Taking of Marine Mammals Incidental to Commercial Fishing Operations; Harbor Porpoise Take Reduction Plan Regulations, 7383-7402 [2010-3273]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 75, Number 33 (Friday, February 19, 2010)]
[Rules and Regulations]
[Pages 7383-7402]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-3273]


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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: Final rule.

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SUMMARY: NMFS issues this final rule 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 (GOM/BOF) stock of harbor porpoises (Phocoena 
phocoena) in gillnet fisheries throughout the stock's U.S. range.

DATES: Effective March 22, 2010.

ADDRESSES: Copies of the final Environmental Assessment (EA) and 
Regulatory Impact Review/Final Regulatory Flexibility Analysis (RIR/
FRFA) for this action, as well as the Harbor Porpoise Take Reduction 
Team (HPTRT) meeting summaries and supporting documents, may be 
obtained from the HPTRP Web site (https://www.nero.noaa.gov/hptrp) or by 
writing to Diane Borggaard, 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 HPTRP was developed pursuant to section 118(f) of the Marine 
Mammal Protection Act (MMPA), 16 U.S.C. 1361-1423h, to reduce the level 
of serious injury and mortality of the GOM/BOF stock of harbor 
porpoises. This final rule implements modifications to the HPTRP to 
address increased mortalities of harbor porpoises in commercial gillnet 
fisheries due to non-compliance with the HPTRP requirements and 
observed interactions occurring outside of existing HPTRP management 
areas. These modifications implement measures that apply to both the 
New England and Mid-Atlantic portions of the HPTRP.
    Recent harbor porpoise bycatch estimates indicate that, when 
calculating the average estimated mortality for the period between 2002 
and 2006, bycatch exceeded the stock's potential biological removal 
level (PBR). The 2008 Stock Assessment Report (SAR) indicates that the 
current annual estimated harbor porpoise incidental bycatch is 866 
animals per year, which exceeds the current PBR of 610 animals (Waring 
et al., 2009). In December 2007, NMFS reconvened the HPTRT to discuss 
the most recent harbor porpoise abundance and bycatch information for 
gillnet fisheries from Maine through North Carolina. The HPTRT used 
this information to develop a suite of recommended modifications to the 
HPTRP that would reduce takes to below the stock's PBR level and to a 
rate approaching a zero mortality and serious injury rate, known as the 
zero mortality rate goal (ZMRG), which is defined as 10 percent of PBR. 
The recommendations included expanding seasonal and temporal 
requirements within the HPTRP management areas, incorporating 
additional management areas, and creating areas that would seasonally 
close to gillnet fisheries if certain levels of harbor porpoise bycatch

[[Page 7384]]

are exceeded (consequence closure area strategy).
    The HPTRT also recommended a number of non-regulatory measures that 
complement NMFS' strategy for monitoring the effectiveness of the 
HPTRP. NMFS will collaborate with its state partners in both the New 
England and Mid-Atlantic regions to conduct annual workshops with 
gillnet fishermen to increase compliance with the HPTRP and to provide 
information on recent compliance and harbor porpoise bycatch data. 
These meetings are especially important for gillnet fishermen in New 
England who fish in those HPTRP management areas that could potentially 
be impacted by the consequence closure strategy. Additionally, 
codifying the HPTRP into state regulations has the potential to 
increase compliance through future joint enforcement efforts between 
NMFS and state agencies.
    NMFS supports efforts undertaken by the states to develop education 
and enforcement efforts to increase HPTRP compliance, and will assist 
in these efforts as needed. NMFS will assist these efforts by providing 
HPTRT members with annual compliance and bycatch information for both 
New England and the Mid-Atlantic, based on observed harbor porpoise 
serious injuries and mortalities. It is crucial that HPTRT members 
disseminate this information to their constituents, especially the 
gillnet industry, because these updates will analyze harbor porpoise 
bycatch rates in comparison to the target bycatch rates specified for 
the consequence closure areas.
    To support the implementation of the regulatory and non-regulatory 
components of this action, NMFS will continue to work with its partners 
to monitor compliance and enforce the regulatory components of the 
HPTRP. In addition to collecting vital fisheries and incidental take 
information, the Northeast Fisheries Observer Program will continue its 
efforts to acquire new pinger detectors that will be sufficient for 
field use. NMFS also will continue its enforcement efforts through 
collaboration with its state enforcement partners, as well as the U.S. 
Coast Guard and NOAA Office of Law Enforcement. Such efforts include 
directed enforcement patrols and detecting functional pingers through 
the use of in-water pinger detection devices.
    NMFS issued a proposed rule (74 FR 63058, July 21, 2009) that 
included a suite of additional HPTRP measures that will reduce harbor 
porpoise mortality due to interaction with commercial gillnet fisheries 
in New England and the Mid-Atlantic to levels below the stock's current 
PBR of 610 animals. This final rule implements the measures, many of 
which were based on consensus recommendations from the HPTRT, contained 
in the proposed rule. This action pursues the conservation goals 
established by the MMPA to reduce harbor porpoise bycatch to below PBR, 
and approaching insignificant levels.
    Detailed background information on the development of this action, 
including a review of regional harbor porpoise bycatch information and 
recommendations provided to NMFS by the HPTRT, was provided in the July 
21, 2009, proposed rule and is not repeated here.

Modifications to the HPTRP

    This action addresses the bycatch of harbor porpoises that is 
currently above the stock's PBR level in New England and Mid-Atlantic 
waters. Many of the measures implemented through this rule are a result 
of consensus recommendations made by the HPTRT during their two recent 
meetings, which occurred in December 2007 and January 2008. For New 
England, NMFS is expanding seasonal and temporal requirements within 
the HPTRP management areas, incorporating additional management areas, 
and establishing ``consequence'' closure areas, which would seasonally 
close specific areas to gillnet fishing, should the specified target 
bycatch rate be exceeded by the observed average bycatch rate over the 
course of two consecutive management seasons. In the Mid-Atlantic, NMFS 
is establishing an additional management area and modifying the current 
tie-down requirement for large mesh gillnet gear. Additionally, NMFS is 
incorporating 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. Finally, NMFS is making regulatory text 
corrections and clarifications.

