[Federal Register Volume 66, Number 203 (Friday, October 19, 2001)]
[Proposed Rules]
[Pages 53195-53197]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-26454]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 223
[Docket No.010723187-1241-02, I.D. 061101I]
RIN 0648-AP33
Threatened Fish and Wildlife; Status Review of the Gulf of Maine/
Bay of Fundy Population of Harbor Porpoise under the Endangered Species
Act (ESA)
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice of final determination and response to comments; notice
of availability of final harbor porpoise status review; removal from
candidate species list.
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SUMMARY: The National Marine Fisheries Service (NMFS) has completed a
status review of the Gulf of Maine/Bay of Fundy (GOM/BOF) stock of
harbor porpoise (Phocoena phocoena). Based on analysis of the best
scientific and commercial data available, as required by the Endangered
Species Act (ESA), NMFS determined that listing this stock of harbor
porpoise as threatened or endangered is not warranted at this time. In
addition, based on the current status of the GOM/BOF stock, NMFS is
removing this stock from the ESA candidate species list. This notice
also announces the availability of the final status review.
DATES: This determination was made on September 28, 2001.
ADDRESSES: Copies of the final report of the status review can be
obtained from: NMFS, Marine Mammal Division, 1315 East-West Highway,
Silver Spring, MD 20910; or NMFS, Northeast Region, One Blackburn
Drive, Gloucester, MA 01930-2298.
FOR FURTHER INFORMATION CONTACT: Emily Hanson, Office of Protected
Resources, 301-713-2322 ext. 101; or Kim Thounhurst, Northeast Region,
978-281-9138. Individuals who use a telecommunications device for the
deaf may call the Federal Information Relay Service at 1-800-877-8339
between 8 a.m. and 4 p.m. Eastern time, Monday through Friday,
excluding Federal holidays.
SUPPLEMENTARY INFORMATION:
Electronic Access
The final report of the status review on the GOM/BOF population of
harbor porpoise is accessible by the Internet at http://www.nero.nmfs.gov/porptrp/.
Background
On August 2, 2001 (66 FR 40176), NMFS published a draft review of
the biological status of the Gulf of Maine/Bay of Fundy (GOM/BOF)
harbor porpoise stock. In the draft status review, NMFS made the
preliminary determination that listing the GOM/BOF stock as threatened
under the ESA was not warranted and that NMFS intended to remove the
GOM/BOF harbor porpoise stock from the ESA candidate species list. In a
status review completed in 1999 (64 FR 465, January 5, 1999), NMFS
determined that listing the GOM/BOF population of harbor porpoise as
threatened under the ESA was not warranted. NMFS also published a
notice retaining the population on the ESA candidate species list to
continue to monitor the species status and the results of
implementation of the Harbor Porpoise Take Reduction Plan (HPTRP)(64 FR
480, January 5, 1999). The 1999 status review notice and the August
2001 draft status review notice also provided information on the
background of ESA actions involving the GOM/BOF population of harbor
porpoise, reviewed available scientific and commercial fishery
information affecting the species, evaluated the status of the species
according to criteria listed in the ESA, and described regulatory
mechanisms in place to address harbor porpoise mortality and serious
injury incidental to commercial fishing activities.
After consideration of the draft status review and public comments
received, NMFS has determined not to list the harbor porpoise as
threatened or endangered under the ESA and to remove the species from
the ESA candidate species list. No significant changes have been made
to the final report of the status review since publication of the draft
in the Federal Register on August 2, 2001. The final status review is
available to the public as a separate document. See ADDRESSES or
information on Electronic Access in the SUPPLEMENTARY INFORMATION
section of this notice for information on obtaining a copy of the final
status review.
Comments and Responses
A summary of the comments on the status review and NMFS responses
follows.
Comments on the Need for Listing
Comment 1: Three commenters supported NMFS' decision not to list
harbor porpoise as threatened or endangered under the ESA.
Response: No information has been received since the publication of
the draft status review to change NMFS' preliminary determination that
listing is not warranted at this time.
