List of Fisheries for 2010
Federal Register: June 11, 2009 (Volume 74, Number 111)
Proposed Rules
Page 27739-27766
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
DOCID:fr11jn09-30
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration 50 CFR Part 229
Docket No. 090218194-9196-01
RIN 0648-AX65
List of Fisheries for 2010
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule.
SUMMARY: The National Marine Fisheries Service (NMFS) publishes its proposed List of Fisheries (LOF) for 2010, as required by the Marine
Mammal Protection Act (MMPA). The proposed LOF for 2010 reflects new information on interactions between commercial fisheries and marine mammals. NMFS must categorize 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 categorization of a fishery in 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: Comments must be received by August 10, 2009.
ADDRESSES: Send comments by any one of the following methods.
(1) Electronic Submissions: Submit all electronic comments through the Federal eRulemaking portal: http://www.regulations.gov (follow instructions for submitting comments).
(2) Mail: Chief, Marine Mammal and Sea Turtle Conservation
Division, Attn: List of Fisheries, Office of Protected Resources, NMFS, 1315 East-West Highway, Silver Spring, MD 20910.
Comments regarding the burden-hour estimates, or any other aspect of the collection of information requirements contained in this proposed 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 David
Rostker, OMB, by fax to 202-395-7285 or by email to David_
Rostker@omb.eop.gov.
Instructions: All comments received are a part of the public record and will generally be posted to http://www.regulations.gov without change. All personal identifying information (for example, name, address, etc.) voluntarily submitted by the commenter may be publicly accessible. Do not submit confidential business information or otherwise sensitive or protected information. NMFS will accept anonymous comments (enter ``N/A'' in the required fields, if you wish to remain anonymous). Attachments to electronic comments will be accepted in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only.
See SUPPLEMENTARY INFORMATION for a listing of all Regional
Offices.
FOR FURTHER INFORMATION CONTACT: Melissa Andersen, Office of Protected
Resources, 301-713-2322; David Gouveia, Northeast Region, 978-281-9280;
Anne Ney, Southeast Region, 727-551-5758; 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 1-800-877-8339 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, 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:
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NMFS, Northeast Region, Fifty five Great Republic Drive,
Gloucester, MA 01930-2298, Attn: Marcia Hobbs;
NMFS, Southeast Region, 263 13th Avenue South, St. Petersburg, FL 33701, Attn: Teletha Mincey;
NMFS, Southwest Region, 501 W. Ocean Blvd., Suite 4200, Long Beach,
CA 90802-4213, Attn: Lyle Enriquez;
NMFS, Northwest Region, 7600 Sand Point Way NE, Seattle, WA 98115,
Attn: Permits Office;
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.
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.
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.
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 proposed rule implementing section 118 of the MMPA (60
FR 45086, August 30, 1995).
Because fisheries are categorized 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 categorized 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 of 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 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.
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 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 Level of Observer Coverage in a Fishery?
Data obtained from observers and the level of observer coverage 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 in the LOF, including observer coverage. The SARs generally do not provide detailed information on observer coverage in Category III fisheries because, under the
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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. 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 Resource's website at: http://www.nmfs.noaa.gov/pr/sars/. Additional information on observer programs in commercial fisheries can be found on the NMFS National
Observer Program's website: http://www.st.nmfs.gov/st4/nop/.
How Do I Find Out if a Specific Fishery is in Category I, II, or III?
This proposed rule includes three tables that list all U.S. commercial fisheries by LOF Category. Table 1 lists all of the fisheries in the Pacific Ocean (including Alaska); Table 2 lists all of the fisheries in the Atlantic Ocean, Gulf of Mexico, and Caribbean;
Table 3 lists all U.S.-authorized fisheries on the high seas. A fourth table, Table 4, lists all 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 do not necessarily represent additional fishers that are not accounted for in
Tables 1 and 2. Many fishers holding these permits also fish within
U.S. waters and are included in the number of vessels and participants operating within those fisheries in Table 1 and 2.
HSFCA permits are valid for five years, during which time FMPs can change. Therefore, some fishers 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).
Are Treaty Tribal Fisheries Included on the LOF?
In the final rule implementing section 118 of the MMPA (60 FR 45086, August 30, 1995) NMFS concluded that treaty tribal fisheries are conducted under the authority of the Indian treaties; therefore, the
MMPA's requirements in section 118 do not apply to treaty Indian tribes. NMFS stated, `` the rights to fish and hunt are already secured separately for Northwest tribes pursuant to their treaties with the
United States. NMFS reviewed the relationship of the Northwest Indian treaties to the MMPA and did not find clear evidence that Congress intended to abrogate treaty Indian rights. Section 14 of the Amendments to the MMPA (Pub. L. No. 103-238) states 'Nothing in this Act, including any amendments to the Marine Mammal Protection Act of 1972 made by this Act -- alters or is intended to alter any treaty between the United States and one or more Indian tribes.' This provision clarifies that existing treaty Indian fishing rights are not affected by the amendments to the MMPA. Therefore, tribal fisheries are conducted under the authority of the Indian treaties rather than the
MMPA, and the MMPA's mandatory registration systems do not apply to treaty Indian fishers operating in their usual and accustomed fishing areas. Since inclusion of the treaty Indian fisheries in the LOF would also establish an obligation to obtain an MMPA registration under section 118, NMFS has deleted reference to tribal fisheries in the LOF.
The registration requirements for Category I or II fisheries will not apply to treaty Indian tribes.'' (60 FR 45086, August 30, 1995.)