New England Component

    In the New England component of the HPTRP, NMFS is augmenting the 
existing HPTRP by incorporating two new management areas with seasonal 
pinger requirements: The Stellwagen Bank and Southern New England 
Management Areas. The Stellwagen Bank Management Area will require 
pingers from November through May. The Southern New England Management 
Area will require pingers on gillnets from December through May, while 
retaining the Cape Cod South Closure Area during March. NMFS is 
modifying one of the latitudinal boundaries of the Massachusetts Bay 
Management Area to 42[deg]15' N. lat., to eliminate the small gap of 
unregulated waters between this management area and the southern 
boundary of the Western Gulf of Maine Closure Area under the Northeast 
Multispecies Fishery Management Plan. Additionally, NMFS is extending 
the seasonal pinger requirements in the Massachusetts Bay Management 
Area to include November. Figure 1 depicts the management measures for 
the New England component of the HPTRP implemented by this action.
BILLING CODE 3510-22-P

[[Page 7385]]

[GRAPHIC] [TIFF OMITTED] TR19FE10.000

    This action also incorporates the concept of ``consequence'' 
closure areas to alleviate non-compliance with pinger requirements in 
certain management areas. The Cape Cod South Expansion and East of Cape 
Cod Consequence Closure Areas, and their associated seasonal gillnet 
gear closures, will be triggered if the observed average bycatch rate 
of harbor porpoises in the Southern New England Management Area exceeds 
the target bycatch rate of 0.023 harbor porpoise takes/mtons after two 
consecutive management seasons (December through May). If triggered, 
these two areas will 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 will remain in effect.
    The Coastal Gulf of Maine Consequence Closure Area, and its 
associated seasonal gillnet gear closure, will be triggered if the 
observed average

[[Page 7386]]

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/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). If the target bycatch rate is 
met, this area will be closed annually to gillnet fishing in October 
and November. When this area is not closed, the seasonal requirements 
of the three management areas will remain in effect, including the 
March gillnet closure in the Massachusetts Bay Management Area.
    Figure 2 depicts the management measures for the New England 
component implemented by this action, including the three consequence 
closure areas.

[[Page 7387]]

[GRAPHIC] [TIFF OMITTED] TR19FE10.001

    If any of the consequence closure areas are triggered, they will 
remain in effect until bycatch levels of the GOM/BOF stock of harbor 
porpoises approach ZMRG, 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 2 
years of bycatch information will 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 EA that accompanies this action. If it is necessary to establish 
consequence closure areas in the future, based on the most recent 2 
years of observed harbor

[[Page 7388]]

porpoise bycatch data, NMFS will establish the appropriate consequence 
closure area(s) via notice in the Federal Register.

Technical Corrections--New England Component

    This final rule incorporates all of the technical corrections for 
the New England component of the HPTRP as described in the preamble of 
the proposed rule. These include: (1) Incorporating shoreline latitude/
longitude coordinates to more clearly specify HPTRP management area 
boundaries; (2) renaming ``closure'' areas as ``management'' areas, 
except for areas that exist only as complete closures; (3) clarifying 
the geographical enclosure of the Offshore and Cashes Ledge Management 
Areas by repeating the first area coordinate as the last coordinate; 
(4) correcting the regulatory text for the Mid-Coast Management Area to 
indicate that gillnet fishing is allowed within this area as long as 
pingers are used; (5) 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; and (6) modifying the eastern boundary of the 
Offshore Management Area so that it does not cross the boundary of the 
Exclusive Economic Zone (EEZ).

Mid-Atlantic Component

    In the Mid-Atlantic component of the HPTRP, NMFS is creating the 
Mudhole South Management Area, with seasonal gear restrictions and a 
closure period from February 1 through March 15 (Figure 3).

[[Page 7389]]

[GRAPHIC] [TIFF OMITTED] TR19FE10.002

BILLING CODE 3510-22-C
    Additionally, this action will increase the current tie-down 
spacing for large mesh gillnet gear to no more than 24 ft (7.3 m) apart 
along the floatline.

Technical Corrections--Mid-Atlantic Component

    This final rule incorporates all of the technical corrections for 
the Mid-Atlantic component of the HPTRP as described in the preamble of 
the proposed rule. These include: (1) Incorporating shoreline latitude/
longitude coordinates to more clearly specify HPTRP management area 
boundaries; (2) clarifying the number of nets per string allowed within 
the management areas for both large and small mesh gillnet gear; (3) 
extending the northern boundary of the Waters off New Jersey Management 
Area to the southern shoreline of Long Island, NY, at 40[deg]50.1' N. 
lat. and 72[deg]30' W. long.; (4) correcting 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.; (5) redefining the southern latitudinal boundary 
of the Southern Mid-Atlantic Management Area located at the North 
Carolina/South Carolina border to correspond with 33[deg]51.1' N. lat.; 
(6) amending the description of exempted waters in Virginia from 
Chincoteague to Ship Shoal Inlet to be the waters landward of the 72 
COLREGS demarcation lines between these two inlets; and (7) removing 
the net tagging

[[Page 7390]]

requirement for large and small mesh gillnet gear.

Scientific Research

    This action includes a scientific research component to the HPTRP 
regulations 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, which includes a 
regional review and public comment period after publication of an 
announcement in the Federal Register.

Comments and Responses

    NMFS published the proposed rule amending the HPTRP in the Federal 
Register on July 21, 2009 (74 FR 36058). Upon its publication, NMFS 
issued a press release summarizing the rule; posted the proposed rule 
on the HPTRP Web site; and notified affected fishermen and interested 
parties via several NMFS email distribution outlets. The publication of 
the proposed rule was followed by a 30-day public comment period, which 
ended on August 20, 2009. NMFS received nine comments via facsimile, 
letter, or electronic submission. All comments received were thoroughly 
reviewed by NMFS. The comments addressed several topics, such as 
education and outreach, management area boundaries and requirements, 
pingers, and the consequence closure strategy. The comments received 
are summarized below, followed by NMFS's responses.

General Comments

    Comment 1: The majority of commenters expressed general support for 
the proposed rule.
    Response: NMFS appreciates the comments it has received in support 
of this action, and notes that many of the proposed measures were based 
on consensus recommendations provided by the HPTRT during its December 
2007 and January 2008 meetings.
    Comment 2: One commenter expressed general opposition to the 
proposed rule by stating that bycatch of harbor porpoises in commercial 
gillnet gear needs to be immediately reduced to zero.
    Response: NMFS understands the commenter's concern. However, the 
level of harbor porpoise takes need not be set to zero to ensure that 
the goals of the MMPA for harbor porpoise protection are met. Over the 
past two decades, NMFS has undertaken a variety of efforts to reduce 
the bycatch of harbor porpoises in commercial gillnet fisheries. After 
implementation of the HPTRP in late 1998 (63 FR 66464, December 2, 
1998), bycatch of harbor porpoises was significantly reduced to below 
the stock's PBR level from levels as high as 1,500 animals per year, 
prior to implementation of the HPTRP, to a low of 310 animals per year. 
At that time, the bycatch level for harbor porpoises was below PBR and 
the bycatch trend was approaching ZMRG, which is defined in 50 CFR 
229.2 as 10 percent of PBR.
    However, as detailed in the EA supporting this rule, when data 
began to show that harbor porpoise interactions with gillnet fisheries 
were rising, NMFS immediately took actions to address the issue by 
sending permit holder letters, conducting outreach meetings from Maine 
through New Jersey, and reconvening the HPTRT in December 2007 to 
discuss recent bycatch and abundance information to assist the HPTRT in 
providing recommendations to NMFS on additional measures to reduce 
harbor porpoise takes. As described in the preamble to the proposed 
rule for this action, documented interactions between harbor porpoises 
and gillnet gear were observed both within and outside of existing 
HPTRP management areas. As such, the HPTRT was charged with providing 
recommendations to NMFS for modifying the HPTRP that would address both 
issues. The HPTRT reached consensus on many of the measures that are 
implemented in this final rule. Once implemented, these measures will 
achieve a harbor porpoise take level that is below PBR and approaching 
ZMRG, meeting NMFS' obligations under the MMPA.

