[Federal Register Volume 61, Number 137 (Tuesday, July 16, 1996)]
[Proposed Rules]
[Pages 37035-37041]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18002]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 229

[Docket No. 950605147-6189-04; I.D. 040996D]
RIN 0648-AH33


Proposed List of Fisheries for 1997

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

ACTION: Proposed rule; request for comments.

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SUMMARY: This action proposes changes for 1997 to the List of Fisheries 
(LOF) required by the Marine Mammal Protection Act (MMPA). The proposed 
LOF for 1997 reflects new information on commercial fisheries, marine 
mammals, and interactions between commercial fisheries and marine 
mammals. Under the MMPA, a commercial fishery is to be placed on the 
LOF in one of three categories based upon the level of serious injuries 
and mortalities that occur to marine mammals incidental to that 
fishery. The LOF informs the public of the level of interactions with 
marine mammals in various U.S. commercial fisheries and which fisheries 
are subject to certain provisions of the Marine Mammal Protection Act 
(MMPA) such as the requirement to register for Authorization 
Certificates. This action also proposes to revise the process for 
registering for such a certificate, under certain circumstances, to 
allow greater flexibility and to reduce associated paperwork and other 
burdens.

DATES: Comments on the proposed rule must be received by October 15, 
1996.

ADDRESSES: Send comments to Chief, Marine Mammal Division, Office of 
Protected Resources, National Marine Fisheries Service, 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 sent to the above individual and to the Office of 
Information and Regulatory Affairs, OMB, Attention: NOAA Desk Officer, 
Washington, DC 20503.

FOR FURTHER INFORMATION CONTACT: Robyn Angliss, Office of Protected 
Resources, 301-713-2322; Douglas Beach, Northeast Region, 508-281-9254; 
Charles Oravetz, Southeast Region, 813-570-5301; James Lecky, Southwest 
Region, 310-980-4015; Brent Norberg, Northwest Region, 206-526-6140; 
Steven Zimmerman, Alaska Region, 907-586-7235.

SUPPLEMENTARY INFORMATION:

Background

History of the List of Fisheries

    The annual publication of a LOF placing all U.S. commercial 
fisheries into one of three categories based on the levels of 
incidental serious injury and mortality of marine mammals in the 
fishery is required by section 118 of the Marine Mammal Protection Act, 
as amended in 1994. Proposed and final regulations implementing section 
118 of the MMPA were published in 1995 (60 FR 31666, June 17, 1995, and 
60 FR 45086, August 30, 1995, respectively). These regulations replaced 
those published to implement old section 114, and establish the 
procedures NMFS now uses to manage incidental interactions between 
marine mammals and U.S. commercial fisheries.
    Definitions of the fishery classification criteria for Category I, 
II, and III fisheries are found in the implementing regulations for 
section 118 (50 CFR part 229). Because classification of fisheries in 
the LOF depends on the definitions of the criteria, the following 
explanation of the criteria is provided. Although this information is 
available in the preambles to final rule implementing section 118 and 
to the LOF for 1996, it is repeated here because of the importance of 
this information to understanding how fisheries are classified.

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 the rate, 
in numbers of animals per year, of serious injuries and mortalities due 
to commercial fishing relative to the Potential Biological Removal 
(PBR) level for the each marine mammal stock.
    Tier 1. If the total annual mortality and serious injury across all 
fisheries that interact with a stock is less than or equal to 10 
percent of the PBR level of such a stock, then all fisheries 
interacting with this stock would be placed in Category III. Otherwise, 
these fisheries are subject to the next tier to determine their 
classification.

    Tier 2--Category I. Annual mortality and serious injury of a stock 
in a given

[[Page 37036]]

fishery is greater than or equal to 50 percent of the PBR level.
    Tier 2--Category II. Annual mortality and serious injury 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 in a 
given fishery is less than or equal to 1 percent of the PBR level.
    Tier 1, therefore, considers the cumulative fishery mortality and 
serious injury for a particular stock, while Tier 2 considers fishery-
specific mortality for a particular stock. Additional details regarding 
how threshold percentages between the categories were determined are 
provided in the preamble to the final rule implementing section 118.