Comments on the Status of Harbor Porpoise
Comment 2: One commenter, citing various potential negative biases
in the mortality estimate, stated that actual mortality of harbor
porpoise is likely to be higher than the annual estimated average
mortality presented in the draft status review.
Response: NMFS recognizes that mortality estimates contain
uncertainties. However, the estimates of mortality in U.S. and Canadian
waters presented in the draft status review are the best available
estimates. Additionally, these uncertainties are incorporated into the
population viability analysis, as discussed in the draft status review,
which predicted no chance of extinction in 100 years. These mortality
estimates are reviewed and updated annually in NMFS Marine Mammal Stock
Assessment Reports. The draft revised stock assessment for harbor
porpoise, including mortality data from 1999 and 2000, is expected to
be reviewed by the Atlantic Marine Mammal Scientific Review Group in
November of 2001. The draft estimates will also be made available for
public review and comment in the 2002 Stock Assessment Reports.
Comment 3: One commenter stated that NMFS must undertake the
research recommended by the take reduction team to: (1) determine
whether pingers were functioning on both sides of an actual take; and
(2) randomly test net strings to determine the proportion of
functioning versus deployed pingers.
[[Page 53196]]
Response: NMFS is preparing to conduct this research and
anticipates conducting preliminary testing of pingers in the fall of
2001.
Comment 4: One commenter discussed the maximum rate of increase and
recovery factor parameters, which are used to assess the status of
harbor porpoise.
Response: The maximum rate of increase and recovery factor that
NMFS used in conducting the harbor porpoise status review have been
reviewed by the Atlantic Marine Mammal Scientific Review Group and the
public through the annual Stock Assessment Report (SAR) process as
mandated by section 117 of the MMPA. These values are the best
available for the assessment of the harbor porpoise population. NMFS
will consider this comment in its review of the SAR.
Comments on the Adequacy of Regulatory Mechanisms
Comment 5: One commenter stated that any changes in Fishery
Management Council actions are likely to result in an increase in
harbor porpoise mortality, and there is no plan in place to prevent
this from happening. Therefore, the commenter concluded that current
regulatory mechanisms are not adequate to protect harbor porpoise.
Response: NMFS' current strategy for reducing serious injury and
mortality of harbor porpoise in commercial fisheries is to combine
measures promulgated under the Marine Mammal Protection Act (MMPA) and
the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act). In the final rule implementing the HPTRP (63 FR 66464,
December 2, 1998), NMFS considered the cumulative scope of management
actions under the Magnuson-Stevens Act and MMPA that would affect
harbor porpoise bycatch and determined that a combined strategy was the
best administrative approach. This strategy has reduced the bycatch to
below the PBR level in both 1999 and 2000. If Fishery Management Plan
(FMP) changes that may increase harbor porpoise bycatch are proposed,
NMFS has authority under the MMPA to implement measures to reduce
bycatch to appropriate levels. This adaptive strategy is adequate to
address potential increases in harbor porpoise bycatch.
Comment 6: One commenter stated that if NMFS is considering the
reduction in mortality that is gained through fishery management
actions as a means of assessing the efficacy of management measures,
NMFS must also consider the result if these temporary actions are
altered or removed. The commenter noted that if closures are lifted or
re-configured, the mortality of harbor porpoise is likely to increase
once again. These questions about the stability of the Fishery
Management Council actions lead, as a consequence, to doubts about
their adequacy over the long term.
Response: NMFS and the New England Fishery Management Council
(Council) are responsible for meeting the objectives of the
Multispecies FMP, which include harbor porpoise conservation goals
parallel to those under the MMPA. In addition, a member of the Council
staff also sits on each of the two Harbor Porpoise Take Reduction
Teams.
The history of implementation of harbor porpoise conservation
measures under the Multispecies FMP, as described in the draft status
review, clearly demonstrates the commitment of both NMFS and the
Council to conserve harbor porpoise by restricting the Northeast sink
gillnet fishery for groundfish as appropriate. NMFS has multiple
options to address any risks to harbor porpoise that might arise
through proposed changes to the Multispecies FMP. In addition, NMFS is
a member of the Council, including the Council's Plan Development team,
and works cooperatively with the Council staff in developing changes to
the FMP. Therefore, NMFS will be aware of any of the Council's proposed
groundfish regulatory changes that may directly or indirectly affect
harbor porpoise, and NMFS will work with the Council and the two Harbor
Porpoise Take Reduction Teams to determine whether any changes to the
Multispecies FMP would require additional measures to protect harbor
porpoise in the HPTRP regulations.
