[Federal Register Volume 64, Number 36 (Wednesday, February 24, 1999)]
[Rules and Regulations]
[Pages 9067-9088]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-4442]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 229
[Docket No. 980724195-9038-02; I.D. 070798F]
RIN 0648-AK95
Final List of Fisheries for 1999; Update of Regulations
Authorizing Commercial Fisheries Under the Marine Mammal Protection Act
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: NMFS is publishing its final List of Fisheries (LOF) for 1999
as required by the Marine Mammal Protection Act (MMPA). In addition,
NMFS is amending the regulations implementing section 118 of the MMPA
by clarifying and updating existing regulations. The final LOF for 1999
reflects new information on interactions between commercial fisheries
and marine mammals. Under the MMPA, NMFS must place a commercial
fishery on the LOF into one of three categories based upon the level of
serious injury and mortality of marine mammals that occurs incidental
to that 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: The amendments to 50 CFR part 229 are effective on February 24,
1999. Changes to the List of Fisheries for 1999 are effective on March
26, 1999.
ADDRESSES: You may obtain registration information and materials and
marine mammal reporting forms from the following regional offices:
NMFS, Northeast Region, One Blackburn Drive, Gloucester, MA 01930-
2298, Attn: Sandra Arvilla;
NMFS, Southeast Region, 9721 Executive Center Drive North, St.
Petersburg, FL 33702, Attn: Joyce Mochrie;
NMFS, Southwest Region, Protected Species Management Division, 501
W. Ocean Blvd., Suite 4200, Long Beach, CA 90802-4213, Attn: Don
Peterson;
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: Ursula Jorgensen.
[[Page 9068]]
You may send comments regarding the burden-hour estimates or any
other aspect of the collection of information requirements contained in
this final rule to Chief, Marine Mammal Division, Office of Protected
Resources, NMFS, 1315 East-West Highway, Silver Spring, MD 20910 and to
the Office of Information and Regulatory Affairs, OMB, Attention: NOAA
Desk Officer, Washington, DC 20503.
FOR FURTHER INFORMATION CONTACT: Cathy Eisele, Office of Protected
Resources, 301-713-2322; Kim Thounhurst, Northeast Region, 978-281-
9138; Kathy Wang, Southeast Region, 727-570-5312; Irma Lagomarsino,
Southwest Region, 562-980-4016; Brent Norberg, Northwest Region, 206-
526-6733; Brian Fadely, Alaska Region, 907-586-7642. Individuals who
use a telecommunications device for the deaf may call the Federal
Information Relay Service at 1-800-877-8339 between 8:00 a.m. and 4:00
p.m. Eastern time, Monday through Friday, excluding Federal holidays.
SUPPLEMENTARY INFORMATION:
What Is the List of Fisheries?
Under section 118 of the MMPA, NMFS (we) must publish, at least
annually, an LOF that places all U.S. commercial fisheries into one of
three categories based on the level of incidental serious injury and
mortality of marine mammals that occurs incidental to that fishery. The
categorization of a fishery in the LOF determines whether participants
in that fishery (you) are subject to certain provisions of the MMPA,
such as registration, observer coverage, and take reduction plan
requirements.
How Does NMFS Determine Which Category a Fishery Is Placed In?
You can find the definitions for the fishery classification
criteria for Category I, II, and III fisheries in the implementing
regulations for section 118 of the MMPA (50 CFR part 229). In addition,
these definitions are summarized in the preambles to the final rule
implementing section 118 (60 FR 45086, August 30, 1995), the final LOF
for 1996 (60 FR 67063, December 28, 1995), and the proposed LOF for
1999 (63 FR 42803, August 11, 1998).
How Do I Find Out Which Category a Specific Fishery Is In?
This final rule includes two tables that list all U.S. commercial
fisheries by category. Table 1 to the preamble of this document is a
listing of all fisheries in the Pacific Ocean (including Alaska). Table
2 to the preamble of this document is a listing of all fisheries in the
Atlantic Ocean, Gulf of Mexico, and Caribbean.
Under section 118 of the MMPA, we must include all U.S. commercial
fisheries on the LOF. You should contact one of the Regional Offices if
you are aware of a fishery that is not included in these tables.
Am I Required To Register Under the MMPA?
If you are an owner of a vessel or gear engaging in a Category I or
II fishery, you are required under 50 CFR 229.4 to obtain a marine
mammal authorization from us in order to lawfully incidentally take a
marine mammal in a commercial fishery.
How Do I Register?
If you participate in a fishery that does not have an integrated
registration program, you must register through one of our Regional
Offices (see ADDRESSES). The fee for obtaining a new or renewed
authorization each year is $25. Upon receipt of a completed
registration, we will issue vessel or gear owners a decal to display on
their vessel and an authorization certificate that must be in the
possession of the operator while fishing. The procedures and fees
associated with registration differ between Regions. Special procedures
and instructions for registration in these Regions are described in the
preamble to the final LOF for 1998 (63 FR 5748, February 4, 1998).
For some fisheries, we have integrated the MMPA registration
process with existing state and Federal fishery license, registration,
or permit systems and related programs. Participants in these fisheries
are registered automatically under the MMPA and are not required to pay
the $25 registration fee.
Which Fisheries Have Integrated Registration Programs?
We have implemented integrated registration programs in the Alaska
Region, Northwest Region, and Northeast Region. The following fisheries
have integrated registration programs under the MMPA: all Alaska
Category II fisheries; all Washington and Oregon Category II fisheries;
and three Atlantic fisheries (the Gulf of Maine, U.S. mid-Atlantic
lobster fishery, the Atlantic squid, mackerel, butterfish trawl
fishery; and the Northeast sink gillnet fishery). Special procedures
and instructions for registration in these integrated fisheries are
described in the preamble to the final LOF for 1998 (63 FR 5748,
February 4, 1998).
How Do I Renew My Registration Under the MMPA?
The Regional Offices send annually renewal packets to participants
in Category I or II fisheries that have previously registered with us;
however, it is your responsibility to ensure that your registration or
renewal forms are submitted to us at least 30 days in advance of
fishing. If you have not received a renewal packet by January 1, or are
registering for the first time, you should request a registration form
from the appropriate Regional Office (see ADDRESSES).
Am I Required To Submit Reports When I Injure or Kill a Marine
Mammal During the Course of Commercial Fishing Operations?
If you are a vessel owner or operator, or fisher (in the case of
non-vessel fisheries), participating in a Category I, II, or III
fishery, you must comply with 50 CFR 229.6 and report all incidental
injuries or mortalities of marine mammals that occur during commercial
fishing operations. You can find instructions for how to submit reports
at 50 CFR 229.6(a).
Am I Required To Take an Observer Aboard My Vessel?
If you are a fisher participating in a Category I or II fishery,
you are required to accommodate an observer aboard your vessel(s). You
can find the observer requirements at 50 CFR 229.7.
Comments and Responses
We received nine letters of comment on the proposed LOF for 1999
during the 90-day public comment period.
Comments on Fisheries in the Southwest Region: Comments on the Hawaii
Swordfish, Tuna, Billfish, Mahi Mahi, Wahoo, Oceanic Sharks Longline/
Set Line Fishery
Comment 1: Two commenters believe that NMFS should recategorize the
Hawaii Swordfish, Tuna, Billfish, Mahi Mahi, Wahoo, Oceanic Sharks
Longline/Set Line Fishery from Category III to Category II. The fact
that NMFS has not conducted surveys necessary to determine stock
abundance and distribution, and therefore to calculate Potential
Biological Removal (PBR) levels for Hawaiian stocks should not be used
as a rationale for failing to classify fisheries that interact with
animals as Category I or II fisheries.
Given that there is no PBR level calculated for Risso's dolphins,
that there are fishery interactions that have not been quantified
because there is no definition of serious injury available, and that
there is a complete lack of
[[Page 9069]]
observer coverage in other fisheries (e.g., gillnet and purse seine
operations) that may interact with this stock, the commenters are
concerned that this might be a Category I fishery.
Another commenter adds that NMFS has data that demonstrate observed
mortality, has guidance from experts on what constitutes serious
injury, and has the recommendation of the Pacific Scientific Review
Group (SRG) to support a reclassification of this fishery to a Category
II fishery.
Response: We recognize that takes of marine mammals are occurring
incidental to the operations of the Hawaii swordfish, tuna, billfish,
mahi mahi, wahoo, oceanic sharks longline/set line fishery; however,
there is significant uncertainty regarding the level of interactions
that are occurring, the specific stocks that are involved, and the
number of injured animals that die as a result of their interaction
with this fishery. Because information regarding incidental takes in
this fishery became available in only summer 1998, we have not been
able to fully assess the categorization of this fishery in developing
the LOF for 1999.
We have expanded observer coverage in this fishery and are in the
process of developing expanded take estimates for this fishery. We plan
to conduct a thorough review of these estimates and of incidental
marine mammal injury information in the development of the proposed LOF
for 2000 (see response to Comment 16). The Hawaii longline fishery will
be further considered for recategorization as a Category II fishery at
that time.
Although this fishery will currently remain in Category III, we
will continue to have the authority to place observers on Hawaii
longline vessels. In addition, participants in this fishery are
required to submit vessel logbooks, to report all interactions with
marine mammals, and to obtain a limited entry permit to participate in
this fishery.
Comments on Fisheries in the Northwest Region: Comments on Tribal
Gillnet Fisheries in Washington
Comment 2: One commenter notes that tribal gillnet fisheries in the
state of Washington should be included in the LOF even if NMFS no
longer places observers aboard these formerly Category I and II
fisheries.
Response: Tribal fisheries are conducted under the authority of
Indian treaties rather than under the MMPA. The MMPA's registration and
Authorization requirements do not apply to treaty Indian fishers
operating in their usual and accustomed fishing areas. Since including
tribal fisheries in the LOF would require them to obtain an
Authorization Certificate, we do not include tribal fisheries in the
LOF. A complete explanation for the exclusion of treaty Indian
fisheries can be found in the final rule implementing section 118 of
the MMPA (60 FR 45096, August 30, 1995).
Comments on Fisheries in the Alaska Region--General Comments
Comment 3: One commenter notes that there are several fisheries
operating in Alaska that may be interacting with marine mammals, yet no
observer coverage is possible due to their listing as Category III
fisheries. These include, but are not limited to, the salmon set
gillnets in Prince William Sound; the Kuskokwim, Yukon, Norton Sound,
Kotzebue salmon gillnet fishery; and herring gillnets.
Response: We have marine mammal interaction data from an observer
program conducted in 1990 in the Prince William Sound (PWS) salmon set
gillnet fishery. Observed rates of harbor seal and marine mammal
mortality for this fishery warrant a Category III designation. Salmon
set gillnet fisheries in the Yukon-Kuskokwim Delta, Norton Sound and
Kotzebue areas mostly comprise of Alaskan Natives. Marine mammals
caught incidental to commercial fishing by Alaskan Natives and retained
for subsistence use have not been considered in fishery categorization.
However, we are currently reviewing this policy. There are few reports
of mortalities or serious injuries from these fisheries (see response
to Comment 6).
Comment 4: One commenter doubts that no interactions take place
between the pot fisheries and humpback whales and other large cetaceans
in Alaska. There are large numbers of entanglements of humpback whales
and right whales in the buoy lines used by the lobster fishery in the
northeastern United States. In Alaska, it would seem that lack of
effort more than any other factor leads to lack of reporting of
entanglements of whales in Alaska.
Response: No humpback whale mortalities were observed during the
1990-97 Bering Sea and Gulf of Alaska finfish pot fisheries monitored
by our observers. During 1997, there were three reports of humpback
whales entangled in lines with attached buoy in southeast Alaska, but
these were deemed likely to be observations of the same whale based on
the limited information in the reports. Because of the limited
information in the reports, it was not possible to attribute these
interactions to a particular fishery. Details of these interactions can
be found in the annual Stock Assessment Reports (SARs).
Comment 5: One commenter believes that failure to report
interactions in logbooks cannot be considered sufficient grounds for
determining categories, and consideration should be given to upgrading
the category if the gear type is one that is known to entangle certain
species of marine mammals and if those species are present coincident
with the fishery activities.
Response: We agree. The logbook reporting program conducted during
1990-93 was replaced under the 1994 MMPA amendments with a fisher self-
reporting program, which requires the reporting of marine mammal
injuries or death within 48 hours of completion of a fishing trip,
regardless of fishery categorization. Logbook reports of mortality and
serious injury were considered to be underestimates of incidental
mortality based on comparisons to observer program data.
The reports of injuries and mortalities occurring incidental to
fishing from fisher self-reports collected during 1996-97 were
significantly fewer than those reported during the logbook program for
Alaskan fisheries. Data collected directly through observer programs
are thus preferred for categorization. Beginning in 1998, the Alaska
Region will exclude fisher self-report estimates for calculation of
estimated minimum annual fisheries-related mortality. In the absence
of, or in addition to, observer data, we also base fishery
categorizations on stranding data, evaluation of fishing techniques,
gear used, seasons and areas fished, and distribution of marine mammals
within the area.
Comment 6: One commenter notes that additional Category II
fisheries in Alaska that may be interacting with marine mammals are
unobserved and pose some concern. These include the Cook Inlet salmon
drift and set gillnets that may be interacting with the beleaguered
Cook Inlet beluga whale stock.
