpoise recorded during 
a gillnet survey conducted by the Maryland Department of Marine 
Resources in upper Chesapeake Bay in the mid-1990s. However, there have 
been research projects specifically directed at studying harbor 
porpoise, and non-lethal takes were authorized under the MMPA 
scientific research permit provisions for those activities.

Mechanisms for Addressing Intentional Take

    Intentional lethal take of marine mammals is prohibited by the MMPA 
with the exception of cases where human safety is threatened. Since it 
is unlikely that human safety would be threatened during an encounter 
with a harbor porpoise, this type of take is unlikely to occur.

Other Available Regulatory Mechanisms

    Acute impacts to the GOM/BOF harbor porpoise population could occur 
as a result of unusually high mortality events caused by natural or 
human-caused factors (e.g., disease, biotoxins, oil spill). Section 404 
of Title IV of the MMPA requires the Secretary of Commerce to establish 
a marine mammal unusual mortality event working group that is 
responsible for identifying when an unusual mortality event is 
occurring and to develop a contingency plan to assist the Secretary in 
responding to the event. NMFS has established the working group, a 
policy for identifying unusual mortality events, and a generic 
contingency plan (Wilkinson 1996). This mechanism is available should 
it become necessary to respond to a suspected mortality event.

E. Other Natural or Anthropogenic Factors Affecting the Continued 
Existence of the Species or Distinct Population Segment(s)

    NMFS has identified several anthropogenic factors that could 
contribute to the threat or endangerment of the GOM/BOF harbor porpoise 
population. These include pathology due to contaminants, intentional 
takes for subsistence, and competition with commercial fisheries.
Contaminants
    The presence of contaminants in the tissues of harbor porpoise 
could affect the survival and/or reproductive capacity of individuals. 
There is no new evidence since the 1998 status review to indicate that 
contaminants in harbor porpoise tissues pose a serious threat to this 
population at the present time.
Subsistence Harvest
    Harbor porpoises were harvested by indigenous hunters in Maine and 
Canada before the 1960s (NEFSC 1992). The extent of these past harvests 
is unknown, though it is believed to have been small. Up until the 
early 1980s, small subsistence kills of harbor porpoise in the GOM/BOF 
by indigenous hunters of the Passamaquoddy Nation in both U.S. and 
Canadian waters were reported. The hunt was believed to have nearly 
stopped (Polacheck 1989), however, public media reports in September 
1997 depicted a Passamaquoddy hunter dressing out a harbor porpoise 
that had been taken in Canadian waters. Any subsistence harvest that 
may be occurring at the present time is assumed to be at such a low 
level that it would not contribute to the threat or endangerment of the 
GOM/BOF harbor porpoise population.
Competition with Commercial Fisheries
    Harbor porpoise could be competing with commercial fisheries where 
there is overlap between commercial target species and porpoise prey 
species. Porpoise food habits are not conclusively known in the Western 
North Atlantic; however, some information on prey preferences is 
available from analysis of the stomach contents of porpoise 
incidentally taken in commercial fisheries. Stomachs from 95 harbor 
porpoises caught in groundfish gillnets in the Gulf of Maine between 
September and December 1989-94 were analyzed by Gannon, et al. (1998). 
Results of this work suggest that Atlantic herring (Clupea harengus) is 
the most important harbor porpoise prey in the GOM/BOF during late 
summer and autumn based on frequency of occurrence. Pearlsides 
(Maurolicus weitzmani), silver hake (Merluccius bilinearis), and red 
and white hake (Urophycis spp.) were the next most common prey species 
(Gannon, et al. 1998). Commercial fisheries exist for several of these 
species, including herring in the GOM, BOF, and Mid-Atlantic and the 
hake species in the GOM and BOF.
    Competition effects would be enhanced if the commercial fishery is

[[Page 40185]]

targeting the same age class of the harbor porpoise prey species in 
question and in the same time/area. If competition is occurring, 
adverse impacts to the porpoise population would be measured in effects 
on reproductive performance. No such effects have been identified to 
date. FMPs are now in place for the herring and hakes, including 
requirements for reporting of catch. Therefore, the harvest is 
controlled, and it will be possible to closely monitor the level of 
effort in these fisheries. With further work in identifying harbor 
porpoise population trends, it will be possible in the future to 
compare the trajectory of the porpoise population with that of the 
fishing effort.

