Taking of Marine Mammals Incidental to Commercial Fishing Operations; Harbor Porpoise Take Reduction Plan Regulations, 36058-36075 [E9-17190]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 74, Number 138 (Tuesday, July 21, 2009)]
[Proposed Rules]
[Pages 36058-36075]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-17190]



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Part V





Department of Commerce





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National Oceanic and Atmospheric Administration



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50 CFR Part 229



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

Federal Register / Vol. 74 , No. 138 / Tuesday, July 21, 2009 / 
Proposed Rules

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 229

[Docket No. 080721862-8864-01]
RIN 0648-AW51


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: The National Marine Fisheries Service (NMFS) proposes to amend 
the regulations implementing the Harbor Porpoise Take Reduction Plan 
(HPTRP) to address the increased incidental mortality and serious 
injury of the Gulf of Maine/Bay of Fundy stock of harbor porpoises 
(Phocoena phocoena) in gillnet fisheries throughout the stock's U.S. 
range.

DATES: Comments on the proposed rule must be received by 5 p.m. EST on 
August 20, 2009.

ADDRESSES: Comments may be submitted on this proposed rule, identified 
by RIN 0648-AW51, by any one of the following methods:
    (1) Electronic Submissions: Submit all electronic public comments 
via the Federal eRulemaking Portal: https://www.regulations.gov.
    (2) Mail: Mary Colligan, Assistant Regional Administrator for 
Protected Resources, NMFS, Northeast Region, Protected Resources 
Division, 55 Great Republic Drive, Suite 04-400, Gloucester, MA 01930, 
ATTN: HPTRP Proposed Rule.
    (3) Facsimile (fax) to: 978-281-9394, ATTN: HPTRP Proposed Rule.
    Instructions: All comments received are a part of the public record 
and will generally be posted to https://www.regulations.gov without 
change. All personal identifying information (for example, name, 
address, etc.) voluntarily submitted by the commenter may be publicly 
accessible. Do not submit confidential business information or 
otherwise sensitive or protected information.
    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, WordPerfect, or 
Adobe PDF file formats only.
    Copies of the draft HPTRP Environmental Assessment (EA) and 
Regulatory Impact Review/Initial Regulatory Flexibility Analysis (RIR/
IRFA) prepared for this proposed rule may be obtained from the HPTRP 
Web site (https://www.nero.noaa.gov/hptrp) or by writing to Amanda 
Johnson, NMFS, Northeast Region, Protected Resources Division, 55 Great 
Republic Drive, Suite 04-400, Gloucester, MA 01930.

FOR FURTHER INFORMATION CONTACT: Amanda Johnson, NMFS, Northeast 
Region, 978-282-8463, amanda.johnson@noaa.gov; or Melissa Andersen, 
NMFS, Office of Protected Resources, 301-713-2322, 
melissa.andersen@noaa.gov.

SUPPLEMENTARY INFORMATION:

Background

    The 1994 amendments to the Marine Mammal Protection Act (MMPA) 
established Section 118, which includes provisions for addressing 
commercial fishery interactions with marine mammal stocks. The HPTRP 
was developed pursuant to Section 118(f) of the MMPA to reduce the 
level of serious injury and mortality of the Gulf of Maine/Bay of Fundy 
(GOM/BOF) stock of harbor porpoise interacting with Category I and II 
fisheries (i.e., those with frequent or occasional incidental serious 
injury or mortality of marine mammals). Under Section 118, take 
reduction plans (TRPs) are required for all strategic marine mammal 
stocks that are incidentally seriously injured or killed in Category I 
or II commercial fisheries. A strategic stock is a stock: (1) For which 
the level of direct human-caused mortality exceeds the stock's 
potential biological removal (PBR) level, (2) that is declining and is 
likely to be listed under the Endangered Species Act of 1973 (ESA) in 
the foreseeable future, or (3) that is listed as a threatened or 
endangered species under the ESA, or is designated as depleted under 
the MMPA. PBR is the maximum number of animals that may be removed from 
a marine mammal stock annually, not including natural mortalities, 
while allowing that stock to reach or maintain its optimum sustainable 
population. Because the current average annual human-related mortality 
and serious injury of harbor porpoise incidental to Category I and II 
commercial gillnet fisheries exceeds PBR, the GOM/BOF stock is 
considered strategic under the MMPA (Waring et al., 2007a).
    At the time the 1994 amendments to the MMPA were enacted, the GOM/
BOF harbor porpoise stock was considered strategic due to interactions 
with the Northeast sink gillnet fishery and the Mid-Atlantic gillnet 
fishery. As such, NMFS was required by the MMPA to take action by 
forming a take reduction team to reduce the serious injury and 
mortality of harbor porpoises in gillnet gear. The MMPA directs take 
reduction teams to submit recommendations to NMFS to immediately reduce 
bycatch to below PBR within six months and to achieve the long-term 
goal of reducing bycatch to insignificant levels approaching a zero 
mortality and serious injury rate. As stated in Section 118(f)(6)(D) of 
the MMPA, take reduction teams are not subject to the Federal Advisory 
Committee Act and are open to the public.
    NMFS published a notice in the Federal Register on February 12, 
1996 (61 FR 5384), establishing the Gulf of Maine Harbor Porpoise Take 
Reduction Team (GOMTRT) and announcing the first GOMTRT meeting. The 
GOMTRT included representatives of the Northeast sink gillnet fishery, 
state fishery management agencies, the Northeast Fishery Management 
Council (NEFMC), the Atlantic States Marine Fisheries Commission 
(ASMFC), environmental organizations, academic and scientific 
organizations, and NMFS. The GOMTRT met five times between February and 
July 1996 before producing a consensus draft TRP that was submitted to 
NMFS on August 8, 1996. Additionally, the GOMTRT convened with the 
understanding that a separate take reduction team would be formed to 
address harbor porpoise bycatch in the Mid-Atlantic region.
    In February 1997, NMFS established the Mid-Atlantic Harbor Porpoise 
Take Reduction Team (MATRT) to address the incidental serious injury 
and mortality of harbor porpoises in Mid-Atlantic gillnet fisheries 
from New York through North Carolina (62 FR 8428, February 25, 1997). 
The MATRT included representatives of the Mid-Atlantic coastal gillnet 
fisheries, state fishery management agencies, the Mid-Atlantic Fishery 
Management Council (MAFMC), the NEFMC, the ASMFC, environmental 
organizations, academic and scientific organizations, and NMFS. The 
MATRT submitted a report to NMFS on August 25, 1997, which included 
both consensus and non-consensus recommendations.
    On September 11, 1998, NMFS published a proposed rule (63 FR 48670) 
to implement the HPTRP, which included both GOMTRT and MATRT 
recommendations. A final rule implementing the HPTRP to reduce serious 
injury and mortality of harbor porpoise in both the Gulf of Maine and 
Mid-Atlantic was published on