Response: We agree. Because of the immediacy of the Cook Inlet
beluga whale decline, we have deferred a planned rotational monitoring
program to observe eight Category II salmon net fisheries within Alaska
in order to observe Cook Inlet salmon drift and set gillnet fisheries
during 1999 and 2000.
Comment 7: One commenter questions the utility of definitions in
the Tier system for categorizing fisheries if it is not possible to
place observers on unobserved Category II fisheries because they are
considered low priority as Category II fisheries. Perhaps some
[[Page 9070]]
consideration should be given to listing fisheries as Category I
fisheries if they take less than 50 percent of the PBR level of any one
stock but they have historically interacted with species listed under
the Endangered Species Act (ESA) (e.g., Steller sea lions).
Response: We agree that it is difficult to prioritize fisheries
nationally for observation, given the available funds. We recently
convened a workshop to attempt to establish a prioritization scheme for
Category I and II fishery observer programs. We concluded that the top
priority for observation were Category I fisheries required for
observation under a Take Reduction Plan (TRP). A second tier of
priority was Category I fisheries in the monitoring/compliance phase of
a TRP, and unobserved Category II fisheries.
The MMPA also mandates that fisheries that take ESA-listed species
have the highest priority for observation. ESA-listed species already
have conservative PBR levels associated with them by using 0.1 as a
recovery factor; thus, further adjusting the categorization criteria
could be inadvertently restrictive.
Comments on the Southeast Alaska Salmon Purse Seine Fishery
Comment 8: One commenter notes that two factors chiefly determine
the classification of a fishery: the number of incidental takes and the
allowable PBR level. Due to a lack of quality data for the inputs to
the PBR formula, it is possible for a fishery to have minimal or even a
singular incidental take in 8 years but to still meet the criteria for
a Category II fishery (for example, the Southeast Alaska salmon purse
seine fishery). The formula that determines the percent PBR (and so the
category for the fishery) has three inputs: population size,
productivity rate, and the recovery factor. Many of the inputs to the
formula are unknown or approximated using theoretical values. Many of
these values are very conservative in light of current population
trends. Other inputs, such as the recovery factor, are management
designations that may not reflect current population status. The output
of a formula cannot be more precise than the sum of the inputs.
Imprecise inputs can result in an improper classification of a fishery.
Response: This comment has two parts: First, concern about
calculation of the PBR level and how uncertainties in data are treated
and, secondly how the PBR level is used in the fisheries classification
process. The MMPA mandates that we not allow marine mammal stocks to
become depleted and that stocks be allowed to recover to or remain at
an optimum sustainable population size. We have defined this as a
population size between carrying capacity and the maximum net
productivity level (for marine mammals it is assumed to be between 50-
85 percent of carrying capacity). The intent of using a PBR level
mortality-based management scheme is to allow determination of an
appropriate human-related mortality level that could be sustained,
while still allowing marine mammal populations to recover to or remain
above their maximum net productivity level.
Inputs into the PBR formula will have uncertainties or biases that
are known or can be estimated (i.e., of population counts) and
variability or biases that are unknown. The PBR level achieves a
suitably conservative estimate in spite of potential bias and
uncertainty in the data. Because the fishery classification criteria
are defined relative to a stock's PBR level and because this level can
be very low for some endangered stocks, commercial fisheries that incur
minimal serious injuries or mortalities may be classified as Category I
or II. However, fisheries are also categorized based on evaluation of
fishing techniques, gear used, methods used to deter marine mammals,
target species, seasons and areas fished, and the species and
distribution of marine mammals in the area. In the absence of observer
data, the likelihood that a small increase in PBR level would change
the categorization of a fishery is remote. It is fully in keeping the
concept of PBR that populations should be increasing if the mean annual
mortality does not exceed the PBR level. However, the intent of
Congress, as expressed in the MMPA, is that fishery mortalities be
reduced much further than PBR to a level approaching a zero mortality
rate. See response to Comment 10.
Comment 9: One commenter believes that classification as a Category
II fishery is a significant burden to fishermen and constitutes an
indictment. Additionally, vessels in a Category II fishery must take
observers upon request, a requirement which brings up such issues as
size of vessel, space, liability, direct and indirect costs. Any
participant in a Category II fishery will also be required to comply
with any applicable TRPs.
Response: Participants in Category II fisheries are required to
have a Marine Mammal Authorization Program (MMAP) Certificate
authorizing incidental serious injuries or mortalities of marine
mammals during commercial fishing authorizations. In Alaska, this
process is automatic and free of charge to the permit holder, thus
greatly minimizing any burden to the fishery. In addition, participants
must carry an observer if we request you to do so.
Fishery categorization does not constitute an indictment. Rather,
it is a comparison of the best information available that relates an
estimated annual incidental marine mammal serious injury and mortality
rate to a stock's population status. This is an effective means by
which to focus limited resources on the most critical areas of
interaction.
Comment 10: One commenter believes that the Southeast Alaska salmon
purse seine fishery should be reclassified as a Category III fishery
and that it has been unduly singled out as the only Category II purse
seine fishery in Alaska. This fishery is a Category II fishery
regarding the central north Pacific stock of humpback whales, based on
one incidental take in the last 8 years. Given that the population is
stable and increasing, using the theoretical cetacean maximum net
productivity rate of 4 percent and a recovery factor of 0.1 is unduly
conservative. Because there has been only one take in 8 years, the mean
annual mortality rate should be 0.125, rather than the 0.2 representing
one take in 5 years, as is reported in the SARs.
Response: With the exception of two harbor seal mortalities in
1993, we have neither received reports of serious injury or mortality
nor of stranding entanglements attributable to other Alaskan purse
seine fisheries. However, this is likely to be an underestimate (see
response to Comment 5). Based on the reported humpback whale
entanglement, by limiting the categorization to the southeast Alaska
salmon purse seine fishery, we appropriately limited our concern to a
specific fishery.
It is consistent that marine mammal populations should increase if
the total mean annual mortality does not exceed the PBR level. We
revised the central north Pacific humpback whale population estimate in
the draft 1998 SARs based on newly available data, resulting in an
increase of the minimum population estimate relative to that published
in the 1996 SAR. However, the draft 1998 SAR also notes that, while
there was qualitative evidence of an increase, there was no
quantitative evidence. However, the PBR level was appropriately revised
from 2.8 to 7.4 whales per year.
We agree that it is ideal to use a maximum net productivity rate
(Rmax) based on reliable stock-specific information rather
than a default value, which is 4 percent in the case of cetaceans. This
information does not
[[Page 9071]]
currently exist for the central north Pacific stock of humpback whales,
and it is extremely difficult to collect such data. Higher
Rmax estimates have been generated from the Gulf of Maine
(6.5 percent); however, neither the Pacific nor Alaska SRGs recommended
applying this to any Pacific Ocean humpback whale stock. As part of
efforts to continually improve the PBR-based management process, we are
conducting a review of the veracity and applicability of current
Rmax default values, and we will adopt new guidelines if
appropriate.
The intent of the recovery factor is to allow for uncertainty and
unknown estimation errors, and also to accommodate additional
information to allow for management discretion as appropriate with the
goals of the MMPA (Barlow et al, 1995). Based on simulations, we
estimated that a recovery factor of 0.1 would not create more than a 10
percent increase in population recovery time for endangered stocks. The
Alaska SRG has recommended, and we agree, to retain the use of 0.1 for
this humpback whale stock. This is due to at least four factors: (1)
qualitatively, it seems that this stock of humpback whales is
increasing, but there is no quantitative estimate; (2) uncertainty of
fisheries takes; (3) uncertainty of stock structure; and (4) its
endangered species status. However, we prefer to utilize the most
appropriate recovery factor values that are not inappropriately
restrictive. Thus, an effort is currently underway to develop a more
objective system to adjust recovery factors. This will also include an
analysis of the appropriateness of using a recovery factor of 0.1 for
endangered species.
We currently use the most recent 5 years of data available for
mortality calculations. Thus, we calculated the minimum estimated mean
annual mortality as 1 mortality in 5 years, or 0.2 per year. This is
presumed to be a minimum estimate. Another 1994 entanglement could have
been due to this fishery rather than to the southeast Alaska drift
gillnet fishery (see response to Comment 11), which would result in 0.4
mortalities per year, or 5 percent of the PBR level. As previously
stated, if the estimated minimum total annual mortality rate (i.e., all
human-caused mortalities, 1.2 per year for this stock) is less than the
PBR level, the stock should be increasing. However, the intent of
Congress, as expressed in the MMPA, is that fishery mortality be
reduced much further than PBR to a level approaching a zero mortality
rate. The current fisheries-related mortality estimate (across all
fisheries interacting with this stock) is 1.0 whales per year. This
take level does not exceed the PBR level, but is in excess of 10
percent (0.74) of the PBR level, thus justifying application of tier 2
LOF criteria. In the absence of adequate estimates of fisheries-related
marine mammal mortality and serious injury, small increases in the PBR
level are unlikely to result in the reclassification of a fishery. We
are confident that the best available data were incorporated into the
PBR equation for this stock of humpback whales.
Comments on the Southeast Alaska Salmon Drift Gillnet Fishery
Comment 11: One commenter believes that the southeast Alaska salmon
drift gillnet fishery should be reclassified as a Category III fishery.
This fishery interacts with seven marine mammal stocks, but mortality
only exceeds 1 percent of the PBR level for the central north Pacific
stock of humpback whales and southeast stock of harbor porpoise. For
the harbor porpoise, the total annual mortality across all fisheries is
less than 10 percent of the PBR level, so all fisheries interacting
with this stock should be placed in Category III. A 1994 report of an
entanglement in Chatham Strait was attributed to this fishery, but this
fishery does not occur in Chatham Strait. Why was a humpback whale that
was released trailing gear in 1996 presumed to have been a mortality?
Response: Calculation of a PBR level provides a useful method for
quantifying the effect of fisheries-related mortality relative to the
size of marine mammal stocks. However, in the absence of adequate
estimates of fisheries related mortality, we evaluate additional
factors to categorize fisheries (see response to Comment 5). The
southeast Alaska salmon drift gillnet fishery is known to interact with
six stocks of marine mammals. For a discussion of the data and values
used in the calculation of the central north Pacific stock of humpback
whales, please see the response to Comment 10. Fisheries-related and
other sources of serious injury and mortality are summarized in the
Alaska SARs, rather than the LOF. As reported in the 1998 draft SAR, in
1994 a humpback whale in weakened condition was reported entangled in
fishing nets with floats attached in Chatham Strait. This entanglement
was attributed to the salmon drift gillnet fishery. The SAR goes on to
state, however, that this could have been just as likely attributable
to the southeast Alaska salmon purse seine fishery. In 1996, a humpback
whale was reported entangled and released trailing salmon drift gillnet
gear. These entanglements were presumed, but not known, to have
resulted in mortalities. These entanglements were presumed to have
resulted in mortalities because both animals were released trailing
gear that was likely to impede or prevent the animals' ability to move
or feed. The classification of either the southeast Alaska salmon purse
seine or the southeast Alaska salmon drift gillnet fishery would remain
unchanged regardless of whether this entanglement was considered to
result in a mortality. See response to Comment 16.
We originally classified this fishery based on a minimum annual
estimated fisheries' mortality of harbor porpoise greater than 10
percent of the PBR level based on a presumed single Alaskan stock of
harbor porpoise (see 1995 Alaska SAR). In 1996, we determined that
harbor porpoise were more appropriately managed as three separate
stocks within Alaska (Southeast Alaska stock, Gulf of Alaska stock, and
Bering Sea stock). Thus, from a biological standpoint it is now even
more critical to have reliable estimates of fishery-related mortality
affecting each stock. Additionally, logbook reports and fisher self
reports are considered to be underestimates of actual mortality (see
response to Comment 5). Based on the gear type used, the temporal and
spatial overlap of this fishery with the southeast Alaska stock of
harbor porpoise, and the estimated minimum annual mortality rate of
humpback whales, a Category II classification is appropriate.
Comment 12: One commenter believes that the Bristol Bay salmon
drift gillnet fishery should be reclassified as Category III. This
fishery has interactions with seven marine mammals, but mortality
attributed to this fishery does not exceed 1 percent of the PBR level
of any of the stocks.
Response: Concern over estimated annual fisheries-related mortality
of the Bering Sea stock of harbor seals (6.7 percent of the PBR level,
of which 5.5 percent is attributable to this fishery) and the
endangered western stock of Steller sea lions (8.9 percent of the PBR
level, of which 0.8 percent is attributable to this fishery), which are
considered to be minimum estimates, warrant a Category II
classification for the Bristol Bay salmon drift gillnet fishery. In the
absence of observer data, we do not believe that this fishery should be
reclassified in Category III given the gear type and temporal and
spatial overlap with these marine mammal stocks.
[[Page 9072]]
Comments on Fisheries in the Southeast Region: Comments on Gulf of
Mexico Menhaden Purse Seine Fishery
Comment 13: One commenter agrees that the three Gulf coastal stocks
of bottlenose dolphin should be combined for purposes of
categorization; however, the commenter added that the Gulf of Mexico
Outer Continental Shelf (OCS) stock should be combined as well. This
would result in a PBR level of 586 individuals. In addition, the
commenter notes that dolphin mortality in this fishery is a highly
isolated event and a linear extrapolation of observer data grossly
overestimates the bycatch across the entire fishery. For these reasons,
the commenter believes the Gulf of Mexico menhaden purse seine fishery
should remain in Category III.
