[Federal Register Volume 75, Number 215 (Monday, November 8, 2010)]
[Rules and Regulations]
[Pages 68468-68504]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-28073]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 229
[Docket No. 100216088-0454-02]
RIN 0648-AY69
List of Fisheries for 2011
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: The National Marine Fisheries Service (NMFS) publishes its
final List of Fisheries (LOF) for 2011, as required by the Marine
Mammal Protection Act (MMPA). The final LOF for 2011 reflects new
information on interactions between commercial fisheries and marine
mammals. NMFS must classify each commercial fishery on the LOF into one
of three categories under the MMPA based upon the level of serious
injury and mortality of marine mammals that occurs incidental to each
fishery. The classification of a fishery on the LOF determines whether
participants in that fishery are subject to certain provisions of the
MMPA, such as registration, observer coverage, and take reduction plan
requirements.
DATES: This final rule is effective January 1, 2011.
ADDRESSES: See SUPPLEMENTARY INFORMATION for a listing of all Regional
Offices. Comments regarding the burden-hour estimates, or any other
aspect of the collection of information requirements contained in this
final rule, should be submitted in writing to Chief, Marine Mammal and
Sea Turtle Conservation Division, Office of Protected Resources, NMFS,
1315 East-West Highway, Silver Spring, MD 20910, or to Nathan Frey,
OMB, by fax to 202-395-7285 or by e-mail to [email protected].
FOR FURTHER INFORMATION CONTACT: Melissa Andersen, Office of Protected
Resources, 301-713-2322; David Gouveia, Northeast Region, 978-281-9280;
Laura Engleby, Southeast Region, 727-551-5791; Elizabeth Petras,
Southwest Region, 562-980-3238; Brent Norberg, Northwest Region, 206-
526-6733; Bridget Mansfield, Alaska Region, 907-586-7642; Lisa Van
Atta, Pacific Islands Region, 808-944-2257. Individuals who use a
telecommunications device for the hearing impaired may call the Federal
Information Relay Service at 1-800-
[[Page 68469]]
877-8339 between 8 a.m. and 4 p.m. Eastern time, Monday through Friday,
excluding Federal holidays.
SUPPLEMENTARY INFORMATION:
Availability of Published Materials
Information regarding the LOF and the Marine Mammal Authorization
Program, including registration procedures and forms, current and past
LOFs, information on each Category I and II fishery, observer
requirements, and marine mammal injury/mortality reporting forms and
submittal procedures, may be obtained at: http://www.nmfs.noaa.gov/pr/interactions/lof/, or from any NMFS Regional Office at the addresses
listed below:
NMFS, Northeast Region, 55 Great Republic Drive, Gloucester, MA 01930-
2298, Attn: Marcia Hobbs;
NMFS, Southeast Region, 263 13th Avenue South, St. Petersburg, FL
33701, Attn: Laura Engleby;
NMFS, Southwest Region, 501 W. Ocean Blvd., Suite 4200, Long Beach, CA
90802-4213, Attn: Charles Villafana;
NMFS, Northwest Region, 7600 Sand Point Way NE, Seattle, WA 98115,
Attn: Protected Resources Division;
NMFS, Alaska Region, Protected Resources, P.O. Box 22668, 709 West 9th
Street, Juneau, AK 99802, Attn: Bridget Mansfield; or
NMFS, Pacific Islands Region, Protected Resources, 1601 Kapiolani
Boulevard, Suite 1100, Honolulu, HI 96814-4700, Attn: Lisa Van Atta.
What is the list of fisheries?
Section 118 of the MMPA requires NMFS to place all U.S. commercial
fisheries into one of three categories based on the level of incidental
serious injury and mortality of marine mammals occurring in each
fishery (16 U.S.C. 1387(c)(1)). The classification of a fishery on the
LOF determines whether participants in that fishery may be required to
comply with certain provisions of the MMPA, such as registration,
observer coverage, and take reduction plan requirements. NMFS must
reexamine the LOF annually, considering new information in the Marine
Mammal Stock Assessment Reports (SAR) and other relevant sources, and
publish in the Federal Register any necessary changes to the LOF after
notice and opportunity for public comment (16 U.S.C. 1387 (c)(1)(C)).
How does NMFS determine in which category a fishery is placed?
The definitions for the fishery classification criteria can be
found in the implementing regulations for section 118 of the MMPA (50
CFR 229.2). The criteria are also summarized here.
Fishery Classification Criteria
The fishery classification criteria consist of a two-tiered, stock-
specific approach that first addresses the total impact of all
fisheries on each marine mammal stock, and then addresses the impact of
individual fisheries on each stock. This approach is based on
consideration of the rate, in numbers of animals per year, of
incidental mortalities and serious injuries of marine mammals due to
commercial fishing operations relative to the potential biological
removal (PBR) level for each marine mammal stock. The MMPA (16 U.S.C.
1362 (20)) defines the PBR level as the maximum number of animals, not
including natural mortalities, that may be removed from a marine mammal
stock while allowing that stock to reach or maintain its optimum
sustainable population. This definition can also be found in the
implementing regulations for section 118 of the MMPA (50 CFR 229.2).
Tier 1: If the total annual mortality and serious injury of a
marine mammal stock, across all fisheries, is less than or equal to 10
percent of the PBR level of the stock, all fisheries interacting with
the stock would be placed in Category III (unless those fisheries
interact with other stock(s) in which total annual mortality and
serious injury is greater than 10 percent of PBR). Otherwise, these
fisheries are subject to the next tier (Tier 2) of analysis to
determine their classification.
Tier 2, Category I: Annual mortality and serious injury of a stock
in a given fishery is greater than or equal to 50 percent of the PBR
level (i.e., frequent incidental mortality and serious injuries of
marine mammals).
Tier 2, Category II: Annual mortality and serious injury of a stock
in a given fishery is greater than 1 percent and less than 50 percent
of the PBR level (i.e., occasional incidental mortality and serious
injuries of marine mammals).
Tier 2, Category III: Annual mortality and serious injury of a
stock in a given fishery is less than or equal to 1 percent of the PBR
level (i.e., a remote likelihood or no known incidental mortality and
serious injuries of marine mammals).
While Tier 1 considers the cumulative fishery mortality and serious
injury for a particular stock, Tier 2 considers fishery-specific
mortality and serious injury for a particular stock. Additional details
regarding how the categories were determined are provided in the
preamble to the final rule implementing section 118 of the MMPA (60 FR
45086, August 30, 1995).
Because fisheries are classified on a per-stock basis, a fishery
may qualify as one Category for one marine mammal stock and another
Category for a different marine mammal stock. A fishery is typically
classified on the LOF at its highest level of classification (e.g., a
fishery qualifying for Category III for one marine mammal stock and for
Category II for another marine mammal stock will be listed under
Category II).
Other Criteria That May Be Considered
In the absence of reliable information indicating the frequency of
incidental mortality and serious injury of marine mammals by a
commercial fishery, NMFS will determine whether the incidental serious
injury or mortality is ``frequent,'' ``occasional,'' or ``remote'' by
evaluating other factors such as fishing techniques, gear used, methods
used to deter marine mammals, target species, seasons and areas fished,
qualitative data from logbooks or fisher reports, stranding data, and
the species and distribution of marine mammals in the area, or at the
discretion of the Assistant Administrator for Fisheries (50 CFR 229.2).
Further, eligible commercial fisheries not specifically identified on
the LOF are deemed to be Category II fisheries until the next LOF is
published (50 CFR 229.2).
How does NMFS determine which species or stocks are included as
incidentally killed or injured in a fishery?
The LOF includes a list of marine mammal species or stocks
incidentally killed or injured in each commercial fishery. To determine
which species or stocks are included as incidentally killed or injured
in a fishery, NMFS annually reviews the information presented in the
current SARs. The SARs are based upon the best available scientific
information and provide the most current and inclusive information on
each stock's PBR level and level of interaction with commercial fishing
operations. NMFS also reviews other sources of new information,
including observer data, stranding data, and fisher self-reports.
In the absence of reliable information on the level of mortality or
injury of a marine mammal stock, or insufficient observer data, NMFS
will determine whether a species or stock should be added to, or
deleted from, the list by considering other factors such as: changes in
gear used, increases or decreases in fishing effort, increases or
decreases in the level of observer coverage, and/or changes in fishery
[[Page 68470]]
management that are expected to lead to decreases in interactions with
a given marine mammal stock (such as a fishery management plan (FMP) or
a take reduction plan (TRP)). NMFS will provide case-specific
justification in the LOF for changes to the list of species or stocks
incidentally killed or injured.
How does NMFS determine the levels of observer coverage in a fishery on
the LOF?
Data obtained from the observer program and observer coverage
levels are important tools in estimating the level of marine mammal
mortality and serious injury in commercial fishing operations. The best
available information on the level of observer coverage, and the
spatial and temporal distribution of observed marine mammal
interactions, is presented in the SARs. Starting with the 2005 SARs,
each SAR includes an appendix with detailed descriptions of each
Category I and II fishery on the LOF, including observer coverage in
those fisheries. The SARs generally do not provide detailed information
on observer coverage in Category III fisheries because, under the MMPA,
Category III fisheries are not required to accommodate observers aboard
vessels due to the remote likelihood of mortality and serious injury of
marine mammals. Fishery information presented in the SARs' appendices
includes: Level of observer coverage, target species, levels of fishing
effort, spatial and temporal distribution of fishing effort,
characteristics of fishing gear and operations, management and
regulations, and interactions with marine mammals. Copies of the SARs
are available on the NMFS Office of Protected Resources' Web site at:
http://www.nmfs.noaa.gov/pr/sars/. Information on observer coverage
levels in Category I and II fisheries can also be found in the Category
I and II fishery summary documents on the NMFS Office of Protected
Resources Web site: http://www.nmfs.noaa.gov/pr/interactions/lof/.
Additional information on observer programs in commercial fisheries can
be found on the NMFS National Observer Program's Web site: http://www.st.nmfs.gov/st4/nop/.
How do I find out if a specific fishery is in category I, II, or III?
This final rule includes three tables that list all U.S. commercial
fisheries by LOF Category. Table 1 lists all of the commercial
fisheries in the Pacific Ocean (including Alaska); Table 2 lists all of
the commercial fisheries in the Atlantic Ocean, Gulf of Mexico, and
Caribbean; and Table 3 lists all U.S.-authorized commercial fisheries
on the high seas. A fourth table, Table 4, lists all commercial
fisheries managed under applicable take reduction plans or teams.
Are high seas fisheries included on the LOF?
Beginning with the 2009 LOF, NMFS includes high seas fisheries in
Table 3 of the LOF, along with the number of valid High Sea Fishing
Compliance Act (HSFCA) permits in each fishery. As of 2004, NMFS issues
HSFCA permits only for high seas fisheries analyzed in accordance with
the National Environmental Policy Act (NEPA) and the Endangered Species
Act (ESA). The authorized high seas fisheries are broad in scope and
encompass multiple specific fisheries identified by gear type. For the
purposes of the LOF, the high seas fisheries are subdivided based on
gear type (e.g., trawl, longline, purse seine, gillnet, troll, etc.) to
provide more detail on composition of effort within these fisheries.
Many fisheries operate in both U.S. waters and on the high seas,
creating some overlap between the fisheries listed in Tables 1 and 2
and those in Table 3. In these cases, the high seas component of the
fishery is not considered a separate fishery, but an extension of a
fishery operating within U.S. waters (listed in Table 1 or 2). NMFS
designates those fisheries in Tables 1, 2, and 3 by a ``*'' after the
fishery's name. The number of HSFCA permits listed in Table 3 for the
high seas components of these fisheries operating in U.S. waters does
not necessarily represent additional effort that is not accounted for
in Tables 1 and 2. Many vessels/participants holding HSFCA permits also
fish within U.S. waters and are included in the number of vessels and
participants operating within those fisheries in Tables 1 and 2.
HSFCA permits are valid for five years, during which time FMPs can
change. Therefore, some vessels/participants may possess valid HSFCA
permits without the ability to fish under the permit because it was
issued for a gear type that is no longer authorized under the most
current FMP. For this reason, the number of HSFCA permits displayed in
Table 3 is likely higher than the actual U.S. fishing effort on the
high seas. For more information on how NMFS classifies high seas
fisheries on the LOF, see the preamble text in the final 2009 LOF (73
FR 73032; December 1, 2008).
