[Federal Register Volume 71, Number 2 (Wednesday, January 4, 2006)]
[Rules and Regulations]
[Pages 247-273]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-38]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 229

[Docket No. 041108310-5347-04, I.D. 100104H]
RIN 0648-AS78


List of Fisheries for 2005

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

ACTION: Final rule.

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SUMMARY: The National Marine Fisheries Service (NMFS) is publishing its 
final List of Fisheries (LOF) for 2005, as required by the Marine 
Mammal Protection Act (MMPA). The final LOF for 2005 reflects new 
information on interactions between commercial fisheries and marine 
mammals. NMFS must categorize each commercial fishery on the LOF into 
one of three categories under the MMPA based upon the level of serious 
injury and mortality of marine

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mammals that occurs incidental to each fishery. The categorization of a 
fishery in the LOF determines whether participants in that fishery are 
subject to certain provisions of the MMPA, such as registration, 
observer coverage, and take reduction plan (TRP) requirements.

DATES: This final rule is effective February 3, 2006.

ADDRESSES: Registration information, materials, and marine mammal 
reporting forms may be obtained from several regional offices. See 
SUPPLEMENTARY INFORMATION for a listing of offices where these 
materials are available.
    For collection-of-information requirements subject to the Paperwork 
Reduction Act, please contact Office of Management and Budget, Attn: 
David Rostker, fax: 202-395-7285 or [email protected].

FOR FURTHER INFORMATION CONTACT: For additional information or general 
questions on the LOF, please contact the following NMFS staff:
    Kristy Long, Office of Protected Resources, 301-713-2322;
    David Gouveia, Northeast Region, 978-281-9300;
    Vicki Cornish, Southeast Region, 727-824-5312;
    Cathy Campbell, Southwest Region, 562-980-4060;
    Brent Norberg, Northwest Region, 206-526-6733;
    Chris Yates, Pacific Islands Region, 808-973-2937;
    Bridget Mansfield, Alaska Region, 907-586-7642.
    Individuals who use a telecommunications device for the hearing 
impaired may call the Federal Information Relay Service at 1-800-877-
8339 between 8 a.m. and 4 p.m. Eastern time, Monday through Friday, 
excluding Federal holidays.

SUPPLEMENTARY INFORMATION:

Availability of Published Materials

    NMFS, Northeast Region, One Blackburn Drive, Gloucester, MA 01930-
2298, Attn: Marcia Hobbs;
    NMFS, Southeast Region, 263 13th Avenue S., St. Petersburg, FL 
33701, Attn: Teletha Mincey;
    NMFS, Southwest Region, Sustainable Fisheries Division, 501 W. 
Ocean Blvd., Suite 4200, Long Beach, CA 90802-4213, Attn: Lyle 
Enriquez;
    NMFS, Northwest Region, 7600 Sand Point Way NE, Seattle, WA 98115, 
Attn: Permits Office; or
    NMFS, Alaska Region, Protected Resources, P.O. Box 22668, 709 West 
9th Street, Juneau, AK 99802.
    NMFS, Pacific Islands Region, Protected Resources, 1601 Kapiolani 
Boulevard, Suite 1110, Honolulu, HI 96814, Attn: Lisa Van Atta.

What is the List of Fisheries?

    Section 118 of the MMPA requires NMFS to place all U.S. commercial 
fisheries into one of three categories based on the level of incidental 
serious injury and mortality of marine mammals occurring in each 
fishery (16 U.S.C. 1387 (c)(1)). The categorization of a fishery in the 
LOF determines whether participants in that fishery may be required to 
comply with certain provisions of the MMPA, such as registration, 
observer coverage, and TRP requirements. NMFS must reexamine the LOF 
annually, considering new information in the Stock Assessment Reports 
and other relevant sources and publish in the Federal Register any 
necessary changes to the LOF after notice and opportunity for public 
comment (16 U.S.C. 1387 (c)(1)(C)).

How Does NMFS Determine the Category a Fishery is Placed in?

    The definitions for the fishery classification criteria can be 
found in the implementing regulations for section 118 of the MMPA (50 
CFR 229.2). The criteria are also summarized here.

Fishery Classification Criteria

    The fishery classification criteria consist of a two-tiered, stock-
specific approach that first addresses the total impact of all 
fisheries on each marine mammal stock, and then addresses the impact of 
individual fisheries on each stock. This approach is based on 
consideration of the rate, in numbers of animals per year, of 
incidental mortalities and serious injuries of marine mammals due to 
commercial fishing operations relative to the potential biological 
removal (PBR) level for each marine mammal stock. The MMPA (16 U.S.C. 
1362 (20)) defines the PBR level as the maximum number of animals, not 
including natural mortalities, that may be removed from a marine mammal 
stock while allowing that stock to reach or maintain its optimum 
sustainable population. This definition can also be found in the 
implementing regulations for section 118 at 50 CFR 229.2.
    Tier 1: If the total annual mortality and serious injury of a 
marine mammal stock, across all fisheries, is less than or equal to 10 
percent of the PBR level of the stock, all fisheries interacting with 
the stock would be placed in Category III. Otherwise, these fisheries 
are subject to the next tier (Tier 2) of analysis to determine their 
classifications.
    Tier 2, Category I: Annual mortality and serious injury of a stock 
in a given fishery is greater than or equal to 50 percent of the PBR 
level.
    Tier 2, Category II: Annual mortality and serious injury of a stock 
in a given fishery is greater than 1 percent and less than 50 percent 
of the PBR level.
    Tier 2, Category III: Annual mortality and serious injury of a 
stock in a given fishery is less than or equal to 1 percent of the PBR 
level.
    While Tier 1 considers the cumulative fishery mortality and serious 
injury for a particular stock, Tier 2 considers fishery-specific 
mortality and serious injury for a particular stock. Additional details 
regarding how the categories were determined are provided in the 
preamble to the final rule implementing section 118 of the MMPA (60 FR 
45086, August 30, 1995).
    Since fisheries are categorized on a per-stock basis, a fishery may 
qualify as one Category for one marine mammal stock and another 
Category for a different marine mammal stock. A fishery is typically 
categorized on the LOF at its highest level of classification (e.g., a 
fishery qualifying for Category III for one marine mammal stock and for 
Category II for another marine mammal stock will be listed under 
Category II).

Other Criteria That May Be Considered

    In the absence of reliable information indicating the frequency of 
incidental mortality and serious injury of marine mammals by a 
commercial fishery, NMFS will determine whether the incidental serious 
injury or mortality qualifies for Category II by evaluating other 
factors such as fishing techniques, gear used, methods used to deter 
marine mammals, target species, seasons and areas fished, qualitative 
data from logbooks or fisher reports, stranding data, and the species 
and distribution of marine mammals in the area, or at the discretion of 
the Assistant Administrator for Fisheries (50 CFR 229.2).

How Do I Find Out if a Specific Fishery is in Category I, II, or III?

    This final rule includes two tables that list all U.S. commercial 
fisheries by LOF Category. Table 1 lists all of the fisheries in the 
Pacific Ocean (including Alaska). Table 2 lists all of the fisheries in 
the Atlantic Ocean, Gulf of Mexico, and Caribbean.

Am I Required to Register Under the MMPA?

    Owners of vessels or gear engaging in a Category I or II fishery 
are required under the MMPA (16 U.S.C. 1387(c)(2)), as described in 50 
CFR 229.4, to register with NMFS and obtain a marine mammal 
authorization from NMFS in

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order to lawfully incidentally take a marine mammal in a commercial 
fishery. Owners of vessels or gear engaged in a Category III fishery 
are not required to register with NMFS or obtain a marine mammal 
authorization.

How Do I Register?

    Fishers must register with the Marine Mammal Authorization Program 
(MMAP) by contacting the relevant NMFS Regional Office (see ADDRESSES) 
unless they participate in a fishery that has an integrated 
registration program (described below). Upon receipt of a completed 
registration, NMFS will issue vessel or gear owners physical evidence 
of a current and valid registration that must be displayed or in the 
possession of the master of each vessel while fishing in accordance 
with section 118 of the MMPA (16 U.S.C. 1387(c)(3)(A)).

What is the Process for Registering in an Integrated Fishery?

    For some fisheries, NMFS has integrated the MMPA registration 
process with existing state and Federal fishery license, registration, 
or permit systems and related programs. Participants in these fisheries 
are automatically registered under the MMPA and are not required to 
submit registration or renewal materials or pay the $25 registration 
fee. Following is a list of integrated fisheries and a summary of the 
integration process for each Region. Fishers who operate in an 
integrated fishery and have not received registration materials should 
contact their NMFS Regional Office (see ADDRESSES).

