[Federal Register Volume 77, Number 192 (Wednesday, October 3, 2012)]
[Rules and Regulations]
[Pages 60319-60321]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-24410]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 229

RIN 0648-XC099


Harbor Porpoise Take Reduction Plan; Coastal Gulf of Maine 
Closure Area Established With a Temporary Shift of Its Effective Date

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

ACTION: Establishment of the Coastal Gulf of Maine Closure Area; 
temporary shift of its effective date.

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SUMMARY: Through this notice, NOAA's National Marine Fisheries Service 
(NMFS) announces the establishment of the Coastal Gulf of Maine Closure 
Area under the Harbor Porpoise Take Reduction Plan (Plan), and 
temporarily shifts the effective date of year 1 of its implementation 
from October 1, 2012, to February 1, 2013. Recent information suggests 
that harbor porpoise bycatch is higher in February and March than in 
October and November since the implementation of sectors in May 2010, 
warranting a temporary shift of the closure in year 1 to a time period 
that would provide greater conservation benefit to harbor porpoises and 
allow time for more complete consideration of updated information on 
harbor porpoise bycatch, harbor porpoise abundance, and fishing effort 
by the Harbor Porpoise Take Reduction Team (Team). As such, this area 
will be closed to gillnet fishing in February and March of 2013 rather 
than October and November of 2012.

DATES: Year 1 effective February 1, 2013; Year 2 and beyond effective 
October 1, 2013.

FOR FURTHER INFORMATION CONTACT: Kate Swails, NMFS, Northeast Region, 
978-282-8481, [email protected]; or Kristy Long, NMFS, Office of 
Protected Resources, 301-427-8402, [email protected].

SUPPLEMENTARY INFORMATION:

Background

    The Harbor Porpoise Take Reduction Plan (Plan) was implemented in 
late 1998 pursuant to section 118(f) of the Marine Mammal Protection 
Act (MMPA) to reduce the level of serious injury and mortality of the 
Gulf of Maine/Bay of Fundy (GOM/BOF) stock of harbor porpoises (63 FR 
66464, December 2, 1998). NMFS amended the Plan in 2010 (75 FR 7383, 
February 19, 2010) to address increased mortalities of harbor porpoises 
in New England and Mid-Atlantic commercial gillnet fisheries due to 
non-compliance with the Plan requirements and observed interactions 
occurring outside of existing management areas.
    The 2010 amendments, based largely on consensus recommendations 
from the Team, included the expansion of seasonal and temporal 
requirements within the Plan's management areas, the incorporation of 
additional management areas, and the creation of three closure areas 
off the coast of New England that would prohibit the use of gillnet 
gear if certain levels of harbor porpoise bycatch are exceeded 
(consequence closure area strategy).
    For New England, the 2010 amendments to the Plan implemented a 
``consequence'' closure strategy, which would close specific areas to 
gillnet gear during certain times of the year if observed average 
bycatch rates exceed specified target bycatch rates over the course of 
two consecutive management seasons. If observed bycatch rates exceeded 
the target rates, the following three areas would become closed: the 
Coastal Gulf of Maine, Eastern Cape Cod, and Cape Cod South Expansion 
Consequence Closure Areas. This measure was intended to provide an 
incentive for the gillnet industry to comply with pinger requirements 
in areas with historically high harbor porpoise bycatch levels 
resulting from relatively low levels of compliance. The consequence 
closures, if implemented, would further reduce harbor porpoise 
mortalities due to the times and areas chosen for their implementation.
    The Coastal Gulf of Maine Consequence Closure would be triggered if 
the observed average bycatch rates of harbor porpoises in the Mid-
Coast, Stellwagen Bank, and Massachusetts Bay Management Areas 
(combined) exceed the target bycatch rate of 0.031 harbor porpoise 
takes/metric tons of fish landed (takes/mtons) (1 harbor porpoise taken 
per 71,117 pounds of fish landed) after two consecutive management 
seasons. If triggered, the use of gillnet gear would be prohibited 
during the months of October and November, which historically have been 
the months with the highest amount of observed harbor porpoise bycatch. 
When this area is not closed, the seasonal requirements of the three 
overlapping management areas, including the March gillnet closure in 
the Massachusetts Bay Management Area, would remain in effect.
    The Cape Cod South Expansion and Eastern Cape Cod Consequence 
Closures

[[Page 60320]]

would be triggered if the observed average bycatch rate of harbor 
porpoises in the Southern New England Management Area exceeded the 
target bycatch rate of 0.023 takes/mtons (1 harbor porpoise taken per 
95,853 pounds of fish landed) after two consecutive management seasons. 
If triggered, both areas would prohibit the use of gillnet gear 
annually from February 1 through April 30. When the consequence closure 
areas are not closed, the seasonal pinger requirements of the 
overlapping Southern New England Management Area would remain in 
effect.
    Consequence closure area monitoring began with the start of first 
full management season after implementation of the 2010 amendments. The 
first monitoring season occurred from September 15, 2010 through May 
31, 2011, and the second occurred from September 15, 2011 through May 
31, 2012.
    The two-year average observed harbor porpoise bycatch rate for the 
areas associated with the Coastal Gulf of Maine Consequence Closure 
Area is 0.057 takes/mtons (Orphanides, 2012). This is above the target 
bycatch rate (0.031 takes/mtons), triggering the implementation of the 
Coastal Gulf of Maine Closure Area (Figure 1).
[GRAPHIC] [TIFF OMITTED] TR03OC12.040

    The two-year average observed harbor porpoise bycatch rate in the 
Southern New England Management Area is 0.020 takes/mtons (Orphanides, 
2012), indicating that the two-year average does not exceed the target 
bycatch rate (0.023 takes/mtons).

