[Federal Register Volume 78, Number 193 (Friday, October 4, 2013)]
[Rules and Regulations]
[Pages 61821-61826]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-24278]

Rules and Regulations
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Federal Register / Vol. 78, No. 193 / Friday, October 4, 2013 / Rules 
and Regulations

[[Page 61821]]


National Oceanic and Atmospheric Administration

50 CFR Part 229

[Docket No. 130703586-3834-02]
RIN 0648-BD43

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

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

ACTION: Final rule.


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

DATES: Effective September 30, 2013.

ADDRESSES: Copies of the final Environmental Assessment (EA) for this 
action, as well as the Harbor Porpoise Take Reduction Team meeting 
summaries and supporting documents, may be obtained from the Plan Web 
site (http://www.nero.noaa.gov/hptrp) or by writing to Kate Swails, 
NMFS, Northeast Region, Protected Resources Division, 55 Great Republic 
Drive, Gloucester, MA 01930.

978-282-8482, Kate.Swails@noaa.gov; Kristy Long, NMFS Office of 
Protected Resources, 301-427-8440, Kristy.Long@noaa.gov.



    The Harbor Porpoise Take Reduction Plan (Plan) was implemented in 
late 1998 pursuant to section 118(f) of the Marine Mammal Protection 
Act (MMPA) to reduce the level of serious injury and mortality of the 
Gulf of Maine/Bay of Fundy (GOM/BOF) stock of harbor porpoises (63 FR 
66464, December 2, 1998). NMFS amended the Plan in 2010 (75 FR 7383, 
February 19, 2010) to address increased mortalities of harbor porpoises 
in New England and Mid-Atlantic commercial gillnet fisheries due to 
non-compliance with the Plan requirements and observed interactions 
occurring outside of existing management areas.
    The 2010 amendments, based largely on consensus recommendations 
from the Team, included the expansion of seasonal and temporal 
requirements within the Plan's management areas, the incorporation of 
additional management areas, and the creation of a consequence closure 
strategy in which the use of gillnet gear would be prohibited in three 
closure areas off the coast of New England if target rates of harbor 
porpoise bycatch were exceeded.
    Detailed background information on the development of the 
consequence closure strategy was provided in the proposed rule (78 FR 
52753, August 26, 2013) for this action and is not repeated here.

Consequence Closure Area Monitoring

    Consequence closure area monitoring began with the start of the 
first full management season after implementation of the 2010 
amendments. The first monitoring season occurred from September 15, 
2010, through May 31, 2011, and the second occurred from September 15, 
2011, through May 31, 2012. During this time, the two-year average 
observed harbor porpoise bycatch rate for the areas associated with the 
Coastal Gulf of Maine Closure Area exceeded the target bycatch rate, 
triggering the implementation of the Coastal Gulf of Maine Closure Area 
(Figure 1). During management seasons two and three (September 15, 
2011, through May 31, 2012, and September 15, 2012, through May 31, 
2013, respectively), preliminary analysis of the raw observed bycatch 
data indicated that the two-year average observed harbor porpoise 
bycatch rate for the area associated with the Cape Cod South Expansion 
and Eastern Cape Cod Closure Areas appeared to exceed the target 
bycatch rate, which would have triggered the implementation of these 
two closures beginning February 1, 2014.

[[Page 61822]]



Identifying a Need for Modifying the Plan

    The consequence closure target bycatch rates were based on the 
number of observed harbor porpoises caught per metric tons of fish 
landed between 1999 and 2007 within the areas subject to a closure. 
Since the advent of sectors, the overall fishing effort generally 
remained the same and the number of harbor porpoise caught actually 
decreased and is below the stock's potential biological removal (PBR) 
level (Table 1). However, because fish landings also decreased, the 
observed bycatch rates increased above the closure area target bycatch 
rates resulting in the triggering of the closures. As stated 
previously, the bycatch rate trigger was intended to function such that 
the triggering of it meant that the overall bycatch of harbor porpoise 
was above PBR. Given the overall reductions in fish landings, however, 
this calculation no longer holds true.
    Preliminary data indicate that the annual 2010-2012 harbor porpoise 
bycatch estimates are below PBR, and that the 5-year average 
incorporating the most recent data from 2011-2012 is also below PBR.

                                    Table 1--Recent Harbor Porpoise Population Abundance, PBR, and Bycatch Estimates
                              Year                                      2009 \1\              2010 \2\              2011 \3\              2012 \3\
Population Abundance (coefficient of variance)..................    89,054 (CV = 0.47)    79,883 (CV = 0.32)    79,883 (CV = 0.32)    79,883 (CV = 0.32)
Potential Biological Removal Level..............................                   701                   706                   706                   706
Annual U.S. Gillnet Bycatch Estimate............................                   792                   646                   396                   340
5-Year Average U.S. Gillnet Bycatch Estimate....................                   877                   786                   671                   630
\1\ Waring et al. 2012.
\2\ Waring et al. 2013.
\3\ C.D. Orphanides, personal communication, September 16, 2013.

