[Federal Register Volume 78, Number 165 (Monday, August 26, 2013)]
[Proposed Rules]
[Pages 52753-52757]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-20759]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 229

[Docket No. 130703586-3586-01]
RIN 0648-BD43


Taking of Marine Mammals Incidental to Commercial Fishing 
Operations; Harbor Porpoise Take Reduction Plan Regulations

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS hereby proposes to amend the regulations implementing the 
Harbor Porpoise Take Reduction Plan (Plan). This proposed rule would 
revise the Plan by eliminating the consequence closure strategy enacted 
in 2010 based on deliberations by the Harbor Porpoise Take Reduction 
Team. This action is necessary to prevent the improper triggering of 
consequence closure areas based on target harbor porpoise bycatch rates 
that no longer accurately reflect actual bycatch in New England sink 
gillnets due to fishery-wide changes in fishing practices.

DATES: Submit comments on or before September 10, 2013.

ADDRESSES: You may submit comments on this document, identified by RIN 
0648-BD43, by any of the following methods:
     Electronic Submission: Submit all electronic public 
comments via the Federal e-Rulemaking Portal at www.regulations.gov.
     Mail: Submit written comments to Mary Colligan, Assistant 
Regional Administrator for Protected Resources, NMFS Northeast Region, 
55 Great Republic Dr., Gloucester, MA 01930, Attn: Harbor Porpoise 
Proposed Rule.
     Fax: 978-281-9394 Attn: Harbor Porpoise Proposed Rule
    Instructions: Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered by NMFS. All comments received are a part of the 
public record and will generally be posted for public viewing on 
www.regulations.gov without change. All personal identifying 
information (e.g., name, address, etc.), confidential business 
information, or otherwise sensitive information submitted voluntarily 
by the sender will be publicly accessible. NMFS will accept anonymous 
comments (enter ``N/A'' in the required fields if you wish to remain 
anonymous). Attachments to electronic comments will be accepted in 
Microsoft Word, Excel, or Adobe PDF file formats only.

FOR FURTHER INFORMATION CONTACT: Kate Swails, NMFS, Northeast Region, 
978-282-8482, [email protected]; Kristy Long, NMFS Office of 
Protected Resources, 301-427-8440, [email protected].

SUPPLEMENTARY INFORMATION: 

Electronic Access

    Several of the background documents for the Plan and the take 
reduction planning process can be downloaded from the Plan Web site at 
http://www.nero.noaa.gov/hptrp/. Copies of the draft Environmental 
Assessment for this action can be found on the Plan's Web site. The 
complete text of the regulations implementing the Plan can be found 
either in the Code of Federal Regulations (CFR) at 50 CFR 229.33 or 
downloaded from the Web site, along with a guide to the regulations.

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 a consequence closure 
strategy in which three closure areas off the coast of New England 
would prohibit the use of gillnet gear if target rates of harbor 
porpoise bycatch were exceeded.
    The Plan was projected to reduce harbor porpoise bycatch below the 
potential biological removal (PBR) level without the implementation of 
the consequence closures. Consequence closures were intended only as a 
backstop measure to ensure compliance with pinger requirements. The 
intent of implementing the consequence closure

[[Page 52754]]

strategy was to provide an incentive for the gillnet fishing industry 
to comply with pinger requirements in areas with historically high 
harbor porpoise bycatch levels resulting from relatively low levels of 
compliance. It was anticipated that the consequence closures would 
further reduce harbor porpoise mortalities by virtue of the times and 
areas chosen for their implementation in areas with poor pinger 
compliance.

Consequence Closure Strategy

    The consequence closure strategy closes specific areas to gillnet 
gear during certain times of the year if observed average bycatch rates 
exceed specified target bycatch rates over two consecutive management 
seasons. Once triggered, Plan regulations state that the consequence 
closures will remain in place until the Plan achieves the Marine Mammal 
Protection Act's zero mortality rate goal (ZMRG) for harbor porpoises 
or until the Team recommends modifications to the Plan.
    Three areas of historically high harbor porpoise bycatch were 
chosen by NMFS and the Team to close if observed bycatch rates exceeded 
the target rates: The Coastal Gulf of Maine, Eastern Cape Cod, and Cape 
Cod South Expansion Consequence Closure Areas. NMFS and the Team 
established the target bycatch rates for these three Plan management 
areas by examining the bycatch rates (number of observed harbor 
porpoises taken per observed amount of landings) that were recorded 
from observed gillnet hauls from 1999-2007 that had the correct number 
of pingers on their net.
    The Coastal Gulf of Maine Closure Area 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) (equal to 1 harbor porpoise taken per 
71,117 pounds of fish landed) after two consecutive management seasons. 
This area would prohibit the use of gillnet gear 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 would remain in effect, including the March gillnet 
closure in the Massachusetts Bay Management Area.
    The Cape Cod South Expansion and Eastern Cape Cod Closure Areas 
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 (equal to 1 harbor porpoise 
taken per 95,853 pounds of fish landed) after two consecutive 
management seasons. 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