Comment 7: One commenter stated that fishery-related management
actions have had a positive impact on harbor porpoise bycatch, and that
effect cannot be understated.
Response: See responses to Comments 5 and 6.
Comment 8: One commenter stated that if mortality of harbor
porpoise is to be curtailed, then it is critical to enforce the laws
and regulations protecting them. The commenter also stated that the
current level of enforcement is inadequate. Another commenter stated
that NMFS must seriously consider using observer data to identify
individual violators.
Response: Increased enforcement presence was also recommended by
the Gulf of Maine Harbor Porpoise Take Reduction Team. At the Team's
recommendation, NMFS is working on a compliance and enforcement plan
for the HPTRP. At-sea boardings and direct observations of violations
by NMFS enforcement and U.S. Coast Guard officers are the primary
source of enforcement evidence used to develop a case. Observer data
are used to provide a measure of overall compliance with Take Reduction
Plan requirements and aid in focusing enforcement efforts.
Comment 9: One commenter noted that while NMFS states in the draft
status review that the agency will monitor actions taken by the
Council, and ``may also revise the HPTRP to incorporate all measures
necessary to ensure reduced harbor porpoise bycatch rather than relying
on FMP time-area closures'', it makes no commitment to do so.
Response: As described in the response to Comment 6, NMFS is
actively involved in the Council process. The Council is also directly
involved in the harbor porpoise take reduction process through
membership of Council staff on the Harbor Porpoise Take Reduction
Teams.
It is appropriate to manage harbor porpoise bycatch through both
the Magnuson-Stevens Act and MMPA as described in the response to
Comment 6. NMFS has the authority to adjust the U.S. harbor porpoise
bycatch reduction program through the MMPA and/or the Magnuson-Stevens
Act if the agency determines that proposed changes to FMPs would reduce
harbor porpoise protection. It is important to emphasize that the
Multispecies FMP also includes an objective requiring the reduction of
harbor porpoise bycatch.
Comment 10: One commenter stated that the increase in harbor
porpoise mortality between 1999 and 2000 may be an indication that
mitigation measures are not sufficient.
Response: For both years the bycatch is below the PBR level.
However, NMFS agrees that increases in bycatch are a concern and will
continue to monitor the harbor porpoise bycatch and the effectiveness
of the HPTRP.
Comment 11: One commenter stated that NMFS must revise the HPTRP to
incorporate as requirements, not merely by reference, all of the
measures necessary to achieve both a take level below PBR and the zero
mortality rate goal.
Response: The current suite of measures under the MMPA and
Magnuson-Stevens Act have already reduced the bycatch of harbor
porpoise to below the PBR level. If the level of bycatch increases such
that it exceeds PBR or does not continue toward the zero mortality rate
goal, the agency will reconvene the take reduction team to address the
issue.
[[Page 53197]]
Comment 12: NMFS' bycatch reduction strategy is strongly predicated
on a calculated level of pinger effectiveness for various areas and
seasons. This calculation does not accommodate any variation due to
harbor porpoise habituation to pingers or the catch of harbor porpoise
in pingered nets as a result of the failure of fishermen to fully
comply with the pinger requirements.
Response: The expected level of pinger effectiveness does not
consider habituation or non-compliance. However, it is not currently
possible to quantify these potential effects. Furthermore, through the
Harbor Porpoise Take Reduction Teams, NMFS has the authority to modify
the HPTRP based on a new expected level of pinger effectiveness should
such information become available.
Comments on the Removal of Harbor Porpoise from the Candidate Species
List
Comment 13: Two commenters supported and two commenters opposed
removal of harbor porpoise from the ESA candidate species list.