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December 2, 1998 (63 FR 66464). Shortly following, a correction notice 
was published to remedy incorrect management area coordinates that were 
published in the final rule (63 FR 71041, December 23, 1998). On 
January 11, 2001, NMFS published a final rule (66 FR 2336) amending the 
HPTRP by exempting Delaware Bay from HPTRP regulations landward of the 
72 COLREGS demarcation line.
    The current HPTRP regulations are separated into two components--
Gulf of Maine (GOM) and Mid-Atlantic. Among other measures, the GOM 
component regulates sink gillnet gear or gillnet gear capable of 
catching multispecies through time and area regulations from Maine to 
Rhode Island during the months of August through May. In four of the 
six GOM management areas, measures include seasonal gillnet closures 
during the months of the year when harbor porpoises are most 
concentrated in these areas. During several other times of the year, 
the HPTRP management areas require the use of acoustic deterrent 
devices (pingers) on sink gillnet gear.
    The Mid-Atlantic component of the HPTRP regulates gillnet fishing 
in three management areas through time and area regulations from New 
York through North Carolina from January through April. In lieu of 
pinger requirements, the Mid-Atlantic component of the HPTRP 
established large and small mesh gear specification requirements in 
which fishermen set gear that is less likely to result in harbor 
porpoise entanglement. Large mesh gillnets include gillnets with a mesh 
size of seven to 18 inches (18-46 cm) and small mesh gillnets include 
gillnets with a mesh size of greater than five to less than seven 
inches (>13-<18 cm). Gear specification requirements for Mid-Atlantic 
gillnets include measures specifying a net limit per net string, twine 
size, net size, number of nets per vessel, and tie-down provisions. The 
three management areas of the Mid-Atlantic component of the HPTRP also 
include seasonal gillnet closures to coincide with high abundances of 
harbor porpoises.
    Along with implementation of the HPTRP, regulations implementing 
restrictions developed under various Fishery Management Plans (FMP) 
have closed areas to gillnetting and reduced or constrained effort in 
groundfish, monkfish, and dogfish gillnet fisheries.

Need for Additional Action

    After implementation of the HPTRP in late 1998, the annual average 
harbor porpoise bycatch decreased from a high of 1,500 animals per year 
prior to implementation of the HPTRP to a low of 310 animals per year 
(Waring et al., 2004). This was below the stock's PBR level, which 
increased from 483 to 747 animals as reported in the 2001 Stock 
Assessment Report (Waring et al., 2001).
    Up to the 2006 Stock Assessment Report, harbor porpoise serious 
injury and mortality levels remained below PBR, with a mean annual 
mortality of 515 animals per year between 2000 and 2004 (Waring et al., 
2007b). Although the HPTRP regulations achieved the immediate goal of 
reducing harbor porpoise bycatch to levels below PBR, these regulations 
did not achieve the long-term goal of reducing bycatch to insignificant 
levels approaching a zero mortality and serious injury rate (referred 
to as the zero mortality rate goal or ZMRG), as required under the 
MMPA. NMFS defined this insignificance threshold as ten percent of a 
stock's PBR (50 CFR 229.2). Instead, the yearly observed takes and 
estimated mortality rates have shown an increasing trend rather than a 
decreasing trend to bycatch levels approaching the insignificance 
threshold.
    The most recent estimates indicate that, when calculating the 
average estimated mortality for the period between 2001 and 2005, 
bycatch exceeded PBR. The 2007 Stock Assessment Report indicates that 
the current annual estimated harbor porpoise incidental bycatch of 652 
animals per year exceeds the current PBR of 610 animals (Waring et al., 
2007a). Of the 652 takes, 475 are attributed to the Northeast sink 
gillnet fishery and 177 to the Mid-Atlantic gillnet fishery.
    After preliminary discussions, NMFS originally believed the recent 
increase in harbor porpoise bycatch was the result of a lack of 
compliance with the HPTRP requirements. In New England, compliance 
rates dropped precipitously between 2002 and 2003 (as indicated by the 
low percentage of observed hauls using the correct number of pingers 
per string when pingers were required), when fewer than 10 percent of 
the observed hauls were deployed with the proper number of pingers 
(Palka et al., 2008). However, after reviewing more recent observer 
information depicting the locations of gillnet hauls in which harbor 
porpoise takes were recorded, NMFS concluded that the increase in 
harbor porpoise takes was a two-pronged problem. It not only involved 
non-compliance with the current HPTRP requirements, but also involved 
observed harbor porpoise takes occurring outside of existing HPTRP 
management areas. These data prompted NMFS to initiate a targeted HPTRP 
outreach effort in the fall of 2006. This effort included development 
of laminated outreach cards summarizing and graphically depicting the 
HPTRP management areas and requirements for New England and the Mid-
Atlantic. In October 2006, the outreach cards and a laminated pinger 
training authorization were mailed to over 300 fishermen who had 
previously received pinger training. The pinger training authorization, 
when kept on board the vessel, allows gillnet fishing with pingers 
inside the HPTRP management areas and illustrates proper pinger 
placement.
    A large component of the outreach effort involved commercial 
gillnet industry outreach meetings. Between October and November 2006, 
NMFS conducted a series of eight voluntary outreach meetings for 
commercial gillnet fishermen throughout New England from Maine through 
Rhode Island. The outreach meetings were intended to provide commercial 
gillnet fishermen with an update on the status of the HPTRP, summarize 
the existing HPTRP requirements for both New England and the Mid-
Atlantic, and provide pinger training where necessary (New England 
only). The outreach meetings supplemented ongoing efforts by NMFS gear 
specialists to train local and Federal enforcement personnel. As such, 
where possible, NMFS and U.S. Coast Guard (USCG) enforcement agents 
also attended the outreach meetings.
    In the fall of 2006, while the outreach meetings were ongoing, an 
increase in compliance was already evident. Through May 2007, 
compliance in 2007 increased to nearly 60 percent.
    In addition to conducting outreach to gillnet fishermen, NMFS 
participated in enforcement cruises with state enforcement personnel in 
Massachusetts and Rhode Island. NMFS held a number of joint meetings 
with local law enforcement personnel, including eight presentations 
made in New England between 2003 and 2008. Beginning in 2005, the US 
Coast Guard (USCG) increased patrols in HPTRP management areas in the 
Gulf of Maine. During March of 2006, the Massachusetts Environmental 
Police joined the USCG in their patrols. Increased patrols continued 
into 2007. In the Mid-Atlantic, NMFS gear specialists held two meetings 
(in 2003 and 2005) with the Atlantic States Marine Fisheries 
Commission's Law Enforcement Committee to review the current 
requirements of the HPTRP.
    Outreach and enforcement efforts alone, however, did not address 
the increased bycatch of harbor porpoises

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occurring outside of the existing HPTRP management areas, where harbor 
porpoise bycatch reduction measures are not in place. Consequently, 
NMFS determined that it was necessary to reconvene the Harbor Porpoise 
Take Reduction Team (HPTRT).