Management Areas

    Comment 3: The State of Connecticut's Department of Environmental 
Protection disagreed with the upper northwest boundary of the proposed 
Southern New England Management Area, requesting that the boundary as 
it crosses Long Island Sound be moved eastward to be consistent with 
the Atlantic Large Whale Take Reduction Plan (ALWTRP) exemption line in 
this area.
    Response: NMFS has evaluated the request to modify the western 
boundary of the Southern New England Management Area in the vicinity of 
Long Island Sound, and has determined that the modification is not 
warranted for a variety of reasons. First, the basis provided for 
modifying the line to become consistent with the exemption line in this 
area as defined by the ALWTRP is not appropriate. The ALWTRP exemption 
line was established based on the rarity of large whale sightings 
westward of the ALWTRP exemption line. The HPTRP Southern New England 
Management Area was established based on the presence of harbor 
porpoise in that area.
    Regarding consistency, this line was recommended by the HPTRT 
because it is a boundary line that is consistent with an existing 
boundary line under the Northeast Multispecies Fishery Management Plan, 
and is a line with which gillnet fishermen in this area are familiar. 
The commenter also noted that the ALWTRP exemption line delineates the 
locations in which residents of the states of New York, Connecticut, 
and Rhode Island are authorized to fish. However, these authorizations 
are state-driven; therefore, the boundary line of the Southern New 
England Management Area will not affect state authority in determining 
where state permitted vessels may fish.
    Comment 4: Two commenters requested that NMFS codify the Northeast 
Multispecies Fishery Management Plan (FMP) Western Gulf of Maine 
Closure Area into the HPTRP as recommended by the HPTRT. Both 
commenters encouraged this in the event that the Western Gulf of Maine 
Closure Area is removed from the Northeast Multispecies FMP. One 
commenter noted that the Massachusetts Bay Management Area was 
originally a Northeast Multispecies FMP closure that was codified into 
the HPTRP and subsequently removed as a groundfish closure.
    Response: NMFS acknowledges that the HPTRT recommended, by 
consensus, the incorporation of the Multispecies FMP Western Gulf of 
Maine Closure Area into the HPTRP. However, NMFS disagrees with this 
recommendation. As described in the preamble to the regulations 
implementing the HPTRP (63 FR 66464, December 2, 1998), NMFS 
established the boundaries of the HPTRP management areas based on the 
distribution of harbor porpoises and bycatch rates along the New 
England coast. The portion of the Western Gulf of Maine Closure Area 
that had a high bycatch of harbor porpoises prior to implementation of 
the HPTRP was included under the HPTRP as part of the Mid-Coast 
Management Area. Therefore, since the portion of the Western Gulf of 
Maine Closure Area that has traditionally had high bycatch rates of 
harbor porpoises is already contained

[[Page 7391]]

within the Mid-Coast Management Area under the HPTRP, should the 
Western Gulf of Maine Closure Area be reopened to gillnet fishing in 
the future, the area with historically high harbor porpoise bycatch 
levels is already contained within the overlapping Mid-Coast Management 
Area under the HPTRP. At the present time, harbor porpoise bycatch 
information within the remaining portion of the Western Gulf of Maine 
Closure Area (not overlapping with the Mid-Coast Management Area) does 
not exist since this area has been closed to gillnet fishing since 
1998. Consequently, NMFS cannot evaluate the conservation benefit or 
the economic impacts of the entire closure area if it were codified 
under the HPTRP. For these reasons, NMFS believes codifying the Western 
Gulf of Maine Closure Area under the HPTRP is not warranted at this 
time.
    Comment 5: One commenter requested that NMFS adjust the mesh size 
requirements or the seasons of the Southern Mid-Atlantic Management 
Area to not affect striped bass fishermen in this area. Conversely, 
another commenter commended NMFS for not making adjustments to the 
Southern Mid-Atlantic Management Area to exempt striped bass fishermen, 
noting that it is outside of common practice for a take reduction plan 
to regulate by target species, rather than by gear type.
    Response: NMFS decided not to modify the closure period or the 
definition of large mesh gillnets for the Southern Mid-Atlantic 
Management Area. To ensure adequate management of incidental 
interactions between marine mammals and fisheries, take reduction plans 
manage fisheries by gear type, rather than by sub-fisheries or target 
species. In addition, modifying the definition of large mesh gillnets 
would conflict with the Bottlenose Dolphin Take Reduction Plan, as this 
plan uses the same definition, and therefore would likely result in 
confusion for gillnet fishermen in this region.
    Further, during the December 2007 HPTRT meeting, a member requested 
that the HPTRT consider a verbal proposal to exempt striped bass 
fishermen using large mesh gillnets in Virginia state waters from the 
seasonal large mesh gillnet closure from February 15 through March 15 
in the Southern Mid-Atlantic Management Area. The rationale provided 
for the exemption was that this closure affected the brief window of 
opportunity for fishing for the striped bass ocean fishing season for 
southern states. The HPTRT did not have sufficient time to fully 
discuss this request at the December meeting. Therefore, NMFS included 
this issue as a topic for discussion on the agenda for the January 2008 
HPTRT follow-up teleconference meeting.
    Prior to the teleconference, the HPTRT representative from the 
Commonwealth of Virginia sent the meeting facilitator a report 
completed by the Virginia Institute of Marine Science to further 
support the request for an exemption. This document was forwarded to 
NMFS and the HPTRT for consideration during the teleconference.
    The report examined net size selectivity for capturing striped bass 
in Virginia's coastal and estuarine waters from mid-February through 
March of 2005, indicating that 8-inch (20.32-cm) mesh nets captured 
striped bass of legal size 99.9 percent of the time, whereas 7-inch 
(17.78-cm) mesh nets captured legal-sized bass only 70 percent of the 
time.
    During the teleconference, the HPTRT was unable to reach consensus 
on this issue. After the teleconference, NMFS requested that Virginia 
submit a proposal outlining the exemption request and justification of 
its necessity. The proposal requested an adjustment to the definition 
of large mesh gillnets under the HPTRP by increasing the restricted 
mesh size from the current 7 inches (17.78 cm) to 8 inches (20.32 cm) 
for Virginia state waters from February 15 through March 15; the 
proposal also suggested incorporating a consequence closure strategy 
for this area. This 1-inch (2.54-cm) increase in mesh size would allow 
striped bass fishing from February 15 through March 15, and would also 
reduce the catch of undersized striped bass. This proposal, along with 
a separate proposal from NMFS, which included either no change or an 
examination of shifting the closure period to March 1-31, was 
considered, but, for the reasons provided above, none were adopted by 
the HPTRT or NMFS.

