[Federal Register Volume 73, Number 231 (Monday, December 1, 2008)]
[Rules and Regulations]
[Pages 73032-73076]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-28378]



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Part V





Department of Commerce





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National Oceanic and Atmospheric Administration



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50 CFR Part 229



List of Fisheries for 2009; Final Rule

  Federal Register / Vol. 73, No. 231 / Monday, December 1, 2008 / 
Rules and Regulations  

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 229

[Docket No. 080204115-8832-02]
RIN 0648-AW48


List of Fisheries for 2009

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) publishes its 
final List of Fisheries (LOF) for 2009, as required by the Marine 
Mammal Protection Act (MMPA). The final LOF for 2009 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: This final rule is effective on January 1, 2009.

ADDRESSES: See SUPPLEMENTARY INFORMATION for a listing of all Regional 
Offices.
    Comments regarding the burden-hour estimates, or any other aspect 
of the collection of information requirements contained in this final 
rule, should be submitted in writing to Chief, Marine Mammal and Sea 
Turtle Conservation Division, Office of Protected Resources, NMFS, 1315 
East-West Highway, Silver Spring, MD 20910, or to David Rostker, OMB, 
by fax to 202-395-7285 or by e-mail to [email protected].

FOR FURTHER INFORMATION CONTACT: Melissa Andersen, Office of Protected 
Resources, 301-713-2322; David Gouveia, Northeast Region, 978-281-9328; 
Laura Engleby, Southeast Region, 727-824-5312; Elizabeth Petras, 
Southwest Region, 562-980-3238; Brent Norberg, Northwest Region, 206-
526-6733; Bridget Mansfield, Alaska Region, 907-586-7642; Lisa Van 
Atta, Pacific Islands Region, 808-944-2257. Individuals who use a 
telecommunications device for the hearing impaired may call the Federal 
Information Relay Service at 1-800-877-8339 between 8 a.m. and 4 p.m. 
Eastern time, Monday through Friday, excluding Federal holidays.

SUPPLEMENTARY INFORMATION: 

Availability of Published Materials

    Information regarding the LOF and the Marine Mammal Authorization 
Program, including registration procedures and forms, current and past 
LOFs, observer requirements, and marine mammal injury/mortality 
reporting forms and submittal procedures, may be obtained at: http://www.nmfs.noaa.gov/pr/interactions/lof/, or from any NMFS Regional 
Office at the addresses listed below.

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, 501 W. Ocean Blvd., Suite 4200, Long Beach, 
CA 90802-4213, Attn: Lyle Enriquez;
    NMFS, Northwest Region, 7600 Sand Point Way, NE., Seattle, WA 
98115, Attn: Permits Office;
    NMFS, Alaska Region, Protected Resources, P.O. Box 22668, 709 West 
9th Street, Juneau, AK 99802, Attn: Bridget Mansfield; or
    NMFS, Pacific Islands Region, Protected Resources, 1601 Kapiolani 
Boulevard, Suite 1100, Honolulu, HI 96814-4700, Attn: Lisa Van Atta.

What Is the List of Fisheries?

    Section 118 of the MMPA requires NMFS to place all U.S. commercial 
fisheries into one of three categories based on the level of incidental 
serious injury and mortality of marine mammals occurring in each 
fishery (16 U.S.C. 1387(c)(1)). The 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, considering new information in the Marine 
Mammal Stock Assessment Reports (SAR) and other relevant sources, and 
publish in the Federal Register any necessary changes to the LOF after 
notice and opportunity for public comment (16 U.S.C. 1387 (c)(1)(C)).

How Does NMFS Determine in Which Category a Fishery Is Placed?

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

Fishery Classification Criteria

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

[[Page 73033]]

LOF at its highest level of classification (e.g., a fishery qualifying 
for Category III for one marine mammal stock and for Category II for 
another marine mammal stock will be listed under Category II).

Other Criteria That May Be Considered

    In the absence of reliable information indicating the frequency of 
incidental mortality and serious injury of marine mammals by a 
commercial fishery, NMFS will determine whether the incidental serious 
injury of mortality is ``occasional'' by evaluating other factors such 
as fishing techniques, gear used, methods used to deter marine mammals, 
target species, seasons and areas fished, qualitative data from 
logbooks or fisher reports, stranding data, and the species and 
distribution of marine mammals in the area, or at the discretion of the 
Assistant Administrator for Fisheries (50 CFR 229.2). Further, eligible 
commercial fisheries not specifically identified on the LOF are deemed 
to be Category II fisheries until the next LOF is published.

How Does NMFS Determine Which Species or Stocks Are Included as 
Incidentally Killed or Seriously Injured in a Fishery?

    The LOF includes a list of marine mammal species or stocks 
incidentally killed or seriously injured in each commercial fishery, 
based on the level of mortality or serious injury in each fishery 
relative to the PBR level for each stock. To determine which species or 
stocks are included as incidentally killed or seriously injured in a 
fishery, NMFS annually reviews the information presented in the current 
SARs. The SARs are based upon the best available scientific information 
and provide the most current and inclusive information on each stock's 
PBR level and level of mortality or serious injury incidental to 
commercial fishing operations. NMFS also reviews other sources of new 
information, including observer data, stranding data, and fisher self-
reports.
    In the absence of reliable information on the level of mortality or 
serious injury of a marine mammal stock, or insufficient observer data, 
NMFS will determine whether a species or stock should be added to, or 
deleted from, the list by considering other factors such as: changes in 
gear used, increases or decreases in fishing effort, increases or 
decreases in the level of observer coverage, and/or changes in fishery 
management that are expected to lead to decreases in interactions with 
a given marine mammal stock (such as a fishery management plan or a 
take reduction plan). NMFS will provide case-specific justification in 
the LOF for changes to the list of species or stocks incidentally 
killed or seriously injured.

How Does NMFS Determine the Level of Observer Coverage in a Fishery?

    Data obtained from observers and the level of observer coverage are 
important tools in estimating the level of marine mammal mortality and 
serious injury in commercial fishing operations. The best available 
information on the level of observer coverage, and the spatial and 
temporal distribution of observed marine mammal interactions, is 
presented in the SARs. Starting with the 2005 SARs, each SAR includes 
an appendix with detailed descriptions of each Category I and II 
fishery in the LOF, including observer coverage. The SARs generally do 
not provide detailed information on observer coverage in Category III 
fisheries because, under the MMPA, Category III fisheries are not 
required to accommodate observers aboard vessels due to the remote 
likelihood of mortality and serious injury of marine mammals. 
Information presented in the SARs' appendices includes: level of 
observer coverage, target species, levels of fishing effort, spatial 
and temporal distribution of fishing effort, characteristics of fishing 
gear and operations, management and regulations, and interactions with 
marine mammals. Copies of the SARs are available on the NMFS Office of 
Protected Resource's Web site at: http://www.nmfs.noaa.gov/pr/sars/. 
Additional information on observer programs in commercial fisheries can 
be found on the NMFS National Observer Program's Web site: http://www.st.nmfs.gov/st4/nop/.

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

    This final rule includes three tables that list all U.S. commercial 
fisheries by LOF Category. Table 1 lists all of the fisheries in the 
Pacific Ocean (including Alaska); Table 2 lists all of the fisheries in 
the Atlantic Ocean, Gulf of Mexico, and Caribbean; Table 3 lists all 
U.S.-authorized fisheries on the high seas. A fourth table, Table 4, 
lists all fisheries managed under applicable take reduction plans or 
teams.