Where can I find specific information on fisheries listed on the LOF?
NMFS developed summary documents for each Category I and II fishery
on the LOF. These summaries provide the full history of each Category I
and II fishery, including: When the fishery was added to the LOF, the
basis for the fishery's initial classification, classification changes
to the fishery, changes to the list of species or stocks incidentally
killed or injured in the fishery, fishery gear and methods used,
observer coverage levels, fishery management and regulation, and
applicable take reduction plans or teams, if any. These summaries are
updated after each final LOF. The summaries can be found under ``How Do
I Find Out if a Specific Fishery is in Category I, II, or III?'' on the
NMFS Office of Protected Resources' Web site: http://www.nmfs.noaa.gov/pr/interactions/lof/.
Am I required to register under the MMPA?
Owners of vessels or gear engaging in a Category I or II fishery
are required under the MMPA (16 U.S.C. 1387(c)(2)), as described in 50
CFR 229.4, to register with NMFS and obtain a marine mammal
authorization to lawfully take non-endangered and non-threatened marine
mammals incidental to commercial fishing operations. Owners of vessels
or gear engaged in a Category III fishery are not required to register
with NMFS or obtain a marine mammal authorization.
How do I register?
NMFS has integrated the MMPA registration process, the Marine
Mammal Authorization Program (MMAP), with existing state and Federal
fishery license, registration, or permit systems for Category I and II
fisheries on the LOF. Participants in these fisheries are automatically
registered under the MMAP and are not required to submit registration
or renewal materials directly under the MMAP. In the Pacific Islands,
Southwest, Northwest, and Alaska regions, NMFS will issue vessel or
gear owners an authorization certificate; in the Northeast and
Southeast Regions, NMFS will issue vessel or gear owners notification
of registry and directions on obtaining an authorization certificate.
The authorization certificate, or a copy, must be on board the vessel
while it is operating in a Category I or II fishery, or for non-vessel
fisheries, in the possession of the person in charge of the fishing
operation (50 CFR 229.4(e)). Although efforts are made to limit the
issuance of authorization certificates to only those vessel or gear
owners that participate in Category I or II fisheries, not all state
and Federal permit systems distinguish between fisheries as
[[Page 68471]]
classified by the LOF. Therefore, some vessel or gear owners in
Category III fisheries may receive authorization certificates even
though they are not required for Category III fisheries. Individuals
fishing in Category I and II fisheries for which no state or Federal
permit is required must register with NMFS by contacting their
appropriate Regional Office (see ADDRESSES).
How do I receive my authorization certificate and injury/mortality
reporting forms?
All vessel or gear owners that participate in Pacific Islands,
Southwest, Northwest, or Alaska regional fisheries will receive their
authorization certificates and/or injury/mortality reporting forms via
U.S. mail or with their State or Federal license at the time of
renewal. Vessel or gear owners participating in the Northeast and
Southeast Regional Integrated Registration Programs will receive their
authorization certificates and/or injury/mortality reporting forms as
follows:
1. Northeast Region vessel or gear owners participating in Category
I or II fisheries for which a State or Federal permit is required may
receive their authorization certificate and/or injury/mortality
reporting form by contacting the Northeast Regional Office at 978-281-
9328 or by visiting the Northeast Regional Office Web site (http://www.nero.noaa.gov/prot_res/mmap/certificate.html) and following the
instructions for printing the necessary documents.
2. Southeast Region vessel or gear owners participating in Category
I or II fisheries for which a Federal permit is required, as well as
fisheries permitted by the states of North Carolina, South Carolina,
Georgia, Florida, Alabama, Mississippi, Louisiana, and Texas will
receive notice of registry and may receive their authorization
certificate and/or injury/mortality reporting form by contacting the
Southeast Regional Office at 727-551-5758 or by visiting the Southeast
Regional Office Web site (http://sero.nmfs.noaa.gov/pr/pr.htm) and
following the instructions for printing the necessary documents.
How do I renew my registration under the MMPA?
In Pacific Islands, Southwest, or Alaska regional fisheries,
registrations of vessel or gear owners are automatically renewed and
participants should receive an authorization certificate by January 1
of each new year. In Northwest regional fisheries, vessel or gear
owners receive authorization with each renewed state fishing license,
the timing of which varies based on target species. In Northeast
regional fisheries, authorization certificates will be mailed directly
to all applicable State and Federal permit holders who have registered
their permits during the previous calendar year. Vessel or gear owners
who participate in these regions and have not received authorization
certificates by January 1 or with renewed fishing licenses must contact
the appropriate NMFS Regional Office (see ADDRESSES).
In Southeast regional fisheries, vessel or gear owners may receive
an authorization certificate by contacting the Southeast Regional
Office or visiting the Southeast Regional Office Web site (http://sero.nmfs.noaa.gov/pr/pr.htm) and following the instructions for
printing the necessary documents.
Am I required to submit reports when I injure or kill a marine mammal
during the course of commercial fishing operations?
In accordance with the MMPA (16 U.S.C. 1387(e)) and 50 CFR 229.6,
any vessel owner or operator, or gear owner or operator (in the case of
non-vessel fisheries), participating in a fishery listed on the LOF
must report to NMFS all incidental injuries and mortalities of marine
mammals that occur during commercial fishing operations, regardless of
the category in which the fishery is placed (I, II or III) within 48
hours of the end of the fishing trip. ``Injury'' is defined in 50 CFR
229.2 as a wound or other physical harm. In addition, any animal that
ingests fishing gear or any animal that is released with fishing gear
entangling, trailing, or perforating any part of the body is considered
injured, regardless of the presence of any wound or other evidence of
injury, and must be reported. Injury/mortality reporting forms and
instructions for submitting forms to NMFS can be downloaded from:
http://www.nmfs.noaa.gov/pr/pdfs/interactions/mmap_reporting_form.pdf
or by contacting the appropriate Regional office (see ADDRESSES).
Reporting requirements and procedures can be found in 50 CFR 229.6.
Am I required to take an observer aboard my vessel?
Individuals participating in a Category I or II fishery are
required to accommodate an observer aboard their vessel(s) upon request
from NMFS. MMPA section 118 states that an observer will not be placed
on a vessel if the facilities for quartering an observer or performing
observer functions are inadequate or unsafe; thereby, exempting vessels
too small to accommodate an observer from this requirement. However,
observer requirements will not be exempted, regardless of vessel size,
for U.S. Atlantic Ocean, Caribbean, Gulf of Mexico large pelagics
longline vessels operating in special areas designated by the Pelagic
Longline Take Reduction Plan implementing regulations (50 CFR
229.36(d)). Observer requirements can be found in 50 CFR 229.7.
Am I required to comply with any take reduction plan regulations?
Table 4 in this final rule provides a list of fisheries affected by
take reduction plans and teams. Take reduction plan regulations can be
found at 50 CFR 229.30 through 229.36.
Sources of Information Reviewed for the Final 2011 LOF
NMFS reviewed the marine mammal incidental serious injury and
mortality information presented in the SARs for all observed fisheries
to determine whether changes in fishery classification were warranted.
The SARs are based on the best scientific information available at the
time of preparation, including the level of serious injury and
mortality of marine mammals that occurs incidental to commercial
fishery operations and the PBR levels of marine mammal stocks. The
information contained in the SARs is reviewed by regional Scientific
Review Groups (SRGs) representing Alaska, the Pacific (including
Hawaii), and the U.S. Atlantic, Gulf of Mexico, and Caribbean. The SRGs
were created by the MMPA to review the science that informs the SARs,
and to advise NMFS on marine mammal population status, trends, and
stock structure, uncertainties in the science, research needs, and
other issues.
NMFS also reviewed other sources of new information, including
marine mammal stranding data, observer program data, fisher self-
reports, FMPs, and ESA documents.
The final LOF for 2011 was based, among other things, on
information provided in the NEPA and ESA documents analyzing authorized
high seas fisheries, the final SARs for 1996 (63 FR 60, January 2,
1998), 2001 (67 FR 10671, March 8, 2002), 2002 (68 FR 17920, April 14,
2003), 2003 (69 FR 54262, September 8, 2004), 2004 (70 FR 35397, June
20, 2005), 2005 (71 FR 26340, May 4, 2006), 2006 (72 FR 12774, March
19, 2007), 2007 (73 FR 21111, April 18, 2008), 2008 (74 FR 19530, April
29, 2009), 2009 (75 FR 12498, March 16, 2010), and the draft SARs for
2010 (75 FR 46912, August 4, 2010). The SARs are available at: http://
[[Page 68472]]
www.nmfs.noaa.gov/pr/sars/. State and regional abbreviations used in
the following sections include: CA (California), FL (Florida), GA
(Georgia), GMX (Gulf of Mexico), HI (Hawaii), NC (North Carolina), OR
(Oregon), SC (South Carolina), VA (Virginia), WA (Washington), and WNA
(Western North Atlantic).
Fishery Descriptions
Beginning with the final 2008 LOF (72 FR 66048, November 27, 2007),
NMFS describes each Category I and II fishery on the LOF. Below, NMFS
describes the fisheries classified as Category I or II on the 2011 LOF
that were not classified as such on a previous LOF (and therefore have
not yet been defined on the LOF). Additional details for Category I and
II fisheries operating in U.S. waters are included in the SARs, FMPs,
and TRPs, through state agencies, or through the fishery summary
documents available on the NMFS Office of Protected Resources Web site
(http://www.nmfs.noaa.gov/pr/interactions/lof/.) Additional details for
Category I and II fisheries operating on the high seas are included in
various FMPs, NEPA, or ESA documents.
WA Coastal Dungeness Crab Pot/Trap Fishery
Washington's coastal commercial crab grounds extend from the
Columbia River estuary to Cape Flattery, including Grays Harbor and
Willapa Bay. The coastal crab fishery is a limited entry fishery with
228 license holders, of which approximately 200 are active annually.
Each coastal crab license is assigned a maximum pot limit of either 300
or 500 pots. Pots are fished individually and must be marked with an
identification number. Surface marker buoys must also be tagged for
identification. The fishery opens on or about December 1 when the
majority of male crabs have recovered from the fall molt and shell
condition has hardened. The season runs through September 15. In 1997
Congress granted Washington, Oregon and California jurisdiction to
manage Dungeness Crab fisheries outside of state waters to the 200 mile
limit of the U.S. EEZ. Under Washington state regulations, pots can be
no larger than 13 cubic feet and must be equipped with specified escape
rings for undersize crab and a biodegradable release mechanism to allow
crabs to escape from pots that become separated from the buoy or have
otherwise become lost. There is a summer FMP, which is part of the
larger Washington Coastal Dungeness Crab FMP, in place to protect crabs
that enter the molt prior to the September 15 season ending date. This
summer FMP allows for in-season closures of the fishery if the
percentage of early molting crab reaches a certain level.
Southeastern U.S. Atlantic, Gulf of Mexico Shrimp Trawl Fishery
The ``Southeastern U.S. Atlantic, Gulf of Mexico shrimp trawl''
fishery is a pelagic or bottom trawl fishery operating virtually year-
round in the Atlantic Ocean from North Carolina through Florida, and in
the Gulf of Mexico from Florida through Texas. Effort occurs in
estuarine, near shore coastal waters, and along the continental slope
of the Atlantic and estuarine, near shore coastal, and offshore
continental shelf and slope waters in the Gulf of Mexico. The fishery
targets brown, pink and white shrimp within estuaries, and near coastal
and offshore regions; and targets Royal Red shrimp along the deep
continental slope. Commercial shrimp vessels most commonly employ a
double-rig otter trawl, which normally includes a lazy line attached to
each bag's codend. The lazy line floats free during active trawling,
and as the net is hauled back, it is retrieved with a boat- or
grappling-hook to assist in guiding and emptying the trawl nets. Shrimp
trawl soak time is about three hours; the fishery typically operates
from sunset to sunrise when shrimp are most likely to swim higher in
the water column. Although shrimp trawlers are required under ESA
regulations to use turtle excluder devices to reduce sea turtle bycatch
(50 CFR 223.206), the fishery currently does not use any method or gear
modification to deter, or reduce bycatch of, marine mammals. 2009 data
indicate there are approximately 4,950 shrimp trawl vessels operating
in the Southeast Atlantic and Gulf of Mexico with an estimated 76,884
vessel trips.