Requirements for Vessels Participating in Category I and II 
Fisheries

    The primary functions of the LOF are to inform the public of the 
levels of interactions with marine mammals in various commercial 
fisheries and to identify fisheries for which efforts to reduce these 
interactions may be necessary. In addition, the LOF informs the fishing 
industry of which fisheries are subject to certain provisions of the 
MMPA.
    Registration. Fishers participating in Category I or II fisheries 
must be registered under the MMPA, as required by 50 CFR 229.4. Unless 
the Authorization Certificate program for a fishery is integrated and 
coordinated with existing fishery license, registration or permit 
systems and related programs, fishers must obtain a registration packet 
from NMFS and submit the completed registration form and the required 
registration fee to the NMFS Regional Office in which their fishery 
operates. Normally, NMFS will send the fisher an Authorization 
Certificate, program decal, and reporting forms within 60 days of 
receiving the registration form and registration fee.
    NMFS has successfully integrated registration under the MMPA with 
state fishery registration in Washington and Oregon and is actively 
pursuing integration with state fishery registration in Alaska. The 
benefits of integration with existing programs have included a 
reduction or elimination of fees for some commercial fishers, a 
reduction in paperwork that must be completed by the fisher, and a 
reduction in paperwork that must be completed by NMFS.
    NMFS is proposing to provide additional flexibility for integrated 
registration systems so that, if registration information is supplied 
by NMFS or by a State participating in the integrated system for a 
fishery, individual fishers are not required to fill out forms or 
submit information but automatically will be issued Authorization 
Certificates. NMFS will continue to integrate registration with 
existing programs where possible.
    Reporting. Vessel owners or operators, or fishers, in the case of 
non-vessel fisheries, in Category I, II, or III fisheries must comply 
with 50 CFR 229.6 and report all incidental mortality and injury of 
marine mammals during the course of commercial fishing operations to 
NMFS Headquarters or appropriate NMFS Regional Office. ``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 and must be reported. Instructions for 
submission of reports are found at 50 CFR 229.6(a).
    Observers. Finally, fishers participating in Category I and II 
fisheries may be required, upon request, to accommodate an observer on 
board their vessels. Observer requirements may be found at 50 CFR 
229.7.

Timing of the Publication of the 1996 LOF

    Because of other regulatory activities that occurred concurrently, 
such as the preparation and publication of the final implementing 
regulations for section 118 of the MMPA, the LOF for 1996 was published 
on December 28, 1995 (60 FR 67063) instead of the target date of 
October 1, 1995. Due to this delay, there was a very short time period 
between the publication of the 1996 LOF and the publication of this 
proposed LOF for 1997. NMFS focused its analysis for the proposed LOF 
for 1997 on those fisheries it committed to future review in the 1996 
LOF.
    NMFS hopes to have available revised estimates of incidental 
serious injury and mortality in U.S. commercial fisheries, and revised 
PBR levels for the proposed LOF for 1998.

Proposed Changes to the LOF

    The following specific changes are proposed for the LOF that would 
take effect in 1997. Fisheries are placed into Category I, II, or III 
based on the classification scheme defined in the final rule 
implementing section 118 (60 FR 45086-45106, August 30, 1995). With the 
exception of these specific proposed changes, NMFS proposes to retain 
the fishery classifications as published in the final LOF for 1996.

Commercial Fisheries in the Atlantic Ocean, Gulf of Mexico, and 
Caribbean

U.S. Atlantic Tuna Purse Seine Fishery
    The bluefin tuna purse seine fishery, which is largely prosecuted 
in the Gulf of Maine, was placed in Category III in the 1994 LOF, but 
was inadvertently omitted from the 1996 LOF. In 1995, five bluefin tuna 
purse seine permit holders reported landings in August and September. 
Because there is also a yellowfin tuna purse seine fishery, which is 
largely prosecuted in the U.S. mid-Atlantic and was not previously 
listed in the LOF, the two target species are combined in this proposed 
LOF under the name ``U.S. Atlantic tuna purse seine fishery''.
    NMFS has received reports of interactions between the bluefin tuna 
purse seine fishery and marine mammals. However, the marine mammals 
were released uninjured. Because incidental serious injuries and 
mortalities are not expected in this fishery, this fishery is proposed 
to be placed in Category III.
Gulf of Maine Mackerel Trawl Fishery
    A combined trawl fishery for squid, mackerel, and butterfish was 
created in the 1996 LOF. A separate listing for a component of that 
fishery, the Gulf of Maine mackerel trawl fishery, is duplicative and 
is proposed to be deleted from the LOF. NMFS does not anticipate 
significant effort in the mackerel trawl fishery in the Gulf of Maine 
in the future.
Finfish Aquaculture Fishery
    Records of harbor seal incidental mortality and serious injury have 
been reported for this fishery, though at a level that does not warrant 
a change in categories. However, NMFS proposes to add ``Harbor seal, 
Western North Atlantic stock'' as a marine mammal stock that incurs 
serious injury and mortality incidental to this fishery.
U.S. North Atlantic Coastal Gillnet Fisheries
    NMFS proposes to change the names and revise the boundaries of the 
``New England multispecies sink gillnet'' and the ``U.S. mid-Atlantic 
coastal gillnet'' fisheries to reflect a change in the Northeast 
Multispecies Fishery Management Plan (FMP) and to eliminate a boundary 
overlap.
    The ``New England multispecies sink gillnet fishery (including 
species as defined in the Multispecies Fishery Management Plan and 
spiny dogfish and monkfish)'' is proposed to be changed to ``Northeast 
Multispecies sink gillnet fishery (including but not limited