Are High Seas Fisheries Included on the LOF?

    Beginning with the 2009 LOF, NMFS includes high seas fisheries in 
Table 3 of the LOF, along with the number of valid High Sea Fishing 
Compliance Act (HSFCA) permits in each fishery. Many fisheries operate 
in both U.S. waters and on the high seas, creating some overlap between 
the fisheries listed in Tables 1 and 2 and those in Table 3. In these 
cases, the high seas component of the fishery is not a separate 
fishery, but an extension of a fishery operating within U.S. waters 
(listed in Table 1 or 2). NMFS designates those fisheries in Tables 1, 
2, and 3 by an ``*'' after the fishery's name. The number of HSFCA 
permits listed in Table 3 for the high seas components of these 
fisheries operating in U.S. waters do not necessarily represent 
additional fishers that are not accounted for in Tables 1 and 2. Many 
fishers holding these permits also fish within U.S. waters and are 
included in the number of vessels and participants operating within 
those fisheries in Table 1 and 2.

How Does NMFS Authorize U.S. Vessels To Participate in High Seas 
Fisheries?

    NMFS issues high seas fishing permits, valid for five years, under 
the HSFCA. To fish under a high seas permit, a fisher must also possess 
any required permits issued under the Magnuson-Stevens Fishery 
Conservation and Management Act (MSA) (with the exception of the South 
Pacific Tuna Treaty fisheries, the Pacific Tuna Fisheries (Eastern 
Tropical Pacific purse seine vessels) and the South Pacific Albacore 
Troll fishery), and any permits issued by NMFS to fish within the 
convention area of a Regional Fishery Management Organization. Under 
the current permitting system, however, a fisher can obtain a high seas 
permit prior to obtaining any necessary MSA permits. Similarly, a 
fisher may have a HSFCA permit that was issued prior to changes in 
permits issued under the MSA. Therefore, some fishers possess valid 
HSFCA permits without the ability to fish under the permit. For this 
reason, the number of HSFCA permits displayed in Table 3 of this final 
rule is likely higher than the actual fishing effort by U.S. vessels on 
the high seas.
    As of 2004, NMFS issues HSFCA permits only for high seas fisheries 
analyzed in accordance with the National Environmental Policy Act 
(NEPA) and the Endangered Species Act (ESA). There are currently seven 
U.S.-authorized high seas fisheries: Atlantic Highly Migratory Species 
Fisheries, Pacific Highly Migratory Species Fisheries, Western Pacific 
Pelagic Fisheries, South Pacific Albacore Troll Fishing, Pacific Tuna 
Fisheries, South Pacific Tuna Fisheries, and Antarctic Marine Living 
Resources. The LOF does not include the ``Pacific (Eastern Tropical) 
Tuna Fisheries'' because these fisheries are managed under Title III of 
the MMPA, separate from those fisheries subject to the LOF under 
section 118. Permits obtained prior to 2004 for

[[Page 73034]]

fisheries that are no longer authorized by the HSFCA, but for which the 
5-year permit is still valid, are included on the LOF as 
``unspecified.'' The ``unspecified'' fisheries will be removed from the 
LOF once those permits have expired, and the permit holder is required 
to renew the permit under one of the seven authorized fisheries.
    The authorized high seas fisheries are broad in scope and encompass 
multiple specific fisheries identified by gear type. Therefore, the 
seven U.S.-authorized high seas fisheries, exclusive of the ``Pacific 
(Eastern Tropical) Tuna Fisheries,'' are subdivided on the LOF based on 
gear type (e.g., trawl, longline, purse seine, gillnet, troll, etc.), 
as listed on each fisher's permit application, to provide more detail 
on composition of effort within these fisheries.

How Does NMFS Categorize High Seas Fisheries on the LOF?

    As discussed in the previous sections of this preamble, commercial 
fisheries operating within U.S. waters are categorized on the LOF based 
on the level of mortality and serious injury of marine mammal stocks 
incidental to commercial fishing as related to the stock's PBR level. 
PBR levels are calculated based on the stock's abundance using data 
presented in the SARs. Section 117 of the MMPA (16 U.S.C. 1386) 
requires NMFS to prepare SARs for marine mammal stocks occurring ``in 
waters under the jurisdiction of the United States.'' NMFS does not 
develop SARs or calculate PBR levels for marine mammal stocks on the 
high seas; therefore, NMFS does not possess the same information to 
categorize high seas fisheries as is used to categorize fisheries 
operating within U.S. waters.
    For this reason, NMFS categorizes the majority of high seas 
fisheries on the LOF as Category II. As discussed previously in this 
preamble, Category II is the appropriate category for commercial 
fisheries not currently on the LOF (e.g., new fisheries) and for which 
NMFS does not have adequate information to indicate the frequency of 
incidental mortality and serious injury. Classifying a fishery in 
Category II allows NMFS to place observers on vessels in that fishery, 
providing NMFS the opportunity to obtain information needed to assess 
the frequency of bycatch in that fishery. For fisheries that operate 
both within U.S. waters and on the high seas, the high seas component 
of the fishery is classified according to the fishery's status in U.S. 
waters because it is not a separate fishery, but an extension of the 
fishery. Therefore, for a Category I or Category III fishery operating 
within U.S. waters, the high seas component would also be classified as 
Category I or Category III, accordingly. NMFS will continue to gather 
available information on the authorized high seas fisheries and 
reclassify fisheries in Table 3, if necessary, as more information 
becomes available.

How Does NMFS Determine Which Species or Stocks To Include as 
Incidentally Killed or Seriously Injured in a High Seas Fishery?

    All serious injury and mortality of marine mammals incidental to 
commercial fishing operations, both in U.S. waters and on the high 
seas, must be reported to NMFS. High seas fishers are provided with 
Marine Mammal Take Reporting Forms to record such incidents. (Very few 
marine mammal takes by U.S. vessels participating in high seas 
fisheries, however, have been reported on these forms to date.) 
Observer programs for fisheries operating within U.S. waters also 
collect data on the high seas if the vessel should cross into high seas 
waters. Additionally, some fisheries that operate exclusively on the 
high seas have formal observer programs that provide data on 
interactions. In these cases, the MSA, NEPA, or ESA documents 
supporting the authorization of the seven U.S.-authorized high seas 
fisheries review observer documented interactions and list the marine 
mammal species taken in those fisheries. This information is used to 
identify marine mammals killed or injured in these fisheries in Table 3 
on the LOF. For other fisheries without observer data, the MSA, NEPA, 
and ESA documents supporting the authorization of the seven U.S.-
authorized high seas fisheries present information on marine mammal 
interactions from anecdotal and other reports, which do not always 
specify the marine mammal species involved in the interactions. 
Therefore, marine mammal species killed or injured in the high seas 
fisheries without observer data that are listed in Table 3 are 
designated as ``undetermined'' until additional information on marine 
mammal populations and fishery interactions on the high seas becomes 
available.
    For high seas fisheries that are extensions of fisheries operating 
within U.S. waters, as discussed above, Table 3 lists the same marine 
mammal species killed or injured in the high seas components of 
fisheries (excluding coastal species that would not be found on the 
high seas) as those killed or injured by the component of the fishery 
operating within U.S. waters (Tables 1 and 2). NMFS assumes that these 
vessels pose the same risk to the species on both sides of the 
Exclusive Economic Zone (EEZ) boundary. NMFS will add and delete 
species from the LOF as additional information becomes available.