Comments and Responses
NMFS received 9 comment letters on the proposed 2011 LOF (75 FR
36318, June 25, 2010). Comments were received from the California
Wetfish Producers Association, Hawaii Longline Association, Marine
Mammal Commission, Natural Resources Defense Council, Oregon Department
of Fish and Wildlife, United States Department of Interior, Washington
Department of Fish and Wildlife, Western Pacific Fishery Management
Council, and one private individual. Comments on issues outside the
scope of the LOF were noted, but are not responded to in this final
rule.
General Comments
Comment 1: Since 2005, the Marine Mammal Commission (Commission)
has recommended NMFS include observer coverage for each fishery on the
LOF for use in evaluating the amount of confidence to place on reports
of mortality or serious injury (or lack thereof) for marine mammals
stocks. The Commission appreciated NMFS' efforts to provide additional
information for Category I and II fisheries on the NMFS Web site.
However, the Commission further recommended NMFS describe in the LOF
the basis for confirming that a fishery warrants a Category III
classification. The Commission also stated it would be useful to also
have information on observer coverage in Category III fisheries to
determine whether reliable information was collected to justify a
Category III listing or if a fishery is Category III based on a lack of
information.
Response: NMFS generally agrees with the Commission that it is
important for NMFS to provide its basis for classifying a fishery on
the LOF. However, including observer coverage information in each LOF
on its own will not fully explain why a fishery is classified as
Category I, II, or III. As described in the preamble of each proposed
and final LOF, including this final rule, NMFS classifies fisheries on
the LOF based on an assessment of several factors. One of these factors
includes information collected through observer programs. However, in
many cases observer data for various fisheries are either inadequate or
non-existent; therefore, quantitative data on the frequency of
incidental mortality and serious injury is unavailable. Per the
requirements in the MMPA's implementing regulations, in the absence of
reliable information indicating the frequency of incidental mortality
and serious injury of marine mammals by a commercial fishery, NMFS
determines whether the incidental serious injury or mortality is
``occasional'' or ``remote'' by ``evaluating other factors such as
fishing techniques, gear used, methods used to deter marine mammals,
target species, seasons and areas fished, qualitative data from
logbooks or fisher reports, stranding data, the species and
distribution of marine mammals in the area, and at the discretion of
the Assistant Administrator for Fisheries'' (50 CFR 229.2). Therefore,
including the level of observer coverage for each fishery in the LOF
will not provide the reader with a complete picture of why a fishery is
classified on the LOF as Category I, II, or III.
NMFS includes the information used as the basis to classify a
fishery as Category I, II, or III, on the LOF for the
[[Page 68473]]
year in which the fishery was added to the LOF and/or reclassified on
the LOF. If there is no change to the fishery in subsequent LOFs, the
information outlining why a fishery is classified as Category I, II, or
III, is not then repeated in each subsequent LOF. Considering that the
LOF is an annual rule that presents changes to previous LOFs, repeating
this information in each LOF would create a Federal Register notice
that would be overly lengthy and cumbersome for the readers to consider
on an annual basis. For this reason, NMFS provides this information on
Category I and II fisheries via the fishery summaries to be considered
at the readers' discretion and included these on the NMFS Office of
Protected Resources' Web site: http://www.nmfs.noaa.gov/pr/interactions/lof/.
While NMFS has included, and will continue to include, the
information used as the basis to classify a fishery as Category III in
the appropriate LOF for the year in which each Category III fishery was
added to, or reclassified on, the LOF, NMFS agrees that summarizing
this information in one location could be useful for the reader.
Therefore, NMFS will consider how to best provide this information for
the readers, without creating an annual LOF rule that is overly lengthy
and cumbersome, during the development of the 2012 LOF.
Comment 2: Ms. Monasevitch noted that Tables 1-3 do not list the
number of marine mammal species/stocks incidentally killed or injured,
only the species/stock name. Can the counts be provided?
Response: The number of marine mammal species/stocks incidentally
killed or injured in each fishery on the LOF is included in tabular
format in each Stock Assessment Report (SAR) and are therefore not
repeated in each LOF. Please visit the NMFS Office of Protected
Resources Web site to review the SARs by region or by stock: http://www.nmfs.noaa.gov/pr/sars/.
Comment 3: The Department of the Interior (DOI) requested NMFS
continue to coordinate with the Fish and Wildlife Service (FWS) on
issues involving marine mammals under FWS management jurisdiction,
including providing any reports of southern sea otters (which are
excluded from the MMPA's section 118 provisions for authorizing
incidental take) killed or injured in a commercial fishery.
Response: NMFS will continue to coordinate with the FWS on all
issues involving marine mammals under FWS jurisdiction, including sea
otters, walrus, manatees, and polar bears. NMFS will also continue to
provide FWS with all reports of interactions between commercial
fisheries and all marine mammal species under FWS jurisdiction,
including southern sea otters, that the Agency receives.
Comment 4: The Hawaii Longline Association (HLA) asserted that NMFS
cannot make final determinations in the LOF based on information that
appears in draft SARs and has not been subjected to the public review
and comment process. The HLA stated that the draft 2010 SAR is based,
in significant part, on information contained in unpublished reports,
``working'' papers, and reports containing ``preliminary estimates.''
The HLA asserted that this information is not sufficient to meet the
MMPA's best available scientific information standard and that
decisions based on this information is contrary to the MMPA, the
Administrative Procedure Act (APA), and general principles of
administrative transparency and scientific rigor.
Response: NMFS responded to a similar comment on the final 2001 LOF
(see comment/response 61; 66 FR 42780 August 15, 2001). NMFS agrees
that the annual LOF must be based on the best available scientific
information. For this reason, NMFS proposes changes to the annual LOF
on the most current, peer-reviewed version of the SARs. The draft 2010
SARs used as the basis for the proposed and final 2011 LOFs were
reviewed by the authors' peers within NMFS Fisheries Science Centers
and by the Regional SRGs, which were established by the MMPA 117(d) to
advise NMFS on the status of marine mammal stocks and to provide input
on the draft SARs before they are released for public input. Basing the
LOF on best available scientific information includes basing the LOF on
the most current analyzed data. The data presented in the annual SARs
have an average of a two-year time delay because of the time needed to
properly analyze the data and complete the peer-review process. For
that reason, the SRG-reviewed draft SAR presents the most current
analyzed data and is considered the best available scientific
information. When a peer-reviewed draft SAR is available, the final SAR
from the previous year is no longer the best available information on
which to base changes to the annual LOF. Therefore, by basing LOF
changes on the most recent peer-reviewed SAR, whether draft or final,
NMFS satisfies the requirements of the MMPA.
NMFS ensures transparency in the LOF rulemaking process by making
the draft SARs available for public review prior to or during the
public comment period for each proposed LOF. The proposed 2011 LOF
opened for a 60-day public review period on June 25, 2010 (closing
August 24, 2010). The draft 2010 SARs opened for a 90-day public review
period on August 4, 2010. This allowed 20 days for review of the draft
2010 SARs before the close of the proposed 2011 LOF's public comment
period. The overlapping availability of the public comment periods on
the proposed LOF and the draft SARs allows the public to review the
information upon which the LOF is based.
Comments on Commercial Fisheries in the Pacific Ocean
Comment 5: The DOI supported the continued inclusion of southwest
AK northern sea otters, south central AK northern sea otters, and
Pacific walrus on the list of species/stocks incidentally killed or
injured in the ``AK Kodiak salmon set gillnet,'' ``AK Prince William
Sound salmon drift gillnet,'' and ``AK BSAI flatfish trawl'' fisheries,
respectively.
Response: NMFS has retained southwest AK northern sea otters, south
central AK northern sea otters, and Pacific walrus on the list of
species/stocks incidentally killed or injured in the ``AK Kodiak salmon
set gillnet,'' ``AK Prince William Sound salmon drift gillnet,'' and
``AK BSAI flatfish trawl'' fisheries in this final rule.
Comment 6: The Washington Department of Fish and Wildlife (WDFW)
strongly supported splitting the Washington Dungeness crab pot/trap
fishery into two distinct fisheries by separating the inland ``Puget
Sound Dungeness crab pot/trap'' fishery from the ``WA coastal Dungeness
crab pot/trap'' fishery. The Puget Sound and coastal Dungeness crab
pot/trap fisheries are both managed by WDFW but are managed under
separate licensing programs and different management regimes. With no
known incidental mortalities or serious injuries to marine mammals in
the ``Puget Sound Dungeness crab pot/trap'' fishery, WDFW supported the
proposal to classify the ``Puget Sound Dungeness crab pot/trap''
fishery under Category III in the LOF.
Response: The WA Dungeness crab trap/pot fishery is split into two
fisheries in this final rule, with the ``WA coastal Dungeness crab
trap/pot'' fishery classified as Category II and the ``WA Puget Sound
Dungeness crab trap/pot'' fishery is classified as Category III.
Comment 7: As stated in comment 6 above, the WDFW supported
elevating the ``WA coastal Dungeness crab pot/trap'' fishery from
Category III to Category II. With the elevation of this
[[Page 68474]]
fishery to Category II, WDFW further requested NMFS' advice and
assistance in meeting the requirements under the MMPA. WDFW staff is
available to work with NMFS to create an implementation plan that
minimizes the disruption to the fishery while ensuring that MMPA
requirements are met.
Response: NMFS is currently working with WDFW and will continue to
do so to ensure that the MMPA requirements are met, while minimizing
the disruption to the fishery. The NMFS Northwest Regional Office has
agreed to work with the WDFW on developing the MMAP Certificates for
coastal crabbers. WDFW is currently reviewing NMFS' proposed text for
these Certificates.
Comment 8: The Commission recommended NMFS provide additional
justification for splitting the ``WA Dungeness crab pot/trap'' fishery
into two fisheries, including pointing out arguments that the risks to
marine mammals from the two proposed fisheries are different. The
Commission noted that, while the two proposed fisheries do differ based
on geography, the decision to split the fisheries should be based on
meaningful evidence that the risks posed to marine mammal species are
different and that the Puget Sound fishery is not likely to take any
marine mammals and does not require an observer program. Additional
evidence might include a difference in fishing practices or gear on the
coast versus those in Puget Sound, or evidence of different movement
patterns of humpback whales and other marine mammals, such as sea
otters.
Response: As described in the proposed 2011 LOF and further
explained in the comments supplied by WDFW (comment 6) the coastal and
Puget Sound Dungeness crab trap/pot fisheries are managed under
separate licensing programs and different management regimes. The State
of WA already considers these as separate fisheries. More importantly,
the migratory routes of humpback whales pass though the coastal waters
off of the State of WA, but the migratory routes do not pass through
Puget Sound. Individual humpback whales have been reported to
occasionally enter Puget Sound, but NMFS has received no reports of
these individuals interacting with or becoming entangled in Puget Sound
Dungeness crab trap/pot gear. Trap/pot gear for both the coastal and
Puget Sound Dungeness crab trap/pot fisheries are uniquely marked for
identification and, therefore, NMFS is able to ascertain with which
fishery a humpback whale has interacted. Individual sea otters
occasionally enter Puget Sound but they have not been reported
interacting with crab gear. There was one sighting of a gray whale
trailing crab trap/pot gear in Puget Sound in 2003. However, this
animal was successfully disentangled and released uninjured. There have
been no reported interactions since that time.
The Puget Sound region has heavily populated coastlines and is a
major recreational boating area. There are also several active marine
mammal sighting hotlines in the region. Should entanglements of marine
mammals occur in the inland waters, the potential for observation and
reporting by boaters or the public on the shore is high.
Comment 9: The Commission recommended NMFS consult with the FWS,
tribal authorities, and other relevant groups on the need for observer
coverage of the WA Dungeness crab pot/trap fisheries both along the
outer coast and in Puget Sound to assess bycatch risks for sea otters
in WA state.
Response: As recommended, NMFS consulted with state and tribal crab
managers. The states of WA and OR, and the Northwest Indian Fisheries
Commission reported that they have received no information indicating
interactions between sea otters and crab fisheries are occurring. WDFW
has received complaints in some areas of harbor seals or sea lions
raiding pots for bait, but not sea otters. The WA population of sea
otters is at the population's Optimum Sustainable Population (OSP)
level and continues to grow (FWS 2009 SAR). According to FWS' 2009 SAR
there has been only one stranding incident of a northern sea otter, in
2003, where human interaction may have been implicated based on
necropsy findings. In this case, the animal died from trauma, possibly
a boat strike.