Which Fisheries Have Integrated Registration Programs?

    The following fisheries have integrated registration programs under 
the MMPA:
    1. All Alaska Category II fisheries;
    2. All Washington and Oregon Category II fisheries;
    3. Northeast Regional fisheries for which a state or Federal permit 
is required. Individuals fishing in fisheries for which no state or 
Federal permit is required must register with NMFS by contacting the 
Northeast Regional Office (see ADDRESSES); and
    4. Southeast Regional fisheries for which a state or Federal permit 
is required. Southeast fisheries include all North Carolina, South 
Carolina, Georgia, Florida, Alabama, Mississippi, Louisiana, Texas, and 
Puerto Rico fisheries. Individuals fishing in fisheries for which no 
state or Federal permit is required must register with NMFS by 
contacting the Southeast Regional Office (see ADDRESSES).

How Do I Renew My Registration Under the MMPA?

    Regional Offices, except for the Northeast and Southeast Regions, 
annually send renewal packets to previously registered participants in 
Category I or II fisheries. However, it is the responsibility of the 
fisher to ensure that registration or renewal forms are completed and 
submitted to NMFS at least 30 days in advance of fishing. Individuals 
who have not received a renewal packet by January 1 or are registering 
for the first time 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?

    In accordance with the MMPA (16 U.S.C. 1387(e)) and 50 CFR 229.6, 
any vessel owner or operator, or fisher (in the case of non-vessel 
fisheries), participating in a Category I, II, or III fishery must 
report to NMFS all incidental injuries and mortalities of marine 
mammals that occur during commercial fishing operations. ``Injury'' is 
defined in 50 CFR 229.2 as a wound or other physical harm. In addition, 
any animal that ingests fishing gear or any animal that is released 
with fishing gear entangling, trailing, or perforating any part of the 
body is considered injured, regardless of the presence of any wound or 
other evidence of injury, and must be reported. Instructions on how to 
submit reports can be found in 50 CFR 229.6.

Am I Required to Take an Observer Aboard My Vessel?

    Fishers participating in a Category I or II fishery are required to 
accommodate an observer aboard vessel(s) upon request. Observer 
requirements can be found in 50 CFR 229.7.

Am I Required to Comply With Any TRP Regulations?

    Fishers participating in a Category I or II fishery are required to 
comply with any applicable TRPs.

Sources of Information Reviewed for the Proposed 2005 LOF

    NMFS reviewed the marine mammal incidental serious injury and 
mortality information presented in the Stock Assessment Reports (SARs) 
for all observed fisheries to determine whether changes in fishery 
classification were warranted. NMFS SARs are based on the best 
scientific information available, including information on the level of 
serious injury and mortality of marine mammals that occurs incidental 
to commercial fisheries and the PBR levels of marine mammal stocks. 
NMFS also reviewed other sources of new, relevant information, 
including marine mammal stranding data, observer program data, fisher 
self-reports, and other information that is not included in the SARs.
    The information contained in the SARs is reviewed by regional 
scientific review groups (SRGs) representing Alaska, the Pacific 
(including Hawaii), and the U.S. Atlantic, Gulf of Mexico, and the 
Caribbean. The SRGs were created by the MMPA to review the science that 
is applied to the SARs, and to advise NMFS on population status and 
trends, stock structure, uncertainties in the science, research needs, 
and other issues.
    The LOF for 2005 was based, among other things, on information 
provided in the final SARs for 1996 (63 FR 60, January 2, 1998), the 
final SARs for 2001 (67 FR 10671, March 8, 2002), the final SARs for 
2002 (68 FR 17920, April 14, 2003), the final SARs for 2003 (69 FR 
54262, September 8, 2004), the final SARs for 2004 (70 FR 35397, June 
20, 2005), and the draft SARs for 2005 (70 FR 37091, June 28, 2005).

Comments and Responses

    NMFS received 14 comment letters on the proposed 2005 LOF (69 FR 
70094, December 2, 2004) and draft environmental assessment (EA) on the 
LOF classification process (70 FR 49902, August 25, 2005) from 
environmental, commercial fishing, and federal and state interests. 
However many comments focused on issues outside the scope of the LOF 
and are not responded to in this final rule. Any comments received 
outside the public comment periods (December 2, 2004 through March 4, 
2005 and August 25, 2005 through October 24, 2005) are not responded to 
in this final rule.

General Comments

    Comment 1: One commenter felt that NMFS does not allow the public 
enough time to comment on the LOF.
    Response: NMFS believes that the public comment period on the 2005 
LOF was more than adequate. The comment period was originally open for 
30 days from December 2, 2004 to January 3, 2005, extended for an 
additional 60 days until March 4, 2005, and then reopened for 60 days 
from August 25 to October 24, 2005. Therefore, the public comment 
period on this action was a total of 150 days.
    Comment 2: One commenter feels that the LOF category definitions 
are arbitrary and capricious.

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    Response: When Congress amended the MMPA in 1994, section 118 
specified that commercial fisheries were to be classified in one of 
three categories, i.e., those with frequent, occasional, or, a remote 
likelihood of or no known incidental mortality and serious injury of 
marine mammals. The Secretary of Commerce, through NMFS, proposed and 
finalized regulations to implement the 1994 amendments (60 FR 31666, 
June 16, 1995; 60 FR 45086, August 30, 1995). During the development of 
the draft regulations to implement MMPA section 118 (before NMFS 
developed the proposed rule), NMFS held several working sessions and 
solicited written comments on aspects of section 118, such as fishery 
classification criteria and options for classifying fisheries. NMFS 
also drafted and finalized an EA to analyze the effects of the proposed 
regulations on the environment and the public (NMFS, 1995). In 
developing the process for classifying fisheries, NMFS solicited and 
considered public input as well as analyzed the effects of these 
actions on the public. Therefore, NMFS does not agree that the 
classification system is arbitrary or capricious.
    Comment 3: One commenter believes the MMAP registration fee is too 
low.
    Response: In MMPA section 118(c)(5)(C), it states that the 
Secretary is authorized to charge a fee for granting an authorization 
to incidentally injure or kill marine mammals, however, that fee is not 
to exceed the administrative costs incurred in granting the 
authorization. Currently, NMFS charges $25 to cover administrative 
costs. If NMFS has integrated the MMPA authorization with other permits 
or authorization processes, the fee is waived.
    Comment 4: Generally, NMFS retains information on all species/
stocks incidentally injured or killed on the LOF for 5 years, similar 
to the stock assessment process. One commenter requested that NMFS 
retain information on all species/stocks incidentally injured or killed 
on the LOF, even if the interaction occurred more than 5 years ago.
    Response: The LOF is intended to inform the public of the current 
status of commercial fisheries with respect to marine mammal serious 
injuries and mortalities. It was never intended that the LOF serve as a 
comprehensive document detailing a particular fishery's history in 
terms of marine mammal interactions. When NMFS makes changes to fishery 
classifications, number of vessels, or species/stocks incidentally 
injured or killed, there is detailed information in the SARs. Therefore 
NMFS does not believe that this information also needs to be duplicated 
in the LOF.
    Comment 5: One commenter recommended that NMFS reclassify all trawl 
fisheries as Category I fisheries.
    Response: NMFS classifies fisheries according to the level of 
marine mammal serious injury and mortality incidental to commercial 
fisheries and by using a two-tiered, stock-specific approach. Please 
see SUPPLEMENTARY INFORMATION for the classification criteria. Only 
trawl fisheries that met the criteria for a Category I fishery would be 
included in that category.
    Comment 6: One commenter recommended that NMFS include the level of 
observer coverage in each fishery that is proposed for reclassification 
in the LOF. Further, the commenter requested that NMFS include the 
coefficients of variation for each estimate of serious injury and 
mortality to illustrate how thresholds between categories are exceeded, 
and therefore, illustrate the basis for reclassifications.
    Response: NMFS will consider this comment throughout the 2006 LOF 
development process.
    Comment 7: NMFS received several comments on information contained 
in individual SARs, specifically regarding the calculated PBR levels 
for marine mammal stocks, which are used in developing the LOF. Some 
commenters identified concerns with either the 2003 SARs or the 2005 
draft SARs, which were available for public comment at the same time as 
the 2005 proposed LOF through a separate Federal Register document (70 
FR 37091, June 28, 2005).
    Response: NMFS will address all comments regarding the development 
of draft SARs for 2005 as part of the comments received during the 
comment period on the Notice of Availability of the final SARs (closed 
September 26, 2005).

