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

SUPPLEMENTARY INFORMATION:

Background

Due to high levels of incidental take of harbor porpoise ( Phocoena phocoena ) 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 et al., 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 et al., 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 requirements of the Biological Opinion.

The final rule to implement the Sturgeon Action Plan was published on December 18, 2024 (89 FR 102834) and contains area-based gear requirements and overnight soak prohibitions for vessels fishing with gillnets in the monkfish and spiny dogfish fisheries to reduce bycatch of Atlantic sturgeon. The Sturgeon Action Plan's requirements for vessels fishing for spiny dogfish involve overnight soak prohibitions and are not relevant to this rule. The Sturgeon Action Plan's gear requirements are a suite of characteristics that together are defined as "low-profile gillnet gear" (50 CFR 648.2) and are required by vessels fishing under federally permitted monkfish days-at-sea within the New Jersey Atlantic Sturgeon Bycatch Reduction Area (New Jersey Polygon or NJP, defined in 50 CFR 648.91(d)) beginning on January 1, 2026. However, characteristics of the low-profile gillnet gear are inconsistent with one of the current measures, twine size, in the HPTRP in the Mid-Atlantic.

The NJP in the Sturgeon Action Plan is wholly encompassed by management areas designated in the HPTRP, identified specifically as the Waters off New Jersey Management Area (WNJMA, see figure 1). The WNJMA also contains within it two smaller HPTRP management areas, identified as Mudhole North and Mudhole South, that have the same gear modification requirements, but with different closure dates in the same January to April timeframe; they are parts of the WNJMA, and any change to the WNJMA applies to both Mudholes. The HPTRP requires gillnets in the WNJMA to employ specific gear modifications intended to reduce harbor porpoise bycatch, including a minimum twine diameter of 0.9 millimeters (mm) from January 1 to March 31 and from April 21 to April 30 in all large mesh (7-18 inches; 17.78-45.72 cm) gillnet gear. The HPTRP minimum twine size requirement of 0.9 mm in the Mid-Atlantic conflicts with the new definition in the Monkfish FMP of "low-profile gillnet gear," which includes a twine size requirement of 0.81 mm.

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This discrepancy between requirements in the Monkfish FMP and the HPTRP prompted a review of the current HPTRP gear restrictions and history.

When the HPTRP was implemented in 1998, the Mid-Atlantic coastal gillnet fishery consisted of both local Mid-Atlantic vessels and New England vessels that fished in Mid-Atlantic waters during the winter months. The New England vessels fishing in the Mid-Atlantic region used a finer twine size  ⁽¹⁾ and more nets per string than the local Mid-Atlantic vessels. Data indicated that the fine twine gear used by New England vessels was associated with a higher level of harbor porpoise bycatch than the gear used by local fishermen in the Mid-Atlantic. For that reason, the HPTRP employed gear modifications to reflect locally prevailing practices in the Mid-Atlantic (63 FR 48670, September 11, 1998). Among those requirements was a 0.9-mm minimum twine size for large-mesh (7-18 inches; 17.78-45.72 cm) gillnets, which had lower harbor porpoise bycatch than hauls targeting monkfish using smaller twine sizes (Palka 1997). The HPTRP also set a 0.81-minimum twine size for small-mesh (>5 and <7 inch; >12.7 and <17.78 cm) gillnets in the Mid-Atlantic. Because none of the gear characteristics alone were strongly correlated with reduced bycatch, the HPTRP combined a number of measures to achieve the bycatch reduction goal in the Mid-Atlantic; however, smaller twine size (such as 0.62 mm and 0.66 mm) and floatline length appeared to be the predominant gear characteristics correlated with harbor porpoise bycatch in the Mid-Atlantic.

