Taking of Marine Mammals Incidental to Commercial Fishing Operations; Harbor Porpoise Take Reduction Plan; Change to Gillnet Gear Requirements

<RULE> DEPARTMENT OF COMMERCE <SUBAGY>National Oceanic and Atmospheric Administration</SUBAGY> <CFR>50 CFR Part 229</CFR> <DEPDOC>[Docket No. 251229-0188]</DEPDOC> <RIN>RIN 0648-BN37</RIN> <SUBJECT>Taking of Marine Mammals Incidental to Commercial Fishing Operations; Harbor Porpoise Take Reduction Plan; Change to Gillnet Gear Requirements</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. <HD SOURCE="HED">ACTION:</HD> Interim final rule; request for comments. <SUM> <HD SOURCE="HED">SUMMARY:</HD> NMFS is taking a deregulatory action to revise the regulations implementing the Harbor Porpoise Take Reduction Plan (HPTRP) to ensure the HPTRP is consistent with a gillnet gear requirement previously put in place under the Monkfish Fishery Management Plan to reduce bycatch of Atlantic sturgeon. This action is necessary to inform the public about an amendment to the Harbor Porpoise Take Reduction Plan altering the minimum twine size requirement to ensure that fishermen may use the low-profile gillnet gear required by the Monkfish Fishery Management Plan and also be in compliance with the Marine Mammal Protection Act while fishing in the New Jersey Atlantic Sturgeon Bycatch Reduction Area. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> Effective on January 2, 2026. Comments on this revision to the Harbor Porpoise Take Reduction Plan must be received by February 2, 2026. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> A plain language summary of this interim final rule is available at <E T="03">https://www.regulations.gov/docket/NOAA-NMFS-2025-0603.</E> You may submit comments on this document, identified by NMFS-NOAA-2025-0063, by any of the following methods: <E T="03">Electronic Submission:</E> Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to <E T="03">https://www.regulations.gov</E> and enter NOAA-NMFS-2025-0063 in the Search box. Click on the “Comment” icon, complete the required fields, and enter or attach your comments. <E T="03">Instructions:</E> All comments received that are timely and properly submitted are a part of the public record and will generally be posted for public viewing on <E T="03">https://www.regulations.gov</E> without change. All personal identifying information ( <E T="03">e.g.,</E> name, address, etc.), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. We will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous). Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered by us. Copies of this action, including the environmental assessment (EA) prepared in support of this action, as well as the EA and the Regulatory Impact Review/Initial Regulatory Flexibility Analysis (RIR/IRFA) for related changes to the Monkfish Fishery Management Plan are available via the internet at <E T="03">https://www.regulations.gov/</E> or by contacting Elizabeth Stratton (see <E T="02">FOR FURTHER INFORMATION CONTACT</E> below). Several of the background documents for the Harbor Porpoise Take Reduction Plan (HPTRP) and the take reduction planning process can also be downloaded from the Plan website ( <E T="03">https://www.fisheries.noaa.gov/new-england-mid-atlantic/marine-mammal-protection/harbor-porpoise-take-reduction-plan</E> ), including copies of the EA for this action. Information on the analytical tools used to support the development and analysis of the interim final regulations can be found in the EA. The complete text of current regulations implementing the HPTRP can be found in 50 CFR 229.33 and 229.34 or downloaded from the HPTRP's website, along with outreach compliance guides to current regulations. <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Elizabeth Stratton, Harbor Porpoise Take Reduction Team Coordinator, (978) 281-9307 or <E T="03">nmfs.gar.hptrt@noaa.gov.</E> </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">Background</HD> Due to high levels of incidental take of harbor porpoise ( <E T="03">Phocoena phocoena</E> ) in U.S. commercial fishing gear in the late 1980s, management of bycatch in commercial gillnet gear of the Gulf of Maine/Bay of Fundy (GOM/BOF) stock of harbor porpoise began with the formation of the Harbor Porpoise Working Group. In 1994, Congress amended the Marine Mammal Protection Act (MMPA) to include provisions governing the take of marine mammals incidental to commercial fishing operations, including incidental take authorization, reporting and monitoring requirements, and development of take reduction planning. Pursuant to section 118(f)(6)(C) of the MMPA, NMFS created the Harbor Porpoise Take Reduction Team (Team) consisting of stakeholders representing state and federal government agencies, the fishing industry, conservation organizations, and researchers. The Team recommended