Comments on Fisheries in the Pacific Ocean

    Comment 8: Several commenters supported the proposed 
reclassification of the California/Oregon drift gillnet fishery.
    Response: NMFS has reclassified the California/Oregon drift gillnet 
fishery from Category II to Category I in this final rule.
    Comment 9: Several commenters supported the proposed 
reclassifications of the following fisheries: AK Bering Sea/Aleutian 
Islands (BSAI) flatfish trawl, AK BSAI pollock trawl, AK BSAI Greenland 
Turbot Longline, AK BSAI Pacific cod longline, and AK Bering Sea 
sablefish pot.
    Response: NMFS has reclassified all five fisheries from Category 
III to Category II in this final rule.
    Comment 10: One commenter suggested that NMFS base estimated 
serious injury and mortality levels on an average of the full time-
series of observations, instead of on the most recent 5 years of 
observations.
    Response: There are benefits and drawbacks to using the full time-
series of data in lieu of the most recent 5 years of data on marine 
mammal mortality and serious injury. Using a longer time series may 
increase the sample size (number of serious injury/mortality events) 
and thus improve the precision of the estimated bycatch level. However, 
fisheries change over time, so it may not be appropriate to average a 
recent estimated bycatch level with a bycatch level from 10 or more 
years ago. Further, the use of a 5-year running average implies that, 
if a level of take occurs in year 1 that results in reclassification of 
a commercial fishery, and that is the only take that occurs, after 6 
years, that take will ``drop off'' the record and the fishery would be 
a candidate for reclassification to a lower category. In recent years, 
fisheries have changed classification from Category II to III when new 
information indicated that takes were no longer occurring. Routinely 
using a longer time-series of data could delay a reclassification.
    In the specific case of federally-managed Alaska groundfish 
fisheries, NMFS has determined that the most current 5 years of data 
should be used to classify commercial fisheries for two reasons. First, 
changes in commercial fishing operations due to recent management 
actions resulted in the fisheries being prosecuted under very different 
conditions than those in the 1990s. Second, in 2004, NMFS changed the 
identification of Alaska commercial fisheries from gear type and area, 
to gear type, area, and target species. Because of how data were 
collected on commercial fisheries, records prior to 1998 cannot be 
separated in this way.
    Comment 11: One commenter felt that NMFS used marine mammal bycatch 
data in the LOF analysis that were not characteristic of the current 
fisheries.
    Response: NMFS agrees that marine mammal interaction data used to 
classify commercial fisheries should be as current as is practicable to 
ensure that the estimated levels of serious injury and mortality 
reflect current fishing practices and environmental conditions. In some 
cases, and particularly for some Alaska State fisheries, information on 
marine mammal mortality and serious injury is quite dated. Currently 
there are eleven

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Category II state-managed fisheries in Alaska on the LOF. Since 1990, 
six Category II fisheries have been observed. Of those, two have been 
reclassified from Category II to Category III because the observer 
program documented a very low level of marine mammal serious injuries 
and mortalities that occurred incidental to those fisheries. Seven 
state-managed Category II fisheries have never been observed. To date, 
only one fishery has been observed at a time, each for a 2-year period, 
and often with one or more years during which observer programs were 
not able to be implemented. Ideally, NMFS would observe each of these 
fisheries every 5 years to ensure data quality and timeliness. However, 
without new information on previously observed fisheries, NMFS must 
rely on the best available information, which in some cases is dated.
    Comment 12: One commenter believes it is not appropriate for NMFS 
to use data from observed vessels to estimate the level of marine 
mammal serious injury and mortality on unobserved vessels during 
unobserved periods.
    Response: Data collected by observers are extrapolated to the 
fleet, unless specific information is available that provides a 
reliable basis for changing this strategy. The BSAI and GOA fisheries 
were segregated in the 2004 LOF on the basis of a separation of time, 
area, and target species based on some assumptions that incidental 
serious injury and mortality of marine mammals in these fisheries (as 
segregated) may vary. As a result, NMFS believes that if bycatch levels 
differ between these fisheries, underlying causes for those takes may 
be easier to discern within a fishery. This segregation also eliminates 
from further investigation those fisheries in which bycatch levels are 
of little or no concern.
    Therefore, NMFS disagrees that it is inappropriate to use observer 
data from an observed vessel to estimate the level of marine mammal 
serious injury and mortality on a vessel that does not carry an 
observer but is fishing with the same gear, targeting the same species, 
and fishing in the same general environment. Observer programs are the 
best source of information on the level of serious injury and mortality 
that occurs incidental to a commercial fishery, despite the fact that 
an assumption must be made that the level of serious injury and 
mortality across the whole fleet will be similar to the level of 
serious injury and mortality on observed vessels within that fleet.
    One advantage of delineating the Alaska groundfish fisheries into 
different fisheries based on gear type, area, and target species is 
that NMFS is even more confident that levels of marine mammal bycatch 
on an observed vessel can be extrapolated to the unobserved portion of 
the fleet. In addition, the North Pacific Fishery Management Council's 
Scientific and Statistical Committee (SSC) commented that they are 
comfortable with extrapolating bycatch estimates from observed to 
unobserved portions of the fishery, as stated in the minutes of the SSC 
meeting on February 7-9, 2005: ``The SSC is comfortable with the 
approach to extrapolate estimates of takes from the observed portion of 
a fishery to the unobserved portion of the same fishery...''. Concerns 
raised by the SSC at the end of that sentence are addressed in the 
response to Comment 19.
    Comment 13: When marine mammal takes occur in an area where very 
similar marine mammal stocks overlap in both space and time, NMFS does 
not assign serious injury/mortality events to a particular marine 
mammal stock. Instead, the LOF classification determination with 
respect to each marine mammal stock allows for the possibility that the 
mortality-serious injury event involved animals from that sub-unit. 
Some commenters believe NMFS is ``double-counting'' a single mortality-
serious injury event. Commenters suggested an alternative approach such 
as weighting serious injury and mortality events by the probability 
that they involved marine mammals from a particular stock.
    Response: The issue of so-called ``double counting'' of mortalities 
and incorrectly assigning a marine mammal mortality/serious injury 
event to a particular stock was raised by public commenters with 
respect to two situations: mortalities of killer whales in an area 
where transient and resident killer whale stocks overlap, and 
mortalities/serious injuries of humpback whales in Hawaii, where 
multiple stocks overlap on the humpback whale breeding grounds. The 
following rationale applies to both situations.
    Assigning a commercial fishery incidental take event to a 
particular stock can be difficult when two marine mammal stocks that 
cannot be readily differentiated by observers overlap in space and 
time. There are three ways to assign an event to a stock when there is 
stock overlap: genetics, pro-rating (or ``weighting'') the take rate 
based on the abundance and distribution of each stock in that area, and 
independently assessing the impact of the take as if it could have 
resulted from either stock.
    Assignment of a serious injury/mortality event to a particular 
stock in an area of overlap is most directly accomplished through 
genetics analysis of the dead marine mammal. Many genetics samples have 
been collected from marine mammals that have died incidental to Alaska 
commercial fisheries; analyses of these data can greatly assist in 
determining what stock(s) of marine mammals are impacted by fisheries. 
For some marine mammal stocks in U.S. waters, a serious injury/
mortality event can be pro-rated to two different stocks if the 
distribution and abundance of both stocks in a particular area is well 
understood. However, if neither the abundance nor the distribution of 
both stocks in the area where the take occurred is known, pro-rating is 
not possible.
    If NMFS cannot use pro-rating or genetics techniques to assign a 
particular serious injury/mortality event to a specific stock in an 
area of known stock overlap, then the agency assesses what LOF category 
would result if the take came from either stock. The impact of the 
single take to each possible source stock is independently reviewed for 
each stock by conducting separate Tier 2 analyses that compare that 
take to the PBR level of stock A or the PBR level of stock B. In all 
cases in which this situation occurred in the proposed 2005 LOF, the 
resulting LOF fishery categories were the same when the take was 
compared to either stock's PBR level. However, this may not always be 
the case. If the results of the Tier 2 analyses had resulted in 
possible classification of a fishery in one of two categories, NMFS 
would generally take a precautionary approach and place the fishery in 
the higher level category. There are no situations in which a take that 
might be assigned to Stock A is added to a take that might be assigned 
to Stock B.
    Comment 14: To arrive at an assessment of incidental marine mammal 
mortality and serious injury, instead of double-counting takes, one 
commenter suggested NMFS do one of two things: (1) either reduce the 
mortality and serious injury by 50 percent, or (2) combine the 
population estimates of the affected stocks so that the actual take 
levels are compared to the actual total population. One commenter 
provided an alternative assessment of incidental marine mammal serious 
injury and mortality rates for combined populations of resident and 
transient killer whale stocks, and combined western and central 
humpback whale stocks.
    Response: See the response to Comment 13 regarding the issue of so-