Am I Required To Register Under the MMPA?

    Owners of vessels or gear engaging in a Category I or II fishery 
are required under the MMPA (16 U.S.C. 1387(c)(2)), as described in 50 
CFR 229.4, to register with NMFS and obtain a marine mammal 
authorization to lawfully take a marine mammal incidental to commercial 
fishing. Owners of vessels or gear engaged in a Category III fishery 
are not required to register with NMFS or obtain a marine mammal 
authorization.

How Do I Register?

    NMFS has integrated the MMPA registration process, the Marine 
Mammal Authorization Program (MMAP), with existing state and Federal 
fishery license, registration, or permit systems for Category I and II 
fisheries on the LOF. Participants in these fisheries are automatically 
registered under the MMAP, and NMFS will issue vessel or gear owners an 
authorization certificate. Participants in these fisheries are not 
required to submit registration or renewal materials directly under the 
MMAP. The authorization certificate, or a copy, must be on board the 
vessel while it is operating in a Category I or II fishery, or for non-
vessel fisheries, in the possession of the person in charge of the 
fishing operation (50 CFR 229.4(e)). Although efforts are made to limit 
the issuance of authorization certificates to only those vessel or gear 
owners that participate in Category I or II fisheries, not all state 
and Federal permit systems distinguish between fisheries as classified 
by the LOF. Therefore, some vessel or gear owners in Category III 
fisheries may receive authorization certificates even though they are 
not required for Category III fisheries. Individuals fishing in 
Category I and II fisheries for which no state or Federal permit is 
required must register with NMFS by contacting their appropriate 
Regional Office (see ADDRESSES).

How Do I Receive My Authorization Certificate and Injury/Mortality 
Reporting Forms?

    All vessel or gear owners that participate in Pacific Islands, 
Northwest, or Alaska regional fisheries will receive their 
authorization certificates and/or injury/mortality

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reporting forms via U.S. mail, or with their State or Federal license 
at the time of renewal. Vessel or gear owners participating in 
Southwest regional fisheries or the Northeast and Southeast Regional 
Integrated Registration Program will receive their authorization 
certificates as follows:
    1. Northeast Region vessel or gear owners participating in Category 
I or II fisheries for which a state or Federal permit is required may 
receive their authorization certificate and/or injury/mortality 
reporting form by contacting the Northeast Regional Office at 978-281-
9300 x6505 or by visiting the Northeast Regional Office Web site 
(http://www.nero.noaa.gov/prot_res/mmap/certificate.html) and 
following instructions for printing the necessary documents.
    2. Southeast Region vessel or gear owners participating in Category 
I or II fisheries for which a Federal permit is required, as well as 
fisheries permitted by the states of North Carolina, South Carolina, 
Georgia, Florida, Alabama, Mississippi, Louisiana, and Texas may 
receive their authorization certificate and/or injury/mortality 
reporting form by contacting the Southeast Regional Office at 727-824-
5312 or by visiting the Southeast Regional Office Web site (http://sero.nmfs.noaa.gov/pr/pr.htm) and following instructions for printing 
the necessary documents.
    3. Southwest Region vessel or gear owners participating in Category 
I or II fisheries listed in the final 2008 LOF (72 FR 66048, published 
November 27, 2007) will receive their authorization certificate and/or 
injury/mortality reporting form as described above in the integrated 
MMPA registration process. A number of California state fisheries are 
being re-categorized as Category II fisheries in this final rule, and 
NMFS is working with the State of California to streamline the process 
of registering vessel or gear owners participating in these fisheries 
and issuing authorization certificates, as required under MMPA section 
118. Fishermen may contact the Southwest Regional Office at 562-980-
4025 for more information. The Southwest Region plans to fully 
integrate all California State Category I and II fisheries for the 
2009/2010 fishing season.

How Do I Renew My Registration Under the MMPA?

    Vessel or gear owners that participate in Pacific Islands, 
Southwest, or Alaska regional fisheries are automatically renewed and 
should receive an authorization certificate by January 1 of each new 
year. Vessel or gear owners in Washington and Oregon fisheries receive 
authorization with each renewed state fishing license, the timing of 
which varies based on target species. Vessel or gear owners who 
participate in these regions and have not received authorization 
certificates by January 1 or with renewed fishing licenses must contact 
the appropriate NMFS Regional Office (see ADDRESSES).
    Vessel or gear owners participating in Southeast or Northeast 
regional fisheries may receive their authorization certificates by 
calling the relevant NMFS Regional Office or visiting the relevant NMFS 
Regional Office Web site (see How Do I Receive My Authorization 
Certificate and Injury/Mortality Reporting Forms).

Am I Required To Submit Reports When I Injure or Kill a Marine Mammal 
During the Course of Commercial Fishing Operations?

    In accordance with the MMPA (16 U.S.C. 1387(e)) and 50 CFR 229.6, 
any vessel owner or operator, or gear owner or operator (in the case of 
non-vessel fisheries), participating in a Category I, II, or III 
fishery must report to NMFS all incidental injuries and mortalities of 
marine mammals that occur during commercial fishing operations. 
``Injury'' is defined in 50 CFR 229.2 as a wound or other physical 
harm. In addition, any animal that ingests fishing gear or any animal 
that is released with fishing gear entangling, trailing, or perforating 
any part of the body is considered injured, regardless of the presence 
of any wound or other evidence of injury, and must be reported. Injury/
mortality reporting forms and instructions for submitting forms to NMFS 
can be downloaded from: http://www.nmfs.noaa.gov/pr/pdfs/interactions/mmap_reporting_form.pdf. Reporting requirements and procedures can be 
found in 50 CFR 229.6.

Am I Required To Take an Observer Aboard My Vessel?

    Fishers participating in a Category I or II fishery are required to 
accommodate an observer aboard vessel(s) upon request. MMPA Section 118 
states that an observer will not be placed on a vessel if the 
facilities for quartering an observer or performing observer functions 
are inadequate or unsafe, thereby exempting vessels too small to 
accommodate an observer from this requirement. 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. Table 4 in this final 
rule provides a list of fisheries affected by take reduction teams and 
plans. Take reduction plan regulations can be found at 50 CFR 229.30-
35.

Sources of Information Reviewed for the Final 2009 LOF

    NMFS reviewed the marine mammal incidental serious injury and 
mortality information presented in the SARs for all observed fisheries 
to determine whether changes in fishery classification were warranted. 
The SARs are based on the best scientific information available at the 
time of preparation, including the level of serious injury and 
mortality of marine mammals that occurs incidental to commercial 
fisheries and the PBR levels of marine mammal stocks. The information 
contained in the SARs is reviewed by regional Scientific Review Groups 
(SRGs) representing Alaska, the Pacific (including Hawaii), and the 
U.S. Atlantic, Gulf of Mexico, and Caribbean. The SRGs were created by 
the MMPA to review the science that informs the SARs, and to advise 
NMFS on marine mammal population status, trends, and stock structure, 
uncertainties in the science, research needs, and other issues.
    NMFS also reviewed other sources of new information, including 
marine mammal stranding data, observer program data, fisher self-
reports, fishery management plans, and ESA documents.
    The final LOF for 2009 was based, among other things, on 
information provided in the NEPA and ESA documents analyzing authorized 
high seas fisheries, and the final SARs for 1996 (63 FR 60, January 2, 
1998), 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), the final SARs for 2005 (71 FR 26340, May 4, 2006), the 
final SARs for 2006 (72 FR 12774, March 19, 2007), the final SARs for 
2007 (73 FR 21111, April 18, 2008), and the draft SARs for 2008 (73 FR 
40299, July 14, 2008). The SARs are available at: http://www.nmfs.noaa.gov/pr/sars/.