As noted above, when the minimum twine size requirement for large-mesh gillnet gear was established in the HPTRP in 1998, there were not enough data to distinguish the effect of twine size as opposed to other factors like soak time and floatline length, on harbor porpoise bycatch. Now, 27 years after the rule was implemented, we still expect that a combination of factors influence the rate of bycatch of harbor porpoise in gillnet gear; the role that twine size plays in affecting harbor porpoise bycatch rates remains unclear. Currently, there is a low rate of observer coverage in mid-Atlantic gillnet fisheries, ⁽²⁾ and observed bycatch has been very low in the Mid-Atlantic region in recent years, with a mean combined annual mortality of 10 from 2017 through 2021 (Hayes et al., 2023). In addition, 0.81-mm twine in large mesh gear has not been observed since 2016, and was rare before that, so there are few data for comparison. Finally, there are fewer harbor porpoises present in the Mid-Atlantic from January to May due to changes in habitat use. Given all of these constraints, there is some uncertainty in how this small change (0.9 mm to 0.81 mm, a change of only 0.09 mm) in twine size may affect harbor porpoise bycatch.

Analysis of the available data indicates that the combinations of gear configurations and environmental variables, along with relatively low bycatch rates, will show a barely perceptible effect in the data, if there is one, as a result of this twine size change. Scientists have noted that it could take several years of observation to see any effect of this small change in minimum twine size (Precoda et al., 2025).

In June 2024, NMFS convened the Team to monitor implementation of the HPTRP and that meeting was open to the public. At that meeting, the Team discussed the changes to the Monkfish FMP, and did not voice any concerns about NMFS modifying the HPTRP. Members of the Team also supported changing the minimum twine size to 0.81 mm throughout the HPTRP regulated areas in the Mid-Atlantic to minimize the burden on fishermen who might have to otherwise change their nets when fishing outside the NJP. This rule therefore modifies the minimum required twine size for large-mesh gillnet gear in all HPTRP management areas in the Mid-Atlantic, so that fishermen will not have to maintain two sets of gear.

A technical memo summarizing the information presented to the Team was published after the meeting (Precoda et al., 2025). The memo used historical observer gillnet data from waters including and extending beyond the NJP and developed two generalized additive models, with different definitions for bycatch, using different data sets to evaluate the potential impact on harbor porpoise bycatch of this change to a minimum 0.81-mm diameter twine in the HPTRP management areas in the Mid-Atlantic (Precoda et al., 2025). The analysis showed that the statistically significant factors affecting harbor porpoise bycatch included year, soak duration, longitude, and combinations of twine size and soak duration or twine size and month, but twine size on its own was not significant (Precoda et al., 2025). After accounting for these other influential factors, statistical models showed that harbor porpoise bycatch in 12-inch (30.48-cm) mesh gillnets observed during 1994-2022 with 0.81-mm twine size tended to be higher than in gillnets with 0.9-mm twine size, though that difference was larger before 2005 than in the more recent 2012-2022 timeframe. There is no evidence that changing twine size from 0.9 mm to 0.81 mm would, on its own, produce a large impact on harbor porpoise bycatch, such that the levels of harbor porpoise bycatch in the Mid-Atlantic gillnet fishery would meaningfully change from current levels (Precoda et al., 2025).

Summary of Change to the Harbor Porpoise Take Reduction Plan

This interim final rule amends the gillnet gear modification requirements in § 229.34, the Mid-Atlantic portion of the HPTRP, to reduce the minimum allowable twine size diameter for nets with a mesh size of greater than 7 inches (17.78 cm) to a diameter of 0.81 mm from the current minimum allowable twine size diameter of 0.9 mm. This deregulatory amendment would not require fishermen to make any changes to their gear but would allow fishermen who use the low-profile gillnet gear required by the Monkfish FMP to also be in compliance with the MMPA while fishing in the NJP. In order to provide fishermen fishing in the NJP with maximum flexibility, the change in the minimum twine size requirement will apply to all the managed areas of the HPTRP within the Mid-Atlantic, as suggested by a member of the Team. This suggestion was supported by several others, and no Team member voiced an objection.

