[Federal Register Volume 71, Number 78 (Monday, April 24, 2006)]
[Proposed Rules]
[Pages 20941-20965]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-3838]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 229

[Docket No. 060330090-6090-01, I.D. 021506B]
RIN 0648-AU19


List of Fisheries for 2006

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

ACTION: Proposed rule.

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SUMMARY: The National Marine Fisheries Service (NMFS) is publishing the 
proposed List of Fisheries (LOF) for 2006, as required by the Marine 
Mammal Protection Act (MMPA). The proposed LOF for 2006 reflects new 
information on interactions between commercial fisheries and marine 
mammals. NMFS must categorize each commercial fishery on the LOF into 
one of three categories under the MMPA based upon the level of serious 
injury and mortality of marine mammals that occurs incidental to each 
fishery. The categorization of a fishery in the LOF determines whether 
participants in that fishery are subject to certain provisions of the 
MMPA, such as registration, observer coverage, and take reduction plan 
requirements.

DATES: Comments must be received by May 24, 2006.

ADDRESSES: Send comments to Chief, Marine Mammal Conservation Division, 
Attn: List of Fisheries, Office of Protected Resources, NMFS, 1315 
East-West Highway, Silver Spring, MD 20910. Comments may also be sent 
via email to [email protected] or to the Federal eRulemaking 
portal: http://www.regulations.gov (follow instructions for submitting 
comments).
    Comments regarding the burden-hour estimates, or any other aspect 
of the collection of information requirements contained in this 
proposed rule, should be submitted in writing to the Chief, Marine 
Mammal Conservation Division, Office of Protected Resources, NMFS, 1315 
East-West Highway, Silver Spring, MD 20910 and to David Rostker, OMB, 
by e-mail at [email protected] or by fax to 202-395-7285.
    See SUPPLEMENTARY INFORMATION for a list of regional offices where 
registration information, materials, and marine mammal reporting forms 
may be obtained.

[[Page 20942]]


FOR FURTHER INFORMATION CONTACT: Kristy Long, Office of Protected 
Resources, 301-713-1401; David Gouveia, Northeast Region, 978-281-9328; 
Juan Levesque, Southeast Region, 727-570-5312; Cathy Campbell, 
Southwest Region, 562-980-4060; Brent Norberg, Northwest Region, 206-
526-6733; Bridget Mansfield, Alaska Region, 907-586-7642; Lisa Van 
Atta, Pacific Islands Region, 808-973-2937. 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:

Regional Offices

    NMFS, Northeast Region, One Blackburn Drive, Gloucester, MA 01930-
2298, Attn: Marcia Hobbs;
    NMFS, Southeast Region, 263 13th Avenue South, St. Petersburg, FL 
33701, Attn: Teletha Mincey;
    NMFS, Southwest Region, 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;
    NMFS, Alaska Region, Protected Resources, P.O. Box 22668, 709 West 
9\th\ Street, Juneau, AK 99802; or
    NMFS, Pacific Islands Region, Protected Resources Division, 1601 
Kapiolani Boulevard, Suite 1110, Honolulu, HI 96814-4700.

What is the List of Fisheries?

    Section 118 of the MMPA requires that NMFS place 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 
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 take reduction plan requirements. 
NMFS must reexamine the LOF annually, consider new information in the 
Stock Assessment Reports, other relevant sources, and the LOF, 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)(3)).