Response: We agree that the stock structure for bottlenose
dolphins, as defined in the SARs, is tentative and that, as more
information regarding Gulf of Mexico bottlenose stock structure becomes
available, the SARs will be revised accordingly. However, the SARs
represent the current, best information available, and we must defer to
them in order to ensure a risk-averse approach to LOF designations.
We recognize the possibility that the current divisions of the
coastal stock(s) may not be the most biologically appropriate and that
some mixing with OCS stock(s) may occur; therefore, we proposed to
place the Gulf of Mexico menhaden fishery in Category II, rather than
the otherwise justifiable Category I.
The best information available indicates that at least three stocks
are present in the coastal zone and that animals inhabiting the OCS
region are from separate and distinct stock(s). However, if NMFS were
to use a PBR level of 586 individuals as suggested, the 68 estimated
takes still exceed the 10 percent threshold and warrant a Category II
designation. Additionally, a study of the fishery by J.Y. Christmas
(1960) indicates that capture rates of bottlenose dolphin in the
menhaden fishery at that time were similar to that recorded in the
Louisiana State University bycatch study.
We are confident that the estimate of 68 dolphins taken annually in
the fishery is reasonable and that elevation to Category II is
justified at this time, and believe that an observer program designed
to estimate the level of dolphin mortality is necessary to further
refine this estimate.
Comment 14: One commenter believes that the Gulf of Mexico menhaden
purse seine fishery should be classified as a Category I fishery,
rather than as a Category II fishery, because the mortality to this
stock exceeds its PBR level. NMFS' rationale for placing this fishery
in Category II is that stock structure is being re-examined; however,
discussions of the Atlantic SRG focused on the need to re-examine the
stock structure of several other stocks of coastal dolphins, not
including the Western coastal stock with which this fishery interacts.
The commenter believes that this fishery should be placed in Category I
and that a take reduction team should be established for bottlenose
dolphins, as is required by the MMPA.
Response: With respect to the Gulf of Mexico menhaden fishery, we
believe that the uncertainty with respect to Gulf of Mexico bottlenose
dolphin structure basin-wide, as well as the fact that the observer
program in which the known dolphin takes were recorded was not
specifically designed to estimate dolphin mortality, provide
justification for placing the fishery in Category II rather than
Category I. If we receive new information to indicate that the western
coastal stock is an isolated stock, and a mortality estimate (based on
a program designed to achieve an estimate of dolphin mortality)
indicates that mortality levels exceed 50 percent of the PBR level, we
will recategorize this fishery as a Category I fishery.
Our Southeast Regional Office is working in cooperation with
industry to develop take reduction strategies aimed at reducing marine
mammal bycatch in this fishery.
Comment 15: One commenter supports NMFS' proposal to reclassify the
Gulf of Mexico menhaden purse seine fishery from a Category III to a
Category II fishery but urged NMFS to re-examine the stock structure of
the three Gulf coastal stocks, to increase the observer coverage and
collection of effort data, and to improve the bycatch estimate for this
fishery in order to more accurately classify this fishery.
Response: We are actively involved in a multi-method approach to
determining stock structure of bottlenose dolphins in the mid-Atlantic.
The mid-Atlantic area is the current focus for our bottlenose dolphin
research because of the depleted listing of the presumed coastal
migratory stock(s) and because of the high bycatch rate indicated by
the level of fishery-related strandings recorded in the mid-Atlantic
states. After this research is complete, we intend to apply the
techniques used in the mid-Atlantic to assess bottlenose stocks in the
Gulf of Mexico.
We are also working to establish an observer program designed to
estimate the level of dolphin mortality associated with the Gulf of
Mexico menhaden fishery. Accurate effort data already are routinely
collected, independent of an observer program.
Comments on the Atlantic Ocean, Caribbean, and Gulf of Mexico Large
Pelagics Longline Fishery
Comment 16: One commenter requests that NMFS revise the
categorization of the Atlantic Ocean, Caribbean, and Gulf of Mexico
large pelagics longline fishery from Category I to Category II. The
Category I classification for this fishery was based on estimates of
annual serious injuries and/or incidental mortalities of pilot whale
interactions based on the PBR level set in the 1994 SARs. The latest
NMFS estimate of annual serious injury and/or incidental mortality for
pilot whales by this fishery is 5.5 animals per year, representing only
12 percent of the PBR level for pilot whales (45 animals).
Response: The present Category I classification for the Atlantic
pelagic longline fishery is based on an estimated average annual pilot
whale mortality of 5.5 pilot whales between 1992 and 1995. Because of
the timing and location of these mortalities and lack of photo-
documentation, we do not know whether some or all of these whales may
have been short-finned pilot whales, Globicephala macrorhynchus, which
have a PBR level of 3.7 animals per year. The Atlantic SRG, an external
panel convened to advise us on the SARs, advised adopting the risk-
averse strategy of assuming that an observed mortality or serious
injury of a pilot whale may be attributed to either species. Based on
an annual short-finned pilot whale mortality of 5.5 animals per year,
the Atlantic pelagic longline fishery exceeds the PBR level of 3.7
animals per year; thus, the Atlantic pelagic longline fishery fits the
criteria for a Category I fishery.
The annual marine mammal bycatch rate in this fishery is based only
on incidental mortalities and does not include those animals that are
incidentally injured. Based on observer information and fisher reports,
we know that many animals are hooked or entangled in this fishery and
subsequently released alive. Some percentage of these injured animals
sustain serious injuries that will likely result in death.
Under the MMPA, we are required to consider both incidental
mortalities and serious injuries when determining a fishery's annual
marine mammal bycatch level. We are currently developing biological
criteria for determining what constitutes a serious injury to a marine
mammal that is
[[Page 9073]]
injured incidental to commercial fishing operations. These guidelines
will be based on the results of a workshop that we convened in April
1997 to collect expert opinion on what types of injuries should be
considered ``serious injuries.''
Our consideration of incidental marine mammal injuries that occur
incidental to the Atlantic pelagic longline fishery will result in an
annual mortality and serious injury rate which is higher than the
current level (which is based only on incidental mortalities).
Comment 17: One commenter requests that NMFS review and revise the
species listed for each fishery in the LOF. In addition, the commenter
requests that NMFS delete species that have not been documented or
otherwise verified to have been seriously injured and/or incidentally
killed by the U.S. Atlantic pelagic longline gear. Specifically, the
commenter requests that the following species/stocks be removed from
the list of species that interact with the Atlantic pelagic longline
fishery: Humpback whale, Western North Atlantic (WNA); Minke whale,
Canadian east stock; Common dolphin, WNA, Striped dolphin, WNA,
Bottlenose dolphin, WNA offshore; and Harbor porpoise, Gulf of Maine/
Bay of Fundy.
Response: In the development of the proposed LOF for 2000, we will
conduct a thorough review of the species and/or stocks that interact
with Atlantic Ocean, Gulf of Mexico, and Caribbean fisheries and
propose any needed changes to the list of species and/or stocks that
interact with the Atlantic pelagic longline fishery at that time.
In considering which stocks should be listed in the LOF as
interacting with the Atlantic pelagic longline fishery, the commenter
notes the differences between the list of species/stocks that are
listed in the LOF and those listed in the SARs. As described in the
proposed LOF (63 FR 42803, August 11, 1998), the LOF tables list the
marine mammal species/stocks that are incidentally killed or injured
(including non-serious injuries) in each fishery based on observer
data, logbook data, stranding reports, fishers' reports, anecdotal
reports, and other sources of information. The criteria for listing a
species/stock in the LOF are much more broad than in the SARs, which
often only describes stocks which have incurred mortalities and serious
injuries. The list of species/stocks in the LOF includes all species or
stocks known to incur injury or mortality for a given fishery; however,
not all species or stocks identified are necessarily independently
responsible for a fishery's categorization.
Comment 18: One commenter requests that NMFS sub-divide the
Atlantic Ocean, Caribbean, and Gulf of Mexico pelagic longline
fisheries for swordfish, tuna and sharks into three regional fisheries
on the LOF. The pelagic longline fisheries within the Exclusive
Economic Zone should be divided into north and south regions with a
boundary at Cape Hatteras, NC. The pelagic longline fishery in the Gulf
of Mexico should be categorized separately.
Separating these fisheries by fishing region would facilitate
establishing a standardized process for monitoring effort, estimating
serious injury and incidental mortality rates and evaluating the
effectiveness of take reduction methods.
In response to similar previous requests from the commenter, NMFS'
response was that the Atlantic Offshore Cetacean Take Reduction Team
would be the appropriate forum to discuss this issue; however, this
alternative was not discussed during the Team's meetings. In addition,
NMFS' previous response indicated that nearly all of the participants
moved across the proposed boundaries. The commenter disagrees and
thinks that NMFS should review available effort data, which should
indicate that nearly all of the participants stay within the proposed
boundaries.
Response: We continue to find that fishers in the Atlantic pelagic
longline fishery move across the proposed boundaries, as do many of the
protected species impacted by the fishery. In addition, this fishery is
currently managed on a fishery-wide basis for fishery management
purposes, and we believe it is appropriate to maintain the same fishery
definitions across NMFS offices wherever possible. For these reasons,
we believe that it is not appropriate to subdivide the pelagic longline
fishery at this time.
Comments on Mid-Atlantic Coastal Gillnet Fishery
Comment 19: One commenter questions NMFS' assertion that there is
no additional information on the Mid-Atlantic coastal gillnet fishery's
interactions to justify recategorizing it as a Category I fishery. Data
presented to the Mid-Atlantic Take Reduction Team in June 1997
documented stranded bottlenose dolphins with evidence of net marks.
Between February 19 and May 30, 1997, 15 of the 31 carcasses whose
conditions permitted analysis showed evidence of entanglement-related
mortality. These, along with subsequent strandings, certainly exceed 50
percent of the PBR level of 25 for coastal bottlenose dolphins and
justify this fishery being listed in Category I.
Response: Although data presented to the take reduction team
indicate high take levels of bottlenose dolphins in 1998, the 5-year
average dolphin mortality attributable to interaction with monofilament
nets, as reported in available stranding data, is 12.5 animals per
year, which is exactly 50 percent of the PBR level. These takes cannot
be directly ascribed to the Mid-Atlantic coastal gillnet fishery
because other fisheries, such as haul seines and pound nets, could also
leave net marks on dolphin or porpoise carcasses.
We believe that it is appropriate to maintain the Category II
designation until more definitive data are available. This fishery will
continue to be observed and participants will be subject to all of the
requirements of participants in Category I fisheries. The Mid-Atlantic
coastal gillnet fishery observer program has recently recorded
interactions with bottlenose dolphins. Provided that we are able to
achieve representative sampling of the fishery, these data, once
analyzed, will be used instead of the less definitive stranding data.
We anticipate that these mortality estimates will be available before
publication of the proposed LOF for 2000. We will propose a
recategorization of this fishery to Category I at that time, if
appropriate.
Comments on North Carolina Inshore Gillnet Fishery
Comment 20: One commenter disagrees with NMFS' decision to retain
the North Carolina inshore gillnet fishery as a Category III fishery
when evidence indicates that the North Carolina inshore gillnets
interact with bottlenose dolphins. While it is true that stock
structure is being reconsidered for this stock, the fishery will still
be exceeding 10 percent of the PBR level regardless of whether the
current stock structure is retained. This fishery, along with other
coastal fisheries that are operating in the area where stranded animals
are found with evidence of net entanglement, should be listed as
Category I or II fishery.
Response: There are very few marine mammal strandings reported from
inshore waters; thus, the existing category III designation is
currently appropriate. We are currently in the process of reviewing
stranding records (e.g., verifying exact location data) to ensure that
an accurate count is available from which to assess the percentage of
the PBR level which is attributable to gillnet interactions in inshore
waters. In addition, we are expending some observer effort in these
[[Page 9074]]
waters. Although we believe that the interaction rate is fairly low, if
any takes are observed in inshore waters, we will develop an estimate
of the level of take in this inshore component of this fishery and use
it to re-assess the categorization of the fishery.
Comments on Atlantic Fisheries Interacting with Coastal Bottlenose
Dolphins
Comment 21: One commenter is concerned that NMFS does not have
adequate population abundance estimates and stock structure information
for coastal bottlenose dolphins to allow it to accurately assess the
PBR level for this stock and to determine bycatch levels in the
Atlantic Ocean, Gulf of Mexico blue crab trap/pot fishery, the North
Carolina inshore gillnet fishery, and other fisheries. The commenter
notes that it is a violation of the MMPA for NMFS to continue to allow
fisheries to take bottlenose dolphins in the absence of this
information and any take reduction plan. NMFS must immediately work to
obtain accurate population abundance estimates and stock structure
information for bottlenose dolphin.
Response: We recognize the importance of these issues and have
committed resources to developing accurate abundance estimates and to
obtaining critical stock structure information. We are committed to
answering complex bottlenose dolphin stock structure questions and,
wherever possible, are devoting our limited resources toward addressing
these issues.