This action does not require fishermen to change their gear, and therefore does not impose an economic impact. The economic impact to fishermen of the new low-profile gillnet gear requirements, including a change to the 0.81-mm twine size, within the NJP is thoroughly discussed in the EA for the Joint Framework Action to Reduce Sturgeon Bycatch in Monkfish and Spiny Dogfish Fisheries available on our website (https://www.fisheries.noaa.gov/action/framework-adjustment-15-monkfish-fishery-management-plan-framework-adjustment-6-spiny ).

For fishermen who do not fish in the NJP, the change to the HPTRP to allow a slightly smaller minimum twine size is not expected to have any negative economic effects. The Monkfish FMP modifications and this rule do not impose any new requirements on fishermen fishing outside the NJP. This action allows additional flexibility by increasing the range of twine sizes fishermen may use in a broader area, so that fishermen do not need to modify gear when moving outside of the NJP in order to remain in compliance with the HPTRP.

While the rule will not impose an economic impact, taking no action would have economic consequences. If no action is taken to modify the minimum twine size requirements in the HPTRP, federally permitted monkfish fishermen currently fishing in the NJP, which is within the HPTRP's WNJMA, would be unable to comply with the conflicting regulations between January and April, effectively rendering the NJP as a closed area. Based on 2021 through 2024 Catch Accounting and Monitoring System (CAMS) data from the NMFS Greater Atlantic Regional Fisheries Office (GARFO), an average of nine federally permitted monkfish vessels fishing large-mesh fixed-gear gillnet operated in the NJP between January and April each year. On average, these vessels collectively generated $156,640 (in 2024 dollars) in revenue from the NJP during these four months. Additional economic impacts of taking no action would depend on how fishermen respond to the regulatory environment. Some fishermen may choose to modify their gear in accordance with the Monkfish FMP. By doing so, they would be excluded from fishing within the HPTRP's WNJMA from January to April. Based on 2021-2024 GARFO CAMS data, an average of 12 federally permitted monkfish vessels fishing large-mesh fixed-gear gillnet operated in the WNJMA during those months each year. On average, these vessels collectively generated $279,174 (in 2024 dollars) in revenue from the WNJMA during these four months. However, it is unlikely all vessels would make the same gear modification decision. The economic impacts would likely be a portion of this value, depending on the number and revenues of vessels undertaking the modification to gain access to the NJP during May through December.

Alternatively, fishermen could decide not to alter their gear and remain in compliance with the existing HPTRP. If so, fishermen would be functionally excluded from the NJP for the duration of the year. Based on 2021-2024 GARFO CAMS data, an average of 14 federally permitted monkfish vessels fishing large-mesh fixed-gear gillnet operated in the NJP. On average, these vessels collectively generated $427,863 (in 2024 dollars) in revenue from the NJP. However, it is unlikely all vessels would make the same gear modification decision. The economic impacts of this possibility would be a portion of this value, depending on the number and revenues of vessels who do not change their gear to maintain unrestricted access to the WNJMA. While there are areas outside of the NJP where federal monkfish gear is currently fished, fishermen would potentially have to displace gear upwards of 20 additional miles (32 kilometers) from shore, affecting the time at sea and fuel costs (Miller et al., 2024a, Miller et al., 2024b). For more details on the economic analyses and underlying assumptions, please see section 6.7 in the associated EA for this action, as well as sections 5.5, 6.6, and 7.1 of the Joint Framework Action to Reduce Sturgeon Bycatch in Monkfish and Spiny Dogfish Fisheries EA (NEFMC and MAFMC 2024).

This modification of the HPTRP exercises NMFS' discretion and authority under the MMPA and is needed to provide consistency of MMPA regulations with Framework Adjustment 15 to the Monkfish FMP and Framework Adjustment 6 to the Spiny Dogfish FMP (89 FR 65576, August 12, 2024), which are intended to minimize bycatch of Atlantic sturgeon, including distinct population segments listed as threatened or endangered under the ESA. The rule will continue to reduce mortality and serious injury of harbor porpoise through the gear modifications and closures in place, congruent with the MMPA section 118 short-term goal of remaining below PBR, and is not expected to affect the trajectory with respect to the long-term goal of the Plan of achieving a zero mortality and serious injury rate.