[[Page 37037]]

to species as defined in the Northeast Multispecies Fishery Management 
Plan, dogfish, and monkfish).'' The southern boundary of the Northeast 
Multispecies sink gillnet fishery is proposed to be changed from 
71 deg.40' W. long. to 72 deg.30' W. long.
    The ``U.S. Mid-Atlantic coastal gillnet fishery'', defined in the 
1992 LOF as ``mid-Atlantic coastal gillnet fishery (includes, but is 
not limited to, Atlantic croaker, Atlantic mackerel, Atlantic sturgeon, 
black drum, bluefish, herring, menhaden, scup, shad, striped bass, 
sturgeon, weakfish, white perch, yellow perch),'' is proposed to be 
changed to ``U.S. Mid-Atlantic coastal gillnet fishery (including but 
not limited to, Atlantic croaker, Atlantic mackerel, Atlantic sturgeon, 
black drum, bluefish, herring, menhaden, scup, shad, striped bass, 
sturgeon, weakfish, white perch, yellow perch, dogfish, and 
monkfish).'' The eastern boundary for the mid-Atlantic coastal gillnet 
fishery is proposed to be the 72 deg.30' W. long. line, running south 
from the southern Long Island shoreline; the southern boundary for this 
fishery is proposed to be a line drawn from the North Carolina-South 
Carolina border eastward to the 72 deg.30' line.
    NMFS anticipates having additional data from observer programs and 
from other sources to use in re-evaluating these fisheries. In 
addition, studies are underway to provide NMFS with new information on 
the nature of these fisheries, which have traditionally been difficult 
to define or observe because of their highly seasonal nature.
Offshore Monkfish Bottom Gillnet Fishery
    The offshore monkfish bottom gillnet fishery was a new fishery that 
was placed in Category III in the 1996 LOF. However, because of the 
location of the fishery and the type of gear typically employed, this 
fishery should have been considered a new component of two existing 
fisheries instead of a new, separate fishery. Monkfish will be added as 
a target species to the Northeast Multispecies sink gillnet fishery and 
to the U.S. mid-Atlantic coastal gillnet fishery, as defined in the 
above section on the U.S. North Atlantic coastal gillnet fisheries. 
Thus, fishers targeting monkfish using gillnets either will be in the 
U.S. mid-Atlantic coastal gillnet fishery, and placed with that fishery 
in Category II, or in the Northeast Multispecies sink gillnet fishery, 
and placed with that fishery in Category I. Gulf of Maine and U.S. Mid-
Atlantic Lobster Fisheries.
    1. Summary. Currently there are two lobster fisheries in the LOF, 
the ``Gulf of Maine, U.S. Mid-Atlantic Inshore Lobster Trap/Pot 
Fisheries'' and the ``Gulf of Maine, U.S. Mid-Atlantic Offshore Lobster 
Trap/Pot Fisheries.'' Based on a review of 1990-1994 large whale 
entanglement reports received by the agency and new information 
received about the prosecution of the lobster fishery, the inshore and 
offshore fisheries are proposed to be combined into a single fishery, 
and referred to as the ``Gulf of Maine, U.S. Mid-Atlantic Lobster Trap/
Pot Fishery.'' This fishery is proposed to be placed in Category I in 
the 1997 LOF.
    2. Combining lobster fisheries. The two lobster fisheries described 
in the 1996 LOF are proposed to be combined because there is currently 
no practical way to distinguish between ``inshore'' and ``offshore'' 
fisheries with regard to differences in marine mammal take. Definitions 
of ``inshore'' and ``offshore'' or a discussion of what constitutes an 
inshore fishery versus an offshore fishery were not presented in the 
previous LOFs.
    Generally, as the distances from shore increase, so do the size of 
the pots, number of pots, and number and size of associated lines and 
surface gear. There is no evidence to indicate that significant changes 
in fishing operations occur at the boundary between state waters and 
the exclusive economic zone. In some cases, gear used in state waters 
is indistinguishable (larger pots and long strings, similar surface 
gear) from that used 161 km (100 miles) offshore.
    Comments are specifically requested from the public on whether 
there is a practical operational distinction between the inshore and 
offshore sectors of the fishery. Comments should consider factors such 
as geographic location, gear characteristics, and fishing practices 
such as tending gear. Comments also should consider how interactions 
with marine mammals should be attributed if separate fisheries are 
recommended.
    3. Special problems. The lobster fishery is one of the largest 
fisheries in the Northeast. It is estimated that there are 14,000 
combined state and federal lobster trap/pot permit holders. This 
information is based on a fishery from Maine through New Jersey, 
although the fishery may extend as far south as Cape Hatteras in some 
years.
    A confounding problem in analyzing the impacts of this fishery is 
that many whales are capable of dragging lobster gear some distance 
from the location in which it was originally set. For example, a 
northern right whale carried part of a lobster trawl from the Bay of 
Fundy for three months before it was spotted in Massachusetts waters. 
In addition, a 4.3-meter (14-foot) minke whale dragged a pair trap (a 
two-trap string) 9.2 km (5.5 miles) before it was sighted and 
disentangled. Thus, either of the fishers, upon returning to the 
location at which they had originally set the gear, would not have 
known whether an entanglement had occurred or whether the missing gear 
was dislodged by mobile gear or for other reasons.
    NMFS has provided observer coverage designed to sample the lobster 
catch for this fishery, at least 66 days in some years, which has not 
identified a marine mammal bycatch problem. Due to the whale behavior 
described above and the size of the lobster fishery, the agency 
believes that traditional observer coverage will not be effective in 
this fishery. Alternative monitoring programs such as aerial surveys, 
enhanced stranding and disentanglement network reporting, and 
additional gear marking requirements may be considered as alternatives 
to traditional observer coverage.
    4. Interactions between the lobster fishery and marine mammals. As 
described in the following analysis, serious injuries and/or 
mortalities of marine mammals are known to occur in the lobster 
fishery. An examination of large whale entanglement records from 
sources other than an observer program reveals that large whale 
entanglements occur in gear which is reported as ``lobster gear'', 
``lobster pot warp'', ``line like lobster pot warp'', or in similar 
terms. Generally, these reports describe the whale's condition and 
provide a basic description of how the gear is entangling the animal so 
that a rescue can be planned. The reports often do not contain the 
detail necessary to assign the entanglements to a particular fishery or 
location. On many occasions, the whale is not re-sighted, so a close 
examination of the gear cannot be attempted. In some cases, additional 
supportive information may be available to confirm the gear type and 
origin, but sources of that information have not been fully 
investigated at this time.
    For this analysis, NMFS has been conservative in attributing 
available records of entanglements to this fishery and has used only 18 
of 42 (43 percent) of the available 1990-1994 line entanglement (as 
opposed to net entanglement) records. The reasons for this approach 
include: (1) Records have been excluded where gear was only reported as 
``line'' or ``line like lobster pot warp'' since NMFS cannot confirm at 
this time whether lobster pot warp or line from some other fixed or 
mobile gear was involved; (2) records were