HPTRT Reconvened

    The HPTRP utilizes two harbor porpoise take reduction teams (TRT), 
the Gulf of Maine and Mid-Atlantic TRTs, to address the incidental 
serious injury and mortality of harbor porpoises that result from 
incidental interactions with gillnet fisheries. Specifically, the TRTs 
were charged with developing conservation strategies to reduce the 
incidental serious injury and mortality of harbor porpoises to levels 
below the PBR level and approaching ZMRG. The GOMTRT was charged with 
reducing the serious injury and mortality of harbor porpoises that 
result from incidental interactions with gillnet fisheries from Maine 
to Rhode Island, while the MATRT addressed the serious injury and 
mortality of harbor porpoises that result from incidental interactions 
with gillnet fisheries from New York through North Carolina. The TRTs 
were each last convened in 2000 to discuss harbor porpoise/fisheries 
interactions and potential mitigation measures on a regional level.
    However, to address the recent increase in harbor porpoise bycatch, 
NMFS decided to combine the two TRTs and hold one full HPTRT meeting 
for three reasons. First, since it had been nearly eight years since 
either TRT had met, the updated stock abundance and bycatch information 
presented would be pertinent to both TRTs. Additionally, some members 
had served on both the GOMTRT and MATRT, and would receive redundant 
information if two separate meetings were held. Finally, holding one 
full HPTRT meeting could more efficiently utilize limited resources.
    The HPTRT was reconvened for a meeting in December 2007, and a 
follow-up teleconference meeting was held on January 31, 2008. The 
proposed modifications to the HPTRP, as well as the other alternatives 
considered within the draft Environmental Assessment (EA) that 
accompanies this proposed rule, were developed through these 
consultations with the HPTRT to reduce mortality and serious injury of 
harbor porpoises in the Northeast and Mid-Atlantic gillnet fisheries to 
levels below PBR and approaching ZMRG.

Review of Gulf of Maine Harbor Porpoise Bycatch Information

    In preparation for the HPTRT December 2007 meeting, NMFS analyzed 
observer data from January 1, 1999, through May 31, 2007 from different 
geographic areas to identify patterns in the overall increase in harbor 
porpoise bycatch in the New England and Mid-Atlantic areas and to 
identify any trends in compliance with HPTRP requirements. NMFS also 
identified a number of issues contributing to the observed increase in 
harbor porpoise takes, primarily poor compliance with existing measures 
and increased bycatch outside of existing management areas.
    In the Gulf of Maine region, observed harbor porpoise takes from 
January 1, 1999, through May 31, 2007, occurred during all months of 
the year (although the bycatch rates were very low during the summer 
months) in gear targeting a variety of fish species, including American 
cod, monkfish, pollock, yellowtail flounder, spiny dogfish, unknown 
groundfish, and other flounders (Palka et al., 2008). The highest 
bycatch rates were observed in the Western Gulf of Maine Closure Area 
(a Northeast Multispecies FMP year-round closure) and in the HPTRP Mid-
Coast Management Area (from this point forward, the HPTRP areas will be 
termed ``management areas'' rather than ``closure areas'' unless the 
area exists solely as a closure). A relatively high bycatch rate (0.040 
harbor porpoise takes per metric tons [mtons] landed) was also observed 
in the currently unregulated Stellwagen Bank Management Area (proposed 
as a new management area in this proposed rule). Bycatch rates were 
highest during the following five months, with the rates listed in 
order from highest to lowest: November, February, December, April, and 
March (Palka et al., 2008). More specifically, the highest bycatch 
rates were found in the Massachusetts Bay and Mid-Coast Management 
Areas during March, the Multispecies FMP Western Gulf of Maine Closure 
Area and proposed Stellwagen Bank Management Area during February, and 
the Multispecies FMP Western Gulf of Maine Closure Area and the 
Massachusetts Bay, Mid-Coast, and proposed Stellwagen Bank Management 
Areas during November and December (Palka et al., 2008). Notably, the 
Massachusetts Bay Management Area had a high bycatch rate in the month 
of November (0.052 harbor porpoise takes/mtons), despite its being 
closed to gillnet fishing during October and November through the 
Northeast Multispecies FMP Rolling Closure Area V restrictions (Palka 
et al., 2008). These data indicate non-compliance with the current 
HPTRP requirements, demonstrated through high bycatch rates in the 
Massachusetts Bay and Mid-Coast Management Areas, as well as takes 
occurring outside existing management areas, demonstrated through 
seasonally high bycatch rates in the proposed Stellwagen Bank 
Management Area. It also demonstrates takes occurring within the year-
round Western Gulf of Maine Closure Area under the Multispecies FMP.
    In the Gulf of Maine region from January 1, 1999, through May 31, 
2007, the number of vessels using at least 90 percent of the required 
number of pingers in times and areas when pingers were required varied 
throughout the time period examined. Approximately 75 percent of 
observed vessels used the proper number of pingers in 1999, which was 
the first year that the HPTRP requirements were in effect. This number 
dropped to a low of 10 percent in 2003 and 2004, and rose again to 
about 60 percent between January and May of 2007 (Palka et al., 2008), 
possibly as a result of the NMFS targeted outreach efforts in the fall 
of 2006.
    In the New England waters south of Cape Cod (which refers to waters 
within the Cape Cod South Management Area and waters surrounding this 
management area), all observed takes from January 1, 1999, through May 
31, 2007, occurred during the months of December to May in gear 
targeting monkfish or winter skate (Palka et al., 2008). The data show 
an increasing rate of harbor porpoise bycatch in this area between 1999 
and 2007, with rates in 2007 (only January through May are included) 
being the highest. The overall average bycatch rate in this region 
during this time period was 0.089 harbor porpoise takes/mtons landed. 
Bycatch rates were highest from February through May, and lowest in 
December. The bycatch rate in the area south of the Cape Cod South 
Management Area, which is not currently regulated under the HPTRP, was 
about 50 percent higher than the bycatch rate observed in the Cape Cod 
South Management Area itself, where pingers and closures are seasonally 
required (Palka et al., 2008). Most of the harbor porpoise bycatch 
occurred in the area south of the Cape Cod South Management Area (from 
the southern boundary of this management area at 40[deg]40' N. lat. 
south to 40[deg]00' N. lat., and east to 70[deg]00' W. long.) in which 
pingers are not required.
    Of the 1,665 hauls observed in the Cape Cod South Management Area

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during the period and season that pingers are required from January 1, 
1999, through May 31, 2007, 47 percent were deployed with 90 percent or 
more of the required number of pingers. Forty percent did not have any 
pingers, and the remaining 13 percent had fewer than 90 percent of the 
required number of pingers (Palka et al., 2008).