During the public comment phase for the proposed 2009 LOF, NMFS received a comment requesting the LOF be amended to include tribal fisheries (73 FR 73039, December 1, 2008; comment/response 4). The commenter stated that because of the subsequent holding of the Ninth
Circuit in Anderson v. Evans, 371 F.3d 475 (9th Cir. 2002) finding that the MMPA applies to the Makah application to the gray whale hunt, NMFS' 1995 conclusion exempting tribal fisheries from the LOF and the Section 118 authorization process may no longer be valid. NMFS responded in the final 2009 LOF that the Agency would consider the comment during the development of future proposed LOFs (73 FR 73039, December 1, 2008; comment/response 4).
NMFS is evaluating whether or not the 1995 conclusion to exempt tribal fisheries from the LOF should be changed due to Anderson v.
Evans. At this time, NMFS is seeking public comment on whether or not to include treaty tribal fisheries on future LOFs during the public comment period for the proposed 2010 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 a non-endangered and non-threatened marine mammal incidental to commercial fishing. 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
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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 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 Program will receive their authorization certificates 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 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 instructions for printing the necessary documents.
How Do I Renew My Registration Under the MMPA?
Vessel or gear owners that participate in Pacific Islands,
Southwest, or Alaska regional fisheries are automatically renewed and should receive an authorization certificate by January 1 of each new year. Vessel or gear owners in Washington and Oregon fisheries receive authorization with each renewed state fishing license, the timing of which varies based on target species. 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).
Vessel or gear owners participating in Southeast or Northeast regional fisheries may receive an authorization certificate by calling the relevant NMFS Regional Office or visiting the relevant NMFS
Regional Office Web site (see How Do I Receive My Authorization
Certificate and Injury/Mortality Reporting Forms).
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 Category I, II, or III fishery must report to NMFS all incidental injuries and mortalities of marine mammals that occur during commercial fishing operations.
``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. Reporting requirements and procedures can be found in 50 CFR 229.6.
Am I Required to Take an Observer Aboard My Vessel?
Fishers participating in a Category I or II fishery are required to accommodate an observer aboard vessel(s) upon request. 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 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?
Fishers participating in a Category I or II fishery are required to comply with any applicable TRP regulations. Table 4 in this proposed rule provides a list of fisheries affected by take reduction teams and plans. Take reduction plan regulations can be found at 50 CFR 229.30 through 229.35.
Sources of Information Reviewed for the Proposed 2010 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 fisheries 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, fishery management plans, and ESA documents.
The proposed LOF for 2010 was based, among other things, on information provided in the NEPA and ESA documents analyzing authorized high seas fisheries, and 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), and 2008 (74 FR 19530,
April 29, 2009). The SARs are available at: http://www.nmfs.noaa.gov/ pr/sars/.
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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 fisheries on the 2010 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, or through state agencies. Additional details for Category I and II fisheries operating on the high seas are included in various FMPs, NEPA, or ESA documents.
American Samoa Longline Fishery
The Category II ``American Samoa longline'' fishery operates in waters around American Samoa targeting tuna (mainly albacore, also skipjack, yellowfin and bigeye). Wahoo, sharks, billfish, and other miscellaneous pelagic species are also caught, with most of the sharks and billfish released. In 2000, the ``American Samoa longline'' fishery began to expand rapidly with the influx of large (more than 50 ft (15.2 m) overall length) conventional monohull vessels, similar to the type used in the Hawaii-based longline fisheries. Vessels over 50 ft (15.2 m) may set 1,500 - 2,500 hooks and have a greater fishing range and capacity for storing fish (8 - 40 metric tons). The fleet reached a peak of 66 vessels in 2001, and set a peak of almost 7,000 sets in 2002.
The rapid expansion of longline fishing effort within the Exclusive
Economic Zone (EEZ) waters around American Samoa prompted the Western
Pacific Fishery Management Council (WPFMC) to develop a limited entry system for the fishery, implemented by NMFS in 2005. Under the limited access program, NMFS issued a total of 60 initial longline limited entry permits in 2005 to qualified candidates, spread among 4 vessel size classes (72 FR 10711, March 9, 2007): 22 permits issued in Class A
(less than or equal to 40 ft (12.2 m) length); 5 in Class B (40-50 ft
(12.2-15.2 m)); 12 in Class C (50-70 ft (15.2-21.3 m)); and 21 in Class
D (more than 70 ft (21.3 m)). The limited entry program regulations cap the maximum number of permits to the 60 initial permits issued. Permits may be transferred, upgraded, and renewed. In 2008, the American Samoa longline fishery had 28 active vessels. Observers were first placed on
American Samoa longline vessels in April 2006 to monitor protected species interactions, with observer coverage averaging approximately 6- 8 percent each year.
Under the limited entry program, vessel operators must submit federal longline logbooks, vessels over 40 ft (12.2 m) must carry observers if requested by NMFS, and vessels over 50 ft (15.2 m) must have an operational vessel monitoring system. In addition, vessel owners and operators of vessels registered to an American Samoa longline limited entry permit must attend a protected species workshop annually, carry and use dip nets, line clippers, and bolt cutters, and follow handling, resuscitation, and release requirements for incidentally hooked or entangled sea turtles (70 FR 69282, November 15, 2005). There are existing regulations intended to mitigate sea turtle incidental hookings, and in 2009 the WPFMC recommended additional measures be implemented to minimize interactions with green sea turtles, including modifications to gear to place hooks below 100 m
(328 ft) depth and to increase observer coverage (WPFMC 144th Meeting,
March 23-26, 2009). Current regulations include a prohibition on U.S. vessels greater than 50 ft (15.2 m) in length overall from using longline gear within 50 nmi around the islands of American Samoa.
American Samoa longline fishery regulations can be found at 50 CFR 665.36-38.