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

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

Fishery Classification Criteria

    The fishery classification criteria consist of a two-tiered, stock-
specific approach that first addresses the total impact of all 
fisheries on each marine mammal stock, and then addresses the impact of 
individual fisheries on each stock. This approach is based on 
consideration of the rate, in numbers of animals per year, of 
incidental mortalities and serious injuries of marine mammals due to 
commercial fishing operations relative to the Potential Biological 
Removal (PBR) level for each marine mammal stock. The MMPA (16 U.S.C. 
1362 (20)) defines the PBR level as the maximum number of animals, not 
including natural mortalities, that may be removed from a marine mammal 
stock while allowing that stock to reach or maintain its optimum 
sustainable population. This definition can also be found in the 
implementing regulations for section 118 at 50 CFR 229.2
    Tier 1: If the total annual mortality and serious injury across all 
fisheries that interact with a stock is less than or equal to 10 
percent of the PBR level of 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 
classification.
    Tier 2, Category I: Annual mortality and serious injury of a stock 
in a given fishery is greater than or equal to 50 percent of the PBR 
level.
    Tier 2, Category II: Annual mortality and serious injury of a stock 
in a given fishery is greater than 1 percent and less than 50 percent 
of the PBR level.
    Tier 2, Category III: Annual mortality and serious injury of a 
stock in a given fishery is less than or equal to 1 percent of the PBR 
level.
    While Tier 1 considers the cumulative fishery mortality and serious 
injury for a particular stock, Tier 2 considers fishery-specific 
mortality and serious injury for a particular stock. Additional details 
regarding how the categories were determined are provided in the 
preamble to the 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 that qualifies 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 proposed 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 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

[[Page 20943]]

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. The 
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 Regional 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).
    5. The Hawaii Swordfish, Tuna, Billfish, Mahi Mahi, Wahoo, Oceanic 
Sharks Longline/Set line Fishery.

How Do I Renew My Registration Under the MMPA?

    Regional Offices, except for the Northeast and Southeast Regions, 
annually send renewal packets to participants in Category I or II 
fisheries that have previously registered; 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 all incidental injuries or mortalities of marine mammals that 
occur during commercial fishing operations to NMFS. ``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 absence of any wound or 
other evidence of an 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 Take Reduction Plan Regulations?

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

Sources of Information Reviewed for the Proposed 2006 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 at the time of preparation for the 
information presented in the SARs, including the level of serious 
injury and mortality of marine mammals that occurs incidental to 
commercial fisheries and the PBR levels of marine mammal stocks. NMFS 
also reviewed other sources of new 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 
Caribbean. The SRGs were created by the MMPA to review the science that 
informs the SARs, and to advise NMFS on population status and trends, 
stock structure, uncertainties in the science, research needs, and 
other issues.
    The proposed LOF for 2006 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).

Summary of Changes to the Proposed LOF for 2006

    The following summarizes changes in fishery classification 
including 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 that are proposed 
for the 2006 LOF. The placement and definitions of U.S. commercial 
fisheries proposed for 2006 are identical to those provided in the LOF 
for 2005 with the exceptions provided below.

Commercial Fisheries in the Pacific Ocean: Fishery Classification

    NMFS proposes to reclassify the AK Bering Sea and Aleutian Islands 
Greenland turbot longline fishery from Category II to Category III. The 
2005 LOF reclassified this fishery based on a mortality of a killer 
whale (stock unknown) that occurred in 1999. This observed mortality 
extrapolated to an estimated mortality level of 3 animals in 1999, and 
a 5-year average of 0.6 killer whales per year for 1999-2003. In 2004, 
there were no serious injuries or mortalities of this species in the 
Greenland turbot longline fishery. When possible, fishery 
classifications are based on the most recent 5 years of data for a 
commercial fishery. Thus for the years 2000-2004, the 5-year average 
level of serious injury and mortality of killer whales incidental to 
this fishery is zero. This fishery is regularly observed by the Alaska 
Fisheries Science Center North Pacific Groundfish Observer Program and 
NMFS expects that future serious injuries and mortalities of killer 
whales would be detected by the program. Therefore, NMFS proposes to 
reclassify this fishery from Category II to Category III.
    NMFS proposes to reclassify the CA sardine purse seine fishery from 
Category III to Category II. This fishery includes all vessels using 
purse seine gear to target sardine off of the coast of California. Most 
fishing occurs off of southern California, and occurs year-round. 
Fishing within 3 nautical miles of shore is prohibited by state law. 
NMFS began placing observers onboard CA sardine purse seine vessels in 
2004 to collect information regarding the fishery's potential to 
interact with marine mammals. Observers have

[[Page 20944]]

documented entanglements of California sea lions in this fishery. In 
addition, this fishery uses similar gear and fishing techniques to 
other Category II purse seine fisheries (e.g., CA anchovy) known to 
seriously injure or kill marine mammals. Therefore, NMFS is proposing 
to reclassify this fishery to Category II based on analogy as provided 
in 50 CFR 229.2.