We have been operating an observer program in nearshore waters
since early 1998. By spring 1999, marine mammal bycatch data from this
observer program will be available and marine mammal bycatch estimates
will be developed. We plan to use these data, in conjunction with the
best available data on abundance (i.e., information contained in the
most recent SAR), and will consider convening a take reduction team at
that time, if appropriate.
Comments on North Carolina Haul Seine Fishery
Comment 22: One commenter supports NMFS' proposal to change the
name of the ``North Carolina haul seine fishery'' to the ``Mid-Atlantic
haul seine fishery.''
Response: We agree and are changing the name of the ``North
Carolina haul seine fishery'' to the ``Mid-Atlantic haul seine
fishery.''
Comments on the Mid-Atlantic, Southeastern U.S. Atlantic, Gulf of
Mexico Shrimp Trawl Fishery
Comment 23: One commenter believes that the Mid-Atlantic,
Southeastern U.S. Atlantic, Gulf of Mexico shrimp trawl fishery should
be elevated to Category II based on observations of bottlenose dolphins
being killed by vessels in this fishery. Given the low PBR level for
the stock and the lack of observer coverage, the commenter expects that
this fishery is killing more than 10 percent of the PBR level for the
stock.
Response: Although there have been approximately 50,000 hours of
observer coverage in the shrimp trawl fishery, no incidental
mortalities of bottlenose dolphins in this fishery have ever been
recorded by observers. We are aware that occasional mortalities do
occur, but it is unlikely that the 5-year average number of known
interactions with any one dolphin stock exceeds 10 percent of the PBR
level. However, we are currently conducting a review of dolphin
mortality records in this fishery and will re-evaluate the
categorization of this fishery to ensure that it is categorized
appropriately.
Comments on Fisheries in the Northeast Region: Comments on the Atlantic
Herring Midwater Trawl Fishery
Comment 24: Several commenters wrote in support of including the
herring midwater trawl fishery in Category II due to the potential for
incidental take of marine mammals, particularly harbor porpoise from
the Gulf of Maine/Bay of Fundy stock. The New England Fishery
Management Council (NEFMC) expressed support of a Category II listing.
In addition to the reasons listed in the Proposed 1999 LOF, the NEFMC
Marine Mammal Committee noted that the practice of pair trawling has
increased over the last several years and that vessels fishing in pairs
in other fisheries have accounted for takes of marine mammals and sea
turtles. Vessels fishing singly for herring also may be associated with
some level of harbor porpoise bycatch given the close predator/prey
relationship between porpoise and herring.
Response: We agree and are adding the Atlantic herring midwater
trawl (including pair trawl) fishery to the LOF as a Category II
fishery.
Comment 25: One commenter notes that the Harbor Porpoise Take
Reduction Plan goals could be compromised by takes of porpoise in
fisheries such as the herring trawl fishery, which are not regulated by
the Plan, and stated that such takes would undermine the efforts by the
sink gillnet fishery (and other parties involved in the take reduction
plan development process) to reduce takes of porpoise. The commenter
also recommended that NMFS initiate observer coverage in the herring
trawl fishery to investigate the potential for porpoise takes.
Response: We agree. If takes of harbor porpoise are reported from
fisheries other than the fisheries currently regulated by the harbor
porpoise plan, this information will be presented to the take reduction
team(s) for their consideration. The Category II listing gives us the
authority to place observers on this fishery.
Comment 26: One commenter states that the herring trawl fishery was
being reclassified using a ``guilty until proven innocent'' standard
and noted that NMFS do not have data linking the Atlantic herring
midwater trawl fishery to any marine mammal injuries or mortalities.
Response: Section 118 of the MMPA provides for flexibility in
fishery classifications. In the case of the herring fishery, data on
food habits of harbor porpoise and other marine mammal species, the
overlap of distribution of the herring fishery and several of these
marine mammal species, and documented takes of small cetaceans and
pinnipeds in gear used in the herring fishery is sufficient to warrant
classification of this fishery in Category II.
Comment 27: One commenter notes that a new herring fishery
management plan has just been adopted by the NEFMC which allows for the
use of observers in the Atlantic herring fishery. Before imposing an
additional regulatory burden on the herring fleet, as the proposal to
register herring midwater trawlers as Category II fishermen would do,
the commenter requested that NMFS and the NEFMC should expend the
effort to develop data through other available means.
Response: We agree that there is authority under the Magnuson-
Stevens Fishery Conservation and Management Act to place observers on
vessels. However, the MMPA specifically requires that we review the LOF
annually to assess a fishery's level of interactions with marine
mammals. Through this process, we have determined that this fishery
should be reclassified for several reasons explained earlier (see
response to comments 24-26). This reclassification should not place a
significant regulatory burden on fishery participants. As a result of
this action, participants in this fishery will be required to register
and to accommodate an observer if
[[Page 9075]]
requested. The Category II classification was meant to be an interim
stage that allows collection of data to determine the level of take
more accurately.
Comment 28: Due to the potential for take of marine mammals in
bottom trawl gear targeting herring, one commenter disagrees with the
inclusion of bottom trawl vessels targeting herring in the Category III
listing for the North Atlantic bottom trawl fishery.
Response: We agree that takes of marine mammals have been observed
in the bottom trawl fishery; however, this level of take meets the
Category III definition. Very few, if any, of the vessels that catch
herring with bottom trawl gear are actually targeting herring. The
herring fishery is considered predominantly a mid-water trawl fishery,
which is listed separately.
Comments on the Northeast Sink Gillnet Fishery
Comment 29: One commenter requests that the number of participants
in the Northeast sink gillnet fishery be changed from 341 to 200 and
that ``North Atlantic right whale, WNA'' be removed from the list of
species interacting with the fishery.
Response: The most current analysis of the number of boats in the
Northeast sink gillnet fishery was done in the Regulatory Flexibility
Act analysis for the Harbor Porpoise Take Reduction Plan. This analysis
determined that at least 273 vessels used sink gillnet gear in 1996.
Vessels included in that analysis either reported the use of gillnet
gear in a fishing vessel log or sold fish to a dealer reporting through
the dealer logbook system. There may be a number of vessels fishing in
state waters which were not identified by the Federal logbook system.
Since the fishery listing under the MMPA includes all state water
participants, the number of actual participants in 1996 may be somewhat
higher than 273. Therefore, we are not changing the number of
participants at this time. We acknowledge that participation is not
equal amongst vessels reporting use of gillnet gear; however, the LOF
does not attempt to distinguish between active and limited
participation.
There are several records of right whale entanglements in gillnet
gear. Right whale distribution overlaps areas where U.S. sink gillnet
gear is set and observations of right whales entangled in gillnet gear
have been recorded in U.S. waters. Therefore, some of the historical
gillnet entanglement records may have involved sink gillnet gear, and
the potential remains for right whales to become entangled and
seriously injured in gear used by the Northeast sink gillnet fishery.
Comment 30: One commenter supports NMFS' proposal to change the
name of the ``Northeast multispecies sink gillnet fishery'' to the
``Northeast sink gillnet fishery.''
Response: We agree and are changing the name of the ``Northeast
multispecies sink gillnet fishery'' to the ``Northeast sink gillnet
fishery.''
Comments on the Atlantic Squid, Mackerel, Butterfish Trawl Fishery
Comment 31: One commenter questions NMFS' justification for
refusing to categorize the Atlantic squid, mackerel, butterfish trawl
fishery in Category I based on a vague assertion that uncertainty
exists. The commenter expressed concern that data from 1997 had not
been analyzed prior to issuing the proposed LOF. The commenter noted
that it is difficult to understand how this uncertainty occurred after
the spring SRG meeting and yet could not be resolved prior to issuing
the LOF. NMFS should be guided by the precautionary principle and list
this as a Category I fishery because of its marine mammal interactions.
Response: The data for 1997 have not yet been fully analyzed. We
anticipate that these data will be fully analyzed for the draft 1999
SAR and will be available prior to preparation of the proposed 2000
LOF.
Comments on the Gulf of Maine, U.S. Mid-Atlantic Mixed Species Trap/Pot
Fishery
Comment 32: One commenter notes that the Gulf of Maine/U.S. Mid-
Atlantic mixed species trap/pot fishery is listed as a Category III
fishery. They are also listed as interacting with North Atlantic right
whales, and whales have been seen entangled with buoy lines that are of
unknown origin, but that may have come from this fishery. Because of
this, the commenter did not understand why this is a Category III
fishery, since the PBR level for right whales is only 0.4 per year and
any interaction would likely exceed 10 percent of the PBR level. This
fishery should be listed as a Category I or II fishery.
Response: We agree that fixed gear fisheries with gear components
capable of entangling whales may pose a risk in times/areas coinciding
with whale distribution. However, no records of entanglement in gear
known to be used in this fishery were documented during the period
analyzed. We intend to analyze this fishery with respect to fishery
distribution and other factors to determine if reclassification is
warranted for the proposed LOF for 2000.
Comments on Takes From Human Activities Other Than Commercial Fishing
Comment 33: One commenter requests that commercial passenger
vessels and other vessels that hit whales and manatees be classified in
the LOF.
Response: It is not appropriate to list vessel impacts in the MMPA
LOF. The LOF is directed at incidental takes of marine mammals by
commercial fisheries. We are addressing ship strike impacts to whales
through activities recommended by the Northeast Recovery Plan
Implementation Team for commercial shipping traffic and whale watch
vessels.
Comments on the Proposed Changes to Regulations at 50 CFR Part 229
Comment 34: One commenter wrote in support of NMFS' proposal to
revise 50 CFR part 229 by: removing the definition of ``Incidental, but
not intentional take,'' clarifying that the marine mammal deterrence
provisions pertain to all commercial fishers, requiring that
participants in non-vessel fisheries report their gear permit number,
requiring that vessel operators provide specific accommodations to
observers, and specifying that under an emergency action, the Assistant
Administrator for Fisheries, NMFS (Assistant Administrator) will
determine whether a recategorization of the fishery is appropriate.
Response: We agree and are finalizing these changes.
Comment 35: One commenter disagrees with NMFS' proposal to delete
the requirement that vessel owners must provide, when they register,
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.'' The MMPA specifically mandates that vessel
owners provide this information, and the commenter disagrees that this
information is included in the fishery title. NMFS cannot manage
fisheries if fishers do not provide this information.
Response: As part of their registration, fishers must provide the
name of the Category I and II fisheries in which they participate.
Fishers are not asked to submit additional fishery description
information because we obtain this information from Federal, state, and
local fishery management officials. We believe that it is more
efficient to obtain this information from fishery management sources,
rather than to burden individual fishers by requiring
[[Page 9076]]
them to provide this detailed information. In addition, we believe that
there is an advantage in collecting compiled fishery information from
fishery management sources because it allows us to track the behavior
of the entire fishery instead of the behavior of individual fishers.
Comment 36: One commenter strongly opposes NMFS' proposal to remove
all references to an ``annual decal'' and to use the term ``decal'' in
its place. The commenter believes this is a clear violation of the MMPA
which requires that a ``decal or other physical evidence that the
authorization is current and valid * * * and so long as the
authorization remains current and valid, shall be reissued annually
thereafter.'' NMFS is violating the MMPA by not issuing an annual decal
with an expiration date each year after it receives a vessel owners
completed registration.
Response: Upon receiving a vessel owner's completed registration
information, we issue an annual Authorization Certificate with an
expiration date. This Authorization must be renewed annually. This
Authorization Certificate satisfies the requirement of section 118 of
the MMPA to have a ``decal or other physical evidence that the
authorization is current and valid * * * and so long as the
authorization remains current and valid, shall be reissued annually
thereafter.''
We have successfully integrated the Marine Mammal Authorization
Program (MMAP) with existing fishery management programs for several
fisheries and reduced the burden on fishers in these fisheries.
Participants in these integrated fisheries are registered automatically
in the MMAP. In order for participants in these fisheries to receive
annual MMAP decals, we would need to conduct a separate annual mailing
to these participants. We believe that sending these decals to all
participants in integrated fisheries is an unnecessary burden and would
work against the goal of the integrated registration system. In
addition, we believe that the issuance of an annual MMAP decal is
unnecessary given that the Authorization certificate provides annual
proof that a marine mammal authorization has been granted.
For these reasons, we will continue to distribute MMAP decals that
do not have an annual expiration. MMAP decals may not be distributed
every year. We are replacing the term ``annual decal'' with the term
``decal.''
Comment 37: One commenter opposes NMFS' removing the definition of
``Incidental mortality'' because it is a term used throughout the MMPA
and its implementing regulations.
Response: We agree that the term ``incidental mortality'' is used
throughout the MMPA; however, the term ``incidental'' is broadly used
throughout the MMPA and is used in conjunction with several other terms
(e.g., incidental serious injury). We believe that it is more
appropriate to define the broad term ``incidental'' in 50 CFR part 229
than to specifically define ``incidental mortality.'' We are adding the
following definition to Sec. 229.2: ``Incidental means, with respect to
an act, a non-intentional act or accidental act that results from, but
is not the purpose of, carrying out an otherwise lawful action.''