Classification

The NMFS Assistant Administrator has determined that the rule is consistent with the HPTRP, with the rulemaking authority under MMPA section 118(f), and with other applicable laws.

Executive Order 12866 and Executive Order 14192

This rule has been determined to be not significant for purposes of Executive Order 12866. The rule is considered an Executive Order 14192 deregulatory action.

Administrative Procedure Act

In promulgating this change to the HPTRP, we find that there is good cause to waive prior notice and an opportunity for public comment otherwise required pursuant to 5 U.S.C. section 553 because notice and comment would be contrary to public interest (5 U.S.C. 553(b)(B)). In addition, there is an exigent need to implement this action to relieve restrictions on the regulated community and mitigate economic harm caused by an unintended closure of the New Jersey Atlantic Sturgeon Bycatch Reduction Area (NJP) to fishing as a result of conflicting regulations. In order to immediately relieve this restriction, this rule is effective upon publication pursuant to 5 U.S.C. 553 (d)(1). Specifically, beginning January 1, 2026, Framework Adjustment 15 to the Monkfish Fishery Management Plan (FMP) requires federally permitted monkfish vessels, fishing in the NJP, to use 0.81-mm twine size while the existing HPTRP regulations require a minimum twine size of 0.9 mm in the same area from January through April each year.

An average of nine federally permitted monkfish vessels fishing large-mesh fixed-gear gillnet operate in the NJP between January and April each year (the time and area that would be subject to closure), collectively generating approximately $156,640 (in 2024 dollars) in revenue during these four months and accounting for approximately 15 percent of the annual monkfish effort in the Waters off New Jersey Management Area. Any delay in amending the HPTRP to harmonize with the Monkfish FMP requirement will result in substantial economic impacts to these small fishing businesses and businesses that depend on them.

In addition, the public has had ample opportunity to comment on the Monkfish FMP 0.81 mm twine size requirement. There were approximately 20 public meetings with opportunities for public comment related to Monkfish Framework Adjustment 15 (see Table 50 in the Environmental Assessment for the Joint Framework Action to Reduce Sturgeon Bycatch in Monkfish and Spiny Dogfish Fisheries). In addition, the proposed rule for Monkfish Framework Adjustment 15, which was published on August 12, 2024 (89 FR 65576), was open for a 30-day public comment period. During the public comment period, NMFS received no comments on this change as it related to harbor porpoise take. ⁽³⁾ NMFS also notified, via email, all members of GARFO's Marine Mammal/Endangered Species and general interest email lists (10,149 recipients) about a Harbor Porpoise Take Reduction Team meeting on June 28, 2024, where the proposal to change the HPTRP to a minimum 0.81-mm twine size in the Mid-Atlantic region would be discussed. In addition, NMFS posted information about the meeting on its website, including a registration link for non-Team members to observe the meeting. At that meeting, the Harbor Porpoise Take Reduction Team received a briefing and asked questions about the Monkfish Framework Adjustment 15 low-profile gear requirement (including the 0.81-mm twine size) and Team members voiced no concerns about NMFS modifying the HPTRP to avoid this conflict in regulations. Members of the Team also supported changing the minimum twine size to 0.81 mm throughout the HPTRP's Mid-Atlantic regulated areas to minimize the burden on fishermen who might have to otherwise change their nets when fishing outside the NJP. Members of the public in attendance were invited to email any additional comments to the Harbor Porpoise Take Reduction Team coordinator. No comments were submitted.