Addition of Fisheries to the LOF

    NMFS proposes to add the ``American Samoa longline fishery'' to the 
LOF as a Category III fishery. The fishery has 138 participants. There 
are no documented marine mammal injuries or mortalities incidental to 
this fishery. NMFS is initiating a fishery observer program in this 
fishery in early 2006 and will reevaluate this fishery's classification 
when new information becomes available.
    NMFS proposes to add the ``Western Pacific squid jig fishery'' to 
the LOF as a Category III fishery. There are no documented marine 
mammal serious injuries or mortalities incidental to this fishery. The 
fishery has 6 participants. This fishery is a Japanese-style jig 
fishery that operates at night by attracting squid with a light source. 
In the U.S. Pacific squid jigging fishery, bycatch of marine mammals is 
purported to be extremely small; if marine mammals are hooked, they 
would break the relatively weak squid lines before being brought to the 
boat. A similar fishery operates in the waters near Southern Australia. 
A draft Bycatch Action Plan was prepared for this fishery by the 
Australian Fisheries Management Authority in 2003. The report states 
that a ``global assessment of bycatch and discards across world 
fisheries found that squid jigging is a highly selective fishing 
method''. Because of the high selectivity of this fishery and a lack of 
reliable information regarding marine mammal bycatch in this fishery, 
NMFS proposes to add this fishery to the LOF in Category III.
    NMFS proposes to add the ``HI Kona crab loop net fishery'' with 42 
participants to the LOF as a Category III fishery. The fishery is 
conducted using baited loop nets above sandy substrate and is 
constantly tended by fishers. No marine mammal injuries or mortalities 
in this fishery have been documented. Therefore, NMFS proposes to add 
this fishery as a Category III fishery.
    NMFS proposes to add the ``HI offshore pen culture fishery'' to the 
LOF as a Category III fishery. The fishery has 2 participants. There 
have been no documented marine mammal serious injuries or mortalities 
incidental to this fishery.
    NMFS proposes to add the ``CA marine shellfish aquaculture 
fishery'' to the LOF as a Category III fishery. This fishery includes a 
variety of target species and gear types including: clams (cultured 
either via ground or bag culture), oysters (cultured via bag, rack and 
bag, longline, stake, bottom culture, or suspended culture), scallops 
(cultured via offshore tray-based systems), and mussels (cultured via 
suspension from rafts or surface longlines in the subtidal zone). NMFS 
does not currently have any information regarding the number of 
participants in this fishery and there have been no documented marine 
mammal serious injuries or mortalities incidental to this fishery.
    NMFS proposes to add the ``CA white seabass enhancement net pen 
fishery'' to the LOF as a Category III fishery. The fishery consists of 
a total of 13 enhancement net pens from Santa Barbara to San Diego, CA 
that are used as grow-out facilities for juvenile white seabass before 
release. The pens consist of large, supported nets or fiberglass 
raceways. The raceways are large rectangular fiberglass structures with 
open ends covered by steel mesh and steel predator barriers. The pens 
vary in depth from 4-5 ft (1.22-1.52 m) and accommodate 2,000 to 5,000 
fish. There have been two observed mortalities of the U.S. stock of 
California sea lions in this fishery. There are 13 participants in this 
fishery as each pen represents a participant.

Removal of Fisheries from the LOF

    NMFS proposes to remove the ``HI net unclassified fishery'' from 
the LOF. Since implementation of new and revised reporting forms, 
fishers report specific net gear used. Therefore, this fishery as 
currently listed on the LOF is no longer appropriate.