[[Page 37038]]

excluded if there was insufficient information on degree of injury or 
marine mammal species identification; 3) records were excluded if the 
whale disentangled itself; and 4) records were excluded if gear was 
known to be of non-U.S. origin or gear was of unknown origin but the 
entanglement was first sighted in non-U.S. waters. In addition, records 
of entanglements prior to 1990 or after 1994 were not considered in 
this analysis.
    Tier 1 evaluation. Annual serious injury and mortality levels 
across all fisheries for humpback, northern right whale, and minke 
whale stocks interacting with this fishery exceed 10 percent of the PBR 
levels for all three species.
    Tier 2 evaluation. One record of serious injury and/or mortality of 
a northern right whale, 11 records of serious injury and/or mortality 
of humpback whales, and 6 records of serious injury and/or mortality of 
minke whales were reported for this fishery from 1990-1994. These 
records cannot be extrapolated to a total kill estimate and therefore 
represent a minimum serious injury and/or mortality rate (from a 5-year 
average) of 0.2 per year for northern right whales, 2.2 per year for 
humpback whales, and 1.2 per year for minke whales. This rate is 
greater than 1% but less than 50 percent of the PBR level for humpback 
and minke whales, but equal to 50 percent of the PBR level for northern 
right whales. Therefore this fishery is proposed to be placed in 
Category I in the 1997 LOF.
    In addition to the one right whale entanglement used in the above 
analysis, the agency has received at least one report of a right whale 
entanglement after 1994 as well as during the 1990-1994 period which 
may be attributable to the lobster fishery, including a video of a 
temporarily entangled right whale calf in Cape Cod Bay in 1995. Further 
verification is anticipated on a 1993 report of an entangled right 
whale sighted near Munson Canyon and one in 1994 sighted off Plum 
Island, Massachusetts.
    5. Registration of the lobster fishery. Annual registration for an 
MMPA Authorization Certificate is required for participants in Category 
I and II fisheries. NMFS will consider registration options for the 
lobster fishery that will minimize the registration burden on lobster 
fishers.
    The lobster fishery is currently licensed under a combination of 
several state and federal systems. NMFS will work with the New England 
and Mid-Atlantic states to integrate registration under the MMPA with 
state lobster fishery registration. NMFS intends to coordinate 
registration for the federally managed lobster fishery with the MMPA 
registration program.
    The proposed rule would provide additional flexibility for 
integrated registration systems so that, for qualified programs, 
individual fishers would not be required to fill out forms or submit 
registration information but automatically would be issued 
registrations and Authorization Certificates. Once an alternative 
registration system is developed, and a reduction in administration 
costs is realized, NMFS will waive the registration fee for the lobster 
fishery.