Pingers

    Comment 6: One commenter recommended that NMFS allow the use of 
pingers that have different specifications from those required by the 
HPTRP, including the use of pingers that emit a tone of a frequency 
higher than 10 kHz.
    Response: NMFS has not proposed any modifications to the pinger 
specifications that are outlined in the HPTRP. Recent analyses 
completed by the NMFS Northeast Fisheries Science Center further 
support the conclusion that pingers of the current specifications 
successfully decrease harbor porpoise bycatch in gillnet fisheries when 
the pingers function properly and are deployed in the correct manner 
(Palka et al., 2008).
    NMFS acknowledges that, in certain areas, pingers may alert seals 
to the presence of gillnet gear, which can result in depredation on the 
fish caught in the nets. To alleviate this problem, the HPTRT and 
others have discussed experimenting with pingers of a higher frequency, 
in which the pinger is inaudible to seals but is still within the 
hearing range of harbor porpoises. Higher frequency pingers are 
currently being used in some gillnet fisheries in Europe. However, to 
date, no testing has been conducted in U.S. waters to examine the 
effects of these devices on the Gulf of Maine/Bay of Fundy stock of 
harbor porpoises and U.S. gillnet fisheries. NMFS cannot incorporate 
higher frequency pingers into the HPTRP without first examining the 
effects on harbor porpoises and other marine species. NMFS notes that 
this action will incorporate a scientific research provision into the 
HPTRP, which would allow for such experimentation within HPTRP 
management areas so long as a scientific research permit is acquired. 
If it becomes necessary, NMFS will revise this rule through notice and 
comment rulemaking to allow different pinger standards.
    Comment 7: One commenter stated that NMFS should provide pinger 
detection devices to fishery observers to determine if pingers on nets 
are functioning properly. Alternatively, the commenter recommended that 
NMFS should provide observers with pingers to give to fishermen in 
exchange for collecting pingers on each end of an observed harbor 
porpoise take for testing.
    Response: The NMFS Northeast Fishery Observer Program (NEFOP) 
currently has six open-air pinger detectors that are routinely provided 
to observers on gillnet vessels for the detection of functioning 
pingers. NEFOP staff are developing a contract for the design and 
purchase of new, improved open-air pinger detectors to replace the 
current detectors. The new detectors will be more durable than the 
current detectors.
    According to the NEFOP Fisheries Observer Program Manual (revised 
January 1, 2008), observers must record the condition of an active 
deterrent device (e.g., pinger) immediately following the incidental 
take of a marine mammal, sea turtle, or sea bird. If possible, 
immediately preceding an incidental take the observer must also record 
the condition of the active deterrent device in use. Based on these 
protocols and the ability of observers to

[[Page 7392]]

detect functioning pingers, it is not necessary to exchange new pingers 
for pingers on gillnet gear in which an incidental take is observed.
    Comment 8: One commenter recommended that, due to the difficulty 
associated with checking pinger functionality at sea, NMFS establish a 
shoreside pinger inspection program to ensure that all gillnet 
fishermen fishing in areas in which pingers are mandatory have the 
required number of fully functional pingers on their gear.
    Response: NMFS disagrees that there are difficulties associated 
with checking pinger functionality at sea. NMFS has strategies and 
tools in place to check for functioning pingers at sea. First, NMFS has 
purchased underwater pinger detectors that can check for functioning 
pingers on gillnet gear while the gear is being fished in the water, or 
while the gear is being hauled back onto the vessel. NMFS is currently 
working with state and Federal enforcement partners on the use of these 
detectors within the HPTRP management areas in New England. The states 
of Maine, Massachusetts, and Rhode Island have been loaned four of 
these detectors for use aboard state enforcement vessels during 
patrols. Additionally, as described in the response to Comment 7, the 
NEFOP staff is in the process of purchasing new open-air pinger 
detectors that can check the functionality of pingers on gillnet gear 
as it is hauled on board the vessel.
    Additionally, NMFS disagrees with the necessity to establish a 
shoreside pinger inspection program, because such a program would be 
costly and would ultimately not ensure that all gillnet fishermen that 
fish within the HPTRP management areas have the required number of 
functional pingers on their gear. NMFS currently has an established 
pinger training and authorization program, which ensures that gillnet 
vessel operators receive one-time training in the use of pingers and 
maintain on board their vessel a valid pinger training authorization 
provided by NMFS. Additionally, the HPTRT recommended a consequence 
closure area strategy in New England for the purpose of providing an 
incentive for increasing compliance with the pinger requirements. This 
rule will implement this strategy in the GOM and Southern New England 
(SNE) areas, which are historically areas of high harbor porpoise 
bycatch. NMFS recognizes the importance of compliance to ensure that 
the effectiveness of the HPTRP in reducing interactions between harbor 
porpoises and gillnet fisheries is maximized. As such, NMFS will 
continue to work with its various partners (e.g., states, U.S. Coast 
Guard, NOAA Office of Law Enforcement, NEFOP) to monitor compliance 
with the HPTRP and enforce its regulatory components.

Consequence Closure Strategy

    Comment 9: Two commenters requested that NMFS act quickly in 
implementing the consequence closure areas if the target bycatch rates 
in their respective management areas are exceeded. One commenter 
suggested that NMFS complete the required analyses for implementing the 
consequence closure areas in conjunction with this rulemaking in order 
to expedite the potential implementation of these closures in the 
future.
    Response: NMFS agrees that it is imperative to act as quickly as 
possible to implement consequence closure areas, should target bycatch 
rates be exceeded after two consecutive management seasons. Through 
this action and through completion of the final EA, NMFS has completed 
the required analyses for implementing consequence closure areas, 
should they occur over the course of the next 10 years. NMFS has also 
established language in the regulatory text of this action that 
explains the annual review process for consequence area closure 
actions, including the establishment of the consequence closure areas 
if the target bycatch levels are exceeded; notification to the HPTRT 
and affected gillnet permit holders (e.g., advance notification through 
mailings, publication in the Federal Register, and postings on the 
HPTRP Web site) should consequence areas become triggered; and 
continued monitoring of harbor porpoise bycatch rates after 
implementation of consequence closure areas.