Fishery Descriptions

    NMFS described each Category I and II fishery on the 2008 LOF in 
the final 2008 LOF (72 FR 66048, November 27, 2007). Below, NMFS 
describes the fisheries classified as Category I or II fisheries on the 
2009 LOF that were not so categorized on the 2008 LOF. Additional 
details for Category I and II fisheries operating in U.S. waters are

[[Page 73036]]

included in the SARs, fishery management plans (FMPs), and take 
reduction plans (TRPs), or through state agencies. Additional details 
for Category I and II fisheries operating on the high seas are included 
in various FMPs, NEPA, or ESA documents.

High Seas Atlantic Highly Migratory Species Fisheries

    The Atlantic Highly Migratory Species (HMS) high seas fisheries are 
virtually the same as fisheries targeting Atlantic HMS within U.S. 
waters, but primarily use pelagic longline gear. Atlantic swordfish and 
bigeye tuna are the primary target species on the high seas, with 
Atlantic yellowfin, albacore and skipjack tunas, and pelagic sharks 
also caught and retained for sale. Bluefin tuna are caught incidental 
to pelagic longline operations, both on the high seas and within U.S. 
waters, and may be retained subject to specific target catch 
requirements.
    Within U.S. Atlantic waters, HMS commercial fishers use several 
gear types. Authorized gear for tuna include rod and reel, handlines, 
bandit gear, harpoon, pelagic longline, trap (pound net and fish weir), 
and purse seine. Purse seines used to target bluefin tuna must have a 
mesh size of less than or equal to 4.5 in (11.4 cm) and at least 24-
count thread throughout the net. Only rod and reel gear may be used to 
target billfish and commercial possession of Atlantic billfish is 
prohibited. Authorized gear for sharks includes rod and reel, handline, 
bandit gear, longline, and gillnet. Gillnets must be less than or equal 
to 2.5 km (1.6 mi) in length and must remain attached to the vessel 
except during net checks. Authorized gear for swordfish includes 
handline, handgear (including buoy gear), and longline for north 
Atlantic swordfish, and longline for south Atlantic swordfish. North 
Atlantic swordfish incidentally taken in squid trawls may be retained 
by federally permitted vessels. The fishery management area for 
Atlantic HMS includes U.S. waters and the adjacent high seas.
    Atlantic HMS are managed under regulations implementing the 
Consolidated Atlantic HMS FMP (2006), under the authority of the MSA 
and the Atlantic Tunas Convention Act (ATCA). Regulations issued under 
the MSA address the target fish species, as well as bycatch of species 
protected by the ESA, MMPA, and Migratory Bird Treaty Act. The MSA 
regulations (50 CFR part 635) require vessel owners and operators 
targeting Atlantic HMS with longline or gillnet gear to complete 
protected species (sea turtles and marine mammals) safe handling, 
release, and identification workshops. The regulations also require 
shark dealers to complete an Atlantic shark identification workshop.
    The high seas components of Atlantic HMS fisheries (Table 3) are 
extensions of various Category I, II, and III fisheries operating in 
U.S. waters (Table 2). The longline fishery targeting Atlantic HMS in 
U.S. waters is the Category I, ``Atlantic Ocean, Caribbean, Gulf of 
Mexico large pelagics longline fishery.'' NMFS has issued proposed 
regulations to implement the Pelagic Longline Take Reduction Plan 
(PLTRP) for this fishery (73 FR 35623, June 24, 2008). The gillnet 
fishery targeting Atlantic HMS in U.S. waters is the Category II, 
``Southeastern U.S. Atlantic shark gillnet'' fishery. In U.S. waters 
only, this fishery is subject to the Bottlenose Dolphin TRP (BDTRP) (50 
CFR 229.35), for coastal gillnetting only, and the Atlantic Large Whale 
TRP (ALWTRP) (50 CFR 229.32). The purse seine fishery targeting 
Atlantic HMS in U.S. waters is the Category III, ``Atlantic tuna purse 
seine fishery.''
    For more information on the Atlantic HMS fisheries and details on 
the management and regulations of these fisheries, please see the 
Consolidated Atlantic HMS FMP (http://www.nmfs.noaa.gov/sfa/hms/hmsdocument_files/FMPs.htm) and the regulations for Atlantic HMS 
fisheries in 50 CFR part 635.

High Seas Pacific Highly Migratory Species Fisheries

    The Pacific HMS high seas fisheries are virtually the same as 
fisheries targeting Pacific HMS within U.S. waters. Pacific HMS 
fisheries target tunas (North Pacific albacore, yellowfin, bigeye, 
skipjack, and bluefin), billfish (striped marlin), sharks (common 
thresher, pelagic thresher, bigeye thresher, shortfin mako, and blue), 
swordfish, and dorado (i.e., dolphinfish) using several gear types. 
Authorized gear include surface hook-and-line (including troll, rod and 
reel, handline, albacore jig, and live bait), harpoon (non-mechanical), 
drift gillnet (14 in (35.5 cm) stretch mesh or greater), pelagic 
longline, and purse seine (including ring, drum, and lampara nets). 
Pacific HMS incidentally caught by unauthorized gear may be landed 
under certain circumstances. Species prohibited in Pacific HMS 
fisheries include any salmon species, great white shark, basking shark, 
megamouth shark, and Pacific halibut. The fishery management area for 
Pacific HMS covers U.S. waters from the U.S.-Mexico border to the U.S.-
Canada border, and the adjacent high seas.
    Pacific HMS are managed under regulations implementing the FMP for 
U.S. West Coast Fisheries for HMS, adopted in April 2004. The MSA 
regulations (50 CFR part 660, subpart K) address the target fish 
species as well as species protected by the ESA and MMPA. The MSA 
regulations lay out multiple restrictions for fishing for Pacific HMS 
with longline gear. Vessels fishing longline gear may not target HMS 
within U.S. waters. Targeting swordfish with shallow set longline gear 
or possessing a light stick on board the vessel west of 150[deg] W. 
long. and north of the equator is prohibited. From April 1-May 31, 
longline gear is prohibited in the area bounded on the south by the 
equator, north by 15[deg] N. lat., east by 145[deg] W. long., and west 
by 180[deg] long. Longline vessels must have a valid protected species 
workshop certificate onboard, along with safe handling and release 
tools for sea turtles and seabirds. The use of shallow set longline 
gear to target HMS east of 150[deg] W. long. is prohibited under a rule 
promulgated through the ESA to protect threatened loggerhead sea 
turtles.
    Along with the MSA requirements, including area closures for marine 
mammal and sea turtle protection, drift gillnet fishing for Pacific HMS 
is managed under the MMPA through the Pacific Offshore Cetacean Take 
Reduction Plan (POCTRP) (50 CRF 229.31), both in U.S. waters and on the 
high seas. The POCTRP regulations require multiple gear modifications 
during the May 1-January 31 fishing season, including a requirement 
that all extenders (buoy lines) be at least 6 fathoms (36 ft; 10.9 m) 
in length, all floatlines be fished at a minimum of 36 ft (10.9 m) 
below the surface, and all nets have operational pingers to a water 
depth of a least 100 fathoms (600 ft; 182.9 m). Also, after 
notification from NMFS, all drift gillnet vessel operators must attend 
skipper education workshops before each fishing season.
    The high seas components of Pacific HMS fisheries are extensions of 
various Category I, II, and III fisheries operating within U.S. waters 
(Tables 1 and 2). The drift gillnet fishery targeting Pacific HMS 
within U.S. waters, the Category I ``CA/OR thresher shark/swordfish 
drift gillnet (>=14 in. mesh) fishery,'' is managed under the POCTRP. 
The purse seine fishery targeting Pacific HMS within U.S. waters is the 
Category II ``CA tuna purse seine fishery.'' While longline fishing for 
Pacific HMS is prohibited within U.S. waters, the LOF includes the 
Category II ``CA pelagic longline fishery'' to account for HMS caught 
outside U.S. waters, but landed into the U.S. West coast. The troll