[[Page 252]]

called ``double counting''. Stocks that are known to be genetically, 
demographically, and behaviorally distinct, such as resident and 
transient killer whale stocks, and western and central stocks of 
humpback whales, should not be combined for assessment of incidental 
mortality and serious injury. This approach is counter to the 
provisions of the MMPA and would greatly increase the probability that 
incidental mortality could have a negative impact on a stock without 
detection. If the source stock of an incidentally killed marine mammal 
is truly unknown, NMFS will continue the practice of assessing the 
possible impacts of that mortality on all reasonable marine mammal 
stocks that are known to occur in that area. NMFS will strive to reduce 
the number of situations where this is necessary by continuing to 
collect and analyze data on marine mammal abundance, distribution, and 
genetics of incidentally taken animals.
    Comment 15: One commenter believes a measure of fishing effort is 
needed in order to extrapolate observed takes to total estimated takes. 
The commenter notes that NMFS has used fish catch, in metric tons, as a 
proxy for effort because NMFS claims that effort is unknown. Two 
commenters suggested that something other than catch (e.g., numbers of 
days fished, hooks used) be used to measure effort.
    Response: Information on effort as measured by the number of hooks, 
number of hauls, days fished, etc. is available for vessels that are 
observed. However, there is no such measure for unobserved vessels. 
Because all vessels must report catch, that is the only data that can 
be used for all vessels, seasons, and areas to determine relative 
levels of effort. Should another measure of effort become available 
that can be used for all vessels, seasons, and areas, NMFS will 
consider modifying the analytical approach.
    Comment 16: One commenter believes the NMFS' analysts who calculate 
the mortality and serious injury rates should re-examine assumptions 
made about the statistical distribution from which the sample is drawn 
(i.e., discrete versus continuous, symmetric versus asymmetric).
    Response: Assumptions about the statistical distribution will 
affect the 95-percent confidence intervals around a mean, but will not 
affect the mean annual level of take, which is the value used to 
determine in which category a fishery should be placed in the LOF. NMFS 
has re-examined how the 95-percent confidence limits should be 
calculated, and has decided that using a natural log-transformation 
(Burnham et al., 1987), which uses the original calculated coefficients 
of variation is a better approach. This approach will yield positive, 
non-symmetric confidence limits for the bycatch estimation.
    Comment 17: One commenter notes that estimates of takes are rounded 
to the nearest whole number of animals and suggests that NMFS state 
these rounding rules and adjust confidence limits.
    Response: Estimates of takes in each strata are calculated by exact 
decimals, the decimal strata estimates are added to develop annual take 
estimates and 5-year averages. In future technical reports, NMFS will 
report estimates and confidence limits to two decimal places. Summary 
tables may, at times, show integers for presentation purposes. In these 
cases, NMFS will follow common rounding practices: if the number ends 
in a value less than 5, the estimate will be rounded down; if the 
number ends in a value greater than or equal to 5, the number will be 
rounded up.
    Comment 18: One commenter notes that in certain cases, unobserved 
takes reported by the vessel crew on a monitored ship was added to an 
estimated take level using observed takes. The commenter believes this 
is problematic and alters the statistical properties of the take 
estimates.
    Response: Takes that are not seen by the observer on an observed 
trip are not included in the estimates of total take. For instance, in 
2001, there was one observed take of a killer whale in a monitored haul 
in the BSAI flatfish trawl fishery; this extrapolated to an estimate of 
2 killer whales taken in that year. In 2001, an observer reported a 
single killer whale mortality and provided the following comment: 
``Skipper reported seeing a large pool of bright red blood emerge from 
prop. into wake following a loud noise accompanied by a shudder of the 
vessel. I thought it had been a raising of trawl doors, but we weren't 
hauling back. This pod had been feeding regularly on our discards.'' 
Although this description is conceptually identical to other situations 
where killer whales were killed by a propeller strike, because this 
interaction was not witnessed by the observer, it was not included in 
the estimate or used to justify a change in classification on the LOF.
    Comment 19: Two commenters identified some confusion about the 
analytical techniques used to extrapolate from observed serious injury/
mortality events to estimates of total serious injury mortality. 
Commenters are concerned that mortality/serious injury events that were 
seen, but that did not occur in monitored hauls (so-called ``unobserved 
takes'') are included in the extrapolation made to develop an estimated 
level of serious injury and mortality.
    The commenter was also concerned that the estimated number of takes 
listed in the SARs cannot be directly calculated simply by using the 
effort information also included in the SARs.
    Response: The fishing effort and marine mammal bycatch data for the 
groundfish fisheries of Alaska are partitioned into hundreds of strata 
differentiated by year, statistical fishing area (517, 610, etc.), 
fishing gear (trawl, longline, jig, and pot), fishery target (pollock, 
flatfish, sablefish, etc.), vessel type (processor, mothership, or 
catcher-only vessel), and four-week fishing period throughout the year 
(Catch Accounting System or Blend data weeks). Estimates of bycatch are 
calculated for each individual stratum and the decimal values of the 
resulting estimates/variance for all strata are then summed to yield 
the regional/annual estimates. The effort information included in the 
SARs is the pooled effort. The pooled effort shown in the SAR cannot be 
directly used to calculate the estimated bycatch from the observed 
bycatch because effort in each strata, not the pooled effort, is used 
to calculate an estimated bycatch rate.
    If there are no observed marine mammal serious injury/mortality 
events in either monitored or unmonitored sets in a particular strata, 
NMFS assigns ``zero'' as the level of bycatch for that strata. In this 
respect, the final regional estimates are conservative. Mortalities/
serious injury events actually seen by observers in designated 
unmonitored sets are only added to the calculated ratio estimates in 
two circumstances: (1) there were no observed takes in designated 
monitored sets (zero variance), but there were events seen and reported 
by either the observer, the crew, or the captain, or (2) the calculated 
rounded ratio estimate is lower than total number mortalities actually 
seen by observers in all sets on NORPAC cruises. In both cases, the 
added mortalities are not double counted, but known minimums are 
corrected. Reported takes that do not occur in monitored hauls are 
never used in an extrapolation to a total estimated take; in the two 
cases identified above, they are simply added to the calculated 
estimates based on monitored hauls.
    Comment 20: One commenter noted that the fishery-wide estimate of 
total take includes both estimates from observer programs and 
information from logbooks. The commenter believes this