Outreach and Enforcement

    Comment 10: One commenter, in expressing support for the proposed 
rule, stressed the importance of future outreach and education efforts 
with the commercial fishing industry as being crucial to the 
effectiveness of this management plan.
    Response: NMFS agrees that future outreach and education efforts 
are important components for ensuring the effectiveness of the HPTRP. 
The HPTRP monitoring strategy incorporates a number of measures 
designed to increase education and outreach efforts. First, NMFS will 
provide annual updates to the HPTRT to provide compliance and bycatch 
information. This information is especially important for New England, 
and therefore this information will focus on the consequence closure 
area strategy. Also, NMFS will work with its New England and Mid-
Atlantic state partners to conduct annual workshops with the gillnet 
industry to provide updated information on compliance and harbor 
porpoise bycatch data. In New England, these meetings are especially 
important for reviewing bycatch rates in those management areas 
affected by the consequence closure area strategy, and for reviewing 
how those bycatch rates relate to the target bycatch rates. Finally, 
NMFS supports the development of additional state education and 
enforcement efforts to increase compliance with the HPTRP.
    Comment 11: One commenter noted that HPTRP enforcement and industry 
outreach efforts must be more vigorous in the future than they have 
been in the past.
    Response: NMFS agrees with this comment and will continue to work 
with its various partners, such as state agencies, the U.S. Coast 
Guard, and the NOAA Office of Law Enforcement, on HPTRP enforcement and 
industry outreach efforts. By consensus recommendation, the HPTRT state 
agency members committed to conducting annual workshops with the 
gillnet industry after publication of this rule to increase compliance 
with the HPTRP, as well as to provide updated harbor porpoise bycatch 
and compliance information. These workshops will be especially 
important in the New England areas that would potentially be affected 
by the implementation of consequence closure areas. In addition, NMFS 
will continue to provide pinger training. This training provides 
information on the HPTRP management areas and requirements, as well as 
information on the use of pingers. Also, NMFS will continue to maintain 
its existing outreach efforts, which include ensuring that the HPTRP 
Web site contains relevant and current information, communicating 
directly with HPTRT members, and sending permit holder letters to the 
gillnet industry.
    NMFS is committed to maintaining and improving upon its 
relationship with the U.S. Coast Guard and the NOAA Office of Law 
Enforcement, as well as its state enforcement partners, to monitor the 
effectiveness of the HPTRP. As discussed in response to Comment 8, 
state enforcement officials in Maine, Massachusetts, and Rhode Island 
have incorporated in-water pinger detectors into their patrols. NMFS is 
also coordinating with its Federal enforcement partners on the use of 
this equipment, as well as on the ability to

[[Page 7393]]

conduct dedicated enforcement patrols to ensure gillnet gear is in 
compliance with the HPTRP. Finally, NMFS will coordinate with all of 
these partners to ensure updated enforcement information is provided to 
the HPTRT in its annual compliance updates.

Harbor Porpoise Bycatch Estimates

    Comment 12: One commenter stated that NMFS should base harbor 
porpoise bycatch estimates on all regional fisheries in which 
mortalities and serious injuries occur, including trawl gear and 
Canadian fisheries.
    Response: NMFS monitors harbor porpoise bycatch in all commercial 
fisheries through the annual SAR process. The majority of fishery 
interactions for the GOM/BOF stock of harbor porpoises occurs in the 
Northeast sink gillnet and Mid-Atlantic gillnet fisheries. Bycatch 
estimates in Canadian gillnet fisheries are unknown, as the fishery has 
not been observed from 2002 through the present time. NMFS will 
continue to monitor the annual SARs for interactions between harbor 
porpoises and all fisheries.
    Comment 13: One commenter recommended that NMFS consult with its 
Canadian counterpart regarding the need to increase Canadian gillnet 
observer coverage to assess harbor porpoise bycatch in the Canadian 
sink gillnet fishery.
    Response: NMFS agrees. NMFS is working with Canada's Department of 
Fisheries and Oceans (DFO) to address this issue. Nonetheless, harbor 
porpoise bycatch in U.S. gillnet fisheries exist and must be addressed 
by NMFS through the HPTRP.

Changes From the Proposed Rule

    There are no changes from the proposed rule.

Classification

    The Office of Management and Budget (OMB) has determined that this 
action is significant for the purposes of Executive Order 12866.
    A description of the action and its legal basis are contained in 
the preamble of this final rule. This final rule does not include any 
reporting or recordkeeping requirements, nor does it include compliance 
requirements other than those described in the preamble. No 
duplicative, overlapping, or conflicting Federal rules have been 
identified.
    NMFS has prepared a final regulatory flexibility analysis (FRFA) 
that describes the economic impact this rule will have on small 
entities. A summary of the analysis follows. No comments were received 
on the initial regulatory flexibility analysis (IRFA) or the economic 
impacts of the proposed rule.
    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 final rule 
are the Northeast sink gillnet and Mid-Atlantic gillnet fisheries. 
These fisheries are currently regulated under the HPTRP to reduce the 
serious injury and mortality of harbor porpoises; this rule implements 
additional restrictions. The population of vessels affected by this 
action includes all commercial gillnet vessels fishing in Federal 
waters from the U.S./Canada border to North Carolina, as well as 
vessels fishing in state waters that are managed under the HPTRP. In 
2006 and under the current HPTRP, there were 975 gillnet vessels that 
landed an estimated 23,276 mt of fish, generating approximately 
$40,643,000 in revenue.
    In preparing this action, NMFS considered multiple alternatives--
Alternative 1, no action; Alternative 2, immediate implementation of 
closures; Alternative 3, broad-based pinger requirements; Alternative 
4, this action, or the ``preferred alternative''; and Alternative 5, 
modified preferred alternative.
    Under Alternative 1, NMFS would maintain the status quo HPTRP. This 
would result in no changes to the current measures under the HPTRP and, 
as such, would result in no additional economic effects to the affected 
commercial fisheries. However, this alternative would not achieve the 
reduction in incidental mortality and serious injury of harbor 
porpoises in commercial fishing gear required under the MMPA, because 
it would not reduce the estimated harbor porpoise mortality of 1,063 
animals in 2006, which is above the PBR level. Therefore, NMFS rejected 
this alternative.
    Under Alternative 2, NMFS would immediately implement additional 
area closures to the existing measures of the HPTRP. This alternative 
includes immediate implementation of the closure areas recommended by 
the HPTRT, known in this rule as consequence closure areas, in New 
England. Out of the five alternatives, Alternative 2 had the lowest 
estimated reduction in harbor porpoise bycatch of all the alternatives 
considered, at 54 percent, or 573 fewer animals from the status quo 
2006 estimate of 1,063 animals. Additionally, Alternative 2 had the 
highest estimated cost to the commercial fishing industry of all the 
alternatives considered, with a 5-percent ($1,947,000) reduction in 
annual revenues. For these reasons, NMFS rejected this alternative.
    Under Alternative 3, NMFS would implement broad-based pinger 
management areas covering the geographic range of the GOM/BOF stock of 
harbor porpoises in New England and the Mid-Atlantic region. 
Alternative 3 had a higher estimated cost for the commercial fishing 
industry per harbor porpoise saved than the preferred alternative (if 
consequence areas are not triggered), with less than 1-percent 
($374,000) reduction in annual revenues, and a lower estimated 
reduction in harbor porpoise bycatch, at 60 percent. In part because it 
would result in a higher cost per porpoise saved, while providing a 
lower reduction in porpoise bycatch than the other alternatives, NMFS 
rejected this alternative.
    Under Alternative 4, existing management areas in New England and 
the Mid-Atlantic are expanded and additional management areas are 
created to address areas of high harbor porpoise bycatch. This 
alternative incorporates additional measures to the existing HPTRP. For 
New England (Maine through Rhode Island), new measures include (1) 
additional pinger requirements; (2) the establishment of new management 
areas; and (3) the incorporation of consequence closure areas should 
the observed average bycatch rate in certain management areas exceed a 
specified target bycatch rate averaged over the course of two 
consecutive management seasons. For the Mid-Atlantic (New York through 
North Carolina), new measures include (1) the establishment of a new 
management area, which includes a seasonal closure; and (2) a 
modification to the large mesh gillnet tie-down spacing requirement 
(which is not included in the analysis because it would not result in 
additional costs to gillnet fishermen).
    This alternative incorporates the potential for future closures. 
Accordingly, this analysis examines four different scenarios for this 
alternative, based on the potential for implementation of consequence 
closure areas. The first scenario examines impacts of additional HPTRP 
conservation measures (e.g., establishment of new pinger and closure 
areas) prior to triggering the closure of any consequence closure area 
(Pre-closure). The second scenario examines the impacts if only the 
Coastal Gulf of Maine Consequence Closure Area is implemented (GOM-
closure), and the third scenario analyzes the impacts if only the Cape 
Cod South Expansion and Eastern Cape Cod Consequence Closure