This rule relieves a restriction by removing a conflict between the Monkfish FMP and the HPTRP and will allow fishermen to continue fishing without interruption. By changing the minimum twine size required in large-mesh gillnets in the existing HPTRP management areas in the Mid-Atlantic to a minimum diameter of 0.81 mm rather than a minimum of 0.9 mm, this regulation does not require fishermen to make any changes. Federally permitted monkfish vessels will have changed their gear to be consistent with the Monkfish FMP requirements. This rule allows fishermen to be in compliance with both the HPTRP and the Monkfish FMP's requirement to use low-profile gear (with a twine size of 0.81 mm) when fishing in the NJP, does not require fishermen who fish outside of the NJP to make any changes, and also allows fishermen who fish both inside and outside of the NJP to maintain the gear of their choosing. Vessels need the immediate implementation of this measure to authorize them to continue fishing in the areas and times of year they have been fishing, and will continue to fish in accordance with the new gear requirements implemented by the Monkfish FMP beginning January 1, 2026. It is in the public interest that commercial fishing vessels and the businesses that depend on them avoid the economic impacts of the unintended closure that will result if this rule is delayed.

National Environmental Policy Act

An Environmental Assessment has been prepared, analyzing the impacts on the human environment that would result from this interim final rule and NMFS has determined that this interim final rule will not have significant environmental impacts upon implementation of the action. Upon consideration of any comments received on this interim final rule, NMFS may publish a subsequent rule confirming, modifying, or withdrawing this interim final rule.

Paperwork Reduction Act

This rule contains no information collection requirements under the Paperwork Reduction Act of 1995.

Regulatory Flexibility Act

Because a notice of proposed rulemaking and an opportunity for public participation are not required to be given for this rule by 5 U.S.C. 553(b)(B), the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) are not applicable. Accordingly, no regulatory flexibility analysis is required, and none has been prepared.

References

Hayes, S.H., E. Josephson, K. Maze-Foley, J. McCordic, P.E. Rosel, and J. Wallace. 2023. U.S. Atlantic and Gulf of Mexico Marine Mammal Stock Assessments 2022. Northeast Fisheries Science Center, Woods Hole, MA.

Miller, A., L. Solinger, B. Shank, A. Huamani, M. Duffing Romero, M. Asaro, C. Franco, M. Trego. 2024a. A decision support tool to assess risk of entanglement mortality to large whales from commercial fixed-gear fisheries in the Northwest Atlantic. U.S. Dept Commer Northeast Fish Sci Cent Tech Memo 312. 102 p.

Miller, A.S., L.K. Solinger, B. Shank, A. Huamani and M. J. Asaro. 2024b. Gearing Up:

Methods for Quantifying gear density for fixed-gear commercial fisheries in the U.S.

Atlantic. Canadian Journal of Fisheries and Aquatic Sciences. 82: 1-15.

NEFMC and MAFMC. 2024. Environmental Assessment of the Joint Framework Action to Reduce Sturgeon Bycatch in Monkfish and Spiny Dogfish Fisheries: Monkfish Framework Adjustment 15 and Spiny Dogfish Framework Adjustment 6. October 22, 2024. 248 pp.

Palka, D. 1997. Effects of Gear Characteristics on the Mid-Atlantic Harbor Porpoise Bycatch. Report to the Mid-Atlantic Take Reduction Team. Unpublished.

Precoda, K., S. Chavez-Rosales, and D. Palka. 2025. Investigating gillnet twine size and Mid-Atlantic harbor porpoise bycatch. Northeast Fisheries Science Center Reference Document 25-03. 24 pp.

For the reasons set out 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

[FR Doc. 2025-24203 Filed 12-31-25; 8:45 am]

BILLING CODE 3510-22-P

⁽¹⁾  Reported twine size in monkfish hauls with harbor porpoise bycatch were: 0.57mm (3 takes), 0.62 mm (6 takes), 0.66 mm (4 takes), 0.71 mm (1 take), 0.81 mm (1 take), and 0.90 mm (1 take) (Palka 1997).

⁽²⁾  From 2015 through 2022, observer coverage in Mid-Atlantic gillnet fisheries ranged from 1 to 13 percent (Precoda 2024; Precoda and Orphanides 2022).

⁽³⁾  The only comment that mentioned the Mid-Atlantic Plan raised concerns that the change to the minimum twine size regulation in the Mid-Atlantic Plan would not be in place by January 1, 2026, and would result in an inadvertent fishery closure that would incur negative economic impacts to the fishery (89 FR at 102836).