Comment 10: The CA Wetfish Producers Association agreed with
multiple proposed changes to the LOF, including reclassifying the ``CA
anchovy, mackerel, sardine purse seine'' and ``CA squid purse seine''
fisheries from Category II to Category III; updating the number of
vessels participating in the ``CA anchovy, mackerel, sardine purse
seine fishery;'' and removing bottlenose dolphins (CA/OR/WA offshore
stock) from the list of species/stocks incidentally killed or injured
in the ``CA anchovy, mackerel, sardine purse seine'' fishery.
Response: NMFS has finalized each of the proposed changes
referenced in Comment 10 in this final rule.
Comment 11: The CA Wetfish Producers Association noted the number
of vessels participating in the ``CA squid purse seine'' fishery is
proposed to be increased from 64 to 65 vessels. However, according to
CA Department of Fish and Game authorities, the number of squid vessel
permits sold in 2010 is 71 transferable vessel permits and 9 non-
transferable vessel permits, for a total of 80 vessels eligible to
participate in the squid fishery.
Response: NMFS appreciates the information and has updated Table 1
to reflect that the estimated number of vessels/persons participating
in the Category III ``CA squid purse seine'' fishery is 80.
Comment 12: The Oregon Department of Fish and Wildlife (ODFW)
requested that OR be removed from the name of the ``CA/OR thresher
shark/swordfish drift gillnet'' fishery. ODFW noted that the OR
commercial drift gillnet fishery historically existed as an extension
of the CA fishery, targeting swordfish as allowed under ODFW's
Developmental Fisheries Program. For the last few years this fishery
has been inactive and OR has not issued permits for such a fishery in
state waters. Also, swordfish were removed from the program in 2009. OR
no longer issues state permits for drift gillnet gear.
Response: NMFS appreciates the information provided by ODFW and has
changed the name of the fishery to the Category III ``CA thresher
shark/swordfish drift gillnet (>= 14 in mesh)'' fishery in this final
rule.
Comment 13: The DOI recommended NMFS continue to include CA sea
otters on the list of species/stocks incidentally killed or injured in
the ``CA halibut/white seabass and other species set gillnet'' fishery
and add CA sea otters to the list of species/stocks incidentally killed
or injured in the ``CA coonstripe shrimp, rock crab, tanner crab pot or
trap'' and ``CA spiny lobster trap'' fisheries. Due to lack of observer
coverage, the FWS does not have recent data to confirm that sea otters
are injured or killed in these fisheries; however, experiments have
shown that sea otters can enter these traps and drown.
Response: NMFS removed southern sea otters from the list of
species/stocks incidentally killed or injured in the Category III ``CA
coonstripe shrimp, rock crab, tanner crab pot or trap'' and ``CA spiny
lobster trap'' fisheries in the 2009 LOF. As detailed in the proposed
2009 LOF (73 FR 33760, June 13, 2008), NMFS extensively reviewed each
of the CA pot and trap fisheries, including available information on
marine mammal species that interact with these fisheries. At that time,
NMFS had records of one southern sea otter being taken in the ``CA
targeting spiny lobster, coonstripe shrimp, finfish, rock crab, or
[[Page 68475]]
tanner crab trap/pot'' fishery in November 1987 and one southern sea
otter interacting with the ``CA spot prawn trap'' fishery in 1991. NMFS
has received no new or additional information since the 2009 LOF to
suggest that sea otters are being incidentally killed or injured by
these gear types. Therefore, NMFS has not included sea otters on the
list of species/stocks incidentally killed or injured in these two
fisheries. If additional information becomes available to indicate that
southern sea otters have been injured or killed in CA trap/pot
fisheries in recent years, NMFS will consider including this species on
the LOF at that time.
Comment 14: The Commission supported retaining the ``HI shallow-set
(swordfish target) longline/set line'' fishery as Category II based on
the mortality and serious injury rate of bottlenose dolphins (HI
pelagic stock) and the additional information documenting takes of
marine mammals from other stocks.
Response: The ``HI shallow-set (swordfish target) longline/set
line'' fishery is classified as Category II in this final rule.
Comment 15: The HLA noted that the proposed LOF classifies the ``HI
shallow-set (swordfish target) longline/set line'' fishery as Category
II by the fishery's serious injury and mortality rate for bottlenose
dolphin, which is only 1.1 percent of the stock's PBR, and because of
documented mortalities and serious injuries of other stocks on the high
seas for which PBRs are unknown. The HLA disagreed with this
justification and argued that NMFS must make the LOF determinations
based on the best available science, not speculation that takes may
exceed 1 percent of a stock's PBR. The HLA further stated that in the
absence of knowledge about the identity or abundance of stocks with
which a fishery may have interactions, NMFS cannot assume that any
interactions may exceed 1 percent of the stock's PBR.
Response: As noted in the draft 2010 SAR, the HI Pelagic stock of
bottlenose dolphins includes animals found both within the U.S. EEZ
around the Hawaiian Islands and in adjacent international waters, but
because data on abundance, distribution, and human-caused impacts are
largely lacking for international waters, the status of the stock is
evaluated based on data from U.S. EEZ waters. In the SAR, the stock's
PBR is calculated only for the portion of the stock within the U.S. EEZ
around the Hawaiian Islands.
The average annual level of mortalities and serious injuries of the
HI pelagic stock of bottlenose dolphins that occurs incidental to the
HI shallow-set longline fishery inside the U.S. EEZ around the Hawaiian
Islands is greater than 1 percent and less than 50 percent of the
stock's PBR level. This level of mortality and serious injury is close
to, but exceeds, the threshold between Categories II and III (e.g.,
mortality and serious injury greater than 1 percent of PBR), and thus a
Category II classification is warranted (50 CFR 229.2). Details
regarding how the threshold percentages between the categories were
determined are provided in the preamble to the final rule implementing
section 118 of the MMPA (60 FR 45086, August 30, 1995).
In NMFS' proposal to classify this fishery in the proposed 2011
LOF, NMFS noted that there are documented injuries and mortalities of
numerous other species and stocks of marine mammals on the high seas,
which are listed in Table 3 for the high seas component of the shallow-
set longline fishery (``Western Pacific Pelagic (Shallow-set
component)''). There are no abundance estimates or PBRs currently
available for most of these marine mammals on the high seas, and
quantitative comparison of mortality and serious injury against PBR is
therefore not possible. NMFS is not assuming that interactions on the
high seas exceed 1 percent of any stock's PBR. Rather, these
interactions provide a qualitative indication that the shallow-set
fishery's interactions with marine mammals on the high seas are
``occasional.'' 50 CFR 229.2 provides that in the absence of reliable
information indicating the frequency of incidental mortality and
serious injury of marine mammals by a commercial fishery, the Assistant
Administrator will determine whether the incidental serious injury or
mortality is ``occasional'' by evaluating other factors such as fishing
techniques, gear used, methods used to deter marine mammals, target
species, seasons and areas fished, qualitative data from logbooks or
fisher reports, stranding data, and the species and distribution of
marine mammals in the area, or at the discretion of the Assistant
Administrator.
As noted in the preamble of the proposed 2011 LOF and the response
to a similar comment in the final 2010 LOF (74 FR 58859, November 16,
2009; comment/response 17) regarding high seas fisheries
classification, the high seas portion of the shallow-set longline
fishery is an extension of the fishery operating within U.S. waters,
and not a separate fishery. A fishery is classified on the LOF as its
highest level of classification (e.g., a fishery qualifying for
Category II for one marine mammal stock and Category III for another
marine mammal stock will be listed as Category II). Since the ``Western
Pacific Pelagic (Shallow-set component)'' and ``HI shallow-set
(swordfish target) longline/set line'' are two components of the same
fishery, targeting the same species and employing the same gear,
fishing techniques, and methods to deter marine mammals, distinguished
from each other only by which side of the 200 nmi EEZ boundary they
operate, and the component of the fishery operating in U.S. waters is
classified as Category II, the high seas component of the fishery is
also classified as Category II.
Comment 16: The Commission recommended NMFS list the ``HI kaka
line'' and the ``HI vertical longline'' fisheries as Category II
fisheries and work with the State of HI to create an effective observer
program for each fishery. NMFS noted in the proposed 2011 LOF, and the
Commission concurred, that the ``HI kaka line'' fishery may be
analogous to the Category II Hawaii shortline fishery. The Commission
also considered the vertical longline fishery to be analogous because
the gear is similar and presents similar risks to marine mammals. The
Commission believed that an appropriate approach would be to establish
an observer program to better characterize the nature and level of the
interactions of these fisheries with marine mammals, before assuming
that such interactions do not or only rarely occur.
Response: At this time, there is no information to support a
Category II classification for either of these two fisheries. NMFS did
note in the proposed 2011 LOF that the kaka line fishery may be
analogous to the shortline fishery because the gear used is similar in
one respect, specifically a mainline less than 1 nautical mile in
length to which multiple branchlines with baited hooks are attached.
However, NMFS further stated in the proposed LOF that the gear in the
``HI kaka line'' fishery is oriented differently in the water than the
gear in the ``HI shortline'' fishery, with ``HI kaka line'' fishery
gear being fixed on or near the bottom or in shallow midwater.
50 CFR 229.2 states that in absence of reliable information
indicating the frequency of incidental mortality and serious injury of
marine mammals by a commercial fishery, NMFS will determine whether the
incidental serious injury or mortality is ``frequent,'' ``occasional,''
or ``remote'' by evaluating
[[Page 68476]]
other factors. Therefore, NMFS also examined other factors and
considers the ``HI kaka line'' and ``HI vertical line'' fisheries to be
sufficiently different from the HI-based longline fisheries and the HI
shortline fishery in terms of the fish species targeted, methods of
setting gear, and location and orientation of the gear in the water
column, to pose a lower risk to marine mammals such that the likelihood
of incidental interactions is remote. Additionally, while there are
anecdotal reports of interactions between the shortline fishery and
marine mammals, there is no such information regarding the kaka line or
vertical longline fisheries. If additional information becomes
available that would indicate an elevation in classification is
necessary, NMFS will consider reclassification of one or both of these
fisheries at that time.
Comment 17: The Natural Resources Defense Council (NRDC) urged NMFS
to reconsider the proposed classification of the ``HI trolling, rod and
reel'' and ``HI charter vessel'' fisheries as Category III given their
bycatch of pantropical spotted dolphins. The NRDC provided multiple
literature citations documenting dolphins taking lures and being hooked
when HI troll fishermen ``fish'' on the dolphins, including spotted
dolphins, to catch associated tuna. The NRDC stated that one serious
injury or mortality a year for pantropical spotted dolphins would
exceed the regulatory ceiling of 1 percent of the PBR of 61 (2010 SAR,
which also states that future assessments may divide the HI population
into smaller island-associated stocks). The NRDC asserts that where the
frequency of bycatch is unknown, NMFS is required to determine whether
serious injury or mortality is ``remote'' by taking into account other
factors, including target species and fishing techniques (50 CFR
229.2).
Response: NMFS will review the information provided by the
commenter and consider adding this species to the list of species or
stocks incidentally killed or injured in one or both of these fisheries
in the next proposed LOF. NMFS will also consider reclassification of
one or both of these fisheries at that time, if circumstances warrant.
Comment 18: The HLA reiterated past comments that NMFS inaccurately
delineates the pelagic false killer whale stock, therefore
underestimating the false killer whale population with which the ``HI
deep-set (tuna target) longline/set line'' fishery interacts and
exaggerating the importance of those rare interactions.
Response: NMFS responded to similar comments on the 2010 LOF (74 FR
58859; November 16, 2009; comments/responses 17 and 24), which are
incorporated in this response by reference. This comment does not
specifically address the classification of fisheries or the marine
mammal species and stock incidentally killed or injured in a fishery,
but rather disputes the delineation of those stocks and stock
population estimates. Classifications on the LOF are based on the
information provided in the annual SARs. The SARs report marine mammal
stock delineations and include discussions of the uncertainties in the
data used to base stock delineations. NMFS urges the commenter to
submit these comments during the public comment period for the draft
SARs.