Proposed Determination

    Section 4 (b)(1) of the ESA requires the Secretary of Commerce to 
make a listing determination solely on the basis of the best scientific 
and commercial data available and after taking into account efforts 
being made to protect the species. Therefore, in reviewing the status 
of the GOM/BOF population of harbor porpoise, NMFS has assessed the 
status of the species, identified factors that could result in a threat 
or endangerment to the species, and evaluated available conservation 
measures to determine whether such measures adequately mitigate risks 
to the species.
    The 1998 status review and proposal to list the GOM/BOF stock of 
harbor porpoise as threatened under the ESA identified mortality and 
serious injury incidental to commercial fishing as the primary threat 
to this stock of harbor porpoise. However, in 1999 the proposal to list 
the GOM/BOF stock of harbor porpoise as threatened under the ESA was 
withdrawn because bycatch reduction measures implemented in the United 
States and Canada were sufficient to reduce harbor porpoise mortality 
and serious injury incidental to commercial fishing. Despite the 
withdrawal of the proposal to list the GOM/BOF stock of harbor porpoise 
as threatened under the ESA, NMFS maintained harbor porpoise on the ESA 
candidate species list to notify the public of NMFS' concern regarding 
the population and to ensure continued monitoring of the species' 
status.
    Since 1999, NMFS has obtained no information to suggest that: (1) 
other factors could cause the stock to be threatened under the ESA, or 
(2) that the bycatch reduction measures in place are inadequate 
regulatory mechanisms to reduce harbor porpoise mortality and serious 
injury. An analysis of the five listing factors indicates at this time 
that none of these factors, alone or in combination with one another, 
is likely to threaten or endanger the GOM/BOF harbor porpoise 
population. Therefore, listing the GOM/BOF population of harbor 
porpoise as threatened or endangered is not warranted at this time. In 
addition, because of the reduction in harbor porpoise mortality since 
1999, it is appropriate to remove the GOM/BOF harbor porpoise 
population from the candidate species list.
    The most significant factors that NMFS considered are the results 
of implementation of measures promulgated under the MMPA and Magnuson-
Stevens Fishery Conservation and Management Act to reduce the level of 
harbor porpoise mortality incidental to commercial fishing in U.S. 
waters and the Harbor Porpoise Conservation Strategy implemented by the 
Canada Department of Fisheries and Oceans. Although it is likely that 
porpoise mortality will continue to occur incidental to fishery 
operation, existing regulatory mechanisms for addressing the threat of 
bycatch in commercial fisheries are adequate to remove the potential 
that lethal take in these fisheries does or will pose a threat or 
endangerment to this population. Regulatory agencies have the authority 
to adapt management measures if unanticipated changes in porpoise 
bycatch patterns occur.
    NMFS' conclusion that these conservation efforts promote the 
sustainability of the GOM/BOF population of harbor porpoise is based on 
the following factors: (1) These plans, which include specific porpoise 
bycatch reduction measures, have been in place for the past 2 years, 
and the mortality of harbor porpoise has dropped to below the PBR 
level; (2) a population viability analysis did not result in any 
extinction projections (Wade 2001); (3) the abundance and distribution 
of harbor porpoise are greater than previously believed, resulting in 
an increase in PBR; and (4) bycatch reduction objectives and time 
frames for achieving these objectives relative to MMPA take reduction 
goals have been established and include adaptive management principles.
    Although the HPTRP and other bycatch reduction efforts have reduced 
the incidental take of harbor porpoise in the gillnet fisheries to 
below PBR in both 1999 and 2000, it is clear from the observation 
efforts during the first 2 years of HPTRP implementation that the 
plan's effectiveness must continue to be monitored. NMFS is aware of 
non-compliance with HPTRP regulations that may have reduced the plan's 
effectiveness, requiring additional outreach and enforcement to 
maximize the effectiveness of the HPTRP. Furthermore, fishery 
management measures have changed since the implementation of the HPTRP 
and are likely to continue to change on an annual basis. It is possible 
that closures implemented for fish conservation will be removed when 
fish stocks reach their rebuilding targets, which could result in an 
increased risk to harbor porpoise and may require adjustment of the 
HPTRP. NMFS will continue to monitor the bycatch levels and adjust the 
HPTRP as necessary to reach a zero mortality and serious injury rate as 
established in Section 118 of the MMPA. NMFS will monitor any new 
regulations or changes to existing regulations that may affect harbor 
porpoise bycatch and evaluate whether management measures need to be 
changed. NMFS intends to reconvene the TRTs as appropriate to monitor 
the implementation of the HPTRP relative to MMPA goals.