Review of Mid-Atlantic Harbor Porpoise Bycatch Information

    In the Waters off New Jersey Management Area, the majority of the 
observed takes from January 1, 1999, through May 31, 2007, occurred in 
the Hudson Canyon area in or near the existing Mudhole Management Area, 
and all occurred in monkfish large mesh gillnet gear from January 
through April (Palka et al., 2008). During this time, the bycatch rate 
was 0.233 harbor porpoise takes/mtons landed (Palka et al., 2008). A 
number of factors appeared to correlate well with increased bycatch 
rates. Net strings that were greater than 4,000 ft (1,219 m) in total 
length entangled harbor porpoises three times more often than net 
strings that were less than 4,000 ft (1,219 m) in total length. All of 
the harbor porpoise takes occurred in nets with soak times that were 
greater than 48 hours, even though 37 percent of the observed hauls and 
19 percent of the landings were from nets that had soaked for fewer 
than 48 hours. Nets hauled after more than one week had a bycatch rate 
five times higher than hauls of nets that soaked for one week (Palka et 
al., 2008).
    Exceeding the allowable net string length--3,900 ft (1,189 m) in 
the Mudhole Management Area and 4,800 ft (1,463 m) in the Waters off 
New Jersey Management Area--was the most common occurrence of non-
compliance recorded from the Waters off New Jersey Management Area. 
This was determined by examining the gear characteristics of gillnets 
with observed harbor porpoise takes. Most of the observed hauls of 
large mesh nets were out of compliance with at least one of the gear 
restrictions of the HPTRP, and a majority of harbor porpoise takes 
occurred in gear that was out of compliance with the HPTRP (Palka et 
al., 2008). Observer effort for large mesh gillnet hauls in the Waters 
off New Jersey and Mudhole Management Areas was very low in some years 
(especially from 2000 through 2003). However, it appears that 
compliance rates for the Waters off New Jersey Management Area show a 
pattern similar to that seen in New England. Compliance rates decreased 
rapidly after the first few years of the HPTRP implementation, and 
increased in 2007 after HPTRP outreach occurred.
    In the Southern Mid-Atlantic Waters, the eight harbor porpoise 
incidental takes between January 1, 1999, and May 31, 2007, occurred in 
February, March, or April, the period in which the HPTRP is in effect 
in these waters (Palka et al., 2008). Half of the observed takes 
occurred in the shad fine mesh gillnet fishery (mesh size <=5 inches 
[13 cm]), which has since been closed. The four other observed takes 
occurred in large mesh hauls targeting monkfish or striped bass and all 
four were out of compliance with the HPTRP. Only 21 percent of all the 
large mesh hauls observed in this area were fishing in compliance with 
the current HPTRP regulations and no takes were observed in these 
hauls. Hauls that were out of compliance used twine sizes that were too 
small, did not use tie-downs, and/or occurred during the February 15 
through March 15 large mesh closure period. No takes were observed in 
small mesh nets, although 35 percent of these nets were out of 
compliance, primarily with the HPTRP twine size requirement (Palka et 
al., 2008).

HPTRT Recommendations

    During the December 2007 meeting, the HPTRT considered and 
discussed harbor porpoise bycatch and HPTRP compliance information, as 
well as other information contained within the meeting materials 
provided. NMFS provided the HPTRT with information about harbor 
porpoise takes in the Gulf of Maine, southern New England, and Mid-
Atlantic areas. The bycatch information was based on observed harbor 
porpoise injuries and mortalities that occurred after the HPTRP was 
implemented (January 1, 1999, through May 31, 2007). Details on the 
locations and timing of observed takes were presented to assist HPTRT 
discussions.
    The follow-up January 2008 meeting (via teleconference) focused on 
those items that lacked consensus, required clarification, and would 
benefit from reconfirming the recommended approach. At both meetings, 
the HPTRT took a regional approach to discussing the information 
presented, and based their recommendations on the best available 
information that was presented. For certain topics, NMFS completed 
additional analyses after the meetings, if needed, and presented the 
information for consideration by the HPTRT. The HPTRT's 
recommendations, summarized below, are described in more detail in the 
draft EA that accompanies this proposed rule.

Recommendations for the Southern New England Region

    For the southern New England area, the HPTRT examined the harbor 
porpoise bycatch information; locations of observed takes occurred 
primarily within and south of the Cape Cod South Management Area, as 
well as to the east of Cape Cod, Massachusetts. The HPTRT recommended 
the creation of a new management area (termed the Southern New England 
Management Area, which is proposed as a new management area in this 
proposed rule), which is a large area located to the south and east of 
Cape Cod. The HPTRT recommended adding the area east of Cape Cod to 
this area to address harbor porpoise bycatch within the waters east of 
Cape Cod. The HPTRT discussed the possibility of creating a new 
management area solely for the waters east of Cape Cod. However, the 
bycatch analysis indicated that the harbor porpoise bycatch occurred 
during the same season as the bycatch occurring in the Cape Cod South 
Management Area and the area to its south. Therefore, the HPTRT 
recommended that the waters to the east of Cape Cod be incorporated 
into the Southern New England Management Area. In this area, the HPTRT 
recommended that pingers be required from December through May, which 
coincides with the seasonality of the Cape Cod South Management Area, 
and would be absorbed by this larger area.
    During the December 2007 meeting, the HPTRT discussed possible ways 
of reducing harbor porpoise takes that are occurring within existing 
HPTRP management areas. Rather than recommending an immediate closure 
of current HPTRP management areas due to poor pinger compliance in the 
past, the HPTRT recommended a management strategy that would establish 
``consequence'' closure areas. Consequence closure areas are specified 
areas of high harbor porpoise bycatch that would become seasonally 
closed if the observed average bycatch rates over two consecutive 
management seasons indicate that harbor porpoise exceed a specified 
target bycatch rate. The HPTRT's rationale for recommending consequence 
closure areas is to decrease harbor porpoise bycatch within HPTRP 
management areas by increasing compliance with the HPTRP through 
targeted outreach and education efforts.
    The consequence closure area concept was first recommended by the 
HPTRT for the region south of Cape Cod. Harbor porpoise takes in 
commercial gillnet gear have been observed seasonally within, as well 
as south of, the Cape

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Cod South Management Area, and to the east of Cape Cod. The HPTRT 
recommended creating the Southern New England Management Area and 
requiring pingers there, but also needed to address consequences for 
non-compliance with the HPTRP pinger requirements. After some 
deliberation, the HPTRT recommended creating a consequence area that 
included the existing Cape Cod South Management Area as well as its 
expansion to the south (termed the Cape Cod South Expansion Consequence 
Closure Area, proposed management area in this proposed rule). This 
area is located entirely within the proposed Southern New England 
Management Area.
    The HPTRT discussed the conditions under which the Cape Cod South 
Expansion Consequence Closure Area would become closed. For the 
seasonality of the closure, the HPTRT recommended that, once triggered, 
the area would be closed from February through April, as these three 
months had the highest bycatch rates of the months between December and 
May. From January 1, 1999, through May 31, 2007, the bycatch rate in 
the region south of Cape Cod in February was 0.160 harbor porpoise 
takes/mtons, 0.065 harbor porpoise takes/mtons in March, and 0.145 
harbor porpoise takes/mtons in April (Palka et al., 2008). The HPTRT 
also discussed the trigger mechanism by which the consequence area 
would close and recommended using the bycatch rate. Initially, a target 
bycatch rate of 0.03 harbor porpoise takes/mtons was agreed upon, which 
represents a bycatch rate with 90 percent pinger compliance. After 
further analysis after the meeting, NMFS determined that the bycatch 
rate reflecting 90 percent compliance with the pinger requirements in 
place for the entire Southern New England Management Area would be 
0.023 harbor porpoise takes/mtons.
    During the January 2008 meeting, the HPTRT recommended a second 
consequence closure area east of Cape Cod, termed the Eastern Cape Cod 
Consequence Closure Area. Establishing a consequence closure area here 
would provide an incentive for gillnet fishermen fishing east of Cape 
Cod to comply with the new seasonal pinger requirements established for 
the Southern New England Management Area, as the observed annual 
bycatch rates would be calculated for the entire Southern New England 
Management Area. The target bycatch rate and closure time period, if 
triggered, for the Eastern Cape Cod Consequence Closure Area would be 
the same as the Cape Cod South Expansion Closure Area. Therefore, if 
the target bycatch rate of 0.023 harbor porpoise takes/mtons for the 
Southern New England Management Area is exceeded after two consecutive 
management seasons (December through May), both the Cape Cod South 
Expansion Consequence Closure Area and the Eastern Cape Cod Consequence 
Closure Area would be closed to gillnet fishing each year from February 
through April.