Comment 19: The HLA restated an ongoing comment that there are
significant uncertainties and errors perpetuated in NMFS' SARs, which
are then used to generate inaccurate LOFs. The HLA disagreed that it
would be prudent for NMFS to make LOF determinations for 2011 based on
data that NMFS knows will become stale (as defined by NMFS guidelines)
in 2010. The HLA recommended that NMFS, at the least, expressly
recognize the uncertainty underlying its estimates and decisions.
Response: Changes to the 2011 LOF are largely based on the 2009
SARs, as updated in the draft 2010 SARs. The draft 2010 SARs for many
of the Hawaiian cetacean stocks present abundance estimates based on
data from a 2002 NMFS shipboard line-transect survey of the U.S. EEZ
around the Hawaiian Islands (Hawaiian Islands Cetacean and Ecosystem
Assessment Survey, or HICEAS). The NMFS Guidelines for Assessing Marine
Mammal Stocks (GAMMS) note that confidence in the reliability of
abundance estimates declines with age, and recommend that minimum
population estimates older than 8 years should be considered unknown,
and therefore should not be used to calculate PBR (http://www.nmfs.noaa.gov/pr/pdfs/sars/gamms2005.pdf). As of 2011, data derived
from the 2002 survey will be considered too uncertain for stock
assessment. NMFS is currently conducting a new cetacean assessment
survey in the U.S. EEZ around the Hawaiian Islands (HICEAS II) in
August-December 2010. It is anticipated that the HICEAS II survey will
result in updated abundance estimates for all Hawaiian cetaceans.
Preliminary estimates will likely be available by the end of 2011 or
early 2012. However, the currently available data and estimates still
constitute the best available information within existing NMFS
parameters, and therefore are appropriately included in the 2010 SARs
and 2011 LOF.
Comment 20: The HLA recommended NMFS not add false killer whales
(HI insular stock) to the list of marine mammal stocks incidentally
killed or injured in the ``HI deep-set (tuna target) longline/set
line'' fishery. The HLA stated that the best available science does not
demonstrate that the deep-set fishery has ever interacted with an
animal from the insular stock. The HLA further stated that the one
interaction that NMFS purports to assign to the deep-set fishery
occurred well beyond the range in which the insular stock animals have
been scientifically observed.
Response: NMFS determines which species or stocks are included on
the list of species/stocks incidentally killed or injured in a fishery
by annually reviewing, in part, the information presented in the
current SARs, which are based on the best available scientific
information and provide the most current and inclusive information on
each stock's PBR level and level of interaction with commercial fishing
operations. The LOF does not analyze or evaluate the SARs. The
commenter questions the validity of the data and calculations contained
within the SAR for false killer whales, and thus it would be more
appropriate for this comment to be submitted during the public comment
period for the draft SAR.
The draft 2010 SAR for false killer whales indicates an average of
0.6 false killer whales (HI insular stock) are killed or seriously
injured per year incidental to the Hawaii deep-set longline fishery.
One non-serious injury was observed within the newly defined overlap
zone between the HI insular and HI pelagic stocks of false killer
whales. Total estimated takes were prorated based on the proportions of
observed interactions that resulted in death, serious injury, or non-
serious injury. Further, takes of false killer whales of unknown stock
origin within the insular/pelagic stock overlap zone were prorated
based on the density of each stock in that area. No genetic samples are
available to establish stock identity for these takes, but both stocks
are considered at risk of interacting with longline gear within this
region. Additionally, the draft 2010 SAR reports that from 2004-2008,
two unidentified cetaceans that may have been false killer whales were
seriously injured in the deep-set longline fishery, within the insular
stock range. Efforts are currently underway to develop methods of
prorating the unidentified animals by species and stock, taking into
account
[[Page 68477]]
geographic differences in their ranges and observed rates of documented
interactions with each species. For these reasons, NMFS is adding the
HI insular stock of false killer whales to the list of marine mammal
stocks incidentally killed or injured in the HI deep-set longline
fishery, as proposed in the proposed 2011 LOF.
Comment 21: The HLA recommended NMFS not label the false killer
whales on which the ``HI deep-set (tuna target) longline/set line''
fishery interacts on the high seas as ``HI Pelagic.'' The HLA asserted
that such a designation ignores the fact that high seas false killer
whale interactions may occur with animals from other international high
seas stocks, a larger Eastern North Pacific stock, or the Palmyra
stock.
Response: The draft 2010 SAR clarifies that the HI pelagic stock of
false killer whales includes animals found both within the U.S. EEZ
around the Hawaiian Islands and adjacent international waters. The
deep-set longline fishery has documented interactions with false killer
whales just outside of the U.S. EEZ around the Hawaiian Islands, as
reported in the draft 2010 SAR, and these are almost certainly from the
HI pelagic stock. Therefore, NMFS is adding false killer whale (HI
pelagic stock) to the list of species/stocks incidentally killed or
injured in the ``Western Pacific Pelagic (Deep-set component)'' fishery
on Table 3, as proposed in the 2011 proposed LOF.
The draft 2010 SAR also reports that while the range of the HI
pelagic stock of false killer whales extends into international waters,
the full offshore range of the stock beyond the EEZ is poorly known.
NMFS agrees with HLA that the deep-set longline fishery may be
interacting with false killer whales from other stocks on the high
seas, beyond the (unknown) range of the HI pelagic stock. For this
reason, NMFS will retain false killer whale (stock unknown) on the list
of marine mammal species and stocks incidentally killed or injured in
the ``Western Pacific Pelagic (deep-set component)'' fishery on Table
3.
Similarly, marine mammals from other pelagic stocks are also killed
or injured by both the deep-set and shallow-set longline fisheries on
the high seas at varying distances beyond the U.S. EEZ around the
Hawaiian Islands, and some of the interactions may be from unknown high
seas stocks beyond the (unknown) range of the transboundary HI pelagic
stocks. NMFS will examine the spatial patterns of observed mortality
and injury of the other pelagic stocks and any information on the stock
identity of these animals, and may propose the addition of unknown
stocks for some or all of these marine mammal species in the proposed
2012 LOF, if warranted.
The range of the Palmyra Atoll stock of false killer whales is
currently defined in the draft 2010 SAR as the U.S. EEZ around Palmyra
Atoll. Therefore, this stock is listed as incidentally killed or
injured in the U.S. EEZ portion of the deep-set longline fishery, the
``HI deep-set (tuna target) longline/set line'' fishery, on Table 1,
and not in Table 3 for the high seas component of the fishery.
Comment 22: The Western Pacific Fishery Management Council (WPFMC)
requested NMFS clarify the justification for proposing to classify the
``HI shortline'' fishery as Category II based on analogy to other
fisheries and based on anecdotal reports of interactions. The WPFMC
requested that NMFS explain what is meant by proposing to list this
fishery by analogy, including how a fishery may be categorized at all
when there are no reported or known interactions with marine mammals.
In addition, the WPFMC questioned NMFS' use of anecdotal reports of
interactions with marine mammals and speculations that this fishery
caused documented false killer whale dorsal fin disfigurements to
support a proposed Category II classification.
Response: Fisheries are classified on the annual LOF via NMFS'
well-documented process of analyzing known or estimated levels of
mortality and serious injury relative to a stock's PBR level (as
outlined in the preamble of each proposed and final LOF, including this
final rule). In some cases, a fishery that has no recent documented
injuries or mortalities of marine mammals may be classified in Category
II by analogy to another Category I or II fishery or fisheries that use
similar gear types, fishing methods, and/or fish in similar areas that
are known to cause mortality and serious injury of marine mammals. In
those instances, additional available information (such as qualitative
data from stranding reports, fishermen self-reports, or anecdotal
information) may also be used to indicate that serious injury or
mortality of marine mammals may be occurring that is likely to exceed
the Category III threshold (50 CFR 229.2). NMFS indicates those
fisheries classified as Category II by analogy to another Category I or
II fishery in Tables 1 and 2 by placing a ``\2\'' after the fishery's
name. Only marine mammal mortality and serious injury that can be
assigned to a specific fishery is included in the list of species/
stocks incidentally killed or injured for that fishery. Marine mammal
species and stocks are not added to the list of species/stocks
incidentally killed or injured by analogy.
The ``HI shortline'' fishery was originally added to the LOF in
2010. NMFS listed the fishery in Category II by analogy to the Category
I ``HI deep-set (tuna target) longline'' and Category II ``HI shallow-
set (swordfish target) longline'' fisheries because of similarities
between the three fisheries in the gear used, the areas fished, and
species targeted that indicated the ``HI shortline'' fishery likely
poses a similar risk of killing or seriously injuring marine mammals.
Additionally, NMFS received anecdotal reports of marine mammal
interactions in the ``HI shortline'' fishery, though the species
involved and the extent of the interactions was unknown. While dorsal
fin disfigurements documented in individuals from the insular stock of
false killer whales (Baird and Gorgone 2005) are consistent with
injuries from unidentified fishing line, it is unknown at present
whether these injuries might have been caused by longline gear,
shortline gear, or other hook-and-line gear used around the main
Hawaiian Islands. Because the species of marine mammals involved in the
reported interactions was unknown, there are no species currently
listed on the LOF as incidentally injured or killed in the ``HI
shortline'' fishery.
Classifying a fishery as Category II provides NMFS the authority to
place observers on board the vessels to gain more information on the
actual level of interactions with marine mammals occurring in the
fishery. Funding is not currently available to establish such an
observer program for the ``HI shortline'' fishery, but when and if
funding becomes available in the future, NMFS will coordinate with the
state of HI to consider developing and implementing an observer program
for this fishery.
Comments on Commercial Fisheries in the Atlantic Ocean, Gulf of Mexico
and Caribbean
Comment 23: The Commission supported the elevation of the
``Southeastern U.S. Atlantic, Gulf of Mexico shrimp trawl'' fishery
from Category III to Category II and the addition of Atlantic spotted
dolphin (northern Gulf of Mexico stock) to the list of species/stocks
incidentally killed or injured in this fishery.
Response: The ``Southeastern U.S. Atlantic, Gulf of Mexico shrimp
trawl'' fishery is classified as Category II in this final rule.
Comment 24: The Commission recommended NMFS set the boundary
[[Page 68478]]
between the Northeast and Mid-Atlantic bottom trawl fisheries at the
location that will result in the most reliable estimates of bycatch for
the two fisheries. In the proposed LOF, NMFS proposed to change the
boundary used to separate these fisheries from 72[deg]30' W. long. to
70[deg] W. long. The latter is used by the Northeast Fisheries Science
Center for estimating marine mammal bycatch. For the fisheries
involved, this change may have a number of implications that the
Commission is not able to evaluate based upon the information provided
in the proposed rule. The key consideration for the Commission is that
incidental taking of marine mammals is correctly attributed to the two
fisheries.
Response: NMFS agrees that maintaining consistency for estimating
incidental marine mammal bycatch is essential; therefore, the proposed
change will provide this consistency necessary to ensure appropriate
incidental takes are attributed to the correct fishery. NMFS does not
foresee any additional current or future management implications
associated with this change.
Comment 25: The Commission reiterated a past recommendation that
NMFS develop new methods to produce accurate estimates of effort for
several Mid-Atlantic and New England fisheries. The Commission
suggested that the methods may need to change depending on the nature
of the fisheries (e.g., how often vessels return to port, how large the
vessels are, and whether they can carry observers). Although the
Commission understood that actual effort levels may not be known, the
new method of measuring effort reveals significant uncertainty in key
fishery information that may confound other measures of the fishery and
its effects. The Commission asserted that while these changes may not
have a direct effect on fisheries policy or observer coverage, the
broader and longer-term implications of the changes and the associated
uncertainty are unknown but potentially significant for management of
the marine environment.
Response: Table 2 lists each Northeast and Mid-Atlantic fishery on
the LOF, including the estimated number of persons/vessels active in
the fishery. Currently, a clear measure of effort for all state
fisheries in the Northeast and Mid-Atlantic has not been determined due
to the manner in which many state permits allow for the use of multiple
gear types. Therefore, NMFS has determined that this column in Table 2
for Northeast and Mid-Atlantic fisheries will be representative of
current permit holders, state and Federal, that have the potential to
participate in a particular fishery. As stated in the proposed 2011
LOF, NMFS recognizes there may be disparity between permit holders
listed and actual fishery effort; however, the numbers provided in the
LOF are used for descriptive purposes and will not be used in
determining current or future management of fisheries or observer
coverage designations.