Biological Information Solicited

    To ensure that this review of the status of the GOM/BOF harbor 
porpoise population is comprehensive and based on the best available 
information, NMFS is soliciting information and comments from any 
interested person concerning the status of the Gulf of Maine/Bay of 
Fundy stock of harbor porpoise and any of the issues discussed above in 
our preliminary determination of the status of this population. NMFS is 
primarily interested in new information that has become available since 
NMFS last determined that listing of this stock was not warranted (64 
FR 465, January 5, 1999). It is requested that data, information, and 
comments be accompanied by (1) supporting documentation such as maps, 
logbooks, bibliographic reference, personal notes, or reprints of 
pertinent publications; and (2) the name of the person submitting the 
data, his/her address, and any association, institution, or business 
that the person represents. NMFS will consider all comments prior to 
making its final determination on the status of the GOM/BOF harbor 
porpoise stock, whether to list it under the ESA, and whether to remove 
it from the Candidate Species List.

References (available upon request)

    Bisack, K. D. 1997a. Harbor porpoise bycatch estimates in the New 
England multispecies sink gillnet fishery: 1994 and 1995. Rep. int 
Whal. Commn. 47: 705-14.
    Blaylock, R.A., J.W. Hain, L.J. Hansen, D.L. Palka, and G.T. 
Waring. 1995. U.S. Atlantic and Gulf of Mexico marine

[[Page 40186]]