[[Page 7394]]

Areas are implemented (SNE-closure). The fourth scenario investigates 
the impacts should all three consequence closure areas be implemented 
simultaneously, which would occur if both target bycatch rates are 
exceeded (GOM/SNE-closures).
    (1) The Pre-closure scenario would have the smallest impact on the 
gillnet industry out of the four scenarios that are possible under this 
alternative, because it is assumed that, for GOM ports (Maine to South 
of Boston), 82 to 98 percent of these vessels already own pingers. 
Therefore, the expanded requirements for the use of pingers are not 
expected to result in significant impacts. The majority of the affected 
vessels under this scenario at the regional, or port, level consist of 
vessels in port groups East of Cape Cod to New Jersey, due to the 
creation of the Southern New England Management Area with new pinger 
requirements and the Mudhole South Management Area, which incorporates 
a seasonal closure. In addition, the impact of the Pre-closure scenario 
in terms of landings is small. For the East of Cape Cod through New 
Jersey port groups, the percentage change in landings varies between a 
1-percent increase (East of Cape Cod) and a 1-percent reduction. 
Percentage reductions in revenues for these port groups range from 1 to 
3-percent, with the highest (3 percent) in the New York port group.
    Revenues for affected vessels under the Pre-closure scenario vary 
for small vessels (less than 40 ft (12.2 m)) and for large vessels (40 
ft (12.2 m) and greater). Revenues for small vessels would be reduced 
between 1 and 6 percent (approximately $800 to $4,700), while annual 
revenues for large vessels would be reduced between 1 and 7 percent 
(approximately $2,600 to $7,200). At the industry (i.e., small entity) 
level, the Pre-closure scenario can be expected to affect 10 percent of 
gillnet vessels in the fleet, or 101 vessels. This equates to less than 
a 1-percent reduction in landings and revenues. Less than a 1-percent 
(6-mt) decline in overall industry landings is expected, which equates 
to an approximate $183,000 decrease in revenues.
    (2) The GOM-closure scenario would implement the Coastal Gulf of 
Maine Consequence Closure Area as a result of non-compliance with the 
HPTRP in three GOM management areas. Therefore, this scenario would 
most heavily affect GOM port groups, which include those from Maine to 
South of Boston. At the regional level, the impact on port group 
landings varies by port group. The New Hampshire port group, which is 
estimated to face a 14-percent reduction in landings, and the North of 
Boston port group, with an expected 6-percent decrease, would feel most 
of the impacts. Slight landings reductions would also be apparent from 
South of Cape Cod through New Jersey, due to the creation of the SNE 
and Mudhole South Management Areas.
    Percentage reductions in revenues for these port groups would vary 
consistent with the percentage reductions seen in landings, with the 
highest reduction, of 11-percent, for the New Hampshire port group, a 
5-percent reduction for the North of Boston port group, and a 1-percent 
reduction for each of four port groups, including Maine, South of Cape 
Cod, New York, and New Jersey.
    Similar to the Pre-closure scenario, revenues for affected vessels 
under the GOM-closure scenario vary by vessel size class. For small 
vessels, revenues are reduced in the range of less than 1 percent to 28 
percent (approximately $160 to $26,400), while large vessels' revenues 
would be reduced by less than 1 percent to 4 percent (approximately 
$160 to $7,800). At the industry level, approximately 17.5 percent of 
the gillnet fleet, which equates to 171 vessels, could be affected by 
the GOM-closure scenario, and most of these vessels would be from GOM 
port groups. Under this scenario, a decrease of approximately 2 percent 
(466 mt) in annual landings would be expected, which amounts to a 
decline of approximately $815,000 in annual revenue.
    (3) The SNE-closure scenario would implement two consequence 
closure areas resulting from non-compliance in the Southern New England 
Management Area: The Cape Cod South Expansion and Eastern Cape Cod 
Consequence Closure Areas. In this scenario, the South of Cape Cod port 
group would be most heavily affected, because 64 percent of landings in 
this port group are caught in the Cape Cod South Expansion Consequence 
Closure Area. Reductions in landings for the South of Cape Cod port 
group could be as high as 6 percent. In addition, closure of the 
Eastern Cape Cod Consequence Closure Area would affect vessels 
originating from the East of Cape Cod port group, with an approximately 
2 percent reduction in landings. Other affected port groups, from New 
Hampshire through New Jersey, could expect annual landing reductions of 
up to approximately 3 percent. Percentage reductions in annual revenues 
for these port groups vary similarly to the percent reductions seen in 
landings, with the highest reduction, of 10 percent, in the South of 
Cape Cod port group.
    The range of annual revenue reductions for affected vessels differs 
for small and large vessels, with expected reductions of 1 to 10 
percent (approximately $1,300 to $8,100) for small vessels, and 
reductions of 1 to 25 percent (approximately $1,500 to $15,300) for 
large vessels. At the industry level, approximately 21.1 percent of 
gillnet vessels, or 206 vessels, could be affected, with the largest 
group being from the South of Cape Cod port group. Under this scenario, 
a decrease in landings of 2 percent (378 mt) could be expected, 
totaling approximately $1.2 million decline in annual revenues.
    (4) The GOM/SNE-closure scenario would result from non-compliance 
in both the GOM and SNE areas, and would trigger the closure of all 
three consequence closure areas. Port groups most heavily affected by 
this scenario include GOM ports from Maine to South of Boston 
(resulting from implementation of the Coastal Gulf of Maine Consequence 
Closure Area) and the South of Cape Cod and East of Cape Cod port 
groups (resulting from implementation of the Cape Cod South Expansion 
and Eastern Cape Cod Consequence Closure Areas). The New Hampshire and 
South of Cape Cod port groups would experience the highest reductions 
in revenues, with 11 percent (approximately $293,000) and 10 percent 
(approximately $734,000) declines, respectively. Similar percentage 
losses in landings for these port groups would also be expected.
    As with the scenarios described above, the range of annual revenue 
reductions for affected vessels differs for small and large vessels. 
Small vessels are expected to face reductions between 2 to 28 percent 
(approximately $2,600 to $26,400), while large vessels are expected to 
have revenue reductions between 1 to 25 percent (approximately $1,500 
to $15,300). At the industry level, approximately 29.7 percent of 
gillnet vessels (290 vessels) could be affected. Under this scenario, a 
decrease in annual landings of 4 percent (838 mt) can be expected. An 
approximately $2-million decrease in revenues per year could also 
occur.
    Based on this analysis, the Pre-closure scenario has the least 
amount of annual impacts of the four proposed action scenarios 
considered, because no consequence closure areas would be seasonally 
closed. A cost-effectiveness analysis using a 10-yr time horizon was 
conducted to examine the temporal differences in the impacts of the 
scenarios considered. Costs in future years were discounted at a rate 
of 3 percent and 7 percent (for comparison purposes), because the 
future dollar