Commercial Fisheries in the Pacific Ocean

Oregon Swordfish/Blue Shark Surface Longline Fishery
    The Oregon swordfish/blue shark surface longline fishery was 
classified as a Category II fishery in the 1996 LOF based on analogy 
with other pelagic longline fisheries. NMFS proposes to separate this 
fishery into two fisheries based upon the target species to reflect the 
current licensing practices of the Developmental Fisheries Program in 
the State of Oregon. The two fisheries would be the: ``Oregon swordfish 
floating longline fishery'' and ``Oregon blue shark floating longline 
fishery.'' There are 20 participants and 10 participants in these 
fisheries, respectively. Both fisheries would remain in Category II in 
1997.
California Squid Purse Seine Fishery
    The California squid purse seine fishery was classified as a 
Category III fishery in the 1996 LOF. However, the Pacific Scientific 
Review Group, established under section 117 of the MMPA, recommended 
that the squid purse seine fishery be monitored with an observer 
program because of lack of information about marine mammal mortalities 
and historical interactions between this fishery and short-finned pilot 
whales.
    Incidental mortality of pilot whales has occurred historically in 
the California squid purse seine fishery. Twelve pilot whales were 
observed and reported entangled in this manner during the 1980 season 
(Miller et al. 1983). Miller et al. (1983) also reported that pilot 
whales were occasionally shot in the squid purse fishery when lethal 
deterrence was legal. Heyning and Woodhouse (1994) analyzed stranding 
data between 1975-90 and found 14 short-finned pilot whales stranded or 
floating dead (most during the late 1970's). They believe that these 
pilot whales were incidentally killed in the squid purse seine fishery. 
All animals that were examined had stomachs full of market squid; none 
that were stranded had evidence of bullet holes, and commercial squid 
boats were reported to have been working those areas at the time.
    Short-finned pilot whales were once common off Southern California, 
especially near Santa Catalina Island (Barlow et al. 1995). Dohl et al. 
(1980) estimated that a resident population of 400 short-finned pilot 
whales occurred in California, with a seasonal increase of up to 2,000 
individuals. Short-finned pilot whales disappeared from the area after 
the strong 1982-83 El Nino event, and few sightings were made between 
1984-92 (Barlow et al. 1995). Because the 1991-92 aerial and shipboard 
cetacean surveys only sighted one short-finned pilot whale, there is no 
estimate of population size available at this time. However, six 
sightings of short-finned pilot whales were made during another ship 
survey off California in 1993, and a population estimate will be 
available in the near future. In addition, short-finned pilot whales 
are also incidentally killed in the offshore drift gillnet fishery for 
thresher shark and swordfish. Thirteen short-finned pilot whales were 
observed incidentally killed between 1990-94 in this fishery. Thus, 
short-finned pilot are rare, but present in the area (Forney 1994).
    Currently, purse seine vessels that fish for mackerel, tuna, and 
anchovies (a Category II fishery) use the same gear to fish for squid 
in the winter off southern California. The number of vessels has 
remained relatively stable in southern California, with approximately 
65 squid purse seine vessels in operation. Over the last few years, 
squid purse seine effort and landings have increased. In the absence of 
reliable information indicating the frequency of interaction, NMFS must 
determine whether a fishery is a Category II fishery by evaluating 
other factors (60 FR 45086, August 30, 1995). Because of historical 
evidence and possible significant interactions with the short-finned 
pilot whale, NMFS is proposing to re-categorize the squid purse seine 
fishery from Category III to Category II.
    NMFS is concerned about the lack of recent data on which to base 
this proposed fishery classification and about the apparent change in 
distribution of the short-finned pilot whale in California waters. NMFS 
specifically requests comments on these two aspects of this proposed 
reclassification.

[[Page 37039]]