    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. During this time, the two-year average observed harbor 
porpoise bycatch rate for the areas associated with the Coastal Gulf of 
Maine Closure Area exceeded the target bycatch rate, triggering the 
implementation of the Coastal Gulf of Maine Closure Area (Figure 1). 
During management seasons two and three (September 15, 2011, through 
May 31, 2012, and September 15, 2012, through May 31, 2013, 
respectively), the two-year average observed harbor porpoise bycatch 
rate for the area associated with the Cape Cod South Expansion and 
Eastern Cape Cod Closure Areas exceeded the target bycatch rate, 
triggering the implementation of these two closures to start on 
February 1, 2014.

[[Page 52755]]

[GRAPHIC] [TIFF OMITTED] TP26AU13.000

Review of the Appropriateness of the Consequence Closure Strategy

    In April 2012, NMFS sent letters to gillnet fishermen notifying 
them of the implementation of the Coastal Gulf of Maine Closure Area 
beginning October 1, 2012. Following that 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. This request suggested that a conservation benefit to 
harbor porpoises would occur by shifting the timing, as would an 
economic benefit to 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 for that period 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. As a result, NMFS published a notice in the Federal Register on 
October 3, 2012 (77 FR 60319), that shifted the effective period of the 
Coastal Gulf of Maine Closure Area from October 1 through November 30, 
2012, to February 1 through March 31, 2013.

Identifying a Need for Modifications

    As noted above, the target bycatch rates are based on the number of 
observed harbor porpoises caught per metric tons of fish landed between 
1999 and 2007 within the areas subject to a consequence closure. Since 
the advent of sectors, the overall effort generally remained the same 
and the number of harbor porpoise caught actually decreased and is 
below PBR (Table 1). However, because fish landings also decreased, the 
observed bycatch rates increased above the closure area target bycatch 
rates resulting in the triggering

[[Page 52756]]

of the closures. As stated previously, the bycatch rate trigger was 
intended to function such that the triggering of it meant that the 
overall bycatch of harbor porpoise was above PBR. Given the overall 
reductions in fish landings, however, this calculation no longer holds 
true.
    Preliminary data indicate that the annual 2010-2012 harbor porpoise 
bycatch estimates are below PBR and that the 5-year averages from 2011-
2012 are also below PBR.

                Table 1--Recent Harbor Porpoise Population Abundance, PBR, and Bycatch Estimates
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Year.................................  2009 \1\.........  2010 \2\.........  2011 \3\.........  2012 \3\
Population Abundance (coefficient of   89,054...........  79,883...........  79,883...........  79,883
 variance).                            (CV = 0.47)......  (CV = 0.32)......  (CV = 0.32)......  (CV = 0.32)
Potential Biological Removal.........  701..............  706..............  706..............  706
Annual U.S. Gillnet Bycatch..........  792..............  644..............  447..............  249
5-Year Average U.S. Gillnet Bycatch..  877..............  786..............  671..............  630
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\1\ Waring et al. 2012.
\2\ Waring et al. 2013.
\3\ Presented as part of meeting materials during the May 2013 Team meeting.

    NMFS convened the Team for meetings to discuss potential amendments 
to the Plan in November 2012, February 2013, April 2013 (workgroup), 
May 2013, and June 2013. During those meetings the Team discussed the 
appropriateness of the consequence closure strategy and discussed 
potential replacement management measures.
    At the May 2013 meeting, the Team agreed that the consequence area 
target bycatch rates no longer accurately reflect compliant bycatch 
rates in New England. As described above, although the target bycatch 
rates for the consequence closure areas have been exceeded, the number 
of coastwide harbor porpoises caught has declined below the stock's PBR 
level and harbor porpoise stock abundance is stable. At the conclusion 
of the May 2013 meeting, the Team did not agree on whether a 
replacement was needed for the consequence strategy or what that 
replacement might be. However, a majority of the Team recommended 
eliminating the current consequence closure strategy from the Plan and 
continuing Team discussions on what other actions should be taken in 
lieu of the consequence closure to ensure compliance with the pinger 
requirements. The Team also recommended that NMFS modify Sec.  
229.32(f), Other Special Measures, of the Plan to require a 
consultation with the Team before action is taken to amend the Plan 
using this provision. Any input received by Team members would be 
considered before exercising the Other Special Measures provision of 
the Plan. These recommendations formed the basis of this proposed rule.
    At its June 2013 meeting, the Team continued discussions on what 
other actions should be taken to ensure compliance with pinger 
requirements. In particular, the Team discussed increasing enforcement 
efforts to ensure compliance with pinger requirements in New England. 
Based on the Team's recommendation, as a mechanism for increasing 
compliance with pinger requirements in New England, NMFS will examine 
data collected by fisheries observers regarding pingers on observed 
hauls, and will provide that data to NOAA's Office of Law 
Enforcement(OLE). To facilitate enforcement efforts, that data will 
include the time and area of fishing activity of observed gillnet 
vessels along with other relevant information, including vessel 
homeport, registration number etc. NMFS will work with OLE to evaluate 
any potential enforcement efforts, which may include at-sea operations 
in collaboration with state joint enforcement agreement partners and 
the U.S. Coast Guard as well as dockside activities. If as a result of 
these increased monitoring and enforcement efforts NMFS determines that 
bycatch is exceeding the PBR level, the Assistant Administrator (after 
consultation with the Team) may take action to address the situation.
    Moving forward, NMFS will continue working with the Team to 
consider what additional management measures may be necessary to ensure 
compliance with the pinger requirements. Thus far, NMFS and the Team 
have formed Monitoring and Enforcement Workgroups to facilitate these 
discussions.