HPTRT Recommendations for the Gulf of Maine Region

    For the Gulf of Maine region, the HPTRT provided NMFS with a suite 
of consensus recommendations for reducing harbor porpoise bycatch and 
increasing compliance with the HPTRP in this region. These 
recommendations included: (1) Closing the currently unregulated 
Stellwagen Bank Management Area during February and require pingers in 
December and January; (2) expanding the pinger requirements in the 
Massachusetts Bay Management Area to include the month of November; (3) 
expanding the northeastern boundary of the Southern New England 
Management Area on the east side of Cape Cod and implementing targeted 
closures if allowable bycatch rates are exceeded; (4) codifying the 
Multispecies FMP year-round Western Gulf of Maine Closure Area under 
the HPTRP; (5) eliminating the Offshore Management Area; and (6) 
expanding efforts by states and others to foster and certify fishermen 
in the use of pingers as a method of reducing harbor porpoise bycatch.
    During the December 2007 meeting, the HPTRT discussed non-
compliance within existing HPTRP management areas in the Gulf of Maine, 
but did not discuss a consequence closure area strategy in this region, 
although implementing an immediate closure in the Mid-Coast Management 
Area was discussed. In the Gulf of Maine region, observed takes of 
harbor porpoises between January 1, 1999 and May 31, 2007, in the Mid-
Coast Management Area (0.052 harbor porpoise takes/mtons), indicate a 
high bycatch rate and poor compliance with the seasonal pinger 
requirements (September 15 through May 31), particularly during the 
fall months and in the western half of the area (Palka et al., 2008). 
Additionally, harbor porpoise takes in gillnet gear have been observed 
seasonally in the northern portion of the Massachusetts Bay Management 
Area and throughout the proposed Stellwagen Bank Management Area.
    Prior to the January 2008 HPTRT meeting, the states of Maine, New 
Hampshire, and Massachusetts submitted a proposal to NMFS for review by 
the HPTRT for a suggested suite of conservation measures for the Gulf 
of Maine. The proposal included the use of a consequence closure area 
similar to the strategy employed for the Southern New England 
Management Area. The proposed area encompasses the entire Stellwagen 
Bank Management Area and portions of the Mid-Coast (west of 70[deg]15' 
W. long.) and Massachusetts Bay (north of 42[deg]15' N. lat.) 
Management Areas. This area, called the Coastal Gulf of Maine 
Consequence Closure Area, is bounded on the west by the coastlines of 
Maine, New Hampshire, and Massachusetts, on the south by 42[deg]15' N. 
lat., and on the east by 70[deg]15' W. long. If triggered, the timing 
of the consequence closure area was suggested as October and November 
annually, as these two months have a high bycatch rate in the Mid-Coast 
Management Area (0.066 and 0.121 harbor porpoise takes/mtons, 
respectively) (Palka et al., 2008). The proposal was discussed during 
the January 2008 meeting and supported by the HPTRT and was recommended 
to NMFS.
    The HPTRT recommended that the target bycatch rate for the Gulf of 
Maine region would be distinct from the bycatch rate that applies to 
the Southern New England Management Area to ensure that the bycatch 
rate applied is consistent with the broad area's past HPTRP compliance. 
It was not possible to calculate the target bycatch rate for the three 
Gulf of Maine management areas prior to the January 2008 meeting, and 
as such a target bycatch rate was not determined at that time. 
Following the meeting, NMFS calculated the target bycatch rate from 
observed compliant hauls, averaging the rates for the three management 
areas, and calculated an average rate of 0.031 harbor porpoise takes/
mtons. Following the January 2008 meeting, those HPTRT members that 
responded to follow-up materials sent by NMFS recommended the use of 
this rate.

HPTRT Recommendations for the Mid-Atlantic Region

    For the Mid-Atlantic region, HPTRT discussions during the December 
2007 meeting centered on the high number of harbor porpoise takes 
occurring within the Waters off New Jersey Management Area. Many 
options were discussed for addressing the increased harbor porpoise 
bycatch within this area, including expanding or shifting the existing 
Mudhole Management Area to encompass the locations of observed harbor 
porpoise takes. As a result of the meeting, the HPTRT recommended

[[Page 36063]]

creating a new management area with an annual closure period for large 
and small mesh gillnet gear from February 1 through March 15.
    Additionally, the HPTRT recommended a change to the gear 
modification requirements such that the tie-down spacing for large mesh 
gillnet gear would be increased from the current 15 ft (4.6 m) to no 
more than 24 ft (7.3 m) apart along the floatline. This change would 
not affect the profile of gillnets in the water column and thus not 
increase harbor porpoise bycatch.
    The HPTRT also recommended a number of non-regulatory measures, 
mostly related to compliance monitoring and education/outreach efforts, 
which is discussed in further detail later in the preamble.

Other HPTRT Consensus Recommendations

    In addition to the discussions focusing on potential new 
conservation measures for New England and Mid-Atlantic gillnet 
fisheries, the HPTRT also emphasized the necessity of a scientific 
research provision within the HPTRP. At the December 2007 meeting, NMFS 
provided a description of a suggested scientific research component 
that could be added to the HPTRP that would allow research within the 
HPTRP management areas provided researchers obtain a scientific 
research permit. The HPTRT recommended including this provision in the 
HPTRP. Additionally, NMFS provided a description of technical 
corrections, clarifications, and other modifications to the HPTRT at 
its December 2007 meeting. By consensus, the HPTRT recommended the 
adoption of these corrections, clarifications, and other modifications 
with little discussion.