mammal stock assessments. NOAA Tech. Mem. NMFS-SEFSC-363, 211 pp.
    Bravington, M. V. and K. D. Bisack. 1996. Estimates of harbor 
porpoise bycatch in the Gulf of Maine sink gillnet fishery, 1990-1993. 
Rep. Int Whal. Commn.46:567-74.
    Caswell, H., S. Brault, A. Read and T. Smith. 1998. Harbor porpoise 
and fisheries: an uncertainty analysis of incidental mortality. 
Ecological Applications 84(4):1226-1238.
    Cox, T. M., A. J. Read, S. Barco, J. Evans, D. P. Gannon, H. N. 
Koopman, W.A . McLellan, K. Murray, J. Nicolas, D. A. Pabst, C. W. 
Potter, W. M. Swingle, V. G. Thayer, K. M. Touhey and A. J. Westgate. 
1998. Documenting the bycatch of harbor porpoises, Phocoena phocoena, 
in coastal gill net fisheries from stranded carcasses. Fish. Bull. U.S. 
96 (4):727-734.
    CUD (Conservation and Utilization Division). 1994. Estimating 
harbor porpoise bycatch in the Gulf of Maine sink gillnet fishery, 
NOAA, NMFS, NEFSC Ref. Doc. 94-24, Woods Hole, MA.
    DFO (Department of Fisheries and Oceans). 1998. Harbour porpoise 
bycatch in the lower Bay of Fundy gillnet fishery. DFO Maritimes 
Regional Fisheries Status Report 98/7E. (Available from Department of 
Fisheries and Oceans, Resource management Branch, P.O. Box 550, 
Halifax, NS B3J 2S7, Canada..)
    Gannon, D. P., J. E. Craddock and A. J. Read. 1998. Autumn food 
habits of harbor porpoises, Phocoena phocoena, in the Gulf of Maine. 
Fish. Bull. U.S. 96(3):428-437.
    Gaskin, D. E. 1977. Harbour porpoise, Phocoena phocoena (L.), in 
the western approaches to the Bay of Fundy 1969-75. Rep. Int. Whal. 
Comm 27:487-492.
    Gaskin, D. E. 1984. The harbor porpoise Phocoena phocoena (L.): 
Regional populations, status, and information on direct and indirect 
catches. Rep. Int Whal. Commn 34:569-586.
    Gaskin, D. E. 1992. The status of the harbour porpoise. Can. Fld. 
Nat. 106:36-54.
    Gilbert, J. R. and K. M. Wynne. 1985. Harbor seal populations and 
fisheries interactions with marine mammals in New England, 1984. Fourth 
Annual Report, Contract NA-80-FA-C-00029, Northeast Fisheries Center, 
Woods Hole, MA, 15 pp.
    Gilbert, J. R. and K. M. Wynne. 1987. Harbor seal populations and 
fisheries interactions with marine mammals in New England. Final Report 
Contract NA-EA-C-0070, Northeast Fisheries Center, Woods Hole, 
Massachusetts. 15 pp.
    Haley, N. J. and A. J. Read. 1993. Summary of the workshop on 
harbor porpoise mortalities and human interaction. NOAA Tech. Mem. 
NMFS-F/NER 5.
    Hooker, S. K., R. W. Baird and M. A. Showell. 1997. Cetacean 
strandings and bycatches in Nova Scotia, Eastern Canada, 1991-1996. 
Meeting document SC/49/O5 submitted to the 1997 International Whaling 
Commission Scientific Committee meeting in Bournemouth, UK.
    Johnston, D. W. 1995. Spatial and temporal differences in heavy 
metal concentrations in the tissues of harbour porpoises (Phocoena 
phocoena L.) from the western North Atlantic. M.S. Thesis, University 
of Guelph, Guelph, Ontario, Canada. 152 pp.
    Kingsley, M. C. S. and R. R. Reeves. 1998. Aerial surveys of 
cetaceans in the Gulf of St. Lawrence in 1995 and 1996. Can. J. Zool. 
76:1529-1550.
    Koopman, H. N., A. J. Westgate and A. J. Read. 1999. Hematology 
values of wild harbor porpoise (Phocoena phocoena) from the Bay of 
Fundy Canada. Mar. Mammal Sci. 15 (1):52-64.
    Kraus, S. D. and S. Brault. (in press). A springtime field test of 
the use of pingers to reduce incidental mortality of harbor porpoises 
in gillnets. Rep. Int. Whal. Commn.