Fishery Name and Organizational Changes and Clarifications

    NMFS proposes to modify the name of the ``HI tuna fishery'' to the 
``HI tuna handline fishery'' to better reflect the gear type used in 
this fishery.
    NMFS proposes to modify the name of the ``HI deep sea bottomfish 
fishery'' to the ``HI Main Hawaiian Islands and Northwest Hawaiian 
Islands deep sea bottomfish fishery''.
    NMFS proposes to modify the name of the ``HI coral diving fishery'' 
to the ``HI black coral diving fishery'' to represent the target 
species in this fishery.
    NMFS proposes to modify the name of the ``HI other fishery'' to the 
``HI charter vessel fishery''.

Number of Vessels/Persons

    NMFS proposes to update the estimated number of participants in the 
Hawaii gillnet fishery from 115 to 35.
    NMFS proposes to update the estimated number of participants in the 
Hawaii opelu/akule net fishery from 16 to 12.
    NMFS proposes to update the estimated number of participants in the 
Hawaii purse seine fishery from 18 to 23.
    NMFS proposes to update the estimated number of participants in the 
Hawaii fish pond fishery to N/A as the fishery is currently not 
operating. NMFS is retaining this fishery on the LOF as there may be 
participants in the near future.
    NMFS proposes to update the estimated number of participants in the 
Hawaii throw net, cast net fishery from 47 to 14.
    NMFS proposes to update the estimated number of participants in the 
Hawaii trolling, rod and reel fishery from 1,795 to 1,321.
    NMFS proposes to update the estimated number of participants in the 
Hawaii lobster trap fishery to 0 as the fishery is currently inactive. 
However, 14 permits are available if this fishery reopened.
    NMFS proposes to update the number of participants in the Hawaii 
aku boat, pole and line fishery from 54 to 4.
    NMFS proposes to update the number of participants in the Hawaii 
inshore handline fishery from 650 to 307.
    NMFS proposes to update the number of participants in the Hawaii 
tuna handline fishery (proposed name change from the ``Hawaii tuna'' 
fishery, see Fishery Name and Organizational Changes and Clarifications 
section) from 144 to 298.
    NMFS proposes to update the number of participants in the HI main 
Hawaiian Islands and Northwest Hawaiian Islands deep sea bottomfish 
fishery (proposed name change from the ``HI deep sea bottomfish 
fishery'', see Fishery Name and Organizational Changes and 
Clarifications section) from 434 to 387.
    NMFS proposes to update the number of participants in the HI black 
coral diving fishery (proposed name change from the ``HI coral diving 
fishery'', see Fishery Name and Organizational Changes and 
Clarifications section) from 2 to 1.
    NMFS proposes to update the number of participants in the HI 
handpick fishery from 135 to 37.

[[Page 20945]]

    NMFS proposes to update the number of participants in the HI 
lobster diving fishery from 6 to 19.
    NMFS proposes to update the number of participants in the HI 
squiding, spear fishery from 267 to 91.
    NMFS proposes to update the number of participants on the AK BSAI 
Greenland turbot longline fishery from 36 to 12.