HI Shortline Fishery
The Category II ``HI shortline'' fishery is a small-scale system operating off the State of HI, and targeting bigeye tuna (Thunnus obesus) or the lustrous pomfret (Eumigistes illustris). This fishery was developed to target these fish species when they concentrate over the summit of Cross Seamount (290 km (180 mi) south of the State of
HI). The gear style is designed specifically to target the aggregating fish species over seamount structures. The primary gear type used is a horizontal main line (monofilament) less than 1 nmi long, and includes two baskets of approximately 50 hooks each. The gear is set before dawn and has a short soak time, with the gear retrieved about two hours after it is set. This fishery has no seasonal component and may operate year-round. There are no specific fishing permits issued for this fishery. However, all persons with a State of Hawaii Commercial Marine
License (CML) may participate in any fishery, including the ``HI shortline'' fishery. Of those persons possessing CMLs, shortline participation has changed from 5 to 11 vessels during 2003 - 2008. From 2003-2008, there was an average of 135,757 pounds (lbs) of fish landed each year. In 2008 alone, 104,152 lbs of fish were landed. Currently, there is no reporting system in place to document potential marine mammal interactions in this fishery. However, there are anecdotal reports of interactions off the north side of Maui, but the species and extent of interactions are unknown.
CA Spiny Lobster Trap Fishery
The Category II ``CA spiny lobster trap'' fishery operates in southern California, with the highest proportion of landings made into
Santa Barbara. The fishery operates from the first Wednesday in October to the first Wednesday after March 15. The fishery tends to be most productive during the first two months, when gear is set close to shore in shallow water (15 fathoms or less). By the end of the season, traps are set in waters deeper than 50 fathoms. This is a limited access fishery with both transferable and non-transferable permits. An estimated 225 permits are in use each year. There is no restriction on the number of traps set, but most vessels set 100 to 500 traps per day.
Traps are generally fished singularly and are required to have a buoy marker with the owner's license number, followed by the letter ``P'' to signify that it is a spiny lobster trap. This estimated number of vessels/participants in this fishery is 225.
Summary of Changes to the LOF for 2010
The following summarizes changes to the LOF for 2010 in fishery classification, fisheries listed in the LOF, the estimated number of vessels/participants in a particular fishery, and the species/stocks that are incidentally killed or seriously injured in a particular fishery. The classifications and definitions of U.S. commercial fisheries for 2010 are identical to those provided in the LOF for 2009 with the proposed changes discussed below. State abbreviations used in the following paragraphs include: AK (Alaska), CA (California), HI
(Hawaii), MD (Maryland), NC (North Carolina), NJ (New Jersey), SC
(South Carolina), and VA (Virginia).
Commercial Fisheries in the Pacific Ocean
Fishery Classification
NMFS proposed to elevate the ``American Samoa longline'' fishery from Category III to Category II based on analogy with other Category I and II longline fisheries in the tropical/sub-tropical latitudes of the
Pacific. The fishing gear and methods used to fish in the ``American
Samoa longline'' fishery are similar to the Category I ``HI deep-set
(tuna target) longline/set line'' and
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the Category II ``HI shallow-set (swordfish target) longline/set line'' fisheries, both fisheries which frequently or occasionally seriously injure or kill marine mammals. The ``American Samoa longline'' fishery, although a Category III, has been observed since 2006 with an average of 7.2 percent coverage. There were three interactions between the
``American Samoa longline'' fishery and marine mammals in 2008, two false killer whales (stock unknown), one of which was a mortality, and one rough-tooth dolphin (stock unknown). These interactions will be analyzed by the Southwest Fisheries Science Center (SWFSC) during the development of the 2010 SARs to determine whether or not the surviving animals were injured or seriously injured during these interactions.
The analysis may also enable NMFS to determine whether or not the false killer whales interacting with this fishery are from the HI stock which interacts with the ``HI deep-set (tuna target) longline/set line'' fishery, or if the animals belong to a separate stock associated with
American Samoa. Although the abundance estimate and the PBR for the false killer whales are unknown, the population around American Samoa may be a relatively small, island-associated population, as has been documented around other Pacific Islands. When completed, the results of these analyses will be reported and addressed in future LOFs.
NMFS proposes to reclassify the ``AK southeast salmon purse seine'' fishery from Category II to Category III. The current Category II classification is based on one permit holder self-report of an incidental mortality of a humpback whale (Central North Pacific) in this fishery in 1996. There are no further self-reports, known entanglements, or anecdotal information of any humpback whales or other marine mammals injured or killed in this fishery since 1996. Though entanglements of humpbacks occur annually in Southeast Alaska, gear found on such animals in Southeast Alaska has never been identified as purse seine gear. While the ``AK southeast salmon purse seine'' fishery has never been observed, NMFS reasons that some additional information on incidental takes would have come to light over the thirteen years since the first report if there were a level of serious injury and mortality of concern in this fishery, either through strandings/ entanglement network data or permit holder self-reports.
NMFS stated in a response to public comments in the final 2009 LOF that the agency would review sperm whale (North Pacific) interactions in the Category III ``Gulf of Alaska sablefish longline'' fishery. The 2008 SAR reports three sperm whales were observed seriously injured in this fishery in 2006 (with 11.2 percent observer coverage), which extrapolates to 10 sperm whales from 2002-2006 (or an average annual serious injury or mortality level of two sperm whales/year). Analysis for more recent years' data is not complete, and there is no calculated
PBR for this stock. Therefore, no change to this fishery's category is recommended at this time. NMFS will continue to review sperm whale interactions with this fishery and will revisit the classification of the fishery on future LOFs, if warranted, once the more recent years' data are analyzed and reported.