Comment 38: One commenter opposes NMFS' proposal to remove the
provision that requires the Authorization Certificate be signed and
dated by the owner or the authorized representative of the owner in
order to be valid. NMFS claims that the possession of the certificate
is sufficient to provide an authorization for taking marine mammals.
The vessel owner's signature means that he/she has read and understands
the legal requirements and is bound to abide and carry out these
requirements.
Response: We disagree. The Authorization to take marine mammals is
granted when we issue the Certificate and is not contingent upon the
vessel owner's signature.
In the past, the signature line on the Authorization Certificate
has resulted in some confusion. Fishers have assumed that since they
were required to sign them, they should send them back to us. Removing
the signature line, and the requirement to sign the Authorization
Certificates, will help eliminate this confusion.
Comment 39: One commenter states that NMFS' proposal in Sec. 229.7
to add ``sleeping accommodations * * * that are equivalent to those
provided to the crew'' needs to be clarified. It is common for a vessel
to only have bunk space sufficient for the number of crew typically
carried in any specific fishery. The commenter suggested using instead:
``sleeping accommodations that are reasonably equivalent to those
provided to the crew, taking the vessel's presently existing sleeping
accommodations into account.''
Response: We recognize that many vessels only have bunk space for
the number of crew carried in any specific fishery. We will continue to
take the vessel's existing sleeping accommodations into account with
respect to observer accommodations. It is not the intent of this
provision to require vessel owners to build extra bunks to accommodate
observers. We are clarifying that the requirement to provide ``sleeping
accommodations * * * that are equivalent to the crew'' depends upon the
specific accommodations of a given vessel. We believe that the proposed
text is adequate and will take a vessel's existing sleeping
accommodations into account in enforcing this provision.
Comment 40: One commenter states that the need for the provision
under Sec. 229.30 stems from a lack of cooperation between the
divisions of Protected Resources and Sustainable Fisheries, NMFS. The
fact that Protected Resources needs the power to enact fisheries
regulations independent of Sustainable Fisheries indicates a serious
problem within NMFS that obviously interferes with its ability to
fulfill its mission. The proposed provision does not fix the problem.
Response: Section 229.30 contains the implementing regulations for
TRPs developed under the MMPA. The only change that we proposed to this
section was to add an introductory paragraph for this section. This
section introduces the TRP implementing regulations by outlining our
authority under the MMPA in implementing TRPs.
Additional Comments
We received several comments on 50 CFR part 229 that addressed
issues that were outside the scope of our currently proposed changes
and technical revisions. We will address these comments during a future
review of these regulations.
Summary of Changes to the LOF for 1999
With the following exceptions, the placement and definitions of
U.S. commercial fisheries are identical to those provided in the LOF
for 1998. Thus, the majority of the LOF for 1998 remains valid in 1999.
The following summarizes the changes in fishery classification, fishery
definition, number of participants in a particular fishery, the species
that are designated as strategic stocks, and the species and/or stocks
that are incidentally killed or seriously injured that are made final
by this LOF for 1999:
Commercial Fisheries in the Pacific Ocean
Fishery Description
The ``Alaska Peninsula/Aleutians salmon drift gillnet fishery'' is
renamed the ``Alaska Peninsula/Aleutian Islands salmon drift gillnet
fishery.''
The ``Alaska Peninsula/Aleutian Island salmon set gillnet fishery''
is
[[Page 9077]]
renamed the ``Alaska Peninsula/Aleutian Islands salmon set gillnet
fishery.''
The ``Alaska Cook Inlet drift gillnet fishery'' is renamed the
``Alaska Cook Inlet salmon drift gillnet fishery.''
The ``Alaska Bristol Bay drift gillnet fishery'' is renamed the
``Alaska Bristol Bay salmon drift gillnet fishery.''
The ``Alaska Bristol Bay set gillnet fishery'' is renamed the
``Alaska Bristol Bay salmon set gillnet fishery.''
The ``Alaska pair trawl fishery'' is renamed the ``Alaska
miscellaneous finfish pair trawl fishery.''
The ``Alaska Prince William Sound set gillnet fishery is renamed
the ``Alaska Prince William Sound salmon set gillnet fishery.''
The ``Alaska Metlakatla purse seine fishery'' is renamed the
``Alaska Metlakatla salmon purse seine fishery.''
The ``Alaska other finfish handline and mechanical jig fishery'' is
renamed the ``Alaska miscellaneous finfish handline and mechanical jig
fishery.''
Number of Vessels/Persons
The estimated number of vessels/persons for the Alaska Kuskokwim,
Yukon, Norton Sound, Kotzebue salmon gillnet fishery is changed from
1,519 to 1,419.
The estimated number of vessels/persons for the Alaska Bering Sea,
Gulf of Alaska finfish fishery is changed from 277 to 274.
The estimated number of vessels/persons for the Alaska, Washington,
Oregon, California commercial passenger fishery is changed from >17,000
(16,276 Alaska only) to >4,000.
The estimated number of persons/vessels for the Washington Puget
Sound Region salmon drift gillnet fishery is changed from 900 to 725.
The estimated number of persons/vessels for the Washington, Oregon
salmon net pens is changed from 21 to 14.
List of Species That Are Incidentally Injured or Killed by a Particular
Fishery
The Washington Inland Waters stock of Harbor seals is added to the
list of species/stocks that are incidentally killed or injured by the
Washington, Oregon salmon net pens.
The southern sea otter is added to the list of species/stocks that
are incidentally killed or injured by the California angel shark/
halibut and other species large mesh set gillnet fishery.
The southern sea otter is added to the list of species/stocks that
are incidentally killed or injured by the California lobster, prawn,
shrimp, rock crab, fish pot fishery. Commercial Fisheries in the
Atlantic Ocean, Gulf of Mexico, and Caribbean.
Fishery Classification
The ``Gulf of Mexico menhaden purse seine fishery'' is moved from
Category III to Category II.
Addition of Fisheries to the LOF
The ``Atlantic herring midwater trawl (including pair trawl)
fishery'' is added to the LOF as a Category II fishery. This fishery
includes those vessels currently participating in the ``Gulf of Maine,
U.S. mid-Atlantic coastal herring trawl fishery'' (which is removed
from the LOF).
Removals of Fisheries From the LOF
The ``Gulf of Maine, U.S. mid-Atlantic coastal herring trawl
fishery'' is removed from the LOF.
Fishery Descriptions
The ``Gulf of Maine, southeast U.S. Atlantic coastal shad,
sturgeon, gillnet (includes waters of North Carolina) fishery'' is
renamed the ``Gulf of Maine, southeast U.S. Atlantic coastal shad,
sturgeon, gillnet fishery.'' Fishers participating in the North
Carolina fishery are more appropriately identified under the U.S. mid-
Atlantic coastal gillnet fishery.
Number of Vessels/Persons
The estimated number of vessels/persons for the Southeastern U.S.
Atlantic, Gulf of Mexico, Caribbean spiny lobster trap/pot fishery is
changed from 750 to 4,847.
List of Species That Are Incidentally Injured or Killed by a Particular
Fishery
The stocks of marine mammals that are injured/killed in the
Northeast sink gillnet fishery are clarified for the following species:
Common dolphin, Western North Atlantic (WNA); Fin whale, WNA; Spotted
dolphin, WNA; False killer whale, WNA; Harp seal, WNA.
The WNA coastal stock of bottlenose dolphin is added to the list of
species/stocks that are incidentally injured or killed by the North
Carolina inshore gillnet fishery.
The list of marine mammal species/stocks incidentally injured/
killed in the Florida east coast, Gulf of Mexico pelagics king and
Spanish mackerel gillnet fishery is changed to ``None documented.''
Changes Resulting From Draft 1998 SARs
The table in the LOF that lists all U.S. commercial fisheries, the
number of participants in each fishery, and the marine mammal stocks
and/or species incidentally killed or injured in each fishery is
updated to include the following changes in the draft Pacific and
Atlantic SARs:
1. The CA/OR/WA stocks of Mesoplodont beaked whales are proposed to
be designated as non-strategic;
2. The CA/OR/WA stock of minke whales are proposed to be designated
as non-strategic; and
3. The Western North Atlantic stock of white-sided dolphin is
proposed to be designated as strategic.
The draft SAR for Alaska provided updates to the number of
participants in each Alaska commercial fishery and to the list of
species and/or stocks incidentally injured or killed in each fishery.
When possible, the number of participants provided in the table in the
LOF reflects the number of permits fished in 1996. For those fisheries
for which this information was not available, the number of permits
issued was used to represent the number of participants.
Summary of Changes to Regulations at 50 CFR Part 229
We are making several revisions and technical edits to 50 CFR part
229. These changes are described here.
Definitions
In Sec. 229.2 and Sec. 229.3 we are removing the term ``taking''
and adding in its place the term ``incidental serious injury and
mortality.''
In Sec. 229.2, we are removing the definitions of the terms
``Fisher'', ``Incidental, but not intentional, take'' and ``Incidental
mortality'' and adding definitions of the terms ``Fisher or
fisherman'', ``Incidental'' and ``Integrated fishery.''
Requirements for Category I and II Fisheries
We are removing the requirement that vessel/gear owners provide a
description of the gear type and approximate time, duration, and
locations of each fishery operation.
In Sec. 229.4(e)(1) and Sec. 229.4(e)(3), we are removing the term
``annual'' before the term ``decal.''
We are removing the provision that all Authorization Certificates
must be signed and dated by the owner or the authorized representative
of the owner in order to be valid.
We are making several additional minor changes to Sec. 229.4,
including updating the telephone numbers of NMFS regional offices
clarifying registration requirements for participants in integrated
fisheries, and restructuring sections.
[[Page 9078]]
Requirements for Category III Fisheries
We are correcting the wording of this section to clarify that this
deterrence provision applies to all vessel owners and crew members
engaged in commercial fishing operations.
Reporting Requirements
We are modifying the reporting requirements under Sec. 229.6 to
include all commercial fishermen, regardless of the category of fishery
they participate in, and to clarify the registration requirements for
participants in non-vessel fisheries. Instead of providing the vessel
name and registration number, participants in non-vessel fisheries are
required to submit the gear permit number.
Monitoring of Incidental Mortalities and Serious Injuries
We are removing all references to an ``onboard observer'' and we
are further defining the specific accommodations that vessel operators
must provide by specifying that vessel operators or crew members must
provide ``food, toilet, bathing, and sleeping accommodations that are
equivalent to those provided to the crew.'' These accommodations should
be provided at no cost to the observer or to us.
We are specifically allowing observers to sample, retain, or store
target and non-target catch, which includes marine mammals or other
protected species specimens.
We are clarifying that observer requirements apply to ``vessel
owners/operators'' instead of ``Authorization Certificate holders.''
We are moving the prohibition of marine mammal retention from
Sec. 229.7(c)(6) to Sec. 229.3 (e).
Emergency Regulations
We are revising the regulatory language regarding emergency actions
to clarify that the Assistant Administrator in reviewing the fishery
classification, would also determine whether a recategorization of the
fishery is appropriate.
Take Reduction Plans
We are adding a new introductory section under subpart C addressing
TRP regulations.
List of Fisheries
The following two tables list U.S. commercial fisheries according
to their assigned categories under section 118 of the MMPA. When
possible, we express the estimated number of vessels in terms of the
number of active participants in the fishery. If this information is
not available, we provide the estimated number of vessels or persons
licensed for a particular fishery. If no recent information is
available on the number of participants in a fishery, we use the number
from the 1996 LOF. The tables also list the marine mammal species/
stocks that are incidentally killed or injured in each fishery based on
observer data, logbook data, stranding reports, and fishers' reports.
This list includes all species or stocks known to incur injury or
mortality for a given fishery; however, not all species or stocks
identified are necessarily independently responsible for a fishery's
categorization. There are a few fisheries that are in Category II that
do not have any recently documented interactions with marine mammals;
the justification for categorization of these fisheries are by analogy
to other gear types that are known to injure or kill marine mammals, as
discussed in the final LOF for 1996 (60 FR 45086, December 28, 1995).
Commercial fisheries in the Pacific Ocean are listed in Table 1;
commercial fisheries in the Atlantic Ocean are listed in Table 2. An
asterisk (*) indicates that the stock is a strategic stock; a plus (+)
indicates that the stock is listed as threatened or endangered under
the Endangered Species Act.
Table 1.--List of Fisheries: Commercial Fisheries in the Pacific Ocean
------------------------------------------------------------------------
Estimated
Number of Marine mammal species/
Fishery description vessels/ stocks incidentally
persons killed/injured
------------------------------------------------------------------------
Category I
------------------------------------------------------------------------
Gillnet Fisheries:
CA angel shark/halibut and 58 Harbor porpoise, central
other species large mesh CA.
(>3.5in) set gillnet. Common dolphin, short-
beaked, CA/OR/WA.
Common dolphin, long-
beaked CA.
California sea lion,
U.S.
Harbor seal, CA.
Northern elephant seal,
CA breeding.
Sea otter, CA.
CA/OR thresher shark/ 130 Steller sea lion,
swordfish drift gillnet. Eastern U.S.*+.
Sperm whale, CA/OR/WA*+.
Dall's porpoise, CA/OR/
WA.
Pacific white sided
dolphin, CA/OR/WA.
Risso's dolphin, CA/OR/
WA.