List of Species That are Incidentally Injured or Killed

    NMFS proposes to add common dolphins to the list of marine mammal 
species and stocks incidentally injured or killed by the California 
squid purse seine fishery. An observer documented a mortality of a 
common dolphin (stock unknown) in 2005.
    NMFS proposes to add the Hawaiian stocks of Blaineville's beaked 
whales and Pantropical spotted dolphins to the list of marine mammal 
species and stocks incidentally injured or killed by the Hawaii 
swordfish, tuna, billfish, mahi mahi, wahoo, and oceanic sharks 
longline/set line fishery. Serious injuries and mortalities of these 
stocks incidental to this fishery were documented by fisheries 
observers.
    NMFS proposes to delete the Hawaiian stock of bottlenose dolphins 
from the list of marine mammal species and stocks incidentally injured 
or killed by the Hawaii inshore handline fishery as no interactions 
have been documented between this stock and the fishery within the last 
5 years.
    NMFS proposes to delete the Hawaiian stocks of bottlenose dolphins 
and rough tooth dolphins from the list of marine mammal species and 
stocks incidentally injured or killed by the Hawaii tuna handline 
fishery (proposed name change from ``Hawaii tuna fishery'', see Fishery 
Name and Organizational Changes and Clarifications section) as no 
interactions have been documented between these stocks and this fishery 
within the last 5 years.
    NMFS proposes to correct some errors in the list of marine mammal 
species and stocks incidentally injured or killed incidental to the CA/
OR thresher shark/swordfish drift gillnet fishery. Specifically, NMFS 
proposes to change the CA/OR/WA Pacific coast stock to the Eastern 
North Pacific offshore stock of killer whales and the CA/OR/WA stock to 
the CA stock of long-beaked common dolphins. Additionally, NMFS 
proposes to combine the Northern and Southern species of Pacific white-
sided dolphins to reflect how these species are currently characterized 
in the SARs.
    NMFS proposes to correct some errors in the list of marine mammal 
species and stocks incidentally injured or killed incidental to the WA, 
OR, CA groundfish trawl fishery. Specifically, NMFS proposes to change 
the Central North Pacific stock to the CA/OR/WA stock of Pacific white-
sided dolphins and the Western stock to the Eastern stock of Steller 
sea lions.

Alaska Fisheries

    The 2004 LOF revised the Federally managed fisheries in Alaska into 
more discrete fisheries according to area, gear, and target species in 
order to more accurately reflect the fisheries as managed under Federal 
Fishery Management Plans. At that time, the marine mammal stocks 
associated with the newly delineated fisheries in the LOF were not 
revised accordingly. NMFS proposes to include the following marine 
mammal stocks that have had documented injuries or mortalities in the 
following Federal fisheries as listed in this proposed rule.
    NMFS proposes to add the Eastern North Pacific stock of Northern 
fur seals, the Bering Sea stocks of harbor porpoise and harbor seals, 
and the Alaska stocks of bearded seals, spotted seals, and walruses to 
the list of marine mammal species and stocks injured or killed 
incidental to the AK BSAI flatfish trawl fishery.
    NMFS proposes to add the Bering Sea stock of harbor seals and the 
Alaska stocks of Dall's porpoise, minke whales, ribbon seals, and 
spotted seals to the list of marine mammal species and stocks injured 
or killed incidental to the AK BSAI pollock trawl fishery.
    NMFS proposes to add the Alaska stock of ribbon seals and the 
Western U.S. stock of Steller sea lions to the list of marine mammal 
species and stocks injured or killed incidental to the AK BSAI Pacific 
cod longline fishery.
    NMFS proposes to add the Eastern U.S. stock of Steller sea lions 
and the North Pacific stock of sperm whales to the list of marine 
mammal species and stocks injured or killed incidental to the AK GOA 
sablefish longline fishery.
    NMFS proposes to add the Western U.S. stock of Steller sea lions 
and the Bering Sea stock of harbor seals to the list of marine mammal 
species and stocks injured or killed incidental to the AK BSAI Pacific 
cod trawl fishery.
    NMFS proposes to add the Western U.S. stock of Steller sea lions to 
the list of marine mammal species and stocks injured or killed 
incidental to the AK GOA Pacific cod trawl fishery.
    NMFS proposes to add the Western U.S. stock of Steller sea lions, 
the Northeast Pacific stock of fin whales, and the North Pacific stock 
of Northern elephant seals to the list of marine mammal species and 
stocks injured or killed incidental to the AK GOA pollock trawl 
fishery.
    NMFS proposes to add the GOA stock of harbor seals to the list of 
marine mammal species and stocks injured or killed incidental to the AK 
GOA Pacific cod pot fishery.
    NMFS proposes to add the Eastern and Western U.S. stocks of Steller 
sea lions and an unknown stock of killer whales to the list of marine 
mammal species and stocks injured or killed incidental to the AK, WA, 
OR, CA commercial passenger fishing vessel fishery.
    NMFS proposes to add the Central North Pacific (Southeast AK) stock 
of humpback whales to the list of marine mammal species and stocks 
injured or killed incidental to the AK Southeast Alaska crab pot 
fishery.
    NMFS proposes to add the Central North Pacific (Southeast AK) stock 
of humpback whales to the list of marine mammal species and stocks 
injured or killed incidental to the AK Southeast Alaska shrimp pot 
fishery.
    NMFS proposes to add the Central North Pacific (Southeast AK) stock 
of humpback whales to the list of marine mammal species and stocks 
injured or killed incidental to the AK Yakutat salmon set gillnet 
fishery.
    NMFS proposes to add the Western U.S. stock of Steller sea lions to 
the list of marine mammal species and stocks injured or killed 
incidental to the AK Kodiak salmon set gillnet fishery.
    NMFS proposes to delete the Eastern North Pacific transient stock 
of killer whales from the list of marine mammals species and stocks 
injured or killed in the Alaska BSAI flatfish trawl fishery. Because 
NMFS did not have information regarding which stock was injured or 
killed incidental to this fishery, both the Eastern North Pacific 
transient and resident stocks of killer whales were listed in the 2005 
LOF as interacting with this fishery. However, since publication of the 
2005 LOF, NMFS has obtained the results of genetic analysis on the 
biopsy samples taken from killer whales seriously injured or killed in 
this fishery. The results indicate that the fishery interacted with the 
resident stock of Eastern North Pacific killer whales. Therefore, NMFS 
proposes to remove the stock (transient) that did not interact with 
this fishery.
    NMFS proposes to delete the Eastern North Pacific resident stock of 
killer whales from the list of marine mammals species and stocks 
incidentally injured or killed in the Alaska BSAI pollock trawl 
fishery. Because NMFS did not have information regarding which stock