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procedure double counts interactions, artificially and incorrectly 
exaggerating the number of takes.
    Response: The MMPA requires that the SARs contain an estimate of 
total fishery-related mortality and serious injury. Clearly, because 
not all commercial fisheries are observed, this total estimate of 
fishery-related mortality and serious injury will combine different 
sources of information, such as that from observer programs, logbooks, 
and stranding information. However, only one source of data is used for 
each fishery to avoid including the same take more than once in the 
total estimate of take. For instance, because the BSAI pollock trawl 
fishery is observed, only observer data are used to estimate levels of 
serious injury and mortality for this fishery. If there is an existing 
logbook report on a particular event in this fishery, it would be 
ignored. In contrast, for fisheries never observed, logbook data 
(called ``self reports'' in the SARs) or stranding data are used as a 
minimum estimate of the level of mortality/serious injury.
    NMFS disagrees that the statistical properties of combining data in 
this manner may be problematic. Data from logbooks or strandings are 
never combined with observer data. Data from logbooks or strandings are 
only used to determine a minimum estimate of the level of mortality/
serious injury in a particular fishery when no observer data are 
available for that fishery. While the SARs do include a coefficient of 
variation for the total annual mortality level for all fisheries, these 
coefficients of variation reflect only the confidence in the observer 
data.
    Comment 21: One commenter notes that the LOF does not take into 
account injuries or mortalities of marine mammals that occur as a 
result of entanglement in marine debris. In addition, the analysis does 
not take into account the cumulative effects of all mortality sources.
    Response: This is correct. The MMPA and the implementing 
regulations for section 118 describe a process for classifying U.S. 
commercial fisheries based on the level of serious injury and mortality 
incidental to those fisheries relative to stock-specific PBR levels, 
and provide a means to manage incidental takes by commercial fisheries. 
Cumulative impacts of all possible sources of mortality are not 
specifically assessed or managed in the LOF process.
    Comment 22: The commenter supports reclassification of the five 
Alaska fisheries.
    Response: NMFS has reclassified these fisheries.
    Comment 23: One commenter suggested that NMFS review the monitoring 
and management scheme of Alaska trawl fisheries to ensure adequate 
protection of humpbacks.
    Response: NMFS believes that the monitoring and management of 
Alaska trawl fisheries is more than sufficient to ensure adequate 
protection of humpback whales given the high observer coverage and low 
level of annual serious injury and mortality of humpback whales in 
these fisheries.
    Comment 24: One commenter noted that the timelines for publishing 
the SARs and the LOF do not match up, so old data are used for the 
classifying fisheries on the LOF because of the time it takes to 
incorporate new data into the SARs.
    Response: The timing of the annual publication of the marine mammal 
SARs and the LOF are not linked. The SARs are reviewed annually for 
stocks listed as endangered or threatened under the ESA, and depleted 
under the MMPA. Stocks not listed as endangered, threatened, or 
depleted are updated on a 3-year cycle, or when significant new 
information becomes available. However, because new information on 
abundance, rates of population increase, or stock structure typically 
become available only every few years, it is reasonable to rely on 
abundance information and PBR levels that are a few years old.
    In contrast, an analysis of the levels of serious injury and 
mortality of all marine mammal stocks incidental to commercial 
fisheries is updated every year for all stocks for the purpose of 
categorizing fisheries in the LOF. The most recent five years of data 
are used where available. However, for observer data, there is 
generally a 2-year time lag between when the most recent data were 
collected and the year for which the new LOF is proposed. For example, 
data from the North Pacific Groundfish Observer Program used in the 
analysis for the 2005 proposed List of Fisheries was collected between 
1999-2003. The reason for this time lag is that the year in which the 
data were collected must be a completed year to assure that all data 
from all fisheries were available for the analysis. Thus, data 
collected in calendar year 2003 are analyzed in 2004. Further, the 
proposed LOF is generally proposed in the year prior to the year it 
will take effect. The 2005 proposed List of Fisheries was proposed in 
2004.
    The abundance, stock structure, and PBR level information in the 
most current published SAR is used in the analyses for each annual 
proposed LOF. Newer abundance information may be available between the 
publication of the proposed and final LOFs, but NMFS does not typically 
update analyses between the proposed rule and final LOFs, because this 
is a time consuming, annual process which will be repeated the 
following year. Additionally, NMFS cannot finalize any changes that 
have not already been proposed in the Federal Register and available 
for public comment. Availability of new information is a continuous 
process, and delays to in publishing the LOF would be endless if the 
agency updated the LOF every time new information was available. To 
avoid such delays the newest available information can be incorporated 
into the next proposed LOF the following year.
    NMFS may, as it is doing for this LOF, use more current fishery-
related mortality data than are included in the most recent published 
SAR. For this LOF, NMFS relied upon a draft report that was circulated 
to the public in February 2005.
    Comment 25: One commenter questioned why NMFS uses a lower 
percentage when calculating how observed takes extrapolate to total 
takes if some fisheries have observer coverage levels of 100-percent. 
For example, the participants in the hook and line fishery for turbot 
are all catcher-processors and generally have 100-percent observer 
coverage. All vessels in this fishery over 125ft (38.1m) have 100-
percent observer coverage, and vessels between 60ft (18.28m) and 125ft 
(38.1m)have 30-percent observer coverage; because the turbot fleet only 
targets turbot once per year, and an observer is required during that 
one trip, effectively the observer coverage is 100 percent. Further, 
the November 2000 Biological Opinion from the ESA section 7 
consultation on the fishery shows that 100 percent of the turbot hook 
and line fishery is observed. Therefore, the SARs are incorrect in 
stating that the observer coverage for this fishery is between 27-80 
percent.
    Response: For the analysis of marine mammal serious injury/
mortality incidental to the Alaska groundfish fisheries, observer 
coverage is measured as the percent of the total catch that is 
monitored by observers. Thus, there is a difference between the 
statement ``100-percent of the fishery is observed'' and the actual 
percent of the catch that is monitored by observers. Even in a fishery 
where every vessel carries at least one observer, there are times when 
observers must sleep or eat. Thus, not all catch in all hauls or sets 
on an observed vessel are actually monitored by an observer. The 
highest observer

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coverage in the groundfish fisheries of Alaska, in terms of the percent 
of the catch that is monitored, is approximately 80-percent.
    Comment 26: One commenter noted that the BSAI turbot longline 
fishery has historically been small and various sources of information 
document that participation has declined in recent years, in part due 
to killer whale predation on longline catch. The commenter believes the 
fishery should remain in Category III because the only killer whale 
take occurred in 1999, so using the most recent 5 years of data (2000-
2004) results in a mean annual mortality rate of 0.0 killer whales per 
year.
    Response: The observer data set analyzed for the 2005 LOF for the 
Federal fisheries were collected from 1999 through 2003. These data and 
the Tier 2 analysis indicate that the BSAI turbot fishery meets the 
threshold for Category II for the 2005 LOF. The 2006 LOF will analyze 
data collected from 2000 through 2004. The BSAI turbot fishery will be 
proposed to be placed in the appropriate category for the 2006 LOF 
according to the Tier 2 analysis using those data. The LOF is an annual 
process, and the category to which a fishery is assigned may vary from 
year to year. See the responses to Comments 15 and 24 for additional 
explanation on the timing of the LOF process and the data used in the 
analyses.
    Comment 27: One commenter believes NMFS has incorrectly estimated 
the number of vessels participating in the turbot fishery; the number 
is too high.
    Response: A target is calculated as the dominant retained species 
for a vessel by week, gear, and reporting area. In 1999, 31 catcher 
processors targeted Greenland turbot. Effort in the Greenland turbot 
fishery declined over the years to 12 catcher processors targeting 
Greenland turbot in 2003. Table 1. List of Fisheries Commercial 
Fisheries in the Pacific Ocean will be corrected in the 2006 LOF.

Comments on Fisheries in the Atlantic Ocean, Gulf of Mexico, and 
Caribbean

    Comment 28: Several commenters supported the proposed 
reclassification of the Mid-Atlantic and Northeast bottom trawl 
fisheries from Category III to Category II.
    Response: NMFS has reclassified both the Mid-Atlantic and Northeast 
bottom trawl fisheries in this final rule.
    Comment 29: Two commenters believe NMFS should classify the Mid-
Atlantic bottom trawl fishery in Category I instead of Category II as 
proposed. One commenter feels NMFS should classify the fishery in 
Category I until the agency can determine whether short-finned or long-
finned pilot whales are being seriously injured or killed incidental to 
this fishery. The commenter is concerned that grouping the two species 
together when estimating abundance and mortality may elevate risk if 
one species is less abundant than the other, thus disproportionately 
estimating serious injury and mortality.
    Response: Because the two species of pilot whales that occur in the 
Atlantic are very similar in appearance, fishery observers and 
scientists cannot reliably visually identify pilot whales at the 
species level. Therefore, at this time, it is not possible to 
separately estimate total fishery-related serious injury and mortality 
of long-finned and short-finned pilot whales. The Atlantic Scientific 
Review Group advised NMFS to adopt the risk-averse strategy of assuming 
that either species might have been subject to the observed fishery-
related serious injury and mortality. Therefore, NMFS cannot conduct a 
tier-analysis separately for each species because we do not have 
species-specific abundance estimates or PBR levels for long finned and 
short-finned pilot whales.
    NMFS is currently analyzing biopsy samples taken during 2004 and 
2005 abundance surveys to obtain more information on pilot whale stock 
structure and range. NMFS expects to have these estimates available in 
the 2007 SARs. Additionally, NMFS is working towards having observers 
obtain biopsy samples of animals taken incidental to commercial fishing 
operations.
    At this time, NMFS does not have adequate information to reclassify 
this fishery in Category I, but will revisit the tier analysis as new 
information becomes available.
    Comment 30: One commenter supported the proposed removal of the 
Gulf of Maine/Bay of Fundy stock of harbor porpoise, Gulf of Maine 
stock of humpback whales, and the Western North Atlantic coastal stock 
of bottlenose dolphins from the list of species/stocks incidentally 
injured or killed by the Long Island Sound inshore gillnet fishery.
    Response: NMFS has removed these three stocks because NMFS has not 
documented any marine mammal serious injuries or deaths incidental to 
the Long Island Sound inshore gillnet fishery in recent years.
    Comment 31: One commenter objected to the proposed name changes for 
the Delaware Bay inshore gillnet fishery (proposed as ``Delaware River 
inshore gillnet fishery'') and the Mid-Atlantic coastal gillnet fishery 
(proposed as ``Mid-Atlantic gillnet fishery''). The commenter feels the 
fisheries as named and described do not adequately reflect gillnetting 
in Delaware Bay. Further, the proposed changes would put undue burden 
on fishermen that would now fall under the Mid-Atlantic gillnet 
fishery. The commenter requested that all gillnetting in Delaware Bay 
be included on th e LOF in Category III as the ``Delaware Bay inshore 
gillnet fishery''.
    Response: NMFS would like to clarify that the proposed name changes 
do not change the designation of any gillnet fisheries operating in 
Delaware Bay. The 1994 final LOF (59 FR 43820, August 25, 1994) 
classified the current Category III Delaware Bay inshore gillnet 
fishery as those gillnet fisheries operating north of a line drawn from 
the southern point of Nantuxent Cove (mouth of Cedar Creek), NJ to the 
southern boundary of Bombay Hook National Wildlife Refuge at Kelley 
Island (Port Mahon), DE. Gillnet fisheries operating south of this line 
have always been included under the Mid-Atlantic gillnet fishery 
(previously the ``Mid-Atlantic coastal gillnet fishery''), a Category I 
fishery based on serious injuries and mortalities of harbor porpoise 
and bottlenose dolphins incidental to the fishery. NMFS has documented 
strandings of these stocks inside Delaware Bay as well as up into the 
Delaware River. The previous name, ``Delaware Bay inshore gillnet 
fishery'' is potentially misleading because it implies all fisheries 
operating throughout Delaware Bay are considered as Category III 
fisheries. Therefore, NMFS has changed the name of the fishery to the 
``Delaware River inshore gillnet fishery''.
    The Atlantic Large Whale Take Reduction Plan (ALWTRP) regulations 
apply to waters inside Delaware Bay between the COLREGS and the line 
defined above between Nantuxent Cove and Kelley Island. NMFS would like 
to clarify an error in the proposed 2005 LOF (69 FR 70100, December 2, 
2004) under the heading ``Delaware Bay Inshore Gillnet Fishery'', that 
stated, ``Moreover, gillnet fisheries operating inland of the COLREGS 
would be placed in the Delaware River inshore gillnet fishery and would 
not be subjected to ALWTRP regulations.'' The word COLREGS should be 
substituted with the phrase ``southern point of Nantuxent Cove, NJ to 
the southern end of Kelley Island, Port Mahon, DE''.
    Comment 32: One commenter disagreed with NMFS' proposed 
reclassification of the Northeast bottom trawl fishery from Category 
III to