[[Page 61823]]

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

Comments and Responses

    NMFS published the proposed rule amending the Plan in the Federal 
Register on August 26, 2013 (78 FR 52753). Upon its publication, NMFS 
issued a press email announcing the rule; posted the proposed rule on 
the Plan 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 15-day public comment period, which 
ended on September 10, 2013. NMFS received seven comments via 
facsimile, letter, or electronic submission. All comments received were 
thoroughly reviewed by NMFS. The comments addressed several topics, 
such as Team deliberations, bycatch reduction goals, and the Other 
Special Measures provision of the Plan. The comments received are 
summarized below, followed by NMFS's responses.

Length of Comment Period

    Comment 1: Two commenters requested an extension of the 15-day 
comment period.
    Response: NMFS believes that the length of the 15-day comment 
period was adequate given the simplicity of the analysis support the 
proposed rule. This action seeks to remove an inappropriately triggered 
fishing closure that was based on an obsolete trigger to prevent 
unnecessary economic impacts from occurring prior to the closure's 
start on October 1, 2013. A 15-day period provides both an adequate 
length of time for comment and allowed an expedient implementation of 
this final rule.

Economic Impacts of Closure

    Comment 2: One commenter described how the closure in Southern New 
England would negatively affect winter income. This commenter stated 
changes in the groundfish fishery accompanied by a high fuel cost and 
lower fish prices have reduced overall effort and gear in the water.
    Response: Although NMFS has not formally closed the Eastern Cape 
Cod and Cape Cod South Consequence Closure Areas, NMFS agrees that such 
a closure would result in a negative economic impact from the 
inappropriate triggering of the consequence closure areas within the 
Southern New England Management Area.

Support for Elimination of the Consequence Closure Strategy

    Comment 3: Two commenters supported eliminating the existing 
consequence closure strategy while continuing Team deliberations to 
further revise the Plan. Both noted that flaws in the strategy had been 
identified by the fishing industry and the Team, yet the closures had 
been recently triggered despite positive signs in harbor porpoise 
population trends.
    Response: NMFS agrees with both the need to remove the consequence 
closure strategy from the Plan and the goal to continue Team 
discussions of alternative management options.

Use of Other Special Measures

    Comment 4: Three commenters supported the use of the Other Special 
Measures provision in consultation with the Team to modify the Plan. 
All noted that this provision provides NMFS flexibility to modify the 
Plan in a timely fashion should the need arise.
    Response: NMFS agrees with these comments regarding the need for 
Team input should issues regarding the use of the Other Special 
Measures provision of the Plan arise and has amended that provision in 
this final rule.

Modification of the Consequence Closure Strategy

    Comment 5: One commenter stated that the justification for the 
consequence closure strategy still exists, and rather than eliminating 
it NMFS, should consider modifying it. The commenter noted that the 
Team agreed that the existing closure boundaries and time frames were 
appropriate and perhaps the trigger should be modified.
    Response: The notion of keeping the current consequence strategy 
boundaries and time frames intact, but developing a revised trigger for 
the consequence closure strategy was discussed by the Team at multiple 
meetings in 2013. However, the current action to remove the consequence 
closure strategy in its entirety was chosen because the Team could not 
develop a viable alternative during its deliberations. NMFS and the 
Team will continue to discuss the efficacy of the consequence strategy, 
including discussions concerning closure triggers.
    Comment 6: One commenter was concerned that there is a lack of a 
consequence measure in the mid-Atlantic. If bycatch levels in the mid-
Atlantic region increase or hinder progress in achieving the Plan's 

[[Page 61824]]