Comment 26: The DOI supported the continued inclusion of the
Florida subspecies of the West Indian manatee on the list of species/
stocks incidentally killed or injured in the ``Atlantic blue crab trap/
pot'' and ``Gulf of Mexico blue crab trap/pot'' fisheries.
Response: NMFS has retained the Florida subspecies of the West
Indian manatee on the list of species/stocks incidentally killed or
injured in the ``Atlantic blue crab trap/pot'' and ``Gulf of Mexico
blue crab trap/pot'' fisheries in this final rule.
Comment 27: The DOI recommended NMFS remove the Antillean
subspecies of the West Indian manatee from the list of species/stocks
incidentally killed or injured in the ``Caribbean gillnet'' and
``Caribbean haul/beach seine'' fisheries. The DOI is unaware of any
manatees taken in either fishery. In addition, use of all haul/beach
seine nets and the use of gill and trammel nets in river mouths,
rivers, and lagoons in Puerto Rico has been prohibited since 2004.
Response: NMFS agrees with the DOI recommendation to remove the
Antillean subspecies of the West Indian manatee from the list of
species/stocks incidentally killed or injured in the ``Caribbean
gillnet'' and ``Caribbean haul/beach seine'' fisheries. Based on
information provided in the FWS' 2009 SAR, lack of evidence from
stranding events, and the implementation of Puerto Rico Regulation 678
of the 2004 Fisheries Law, the Antillean subspecies of the West Indian
manatee has been removed from the list of species/stocks incidentally
killed or injured in these fisheries in this final rule.
Comment 28: The DOI recommended NMFS remove the Florida subspecies
of the West Indian manatee from the list of species/stocks incidentally
killed or injured in the ``Southeastern U.S. Atlantic, Gulf of Mexico
shrimp trawl'' fishery. The DOI is unaware of any manatees taken in
this fishery since 1987.
Response: NMFS appreciates this comment. However, NMFS does not
support removing the Florida subspecies of the West Indian manatee from
the list of species/stocks incidentally killed or injured in the
``Southeastern U.S. Atlantic, Gulf of Mexico shrimp trawl'' fishery at
this time. There has been at least one confirmed take in this fishery
since 1987; a manatee that was killed by a commercial shrimp trawler,
with an observer aboard, in Georgia in 1997. Also, according to the
FWS' 2009 SAR, the bait shrimp fishery was suggested to cause three
unconfirmed manatee mortalities in 1990. Furthermore, observer coverage
for the shrimp trawl fishery has been less than 1 percent since 1992.
Due to extremely low observer coverage, confirmed and unconfirmed takes
by the fishery, and the spatial and temporal co-occurrence of the
shrimp trawl fishery and the Florida subspecies of the West Indian
manatee, NMFS believes there is at least a remote likelihood of
incidental mortality and serious injury for the Florida subspecies of
the West Indian manatee. Therefore, NMFS is retaining this species on
the list of species/stocks incidentally killed or injured in the
``Southeastern U.S. Atlantic, Gulf of Mexico shrimp trawl'' fishery.
Comment 29: The Commission recommended NMFS increase observer
coverage in the ``Southeastern U.S. Atlantic, Gulf of Mexico shrimp
trawl'' fishery and conduct the stock assessments necessary to estimate
reliable potential biological removal levels for the affected marine
mammal stocks.
Response: As stated in response to similar comments on past LOFs,
NMFS continues to agree about the importance of increasing observer
coverage for the ``Southeastern U.S. Atlantic, Gulf of Mexico shrimp
trawl'' fishery, as well as investigating stock structure and abundance
of bottlenose dolphins in the Gulf of Mexico.
Increasing observer coverage for these fisheries remains a priority
if resources become available. Meanwhile, NMFS will continue monitoring
fishermen self-reports and stranding data, as well as fishery observer
reports. NMFS remains focused on increasing the capacity of the
stranding network especially in the Gulf of Mexico. NMFS provided human
interaction trainings at the 2010 National Marine Animal Health and
Stranding Network Conference. As a result of the BP/Deepwater Horizon
MC252 oil spill response and restoration efforts, NMFS is working to
strengthen infrastructure and increase the capacity of the stranding
network which are now critical in monitoring the health of marine
mammal stocks in the Gulf of Mexico, and will also be useful for
assessing the extent of fishery interactions.
NMFS supports further investigation of stock structure and
abundance of affected marine mammal stocks in the
[[Page 68479]]
Gulf of Mexico. PBR is undetermined for most stocks because the
population estimates are greater than eight years old and/or resources
were unavailable to conduct surveys where information is outdated.
However, due to the BP/Deepwater Horizon MC252 oil spill response and
restoration efforts, additional surveys and mark-recapture studies are
being conducted for some bay, sound, and estuarine stocks of marine
mammals in the Gulf of Mexico. Results from these studies will provide
updated abundance estimates and PBR for some stocks. Stock assessments
for Gulf of Mexico cetaceans remain a priority if resources become
available. These additional efforts will provide baseline data for
stock structure and abundance estimates for some marine mammal stocks.
Summary of Changes to the LOF for 2011
The following summarizes changes to the LOF for 2011 in fishery
classification, fisheries listed in the LOF, the number of participants
in a particular fishery, and the species and stocks that are
incidentally killed or injured in a particular fishery. The
classifications and definitions of U.S. commercial fisheries for 2011
are identical to those provided in the LOF for 2010 with the changes
outlined below.
Commercial Fisheries in the Pacific Ocean
Fishery Classification
The ``WA coastal Dungeness crab pot/trap'' fishery (split from the
Category III ``WA Dungeness crab pot'' fishery and renamed the ``WA
coastal Dungeness crab pot/trap'' fishery in this rule) is elevated
from Category III to Category II.
The ``CA thresher shark/swordfish drift gillnet'' fishery (renamed
from the ``CA/OR thresher shark/swordfish drift gillnet'' fishery in
this rule) is reclassified from Category I to Category III.
The ``CA anchovy, mackerel, sardine purse seine'' fishery is
reclassified from Category II to Category III.
The ``CA squid purse seine'' fishery is reclassified from Category
II to Category III.
The ``CA tuna purse seine'' fishery is reclassified from Category
II to Category III.
Addition of Fisheries
The ``HI kaka line'' fishery is added to the LOF as Category III.
The ``HI vertical longline'' fishery is added to the LOF as
Category III.
The ``HI crab net'' fishery is added to the LOF as Category III.
The ``HI hukilau net'' fishery is added to the LOF as Category III.
The ``HI lobster tangle net'' fishery is added to the LOF as
Category III.
The ``HI bullpen trap'' fishery is added to the LOF as Category
III.
The ``WA Puget Sound Dungeness crab pot/trap'' fishery (split from
the Category III ``WA Dungeness crab pot'' fishery in this rule) is
added as a separate Category III fishery on the LOF.
Fishery Name and Organizational Changes and Clarifications
The Category III ``HI squiding, spear'' fishery is renamed as the
``HI spearfishing'' fishery.
The Category III ``HI Main Hawaiian Islands, Northwestern Hawaiian
Islands deep sea bottomfish'' fishery is renamed as the ``HI Main
Hawaiian Islands deep-sea bottomfish handline'' fishery.
The Category III ``HI Kona crab loop net'' fishery is moved from
the ``Purse Seine, Beach Seine, Round Haul, and Throw Net Fisheries''
heading in Table 1 to the ``Pot, Ring Net, and Trap Fisheries''
heading.
``Tangle Net'' is added to the name of the Category III ``Purse
Seine, Beach Seine, Round Haul and Throw Net Fisheries'' heading in
Table 1.
The Category III ``CA/OR thresher shark/swordfish drift gillnet''
fishery is renamed the ``CA thresher shark/swordfish drift gillnet''
fishery.
The Category III ``WA Dungeness crab pot'' fishery is split into
two separate fisheries, the Category II ``WA coastal Dungeness crab
pot/trap'' fishery and the Category III ``WA Puget Sound Dungeness crab
pot/trap'' fishery.
A superscript ``\2\'' is added after the Category II ``CA
yellowtail, barracuda, and white seabass drift gillnet (mesh >= 3.5 in
and < 14 in)'' fishery in Table 1.
Number of Vessels/Persons
The estimated numbers of persons/vessels participating in the
following Category II CA/OR/WA fisheries are updated: ``CA halibut/
white seabass and other species set gillnet'' fishery from 58 to 50;
``CA yellowtail, barracuda, and white seabass drift gillnet'' fishery
from 24 to 30; ``CA spot prawn pot'' fishery from 29 to 27; ``CA
Dungeness crab pot'' fishery from 625 to 534; and ``CA/OR/WA sablefish
pot'' fishery from 155 to 309.
The estimated numbers of persons/vessels in the following Category
III CA/OR/WA fisheries are updated: ``CA thresher shark/swordfish drift
gillnet'' fishery (renamed from ``CA/OR thresher shark/swordfish drift
gillnet'' fishery in this rule) from 85 to 45; ``CA squid purse seine''
fishery from 64 to 80; and ``CA anchovy, mackerel, sardine purse
seine'' fishery from 63 to 65.
The estimated number of persons/vessels in the Category I ``HI
deep-set (tuna target) longline/set line'' fishery is updated from 129
to 127.
The estimated number of persons/vessels in the Category II ``HI
shortline'' fishery is updated from 11 to 21.
The estimated numbers of persons/vessels in the following Category
III HI fisheries are updated: ``HI inshore gillnet'' fishery from 5 to
39; ``HI Kona crab loop net'' fishery from 42 to 41; ``HI opelu/akule
net'' fishery from 12 to 20; ``HI inshore purse seine'' fishery from 23
to 8; ``HI throw net, cast net'' fishery from 14 to 28; ``HI trolling,
rod and reel'' fishery from 1,321 to 2,210; ``HI crab trap'' fishery
from 22 to 9; ``HI fish trap'' fishery from 19 to 11; ``HI lobster
trap'' fishery from 0 to 3; ``HI shrimp trap'' fishery from 5 to 1;
``HI aku boat, pole, and line'' fishery from 4 to 6; ``HI inshore
handline'' fishery from 307 to 460; ``HI tuna handline'' fishery from
298 to 531; ``HI handpick'' fishery from 37 to 53; ``HI lobster
diving'' fishery from 19 to 36; ``HI spearfishing'' fishery from 91 to
163; and ``HI Main Hawaiian Islands deep-sea bottomfish handline''
fishery from 300 to 580.
List of Species or Stocks Incidentally Killed or Injured
Humpback whale (CA/OR/WA stock) is added to the list of species/
stocks incidentally killed or injured in the Category II ``WA coastal
Dungeness crab pot/trap'' fishery, followed by a superscript ``\1\''.
Humpback whale (CA/OR/WA stock) is added to the list of species/
stocks incidentally killed or injured in the Category II ``CA halibut/
white seabass and other species set gillnet (> 3.5 in mesh)'' fishery,
followed by a superscript ``\1\''.
Short finned pilot whales (CA/OR/WA stock) is removed from the list
of species/stocks incidentally killed or injured in the Category II
``CA thresher shark/swordfish drift gillnet'' fishery (renamed from
``CA/OR thresher shark/swordfish drift gillnet'' fishery in this rule).
Bottlenose dolphin (CA/OR/WA offshore stock) is removed from the
list of species/stocks incidentally killed or injured in the Category
III ``CA anchovy, mackerel, sardine purse seine'' fishery.
Risso's dolphin (CA/OR/WA stock) is removed from the list of
species/stocks incidentally killed or injured in the Category III ``CA
pelagic longline'' fishery.
The superscript ``\1\'' after CA sea lions (U.S. stock) and harbor
seals (CA stock) is removed from the list of species/
[[Page 68480]]
stocks incidentally killed or injured in the Category II ``CA halibut/
white seabass and other species set gillnet (> 3.5 in mesh)'' fishery.
The superscript ``\2\'' is removed after the Category II ``CA
Dungeness crab pot'' fishery in Table 1 and a superscript ``[sup1]'' is
added after humpback whale (CA/OR/WA stock) in the list of species/
stocks incidentally killed or injured in this fishery.
False killer whale (Palmyra Atoll stock) is added to the list of
species/stocks incidentally injured or killed in the Category I ``HI
deep-set (tuna target) longline/set line'' fishery.