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Category II and feels it is premature and scientifically unfounded. The 
commenter questioned NMFS' abundance estimates for Atlantic white-sided 
dolphins.
    Response: To estimate Atlantic white-sided dolphin abundance, NMFS 
used established scientific methods that were reviewed and accepted by 
the Atlantic Scientific Review Group; this estimate is based on the 
most recent and reliable available data. At the time NMFS conducted the 
Tier analysis, no mortality estimate was available for the Western 
North Atlantic stock of white-sided dolphins taken incidental to the 
Northeast bottom trawl fishery. Therefore, in the Tier analysis, NMFS 
used observer data from 2003, during which 12 animals were observed 
seriously injured or killed incidental to the fishery. This count 
represents the number of mortalities actually recorded by fishery 
observers and have not been expanded to account for the portion of the 
fishery that was not observed. In other words, if NMFS had extrapolated 
the number of mortalities across the entire fishery, the number of 
mortalities would be higher. Because NMFS only had one year of data, 
the agency used this data in the Tier analysis. These 12 observed 
serious injuries and mortalities represent 3.3 percent of the stock's 
PBR level (364). Because this level of mortality and serious injury 
exceeds 1 percent but is less than 50 percent of the stock's PBR level, 
NMFS is classifying this fishery as a Category II fishery.
    Comment 33: One commenter requested that NMFS not finalize the 
proposed inclusion of harbor porpoise on the list of species/stocks 
incidentally injured or killed in the Northeast bottom trawl fishery 
because the animal was badly decomposed and the trawl duration was five 
hours.
    Response: NMFS agrees and has not included the Gulf of Maine/Bay of 
Fundy stock of harbor porpoise on the list of species and stocks 
injured or killed incidental to the Northeast bottom trawl fishery.
    Comment 34: One commenter requested NMFS to remove the Western 
North Atlantic stocks of offshore bottlenose and striped dolphins from 
the list of species and stocks seriously injured or killed in the 
Northeast bottom trawl fishery, as there were no documented serious 
injuries or mortalities between 2000 and 2004.
    Response: NMFS agrees and will propose removing these stocks in the 
2006 LOF.
    Comment 35: Two commenters urged NMFS to reclassify the Gulf of 
Mexico blue crab trap/pot fishery in Category II and the Gulf of Mexico 
menhaden purse seine fishery in Category I.
    Response: At this time, the available information supports the 
current classifications for these fisheries. NMFS has no new 
information with which to evaluate and reclassify these fisheries. As 
stated in the 2004 final LOF (69 FR 48407, 48414, August 10, 2004), 
NMFS believes it is necessary to investigate stock structure of 
bottlenose dolphins in the Gulf of Mexico and intends to reevaluate 
these fisheries' classification as new information becomes available.

Comments on the LOF EA

    Comment 36: Several commenters recommended that NMFS revise the 
1995 EA, which analyzed the LOF classification process.
    Response: NMFS drafted a revised EA on the process for classifying 
U.S. commercial fisheries according to the level of marine mammal 
serious injury and mortality incidental to each fishery in August 2005 
and solicited public comments on the document from August 25 to October 
24, 2005. This EA was finalized in December 2005.
    Comment 37: Several commenters oppose the process of classifying 
fisheries on the LOF.
    Response: NMFS is required by MMPA section 118 to classify 
fisheries. Please see the SUPPLEMENTARY INFORMATION in this final rule.
    Comment 38: One commenter believes the EA is deficient because it 
only focuses on the thresholds for categorizing fisheries. The 
commenter feels the EA should consider how minimum population estimates 
(Nmin) and recovery factors (Rf) are defined as well as how serious 
injuries or mortalities are assigned to a particular marine mammal 
stock.
    Response: Nmin and the Rf, while related to the LOF classification 
scheme, are not actually part of the LOF process. Nmin is defined in 
MMPA section 3(27) as an estimate of the number of animals in a stock 
that is based on the best available scientific information on 
abundance, incorporating the precision and variability associated with 
such information and provides reasonable assurance that the stock size 
is equal to or greater than the estimate. Nmin is one component of the 
equation used to calculate PBR for a particular marine mammal stock. 
PBR is also defined in MMPA section 3(20). A recovery factor of between 
0.1 and 1.0 is included in the PBR equation.
    Pursuant to MMPA section 117, NMFS estimates PBR levels for each 
marine mammal stock according to the definitions in the MMPA. NMFS 
reports these PBR levels in individual SARs. Similar to estimating PBR, 
assigning serious injuries and mortalities to a particular stock also 
occurs during the stock assessment process. Each SAR is vetted through 
the appropriate SRG, who in turn reviews the reports based on their 
scientific expertise. Draft SARs are also available for public comment.
    The process for estimating PBR (i.e., establishing Nmin and 
recovery factors) under MMPA section 117 is a separate process that 
occurs before such information is used in the process for classifying 
fisheries on the LOF under MMPA section 118. This is also true for 
assigning serious injuries and mortalities to individual stocks. 
Members of the public who wish to comment on elements of the stock 
assessment process would need to do so during the comment period on 
draft SARs.

Summary of Changes to the LOF for 2005

    The following summarizes changes to the LOF in 2005 in fishery 
classification, fisheries listed on the LOF, the number of participants 
in a particular fishery, and the species and/or stocks that are 
incidentally killed or seriously injured in a particular fishery. The 
LOF for 2005 is identical to the LOF for 2004 with the following 
exceptions.

Commercial Fisheries in the Pacific Ocean

Fishery Classification
    The ``CA/OR Thresher Shark/Swordfish Drift Gillnet ([gteqt]14 in. 
Mesh) Fishery'' is elevated from Category II to Category I.
    The following fisheries are elevated from Category III to Category 
II: ``AK Bering Sea, Aleutian Islands Flatfish Trawl Fishery,'' ``AK 
Bering Sea, Aleutian Islands Pollock Trawl Fishery,'' ``AK Bering Sea, 
Aleutian Islands Greenland Turbot Longline Fishery,'' ``AK Bering Sea, 
Aleutian Islands Pacific Cod Longline Fishery,'' and ``AK Bering Sea 
Sablefish Pot Fishery.''
Fishery Name and Organizational Changes and Clarifications
    The ``Bering Sea, Aleutian Islands Cod Longline Fishery'' is 
renamed the ``Bering Sea, Aleutian Islands Pacific Cod Longline 
Fishery.''
Number of Vessels/Persons
    The estimated number of participants in the ``OR Swordfish Floating 
Longline Fishery'' is updated to 0.
    The estimated number of participants in the CA/OR thresher shark/
swordfish drift gillnet fishery is updated to 85.