[[Page 7395]]

does not have the same value as today's dollar. The discounted annual 
costs were summed to provide an estimate of the Present Value of Cost 
(PVC) over the 10-yr time period for both a 3 and 7 percent discount 
rate. The total PVC does not change over the 10-yr time period for 
scenarios that are fully implemented in the first year, such as the 
Pre-closure scenario, if consequence closure areas are never triggered. 
For the other three scenarios that involve the triggering of 
consequence closure areas at any point during the 10-yr time period, 
after the third year of implementation of the final rule, the earlier 
the closure area is implemented, the higher the total PVC would be over 
the 10-yr period. This occurs because a closure costs more than pinger 
requirements, so delaying the onset of a closure lowers the total cost.
    Of the four proposed action scenarios examined, using a 3-percent 
discount rate, the Pre-closure scenario had the lowest PVC across the 
10-yr time period: $770,000 for each year, which means that no 
consequence closure areas are triggered during that time period. When 
using a 7-percent discount rate, the PVC across the 10-yr time period 
is even lower, at $674,000 for each year.
    For the GOM-closure scenario, if the Coastal Gulf of Maine 
Consequence Closure Area were triggered in year 3 using a 3-percent 
discount rate, the PVC would be $5,810,000. However, if it were 
triggered in year 10, the PVC would be $1,337,000. When using a 7-
percent discount rate, triggering the consequence area in year 3 would 
result in a PVC of $4,801,000, and a value of $1,076,000 if triggered 
in year 10.
    Similarly, for the SNE-closure scenario, implementing the 
consequence closure areas in year 3 using a 3-percent discount rate 
would cost $8,558,000, whereas it would cost $1,646,000 if implemented 
in year 10. When using a 7-percent discount rate, triggering these 
consequence closure areas in year 3 would cost $7,051,000, and 
$1,296,000 in year 10.
    Finally, for the GOM/SNE-closure scenario, implementing all three 
consequence areas in year 3 would have a PVC of $13,585,000, whereas 
the PVC would be $2,211,000 if implemented in year 10. When using a 7-
percent discount rate, triggering the three consequence closure areas 
in year 3 would cost $11,168,000, and $1,697,000 if triggered in year 
10.
    Therefore, of the four scenarios presented, the Pre-closure 
scenario is the most cost-effective overall when discounting using both 
a 3 and 7-percent rate. This demonstrates the necessity for immediate 
industry compliance with the HPTRP requirements in order to avoid 
triggering the closure of the consequence closure areas and thus higher 
costs. If any or all of the consequence closure areas are triggered, it 
is more cost-effective if they are triggered later in the 10-yr time 
period rather than sooner, under both the 3 and 7-percent discount rate 
scenarios.
    The Alternative 4 Pre-closure scenario is estimated to result in a 
59-percent reduction in harbor porpoise bycatch, while the Alternative 
4 SNE-closure scenario is estimated to result in a 60-percent 
reduction. The GOM-closure scenario and the GOM/SNE-closure scenario 
demonstrated a similar estimated reduction in harbor porpoise bycatch 
of 63 percent. The GOM/SNE-closure scenario showed a slightly higher 
decline in the number of animals taken at 671, with a total estimated 
bycatch for this alternative scenario of 392 animals. This alternative 
is estimated to cost the commercial fishing industry $108 (7-percent 
discount rate) or $124 (3-percent discount rate) per harbor porpoise 
saved in the pre-consequence closure scenario, and $729 (7-percent 
discount rate) or $882 (3-percent discount rate) per harbor porpoise 
saved in the consequence closure scenario if triggered in Year 3.
    Based on these analyses, Alternative 4 is the preferred alternative 
because it will achieve the goals of the MMPA while minimizing the 
overall economic impact to the affected fisheries.
    Under Alternative 5, NMFS would implement a modified version of 
Alternative 4, the preferred alternative. Alternative 5 would remove 
the Offshore Management Area, remove the large mesh gillnet closure 
period in the Southern Mid-Atlantic Management Area (February 15 
through March 15), and codify the Northeast Multispecies Western Gulf 
of Maine Closure Area under the HPTRP. Note that this analysis examines 
two rather than four scenarios for Alternative 5: Pre-closure and GOM/
SNE closure. The Alternative 5 Pre-closure scenario is estimated to 
reduce harbor porpoise bycatch by 59 percent, and the GOM/SNE-closure 
scenario is estimated to reduce harbor porpoise bycatch by 63 percent. 
The decline in revenues for the commercial gillnet industry for this 
alternative are estimated to be less than 1 percent ($127,000) in the 
pre-consequence closure scenario, and 5 percent ($1,901,000) in the 
Alternative 5 GOM/SNE closure scenario. These costs are comparatively 
similar to those incurred under the Pre-closure and GOM/SNE closure 
scenarios in Alternative 4. However, when considering the range of 
harbor porpoise bycatch levels that could be expected under each 
Alternative, Alternative 5 results in a higher maximum bycatch level 
(i.e., closer to PBR) than all the scenarios considered under 
Alternative 4. In considering this alternative, NMFS also concluded 
that the removal of existing HPTRP management areas while harbor 
porpoise bycatch levels remain above PBR was not warranted. Based on 
these analyses, NMFS rejected this alternative.
    In summary, Alternative 4 will best allow NMFS to achieve its 
mandates under the MMPA. This action will implement modifications to 
the HPTRP that will reduce harbor porpoise takes to below the stock's 
PBR level, while also minimizing the overall impact to affected gillnet 
fisheries. Impacts will remain low so long as compliance with the 
pinger requirements in New England does not trigger the implementation 
of consequence closure areas in the future.
    NMFS has determined that this action is consistent to the maximum 
extent practicable with the approved coastal management programs of 
Maine, New Hampshire, Massachusetts, Rhode Island, Connecticut, New 
York, New Jersey, Delaware, Maryland, Virginia, and North Carolina. 
This determination was submitted for review by the responsible state 
agencies under section 307 of the Coastal Zone Management Act. The 
following states submitted responses concurring with NMFS' 
determination: New Hampshire, Rhode Island, Connecticut, New Jersey, 
Delaware, Virginia, and North Carolina. Maine, Massachusetts, New York, 
and Maryland did not respond; therefore, consistency is inferred.
    This action contains policies with federalism implications that 
were sufficient to warrant preparation of a federalism assessment under 
Executive Order 13132. Accordingly, the Assistant Secretary for 
Legislative and Intergovernmental Affairs provided notice of the action 
to the appropriate officials in the states of Maine, New Hampshire, 
Massachusetts, Rhode Island, Connecticut, New York, New Jersey, 
Delaware, Maryland, Virginia, and North Carolina.
    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 hr per response, including the time for reviewing 
instructions, searching existing data