NMFS proposes to classify the ``CA spiny lobster trap'' fishery
(proposed to be split from the Category III ``CA spiny lobster, coonstripe shrimp, rock crab, tanner crab pot or trap'' fishery, proposed to be renamed the ``CA coonstripe shrimp, rock crab, tanner crab pot or trap'' fishery, in this proposed rule) as Category II based on serious injuries to humpback whales (CA/OR/WA). The NMFS Large Whale
Disentanglement Network (LWDN) reported four humpback whale entanglement events off CA resulting in serious injury, with various types of fishing gear, in 2007. (Details on humpback whale entanglements on the west coast prior to 2007 can be found in the 2009 proposed LOF (73 FR 33760; June 13, 2008.)) The gear involved in a July 2007 entanglement event that caused a serious injury to a humpback whale was identified as lobster trap gear. The total annual rate of mortality and serious injury (Tier 1 analysis) of humpback whales (CA/
OR/WA) in all commercial fisheries from 2002 through 2006 exceeds 10 percent of the PBR level for this stock (final 2008 SAR). This single serious injury of a humpback whale in lobster trap gear results in an average mortality and serious injury rate of 0.2 humpback whales/year
(when averaged over 5 years), or 8 percent of the PBR (2.5). Therefore,
Category II classification is warranted. NMFS acknowledges that entanglements reported to the LWDN likely represent a minimum number of interactions. There is no observer coverage in this fishery.
NMFS proposes to reclassify the ``CA pelagic longline'' fishery from Category II to Category III. This fishery includes the shallow-set longline fishery that previous to 2004 operated on the high seas with most vessels landing in CA. In 2004, this fishery was prohibited inside the EEZ under a regulation promulgated under the ESA in order to protect loggerhead sea turtles. This fishery also includes a deep-set longline fishery that developed since 2005. The classification of this fishery as Category II was based upon analogy with other pelagic longline fisheries and an injury of a Risso's dolphins (CA/OR/WA) in 2003. In addition, one mortality of an unidentified dolphin was observed in this fishery in 2003. The total annual fishery mortality and serious injury of Risso's dolphins (CA/OR/WA) in all commercial fisheries (Tier 1 analysis) is less than10 percent of the stock's PBR
(final 2008 SAR); therefore, Category III classification is warranted.
NMFS has no information to indicate that the ``CA pelagic longline'' fishery interacts with other marine mammal species/stocks and observer coverage is high in this fishery (ranged from 12 percent to 50 percent from 2003-2005, and was 100 percent in 2006 and 2007).
Addition of Fisheries to the LOF
NMFS proposes to add the ``CA spiny lobster trap'' fishery Category
II fishery (see the discussion in the previous section for details).
NMFS proposes to add the ``HI shortline'' fishery as Category II based on analogy with the Category I ``HI deep-set (tuna-target) longline/set line'' and Category II ``HI shallow-set (swordfish-target) longline/set line'' fisheries. NMFS recently became aware of the operation of this commercial fishery. NMFS proposes to classify the
``HI shortline'' fishery as Category II by analogy to the HI longline fisheries based on similarities between the gear used, areas fished, and species targeted in the three fisheries. NMFS has received anecdotal reports of interactions with marine mammals in this fishery; however, the species and extent of the interactions are unknown. For more information, see the description of this fishery in the ``Fishery
Descriptions'' section of this proposed rule.
Fishery Name and Organizational Changes and Clarifications
NMFS proposes to rename the Category III ``CA spiny lobster, coonstripe shrimp, rock crab, tanner crab pot or trap'' fishery to the
``CA coonstripe shrimp, rock crab, tanner crab pot or trap'' fishery to more accurately reflect the target species of the fishery. As explained above, the spiny lobster portion of this fishery is proposed to be added to 2010 LOF as a separate Category II fishery. The estimated number of vessels/participants in the Category III ``CA
Page 27745
coonstripe shrimp, rock crab, tanner crab pot or trap'' fishery is 305.
List of Species That are Incidentally Killed or Injured
NMFS proposes to change the stock name for false killer whales incidentally killed/injured in the ``HI deep-set (tuna-target) longline/set line'' fishery from ``HI'' to ``HI pelagic.'' The 2008
SARs separates the ``HI'' stock into the ``HI insular'' and ``HI pelagic'' stocks, stating that all of the false killer whale injuries and mortalities due to interactions with longline fisheries are considered to be from the ``HI pelagic'' stock (74 FR 19530, April 29, 2009).
NMFS proposes to add pantropical spotted dolphin (stock unknown) to the list of species/stocks incidentally killed/injured in the Category
I ``HI deep-set (tuna target) longline/set line'' fishery based on a documented mortality in 2008. While analysis of the 2008 observer data will not be finalized until publication of the 2010 SARs, NMFS proposes to add the species at this time because a mortality does not need to be analyzed to determine the severity (as is necessary for an animal released after an interaction). The average observer coverage over the past five years was 22.7 percent.
NMFS proposes to remove spinner dolphin (HI) from the list of species/stocks incidentally killed/injured in the Category I ``HI deep- set (tuna target) longline/set line'' fishery because there have been no observed interactions in the past five years. The average observer coverage over the past five years was 22.7 percent.
NMFS proposes to remove pantropical spotted dolphin (stock unknown) from the list of species/stocks incidentally killed/injured in the
Category II ``HI shallow-set (swordfish target) longline/set line'' fishery. There have been no observed interactions in the past five years and observer coverage is 100 percent.
NMFS indicated in the final 2009 LOF (73 FR 73032, December 1, 2008; comment response 15) that the agency would reexamine 2008 observer data which reported an interaction between the Category II
``HI shallow-set (swordfish target) longline/set line'' fishery and a false killer whale. NMFS is not proposing to add false killer whales to the list of species/stocks incidentally killed/injured in the ``HI shallow-set (swordfish target) longline/set line'' fishery at this time. As stated in the final 2009 LOF (comment response 15), 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. Therefore, this 2008 interaction will be analyzed by the SWFSC during the development of the 2010 SARs to determine whether or not the animal was injured or seriously injured during this interaction. If the SWFSC analysis reveals the animal was injured during the interaction, NMFS will add false killer whales to a future LOF at that time.