[[Page 256]]

    The estimated number of participants in the CA anchovy, mackerel, 
tuna purse seine fishery is updated to 110.
    The estimated number of participants in the California pelagic 
longline fishery is updated to 6.
    The estimated number of participants in the California sardine 
purse seine fishery is updated to 110.
    The estimated number of participants in the California swordfish 
harpoon fishery is updated to 30.
    List of Species and Stocks that are Incidentally Injured or Killed
    The Eastern North Pacific stock of gray whales is added to the list 
of marine mammal species and stocks incidentally injured or killed by 
the WA, OR, CA crab pot fishery.
    The CA/OR/WA stocks of long-beaked and short-beaked common dolphins 
and the U.S. stock of California sea lions are added to the list of 
marine mammal species and stocks incidentally injured or killed by the 
CA yellowtail barracuda, white seabass, and tuna drift gillnet fishery.
    The CA/OR/WA stocks of Risso's dolphin is added to the list of 
marine mammal species and stocks incidentally injured or killed by the 
California pelagic longline fishery.
    The U.S. stock of California sea lions is added to the list of 
marine mammal species and stocks incidentally injured or killed by the 
California purse seine fishery.
    The Eastern North Pacific resident and transient stocks of killer 
whales are added to the list of marine mammal species and stocks 
incidentally injured or killed by the AK BSAI Pacific cod longline 
fishery.

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

Fishery Classification
    The ``Mid-Atlantic bottom trawl fishery'' (name change from ``Mid-
Atlantic mixed species trawl fishery,'' see Fishery Name and 
Organizational Changes and Clarifications section) is elevated from 
Category III to Category II.
    The ``Northeast bottom trawl fishery,'' (proposed name change from 
``North Atlantic bottom trawl fishery,'' see Fishery Name and 
Organizational Changes and Clarifications section) is elevated from 
Category III to Category II.
Addition of Fisheries to the LOF
    The ``Atlantic shellfish bottom trawl fishery'' is added to the LOF 
as a Category III fishery that encompasses the calico scallops trawl 
fishery, crab trawl fishery, Georgia/South Carolina/Maryland whelk 
trawl fishery, Gulf of Maine/Mid-Atlantic sea scallops trawl fishery, 
and Gulf of Maine northern shrimp trawl fishery.
Removal of Fisheries from the LOF
    The following trawl fisheries are removed from the 2005 LOF: ``U.S. 
Atlantic monkfish trawl fishery,'' ``Calico Scallops Trawl Fishery,'' 
``Crab Trawl Fishery,'' ``Georgia/South Carolina/Maryland Whelk Trawl 
Fishery,'' ``Gulf of Maine/Mid-Atlantic Sea Scallops Trawl Fishery,'' 
and ``Gulf of Maine Northern Shrimp Trawl Fishery.''
Fishery Name and Organizational Changes and Clarifications
    The ``Atlantic herring mid-water trawl fishery (including pair 
trawl)'' is renamed the ``Northeast mid-water trawl fishery.''
    The ``Atlantic squid, mackerel, and butterfish trawl fishery'' is 
renamed the ``Mid-Atlantic mid-water trawl fishery (including pair 
trawl).'' NMFS unintentionally omitted the parenthetical information in 
the proposed 2005 LOF, but did note in the explanation of the name 
change that the agency intended to include all components of this 
fishery.
    The ``Delaware Bay inshore gillnet fishery'' is renamed the 
``Delaware River inshore gillnet fishery.''
    The ``Gulf of Maine tub trawl groundfish bottom longline/hook-and-
line fishery'' is renamed the ``Northeast/Mid-Atlantic bottom longline/
hook-and-line fishery.''
    The ``Mid-Atlantic coastal gillnet fishery'' is renamed the ``Mid-
Atlantic gillnet fishery.''
    The ``Mid-Atlantic mixed species trawl fishery'' is renamed the 
``Mid-Atlantic bottom trawl fishery.''
    The ``North Atlantic bottom trawl fishery'' is renamed the 
``Northeast bottom trawl fishery.''
Number of Vessels/Persons
    The estimated number of participants in the ``Atlantic shellfish 
bottom trawl fishery'' is updated to 972.

List of Species and Stocks that are Incidentally Injured or Killed

Atlantic Mixed Species Trap/Pot Fishery

    The Canadian east coast stock of minke whales and the Gulf of 
Maine/Bay of Fundy stock of harbor porpoise are removed from the list 
of marine mammal species and stocks incidentally injured or killed by 
the Atlantic mixed species trap/pot fishery.

Atlantic Ocean, Caribbean, and Gulf of Mexico Large Pelagics Longline 
Fishery

    The Western North Atlantic stock of striped dolphins, the Gulf of 
Maine/Bay of Fundy stock of harbor porpoise, the Western North Atlantic 
stock of humpback whales, and the Canadian East coast stock of minke 
whales are removed from the list of marine mammal species and stocks 
incidentally injured or killed by the Atlantic Ocean, Caribbean, and 
Gulf of Mexico large pelagics longline fishery.
    The Western North Atlantic stocks of mesoplodon beaked whales and 
Cuvier's beaked whales, and the Northern Gulf of Mexico stock of short-
finned pilot whales are added to the list of marine mammal species and 
stocks incidentally injured or killed by the Atlantic Ocean, Caribbean, 
and Gulf of Mexico large pelagics longline fishery.

Chesapeake Bay Inshore Gillnet Fishery

    Gulf of Maine/Bay of Fundy stock of harbor porpoise is removed from 
the list of marine mammal species and stocks incidentally injured or 
killed by the Chesapeake Bay inshore gillnet fishery.

Delaware River Inshore Gillnet Fishery

    The Gulf of Maine/Bay of Fundy stock of harbor porpoise, the Gulf 
of Maine stock of humpback whales, and the Western North Atlantic 
coastal stock of bottlenose dolphins are removed from the list of 
marine mammal species and stocks incidentally injured or killed by the 
Delaware River inshore gillnet fishery (proposed name change from 
Delaware Bay inshore gillnet fishery, see Fishery Name and 
Organizational Changes and Clarifications section).

Gulf of Maine Herring and Atlantic Mackerel Stop Seine/Weir Fishery

    The Western North Atlantic stocks of humpback whales and North 
Atlantic right whales are removed from the list of marine mammal 
species and stocks incidentally injured or killed by the Gulf of Maine 
herring and Atlantic mackerel stop seine/weir fishery.
    The Western North Atlantic stock of Atlantic white-sided dolphins 
is added to the list of marine mammal species and stocks incidentally 
injured or killed by the Gulf of Maine herring and Atlantic mackerel 
stop seine/weir fishery.

Gulf of Mexico Butterfish Trawl Fishery

    The Eastern Gulf of Mexico stocks of Atlantic spotted dolphins and 
pantropical spotted dolphins are removed from the list of marine mammal 
species and stocks incidentally injured or killed by the Gulf of Mexico 
butterfish trawl fishery.
    The Northern Gulf of Mexico outer continental shelf stock and 
Northern Gulf of Mexico continental shelf edge and slope stock of 
bottlenose dolphins

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are added to the list of marine mammal species and stocks incidentally 
injured or killed by the Gulf of Mexico butterfish trawl fishery.

Gulf of Mexico Menhaden Purse Seine Fishery

    The Eastern Gulf of Mexico coastal stock of bottlenose dolphins and 
the Gulf of Mexico bay, sound and estuarine stock of bottlenose 
dolphins are added to the list of marine mammal species and stocks 
incidentally injured or killed by the Gulf of Mexico menhaden purse 
seine fishery.

Long Island Sound Inshore Gillnet Fishery

    The Gulf of Maine/Bay of Fundy stock of harbor porpoise, the Gulf 
of Maine stock of humpback whales, and the Western North Atlantic 
coastal stock of bottlenose dolphins are removed from the list of 
marine mammal species and stocks incidentally injured or killed by the 
Long Island Sound inshore gillnet fishery.

Mid-Atlantic Bottom Trawl Fishery

    The Western North Atlantic stocks of long-finned pilot whales, 
short-finned pilot whales, and common dolphins are added to the list of 
marine mammal species and stocks incidentally injured or killed by the 
Mid-Atlantic bottom trawl fishery.

Mid-Atlantic Gillnet Fishery

    The Western North Atlantic stock of gray seals and the Western 
North Atlantic stock of fin whales are added to the list of marine 
mammal species and stocks incidentally injured or killed by the Mid-
Atlantic gillnet fishery.