[[Page 73037]]

fishery targeting Pacific HMS within U.S. waters is the Category III 
``AK North Pacific halibut, AK bottom fish, WA/OR/CA albacore, 
groundfish, bottom fish, CA halibut non-salmonid troll fisheries.''
    For more information on the Pacific HMS fisheries and details on 
the management and regulations of these fisheries, please see the 
Pacific HMS FMP (http://www.pcouncil.org/hms/hmsfmp.html#final), the 
Pacific HMS FMP Biological Opinion (BiOp) (http://swr.nmfs.noaa.gov/HMS_FMP_Opinion_Final.pdf), and the regulations for Pacific HMS in 
50 CFR part 660, subpart K.

High Seas Western Pacific Pelagic Fisheries

    The Western Pacific pelagic high seas fisheries are virtually the 
same as fisheries targeting Western Pacific pelagic species in U.S. 
waters. Western Pacific pelagic fisheries target tunas (albacore, 
bigeye, yellowfin, bluefin, and skipjack), billfish (Indo-Pacific blue 
marlin, black marlin, striped marlin, shortbill spearfish), sharks 
(pelagic thresher, bigeye thresher, common thresher, silky, oceanic 
whitetip, blue, shortfin mako, longfin mako, and salmon), swordfish, 
sailfish, wahoo, kawakawa, moonfish, pomfret, oilfish, and other tuna 
relatives. The main gear types used to fish in the Western Pacific 
Pelagic fisheries are pelagic longline, troll, and handline. The 
Western Pacific Pelagic fisheries take place in the Western Pacific 
Fishery Management Area (including waters shoreward of the EEZ boundary 
around American Samoa, Guam, Hawaii, the Northern Mariana Islands, 
Midway, Johnston and Palmyra Atolls, Kingman Reef, and Wake, Jarvis, 
Baker, and Howland Islands) and the adjacent high seas waters.
    Western Pacific Pelagic fisheries are managed under regulations 
implementing the FMP for the Pelagic Fisheries of the Western Pacific 
Region developed by the Western Pacific Fishery Management Council 
(WPFMC). The MSA regulations (50 CFR part 665, subpart C) address 
target fish species as well as bycatch of species protected under the 
ESA, MMPA, and Migratory Bird Treaty Act. The MSA regulations outline 
restrictions on effort, observer coverage requirements, longline 
fishing prohibited areas, sea turtle and seabird bycatch mitigation 
measures, annual fleetwide limits on interactions with leatherback and 
loggerhead sea turtles, and a requirement for owners of longline 
vessels to participate in annual protected species workshops. Drift 
gillnet fishing in the fishery management area is prohibited, except 
where authorized by an experimental fishery permit.
    The high seas components of the Western Pacific Pelagic longline 
fishery are extensions of the Category I ``HI deep-set (tuna target) 
longline/set line fishery'' and the Category II ``HI shallow-set 
(swordfish target) longline/set line fishery'' operating within U.S. 
waters. All requirements for vessels fishing longline gear in these two 
fisheries operating within U.S. waters remain effective in high seas 
waters (as described in the above paragraph).
    For more information on the Western Pacific Pelagic fisheries and 
details on the management and regulations of these fisheries, please 
see the Western Pacific Pelagic FMP BiOp (http://www.fpir.noaa.gov/Library/PUBDOCs/), the Western Pacific Pelagic FMP Environmental Impact 
Statement (EIS) (http://www.fpir.noaa.gov/Library/PUBDOCs/), and the 
regulations for Western Pacific Pelagic fisheries in 50 CFR 665, 
subpart C.

High Seas South Pacific Albacore Troll Fisheries

    The South Pacific albacore troll high seas fisheries target South 
Pacific albacore using mostly longline or troll gear in waters solely 
outside of any nation's EEZ. Longline gear, set with 1,000 or more 
hooks suspended from a horizontally buoyed mainline several miles long, 
accounts for 86 percent of the catch. Trolling vessels (including jigs 
or live bait) attach 10-20 fishing lines of various lengths to the 
vessel's outriggers on a slow-moving boat (5-6 knots). The total U.S. 
catch of South Pacific albacore has accounted for less than 5 percent 
of the total international catch in recent years.
    U.S. vessels fish in the South Pacific albacore fishery from 
November/December-April. Many vessels then participate in the larger 
North Pacific albacore fishery from April-October. South Pacific 
albacore fishing occurs outside any nation's EEZ in an area bounded by 
approximately 110[deg] W. long. and 180[deg] W. long., and by 25[deg] 
S. lat. and 45[deg] S. lat. Most U.S. troll vessels depart from the 
U.S. West Coast or Hawaii and land catch in American Samoa, Fiji, or 
Tahiti.
    The South Pacific albacore troll fishery is not managed by 
regulations implementing any FMP. The WPFMC and NMFS have concluded 
that conservation and management measures for this fishery are not 
warranted because the albacore stock in not overfished and there are no 
known protected species interactions. Sea turtles and marine mammals do 
not prey on the bait species used by these vessels and vessels are 
typically slow-moving and would therefore likely be able to avoid a 
collision with a large whale. As of 2001, the HSFCA requires U.S. 
albacore troll vessel operators to file logbooks with NMFS for fishing 
in the South Pacific.
    For more information on the South Pacific albacore troll fishery, 
please see the 2004 U.S. South Pacific albacore troll fishery 
Environmental Assessment (EA) (http://www.fpir.noaa.gov/Library/PUBDOCs/).