NMFS proposes to add false killer whale (stock unknown) to the list of species/stocks incidentally killed/injured in the ``American Samoa longline'' fishery (proposed to be elevated from Category III to
Category II in this proposed rule) based on a mortality reported in 2008. As stated above during NMFS' justification for proposing to elevate this fishery to Category II, there were two reported interactions with false killer whales (stock unknown) (one interaction resulted in the animal's mortality and the other animal was released alive with the injury status not yet analyzed), and one with a rough- toothed dolphin (stock unknown) (also released alive with the injury status not yet analyzed). NMFS proposes to add false killer whale
(stock unknown) to the list of species/stocks incidentally killed/ injured because the mortality does not need to be analyzed further to determine the level of injury to the animal. However, NMFS is not proposing to add rough-toothed dolphin (stock unknown) to list of species/stocks incidentally killed/injured until after the SWFSC completes the analysis of the interaction and determines whether or not the animal was injured during the interaction. If the analysis reveals that the animal was injured during this interaction, NMFS will add rough-toothed dolphin (stock unknown) to a future LOF at that time.
NMFS proposes to remove humpback whales (Central North Pacific) from the list of species/stocks incidentally killed or injured in the
``AK southeast salmon purse seine'' fishery (proposed to be reclassified from Category II to Category III in this proposed rule).
There are no self-reports, known entanglements, or anecdotal information of any humpback whales or other marine mammals injured or killed in this fishery since 1996. This fishery has never been observed, but stranding and entanglement networks are active in the area.
NMFS proposes to change the stock name for Northern fur seals on the list of species/stocks incidentally killed or injured in the
Category II ``AK Bering Sea, Aleutian Islands flatfish trawl'' fishery from ``Eastern North Pacific'' to ``Eastern Pacific,'' to correct a typographical error. This stock has been referred to as the ``Eastern
Pacific'' stock since the 1998 SARs.
NMFS proposes to remove short-finned pilot whales (CA/OR/WA) from the list of species/stocks incidentally killed or injured in the
Category II ``CA squid purse seine'' fishery. NMFS has reviewed the available information on the distribution and abundance of short finned pilot whales, along with observer records, self-reports from the fishers, and the SWR stranding data base, and has concluded that the likelihood of interactions between this fishery and short-finned pilot whales (CA/OR/WA) is extremely remote. Short-finned pilot whales were once commonly seen off the coast of CA, but have become quite rare in recent years (Barlow and Forney 2007). Observer coverage in the ``CA squid purse seine'' fishery began in 2004 with less than 10 percent observer coverage. In 2005 and 2006, observer coverage was approximately 2.0 percent and 1.3 percent, respectively.
NMFS proposes to add a superscript ``1'' after long-beaked common dolphins (CA) in the list of species/stocks incidentally killed or injured in the Category II ``CA squid purse seine'' fishery. This fishery was classified as a Category II based on the level of serious injury and mortality of short-finned pilot whales (CA/OR/WA), which
NMFS proposes to remove from the list of species/stocks incidentally killed or injured in this proposed rule (see preceding paragraph). The
``CA squid purse seine'' fishery will remain a Category II fishery due to a serious injury with a suspected long-beaked common dolphin. As described in the final 2009 LOF (73 FR 73032, December 1, 2008) an unidentified common dolphin was observed entangled and seriously injured during an interaction with the squid purse seine fishery in 2006 in an area where long-beaked common dolphins (CA) are known to occur. Given the area in which the interaction occurred, the unidentified common dolphin could have been a short-beaked common dolphin (CA) or a long-beaked common dolphin (CA). Due to the paucity of the information on the interaction and the low level of observer coverage in this fishery, NMFS cannot eliminate the possibility that a long-beaked common dolphin was seriously injured during this event. The level of serious injury of long-beaked common dolphin in this fishery, when extrapolated from the level of observer coverage, results in a mean annual mortality and serious injury of approximately 29 animals, which is 30 percent of the stock's PBR (95) and consistent with
Category II
Page 27746
classification. Observer coverage in the ``CA squid purse seine'' fishery began in 2004 with less than 10 percent observer coverage. In 2005 and 2006, observer coverage was approximately 2.0 percent and 1.3 percent, respectively.
NMFS proposes to add humpback whale (CA/OR/WA) and gray whale
(Eastern North Pacific) to the list of species/stocks incidentally killed or injured in the ``CA spiny lobster'' fishery (proposed to be classified as Category II in this proposed rule), with a superscript
``1'' after humpback whales, indicating that takes of this stock are driving the classification of the fishery. As described above, a humpback whale was reported seriously injured due to an entanglement in spiny lobster trap gear in July 2007, resulting in an average annual serious injury and mortality level of 8 percent of the stock's PBR.
Gray whales (Eastern North Pacific) have also been reported incidentally killed or injured in this fishery. NMFS has received multiple reports of gray whales entangled in trap/pot gear off CA, including a report from April 2000 of a dead gray whale stranded on a beach in Santa Barbara County entangled in spiny lobster trap gear.
Interactions with gray whales are not driving the Category II classification of this fishery. Currently, total commercial fishery- related annual mortality levels less than10 percent of the stock's PBR
(final 2007 SAR); therefore, a Tier 2 evaluation is not necessary.
NMFS is requesting public comment and/or information on two large whale entanglement events in 2007. On May 10, 2007, a free-swimming humpback whale was reported seriously injured with pink monofilament gillnet draped on its body. The animal was first seen offshore of Dana
Point and was seen again later the same day off Palos Verdes Bay Club, of Palos Verdes, CA. On April 2, 2007, a free-swimming gray whale was reported entangled in and seriously injured by small mesh blue/green monofilament gillnet. The animal was seen at Rocky Point, near Rancho
Palos Verdes, CA. No other information is available on the sightings.