Response: NMFS is removing the GOM/BOF stock of harbor porpoise
from the ESA candidate species list. This action is appropriate because
of the current status of the species and the adequacy of regulatory
mechanisms available to address risks to the population. NMFS will
continue to monitor the status of harbor porpoise pursuant to the stock
assessment process mandated under section 117 of the MMPA. In addition,
NMFS will continue to monitor harbor porpoise bycatch, compliance with
the HPTRP, and the potential effect of changes in FMPs on harbor
porpoise bycatch. The removal of this stock from the ESA candidate
species list does not change NMFS' mandates under the MMPA with regard
to harbor porpoise protection under the HPTRP or other MMPA programs.
Final Determination
Section 4(b)(1) of the ESA requires the Secretary of Commerce to
make a listing determination solely on the basis of the best scientific
and commercial data available and after taking into account efforts
being made to protect the species. Therefore, in reviewing the status
of the GOM/BOF population of harbor porpoise, NMFS has assessed the
status of the species according to the criteria in the ESA.
Since 1999, NMFS has obtained no information demonstrating that
factors other than mortality incidental to commercial fishing could
cause the stock to be in danger of extinction or likely to become so in
the foreseeable future or that available regulatory mechanisms are
inadequate to reduce harbor porpoise mortality and serious injury.
After analysis of the GOM/BOF population of harbor porpoise under the
five ESA listing factors, NMFS has determined that the stock is not in
danger of extinction throughout all or a significant portion of its
range, and it is not likely to become endangered in the foreseeable
future. Therefore, listing the GOM/BOF population of harbor porpoise as
threatened or endangered is not warranted at this time. In addition,
because of the current status of the species it is appropriate to
remove the GOM/BOF harbor porpoise population from the ESA candidate
species list.
The most significant factors that NMFS considered in making this
determination are the new abundance estimate from the 1999 survey and
the results of measures promulgated under the MMPA through the HPTRP
and under the Magnuson-Stevens Act through the Northeast Multispecies
FMP that directly or indirectly reduce the level of harbor porpoise
mortality incidental to commercial fishing in U.S. waters, the Harbor
Porpoise Conservation Strategy implemented by the Canada Department of
Fisheries and Oceans, and the existing authority by which regulatory
agencies can adapt management measures if unanticipated changes in
porpoise bycatch patterns occur. Although it is likely that porpoise
mortality will continue to occur incidental to fishery operation,
existing regulatory mechanisms and authority for amending these
mechanisms to address bycatch in commercial fisheries are adequate to
ensure that bycatch in commercial fisheries do not cause harbor
porpoise to be in danger of extinction throughout all or a significant
portion of its range, and it is not likely to become endangered in the
foreseeable future.
Although the HPTRP and other bycatch reduction efforts have reduced
the incidental take of harbor porpoise in gillnet fisheries to below
the PBR level in both 1999 and 2000, it is clear that harbor porpoise
bycatch must continue to be monitored. NMFS has documented non-
compliance with HPTRP regulations that may have reduced its
effectiveness, requiring additional outreach and enforcement measures.
Furthermore, fishery management measures have changed since the
implementation of the HPTRP and may continue to change via the annual
adjustment process in the Multispecies FMP. It is possible that
closures implemented for fish conservation will be removed when fish
stocks reach their rebuilding targets, which could result in an
increased risk to harbor porpoise and may require adjustment of the
HPTRP.
NMFS will continue to monitor bycatch levels and will adjust the
HPTRP as necessary to maintain bycatch levels within the goals
established by section 118 of the MMPA. NMFS will also monitor any
proposed regulations and proposed changes to existing regulations that
may affect harbor porpoise bycatch and consider whether management
measures need to be changed. NMFS intends to reconvene the two Harbor
Porpoise Take Reduction Teams as necessary to monitor the
implementation of the HPTRP relative to MMPA goals.
Authority: 16 U.S.C. 1531 et seq.
Dated: October 12, 2001.
William T. Hogarth
Assistant Administrator for Fisheries, National Marine Fisheries
Service.
[FR Doc. 01-26454 Filed 10-18-01; 8:45 am]
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