mortality rate goal, it could trigger consequence closures in New 
England that would affect New England fishermen rather than those in 
the mid-Atlantic that prompted the closures.
    Response: The lack of consequence measures in the mid-Atlantic 
region was discussed during the Team's 2013 deliberations, but no clear 
measure emerged from the discussions. NMFS acknowledges the concerns of 
the commenter and suggests that removing the current consequence 
closure strategy serves to prevent such a scenario from occurring in 
the short-term. In the long-term, NMFS and the Team will continue to 
closely monitor harbor porpoise bycatch in all fisheries throughout the 
species' range.
    Comment 7: One commenter stated that the consequence closure 
strategy should be retained due to chronic non-compliance and 
fluctuating harbor porpoise mortality levels. The commenter referred to 
an earlier NMFS decision to shift the consequence closure from fall 
2012 to winter 2103 suggesting that the increase in mortality that 
occurred after the shift indicates that eliminating a consequence 
closure encourages non-compliance.
    Response: Harbor porpoise bycatch in U.S. gillnet fisheries has 
been reduced from an estimated 646 porpoises in 2010 to an estimated 
340 porpoises in 2012, well below the stock's PBR level of 706 
porpoises. NMFS believes that continuing with the current consequence 
closure strategy that is based on an obsolete trigger will create an 
unnecessary economic burden while resulting in a limited conservation 
gain. To address poor levels of pinger compliance, NMFS is increasing 
its enforcement effort. NMFS will continue to monitor both harbor 
porpoise bycatch and Plan compliance data to ensure that these continue 
on their current trends.

Zero Mortality Rate Goal

    Comment 8: One commenter stated that the ultimate mandate of any 
proposed measure must be to achieve the zero mortality rate goal 
(ZMRG), and that success in reducing bycatch to below the PBR level, an 
interim goal, is not a sufficient reason to disregard the consequence 
closure strategy. Instead this commenter suggested that the strategy 
trigger be replaced with PBR-based triggers that would decrease bycatch 
in a stepwise fashion towards the ultimate goal of ZMRG. Another 
commenter expressed similar views and stated support for a ratcheting 
approach based on mortality estimates that would allow the agency to 
achieve its statutory mandates.
    Response: NMFS acknowledges that there may be alternatives to the 
consequence closure strategy and these should continue to be explored 
by the Team. However, since no clear consensus alternative arose during 
Team meetings in 2013, NMFS is removing the consequence closure 
strategy and will continue to discuss the efficacy of some form of 
consequence strategy with the Team. NMFS and the Team have formed 
Monitoring and Enforcement Work Groups to facilitate these discussions.
    Comment 9: One commenter stated that U.S. fisheries have not 
reached the 2001 MMPA goal of reaching ZMRG level (10% of PBR) for 
harbor porpoise, yet the Agency proposes to eliminate key conservation 
protections without substituting any substantive measures to ensure 
further mortality declines towards ZMRG.
    Response: NMFS acknowledges that the Plan has not reached ZMRG. 
However, harbor porpoise bycatch in U.S. gillnet fisheries is declining 
significantly below the PBR level of 706 porpoises to an estimated 340 
porpoises per year in 2012. In addition, the consequence closure was 
implemented as a backstop management measure to encourage compliance 
with Plan pinger requirements. The consequence closure strategy was not 
developed as a means for reducing harbor porpoise bycatch to reach 
    Comment 10: One commenter stated that NMFS proposes to rely on 
enforcement to increase compliance, but did not think this is an 
adequate substitute and will not reduce serious injury and mortality. 
The commenter referred to information presented to the Team showing 
that observers have documented individual vessels violating pinger 
requirements with no subsequent enforcement action taken. The commenter 
further stated that it is premature for the agency to assume it will be 
able to increase enforcement to an extent that will result in greater 
    Response: NMFS disagrees and is confident that the revised 
enforcement strategy developed in consultation with the Team will 
adequately improve compliance with pinger requirements. The revised 
strategy specifically focuses on pinger requirements under the Plan.
    Comment 11: One commenter stated that the proposed rule and EA do 
not discuss the MMPA's ZMRG long-term goal or explain how the rule will 
ensure that bycatch levels remain below PBR.
    Response: NMFS disagrees and notes that there has been significant 
progress toward meeting the Plan's MMPA goals. Harbor porpoise bycatch 
has been significantly reduced below the stock's PBR level and NMFS 
believes that current monitoring and law enforcement efforts will 
continue to ensure the effectiveness of the Plan in further reducing 
harbor porpoise bycatch.