[[Page 20946]]

was injured or killed incidental to this fishery, both the Eastern 
North Pacific transient and resident stocks of killer whales were 
listed in the 2005 LOF as interacting with this fishery. However, since 
publication of the 2005 LOF, NMFS has obtained the results of genetic 
analysis on the biopsy samples taken from killer whales seriously 
injured or killed in this fishery. These results indicate that the 
fishery interacted with the transient stock of Eastern North Pacific 
killer whales. Therefore, NMFS proposes to remove the stock (resident) 
that did not interact with this fishery.

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

    NMFS proposes to reclassify the Chesapeake Bay inshore gillnet 
fishery from Category III to Category II based on its potential to 
seriously injure or kill the Western North Atlantic stock of bottlenose 
dolphins. Bottlenose dolphins are known to use the entire Chesapeake 
Bay, including waters landward of the Chesapeake Bay Bridge-Tunnel. 
Since the Chesapeake Bay inshore gillnet fishery is currently a 
Category III fishery, observer coverage is not required; therefore, no 
marine mammal interactions with this fishery have been documented. 
However, serious injuries and mortalities of the Western North Atlantic 
stock of bottlenose dolphins have been documented in similar gillnet 
fisheries in the Mid-Atlantic, such as the Mid-Atlantic gillnet fishery 
and the North Carolina inshore gillnet fishery, both of which are 
currently Category II fisheries. Reclassifying the Chesapeake Bay 
inshore gillnet fishery to Category II will allow NMFS to characterize 
marine mammal interactions with this fishery through the observer 
program. Based on the potential overlap in distribution of the Western 
North Atlantic stock of bottlenose dolphins and this fishery, in 
addition to documented serious injuries and mortalities in similar 
gillnet gear, NMFS proposes to reclassify this fishery to Category II 
based on analogy as provided in 50 CFR 229.2.
    NMFS proposes to reclassify the Mid-Atlantic menhaden purse seine 
fishery from Category III to Category II based on its potential to 
seriously injure or kill the Western North Atlantic stock of bottlenose 
dolphins. Since this fishery is currently a Category III fishery, 
observer coverage is not required; therefore, no marine mammal 
interactions with this fishery have been documented. However, according 
to the most recent stock assessment of the Western North Atlantic stock 
of bottlenose dolphins, menhaden purse seiners have reported annual 
interactions of one to five bottlenose dolphins. In addition, the Gulf 
of Mexico menhaden purse seine fishery is classified as a Category II 
fishery based on documented bycatch of several bottlenose dolphin 
stocks, including the Northern, Eastern, and Western Gulf of Mexico 
coastal stocks, and the Gulf of Mexico bay, sound, and estuarine stock. 
Elevating this fishery to Category II will allow NMFS to characterize 
marine mammal interactions with this fishery through the observer 
program. Based on documented bycatch of bottlenose dolphins in purse 
seine gear, NMFS proposes to reclassify this fishery in Category II.