Re-evaluation of Other Fisheries

Gulf of Maine, U.S. Mid-Atlantic Tuna, Shark, and Swordfish Hook and 
Line/Harpoon Fisheries
    An examination of entanglement records from sources other than 
observer data reveals that large whale entanglements occur in gear 
reported as ``tuna gear'', ``tuna dart'', ``line with tuna ball'', etc. 
Generally, these reports describe the whale's condition and provide a 
general description of how the gear is entangling the animal so that a 
rescue can be planned. The reports often do not contain the detail 
necessary to definitively identify the responsible fishery or the 
location where the entanglement occurred. On many occasions, the whale 
is not resighted, so a close examination of the gear cannot be 
attempted. In some cases, additional supportive information may be 
available to confirm the gear type and origin, but sources of that 
information have not been fully investigated at this time. NMFS will 
continue to monitor these entanglements and will verify the origin of 
the gear if possible. Until the data can be verified and additional 
information is obtained on the hook and line/harpoon fisheries for 
tuna, shark and swordfish, NMFS proposes to retain the large pelagics 
hook-and-line/harpoon fisheries in Category III in the LOF.
Other Fisheries
    In the 1996 LOF, NMFS indicated that the annual incidental serious 
injury and mortality levels of marine mammals in several fisheries 
would be re-evaluated in a future LOF. New data were not yet available 
for adequate re-evaluations of the level of serious injury and 
mortality incidental to some Atlantic trap/pot fisheries, the Atlantic 
inshore gillnet fisheries, the North Atlantic bottom trawl fishery, and 
several other fisheries described in the 1996 LOF. NMFS recognizes that 
incidental serious injuries and mortalities may occur at some level in 
some of these fisheries and will continue to monitor these 
interactions.

Definitions of Various U.S. North Atlantic Trawl Fisheries

    Since the publication of the 1996 LOF, it has come to NMFS' 
attention that there is confusion regarding the definitions of the 
trawl fisheries. NMFS is concerned that the current fishery definitions 
may not reflect current fishing practices. It is often difficult for a 
fisher to determine under which category his/her vessel falls, and 
therefore whether or not to register in the Marine Mammal Authorization 
Program and be prepared for possible observer coverage. The absence of 
a clear understanding of the definitions of certain fisheries may 
confound the classification of certain fisheries in the LOF. Thus, NMFS 
is specifically requesting comments from the public on appropriate 
definitions of the trawl fisheries.
    The following are the trawl fisheries as listed in the LOF for 
1996. Definitions of the fisheries are included for those fisheries not 
described by target species and gear type in the fishery name.
U.S. Atlantic Large Pelagics Pair Trawl Fishery
    This fishery is in Category I and currently consists of seven pairs 
of vessels. This fishery is characterized by the use of two vessels to 
cooperatively haul trawl net gear.
Atlantic Mackerel, Squid, and Butterfish Trawl Fishery
    This fishery is in Category II and currently consists of 
approximately 260 vessels/persons. This fishery consists of the ``Mid-
Atlantic squid trawl'' and the ``Mid-Atlantic mackerel trawl'' 
fisheries as defined in the 1994 LOF. These fisheries were combined, 
proposed to include the butterfish trawl fishery in order to parallel 
the Fishery Management Plan for the Atlantic Mackerel, Squid, and 
Butterfish Fisheries of the North Atlantic, and proposed to be 
identified as the ``Atlantic mid-water trawl fishery'' in the proposed 
LOF for 1996 (60 FR 31680, June 16, 1995). In response to a public 
comment indicating that it was incorrect to call the squid trawl 
fishery a mid-water trawl fishery, the name of the fishery was changed 
in the final LOF for 1996 to the ``Atlantic squid, mackerel, and 
butterfish trawl'' fishery to reflect the species targeted and to 
parallel the relevant FMP (60 FR 67070, December 28, 1995).
North Atlantic Bottom Trawl Fishery
    This fishery was placed in Category III in the 1996 LOF and 
currently consists of 1,052 vessels/persons. This fishery was renamed 
from the ``Gulf of Maine, mid-Atlantic groundfish trawl'' fishery to 
include a specific list of species targeted (60 FR 31681, June 16, 
1995). Although the list of species targeted was not provided in the 
final LOF for 1996, the proposed LOF for 1996 indicted that this 
fishery targets species included in, but not limited to, all species 
described in the Northeast Multispecies, and Summer Flounder FMPs and 
scup and seabass which may be included in the Summer Flounder FMP at a 
later date.
Gulf of Maine Mackerel Trawl Fishery
    This fishery was placed in Category III in the 1996 LOF and 
currently consists of approximately 30 vessels. This fishery is 
proposed to be combined with the squid, mackerel, butterfish trawl 
fishery in this proposed LOF.
Mid-Atlantic Mixed Species Trawl Fishery
    This fishery was placed in Category III in the 1996 LOF and 
currently consists of more than 1,000 vessels/persons.
Gulf of Maine and Mid-Atlantic Sea Scallop Trawl Fishery
    This fishery was placed in Category III in the 1996 LOF and 
currently consists of 215 vessels/persons.
Gulf of Maine, Southern North Atlantic, and Gulf of Mexico Herring 
Trawl Fishery
    This fishery was placed in Category III in the 1996 LOF and 
currently consists of five vessels/persons.
U.S. Atlantic Monkfish Trawl Fishery
    This fishery was a new fishery that was placed in Category III in 
the 1996 LOF and consists of an unknown number of participants. This 
fishery harvests monkfish in the deep waters off the Atlantic coast. 
Some participants in this fishery use a modified beam trawl; most use 
otter trawls. In addition, some participants in the scallop dredge 
fishery target monkfish using dredge gear during off-days for scallops 
as well as targeting scallops and monkfish simultaneously.
Bluefish, Croaker, and Flounder Trawl Fishery
    This fishery is in Category III and currently includes 
approximately 550 vessels/participants.