    Kraus, S. D., A. Read, E. Anderson, K. Baldwin, A. Solow, T. 
Sprawling and J. Williamson. 1997. Acoustic alarms reduce porpoise 
mortality. Nature 388:525.
    Kraus, S. D., J. H. Prescott and G. S. Stone. 1983. Harbour 
porpoise, Phocoena phocoena, in the U.S. coastal waters of the Gulf of 
Maine: A survey to determine seasonal distribution and abundance. 
Report to the Director, National Marine Fisheries Service, Northeast 
Region, Woods Hole, MA, 15 pp.
    Lamb, A. 2000. Patterns of harbor porpoise mortality in two US 
Atlantic sink gillnet fisheries and changes in life history parameters. 
Masters Thesis from Boston University.
    Lucas, Z. N. and S. K. Hooker. 2000. Cetacean strandings on Sable 
Island, Nova Scotia, 1970-1998. Canadian Field-Naturalist 114 (1): 46-
61.
    Molyneaux, P. 2000. Tradition at stake. National Fisherman 80 
(11):26-29.
    Neimanis, A. S., A. J. Read, A. J. Westgate, H. N. Koopm an, J. Y. 
Wang, L. D. Murison and D. E. Gaskin. 1995. Entrapment of har our 
porpoises (Phocoena phocoena) in herring weirs in the Bay of Fundy, 
Canada. Working paper SC/47/Sm18 for the International Whaling 
Commission, Dublin, Ireland.
    NEFSC (NMFS Northeast Fisheries Science Center). 1992. Harbor 
porpoise in eastern North America: Status and research needs. Results 
of a scientific workshop held May 5-8, 1992 at the Northeast Fisheries 
Science Center, Woods Hole, MA. NOAA, NMFS, NEFSC Ref. Doc. 92-06, 
Woods Hole, MA.
    Palka, D. 2000. Abundance of the Gulf of Maine/Bay of Fundy harbor 
porpoise based on shipboard and aerial surveys during 1999. NOAA/NMFS/
NEFSC Ref. Doc. 00-07; 29 pp. Available from: National Marine Fisheries 
Service, 166 Water Street, Woods Hole, MA 02543-1026.
    Palka, D. 1996. Update on abundance of Gulf of Maine/Bay of Fundy 
harbor porpoises. NOAA/NMFS/NEFSC Ref. Doc. 96-04; 37 pp. Available 
from: National Marine Fisheries Service, 166 Water Street, Woods Hole, 
MA 02543-1026.
    Palka, D. 1995a. Abundance estimate of the Gulf of Maine harbor 
porpoise. pp. 27-50 In: A. Bjrge and G.P. Donovan (eds.) Biology of the 
Phocoenids. Rep. Int Whal. Commn. Special Issue 16.
    Palka, D. 1995b. Influences on spatial patterns of Gulf of Maine 
harbor porpoises. pp. 69-75 In: A.S. Blix, L. Walle and. Ulltang (eds.) 
Whales, seals, fish and man. Elsevier Science B.V. The Netherlands.
    Palka, D. (ed). 1994. Results of a scientific workshop to evaluate 
the status of harbor porpoises (Phocoena phocoena) in the western North 
Atlantic. NOAA, NMFS, NEFSC [Northeast Fisheries Science Center] Ref. 
Doc. 94-09, Woods Hole, MA.
    Palka, D. L., A. J. Read, A. J. Westgate and D. W. Johnston. 1996. 
Summary of current knowledge of harbour porpoises in U.S. and Canadian 
Atlantic waters. Rep. Int Whal. Commn. 46:559-565.
    Polacheck, T. 1989. Harbor porpoises and the gillnet fishery. 
Oceanus32 (1):63-70.
    Polacheck, T., F. W. Wenzel, and G. Early. 1995. What do stranding 
data say about harbor porpoises (Phocoena phocoena). Pp 169-180 in: A. 
Bjrge and G.P. Donovan (eds.) Biology of the Phocoenids. Rep. Int Whal. 
Commn. Special Issue 16.
    Read, A. J. 1994. Interactions between cetaceans and gillnet and 
trap fisheries in the northwest Atlantic. Rep. Int Whal. Commn. Special 
Issue 15: 133-147.
    Read, A. J. and A. A. Hohn. 1995. Life in the fast lane: The life 
history of harbour porpoises from the Gulf of Maine. Mar. Mammal Sci. 
11(4)423-440.
    Read, A. J. and A. J. Westgate. 1997. Monitoring the movements of 
harbour porpoises (Phocoena phocoena) with