Addition of Fisheries to the LOF

    NMFS proposes to add the ``Southeast Atlantic inshore gillnet 
fishery'' to the LOF as a Category III fishery. This fishery typically 
targets shad and river herring in inshore rivers and bays (inside the 
COLREGS lines). Despite the lack of adequate observer coverage in this 
fishery, NMFS has no evidence to suggest that there is more than a 
remote likelihood of marine mammal serious injuries or mortalities 
incidental to this fishery. The number of participants in this fishery 
is unknown.

List of Species That are Incidentally Injured or Killed

    NMFS proposes to remove the Western North Atlantic stock of fin 
whales from the list of marine mammal species and stocks incidentally 
injured or killed incidental to the Mid-Atlantic gillnet fishery. NMFS 
added this stock in the 2005 LOF and has since confirmed that the NMFS 
observer program does not have a documented interaction between this 
stock and this fishery.
    NMFS proposes to add several bottlenose dolphin stocks to the list 
of marine mammal species and stocks incidentally injured or killed 
incidental to the Atlantic Ocean, Gulf of Mexico, Caribbean commercial 
passenger fishing vessel fishery based on anecdotal reports of dolphins 
interacting with hook and line gear in both the Atlantic and Gulf of 
Mexico. These bottlenose dolphin stocks include the Western North 
Atlantic coastal, Eastern Gulf of Mexico coastal, Northern Gulf of 
Mexico coastal, and Western Gulf of Mexico coastal.
    NMFS proposes to remove the Western North Atlantic offshore stock 
of bottlenose dolphins and the Western North Atlantic stock of striped 
dolphins from the list of marine mammal species and stocks injured or 
killed incidental to the Northeast bottom trawl fishery because NMFS 
has not documented any serious injuries or mortalities of these stocks 
incidental to this fishery in the past 5 years.

Fishery Name and Organizational Changes and Clarifications

Southeast Atlantic Gillnet Fishery

    NMFS proposes to expand the list of target species associated with 
the ``Southeast Atlantic gillnet fishery''. In the 2001 LOF (66 FR 
42780, August 15, 2001), NMFS renamed all southeastern Atlantic gillnet 
fisheries (except the Southeastern U.S. Atlantic shark gillnet fishery) 
as the ``Southeast Atlantic gillnet fishery'', and elevated this 
fishery from Category III to Category II. This fishery designation 
included fisheries identified in previous LOFs as the ``Florida East 
Coast pelagics king and Spanish mackerel gillnet fishery'' and the 
``Southeast U.S. Atlantic coastal shad, sturgeon gillnet fishery''. In 
2006, NMFS received information from the Florida Fish and Wildlife 
Commission's trip ticket database that landings from 2002-2005 using 
gillnet gear on the east coast of Florida also include landings of 
whiting, bluefish, pompano, spot, croaker, little tunny, bonita, jack 
crevalle, and cobia, in addition to king and Spanish mackerel and shad. 
These species are targeted using both pelagic and demersal gillnet 
gear, each of which poses similar risks of entanglement to marine 
mammals. Therefore, NMFS proposes to expand the list of fish species 
associated with the ``Southeast Atlantic gillnet fishery'' to include 
the following target species: king mackerel, Spanish mackerel, whiting, 
bluefish, pompano, spot, croaker, little tunny, bonita, jack crevalle, 
and cobia. Atlantic sturgeon are listed as a species of concern under 
the Endangered Species Act and are also managed under a fishery 
management plan; a moratorium on possession and harvest of this species 
currently exists throughout the U.S. East Coast. Additionally, fishing 
for shad in ocean waters is prohibited by Southeast coastal states and 
is therefore no longer included as a target species of the Southeast 
Atlantic gillnet fishery.