Other Proposed Changes

    Annual registration is one of the requirements of the MMPA which 
would apply to participants in Category I and II fisheries. NMFS is 
considering registration options that will ensure compliance with the 
MMPA while minimizing the registration burden to fishers. As noted 
above, NMFS has successfully integrated registration under the MMPA 
with state fishery registration in Washington and Oregon under current 
regulations, is pursuing an integrated registration system with Alaska, 
and would consider integrated registration systems for other fisheries 
such as the Gulf of Maine, U.S. Mid-Atlantic Lobster Trap/Pot Fishery.
    The proposed rule would provide additional flexibility for 
integrated registration systems so that, if MMPA

[[Page 37040]]

Authorization Certificate registration information is supplied through 
integration with state systems, interjurisdictional fisheries programs, 
and federally managed fisheries, individual fishers would not required 
to fill out forms or submit registration information but automatically 
would be issued registrations and Authorization Certificates.
    The benefits of integrating MMPA registration with existing fishery 
registration or permit programs have included a reduction in paperwork 
that must be completed by the fisher, a reduction in paperwork that 
must be completed by NMFS, and reduced staff burdens for NMFS. NMFS 
will consider reducing or waiving registration fees for the fisheries 
where an integrated registration program can be arranged.

Classification

    The Assistant General Counsel for Legislation and Regulation of the 
Department of Commerce certified to the Chief Counsel for Advocacy of 
the Small Business Administration that this proposed rule, if adopted, 
would not have a significant economic impact on a substantial number of 
small entities. Under existing regulations certain fishers must 
register, obtain an Authorization Certificate, and pay a fee of $25. 
Such a certificate authorizes the taking of certain marine mammals 
incidental to commercial fishing operations. Currently, approximately 
13,000 fishers are registered. This proposed rule, if adopted, would 
require the registration of additional fishers in fisheries that are 
classified as Category I and II, including approximately 14,000 
participants in the Gulf of Maine, U.S. Mid-Atlantic Lobster Trap/Pot 
Fishery. NMFS will consider waiving or reducing the registration fee 
for fisheries where an integrated registration program can be arranged. 
In any case, the fee, with respect to expected revenues, is not 
considered significant. As a result, a regulatory flexibility analysis 
was not prepared. This proposed rule has been determined to be not 
significant for purposes of E.O. 12866.
    This proposed rule does not contain new collection-of-information 
requirements subject to the Paperwork Reduction Act. Further, proposed 
regulatory changes are designed to provide additional flexibility and 
to reduce paperwork burdens. However, the proposed reclassification of 
some fisheries to Category I or II would be expected to increase the 
number of fishers that may be subject to collection-of-information 
requirements.
    Although this collection has been approved previously by the Office 
of Management and Budget (OMB) under OMB control numbers 0648-0224 and 
0648-0225, because of new collection requirements as a result of the 
reclassification of some fisheries to Category I and II, this proposed 
rule is being resubmitted to OMB for review and approval. The average 
reporting burden under the existing requirements is 0.25 hours for each 
fisher who is required to register for an Authorization Certificate and 
0.17 hours for each report of marine mammal injury or mortality. Those 
burdens are not expected to change significantly if this proposed rule 
is adopted, and may actually decrease as a result of proposed changes 
in the registration system to reduce those burdens. Send comments 
regarding these reporting burden estimates or any other aspect of the 
collections of information, including suggestions for reducing the 
burdens, to NMFS and OMB (see ADDRESSES).
    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.
    The Assistant Administrator for Fisheries, NOAA, prepared an 
environmental assessment (1995 EA) under the National Environmental 
Policy Act for regulations to implement section 118 of the MMPA. The 
1995 EA concluded that implementation of those regulations would not 
have a significant impact on the human environment and is available 
upon request (see ADDRESSES). For the proposed LOF, NMFS is constrained 
by the MMPA with respect to the information that may be considered; 
changes in the implementing regulations are minor and procedural in 
nature and do not change the analysis or conclusion of the 1995 EA.

List of Subjects in 50 CFR Part 229

    Administrative practice and procedure, Imports, Indians, Marine 
Mammals, Penalties, Reporting and recordkeeping requirements, 
Transportation.