Preferred Alternative for Modifications to the HPTRP

    As a result of HPTRT discussions and recommendations provided to 
NMFS after the two HPTRT meetings (December 2007 and January 2008), 
NMFS developed and analyzed five alternatives in the draft EA, 
including a ``No Action'' or status quo alternative, to modify the 
HPTRP.
    All five of the alternatives are described and analyzed in the 
draft EA prepared to accompany this proposed rule (NMFS, 2009). The 
array of alternatives developed for the draft EA include many of the 
concepts and strategies discussed by the HPTRT. Out of the five 
alternatives considered, NMFS has identified one Preferred Alternative 
(Alternative 4, the proposed action) for amending the HPTRP. Although 
one alternative has been identified as the preferred, NMFS is seeking 
comments on all of the alternatives. NMFS proposes to implement the 
preferred alternative.
    The Preferred Alternative described in this proposed rule is 
intended to address the bycatch of the GOM/BOF stock of harbor 
porpoises that is currently above the PBR level in New England and Mid-
Atlantic waters. The Preferred Alternative further pursues the 
conservation goals established by the MMPA to reduce harbor porpoise 
bycatch to below the PBR, approaching insignificant levels.
    The Preferred Alternative includes a suite of measures for both New 
England and the Mid-Atlantic. Many of the proposed modifications 
described in this rule are a result of consensus recommendations made 
by the HPTRT during their two recent meetings. For New England, NMFS 
proposes expanding seasonal and temporal requirements in current HPTRP 
management areas, incorporating additional management areas, and 
establishing ``consequence'' closure areas should a specified target 
bycatch rate be exceeded by the observed average bycatch rate in 
certain management areas over the course of two consecutive management 
seasons. In the Mid-Atlantic, NMFS proposes establishing an additional 
management area and modifying the current tie-down requirement for 
large mesh gillnet gear. Additionally, NMFS is including a provision 
within both the New England and Mid-Atlantic regulations to allow 
research to be conducted within the HPTRP management areas when the 
research is authorized through a NMFS scientific research permit. Also, 
since finalizing the HPTRP in December 1998 (63 FR 66464, December 2, 
1998), NMFS has identified a number of necessary technical corrections 
to the regulations. Finally, in some sections of the current HPTRP 
regulatory text there are ambiguities that need clarification. As such, 
this proposed rule addresses these corrections, clarifications, and 
other necessary modifications.
New England Component
    In the New England component of the HPTRP, NMFS proposes to include 
a suite of conservation measures to augment the existing HPTRP to 
reduce the serious injury and mortality of harbor porpoises to levels 
below PBR (Figure 1). In three existing HPTRP management areas, 
modifications are not warranted because the most recent harbor porpoise 
bycatch data indicate that existing measures are sufficient. Management 
areas for which modifications are not proposed include the Northeast 
Closure, Cashes Ledge Closure, and Offshore Management Areas.
    Some occurrences of increased harbor porpoise bycatch are 
associated with areas that are not currently regulated under the HPTRP. 
However, bycatch is also documented within existing HPTRP management 
areas. In select HPTRP management areas, the proposed action expands 
the areas and seasons during which pingers are required. These areas 
and seasons correspond to the locations and times of recently observed 
harbor porpoise serious injuries and mortalities from interactions with 
commercial gillnet gear. This proposed action would also incorporate 
the concept of ``consequence'' closure areas.
    In southern New England, observed interactions between harbor 
porpoises and gillnet gear have been occurring in a currently 
unregulated area south of the existing Cape Cod South Management Area, 
as well as within this management area. To address this, the proposed 
action would establish the Southern New England Management Area, in 
which pingers would be required seasonally in a large area to the south 
and east of Cape Cod, Massachusetts from December through May (Figure 
1). This area would include all waters in which harbor porpoise bycatch 
was observed (generally from the Cape Cod South Management Area south 
to 40[deg] 00' N. lat.), as well as sufficient surrounding waters to 
prevent potential future shifts in fishing effort to nearby areas where 
takes would likely occur.
    In the Gulf of Maine, harbor porpoise takes have been observed in 
the unregulated area between the HPTRP Massachusetts Bay Management 
Area and the Northeast Multispecies FMP Western Gulf of Maine Closure 
Area (year-round closure) between December and May. As such, this area, 
termed the Stellwagen Bank Management Area, would be created under the 
HPTRP as a pinger management area from November through May (Figure 1). 
The HPTRT's recommendation on the management strategy for this area 
differs from the proposed conservation measures for this area in this 
proposed rule. The proposal drafted by the states of Maine, New 
Hampshire, and Massachusetts suggested requiring pingers from December 
through May in this area, similar to the Massachusetts Bay Management 
Area, without including the March gillnet closure. The states believed 
that new pinger requirements in a currently unregulated area should 
sufficiently reduce harbor porpoise takes, and that an immediate 
gillnet closure was not warranted at this time. Although the proposal 
received

[[Page 36064]]

strong support from the HPTRT, NMFS is proposing in this action a the 
seasonal period for pinger requirements in the Stellwagen Bank 
Management Area that includes November for consistency with the 
proposed addition of November to the pinger requirements in the 
Massachusetts Bay Management Area.
    NMFS proposes to amend the seasonal requirements in the 
Massachusetts Bay Management Area to include the month of November. 
Currently, pingers are required in the Massachusetts Bay Management 
Area from December through May, with the exception of March, during 
which time gillnet fishing is prohibited. The March closure is in place 
due to the high abundance of harbor porpoises in the area during this 
time. Pingers are required during the months before and after the 
closure to further reduce harbor porpoise bycatch and to reduce the 
likelihood of harbor porpoises habituating to the sound of pingers.
    One of the Massachusetts Bay Management Area's latitudinal 
boundaries, located at 42[deg]12' N. lat., leaves a small gap of 
unregulated waters between it and the southern boundary of the 
Northeast Multispecies FMP Western Gulf of Maine Closure Area, which is 
bounded on the south by 42[deg]15' N. lat. This proposed rule would 
modify the Massachusetts Bay Management Area to move this boundary 
north to 42[deg]15' N. lat. to eliminate the small gap of unregulated 
waters (Figure 1).
    In addition to focusing on harbor porpoise bycatch located in 
unregulated waters, this proposed rule would address harbor porpoise 
takes that are occurring within existing HPTRP management areas through 
the HPTRT-recommended consequence closure area concept. Although pinger 
compliance was high after implementation of the HPTRP in 1998 (63 FR 
66464, December 2, 1998), since that time compliance with pinger 
requirements in New England has declined. With increased outreach and 
enforcement efforts beginning in the fall of 2006, observer information 
indicated that compliance began to rise again, as evidenced through a 
calculation of the percentage of observed gillnet hauls that used the 
correct number of pingers per gillnet string in management areas when 
pingers were required.
    In New England, NMFS is proposing three consequence areas that are 
based on the recommendations provided by the HPTRT: Two in southern New 
England and one in the Gulf of Maine (Figure 2). The Cape Cod South 
Expansion and East of Cape Cod Consequence Closure Areas would be 
triggered if the observed average bycatch rate in the Southern New 
England Management Area exceeded the target bycatch rate of 0.023 
harbor porpoise takes/mtons after two consecutive management seasons 
(December through May), and would be closed annually to gillnet fishing 
from February through April. When the consequence closure areas are not 
closed (December, January, and May), the seasonal pinger requirements 
of the Southern New England Management Area would remain in effect. The 
Coastal Gulf of Maine Consequence Closure Area would be triggered if 
the observed average bycatch rates in the Mid-Coast, Stellwagen Bank, 
and Massachusetts Bay Management Areas (combined) exceeded the target 
bycatch rate of 0.031 harbor porpoise takes/mtons after two consecutive 
management seasons (September 15 through May 31 for the Mid-Coast 
Management Area, and November 1 through May 31 for the Stellwagen Bank 
and Massachusetts Bay Management Areas), and would be closed annually 
to gillnet fishing in October and November. When this area is not 
closed, the seasonal requirements of the three management areas would 
remain in effect, including the March gillnet closure in the 
Massachusetts Bay Management Area.
    If any of the consequence closure areas are triggered, they would 
remain in effect until bycatch levels approach a zero mortality and 
serious injury rate or until the HPTRT and NMFS develop and implement 
new conservation measures. If the consequence closure areas are not 
triggered after the first two management seasons have elapsed, NMFS 
will continue to monitor the observed bycatch rates in these management 
areas and adopt a rolling trigger in which the most recent two years of 
bycatch information would be averaged and compared on an annual basis 
to the specified bycatch rates for each management area.
    All impacts of the consequence closure areas have been evaluated in 
the draft EA. If it is necessary to establish the consequence closure 
areas in the future based on the most recent two years of observed 
harbor porpoise bycatch data, NMFS would establish the appropriate 
consequence closure areas via appropriate rulemaking in the Federal 
Register.