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

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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 and stocks that are 
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 injury or mortality in a 
given fishery, but also includes species or stocks for which there are 
anecdotal 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. NMFS has designated those stocks that are responsible for a 
current fishery's classification by a ``\1\''.
    There are several fisheries classified 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 a 
``Category II fishery'' in 50 CFR 229.2. NMFS has designated those 
fisheries originally listed by analogy in Tables 1 and 2 by a ``2'' 
after that fishery's name.
    Table 1 lists commercial fisheries in the Pacific Ocean (including 
Alaska); Table 2 lists commercial fisheries in the Atlantic Ocean, Gulf 
of Mexico, and Caribbean.
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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 proposed rule would not have a significant 
economic impact on a substantial number of small entities. 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 41,730 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 500 fishers register directly with 
NMFS under the MMPA authorization program.
    Though this proposed rule would affect approximately 500 small 
entities, the $25 registration fee, with respect to anticipated 
revenues, is not considered a significant economic impact. If a vessel 
is requested to carry an observer, fishers will not incur any economic 
costs associated with carrying that observer. As a result of this 
certification, an initial regulatory flexibility analysis was not 
prepared. In the event that reclassification of a fishery to Category I 
or II results in a take reduction plan, economic analyses of the 
effects of that plan will be summarized in subsequent rulemaking 
actions. Further, if a vessel is requested to carry an observer, 
fishers will not incur any economic costs associated with carrying that 
observer.
    This proposed rule contains collection-of-information requirements 
subject to the Paperwork Reduction Act. The collection of information 
for the registration of fishers under the MMPA has been approved by the 
Office of Management and Budget (OMB) under OMB control number 0648-
0293 (0.15 hours per report for new registrants and 0.09 hours per 
report for renewals). The requirement for reporting marine mammal 
injuries or 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 collections 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 proposed rule has been determined to be not significant for 
the purposes of Executive Order 12866.
    An environmental assessment (EA) was prepared under the National 
Environmental Policy Act (NEPA) for regulations to implement section 
118 of the MMPA (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 proposed rule would not make any significant change 
in the management of reclassified fisheries, and therefore, this 
proposed rule is not expected to change the analysis or conclusion of 
the 2005 EA. If NMFS takes a management action, for example, through 
the development of a Take Reduction Plan (TRP), NMFS will first prepare 
an environmental document, as required under NEPA, specific to that 
action.
    This proposed rule would not affect species listed as threatened or 
endangered under the Endangered Species Act (ESA) or their associated 
critical habitat. The impacts of numerous fisheries have been analyzed 
in various biological opinions, and this proposed rule will not affect 
the conclusions of those opinions. The classification of fisheries on 
the LOF is not considered to be a management action that would 
adversely affect threatened or endangered species. If NMFS takes a 
management action, for example, through the development of a TRP, NMFS 
would conduct consultation under ESA section 7 for that action.
    This proposed rule would have no adverse impacts on marine mammals 
and may have a positive impact on marine mammals by improving knowledge 
of marine mammals and the fisheries interacting with marine mammals 
through information collected from observer programs or take reduction 
teams.
    This proposed rule would not affect the land or water uses or 
natural resources of the coastal zone, as specified under section 307 
of the Coastal Zone Management Act.

    Dated: April 18, 2006.
John Oliver,
Deputy Assistant Administrator for Operations, national Marine 
Fisheries Service.
[FR Doc. 06-3838 Filed 4-21-06; 8:45 am]
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