High Seas South Pacific Tuna Fisheries

    The South Pacific Tuna Treaty (SPTT) manages access of U.S. purse 
seine vessels targeting tuna (skipjack and yellowfin) within the EEZs 
of 16 Pacific Island Countries in the Western and Central Pacific Ocean 
that are party to the Treaty. The SPTT Area includes the waters from 
north of 60[deg] S. lat. and east of 90[deg] E. long. subject to the 
fishing jurisdiction of Pacific Island parties to the Treaty, and all 
waters within rhumb lines connecting multiple geographic coordinates, 
and north along the 152[deg] E. long. out to Australia's EEZ border. 
The Treaty Area includes portions of waters in the EEZs of most of the 
Pacific Island Countries included in the Treaty. The SPTT was intended 
to apply only to U.S. purse seine vessels; however, provisions have 
been made to accommodate fishing by U.S. albacore tuna troll and U.S. 
longline vessels within the Treaty Area. Both a SPTT and a HSFCA permit 
are required to fish in SPTT waters.
    Under the SPTT, observers are recruited from the Pacific Island 
Countries and then trained and deployed by the Forum Fisheries Agency 
(FFA) in Honiara in the Solomon Islands. Many of the FFA deployed 
observers serve in and have experience from domestic observer programs 
active in each observer's respective country. The target observer level 
coverage is 20 percent of U.S. purse seine vessels, the full costs of 
which are the responsibility of the U.S. purse seine vessel owners. 
Observers collect a range of data, including a form for recording 
information on interactions with seabirds, sea turtles, marine mammals, 
and sharks. Fishery observers undergo training in species 
identification for target and bycatch species; however, marine mammal 
species identification has only recently been placed as a priority 
matter for reporting. Observer data from January 1997-June 2002 show 
that 11 sets resulted in interactions with marine mammals. However, the 
data indicate only that the animals were ``unidentified whales, marine 
mammals,

[[Page 73038]]

or dolphin/porpoise.'' The International Fisheries Division of the NMFS 
Pacific Islands Region is working with the FFA observer program to 
better train observers in marine mammal identification.
    For additional information on the SPTT and details on the 
management and regulations of these fisheries, see the South Pacific 
Tuna Treaty EA (http://www.fpir.noaa.gov/Library/PUBDOCs/) and the 
regulations for the SPTT in 50 CFR 300, subpart D.

High Seas Antarctic Living Marine Resources Fisheries

    The Commission for the Conservation of Antarctic Marine Living 
Resources (Convention or CCAMLR) conserves and manages Antarctic marine 
living resources (AMLR) in waters surrounding Antarctica. The 
Convention applies to AMLR in the waters from 60[deg] S. lat. south to 
the Antarctic Convergence, with limited exceptions, covering 32.9 
million square kilometers. Both an AMLR and a HSFCA permit are required 
to fish in CCAMLR waters. There are multiple gear types used to target 
multiple species in the Convention Area. Gear types include pelagic and 
bottom trawl, trap/pot, gillnet, and longline. Target species include 
krill and Antarctic finfish (rockcod species, toothfish species, 
icefish species, silverfish, cod, and lanternfish), mollusks, and 
crustaceans. CCAMLR Conservation Measures require or recommend several 
measures for fisheries in the Convention area. Mandatory measures 
include requirements for reporting; operating a Vessel Monitoring 
System while in the Convention area; longline gear modifications to 
reduce seabird interactions; and mesh sizes restrictions for trawl 
gear. Recommendations include seal bycatch mitigation measures, such as 
a seal excluder device in trawl fisheries.
    CCAMLR has identified two types of scientifically trained observers 
to collect information required in CCAMLR-managed fisheries, including 
information on entanglements and incidental mortality of seabirds and 
marine mammals. The first type of observer is a ``national observer,'' 
such as a U.S. observer placed on a U.S. vessel by the U.S. government. 
The second type of observer is an ``international observer,'' or an 
observer operating in accordance with bilateral arrangements between 
the nation whose vessel is fishing and the nation providing the 
observer. CCAMLR Conservation measures require all fishing vessels in 
the Convention area (except vessels fishing for krill) to carry at 
least one international observer and, where possible, an additional 
observer. The United States requires all of its vessels fishing in the 
CCAMLR area, for any target species and with any gear, to carry an 
observer. In certain exploratory toothfish fisheries, the vessel must 
carry two observers, with at least one being an international observer.
    For additional information on the fishing activities in the CCAMLR 
region and details on the management and regulations of these 
fisheries, see the CCAMLR Programmatic EIS (http://www.nmfs.noaa.gov/sfa/domes_fish/news_of_note.htm#ccamlr), the CCAMLR Schedule of 
Conservation Measures in Force (http://www.ccamlr.org), and the 
regulations for the harvesting of AMLR in 50 CFR 300, subpart D.

CA Spot Prawn Pot Fishery

    The Category II ``CA spot prawn pot fishery'' operates from Central 
CA southward to the Mexican border. Strings of 10-50 oblong cylindrical 
traps are commonly fished at depths usually greater than 100 fathoms. 
This is a limited access fishery managed by the state of CA. A tiered 
permit system allows a maximum of 150 or 500 traps to be fished at one 
time depending on the fishing history associated with the permit. A 
maximum of 300 traps may be located within state waters (inside 3 
miles), regardless of the permit tier. North of Point Arguello, the 
season is open from August 1-April 30. South of Point Arguello, the 
season runs from February 1-October 30.

CA Dungeness Crab Pot Fishery

    The Category II ``CA Dungeness crab pot fishery'' operates in the 
central and northern coastal waters of CA in depths typically from 10-
40 fathoms. The cylindrical or rectangular pots used in the fishery are 
fished singly, or individually, such that each pot has its own buoy; 
although, fishing multiple traps connected together (called 
``strings'') is allowed in the central region. There is no limit on the 
number of traps which may be operated by a fisher at one time. This is 
a limited access fishery managed by the state of CA and pursuant to the 
Tri-State Committee agreement for Dungeness crab, which also includes 
the states of OR and WA. The fishery is divided into two management 
areas. The fishing season in the central region (south of the 
Mendocino-Sonoma county line) is open November 15-June 30. The fishing 
season in the northern region (north of the Mendocino-Sonoma county 
line) can open on December 1, but may be delayed by the California 
Department of Fish and Game based on the condition of market crabs, and 
continues until July 15.

OR Dungeness Crab Pot Fishery

    The Category II ``OR Dungeness crab pot fishery'' operates in the 
coastal waters of OR in depths typically from 10-40 fathoms. The 
cylindrical or rectangular pots used in the fishery are fished singly, 
or individually, such that each pot has its own buoy. This is a limited 
access fishery managed by the OR Department of Fish and Wildlife and 
pursuant to the Tri-State Committee agreement for Dungeness crab, which 
also includes the states of CA and WA. A three-tiered pot limitation 
system, based on previous landing history, allows a maximum 200, 300, 
or 500 single pots to be fished by a fisher at once. The Dungeness crab 
season runs from December 1-August 14, although the Oregon Department 
of Fish and Wildlife may delay the opening based on the condition of 
the market crabs. Additionally, the state may close the season after 
the end of May, if catch rates are still high, to protect molting crab. 
Logbook reporting of effort and catch data to the state is required.

WA/OR/CA Sablefish Pot Fishery

    The Category II ``CA/OR/WA sablefish pot fishery'' operates in 
waters past the 100 fathom curve off the West coast of the U.S. In CA, 
gear is set outside 150 fathoms, with an average depth of 190 fathoms. 
There are two separate trap fisheries, open access and limited entry, 
and both have quotas. Open access fishers will usually fish 1 to 8 
strings of 3-4 pots, each with a float line and buoy stick. The gear 
sometimes soaks for long periods. Fishers in the limited entry fishery 
will normally fish 20-30 pot strings. As with most pot gear fished out 
in deeper waters, sablefish traps are set in strings of multiple traps. 
The fishery operates year round and effort varies from southern CA to 
the Canadian border.
    This fishery is managed under regulations implementing the West 
Coast Groundfish FMP developed by Pacific Fishery Management Council. 
Access to the limited entry fishery is granted under a limited entry 
permit system, in addition to gear endorsements required by the 
individual states. Open access privileges are currently available to 
any fisher with the requisite state gear endorsement, but involve much 
more restrictive limitations in catch quotas and additional area 
closures than the primary limited entry permit. Open access quotas vary 
based upon the area being fished. The limited entry fishery

[[Page 73039]]

is open from April 1-October 31, while open access is available year-
round. Limited entry permits are tiered based on the annual cumulative 
landings allowed by each permit. Permits are transferable, but the tier 
category remains fixed. Up to three limited entry permits may be 
stacked on a single vessel.