Bottlenose dolphin, CA/
OR/WA offshore.
Short-beaked common
dolphin CA/OR/WA.
Long-beaked common
dolphin CA/OR/WA.
Northern right whale
dolphin, CA/OR/WA.
Short-finned pilot
whale, CA/OR/WA*.
Baird's beaked whale, CA/
OR/WA.
Mesoplodont beaked
whale, CA/OR/WA.
Cuvier's beaked whale,
CA/OR/WA.
Pygmy sperm whale, CA/OR/
WA.
California sea lion,
U.S.
Northern elephant seal,
CA breeding.
Humpback whale, CA/OR/WA-
Mexico*.
Minke whale, CA/OR/WA.
Striped dolphin, CA/OR/
WA.
Killer whale, CA/OR/WA
Pacific coast.
[[Page 9079]]
Northern fur seal, San
Miguel Island.
Category II
------------------------------------------------------------------------
Gillnet Fisheries:
AK Prince William Sound 509 Steller sea lion,
salmon drift gillnet. Western U.S.*+.
Northern fur seal,
Eastern Pacific*.
Harbor seal, GOA*.
Pacific white-sided
dolphin, central North
Pacific.
Harbor porpoise, GOA.
Dall's porpoise, AK.
AK Peninsula/Aleutian Islands 163 Northern fur seal,
salmon drift gillnet. Eastern Pacific*.
Harbor seal, GOA.
Harbor porpoise, Bering
Sea.
Dall's porpoise, AK.
AK Peninsula/Aleutian Islands 110 Steller sea lion,
salmon set gillnet. Western U.S.*+.
Harbor porpoise, Bering
Sea.
Southeast Alaska salmon drift 439 Steller sea lion,
gillnet. Eastern U.S.*+.
Harbor seal, Southeast
AK.
Pacific white-sided
dolphin, central.
North Pacific.
Harbor porpoise,
Southeast AK.
Dall's porpoise, AK.
Humpback whale, central
North Pacific*+.
AK Cook Inlet salmon drift 560 Steller sea lion,
gillnet. Western U.S.*+.
Harbor seal, GOA*.
Harbor porpoise, GOA.
Dall's porpoise, AK.
Beluga, Cook Inlet*.
AK Cook Inlet salmon set 604 Steller sea lion,
gillnet. Western U.S.*+.
Harbor seal, GOA*.
Harbor porpoise, GOA.
Beluga, Cook Inlet*.
Dall's porpoise, AK.
AK Yakutat salmon set gillnet 139 Harbor seal, Southeast
AK.
Gray whale, Eastern
North Pacific.
AK Kodiak salmon set gillnet. 172 Harbor seal, GOA*.
Harbor porpoise, GOA.
Sea otter, Southwest AK.
AK Bristol Bay salmon drift 1,884 Steller sea lion,
gillnet. Western U.S.*+.
Northern fur seal,
Eastern Pacific*.
Harbor seal, Bering Sea.
Beluga, Bristol Bay.
Gray whale, Eastern
North Pacific.
Spotted seal, AK.
Pacific white-sided
dolphin, central.
North Pacific.
AK Bristol Bay salmon set 941 Harbor seal, Bering Sea.
gillnet. Beluga, Bristol Bay.
Gray whale, Eastern
North Pacific.
Northern fur seal,
Eastern Pacific*.
Spotted seal, AK.
AK Metlakatla/ Annette Island 60 None documented.
salmon drift gillnet.
WA Puget Sound Region salmon 725 Harbor porpoise, inland
drift gillnet (includes all WA.
inland waters south of US- Dall's porpoise, CA/OR/
Canada border and eastward WA.
of the Bonilla-Tatoosh line-- Harbor seal, WA inland.
Treaty Indian fishing is
excluded).
Purse Seine Fisheries:
CA anchovy, mackerel, tuna 150 Bottlenose dolphin, CA/
purse seine. OR/WA offshore.
California sea lion,
U.S.
Harbor seal, CA.
CA squid purse seine......... 65 Short-finned pilot
whale, CA/OR/WA*.
AK Southeast salmon purse 357 Humpback whale, central
seine. North Pacific*+.
Trawl Fisheries:
AK miscellaneous finfish pair 4 None documented.
trawl.
Longline Fisheries:
OR swordfish floating 2 None documented.
longline.
OR blue shark floating 1 None documented.
longline.
[[Page 9080]]
Category III
------------------------------------------------------------------------
Gillnet Fisheries:
AK Prince William Sound 26 Steller sea lion,
salmon set gillnet. Western U.S.*+.
Harbor seal, GOA*.
AK Kuskokwim, Yukon, Norton 1,491 None documented.
Sound, Kotzebue salmon
gillnet.
AK roe herring and food/bait 1,687 None documented.
herring gillnet.
WA, OR herring, smelt, shad, 913 None documented.
sturgeon, bottom fish,
mullet, perch, rockfish
gillnet.
WA Willapa Bay drift gillnet. 82 Harbor seal, OR/WA
coast.
Northern elephant seal,
CA breeding.
WA Grays Harbor salmon drift 24 Harbor seal, OR/WA
gillnet (excluding treaty coast.
Tribal fishing).
WA, OR lower Columbia River 110 California sea lion,
(includes tributaries) drift U.S.
gillnet. Harbor seal, OR/WA
coast.
CA set and drift gillnet 341 None documented.
fisheries that use a
stretched mesh size of 3.5
in or less.
AK miscellaneous finfish set 4 Steller sea lion,
gillnet. Western U.S.*+.
Hawaii gillnet............... 115 Bottlenose dolphin, HI.
Spinner dolphin, HI.
Purse Seine, Beach Seine, Round
Haul and Throw Net Fisheries:
AK salmon purse seine (except 586 Harbor seal, GOA*.
Southeast Alaska, which is
in Category II).
AK salmon beach seine........ 6 None documented.
AK roe herring and food/bait 517 None documented.
herring purse seine.
AK roe herring and food/bait 1 None documented.
herring beach seine.
AK Metlakatla salmon purse 10 None documented.
seine.
AK octopus/squid purse seine. 2 None documented.
CA herring purse seine....... 100 Bottlenose dolphin, CA
coastal.
California sea lion,
U.S.
Harbor seal, CA.
CA sardine purse seine....... 120 None documented.
AK miscellaneous finfish 4 None documented.
purse seine.
AK miscellaneous finfish 1 None documented.
beach seine.
WA salmon purse seine........ 440 None documented.
WA salmon reef net........... 53 None documented.
WA, OR herring, smelt, squid 130 None documented.
purse seine or lampara.
WA (all species) beach seine 235 None documented.
or drag seine.
HI purse seine............... 18 None documented.
HI opelu/akule net........... 16 None documented.
HI throw net, cast net....... 47 None documented.
Dip Net Fisheries:
WA, OR smelt, herring dip net 119. None documented.
CA squid dip net............. 115 None documented.
Marine Aquaculture Fisheries:
WA, OR salmon net pens....... 14 California sea lion,
U.S.
Harbor seal, WA inland
waters.
CA salmon enhancement rearing >1 None documented.
pen.
OR salmon ranch.............. 1 None documented.
Troll Fisheries:
AK salmon troll.............. 1149 Steller sea lion,
Eastern U.S.*+.
CA/OR/WA salmon troll........ 4,300 None documented.
AK north Pacific halibut, AK 1,354 None documented.
bottom fish, WA, OR, CA
albacore, groundfish, bottom
fish, CA halibut non-
salmonid troll fisheries.
HI trolling, rod and reel.... 1,795 None documented.
Guam tuna troll.............. 50 None documented.
Commonwealth of the Northern 50 None documented.
Mariana Islands tuna troll.
American Samoa tuna troll.... <50 None documented.
HI net unclassified.......... 106 None documented.
Longline/Set Line Fisheries:
AK state waters sablefish 840 None documented.
long line/set line.
Miscellaneous finfish/ 594 Harbor seal, GOA*.
groundfish longline/set line. Harbor seal, Bering Sea.
Dall's porpoise, AK.
Steller sea lion,
Western U.S.
Harbor seal, Southeast
AK.
[[Page 9081]]
Northern elephant seal,
CA breeding.
HI swordfish, tuna, billfish, 140 Hawaiian monk seal*+.
mahi mahi, wahoo, oceanic Humpback whale, Central
sharks longline/set line. North Pacific*+.
Risso's dolphin, HI.
Bottlenose dolphin, HI.
Spinner dolphin, HI.
Short-finned pilot
whale, HI.
WA, OR North Pacific halibut 350 None documented.
longline/set line.
AK southern Bering Sea, 762 Northern elephant seal,
Aleutian Islands, and CA breeding.
Western Gulf of Alaska Killer whale, resident.
sablefish longline/set line Killer whale, transient.
(federally regulated waters). Steller sea lion,
Western U.S.
Pacific white-sided
dolphin, central.
North Pacific.
Dall's porpoise, AK.
AK halibut longline/set line 2,882 Steller sea lion,
(state and Federal waters). Western U.S.*+.
WA, OR, CA groundfish, 367 None documented.
bottomfish longline/set line.
AK octopus/squid longline.... 2 None documented.
CA shark/bonito longline/set 10 None documented.
line.
Trawl Fisheries:
WA, OR, CA shrimp trawl...... 300 None documented.
AK shrimp otter trawl and 62 None documented.
beam trawl (statewide and
Cook Inlet).
AK Gulf of Alaska groundfish 201 Steller sea lion,
trawl. Western U.S.*+.
Northern fur seal,
Eastern Pacific*.
Harbor seal, GOA*.
Dall's porpoise, AK.
Northern elephant seal,
CA breeding.
AK Bering Sea and Aleutian 193 Steller sea lion,
Islands groundfish trawl. Western U.S.*+.
Northern fur seal,
Eastern Pacific*.
Killer whale, resident.
Killer whale, transient.
Pacific white-sided
dolphin, central.
North Pacific.
Harbor porpoise, Bering
Sea.
Harbor seal, Bering Sea.
Harbor seal, GOA*.
Bearded seal, AK.
Ringed seal, AK.
Spotted seal, AK.
Dall's porpoise, AK.
Ribbon seal, AK.
Northern elephant seal,
CA breeding.
Sea otter, Southwest AK.
Pacific Walrus , AK.
AK state-managed waters of 5 None documented.
Cook Inlet, Kachemak Bay,
Prince William Sound,
Southeast AK groundfish
trawl.
AK miscellaneous finfish 312 None documented.
otter or beam trawl.
AK food/bait herring trawl... 4 None documented.
WA, OR, CA groundfish trawl.. 585 Steller sea lion,
Western U.S.*+.
Northern fur seal,
Eastern Pacific*.
Pacific white-sided
dolphin, central.
North Pacific.
Dall's porpoise, CA/OR/
WA.
California sea lion,
U.S.
Harbor seal, OR/WA
coast.
Pot, Ring Net, and Trap
Fisheries:
AK crustacean pot............ 1,496 Harbor porpoise,
Southeast AK.
AK Bering Sea, GOA finfish 274 Harbor seal, GOA*.
pot. Harbor seal, Bering Sea.
Sea otter, Southwest AK.
WA, OR, CA sablefish pot..... 176 None documented.
WA, OR, CA crab pot.......... 1,478 None documented.
WA, OR shrimp pot & trap..... 254 None documented.
CA lobster, prawn, shrimp, 608 Sea otter, CA.
rock crab, fish pot.
OR, CA hagfish pot or trap... 25 None documented.
HI lobster trap.............. 15 Hawaiian monk seal*+.
HI crab trap................. 22 None documented.
HI fish trap................. 19 None documented.
[[Page 9082]]
HI shrimp trap............... 5 None documented.
Handline and JIG Fisheries:
AK North Pacific halibut 266 None documented.
handline and mechanical jig.
AK miscellaneous finfish 258 None documented.
handline and mechanical jig.
AK octopus/squid handline.... 2 None documented.
WA groundfish, bottomfish jig 679 None documented.
HI aku boat, pole and line... 54 None documented.
HI inshore handline.......... 650 Bottlenose dolphin, HI.
HI deep sea bottomfish....... 434 Hawaiian monk seal*+.
HI tuna...................... 144 Rough-toothed dolphin,
HI.
Bottlenose dolphin, HI.
Hawaiian monk seal*+.
Guam bottomfish.............. <50 None documented.
Commonwealth of the Northern <50 None documented.
Mariana Islands bottomfish.
American Samoa bottomfish.... <50 None documented.
Harpoon Fisheries:
CA swordfish harpoon......... 228 None documented.
Pound Net/Weir Fisheries:
AK Southeast Alaska herring 154 None documented.
food/bait pound net.
WA herring brush weir........ 1 None documented.
Bait Pens:
WA/OR/CA bait pens........... 13 None documented.
Dredge Fisheries:
Coastwide scallop dredge..... 106 None documented.
Dive, Hand/Mechanical Collection
Fisheries:
AK abalone................... 9 None documented.
AK dungeness crab............ 3 None documented.
AK herring spawn-on-kelp..... 200 None documented.
AK urchin and other fish/ 442 None documented.
shellfish.
AK clam hand shovel.......... 62 None documented.
AK clam mechanical/hydraulic. 19 None documented.
WA herring spawn-on-kelp..... 4 None documented.