False killer whale (HI Insular stock) is added to the list of
species/stocks incidentally injured or killed in the Category I ``HI
deep-set (tuna target) longline/set line'' fishery, followed by a
superscript ``\1\''.
The stock of bottlenose dolphin incidentally killed or injured in
the Category I ``HI deep-set (tuna target) longline/set line'' fishery
is changed from ``HI stock'' to ``HI Pelagic stock.''
The stock of pantropical spotted dolphin incidentally killed or
injured in the Category I ``HI deep-set (tuna target) longline/set
line'' fishery is changed from ``stock unknown'' to ``HI stock.''
The superscript ``\1\'' is removed after humpback whale (Central
North Pacific stock) in the list of species/stocks incidentally killed
or injured in the Category II ``HI shallow-set (swordfish target)
longline/set line'' fishery.
The stock of bottlenose dolphin incidentally killed or injured in
the Category II ``HI shallow-set (swordfish target) longline/set line''
fishery is changed from ``stock unknown'' to ``HI Pelagic stock.''
A superscript ``[sup1]'' is added after bottlenose dolphin (HI
Pelagic stock) in the list of species/stocks incidentally killed or
injured in the Category II ``HI shallow-set (swordfish target)
longline/set line'' fishery.
Striped dolphin (HI stock) is added to the list of species/stocks
incidentally injured or killed in the Category II ``HI shallow-set
(swordfish target) longline/set line'' fishery.
False killer whale (HI Pelagic stock) if added to the list of
species/stocks incidentally killed or injured in the Category II ``HI
shallow-set (swordfish target) longline/set line'' fishery.
Kogia spp. whale (HI stock) is added to the list of species/stocks
incidentally killed or injured in the Category II ``HI shallow-set
(swordfish target) longline/set line'' fishery.
The stock of Bryde's whale incidentally killed or injured in the
Category II ``HI shallow-set (swordfish target) longline/set line''
fishery is changed from ``stock unknown'' to ``HI stock.''
The stock of Risso's dolphin incidentally killed or injured in the
Category II ``HI shallow-set (swordfish target) longline/set line''
fishery is changed from ``stock unknown'' to ``HI stock.''
Sperm whale (stock unknown) is removed from the list of species/
stocks incidentally killed or injured in the Category II ``HI shallow-
set (swordfish target) longline/set line'' fishery.
The stock of false killer whale incidentally killed or injured in
the Category II ``American Samoa longline'' fishery is changed from
``stock unknown'' to ``American Samoa.''
Rough-toothed dolphin (American Samoa stock) is added to the list
of species/stocks incidentally killed or injured in the Category II
``American Samoa longline'' fishery.
Commercial Fisheries in the Atlantic Ocean, Gulf of Mexico, and
Caribbean
Fishery Classification
The ``Southeastern U.S. Atlantic, Gulf of Mexico shrimp trawl''
fishery is elevated from Category III to Category II.
Removal of Fisheries
The separate listing for the Category II ``Mid-Atlantic flynet''
fishery is removed from the LOF.
Fishery Name and Organizational Changes and Clarifications
The Category II ``Mid-Atlantic flynet'' fishery is incorporated
into the Category II ``Mid-Atlantic bottom trawl'' fishery and the
fishery definition for the ``Mid-Atlantic bottom trawl'' fishery is
updated to reflect this change.
American eel is removed as a species targeted in Category II
``Atlantic mixed species trap/pot'' fishery and the fishery definition
is updated to reflect this change.
The list of target species for the Category II ``Northeast drift
gillnet'' fishery is updated and the fishery definition is updated to
reflect this change.
The list of bodies governing the Category II ``Northeast mid-water
trawl'' fishery is updated and the fishery definition is updated to
reflect this change.
The list of FMPs applicable to the Category II ``Northeast bottom
trawl'' and the Category I ``Northeast sink gillnet'' fisheries are
updated and the fishery definitions are updated to reflect this change.
The spatial boundaries for the Category II ``Northeast bottom
trawl'' and ``Mid-Atlantic bottom trawl'' fisheries are updated and the
fishery definitions are updated to reflect this change. Number of
Vessels/Persons
The estimated numbers of persons/vessels in the following Category
I fisheries are updated: ``Mid-Atlantic gillnet'' fishery from > 670 to
5,495; ``Northeast sink gillnet'' fishery from 341 to 7,712; and
``Northeast/Mid-Atlantic American lobster trap/pot'' fishery from
13,000 to 12,489.
The estimated numbers of persons/vessels in the following Category
II fisheries are updated: ``Southeastern U.S. Atlantic, Gulf of Mexico
shrimp trawl'' fishery from > 18,000 to 4,950; ``Chesapeake Bay inshore
gillnet'' fishery from 45 to 1,167; ``NC inshore gillnet'' fishery from
94 to 2,250; ``Northeast anchored float gillnet'' fishery from 133 to
662; ``Northeast drift gillnet'' fishery from unknown to 608; ``Mid-
Atlantic mid-water trawl'' fishery from 620 to 546; ``Mid-Atlantic
bottom trawl'' fishery from > 1,000 to 1,182; ``Northeast mid-water
trawl (including pair trawl) '' fishery from 17 to 953; ``Northeast
bottom trawl'' fishery from 1,052 to 1,635; ``Atlantic blue crab trap/
pot'' fishery from > 16,000 to 6,479; ``Atlantic mixed species trap/
pot'' fishery from unknown to 1,912; ``Mid-Atlantic menhaden purse
seine'' fishery from 22 to 54; '' fishery Mid-Atlantic haul/beach
seine'' fishery from 25 to 666; ``NC long haul seine'' fishery from 33
to 372; and ``VA pound net'' fishery from 41 to 52.
The estimated numbers of persons/vessels in the following Category
III fisheries are updated: ``U.S. Mid-Atlantic offshore surf clam and
quahog dredge'' fishery from 100 to unknown; ``Gulf of Maine urchin
dive, hand/mechanical collection'' fishery from < 50 to unknown; ``Gulf
of Maine, U.S. Mid-Atlantic sea scallop dredge'' fishery from 233 to
258; ``Gulf of Maine mussel dredge'' fishery from > 50 to unknown;
``Gulf of Maine, U.S. Mid-Atlantic tuna/shark/swordfish hook & line/
harpoon'' fishery from 26,223 to > 403; ``Northeast, Mid-Atlantic
bottom longline/hook & line'' fishery from 46 to 1,183; ``U.S. Mid-
Atlantic mixed species stop seine/weir/pound net'' fishery from 751 to
unknown; ``Gulf of Maine herring and Atlantic mackerel stop seine/
weir'' fishery from 50 to unknown; ``Gulf of Maine Atlantic herring
purse seine'' fishery from 30 to > 7; ``Gulf of Maine menhaden purse
seine'' fishery from 50 to > 2; and ``Atlantic shellfish bottom trawl''
fishery from 972 to > 67.
List of Species or Stocks Incidentally Killed or Injured
West Indian manatee (Antillean subspecies) is removed from the list
of species/stocks incidentally killed or
[[Page 68481]]
injured in the Category III ``Caribbean gillnet'' and ``Caribbean haul/
beach seine'' fisheries.
Bottlenose dolphin (WNA offshore stock) is added to the list of
species/stocks incidentally killed or injured in the Category II ``Mid-
Atlantic bottom trawl'' fishery.
Atlantic spotted dolphin (Northern GMX stock) is added to the list
of species/stocks incidentally killed or injured in the Category II
``Southeastern U.S. Atlantic, Gulf of Mexico shrimp trawl'' fishery.
Bottlenose dolphin (Northern NC estuarine system stock) is added to
the list of species/stocks incidentally killed or injured in the
Category III ``U.S. Mid-Atlantic mixed species stop seine/weir/pound
net (except the NC roe mullet stop net)'' fishery.
The stock names for bottlenose dolphins incidentally killed or
injured in all Category I, II, and III fisheries in the Atlantic are
updated from ``WNA coastal'' to:
1. ``Mid-Atlantic gillnet'' fishery (Category I): Bottlenose
dolphin, Northern Migratory coastal; bottlenose dolphin, Southern
Migratory coastal; bottlenose dolphin, Northern NC estuarine system;
bottlenose dolphin, Southern NC estuarine system. A superscript ``\1\''
is retained after each of these stocks in Table 2.
2. ``NC inshore gillnet'' fishery (Category II): Bottlenose
dolphin, Northern NC estuarine system; bottlenose dolphin, Southern NC
estuarine system. A superscript ``\1\'' is retained after each of these
stocks in Table 2.
3. ``Southeast Atlantic gillnet'' fishery (Category II): Bottlenose
dolphin, Southern Migratory coastal; bottlenose dolphin, SC coastal;
bottlenose dolphin, GA coastal; bottlenose dolphin, Northern FL
coastal; bottlenose dolphin, Central FL coastal. The superscript
``[sup2]'' is retained after the fishery in Table 2.
4. ``Southeastern U.S. Atlantic shark gillnet'' fishery (Category
II): Bottlenose dolphin, Central FL coastal. A superscript ``\1\'' is
retained after this stock in Table 2.
5. ``Atlantic blue crab trap/pot'' fishery (Category II):
Bottlenose dolphin, Northern NC estuarine system; bottlenose dolphin,
Southern NC estuarine system; bottlenose dolphin, Charleston estuarine
system; bottlenose dolphin, Northern GA/Southern SC estuarine system;
bottlenose dolphin, Southern GA estuarine system; bottlenose dolphin,
Jacksonville estuarine system; bottlenose dolphin, Indian River Lagoon
estuarine system; bottlenose dolphin, Northern Migratory coastal;
bottlenose dolphin, Southern Migratory coastal; bottlenose dolphin,
Northern FL coastal; bottlenose dolphin, Central FL coastal; bottlenose
dolphin, SC coastal; bottlenose dolphin, GA coastal. A superscript
``\1\'' is retained after each of these stocks in Table 2.
6. ``Mid-Atlantic menhaden purse seine'' fishery (Category II):
Bottlenose dolphin, Northern Migratory coastal; bottlenose dolphin,
Southern Migratory coastal. The superscript ``\2\'' is retained after
the fishery in Table 2.
7. ``Mid-Atlantic haul/beach seine'' fishery (Category II):
Bottlenose dolphin, Northern NC estuarine system; bottlenose dolphin,
Northern Migratory coastal; bottlenose dolphin, Southern Migratory
coastal. A superscript ``\1\'' is retained after each of these stocks
in Table 2.
8. ``NC long haul seine'' fishery (Category II): Bottlenose
dolphin, Northern NC estuarine system. A superscript ``\1\'' is
retained after this stock in Table 2.
9. ``NC roe mullet stop net'' fishery (Category II): Bottlenose
dolphin, Southern NC estuarine system. A superscript ``\1\'' is
retained after this stock in Table 2.
10. ``VA pound net'' fishery (Category II): Bottlenose dolphin,
Northern Migratory coastal; Bottlenose dolphin, Southern Migratory
coastal. A superscript ``[sup1]'' is retained after each of these
stocks in Table 2.
11. ``Southeastern U.S. Atlantic, Gulf of Mexico shrimp trawl''
fishery (proposed to be elevated to Category II in this proposed rule):
Bottlenose dolphin, SC coastal; bottlenose dolphin, GA coastal. A
superscript ``[sup1]'' is retained after each of these stocks in Table
2.
12. ``FL spiny lobster trap/pot'' fishery (Category III):
Bottlenose dolphin, Biscayne Bay estuarine; bottlenose dolphin, FL Bay
estuarine.
13. ``Southeastern U.S. Atlantic, Gulf of Mexico stone crab trap/
pot'' fishery (Category III): Bottlenose dolphin, Biscayne Bay
estuarine.
14. ``Atlantic Ocean, Gulf of Mexico, Caribbean commercial
passenger fishing vessel'' fishery (Category III): Bottlenose dolphin,
Southern NC estuarine system; bottlenose dolphin, Indian River Lagoon
estuarine system; bottlenose dolphin, Biscayne Bay estuarine.
Commercial Fisheries on the High Seas
Fishery Classifications
The High Seas ``Pacific highly migratory species drift gillnet''
fishery is reclassified from Category I to Category III.