Based upon the area and time of year that these animals were sighted, gear from either or both of the Category II ``CA halibut/white seabass and other species set gillnet (3.5 in mesh)'' or the ``CA yellowtail, barracuda, and white seabass drift gillnet (mesh size [gteqt]3.5 in and 3.5 in mesh)'' fishery was observed only once between 2003 and 2007, with 17.8 percent coverage in 2007. The
``CA yellowtail, barracuda, and white seabass drift gillnet (mesh size
gteqt 3.5 in and 370 to 7,596.
NMFS proposes to update the estimated number of vessels or persons in the Category I ``Northeast sink gillnet'' fishery from 341 to
>6,455.
NMFS proposes to update the estimated number of vessels or persons in the Category II ``Atlantic mixed species trap/pot'' fishery from unknown to >429.
NMFS proposes to update the estimated number of vessels or persons in the Category II ``Mid-Atlantic menhaden purse seine'' fishery from 22 to 34.
NMFS proposes to update the estimated number of vessels or persons in the Category II ``Mid-Atlantic haul/beach seine'' fishery from 25 to
>221.
NMFS proposes to update the estimated number of vessels or persons in the Category II ``Mid Atlantic mid-water trawl'' fishery from 620 to 400.
NMFS proposes to update the estimated number of vessels or persons in the Category II ``Northeast bottom trawl'' fishery from 1052 to 1,600.
NMFS proposes to update the estimated number of vessels or persons in the Category II ``Northeast mid-water trawl'' fishery from 17 to 1,000.
NMFS proposes to update the estimated number of vessels or persons in the Category II ``VA pound net'' fishery from 187 to 62.
NMFS proposes to update the estimated number of vessels or persons in the Category III ``Gulf of Maine Atlantic herring purse seine'' fishery from 30 to of vessels/
incidentally killed/ persons
injured
CATEGORY I
GILLNET FISHERIES:
CA/OR thresher shark/swordfish drift gillnet ([gteqt]14 in mesh) \*\ 85
California sea lion,
U.S.
Long-beaked common dolphin, CA
Northern elephant seal, CA breeding
Northern right-whale dolphin, CA/OR/WA
Pacific white-sided dolphin, CA/OR/WA
Risso's dolphin, CA/
OR/WA
Short-beaked common dolphin, CA/OR/WA
Short-finned pilot whale, CA/OR/WA\1\
LONGLINE/SET LINE FISHERIES:
HI deep-set (tuna target) longline/set line \*\
129
Blainville's beaked whale, HI
Bottlenose dolphin,
HI
False killer whale,
HI pelagic\1\
Humpback whale,
Central North
Pacific
Pantropical spotted dolphin, stock unknown
Risso's dolphin, HI
Short-finned pilot whale, HI
Striped dolphin, HI
CATEGORY II
GILLNET FISHERIES:
CA halibut/white seabass and other species set gillnet (>3.5 in mesh) 58
.....................
California sea lion,
U.S.\1\
Harbor seal, CA\1\
Long-beaked common dolphin, CA
Northern elephant seal, CA breeding
Sea otter, CA
Short-beaked common dolphin, CA/OR/WA
CA yellowtail, barracuda, and white seabass drift gillnet fishery
24
California sea lion,
(mesh size [gteqt]3.5 in and 1
None documented
CA white seabass enhancement net pens
13
California sea lion,
U.S.
HI offshore pen culture
2
None documented
OR salmon ranch
1
None documented
WA/OR salmon net pens
14
California sea lion,
U.S.
Harbor seal, WA inland waters
TROLL FISHERIES:
AK North Pacific halibut, AK bottom fish, WA/OR/CA albacore,
1,302 (102 AK)
None documented groundfish, bottom fish, CA halibut non-salmonid troll fisheries \*\
Page 27754
AK salmon troll
2,045
Steller sea lion,
Eastern U.S.
Steller sea lion,
Western U.S.
American Samoa tuna troll
7,000
Killer whale, stock
(2,702 AK)
unknown
Steller sea lion,
Eastern U.S.
Steller sea lion,
Western U.S.
HI charter vessel
114
None documented
LIVE FINFISH/SHELLFISH FISHERIES:
CA nearshore finfish live trap/hook-and-line
93
None documented
List of Abbreviations and Symbols Used in Table 1: AK - Alaska; CA - California; GOA - Gulf of Alaska; HI -
Hawaii; OR - Oregon; WA - Washington; \1\ Fishery classified based on serious injuries and mortalities of this stock, which are greater than 50 percent (Category I) or greater than 1 percent and less than 50 percent
(Category II) of the stock's PBR; \2\ Fishery classified by analogy; \*\ Fishery has an associated high seas component listed in Table 3.