WA/OR sea urchin, other clam, 637 None documented.
octopus, oyster, sea
cucumber, scallop, ghost
shrimp hand, dive, or
mechanical collection.
CA abalone................... 111 None documented.
CA sea urchin................ 583 None documented.
HI squiding, spear........... 267 None documented.
HI lobster diving............ 6 None documented.
HI coral diving.............. 2 None documented.
HI handpick.................. 135 None documented.
WA shellfish aquaculture..... 684 None documented.
WA, CA kelp.................. 4 None documented.
HI fish pond................. 10 None documented.
Commercial Passenger Fishing
Vessel (Charter Boat) Fisheries:
AK, WA, OR, CA commercial >4,000 None documented.
passenger fishing vessel.
AK octopus/squid ``other''... 19 None documented.
HI ``other''................. 114 None documented.
Live Finfish/Shellfish Fisheries:
CA finfish and shellfish live 93 None documented.
trap/hook-and-line.
------------------------------------------------------------------------
* Marine mammal stock is strategic or is proposed to be listed as
strategic in the draft SARs for 1998.
+ Stock is listed as threatened or endangered under the Endangered
Species Act (ESA) or as depleted under the MMPA.
List of Abbreviations Used in Table 1: AK--Alaska; CA--California; HI--
Hawaii; GOA--Gulf of Alaska; OR--Oregon; WA--Washington.
Table 2.--List of Fisheries: Commercial Fisheries in the Atlantic Ocean,
Gulf of Mexico, and Caribbean
------------------------------------------------------------------------
Estimated
number of Marine mammal species/
Fishery description vessels/ stocks incidentally
persons injured/killed
------------------------------------------------------------------------
Category I
------------------------------------------------------------------------
Gillnet Fisheries:
Atlantic Ocean, Caribbean, 15 North Atlantic right
Gulf of Mexico large whale, WNA*+.
pelagics drift gillnet. Humpback whale, WNA*+.
Sperm whale, WNA*+.
Dwarf sperm whale, WNA*.
Cuvier's beaked whale,
WNA*.
[[Page 9083]]
True's beaked whale,
WNA*.
Gervais' beaked whale,
WNA*.
Blainville's beaked
whale, WNA*.
Risso's dolphin, WNA.
Long-finned pilot whale,
WNA*.
Short-finned pilot
whale, WNA*.
White-sided dolphin,
WNA*.
Common dolphin, WNA*.
Atlantic spotted
dolphin, WNA*.
Pantropical spotted
dolphin, WNA*.
Striped dolphin, WNA.
Spinner dolphin, WNA.
Bottlenose dolphin, WNA
offshore.
Harbor porpoise, GME/
BF*.
Northeast sink gillnet....... 341 North Atlantic right
whale, WNA*+.
Humpback whale, WNA*+.
Minke whale, Canadian
east coast.
Killer whale, WNA.
White-sided dolphin,
WNA*.
Bottlenose dolphin, WNA
offshore.
Harbor porpoise, GME/
BF*.
Harbor seal, WNA.
Gray seal, WNA.
Common dolphin, WNA *.
Fin whale, WNA *+.
Spotted dolphin, WNA.
False killer whale, WNA.
Harp seal, WNA.
Longline Fisheries:
Atlantic Ocean, Caribbean, 361 Humpback whale, WNA*+.
Gulf of Mexico large
pelagics longline.
Minke whale, Canadian
east coast.
Risso's dolphin, WNA.
Long-finned pilot whale,
WNA*.
Short-finned pilot
whale, WNA*.
Common dolphin, WNA*.
Atlantic spotted
dolphin, WNA*.
Pantropical spotted
dolphin, WNA*.
Striped dolphin, WNA.
Bottlenose dolphin, WNA
offshore.
Bottlenose dolphin, GMX
Outer Continental
Shelf.
Bottlenose dolphin, GMX
Continental Shelf Edge
and Slope.
Atlantic spotted
dolphin, Northern GMX.
Pantropical spotted
dolphin, Northern GMX.
Risso's dolphin,
Northern GMX.
Harbor porpoise, GME/
BF*.
Trap/Pot Fisheries--Lobster:
Gulf of Maine, U.S. mid- 13,000 North Atlantic right
Atlantic lobster trap/pot. whale, WNA*+.
Humpback whale, WNA*+.
Fin whale, WNA*+.
Minke whale, Canadian
east coast.
White-sided dolphin,
WNA*.
Harbor seal, WNA.
------------------------------------------------------------------------
Category II
------------------------------------------------------------------------
Gillnet Fisheries:
U.S. mid-Atlantic coastal >655 Humpback whale, WNA*+.
gillnet. Minke whale, Canadian
east coast.
Bottlenose dolphin, WNA
offshore.
Bottlenose dolphin, WNA
coastal*+.
Harbor porpoise, GME/
BF*.
Gulf of Maine small pelagics 133 Humpback whale, WNA*+.
surface gillnet. White-sided dolphin,
WNA*.
Harbor seal, WNA.
Southeastern U.S. Atlantic 12 Bottlenose dolphin, WNA
shark gillnet. coastal*.
North Atlantic right
whale, WNA*+.
[[Page 9084]]
Trawl Fisheries:
Atlantic squid, mackerel, 620 Common dolphin, WNA*.
butterfish trawl. Risso's dolphin, WNA.
Long-finned pilot whale,
WNA*.
Short-finned pilot
whale, WNA*.
White-sided dolphin,
WNA*.
Atlantic herring midwater 17 None documented.
trawl (including pair trawl).
Purse Seine Fisheries:
Gulf of Mexico menhaden purse 50 Bottlenose dolphin,
seine. Western GMX coastal.
Bottlenose dolphin,
Northern GMX coastal.
Haul Seine Fisheries:
Mid-Atlantic haul seine...... 25 Bottlenose dolphin, WNA
coastal*.
Harbor porpoise, GME/
BF*.
Stop Net Fisheries:
North Carolina roe mullet 13 Bottlenose dolphin, WNA
stop net. coastal*.
------------------------------------------------------------------------
Category III
------------------------------------------------------------------------
Gillnet Fisheries:
Rhode Island, southern 32 Humpback whale, WNA*+.
Massachusetts (to Monomoy Bottlenose dolphin, WNA
Island), and New York Bight coastal*+.
(Raritan and Lower New York Harbor porpoise, GME/
Bays) inshore gillnet. BF*.
Long Island Sound inshore 20 Humpback whale, WNA*+.
gillnet. Bottlenose dolphin, WNA
coastal*+.
Harbor porpoise, GME/
BF*.
Delaware Bay inshore gillnet. 60 Humpback whale, WNA*+.
Bottlenose dolphin, WNA
coastal*+.
Harbor porpoise, GME/
BF*.
Chesapeake Bay inshore 45 None documented.
gillnet.
North Carolina inshore 94 Bottlenose dolphin, WNA
gillnet. coastal*+.
Gulf of Mexico inshore unknown None documented.
gillnet (black drum,
sheepshead, weakfish,
mullet, spot, croaker).
Gulf of Maine, Southeast U.S. 1,285 Minke whale, Canadian
Atlantic coastal shad, east coast.
sturgeon gillnet. Harbor porpoise, GME/
BF*.
Bottlenose dolphin, WNA
coastal*+.
Gulf of Mexico coastal unknown Bottlenose dolphin,
gillnet (includes mullet Western GMX coastal.
gillnet fishery in LA and Bottlenose dolphin,
MS). Northern GMX coastal.
Bottlenose dolphin,
Eastern GMX coastal.
Bottlenose dolphin, GMX
Bay, Sound, &
Estuarine*.
Florida east coast, Gulf of 271 Bottlenose dolphin,
Mexico pelagics king and Western GMX coastal.
Spanish mackerel gillnet. Bottlenose dolphin,
Northern GMX coastal.
Bottlenose dolphin,
Eastern GMX coastal.
Bottlenose dolphin, GMX
Bay, Sound, &
Estuarine*.
Trawl Fisheries:
North Atlantic bottom trawl.. 1,052 Long-finned pilot whale,
WNA*.
Short-finned pilot
whale, WNA*.
Common dolphin, WNA*.
White-sided dolphin,
WNA*.
Striped dolphin, WNA.
Bottlenose dolphin, WNA
offshore.
Mid-Atlantic, Southeastern >18,000 Bottlenose dolphin, WNA
U.S. Atlantic, Gulf of coastal*+.
Mexico shrimp trawl.
Gulf of Maine northern shrimp 320 None documented.
trawl.
Gulf of Maine, Mid-Atlantic 215 None documented.
sea scallop trawl.
Mid-Atlantic mixed species >1,000 None documented.
trawl.
Gulf of Mexico butterfish 2 Atlantic spotted
trawl. dolphin, Eastern GMX
Pantropical spotted
dolphin, Eastern GMX.
Georgia, South Carolina, 25 None documented.
Maryland whelk trawl.
Calico scallops trawl........ 200 None documented.
Bluefish, croaker, flounder 550 None documented.
trawl.
Crab trawl................... 400 None documented.
U.S. Atlantic monkfish trawl. unknown Common dolphin, WNA*.
Marine Aquaculture Fisheries:
Finfish aquaculture.......... 48 Harbor seal, WNA.
Shellfish aquaculture........ unknown None documented.
[[Page 9085]]
Purse Seine Fisheries:
Gulf of Maine Atlantic 30 Harbor porpoise, GME/
herring purse seine. BF*.
Harbor seal, WNA.
Gray seal, Northwest
North Atlantic.
Mid-Atlantic menhaden purse 22 Bottlenose dolphin, WNA
seine. coastal*+.
Gulf of Maine menhaden purse 50 None documented.
seine.
Florida west coast sardine 10 Bottlenose dolphin,
purse seine. Eastern GMX coastal.
U.S. Atlantic tuna purse unknown None documented.
seine.
U.S. mid-Atlantic hand seine. >250 None documented.
Longline/Hook-and-Line Fisheries:
Gulf of Maine tub trawl 46 Harbor seal, WNA.
groundfish bottom longline/ Gray seal, Northwest
hook-and-line. North Atlantic.
Southeastern U.S. Atlantic, 3,800 None documented.
Gulf of Mexico snapper-
grouper and other reef fish
bottom longline/hook-and-
line.
Southeastern U.S. Atlantic, 124 None documented.
Gulf of Mexico shark bottom
longline/hook-and-line.
Gulf of Maine, U.S. mid- 26,223 None documented.
Atlantic tuna, shark
swordfish hook-and-line/
harpoon.
Southeastern U.S. Atlantic, 1,446 None documented.
Gulf of Mexico & U.S. mid-
Atlantic pelagic hook-and-
line/harpoon.
Trap/Pot Fisheries--Lobster,
Crab, and Fish:
Gulf of Maine, U.S. mid- 100 North Atlantic right
Atlantic mixed species trap/ whale, WNA*+.
pot. Humpback whale, WNA*+.
Minke whale, Canadian
east coast.
Harbor porpoise, GME/
BF*.
Harbor seal, WNA.
Gray seal, Northwest
North Atlantic.
U.S. mid-Atlantic and 30 None documented.
Southeast U.S. Atlantic
black sea bass trap/pot.
U.S. mid-Atlantic eel trap/ >700 None documented.
pot.
Atlantic Ocean, Gulf of 20,500 Bottlenose dolphin, WNA
Mexico blue crab trap/pot. coastal*.
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*+.
Southeastern U.S. Atlantic, 4,847 West Indian manatee,
Gulf of Mexico, Caribbean FL*+.
spiny lobster trap/pot. Bottlenose dolphin, WNA
coastal*+.
Stop Seine/Weir/Pound Fisheries:
Gulf of Maine herring and 50 North Atlantic right
Atlantic mackerel stop seine/ whale, WNA*.
weir. Humpback whale, WNA*+.
Minke whale, Canadian
east coast.
Harbor porpoise, GME/
BF*.
Harbor seal, WNA.
Gray seal, Northwest
North Atlantic.
U.S. mid-Atlantic mixed 500 None documented.
species stop/seine/weir
(except the North Carolina
roe mullet stop net).
U.S. mid-Atlantic crab stop 2,600 None documented.
seine/weir.
Dredge Fisheries:
Gulf of Maine, U.S. mid- 233 None documented.
Atlantic sea scallop dredge.
U.S. mid-Atlantic offshore 100 None documented.
surfclam and quahog dredge.
Gulf of Maine mussel......... >50 None documented.
U.S. mid-Atlantic/Gulf of 7,000 None documented.
Mexico oyster.
Haul Seine Fisheries:
Southeastern U.S. Atlantic, 25 None documented.
Caribbean haul seine.
Beach Seine Fisheries:
Caribbean beach seine........ 15 West Indian manatee,
FL+.
Dive, Hand/Mechanical Collection
Fisheries:
Gulf of Maine urchin dive, >50 None documented.
hand/mechanical collection.
Atlantic Ocean, Gulf of 20,000 None documented.
Mexico, Caribbean shellfish
dive, hand/mechanical
collection.
Commercial Passenger Fishing
Vessel (Charter Boat) Fisheries:
Atlantic Ocean, Gulf of 4,000 None documented.
Mexico, Caribbean commercial
passenger fishing vessel.