Mid-Atlantic Menhaden Purse Seine Fishery

    The Western North Atlantic stock of humpback whales is removed from 
the list of marine mammal species and stocks incidentally injured or 
killed by the Mid-Atlantic purse seine fishery.

Mid-Atlantic Mid-water Trawl Fishery

    The Western North Atlantic offshore stock of bottlenose dolphins is 
added to the list of marine mammal species and stocks incidentally 
injured or killed by the Mid-Atlantic mid-water trawl fishery.

Northeast Bottom Trawl Fishery

    The Western North Atlantic stock of harp seals and the Gulf of 
Maine/Bay of Fundy stock of harbor porpoise are added to the list of 
marine mammal species and stocks incidentally injured or killed by the 
Northeast bottom trawl fishery (proposed name change from North 
Atlantic bottom trawl fishery, see Fishery Name and Organizational 
Changes and Clarification section).

Northeast/Mid-Atlantic Bottom Longline/Hook-and-Line Fishery

    The Western North Atlantic stocks of harbor seals, gray seals, and 
humpback whales are removed from the list of marine mammal species and 
stocks incidentally injured or killed by the Northeast/Mid-Atlantic 
bottom longline/hook-and-line fishery.

Northeast Mid-water Trawl Fishery

    The Western North Atlantic stocks of long-finned pilot whales, 
short-finned pilot whales, and Atlantic white-sided dolphins are added 
to the list of marine mammal species and stocks incidentally injured or 
killed by the Northeast mid-water trawl fishery.

Northeast Sink Gillnet Fishery

    The Western North Atlantic stocks of killer whales, spotted 
dolphins, and false killer whales are removed from the list of marine 
mammal species and stocks incidentally injured or killed by the 
Northeast sink gillnet fishery.
    The Western North Atlantic stocks of Risso's dolphins and hooded 
seals are added to the list of marine mammal species and stocks 
incidentally injured or killed by the Northeast sink gillnet fishery.

Rhode Island, Southern Massachusetts (to Monomoy Island), and New York 
Bight (Raritan and Lower New York Bays) Inshore Gillnet Fishery

    The Gulf of Maine/Bay of Fundy stock of harbor porpoise, the Gulf 
of Maine stock of humpback whales, and the Western North Atlantic 
coastal stock of bottlenose dolphins are removed from the list of 
marine mammal species and stocks incidentally injured or killed by the 
Rhode Island, Southern Massachusetts (to Monomoy Island), and New York 
Bight (Raritan and Lower New York Bays) inshore gillnet fishery.

Southeastern U.S. Atlantic and Gulf of Mexico Shrimp Trawl Fishery

    The Western Gulf of Mexico coastal stock of bottlenose dolphins, 
the Eastern Gulf of Mexico coastal stock of bottlenose dolphins, the 
Gulf of Mexico bay, sound, and estuarine stock of bottlenose dolphins, 
and the Florida stock of the West Indian manatee are added to the list 
of marine mammal species and stocks incidentally injured or killed by 
the Southeastern U.S. Atlantic and Gulf of Mexico shrimp trawl fishery.

U.S. Atlantic Tuna Purse Seine Fishery

    The Western North Atlantic stocks of long-finned and short-finned 
pilot whales are added to the list of marine mammal species and stocks 
incidentally injured or killed by the U.S. Atlantic tuna purse seine 
fishery. Interactions between each of these marine mammal stocks/
species and this fishery have been documented in recent SARs.

List of Fisheries

    The following two tables list U.S. commercial fisheries according 
to their assigned categories under section 118 of the MMPA. The 
estimated number of vessels/participants is expressed in terms of the 
number of active participants in the fishery, when possible. If this 
information is not available, the estimated number of vessels or 
persons licensed for a particular fishery is provided. If no recent 
information is available on the number of participants in a fishery, 
the number from the most recent LOF is used.
    The tables also list the marine mammal species or stocks 
incidentally killed or injured in each fishery based on observer data, 
logbook data, stranding reports, and fisher reports. This list includes 
all species or stocks known to experience serious injury or mortality 
in a given fishery, but also includes species or stocks for which there 
are anecdotal or historical, but not necessarily current, records of 
interaction. Additionally, species identified by logbook entries may 
not be verified. Not all species or stocks identified are the reason 
for a fishery's placement in a given category. There are a few 
fisheries that are in Category II that have no recently documented 
interactions with marine mammals. Justifications for placement of these 
fisheries are by analogy to other gear types that are known to cause 
mortality or serious injury of marine mammals, as discussed in the 
final LOF for 1996 (60 FR 67063, December 28, 1995), and according to 
factors listed in the definition of ``Category II fishery'' in 50 CFR 
229.2.
    Table 1 lists commercial fisheries in the Pacific Ocean (including 
Alaska); Table 2 lists commercial fisheries in the Atlantic Ocean, Gulf 
of Mexico, and Caribbean.
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Classification

    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that this final rule will not have a significant 
economic impact on a substantial number of small entities as that term 
is defined in the Regulatory Flexibility Act, 5 U.S.C. 601 et seq. For 
convenience, the factual basis leading to the certification is repeated 
below.
    Under existing regulations, all fishers participating in 
Category I or II fisheries must register under the MMPA, obtain an 
Authorization Certificate, and pay a fee of $25. Additionally, 
fishers may be subject to a take reduction plan and requested to 
carry an observer. The Authorization Certificate authorizes the 
taking of marine mammals incidental to commercial fishing 
operations. NMFS has estimated that approximately 41,600 fishing 
vessels, most of which are small entities, operate in Category I or 
II fisheries, and therefore, are required to register. However, 
registration has been integrated with existing state or Federal 
registration programs for the majority of these fisheries so that 
the majority of fishers do not need to register separately under the 
MMPA. Currently, approximately 5,800 fishers register directly with 
NMFS under the MMPA authorization program.
    We received and responded to one comment on the economic analysis 
(Comment 27). This comment did not result in any material change to the 
factual basis for our certification. As a result, no regulatory 
flexibility analysis is required, nor was one prepared.
    This final rule contains collection-of-information requirements 
subject to the Paperwork Reduction Act. The collection of information 
for the registration of fishers under the MMPA has been approved by the 
Office of Management and Budget (OMB) under OMB control number 0648-
0293 (0.15 hours per report for new registrants and 0.09 hours per 
report for renewals). The requirement for reporting marine mammal 
injuries or moralities has been approved by OMB under OMB control 
number 0648-0292 (0.15 hours per report). These estimates include the 
time for reviewing instructions, searching existing data sources, 
gathering and maintaining the data needed, and completing and reviewing 
the collection of information. Send comments regarding these reporting 
burden estimates or any other aspect of the collection of information, 
including suggestions for reducing burden, to NMFS and OMB (see 
ADDRESSES).
    Notwithstanding any other provision of law, no person is required 
to respond to nor shall a person be subject to a penalty for failure to 
comply with a collection of information subject to the requirements of 
the Paperwork Reduction Act unless that collection of information 
displays a currently valid OMB control number.
    This final rule has been determined not to be significant for the 
purposes of Executive Order 12866.
    An EA was prepared under the National Environmental Policy Act 
(NEPA) for regulations to implement section 118 of the MMPA (1995 EA). 
NMFS revised that EA relative to classifying U.S. commercial fisheries 
on the LOF in December 2005. Both the 1995 and 2005 EA concluded that 
implementation of MMPA section 118 regulations would not have a 
significant impact on the human environment. This final rule would not 
make any significant change in the management of reclassified 
fisheries, and therefore, this final rule is not expected to change the 
analysis or conclusion of the 2005 EA. If NMFS takes a management 
action, for example, through the development of a TRP, NMFS will first 
prepare an environmental document as required under NEPA specific to 
that action.
    This final rule will not affect species listed as threatened or 
endangered under the Endangered Species Act

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(ESA) or their associated critical habitat. The impacts of numerous 
fisheries have been analyzed in various biological opinions, and this 
final rule will not affect the conclusions of those opinions. The 
classification of fisheries on the LOF is not considered to be a 
management action that would adversely affect threatened or endangered 
species. If NMFS takes a management action, for example, through the 
development of a TRP, NMFS would conduct consultation under section 7 
of the ESA for that action.
    This final rule will have no adverse impacts on marine mammals and 
may have a positive impact on marine mammals by improving knowledge of 
marine mammals and the fisheries interacting with marine mammals 
through information collected from observer programs or take reduction 
teams.
    This final rule will not affect the land or water uses or natural 
resources of the coastal zone, as specified under section 307 of the 
Coastal Zone Management Act.

    Dated: December 28, 2005.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.
[FR Doc. 06-38 Filed 1-3-06; 8:45 am]
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