Mid-Atlantic Component

    To address the high harbor porpoise bycatch in the Mid-Atlantic 
region, this proposed rule would create an additional management area 
within the Waters off New Jersey Management Area, which would include 
more stringent gear restrictions and a closure period (Figure 3). This 
additional management area is located to the south and east of the 
current Mudhole Management Area and would encompass many of the 
recently observed harbor porpoise takes occurring in that region. The 
proposed management area would be named the Mudhole South Management 
Area, and the current Mudhole Management Area would be renamed the 
Mudhole North Management Area. The more stringent gear modification 
requirements already in effect in the Mudhole North Management Area 
would also be in effect in the Mudhole South Management Area from 
January 1 through January 30 and from March 16 through March 31. Also, 
the large mesh gillnet closure from April 1 through 20 would still 
apply.
    Additionally, this proposed rule would increase the current tie-
down spacing for large mesh gillnet gear from the required 15 ft (4.6 
m) to no more than 24 ft (7.3 m) apart along the floatline. This change 
would not affect the profile of gillnets in the water column and thus 
not increase harbor porpoise bycatch.

Scientific Research

    Currently, the HPTRP regulations make no exemption for scientific 
research on methods for reducing harbor porpoise bycatch in the HPTRP 
management areas when the seasonal area requirements are in effect. 
Since the publication of the HPTRP in 1998 (63 FR 66464, December 2, 
1998), subsequent HPTRT meeting recommendations have urged NMFS to 
promote the advancement of harbor porpoise bycatch reduction research 
in New England and Mid-Atlantic areas. To better facilitate scientific 
research on harbor porpoise bycatch reduction, this proposed rule 
includes a scientific research component to the HPTRP regulations. The 
proposed modification includes a provision that would allow scientific 
research on gear and/or fishing practice modifications for reducing 
harbor porpoise takes to be conducted within the HPTRP management areas 
during the times the seasonal requirements are in effect so long as the 
research is authorized through a scientific research permit granted 
under the MMPA. A scientific research permit would be obtained through 
the existing permit application process administered by NMFS. The 
scientific research permit application would be managed by NMFS in the 
same manner that it currently handles permit applications, which 
includes a regional review and public comment

[[Page 36065]]

period after publication of an announcement in the Federal Register.

Technical Corrections and Clarifications

    Since finalizing the HPTRP in December 1998 (63 FR 66464, December 
2, 1998), a number of technical errors in the HPTRP regulations have 
been identified. Furthermore, in some sections of the regulations there 
are ambiguities that need clarification. This proposed rule addresses 
these necessary corrections, clarifications, and other modifications, 
which would also ensure consistent and correct terminology for both the 
New England and Mid-Atlantic regulations.
    In New England, HPTRP management areas are termed ``closure areas'' 
though some areas are not completely closed to gillnet fishing at any 
point during the year. This proposed rule would rename the HPTRP 
closure areas in both New England and the Mid-Atlantic ``management 
areas,'' except for areas that exist only as a complete closure (e.g., 
the Cashes Ledge Closure Area).
    Currently, the regulatory text for the Mid-Coast Management Area 
requirements does not include an exemption for gillnets equipped with 
pingers as described in each of the other areas requiring pingers. This 
proposed rule would add text to clarify that gillnet fishing is allowed 
within this management area as long as pingers are used. Furthermore, 
this proposed rule would clarify the requirements for ``pinger 
attachment'' by including a statement specifying that pingers must be 
placed every 300 ft (91.4 m) for gillnets that exceed 300 ft (91.4 m) 
in length. Currently the pinger placement requirement only specifies 
that pingers must be placed at each end of the net string and at the 
bridle of each net.
    The current eastern boundary of the Offshore Management Area 
crosses the boundary of the U.S. Exclusive Economic Zone (EEZ). This 
proposed rule would create three additional coordinates for the eastern 
edge of the Offshore Management Area so the boundary line follows along 
the boundary of the EEZ but does not cross it.
    For the HPTRP regulations in the Mid-Atlantic, this proposed rule 
would clarify the number of nets per string allowed within the 
management areas for both large and small mesh gillnet gear. Currently, 
only the allowable net length (300 ft or 91.4 m) and floatline lengths 
are specified. The number of nets per string is implied by dividing the 
floatline length by the allowable net length, but is not clearly 
defined in the regulations. For example, the proposed modifications to 
the Mid-Atlantic regulations would clearly specify the net limit of 13 
large mesh nets when fishing in the Waters off New Jersey Management 
Area. Also, in the final rule implementing the HPTRP (63 FR 66464, 
December 2, 1998), the definition for the Waters off New Jersey 
Management Area is inconsistent with the graphic depiction of the area, 
and is inconsistent with the ``regulated waters'' text. This proposed 
rule would remove the current northern boundary of the Waters off New 
Jersey Management Area, located at 40[deg]40' N. lat. and would extend 
the northern boundary to the southern shoreline of Long Island, NY at 
40[deg]50.1' N. lat. and 72[deg]30' W. long.
    For all HPTRP management areas with coordinates that intersect the 
shoreline, this proposed rule includes shoreline latitude/longitude 
coordinates to more clearly specify the boundaries of HPTRP management 
areas. Additionally, this proposed rule would clarify the geographical 
enclosure of the Offshore and Cashes Ledge Management Areas by 
repeating the first area coordinate as the last coordinate. In the 
Mudhole North Management Area, the current northwestern boundary does 
not intersect with the shoreline of New Jersey as stated in the current 
management area description. This proposed rule would correct the 
geographic boundary of the Mudhole North Management Area by 
incorporating a coordinate that intersects with the New Jersey 
shoreline at 40[deg]28.1' N. lat. and 74[deg]00' W. long.
    The current southern boundary of the Southern Mid-Atlantic 
Management Area is the North Carolina/South Carolina border. It is 
currently defined as 33[deg]51' N. lat., but it does not accurately 
reflect the actual border. This proposed rule would modify the 
coordinate to ensure a more accurate reflection of the North Carolina/
South Carolina border based on 50 CFR 622.2 (Fisheries of the 
Caribbean, Gulf, and South Atlantic--Definitions and Acronyms). The new 
border would be defined as the latitude line corresponding with 
33[deg]51.1' N. lat.
    This proposed rule would amend the HPTRP exempted waters in 
Virginia from Chincoteague to Ship Shoal Inlet to be consistent with 
the exempted waters for this area in the Atlantic Large Whale and the 
Bottlenose Dolphin Take Reduction Plans. Currently, the exempted area 
is landward of a line extending south from Chincoteague to Ship Shoal 
Inlet, and this line crosses the three nautical mile state waters line. 
The exempted waters in Virginia from Chincoteague to Ship Shoal Inlet 
would become the waters landward of the 72 COLREGS demarcation lines 
between these two inlets.
    Finally, NMFS proposes to remove the net tagging requirement for 
large and small mesh gillnet gear in the Mid-Atlantic. A net tagging 
program was not implemented after the final HPTRP was published in late 
1998 (63 FR 66464, December 2, 1998).