------------------------------------------------------------------------
* Marine mammal stock is strategic or is proposed to be listed as
strategic in the draft SARs for 1998.
+ Stock is listed as threatened or endangered under the ESA or as
depleted under the MMPA.
List of Abbreviations Used in Table 2: FL--Florida; GA--Georgia; GME/BF--
Gulf of Maine/Bay of Fundy; GMX--Gulf of Mexico; NC--North Carolina;
SC--South Carolina; TX--Texas; WNA--Western North Atlantic.
[[Page 9086]]
Classification
When this LOF for 1999 was proposed, 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 rule would not have a significant economic impact on a
substantial number of small entities. No comments were received
regarding this certification. As a result, a regulatory flexibility
analysis was not prepared.
This action makes changes to the current LOF and reflects new
information on commercial fisheries, marine mammals, and interactions
between commercial fisheries and marine mammals. This list informs the
public of which U.S. commercial fisheries will be required in 1999 to
comply with certain parts of the MMPA, including requirements to
register for Authorization Certificates.
This final rule is not a significant regulatory action and is not
subject to review by the Office of Management and Budget (OMB) under
Executive Order 12866.
This rule does not contain new collection-of-information
requirements subject to the Paperwork Reduction Act; however, the
addition of two fisheries to Category II in the LOF will result in up
to 70 new fishers being subject to collection-of-information
requirements. Some of these fishers may currently participate in other
Category II fisheries and, therefore, may already be required to
register under the MMPA.
Notwithstanding any other provision of law, you are not to respond
to nor shall you 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 collection of information required for the reporting of marine
mammal injuries or mortalities to NMFS and for the registration of
fishers under the MMPA has been approved by OMB under OMB control
numbers 0648-0292 (0.15 hours per report) and 0648-0293 (0.25 hours per
registration). Those burdens are not expected to change significantly
as a result of this final rule and may actually decrease if additional
registration systems are integrated with existing programs. You may
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).
References
Barlow et al. ``U.S. Marine Mammal Stock Assessments: Guidelines
for Preparation, Background, and a Summary of the 1995 Assessments''.
NOAA Tech. Memo. NMFS-OPR-6, 1995.
List of Subjects in 50 CFR Part 229
Administrative practice and procedure, Confidential business
information, Fisheries, Marine mammals, Reporting and recordkeeping
requirements.
Dated: February 17, 1999.
Rolland A. Schmitten,
Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For the reasons set out in the preamble, 50 CFR part 229 is amended
as follows:
PART 229--AUTHORIZATION FOR COMMERCIAL FISHERIES UNDER THE MARINE
MAMMAL PROTECTION ACT OF 1972
1. The authority citation for part 229 continues to read as
follows:
Authority: 16 U.S.C. 1361 et seq.
2. In Sec. 229.1, paragraph (f) is revised to read as follows:
Sec. 229.1 Purpose and scope.
* * * * *
(f) Authorizations under this part do not apply to the intentional
lethal taking of marine mammals in the course of commercial fishing
operations except as provided for under Secs. 229.4(k) and 229.5(f).
* * * * *
3. In Sec. 229.2, the definition of ``Category II fishery'' is
amended by removing the word ``taking'' and adding in its place the
words ``incidental serious injury and mortality'' in the penultimate
sentence; the last sentence of paragraph (2) of the definition
``Category III fishery'' is revised; the definitions of ``Fisher'',
``Incidental, but not intentional, take'' and ``Incidental mortality''
are removed; and the definitions of ``Fisher or fisherman'',
``Incidental'' and ``Integrated Fishery'' are added in alphabetical
order, to read as follows:
Sec. 229.2 Definitions.
* * * * *
Category III fishery. * * *
(2) * * * In the absence of reliable information indicating the
frequency of incidental mortality and serious injury of marine mammals
by a commercial fishery, the Assistant Administrator will determine
whether the incidental serious injury or mortality is ``remote'' by
evaluating other factors such as fishing techniques, gear used, methods
used to deter marine mammals, target species, seasons and areas fished,
qualitative data from logbooks or fisher reports, stranding data, and
the species and distribution of marine mammals in the area or at the
discretion of the Assistant Administrator.
* * * * *
Fisher or fisherman means the vessel owner or operator, or the
owner or operator of gear in a nonvessel fishery.
* * * * *
Incidental means, with respect to an act, a non-intentional or
accidental act that results from, but is not the purpose of, carrying
out an otherwise lawful action.
* * * * *
Integrated fishery means a fishery for which the granting and the
administration of Authorization Certificates have been integrated and
coordinated with existing fishery license, registration, or permit
systems and related programs.
* * * * *
4. In Sec. 229.3, the word ``taking'' is removed from paragraph (c)
and the words ``injury or mortality'' are added in its place,
paragraphs (e) through (p) are redesignated as paragraphs (f) through
(q), and new paragraph (e) is added to read as follows:
Sec. 229.3 Prohibitions.
* * * * *
(e) It is prohibited to retain any marine mammal incidentally taken
in commercial fishing operations unless authorized by NMFS personnel,
by designated contractors or an official observer, or by a scientific
research permit that is in the possession of the vessel operator.
* * * * *
5. Section 229.4, is amended as follows:
a. Paragraph (b)(2)(v) is removed; paragraphs (b)(2)(vi) and (c)
are redesignated as paragraphs (b)(2)(v) and (b)(2)(vi), respectively;
in newly redesignated paragraph (b)(2)(vi), the heading ``Fee.'' is
removed; paragraphs (d) through (m) are redesignated as paragraphs (c)
through (l); and in newly redesignated paragraph (g), the word
``onboard'' is removed.
b. Newly redesignated paragraphs (c) introductory text, (c)(3)
through (c)(5), (d)(1), (d)(2), and the first sentence of newly
redesignated paragraph (e)(1) are revised; the last sentence of newly
redesignated paragraph (d)(3) is removed; newly redesignated paragraph
(e)(3) is amended by removing the term ``annual'' and newly
redesignated
[[Page 9087]]
paragraph (l) is amended by removing the phrase ``and annual decals''.
The revisions read as follows:
Sec. 229.4 Requirements for Category I and II fisheries.
* * * * *
(c) Address. Unless the granting and administration of
authorizations under this part 229 is integrated and coordinated with
existing fishery licenses, registrations, or related programs pursuant
to paragraph (a) of this section, requests for registration forms and
completed registration and renewal forms should be sent to the NMFS
Regional Offices as follows:
* * * * *
(3) Southwest Region, NMFS, 501 West Ocean Blvd., Suite 4200, Long
Beach, CA 90802-4213; telephone: 562-980-4001;
(4) Northeast Region, NMFS, 1 Blackburn Drive, Gloucester, MA
01930; telephone: 978-281-9254; or
(5) Southeast Region, NMFS, 9721 Executive Center Drive North, St.
Petersburg, FL 33702; telephone: 727-570-5312.
(d) Issuance. (1) For integrated fisheries, an Authorization
Certificate or other proof of registration will be issued annually to
each fisher registered for that fishery.
(2) For all other fisheries (i.e., non-integrated fisheries), NMFS
will issue an Authorization Certificate and, if necessary, a decal to
an owner or authorized representative who:
(i) Submits a completed registration form and the required fee.
(ii) Has complied with the requirements of this section and
Secs. 229.6 and 229.7
(iii) Has submitted updated registration or renewal registration
which includes a statement (yes/no) whether any marine mammals were
killed or injured during the current or previous calender year.
* * * * *
(e) * * * (1) If a decal has been issued under the conditions
specified in paragraph (e)(2) of this section, the decal must be
attached to the vessel on the port side of the cabin or, in the absence
of a cabin, on the forward port side of the hull, and must be free of
obstruction and in good condition. * * *
* * * * *
6. In Sec. 229.5, paragraph (c) is amended by removing the word
``onboard''; paragraph (e) is amended by removing the phrase ``a
Category I or II fishery'' and by adding in its place the phrase
``commercial fishing operations''; and paragraph (d) is revised to read
as follows:
Sec. 229.5 Requirements for Category III fisheries.
* * * * *
(d) Monitoring. Vessel owners engaged in a Category III fishery
must comply with the observer requirements specified under
Sec. 229.7(d).
* * * * *
7. In Sec. 229.6, paragraph (a) is amended by removing the words
``Category I, II, or III'' and by adding in their place the word
``commercial''; and paragraph (b) is revised to read as follows:
Sec. 229.6 Reporting requirements.
* * * * *
(b) Participants in nonvessel fisheries must provide all of the
information in paragraphs (a)(1) through (a)(4) of this section except,
instead of providing the vessel name and vessel registration number,
participants in nonvessel fisheries must provide the gear permit
number.
8. In Sec. 229.7, paragraphs (c)(4)(vi) and (c)(6) are removed;
paragraphs (c)(4)(vii) through (c)(4)(x) are redesignated as paragraphs
(c)(4)(vi) through (c)(4)(ix), respectively; the introductory text of
paragraph (b), paragraphs (c) heading, (c)(1), (c)(2), (c)(4)
introductory text, and (c)(4)(i), newly redesignated paragraph
(c)(4)(vi), and paragraph (c)(5), and the heading of paragraph (d) are
revised to read as follows:
Sec. 229.7 Monitoring of incidental mortalities and serious injuries.
* * * * *
(b) Observer program. Pursuant to paragraph (a) of this section,
the Assistant Administrator may observe Category I and II vessels as
necessary. Observers may, among other tasks:
* * * * *
(c) Observer requirements for participants in Category I and II
fisheries. (1) If requested by NMFS or by a designated contractor
providing observer services to NMFS, a vessel owner/operator must take
aboard an observer to accompany the vessel on fishing trips.
(2) After being notified by NMFS, or by a designated contractor
providing observer services to NMFS, that the vessel is required to
carry an observer, the vessel owner/operator must comply with the
notification by providing information requested within the specified
time on scheduled or anticipated fishing trips.
* * * * *
(4) The vessel owner/operator and crew must cooperate with the
observer in the performance of the observer's duties including:
(i) Providing, at no cost to the observer, the United States
government, or the designated observer provider, food, toilet, bathing,
sleeping accommodations, and other amenities that are equivalent to
those provided to the crew, unless other arrangements are approved in
advance by the Regional Administrator;
* * * * *
(vi) Sampling, retaining, and storing of marine mammal specimens,
other protected species specimens, or target or non-target catch
specimens, upon request by NMFS personnel, designated contractors, or
the observer, if adequate facilities are available and if feasible;
* * * * *
(5) Marine mammals or other specimens identified in paragraph
(c)(4)(vi) of this section, which are readily accessible to crew
members, must be brought on board the vessel and retained for the
purposes of scientific research if feasible and requested by NMFS
personnel, designated contractors, or the observer. Specimens so
collected and retained must, upon request by NMFS personnel, designated
contractors, or the observer, be retained in cold storage on board the
vessel, if feasible, until removed at the request of NMFS personnel,
designated contractors, or the observer, retrieved by authorized
personnel of NMFS, or released by the observer for return to the ocean.
These biological specimens may be transported on board the vessel
during the fishing trip and back to port under this authorization.
(d) Observer requirements for participants in Category III
fisheries. * * *
* * * * *
9. In Sec. 229.8 the last sentence of paragraph (c) is redesignated
as paragraph (d), and paragraph (b)(2) is revised to read as follows:
Sec. 229.8 Publication of List of Fisheries.
* * * * *
(b) * * *
(2) List the marine mammals that have been incidentally injured or
killed by commercial fishing operations and the estimated number of
vessels or persons involved in each commercial fishery.
* * * * *
10. In Sec. 229.9, paragraph (a)(3)(ii) is revised to read as
follows:
Sec. 229.9 Emergency regulations.
(a) * * *
(3) * * *
(ii) Immediately review the stock assessment for such stock or
species and the classification of such commercial fishery under this
section to determine
[[Page 9088]]
if a take reduction team should be established and if recategorization
of the fishery is warranted; and
* * * * *
11. In Sec. 229.10, paragraph (g)(1) is amended by removing the
word ``serious'' before ``injury'' and paragraph (d) is revised to read
as follows:
Sec. 229.10 Penalties.
* * * * *
(d) Failure to comply with take reduction plans or emergency
regulations issued under this part may result in suspension or
revocation of an Authorization Certificate, and failure to comply with
a take reduction plan or emergency regulation is also subject to the
penalties of sections 105 and 107 of the Act, and may be subject to the
penalties of section 106 of the Act.
* * * * *
Sec. 229.11 [Amended]
12. In Sec. 229.11, paragraph (b) is amended by removing the
parenthetical clause ``(see ADDRESSES)''.
Sec. 229.20 [Amended]
13. In Sec. 229.20, paragraph (f) is amended by removing the
reference to ``Sec. 229.21(b)'' and adding in its place a reference to
``paragraph (b) of this section''.
14. Under subpart C, a new Sec. 229.30 is added to read as follows:
Sec. 229.30 Basis.
Section 118(f)(9) of the Act authorizes the Director, NMFS, to
impose regulations governing commercial fishing operations, when
necessary, to implement a take reduction plan in order to protect or
restore a marine mammal stock or species covered by such a plan.
[FR Doc. 99-4442 Filed 2-23-99; 8:45 am]
BILLING CODE 3510-22-P