The High Seas ``Pacific highly migratory species purse seine''
fishery is reclassified from Category II and III. This fishery is an
extension of the ``CA tuna purse seine'' fishery operation in U.S.
waters (reclassified as Category III in this rule). NMFS inadvertently
retained the high seas portion of this fishery as Category II in the
proposed 2011 LOF. However, since the High Seas ``Pacific highly
migratory species purse seine'' fishery is an extension of the fishery
operating in U.S. waters, and not a separate fishery, it is classified
on the LOF the same as the component of the fishery operating in the
U.S. waters. In this case Category III.
Number of Vessels/Persons
The estimated number of HSFCA permits in the Category I High Seas
Atlantic highly migratory species fishery is updated for the following
gear types: Longline from 72 to 77.
The estimated number of HSFCA permits in the Category II High Seas
Atlantic highly migratory species is updated for the following gear
types: Handline/pole and line from 1 to 2; and trawl from 2 to 3.
The estimated number of HSFCA permits in the Category II High Seas
Pacific highly migratory species fishery is updated for the following
gear types: Drift gillnet from 4 to 3; longline from 62 to 75;
handline/pole and line from 22 to 25; trawl from 3 to 2; and troll from
249 to 271.
The estimated number of HSFCA permits in the Category II High Seas
South Pacific Albacore Troll fishery is updated for the following gear
types: Troll from 53 to 59.
The estimated number of HSFCA permits in the Category II High Seas
South Pacific Tuna fishery is updated for the following gear types:
Longline from 3 to 8; and purse seine from 36 to 35.
The estimated number of HSFCA permits in the Category I High Seas
Western Pacific Pelagic fishery for the following gear types: Deep-set
longline from 129 to 127.
The estimated number of HSFCA permits in the Category II High Seas
Western Pacific pelagic fishery for the following gear types: Handline/
pole and line from 9 to 10; trawl from 4 to 3; and troll from 44 to 40.
List of Species or Stocks Incidentally Killed or Injured
False killer whale (HI pelagic stock) is added to the list of
species/stocks incidentally killed or injured in the Category I
``Western Pacific pelagic longline (Deep-set component)'' fishery.
The stock of pantropical spotted dolphin incidentally killed or
injured in the Category I ``Western Pacific pelagic longline (Deep-set
component)'' fishery
[[Page 68482]]
is changed from ``stock unknown'' to ``HI stock.''
The stock of bottlenose dolphin incidentally killed or injured in
the Category I ``Western Pacific pelagic longline (Deep-set
component)'' fishery is changed from ``HI'' to ``HI Pelagic stock.''
Striped dolphin (HI stock) and Kogia spp. whale (HI stock) are
added to the list of species/stocks incidentally killed or injured in
the Category II ``Western Pacific pelagic longline (Shallow-set
component)'' fishery.
The stock of bottlenose dolphin incidentally killed or injured in
the Category II ``Western Pacific pelagic longline (Shallow-set
component)'' fishery is changed from ``stock unknown'' to ``HI Pelagic
stock.''
The stock of Bryde's whale incidentally killed or injured in the
Category II ``Western Pacific pelagic longline (Shallow-set
component)'' fishery is changed from ``stock unknown'' to ``HI stock.''
The stock of Risso's dolphin incidentally killed or injured in the
Category II ``Western Pacific pelagic longline (Shallow-set
component)'' fishery is changed from ``stock unknown'' to ``HI stock.''
Sperm whale (stock unknown) is removed from the list of species/
stocks incidentally killed or injured in the Category II High Seas
``Western Pacific pelagic longline (Shallow-set component)'' fishery.
Short-finned pilot whale (CA/OR/WA) is removed from the list of
species/stocks incidentally killed or injured in the Category III
``Pacific highly migratory species drift gillnet'' fishery.
List of Fisheries
The following tables set forth the final list of U.S. commercial
fisheries according to their classification under section 118 of the
MMPA. In Tables 1 and 2, the estimated number of vessels/participants
participating in fisheries operating within U.S. waters is expressed in
terms of the number of active participants in the fishery, when
possible. If this information is not available, the estimated number of
vessels or persons licensed for a particular fishery is provided. If no
recent information is available on the number of participants, vessels,
or persons licensed in a fishery, then the number from the most recent
LOF is used for the estimated number of vessels/persons in the fishery.
NMFS acknowledges that, in some cases, these estimations may be
inflations of actual effort; however, they represent the potential
effort for each fishery, given the multiple gear types several state
permits may allow for. Changes made to New England and Mid-Atlantic
fishery participants listed in Table 2 in this final rule will not
affect observer coverage or bycatch estimates as observer coverage and
bycatch estimates are based on vessel trip reports and landings data.
Table 1 and 2 serve to provide a description of the fishery's potential
effort (state and Federal) in the LOF. If NMFS is able to extract more
accurate information on the gear types used by state permit holders in
the future, the numbers will be corrected to reflect this change. For
additional information on fishing effort in fisheries found on Table 1
or 2, NMFS refers the reader to contact the relevant regional office
(contact information included above in SUPPLEMENTARY INFORMATION).
For high seas fisheries, Table 3 lists the number of currently
valid HSFCA permits held. Although this likely overestimates the number
of active participants in many of these fisheries, the number of valid
HSFCA permits is the most reliable data on the potential effort at this
time.
Tables 1, 2, and 3 also list the marine mammal species/stocks
incidentally killed or injured in each fishery based on observer data,
logbook data, stranding reports, disentanglement network data, and MMAP
reports. This list includes all species or stocks known to be injured
or killed in a given fishery, but also includes species or stocks for
which there are anecdotal records of an injury or mortality.
Additionally, species identified by logbook entries may not be
verified. In Tables 1 and 2, NMFS has designated those stocks driving a
fishery's classification (i.e., the fishery is classified based on
serious injuries and mortalities of a marine mammal stock that are
greater than 50 percent [Category I], or greater than 1 percent and
less than 50 percent [Category II], of a stock's PBR) by a ``\1\''after
the stock's name.
In Tables 1 and 2, there are several fisheries classified in
Category II that have no recent documented injuries or mortalities of
marine mammals, or fisheries that did not result in a serious injury or
mortality rate greater than 1 percent of a stock's PBR level. NMFS has
classified these fisheries by analogy to other Category I or II
fisheries that operate similar gear types that are known to cause
mortality or serious injury of marine mammals, as discussed in the
final LOF for 1996 (60 FR 67063, December 28, 1995), and according to
factors listed in the definition of a ``Category II fishery'' in 50 CFR
229.2. NMFS has designated those fisheries listed by analogy in Tables
1 and 2 by a ``\2\'' after the fishery's name.
There are several fisheries in Tables 1, 2, and 3 in which a
portion of the fishing vessels cross the EEZ boundary, and therefore
operate both within U.S. waters and on the high seas. NMFS has
designated those fisheries in each Table by a ``*'' after the fishery's
name.
Table 1 lists commercial fisheries in the Pacific Ocean (including
Alaska); Table 2 lists commercial fisheries in the Atlantic Ocean, Gulf
of Mexico, and Caribbean; Table 3 lists commercial fisheries on the
High Seas; and Table 4 lists fisheries affected by Take Reduction Plans
or Teams.
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Classification
At the proposed rule stage for this action, the Chief Counsel for
Regulation of the Department of Commerce certified to the Chief Counsel
for Advocacy of the Small Business Administration that this rule would
not have a significant economic impact on a substantial number of small
entities. Therefore a Final Regulatory Flexibility Analysis was not
required and none has been prepared. The factual basis leading to the
certification is set forth below.
[[Page 68504]]
Under existing regulations, all individuals participating in
Category I or II fisheries must register under the MMPA and obtain an
Authorization Certificate. The Authorization Certificate authorizes the
taking of non-endangered and non-threatened marine mammals incidental
to commercial fishing operations. Additionally, individuals may be
subject to a Take Reduction Plan (TRP) and requested to carry an
observer. NMFS has estimated that approximately 72,000 fishing vessels,
most of which are small entities, may operate in Category I or II
fisheries, and therefore, are required to register with NMFS. The MMPA
registration process is integrated with existing state and Federal
licensing, permitting, and registration programs. Therefore,
individuals who have a state or Federal fishing permit or landing
license, or who are authorized through another related state or Federal
fishery registration program, are currently not required to register
separately under the MMPA or pay the $25 registration fee. Therefore,
there are no direct costs to small entities under this final rule.
If a vessel is requested to carry an observer, individuals will not
incur any direct economic costs associated with carrying that observer.
Potential indirect costs to individuals required to take observers may
include: Lost space on deck for catch, lost bunk space, and lost
fishing time due to time needed to process bycatch data. For effective
monitoring, however, observers will rotate among a limited number of
vessels in a fishery at any given time and each vessel within an
observed fishery has an equal probability of being requested to
accommodate an observer. Therefore, the potential indirect costs to
individuals are expected to be minimal because observer coverage would
only be required for a small percentage of an individual's total annual
fishing time. In addition, section 118 of the MMPA states that an
observer will not be placed on a vessel if the facilities for
quartering an observer or performing observer functions are inadequate
or unsafe, thereby exempting vessels too small to accommodate an
observer from this requirement. As a result of this certification, an
initial regulatory flexibility analysis is not required and was not
prepared. In the event that reclassification of a fishery to Category I
or II results in a TRP, economic analyses of the effects of that plan
would be summarized in subsequent rulemaking actions.
This final rule contains collection-of-information requirements
subject to the Paperwork Reduction Act. The collection of information
for the registration of individuals under the MMPA has been approved by
the Office of Management and Budget (OMB) under OMB control number
0648-0293 (0.15 hours per report for new registrants and 0.09 hours per
report for renewals). The requirement for reporting marine mammal
injuries or mortalities has been approved by OMB under OMB control
number 0648-0292 (0.15 hours per report). These estimates include the
time for reviewing instructions, searching existing data sources,
gathering and maintaining the data needed, and completing and reviewing
the collection of information. Send comments regarding these reporting
burden estimates or any other aspect of the collections of information,
including suggestions for reducing burden, to NMFS and OMB (see
ADDRESSES and SUPPLEMENTARY INFORMATION).
Notwithstanding any other provision of law, no person is required
to respond to nor shall a 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.
This final rule has been determined to be not significant for the
purposes of Executive Order 12866.
An environmental assessment (EA) was prepared under the National
Environmental Policy Act (NEPA) for regulations to implement section
118 of the MMPA in June 1995. NMFS revised that EA relative to
classifying U.S. commercial fisheries on the LOF in December 2005. Both
the 1995 EA and the 2005 EA concluded that implementation of MMPA
section 118 regulations would not have a significant impact on the
human environment. This final rule would not make any significant
change in the management of reclassified fisheries, and therefore, this
final rule is not expected to change the analysis or conclusion of the
2005 EA. The Council of Environmental Quality (CEQ) recommends agencies
review EAs every five years; therefore, NMFS reviewed the 2005 EA in
2009. NMFS concluded that, because there have been no changes to the
process used to develop the LOF and implement section 118 of the MMPA
(including no new alternatives and no additional or new impacts on the
human environment), there is no need to update the 2005 EA at this
time. If NMFS takes a management action, for example, through the
development of a TRP, NMFS would first prepare an environmental
document, as required under NEPA, specific to that action.
This final rule would not affect species listed as threatened or
endangered under the Endangered Species Act (ESA) or their associated
critical habitat. The impacts of numerous fisheries have been analyzed
in various biological opinions, and this final rule will not affect the
conclusions of those opinions. The classification of fisheries on the
LOF is not considered to be a management action that would adversely
affect threatened or endangered species. If NMFS takes a management
action, for example, through the development of a TRP, NMFS would
conduct consultation under ESA section 7 for that action.
This final rule would have no adverse impacts on marine mammals and
may have a positive impact on marine mammals by improving knowledge of
marine mammals and the fisheries interacting with marine mammals
through information collected from observer programs, stranding and
sighting data, or take reduction teams.
This final rule would not affect the land or water uses or natural
resources of the coastal zone, as specified under section 307 of the
Coastal Zone Management Act.
References
Baird, R.W., and A.M. Gorgone. 2005. False killer whale dorsal fin
disfigurements as a possible indicator of long-line fishery
interactions in Hawaiian waters. Pacific Science 59: 593-601.
Dated: November 1, 2010.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
[FR Doc. 2010-28073 Filed 11-5-10; 8:45 am]
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