Objection to Characterization of TRT Meeting

    Comment 12: One commenter objected to language in the proposed rule 
stating that a majority of the Team recommended eliminating the current 
consequence closure strategy from the Plan, and continuing Team 
discussions on what other actions should be taken in lieu of the 
consequence closure to ensure compliance with pinger requirements. The 
commenter believes this statement mischaracterizes the Team's 
deliberations, and that it is inappropriate to suggest that a majority 
of the Team support a measure unless that supports reflects a majority 
of all members of the Team. The commenter stated that during the 
meeting several members left prior to the Team's deliberation on NMFS' 
proposal to remove the consequence closure strategy.
    Response: The statement that a majority of Team members voted in 
favor of the current action is an accurate characterization of the 
events of the TRT meeting. A quorum was present at the May 2013 meeting 
during which the vote occurred, even though members who left the 
meeting before the end missed their opportunity to participate in the 
voting process. In addition, NMFS received no objections to the vote 
following the May 2013 meeting or during the June 2013 Team 
    Comment 13: One commenter stated that it was inappropriate for NMFS 
to discuss in the rule only the elements and views on the NMFS proposal 
to remove the consequence closure strategy, but not the elements of the 
other proposals considered by the Team during its last meeting.
    Response: During the Team meetings in 2013, no clearly-defined 
alternatives to the consequence closure strategy emerged from the Team 
nor were voted upon. If a clearly-defined alternative had emerged 
during those meetings, NMFS would have included it within the analyses 
supporting this action. NMFS is committed to continuing work with the 
Team to develop any additional take reduction measures to achieve Plan 

Concerns With Data Used to Assess Impact of Bycatch on Porpoises

    Comment 14: One commenter stated that language in the EA asserts 
that the

[[Page 61825]]

expanded pinger requirements of the 2010 Plan amendments were 
successful and it is reasonable to assume that bycatch is likely to 
stay low, obviating the need for consequence closures. However, the 
commenter states that NMFS neglects to point out that it is the failure 
of the industry to use the correct complement of functional pingers 
that underlies the patterns of varying bycatch levels.
    Response: NMFS agrees that current harbor porpoise bycatch 
reductions are largely due to the expansion of management measures 
implemented in the 2010 final rule amending the Plan. However, NMFS 
believes that changes in levels of compliance with pinger requirements 
resulted in fluctuating harbor porpoise bycatch levels. Concerns by 
both NMFS and the Team regarding pinger compliance have resulted in the 
revised law enforcement strategy discussed earlier.
    Comment 15: One commenter stated that NMFS fails to account for all 
bycatch in the proposed rule and EA stating that the impacts of 
Canadian takes on the Gulf of Maine stock of harbor porpoise is not 
considered in the rule or EA. The commenter stated that a proper 
accounting of fishery takes relative to PBR must include mortalities 
from U.S. gillnet fisheries, other U.S. fisheries and Canadian 
fisheries that affect the same stock.
    Response: NMFS disagrees with the statement that bycatch in 
Canadian fisheries is not accounted for. Annual marine mammal stock 
assessment reports published by the Northeast Fisheries Science Center 
include estimates of harbor porpoise bycatch in Canadian fisheries. 
However, the mandate of the Team and the Plan is to address harbor 
porpoise bycatch in U.S. commercial fisheries. Regarding harbor 
porpoises, this mandate primarily includes Northeast sink and mid-
Atlantic gillnet fisheries.

NEPA Comments on the Draft Environmental Assessment

    Comment 16: One commenter stated that NMFS failed to properly 
define the purpose and need in the EA. The commenter felt that the 
purpose and need was unreasonably narrow, leading to a narrow range of 
alternatives. The commenter suggested that NMFS narrowly defined the 
purpose and need in order to rationalize a pre-determined decision. The 
commenter asserted that NMFS should have focused its purpose and need 
on objectives and duties under the MMPA to conserve marine mammals and 
ensure bycatch rates achieve ZMRG.
    Response: The purpose and need statement has been revised in the 
final EA to provide greater clarity, but NMFS disagrees with the 
commenter regarding the intended purpose of this action. Under NEPA, 
NMFS has the discretion to describe a proposed action's purpose and 
need in any way that meets our statutory authority. NMFS undertook the 
proposed action in response to information indicating that the 
consequence closures are not achieving their intended purpose as 
backstop measures to promote pinger compliance. Under current plan 
regulations, harbor porpoise bycatch is trending downward and declining 
well below the PBR level.
    Comment 17: One commenter noted that NMFS only considers two 
options as alternatives in the EA, and stated that NMFS has failed to 
rigorously explore and objectively evaluate all reasonable 
    Response: NEPA calls for agencies to evaluate all reasonable 
alternatives, which include those that may be reasonably carried out. 
However, the discussion of alternatives does not need to be exhaustive. 
When determining whether it was necessary to take this action, the Team 
and NMFS considered the best scientific information available. This 
information indicates that the consequence closures are not functioning 
properly and have been inappropriately triggered. Given the negative 
economic impacts of the inappropriately triggered consequence closures 
and the development of a law enforcement plan focused on improved 
pinger compliance, NMFS determined that it was necessary to consider 
taking immediate action to remove the closures. Including and assessing 
additional alternatives that do not address the need to act immediately 
would fail to meet the purpose and need of this action. NMFS will 
continue working with the Team to determine the best approach to 
developing any appropriate replacement measures to the consequence 
closure strategy.
    Comment 18: One commenter stated that there were future actions and 
foreseeable impacts that had not been fully considered in the EA.
    Response: The cumulative effects analysis of the final EA has been 
revised to address some of these concerns. This includes more detail 
regarding recent developments in wind energy and under the Spiny 
Dogfish Fishery Management Plan. However, the discussion of the Omnibus 
Habitat Amendment was not altered because the Amendment and its draft 
environmental impact statement remain under development at this time. 
Until the New England Fishery Management Council has finalized the 
range of alternatives and analyzed the environmental consequences of 
that action, the impacts are uncertain. Therefore, it is not possible 
to evaluate the potential impacts to harbor porpoise at this time.