    Dated: July 10, 1996.
Nancy Foster,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
    For the reasons set out in the preamble, 50 CFR part 229 is 
proposed to be amended as follows:

PART 229--AUTHORIZATION FOR COMMERCIAL FISHERIES UNDER THE MARINE 
MAMMAL PROTECTION ACT OF 1972

    1. The authority citation for part 229 continues to read as 
follows:

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

    2. In Sec. 229.4, paragraphs (a), (b) and (e) are revised to read 
as follows:


Sec. 229.4  Requirements for Category I and II fisheries.

    (a) General. (1) In order to lawfully incidentally take a marine 
mammal in the course of a commercial fishing operation in a Category I 
or II fishery, a valid Certificate of Authorization authorizing such a 
taking must be on board the vessel or, in the case of nonvessel 
fisheries, must be in the possession of the person in charge of the 
fishing operation. The owner of a vessel or nonvessel fishing gear is 
responsible for obtaining a Certificate of Authorization.
    (2) The administration of Authorization Certificates under this 
part will be integrated and coordinated with existing fishery license, 
registration, or permit systems and related fishery management programs 
wherever possible. These fishery management programs may include, but 
are not limited to, state or interjurisdictional fisheries programs. If 
the administration of Authorization Certificates is integrated into a 
fishery management program, NMFS will publish a notice in the Federal 
Register announcing the integrated program and summarizing how a person 
may register under that program or how registration will be achieved. 
Additional efforts will be made to contact participants in the affected 
fishery via other appropriate means of notification.
    (b) Registration. (1) The owner of a vessel, or for nonvessel gear 
fisheries, the owner of gear who participates in a Category I or II 
fishery is required to be registered for a Certificate of 
Authorization.
    (2) Unless a notice is published in the Federal Register announcing 
an integrated Authorization Certificate/fishery management program, the 
owner of a vessel, or for nonvessel fishery, the owner of the gear must 
submit the following information using the format specified by NMFS:
    (i) Name, address, and phone number of owner;
    (ii) Name, address, and phone number of operator, if different from 
owner, unless the name of the operator is not known or has not been 
established at the time the registration is submitted;

[[Page 37041]]

    (iii) For a vessel fishery, vessel name, length, and U.S. Coast 
Guard documentation number or state vessel registration number, and if 
applicable, state commercial vessel license number and for a nonvessel 
fishery, a description of the gear and state commercial license number, 
if applicable.
    (iv) A list of all Category I and II fisheries in which the fisher 
may engage during next calendar year;
    (v) The approximate time, duration, and location of each such 
fishery operation, and the general type and nature of use of the 
fishing gear and techniques used; and
    (vi) A certification signed and dated by the owner of an authorized 
representative of the owner as follows: ``I hereby certify that I am 
responsible for the vessel or gear described in this registration, that 
I have reviewed all information contained in this registration, and 
that the information is true and complete to the best of my 
knowledge.''
    (3) If a notice is published in the Federal Register announcing an 
integrated Authorization Certificate/fishery management program, the 
owner of a vessel, or for nonvessel fishery, the owner of the gear may 
register by following the directions provided in that notice. In some 
cases, an integrated Authorization Certificate/fishery management 
program may automatically register participants in a fishery for 
Authorization Certificates. If a person receives a registration to 
which he or she is not entitled or if the registration contains 
incorrect, inaccurate or incomplete information, the person shall 
notify NMFS within 10 days following receipt. A registration must be 
signed and dated by the owner or an authorized representative of the 
owner unless it contains incorrect, inaccurate or incomplete 
information. If for some reason a person who expects to receive 
automatic registration does not receive that registration within the 
time specified in the notice announcing the integrated Authorization 
Certificate/fishery management program, the person shall notify NMFS as 
directed in the notice or may apply for registration by submitting the 
information required under paragraph (b)(1)(i) through (vi).
* * * * *
    (e) Issuance. (1) NMFS will issue an Authorization Certificate and 
annual decal to an owner or a representative of the owner who submits a 
completed registration and the required fee, or is registered under an 
integrated Authorization Certificate/fishery management program and has 
paid any required fee, provided that the registrant has complied with 
the requirements of this section and Secs. 229.6 and 229.7.
    (2) NMFS will renew an Authorization Certificate and issue a new 
annual decal to an owner or a representative of the owner who submits 
updated registration or renewal registration which includes a statement 
(yes/no) whether any marine mammals were killed or injured during the 
current or previous calendar year and the required fee, or who is 
registered under an integrated Authorization Certificate/fishery 
management program and has paid any required fee, provided that the 
registrant has complied with the requirements of this section and 
Secs. 229.6 and 229.7.
    (3) If a person receives an Authorization Certificate or an annual 
decal to which he or she is not entitled, the person shall notify NMFS 
within 10 days following receipt. In order for a Authorization 
Certificate to be valid, the certification must be signed and dated by 
the owner or an authorized representative of the owner.
* * * * *
[FR Doc. 96-18002 Filed 7-11-96; 11:45 am]
BILLING CODE 3510-22-F