Monitoring HPTRP Effectiveness

    NMFS identified a number of issues contributing to the observed 
increase in harbor porpoise takes, primarily poor compliance with 
existing measures and increased bycatch outside of existing management 
areas. To address these issues, NMFS has based this proposed action on 
recommendations provided by the HPTRT. To support the implementation of 
this action, NMFS will continue to work with various partners (e.g., 
USCG, NOAA Office of Law Enforcement, states, NMFS Northeast Fisheries 
Observer Program) to monitor compliance and to enforce the regulatory 
components of the HPTRP. NMFS recognizes that compliance with HPTRP 
requirements is critical to maximizing the effectiveness of the HPTRP. 
With this considered, NMFS is planning to increase HPTRP monitoring to 
correspond with the expansion of pinger requirements in New England. 
The expansion of management areas with pinger requirements will require 
some fishing vessels that have not been subject to the HPTRP pinger 
requirements to purchase pingers in order to continue fishing during 
times and in areas where pingers are required. The total pinger cost 
for materials and labor for vessels fishing in New England can range 
from $5,953 to $13,969 depending on the number of nets being fished. 
More discussion on the impacts of the proposed action can be found in 
the Classification section.
    NMFS has the resources necessary to monitor and ensure compliance 
with the HPTRP. These resources include: observer information for 
calculating bycatch rates, continued enforcement efforts, and 
education/outreach. To assist in achieving this goal, NMFS has 
purchased pinger detector devices to monitor the presence of pingers on 
set gillnet gear during the times when pingers are required under the 
HPTRP. NMFS has coordinated with the states of Maine, Massachusetts, 
and Rhode Island by distributing pinger detectors to state enforcement 
personnel, providing them with the ability to monitor pinger compliance 
under the HPTRP. NMFS will continue to use this technology in 
conjunction with observer information

[[Page 36066]]

to continually monitor the level of pinger compliance in New England.
    In addition, during their recent meetings, the HPTRT reached 
consensus on a number of non-regulatory components that NMFS will 
pursue outside of the rulemaking process. After a final rule has been 
published, NMFS will collaborate with the New England states of Maine, 
New Hampshire, Massachusetts, and Rhode Island to conduct annual 
workshops with gillnet fishermen to further compliance with the HPTRP 
regulations and to provide information on recent compliance and harbor 
porpoise bycatch data. The HPTRT state representatives also agreed to 
work within their state regulations to codify the HPTRP gear 
requirements in their individual state laws. This could potentially 
provide a mechanism for future increased joint enforcement efforts 
between the states and NMFS, and will provide an effective means for 
increasing compliance.
    Additionally, NMFS supports the states' efforts to develop and 
implement an education and enforcement effort to increase HPTRP 
compliance. The HPTRT and NMFS agreed that it is critical to the 
success of these proposed conservation measures for members of the 
commercial gillnet fishing industry to thoroughly comprehend the 
mechanisms of the consequence closure areas should compliance continue 
to remain low in the Gulf of Maine and southern New England. The states 
may also explore the possibility of certifying commercial gillnet 
fishermen and their gear to further increase compliance, although the 
details of this were not considered during the HPTRT meetings. Finally, 
in an effort to monitor the HPTRP to determine if consequence closure 
area implementation is warranted, NMFS will provide the HPTRT members 
with annual compliance and bycatch information in New England based on 
observed harbor porpoise serious injuries and mortalities.
    The HPTRT also reached consensus on a number of non-regulatory 
components targeting the Mid-Atlantic, which include collaborating with 
Mid-Atlantic states to conduct annual workshops with gillnet fishermen 
to attempt to increase compliance with the HPTRP regulations and to 
provide information on recent compliance and harbor porpoise bycatch 
data. Additionally, an analysis of observed harbor porpoise 
interactions with gillnet gear in the Mid-Atlantic indicated that 
increased soak times may lead to an increase in harbor porpoise bycatch 
(Palka et al., 2008). NMFS supports Mid-Atlantic States' efforts to 
develop and implement an education and enforcement effort to increase 
compliance and to stress the need to reduce the soak times of gillnets, 
although this is not a required measure. The Mid-Atlantic States may 
also explore the possibility of certifying commercial gillnet fishermen 
and their gear to further increase compliance, although the details of 
this were not considered during the HPTRT meetings. Finally, in an 
effort to monitor the HPTRP, NMFS will keep the HPTRT members informed 
of annual compliance information in the Mid-Atlantic based on observed 
harbor porpoise serious injuries and mortalities.

Classification

    The Office of Management and Budget (OMB) has determined that this 
action is significant for the purposes of Executive Order 12866.
    If a member of the public requests a scientific research permit for 
conducting research with fishing gear within a HPTRP management area, 
an existing information collection requirement, approved under OMB 
Control No. 0648-0084, would apply. The public reporting burden for 
completing an application for a scientific research permit is estimated 
to average 32 hours per response, including the time for reviewing 
instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
collection of information. Send comments regarding this burden 
estimate, or any other aspect of this data collection, including 
suggestions for reducing the burden, to NMFS (see ADDRESSES) and by e-
mail to David_Rostker@omb.eop.gov, or fax to (202) 395-7285. 
Notwithstanding any other provision of the law, no person is required 
to respond to, nor shall any person be subject to a penalty for failure 
to comply with, a collection of information subject to the requirements 
of the PRA, unless that collection of information displays a currently 
valid OMB Control Number.
    NMFS has prepared an initial regulatory flexibility analysis (IRFA) 
that describes the economic impact this proposed rule, if adopted, 
would have on small entities. A description of the action, why it is 
being considered, and its legal basis are contained in the preamble of 
this proposed rule. This proposed rule does not include any reporting 
or recordkeeping requirements, or compliance requirements other than 
those described in the preamble. No duplicative, overlapping, or 
conflicting Federal rules have been identified. A summary of the 
analysis follows.
    All of the entities (fishing vessels) affected by this action are 
considered small entities under the Small Business Act size standards 
for small fishing businesses. The fisheries affected by this proposed 
rule are the Northeast sink gillnet and Mid-Atlantic gillnet fisheries. 
These fisheries are currently regulated under