Comments and Responses

    NMFS received 10 comment letters on the proposed 2009 LOF (73 FR 
33760, June 13, 2008). Comments were received from the Marine Mammal 
Commission, Center for Biological Diversity (CBD), Western Pacific 
Regional Fishery Management Council (WPFMC), Mid-Atlantic Fishery 
Management Council (MAFMC), North Carolina Division of Marine Fisheries 
(NCDMF), Oregon Department of Fish and Wildlife (ODFW), California 
Department of Fish and Game (CDFG), Garden State Seafood Association, 
Hawaii Longline Association (HLA), and California Wetfish Producers 
Association. Comments on issues outside the scope of the LOF were 
noted, but are not responded to in this final rule.

General Comments

    Comment 1: The Marine Mammal Commission reiterated comments made on 
the 2005 through 2008 LOFs recommending that NMFS describe the level of 
observer coverage for each fishery as part of the LOF. NMFS indicated 
in its response to the comments on the 2008 LOF that it ``feels that it 
will be of limited use to include observer coverage data or percentages 
in the LOF without also including the confidence associated with 
mortality/serious injury estimates generated from the observer data.'' 
The Commission would welcome inclusion of information on mortality and 
serious injury estimates within the LOF, as they recommended in 
comments on the 2005 LOF that such information be included. The 
Commission continues to believe observer coverage information is 
important in itself, particularly for evaluating cases where no marine 
mammal interactions are reported. Fisheries without recorded 
interactions are not reported in the SARs and, without information on 
observer coverage, it is impossible to determine whether a given 
fishery was adequately observed and no marine mammals were taken or the 
fishery was not adequately observed and mortality and serious injury 
may have occurred but were not documented.
    Response: NMFS continues to feel that the LOF is not the 
appropriate venue for reporting this data because it will confuse 
rather than clarify if presented without all the associated information 
supplied in the SARs. However, NMFS agrees that observer coverage 
information would be useful for the reader to reference when 
determining whether a given fishery was adequately observed and no 
marine mammals were taken or the fishery was not adequately observed 
and mortality and serious injury may have occurred but were not 
documented. Therefore, NMFS is exploring other options for providing 
information on observer coverage as it applies to the LOF and will 
notify readers of these sources in subsequent LOFs. In addition, NMFS 
is preparing to release the National Bycatch Report (NBR). The NBR will 
provide a comprehensive summary of regional and national bycatch 
estimates, based on observer data and fisher reports, of fish, marine 
mammals, sea turtles, and sea birds in U.S. commercial fisheries that 
have a Federal nexus. The NBR will include observer coverage 
information that can be referenced while reviewing the LOF. NMFS also 
continues to refer readers to the SARs and the National Observer 
Program for information on observer coverage. The SARs can be accessed 
through the NMFS Office of Protected Resource's Web site at: http://www.nmfs.noaa.gov/pr.sars/. Additional information can also be found on 
the National Observer Program Web site at: http://www.st.nmfs.gov/st4/nop/.
    Comment 2: The CBD noted that the proposed 2009 LOF lists over 40 
fisheries that are known to interact with ESA-listed marine mammals. 
Only one fishery, the Category I ``CA/OR thresher shark/swordfish drift 
gillnet fishery,'' has authorization to take ESA-listed marine mammals. 
Each of these other fisheries is therefore operating in violation of 
both the ESA and MMPA. NMFS must either issue permits for these 
fisheries authorizing take under these statutes, or take appropriate 
enforcement action, including, as necessary, closure of the fisheries, 
to ensure such illegal take does not continue to occur.
    Response: CBD's comment refers to how NMFS authorizes takes of ESA-
listed marine mammals incidental to commercial fishing. The MMPA 
requires fishers to obtain a permit granted under section 101(a)(5)(E) 
of the MMPA if they participate in a fishery that takes ESA-listed 
marine mammals. A 101(a)(5)(E) permit does not authorize the operation 
of a fishery. Instead, a 101(a)(5)(E) permit authorizes the incidental 
take of ESA-listed marine mammals in commercial fisheries, if certain 
provisions are met. Any incidental take of an ESA-listed species in an 
otherwise legally-operating fishery, without a 101(a)(5)(E) permit, is 
not authorized. If an ESA-listed species is taken by a fisher in a 
fishery that has not been granted a MMPA 101(a)(5)(E) permit, then the 
fisher may be subject to enforcement proceedings.
    NMFS acknowledges that the LOF includes fisheries in which ESA-
listed species are listed as incidentally killed/injured, but for which 
NMFS has not issued a permit under section 101(a)(5)(E) of the MMPA. To 
issue a permit under section 101(a)(5)(E) of the MMPA, NMFS must 
determine that (1) the incidental mortality and serious injury from 
commercial fisheries will have a negligible impact on such species or 
stocks; (2) a recovery plan has been developed or is being developed 
for such species or stock pursuant to the ESA; and (3) where required 
under section 118 of the MMPA, a monitoring program is established, 
vessels engaged in such fisheries are registered, and a take reduction 
plan has been developed or is being developed for such species or 
stock. NMFS is in the process of making these determinations in various 
fisheries on the LOF.
    Comment 3: The CBD noted that the proposed 2009 LOF includes a 
table of fisheries subject to take reduction teams (TRT). This is very 
useful. However, numerous Category I and II fisheries not yet subject 
to TRTs also meet the statutory criteria for convening such teams. All 
Category I and II fisheries not yet subject to TRTs which interact with 
strategic stocks must have TRTs promptly convened. The Hawaii pelagic 
longline fishery should be the highest priority for such a team as take 
continues to exceed PBR for false killer whales.
    Response: Please see comment/response 6 in the final 2008 LOF (72 
FR 66048, November 27, 2007). At this time, NMFS' resources for TRTs 
are fully utilized and new TRTs will be initiated when additional 
resources become available. When NMFS lacks sufficient funding to 
convene a TRT for all stocks that interact with Category I and II 
fisheries, NMFS will give highest priority for developing and 
implementing new take reduction plans to species or stocks whose level 
of incidental mortality and serious injury exceeds PBR, those with a 
small population size, and those which are declining most rapidly, 
pursuant to MMPA section 118(f)(3).
    Comment 4: The CBD stated concerns regarding groups of 
``fisheries'' that NMFS has excluded from the LOF. In the final rule 
implementing section 118 of the MMPA (60 FR 45086, August 20,

[[Page 73040]]