[[Page 40187]]

satellite telemetry. Marine Biology 130:315-22.
    Rosel, P. E., S. C. France, J. Y. Wang and T. D. Kocher. 1999a. 
Genetic structure of harbour porpoise Phocoena phocoena populations in 
the northwest Atlantic based on mitochondrial and nuclear markers.
    Rosel, P. E., S. C. France, J. Y. Wang and T. D. Kocher. 1999a. 
Genetic structure of harbour porpoise Phocoena phocoena populations in 
the northwest Atlantic based on mitochondrial and nuclear markers. 
Molecular Ecology 8: S41-S54. Molecular Ecology8: S41-S54.
    Rosel, P. E., R. Tiedemann and M. Walton. 1999b. Genetic evidence 
for limited trans-Atlantic movements of the harbor porpoise Phocoena 
phocoena. Marine Biology133: 583-591.
    Smith, G. J. D., A. J. Read and D. E. Gaskin. 1983. Incidental 
catch of harbor porpoises, Phocoena phocoena (L.), in herring weirs in 
Charlotte County, New Brunswick, Canada. Fish. Bull., U.S. 81(3):660-2.
    Smith, T., D. Palka and K. Bisack. 1993. Biological significance of 
bycatch of harbor porpoise in the Gulf of Maine demersal gillnet 
fishery. NOAA, NMFS, NEFSC [Northeast Fisheries Science Center] Ref. 
Doc. 93-23, Woods Hole, MA.
    Trippel, E. A., J. Y. Wang, M. B. Strong, L. S. Carter and J. D. 
Conway. 1996. Incidental mortality of harbour porpoise (Phocoena 
phocoena) by the gillnet fishery in the lower Bay of Fundy. Can. J. 
Fish. Aquat. Sci. 53:1294-1300.
    Trippel, E. A., M. B. Strong, J. M. Terhune and J. D. Conway. 1999. 
Mitigation of harbour porpoise (Phocoena phocoena) bycatch in the 
gillnet fishery in the lower Bay of Fundy. Can. J. Fish. Aquat. Sci. 
56:113-123.
    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. U.S. Dep. Commer., NOAA Tech. Memo. NMFS-OPR-12, 
93 pp.
    Wade, P. R. 1998. Population viability analysis of the Gulf of 
Maine/Bay of Fundy harbor porpoise. Office of Protected Resources 
Report, National Marine Fisheries Service.
    Wade, P. R. 2001. Revised population viability analysis of the Gulf 
of Maine/Bay of Fundy harbor porpoise using abundance and mortality 
estimates through 1999. National Marine Mammal Laboratory, Alaska 
Fisheries Science Center, National Marine Fisheries Service.
    Wang, J. Y., D. E. Gaskin and B. N. White. 1996. Mitochondrial DNA 
analysis of harbour porpoise, Phocoena phocoena, subpopulations in 
North American waters. Can J Fish Aquat Sciences 53:1632-45.
    Walden, J. 1996. The New England gillnet effort study. NOAA, NMFS, 
NEFSC Ref. Doc. No. 96-10, 38 pp. Northeast Fisheries Science Center, 
Woods Hole, MA.
    Westgate, A. J. and K. A. Tolley. 1999. Geographical differences in 
organochlorine contaminants in harbour porpoises Phocoena phocoena from 
the western North Atlantic. Marine Ecology-Progress Series 177:255-268.
    Westgate, A. J., A. J. Read, T. M. Cox, T. D. Schofield, B. R. 
Whitaker and K. E. Anderson. 1998. Monitoring a rehabilitated harbor 
porpoise using satellite telemetry. Mar. Mammal Sci. 14 (3):599-604.
    Westgate, A. J., D. C. G. Muir, D. E. Gaskin and M. C. S. Kingsley. 
1997. Concentrations and accumulation patterns of organochlorine 
contaminants in the blubber of harbour porpoises, Phocoena phocoena, 
from the coast of Newfoundland, the Gulf of St. Lawrence and the Bay of 
Fundy/Gulf of Maine. Envir. Pollut. 95: 105-119.
    Wilkinson, D. 1996. National contingency plan for response to 
unusual marine mammal mortality events. U.S. Dep. Commer. NOAA Tech. 
Memo. NMFS-OPR-9, 118 p.

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

    Dated: July 27, 2001.
William T. Hogarth,
Acting Assistant Administrator, National Marine Fisheries Service.
[FR Doc. 01-19354 Filed 7-30-01; 2:45 pm]
BILLING CODE 3510-22-S