Temporary Shift of the Coastal Gulf of Maine Closure Area Effective 
Date

    In April 2012, NMFS sent letters to gillnet fishermen notifying 
them that NMFS planned to implement the Coastal Gulf of Maine Closure 
Area beginning October 1, 2012. Following this notification, in August 
2012, NMFS received a letter from a fishing industry representative 
requesting that the agency review harbor porpoise bycatch and fishing 
effort information in the coastal Gulf of Maine area after the 2010 
implementation of the amendments to the Plan, and New England 
Multispecies Fishery Management Plan Amendment 16, which implemented 
sector management and greatly modified the way New England groundfish 
fishermen could fish. The letter specifically requested that the timing 
of the closure be shifted from October and November to mid-February 
through March, and that the area be modified to be slightly smaller. 
This request highlighted a conservation benefit to harbor porpoises 
that would occur by shifting the timing, as well as an economic benefit 
for the fishing industry by allowing them to fish in the area during 
October and November. In considering this request, NMFS examined 
available harbor porpoise bycatch and fishing information from 2010 
through 2012. Within the boundaries of the Coastal Gulf of Maine 
Closure Area, harbor porpoise bycatch data indicated that a higher 
number of observed takes occurred during the spring, particularly in 
February and March, than in the fall (October and November), equating 
to a higher estimated total bycatch in the spring. Additionally, the 
bycatch rate during the spring was higher than in the fall.
    Since the implementation of groundfish sectors in May 2010, it is 
possible that fishing effort distribution has shifted, thus affecting 
the distribution and timing of harbor porpoise bycatch. Alternatively, 
this change may reflect a shift in harbor porpoise distribution. 
However, this information has not yet been fully analyzed.

[[Page 60321]]

    According to 50 CFR 229.33(f)(2), the Assistant Administrator for 
Fisheries may revise the requirements of the Plan through notification 
published in the Federal Register if NMFS determines that the 
boundaries or timing of a closed area is inappropriate. After 
consideration of this recent information, NMFS will temporarily shift 
the implementation of year 1 of the Coastal Gulf of Maine Closure Area 
from October 1, 2012 through November 30, 2012, to February 1, 2013 
through March 31, 2013. This temporary shift will be for year 1 only, 
and will include the entire Coastal Gulf of Maine Closure Area as 
identified in the regulations for the full two-month time period. This 
temporary shift of the closure will provide greater conservation 
benefits to harbor porpoises. During October, the Team will convene to 
consider data generated since the last Team meeting in late 2007. New 
information includes: new harbor porpoise abundance estimates, the most 
recent harbor porpoise bycatch information that indicates that harbor 
porpoise bycatch is exceeding allowable levels under the MMPA, and 
fishing effort and distribution information within the consequence 
closure area boundaries as well as throughout the entire range of the 
Plan. The Team will also assess how the implementation of groundfish 
sectors has affected gillnet effort and distribution and any related 
effects on harbor porpoise bycatch. This information will allow the 
Team to develop a comprehensive management strategy to further reduce 
the bycatch of harbor porpoises to acceptable levels under the MMPA. 
After year 1, the closure area timing will revert to October and 
November, pending the implementation of revised conservation measures 
resulting from the Team's deliberations this fall.
    Despite the shift in the timing of the Coastal Gulf of Maine 
Closure to February and March of 2013, NMFS stresses the importance of 
fully complying with the Plan's pinger requirements (i.e., proper 
number of fully functional pingers present on each net string) to 
reduce harbor porpoise bycatch. Pingers are still required on gillnet 
fishing gear in the Mid-Coast Management Area from September 15 through 
May 31 and the Massachusetts Bay and Stellwagen Bank Management Areas 
from November 1 through May 31. Additionally, the entire Massachusetts 
Bay Management Area is closed during March.

References

    Orphanides C.D. 2012. New England harbor porpoise bycatch rates 
during 2010-2012 associated with Consequence Closure Areas. US Dept. of 
Commerce, Northeast Fisheries Science Center Reference Doc 12-19; 15 
pp.

    Dated: September 27, 2012.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, performing the 
functions and duties of the, Assistant Administrator for Fisheries, 
National Marine Fisheries Service.
[FR Doc. 2012-24410 Filed 9-28-12; 4:15 pm]
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