Classification

    The Office of Management and Budget (OMB) has determined that this 
action is not significant for the purposes of Executive Order 12866.
    All of the entities (fishing vessels) affected by this action are 
considered small entities under the SBA size standards for small 
fishing businesses. The fisheries affected by this proposed rule are 
the Northeast sink gillnet and Mid-Atlantic gillnet fisheries. The 
population of vessels that are affected by this proposed action 
includes commercial gillnet vessels fishing in state and federal waters 
from Maine to New York.
    The Chief Counsel for Regulation of the Department of Commerce has 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that this proposed rule, if adopted, would not have a 
significant economic impact on a substantial number of small entities. 
Economic impacts for this action were evaluated as part of the 2009 
Final Environmental Assessment (EA) that supported the most recent Plan 
amendment published as a final rule on February 19, 2010 (75 FR 7383). 
Although changes to the fishery have occurred since the final rule, 
this analysis is used to illustrate the difference in economic impacts 
between the preferred action and the status quo. Although overall 
commercial landings have changed since 2009, the number of vessels and 
level of overall fishing effort have remained relatively constant. 
Therefore, NMFS believes that these data provide a basis for concluding 
that the proposed action, removing the consequence closures, will not 
have a significant impact on a substantial number of small entities.
    The 2009 EA estimated economic impacts of the preferred alternative 
(which was adopted in the final rule) before and after triggering the 
three consequence closure areas. The EA estimated that triggering the 
three closures (now the status quo) would impact 29.7% (290 vessels) of 
the total gillnet fleet. Revenues for the affected vessels were also 
estimated to be reduced by 2-28% ($2,600-$26,400) and 1-25% ($1,500-
$15,300) for small (<40ft) and large (>40ft) vessels, respectively. By 
removing the regulations implementing these consequence closure areas 
from the Plan, the proposed action would

[[Page 52757]]

prevent this loss of revenue from occurring. As a result, an initial 
regulatory flexibility analysis is not required and has not been 
prepared.

References

Waring GT, Josephson E, Maze-Foley K, Rosel, PE, editors. 2012. U.S. 
Atlantic and Gulf of Mexico Marine Mammal Stock Assessments--2011. 
NOAA Tech Memo NMFS NE 221; 319 p.
Waring GT, Josephson E, Maze-Foley K, Rosel, PE, editors. 2013. U.S. 
Atlantic and Gulf of Mexico Marine Mammal Stock Assessments--2012. 
NOAA Tech Memo NMFS NE 223; 419 p.

List of Subjects in 50 CFR Part 229

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

    Dated: August 21, 2013.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries, performing the functions and 
duties of the Deputy Assistant Administrator for Regulatory Programs, 
National Marine Fisheries Service.
    For the reasons stated in the preamble, 50 CFR part 229 is proposed 
to be amended as follows:

PART 229--AUTHORIZATION FOR COMMERCIAL FISHERIES UNDER THE MARINE 
MAMMAL PROTECTION ACT OF 1972

0
1. The authority citation for 50 CFR part 229 continues to read as 
follows:

    Authority: 16 U.S.C. 1361 et seq.

0
2. In Sec.  229.33, paragraphs (a)(2)(iii), (a)(3)(iii), (a)(4)(iii), 
(a)(5)(iii), (a)(6)(iii), and (d) are removed, and paragraph (f) is 
revised to read as follows:


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

* * * * *
    (f) Other special measures. The Assistant Administrator may, after 
consultation with the Take Reduction Team, revise the requirements of 
this section through notification published in the Federal Register if:
    (1) NMFS determines that pinger operating effectiveness in the 
commercial fishery is inadequate to reduce bycatch below the stock's 
PBR level.
    (2) NMFS determines that the boundary or timing of a closed area is 
inappropriate, or that gear modifications (including pingers) are not 
reducing bycatch to below the PBR level.

[FR Doc. 2013-20759 Filed 8-21-13; 4:15 pm]
BILLING CODE 3510-22-P