Table 2--List of Fisheries -- Commercial Fisheries in the Atlantic Ocean, Gulf of Mexico, and Caribbean
Marine mammal species
Estimated of vessels/
incidentally killed/ persons
injured
CATEGORY I
GILLNET FISHERIES:
Mid-Atlantic gillnet
7,596
Bottlenose dolphin,
WNA coastal\1\
Bottlenose dolphin,
WNA offshore
Common dolphin, WNA
Gray seal, WNA
Harbor porpoise, GME/
BF
Harbor seal, WNA
Harp seal, WNA
Humpback whale, Gulf of Maine
Long-finned pilot whale, WNA
Minke whale, Canadian east coast
Short-finned pilot whale, WNA
White-sided dolphin,
WNA
Northeast sink gillnet
>6,455
Bottlenose dolphin,
WNA offshore
Common dolphin, WNA
Fin whale, WNA
Gray seal, WNA
Harbor porpoise, GME/
BF\1\
Harbor seal, WNA
Harp seal, WNA
Hooded seal, WNA
Humpback whale, Gulf of Maine
Minke whale, Canadian east coast
North Atlantic right whale, WNA
Risso's dolphin, WNA
White-sided dolphin,
WNA
LONGLINE FISHERIES:
Page 27758
Atlantic Ocean, Caribbean, Gulf of Mexico large pelagics longline \*\ 94
Atlantic spotted dolphin, Northern
GMX
Atlantic spotted dolphin, WNA
Bottlenose dolphin,
Northern GMX oceanic
Bottlenose dolphin,
Northern GMX continental shelf
Bottlenose dolphin,
WNA offshore
Common dolphin, WNA
Cuvier's beaked whale, WNA
Long-finned pilot whale, WNA\1\
Mesoplodon beaked whale, WNA
Northern bottlenose whale, WNA
Pantropical spotted dolphin, Northern
GMX
Pantropical spotted dolphin, WNA
Risso's dolphin,
Northern GMX
Risso's dolphin, WNA
Short-finned pilot whale, Northern GMX
Short-finned pilot whale, WNA\1\
TRAP/POT FISHERIES:
Northeast/Mid-Atlantic American lobster trap/pot
13,000
Harbor seal, WNA
Humpback whale, Gulf of Maine
Minke whale, Canadian east coast
North Atlantic right whale, WNA\1\
CATEGORY II
GILLNET FISHERIES:
Chesapeake Bay inshore gillnet\2\
45
None documented in recent years
Gulf of Mexico gillnet\2\
724
Bottlenose dolphin,
Eastern GMX coastal
Bottlenose dolphin,
GMX bay, sound, and estuarine
Bottlenose dolphin,
Northern GMX coastal
Bottlenose dolphin,
Western GMX coastal
NC inshore gillnet
94
Bottlenose dolphin,
WNA coastal\1\
Northeast anchored float gillnet\2\
133
Harbor seal, WNA
Humpback whale, Gulf of Maine
White-sided dolphin,
WNA
Northeast drift gillnet\2\
unknown
None documented
Southeast Atlantic gillnet\2\
779
Bottlenose dolphin,
WNA coastal
Southeastern U.S. Atlantic shark gillnet
30
Atlantic spotted dolphin, WNA
Bottlenose dolphin,
WNA coastal\1\
North Atlantic right whale, WNA
TRAWL FISHERIES:
Mid-Atlantic mid-water trawl (including pair trawl)
400
Bottlenose dolphin,
WNA offshore
Common dolphin, WNA
Long-finned pilot whale, WNA
Risso's dolphin, WNA
Short-finned pilot whale, WNA
White-sided dolphin,
WNA\1\
Mid-Atlantic bottom trawl
>1,000
Common dolphin,
WNA\1\
Long-finned pilot whale, WNA\1\
Short-finned pilot whale, WNA\1\
White-sided dolphin,
WNA
Mid-Atlantic flynet\2\
21
None documented
Page 27759
Northeast mid-water trawl (including pair trawl)
1,000
Harbor seal, WNA
Long-finned pilot whale, WNA\1\
Short-finned pilot whale, WNA\1\
White-sided dolphin,
WNA
Northeast bottom trawl
1,600
Common dolphin, WNA
Harbor porpoise, GME/
BF
Harbor seal, WNA
Harp seal, WNA
Long-finned pilot whale, WNA
Short-finned pilot whale, WNA
White-sided dolphin,
WNA\1\
TRAP/POT FISHERIES:
Atlantic blue crab trap/pot
>16,000
Bottlenose dolphin,
WNA coastal\1\
West Indian manatee,
FL\1\
Atlantic mixed species trap/pot\2\
>429
Fin whale, WNA
Humpback whale, Gulf of Maine
PURSE SEINE FISHERIES:
Gulf of Mexico menhaden purse seine
40-42
Bottlenose dolphin,
Eastern GMX coastal
Bottlenose dolphin,
GMX bay, sound, estuarine
Bottlenose dolphin,
Northern GMX coastal\1\
Bottlenose dolphin,
Western GMX coastal\1\
Mid-Atlantic menhaden purse seine\2\
34
Bottlenose dolphin,
WNA coastal
HAUL/BEACH SEINE FISHERIES:
Mid-Atlantic haul/beach seine
>221
Bottlenose dolphin,
WNA coastal\1\
NC long haul seine
33
Bottlenose dolphin,
WNA coastal\1\
STOP NET FISHERIES:
NC roe mullet stop net
13
Bottlenose dolphin,
WNA coastal\1\
POUND NET FISHERIES:
VA pound net
62
Bottlenose dolphin,
WNA coastal\1\
CATEGORY III
GILLNET FISHERIES:
Caribbean gillnet
>991
Dwarf sperm whale,
WNA
West Indian manatee,
Antillean
DE River inshore gillnet
60
None documented in recent years
Long Island Sound inshore gillnet
20
None documented in recent years
RI, southern MA (to Monomoy Island), and NY Bight (Raritan and Lower 32
None documented in
NY Bays) inshore gillnet
recent years
Southeast Atlantic inshore gillnet
unknown
None documented
TRAWL FISHERIES:
Atlantic shellfish bottom trawl
972
None documented
Page 27760
Southeastern U.S. Atlantic, Gulf of Mexico shrimp trawl
>18,000
Bottlenose dolphin,
WNA coastal
Bottlenose dolphin,
Eastern GMX coastal
Bottlenose dolphin,
Western GMX coastal
Bottlenose dolphin,
GMX bay, sound, estuarine
West Indian manatee,
FL
Gulf of Mexico butterfish trawl
2
Bottlenose dolphin,
Northern GMX oceanic
Bottlenose dolphin,
Northern GMX continental shelf
Gulf of Mexico mixed species trawl
20
None documented
GA cannonball jellyfish trawl
1
None documented
MARINE AQUACULTURE FISHERIES:
Finfish aquaculture
48
Harbor seal, WNA
Shellfish aquaculture
unknown
None documented
PURSE SEINE FISHERIES:
Gulf of Maine Atlantic herring purse seine
5,000
None documented grouper and other reef fish bottom longline/hook-and-line
Southeastern U.S. Atlantic, Gulf of Mexico shark bottom longline/hook- 501
None documented
Caribbean spiny lobster trap/pot