take reduction measures to reduce mortality and serious injury of the GOM/BOF stock of harbor porpoise to below the stock's potential biological removal (PBR) level. NMFS used those recommendations to propose and finalize a take reduction plan. The first iteration of the plan, published on December 2, 1998 (63 FR 66464), was originally conceived as two separate harbor porpoise take reduction plans, one for New England and one for the Mid-Atlantic. These were combined into one plan in a final rule, referred to here as the Harbor Porpoise Take Reduction Plan (HPTRP), but remain in separate sections—50 CFR 229.33 (New England Plan) and 50 CFR 229.34 (Mid-Atlantic Plan)—in the Code of Federal Regulations. The commercial fisheries managed under the HPTRP, the Northeast sink gillnet fishery and the Mid-Atlantic gillnet fishery, are Category I fisheries as listed on the MMPA List of Fisheries (89 FR 77789, September 24, 2024). Category I fisheries are those that have frequent incidental mortality and serious injury of marine mammals. The HPTRP regulations in New England implemented closures and required pingers for bycatch reduction, while the in the Mid-Atlantic, the HPTRP regulations implemented closures and large-mesh (7-18 inches; 17.78-45.72 cm) and small-mesh (>5 and <7 inches; >12.7 and <17.78 cm) gillnet gear specifications, including requirements for floatline length, minimum twine size, tie-down requirements, net size, nets per vessel, and nets per string. In 1998, the 5-year (1990-1995) review of the HPTRP estimated annual mortality from New England and Mid-Atlantic gillnet fisheries was 2,040 harbor porpoises, of which only 10 percent, or approximately 200 harbor porpoises, were attributed to the Mid-Atlantic region. The goal of the HPTRP was to reduce bycatch by 79 percent (63 FR at 66464, December 2, 1998) to bring it below PBR, which at the time was 483 harbor porpoises (62 FR 3005, January 21, 1997) across both regions. Since the implementation of the HPTRP, harbor porpoise mortality and serious injury incidental to U.S. commercial fisheries has fallen to 22.3 percent of PBR (now 649, Hayes <E T="03">et al.,</E> 2023), with the most recent stock assessment report covering 2017-2021 estimating a mean combined annual mortality of 145, with 131 in Northeast sink gillnet fisheries, 10 in Mid-Atlantic gillnet fisheries, and 4 in Northeast bottom trawl fisheries (Hayes <E T="03">et al.,</E> 2023). The GOM/BOF harbor porpoise stock is not listed as threatened or endangered under the Endangered Species Act (ESA), and this stock is no longer considered strategic under the MMPA (MMPA sec. 3(19)). As noted above, the total annual mortality and serious injury estimate for the GOM/BOF harbor porpoise stock in U.S. commercial fisheries is currently well below PBR (145, 22.3 percent of PBR), with the majority of bycatch occurring in the Northeast sink gillnet fishery and not in the Mid-Atlantic gillnet fishery, the subject of this modification. The change to the HPTRP in this rule is a necessary deregulatory action to comport with changes to regulations under the Monkfish Fishery Management Plan (FMP) implemented to protect ESA-listed Atlantic sturgeon. NMFS issued a Biological Opinion on May 27, 2021, that considered the effects of authorizing two interstate fishery management plans (ISFMP) and eight Federal FMPs, including the Monkfish and Spiny Dogfish FMPs, on ESA-listed species and designated critical habitat. The Biological Opinion determined that NMFS's authorization of the eight FMPs and two ISFMPs may adversely affect, but was not likely to jeopardize, threatened (Gulf of Maine) and endangered (New York Bight, Chesapeake Bay Carolina, and Southern Atlantic) distinct population segments (DPS) of Atlantic sturgeon. The Biological Opinion included an Incidental Take Statement and Reasonable and Prudent Measures (RPM) with accompanying Terms and Conditions to minimize the impacts of incidental take of Atlantic sturgeon. The RPMs required that NMFS convene a working group to review all of the available information on Atlantic sturgeon bycatch in the federally-permitted large-mesh gillnet fisheries and, by May 27, 2022, develop an Action Plan to reduce Atlantic sturgeon bycatch (Sturgeon Action Plan) in these fisheries by 2024. NMFS initially issued the Sturgeon Action Plan on May 26, 2022, and revised it on September 26, 2022, incorporating feedback from both the New England and Mid-Atlantic Fishery Management Councils (Councils) and members of the public. The Councils subsequently developed and approved a joint framework action—Framework Adjustment 15 to the Monkfish FMP and Framework Adjustment 6 to the Dogfish FMP—to address the recommendations of the Sturgeon Action Plan and fulfill the ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 34k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━