    The Office of Management and Budget (OMB) has determined that this 
action is not significant for the purposes of Executive Order 12866.
    All of the entities (fishing vessels) affected by this action are 
considered small entities under the Small Business Administration (SBA) 
size standards for small fishing businesses. On June 20, 2013, the SBA 
issued a final rule revising the small business size standards for 
several industries effective July 22, 2013 (78 FR 37398). The rule 
increased the size standard for Finfish Fishing from $4.0 to $19.0 
million, Shellfish Fishing from $4.0 to $5.0 million, and Other Marine 
Fishing from $4.0 to $7.0 million. NMFS has determined that the new 
size standards do not affect the analyses prepared for this action. The 
fisheries affected by this final rule are the Northeast sink gillnet 
and Mid-Atlantic gillnet fisheries. The population of vessels that are 
affected by this action includes commercial gillnet vessels fishing in 
state and federal waters from Maine to New York.
    The Chief Counsel for Regulation of the Department of Commerce has 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that this final rule would not have a significant 
economic impact on a substantial number of small entities. Economic 
impacts for this action were evaluated as part of the 2009 EA that 
supported the most recent Plan amendments published as a final rule on 
February 19, 2010 (75 FR 7383). Although changes to the fishery have 
occurred since the final rule, this analysis is used to illustrate the 
difference in economic impacts between the preferred action and the 
status quo. Although overall commercial landings have changed since 
2009, the number of vessels and level of overall fishing effort have 
remained relatively constant. Therefore, NMFS believes that these data 
provide a basis for concluding that this action, removing the 
consequence closures, will not have a significant impact on a 
substantial number of small entities.
    The 2009 EA estimated economic impacts of the preferred alternative 
(which was adopted in the final rule) before and after triggering the 
three consequence closure areas. The EA estimated that triggering the 
three closures (now the status quo) would

[[Page 61826]]

impact 29.7% (290 vessels) of the total gillnet fleet. Revenues for the 
affected vessels were also estimated to be reduced by 2-28% ($2,600-
$26,400) and 1-25% ($1,500-$15,300) for small (<40ft) and large (>40ft) 
vessels, respectively. By removing the regulations implementing these 
consequence closure areas from the Plan, this action would prevent this 
loss of revenue from occurring. As a result, an initial regulatory 
flexibility analysis is not required and has not been prepared.
    This final rule waives the typical 30-day delayed effectiveness 
period and is effective immediately. The 30-day delay period of 5 
U.S.C. 553(d) may be waived for good cause. The contents of this action 
serve to remove existing commercial fishing restrictions and to prevent 
negative economic impacts from otherwise occurring as the Coastal Gulf 
of Maine closure Area would have been effective beginning October 1, 
2013. Delaying the effectiveness of this rule is contrary to the public 
interest, because any delay will prevent additional fishery activities, 
thereby reducing revenues, and provide no meaningful benefit to the 
harbor porpoise. Accordingly the 30-day delay in effectiveness is both 
unnecessary and contrary to the public interest, and this rule will 
become effective immediately.


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

List of Subjects in 50 CFR Part 229

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

    Dated: September 30, 2013.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries, performing the functions and 
duties of the Deputy Assistant Administrator for Regulatory Programs, 
National Marine Fisheries Service.

    For the reasons stated in the preamble, 50 CFR part 229 is amended 
as follows:


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

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

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

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

* * * * *
    (f) Other special measures. The Assistant Administrator may, after 
consultation with the Take Reduction Team, revise the requirements of 
this section through notification published in the Federal Register if:
    (1) NMFS determines that pinger operating effectiveness in the 
commercial fishery is inadequate to reduce bycatch below the stock's 
PBR level.
    (2) NMFS determines that the boundary or timing of a closed area is 
inappropriate, or that gear modifications (including pingers) are not 
reducing bycatch to below the PBR level.
* * * * *
[FR Doc. 2013-24278 Filed 9-30-13; 4:15 pm]