>197
None documented
FL spiny lobster trap/pot
2,145
Bottlenose dolphin,
Eastern GMX coastal
Bottlenose dolphin,
WNA coastal
Gulf of Mexico blue crab trap/pot
4,113
Bottlenose dolphin,
Western GMX coastal
Bottlenose dolphin,
Northern GMX coastal
Bottlenose dolphin,
Eastern GMX coastal
Bottlenose dolphin,
GMX Bay, Sound, &
Estuarine
West Indian manatee,
FL
Gulf of Mexico mixed species trap/pot
unknown
None documented
Southeastern U.S. Atlantic, Gulf of Mexico golden crab trap/pot
10
None documented
Page 27761
Southeastern U.S. Atlantic, Gulf of Mexico stone crab trap/pot
4,453
Bottlenose dolphin,
WNA coastal
U.S. Mid-Atlantic eel trap/pot
>700
None documented
STOP SEINE/WEIR/POUND NET FISHERIES:
Gulf of Maine herring and Atlantic mackerel stop seine/weir
50
Gray seal, Northwest
North Atlantic
Harbor porpoise, GME/
BF
Harbor seal, WNA
Minke whale, Canadian
East Coast
White-sided dolphin,
WNA
U.S. Mid-Atlantic crab stop seine/weir
2,600
None documented
U.S. Mid-Atlantic mixed species stop seine/weir/pound net (except the 751
None documented
NC roe mullet stop net)
DREDGE FISHERIES:
Gulf of Maine mussel
>50
None documented
Gulf of Maine, U.S. Mid-Atlantic sea scallop dredge
233
None documented
U.S. Mid-Atlantic/Gulf of Mexico oyster
7,000
None documented
U.S. Mid-Atlantic offshore surf clam and quahog dredge
100
None documented
HAUL/BEACH SEINE FISHERIES:
Caribbean haul/beach seine
15
West Indian manatee,
Antillean
Gulf of Mexico haul/beach seine
unknown
None documented
Southeastern U.S. Atlantic haul/beach seine
25
None documented
DIVE, HAND/MECHANICAL COLLECTION FISHERIES:
Atlantic Ocean, Gulf of Mexico, Caribbean shellfish dive, hand/
20,000
None documented mechanical collection
Gulf of Maine urchin dive, hand/mechanical collection
>50
None documented
Gulf of Mexico, Southeast Atlantic, Mid-Atlantic, and Caribbean cast unknown
None documented net
COMMERCIAL PASSENGER FISHING VESSEL (CHARTER BOAT) FISHERIES:
Atlantic Ocean, Gulf of Mexico, Caribbean commercial passenger
4,000
Bottlenose dolphin, fishing vessel
Eastern GMX coastal
Bottlenose dolphin,
Northern GMX coastal
Bottlenose dolphin,
Western GMX coastal
Bottlenose dolphin,
WNA coastal
List of Abbreviations and Symbols Used in Table 2: DE - Delaware; FL - Florida; GA - Georgia; GME/BF - Gulf of
Maine/Bay of Fundy; GMX - Gulf of Mexico; MA - Massachusetts; NC - North Carolina; VA - Virginia; WNA -
Western North Atlantic; \1\ Fishery classified based on serious injuries and mortalities of this stock, which are greater than 50 percent (Category I) or greater than 1 percent and less than 50 percent (Category II) of the stock's PBR; \2\ Fishery classified by analogy; \*\ Fishery has an associated high seas component listed in Table 3.
BILLING CODE 3510-22-S
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Classification
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. The factual basis leading to the certification is set forth below.
Under existing regulations, all fishers participating in Category I or II fisheries must register under the MMPA and obtain an
Authorization Certificate. The Authorization Certificate authorizes the taking of marine mammals incidental to commercial fishing operations.
Additionally, fishers may be subject to a Take Reduction Plan (TRP) and requested to carry an observer. NMFS has estimated that approximately 59,500 fishing vessels, most of which are small entities, 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, fishers who have a federal or state fishery permit or landing license, or who are authorized through another related federal or state 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 proposed rule.
If a vessel is requested to carry an observer, fishers will not incur any direct economic costs associated with carrying that observer.
Potential indirect costs to individual fishers 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 individual fishers 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 will be summarized in subsequent rulemaking actions.
This proposed rule contains collection-of-information requirements subject to the Paperwork Reduction Act. The collection of information for the registration of fishers 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 proposed 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 proposed rule would not make any significant change in the management of reclassified fisheries, and therefore, this proposed 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 not a need to update the 2005 EA at this time. If NMFS takes a management action, for example, through the development of a TRP, NMFS will first prepare an environmental document, as required under NEPA, specific to that action.
This proposed rule will 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 proposed 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 proposed rule will 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 proposed rule will 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
Barlow, J., and K.A. Forney. 2007. Abundance and population density of cetaceans in the California Current ecosystem. Fishery Bulletin 105:509-526.
Dated: June 4, 2009.
James W. Balsiger,
Acting Assistant Administrator for Fisheries, National Marine Fisheries
Service.
FR Doc. E9-13714 Filed 6-10-09; 8:45 am
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