[[Page 7396]]

sources, gathering and maintaining the data needed, and completing and 
reviewing the collection of information. 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 Paperwork 
Reduction Act, unless that collection of information displays a 
currently valid OMB Control Number.
    NMFS conducted a section 7 consultation on this action pursuant to 
the Endangered Species Act (ESA), which was concluded on November 19, 
2008. Because this action will not have effects on listed species that 
were not previously considered during the informal consultation on the 
initial HPTRP (concluded on November 12, 1998), reinitiating 
consultation on this action is not warranted.
    The Small Business Regulatory Enforcement Fairness Act of 1996 
states that, for each rule or group of related rules for which an 
agency is required to prepare a FRFA, the agency shall publish one or 
more guides to assist small entities in complying with the rule, and 
shall designate such publications as ``small entity compliance 
guides.'' The agency shall explain the actions a small entity is 
required to take to comply with a rule or a group of rules. As part of 
this rulemaking process, NMFS will send a letter to state and Federal 
gillnet permit holders in the states of Maine through North Carolina, 
which letters will serve as the small entity compliance guide. In 
addition, copies of this final rule and compliance guide (i.e., permit 
holder letter) are available from NMFS (see ADDRESSES) as well as the 
HPTRP Web site: https://www.nero.noaa.gov/hptrp.

References

Palka, D., M. Rossman, A. VanAtten, and C. Orphanides. 2008. Effect 
of Pingers on Harbor Porpoise and Seal Bycatch in the US Northeast 
Gillnet Fishery. Paper SC/60/SM2 presented to the Scientific 
Committee, June 2008 (unpublished); 27pp. Paper available from the 
IWC Secretariat: secretariat@iwcoffice.org.
Waring, G.T., E. Josephson, C.P. Fairfield-Walsh, and K. Maze-Foley 
(ed). 2009. U.S. Atlantic and Gulf of Mexico Marine Mammal Stock 
Assessments--2008. NOAA Tech Memo NMFS-NE-210; 440 p.

List of Subjects in 50 CFR Part 229

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

    Dated: February 5, 2010.
James W. Balsiger,
Acting Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

0
For the reasons stated in the preamble, 50 CFR part 229 is 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.  229.2, the definitions of ``Mudhole'', ``Southern Mid-
Atlantic waters'', and ``Waters off New Jersey'' are removed.

0
3. In Sec.  229.3, paragraphs (q) and (r) are removed and reserved, and 
paragraphs (m), (n), (o), and (p) are revised to read as follows:


Sec.  229.3  Prohibitions.

* * * * *
    (m) It is prohibited to fish with, set, haul back, possess on board 
a vessel unless stowed in accordance with Sec.  229.2, or fail to 
remove sink gillnet gear or gillnet gear capable of catching 
multispecies from the areas and for the times specified in Sec.  
229.33(a)(1), (a)(3), (a)(6), and (a)(8). This prohibition also applies 
to areas where pingers are required, unless the vessel owner or 
operator complies with the pinger provisions specified in Sec.  229.33 
(a)(2) through (a)(5) and (a)(7). This prohibition does not apply to 
vessels fishing with a single pelagic gillnet (as described and used as 
set forth in Sec.  648.81(f)(2)(ii) of this title).
    (n) It is prohibited to fish with, set, haul back, possess on board 
a vessel unless stowed in accordance with Sec.  229.2, or fail to 
remove gillnet gear from the areas and for the times as specified in 
Sec.  229.34 (b)(1)(i), (b)(2)(i), (b)(3)(i), or (b)(4)(i).
    (o) It is prohibited to fish with, set, haul back, possess on board 
a vessel unless stowed in accordance with Sec.  229.2, or fail to 
remove any large mesh or small mesh gillnet gear from the areas and for 
the times specified in Sec.  229.34(b) unless the gear complies with 
the specified gear restrictions set forth in the provisions of 
paragraphs (b)(1)(ii) or (iii), (b)(2)(ii) or (iii), (b)(3)(ii) or 
(iii), or (b)(4)(ii) or (iii) of Sec.  229.34.
    (p) It is prohibited to fish with, set, haul back, possess on board 
a vessel unless stowed in accordance with Sec.  229.2, or fail to 
remove sink gillnet gear or gillnet gear capable of catching 
multispecies in areas where pingers are required, as specified under 
Sec.  229.33 (a)(2) through (a)(5) and (a)(7), unless the operator on 
board the vessel during fishing operations possesses and retains on 
board the vessel a valid pinger training authorization issued by NMFS 
as specified under Sec.  229.33(c).
* * * * *

0
4. Section 229.33 is revised to read as follows:


Sec.  229.33  Harbor Porpoise Take Reduction Plan Regulations--New 
England.

    (a) Restrictions--(1) Northeast Closure Area--(i) Area 
restrictions. From August 15 through September 13, it is prohibited to 
fish with, set, haul back, possess on board