1995), NMFS concluded that tribal fisheries were exempt from the 
permitting requirements the MMPA. In light of the subsequent holding of 
the Ninth Circuit in Anderson v. Evans, 371 F.3d 475 (9th Cir. 2002) 
finding that the MMPA applies to the Makah application to the gray 
whale hunt, the CBD believes that NMFS' 1995 conclusion exempting 
tribal fisheries from the LOF and the Section 118 authorization process 
is no longer valid. The 2009 LOF should be amended to include tribal 
fisheries.
    Response: NMFS will consider this comment during the development of 
future proposed LOFs.
    Comment 5: The CBD does not believe aquaculture facilities are 
properly considered commercial fishing operations eligible for the take 
authorization contained in MMPA section 118. These facilities and 
activities, to the degree they interact with marine mammals, should be 
subject to the take prohibitions and permitting regimes contained in 
MMPA section 101.
    Response: Eight aquaculture fisheries are listed on the MMPA LOF, 
all as Category III fisheries. NMFS' regulations implementing section 
118 of the MMPA (50 CFR 229) specifically include aquaculture as a 
commercial fishing operation. The regulations in 50 CFR 229.2 define 
``commercial fishing operation'' as ``the catching, taking, or 
harvesting of fish from the marine environment * * * The term includes 
* * * aquaculture activities.'' Further, ``fishing or to fish'' is 
defined as ``any commercial fishing operation.''
    Comment 6: The WPFMC continues to be concerned that no recreational 
fishing activities are assessed under the LOF, although recreational 
fisheries may have a much greater impact on marine mammal stocks than 
their commercial counterparts. This seems a rather arbitrary 
application of the MMPA to marine fisheries.
    Response: NMFS agrees there are documented cases of incidental 
injury or death of marine mammals in recreational fishing gear. 
However, MMPA section 118 governs the ``Taking of Marine Mammals 
Incidental to Commercial Fishing Operations.'' Specifically, section 
118(c)(1)(A) directs NMFS to ``publish * * * list of commercial 
fisheries'' that interact with marine mammals.

Comments on High Seas Fisheries

    Comment 7: The CBD supported NMFS' decision to include high seas 
fisheries on the LOF, but they have concerns with how NMFS is 
implementing the process. NMFS treats fisheries that have both a high 
seas and within-EEZ component as two separate fisheries for LOF 
purposes. CBD believes this raises the risk that the total marine 
mammal take from such a fishery may be inappropriately apportioned into 
two separate fisheries (the high seas and non-high seas components), 
therefore resulting in an underestimation of the true environmental 
effect, and LOF classification of what is more properly considered the 
same fishery. For example, if the total take from a fishery operating 
both in and outside the EEZ is 60 percent of PBR, the fishery should be 
a Category I. However, if the fishery is split into two components and 
take is evenly apportioned, the total take from each fishery is only 30 
percent of PBR, and therefore a Category II. NMFS must clarify how it 
will apportion take so as to not create this problem.
    Response: Although the high seas components of fisheries that 
operate both within U.S. waters and on the high seas are listed in a 
separate table in the LOF, they are not considered separate fisheries 
from their associated components operating in U.S. waters. Instead, 
NMFS considers these fisheries as the same fishery that has extended 
beyond the 200 nmi boundary of the EEZ. Because of the organization and 
format of Tables 1 and 2 in the LOF, and because high seas fisheries 
have additional management (permit) requirements, it is necessary to 
list them on a separate table on the LOF (Table 3). NMFS clarifies 
which fisheries in Table 3 are extensions of fisheries operating in 
U.S. waters by placing a ``*'' after the fishery name. NMFS will not 
apportion any incidental serious injury or mortality in these fisheries 
separately for purposes of categorization. Takes on either side of the 
EEZ boundary are included as takes in one fishery. As stated in the 
preamble of this rule, NMFS does not calculate PBR estimates for marine 
mammals stocks on the high seas. Therefore, at this time, the high seas 
fisheries that are extensions of fisheries operating within U.S. 
waters, are categorized the same as the component operating within U.S. 
waters.
    Comment 8: The Marine Mammal Commission concurred with NMFS' 
decision to describe and evaluate high seas fisheries and include them 
on LOF. Doing so makes the LOF more nearly complete and more consistent 
with the scope of the MMPA. The descriptions and evaluations of high 
seas fisheries highlight the lack of data on both the status and the 
incidental take of marine mammals outside the U.S. EEZ, and information 
on status and incidental take of marine mammals in foreign and 
international fisheries often is not available. To address this need, 
the Commission recommends that NMFS develop and implement research and 
monitoring programs needed to manage high seas fisheries in a manner 
consistent with the requirements of the MMPA. Such approaches likely 
will require novel stock assessment techniques and development of 
international partnerships. This task may be difficult, but also will 
provide many ancillary benefits, including the development of useful 
tools for managing transboundary stocks.
    Response: NMFS acknowledges this comment. The development of a 
research and monitoring plan to manage high seas fisheries in a manner 
consistent with the requirements of the MMPA will require novel stock 
assessment techniques and the development, and/or continuation, of 
international partnerships. NMFS will consider such stock assessment 
techniques and components of a research and monitoring program while 
continuing to include high seas fisheries on future LOFs.
    Comment 9: The CBD noted that NMFS proposed to categorize all high 
seas fisheries operating in the CCAMLR region as Category II. However, 
NMFS also states that because there are no currently valid HSFCA 
permits for CCAMLR fisheries, none of these fisheries will actually be 
listed in the LOF. Given such fisheries are authorized under existing 
CCAMLR regulations, NMFS should either list these fisheries on the LOF, 
or clearly indicate that NMFS will not issue any authorizations for 
these fisheries during the duration of the time in which the 2009 LOF 
is operative. If NMFS does include CCAMLR fisheries on the LOF, the 
trawl fishery for krill should be listed as a Category I based on 
observer data from three CCAMLR vessels, including a U.S. flagged 
vessel, indicated that 95 fur seals were caught in 2004/2005 season and 
156 fur seals were caught in the 2003/2004 season (71 FR 39642; July 
13, 2006). Also, the Final Programmatic EIS for CCAMLR fisheries noted 
that a U.S.-flagged krill vessel killed 138 Antarctic fur seals in five 
weeks in 2004. This fishery is clearly not operating as at ``zero 
mortality and serious injury rate'' and must be listed as a Category I.
    Response: NMFS did propose to add CCAMLR fisheries to the LOF as 
Category II fisheries, but because there were no current valid HSFCA 
permits NMFS stated that, ``CCAMLR fisheries do not appear in Table 3'' 
of the proposed 2009 LOF (72 FR at 33770). After considering this 
comment, NMFS

[[Page 73041]]

views the addition of the CCAMLR fisheries to the LOF without 
representing them in Table 3 as confusing. Therefore, NMFS has added 
the trawl and longline CCAMLR fisheries (the fisheries in which U.S. 
vessels have participated in the recent past) to Table 3 with a ``0'' 
indicating the number of HSFCA permits for each fishery. If/when a 
permit is issued for a U.S. vessel to operate in a CCAMLR fishery in 
the future, the number of HSFCA permits listed in Table 3 of the LOF 
will be updated accordingly.
    The CCAMLR trawl fishery for krill does not qualify as a Category I 
fishery. To be considered Category I, a fishery must have a serious 
injury or mortality rate of marine mammals at greater than 50 percent 
of a stock's PBR level. While NMFS does not have sufficient information 
to calculate PBR level for marine mammal stocks found outside of the 
U.S. waters, there is available information on the abundance of 
Antarctic fur seals. The relative abundance of Antarctic fur seals was 
estimated as 1.5 million in 1990 and is thought to have since increased 
to over 4 million (CCAMLR Final Programmatic EIS, October 2006). 
Further, at the 2006 Antarctic Treaty Consultative Meeting, the 
Antarctic Treaty Parties delisted the Antarctic fur seal from its 
listed of Specially Protected Species. The delisting reflected the 
much-increased abundance of fur seals. Ninety-five fur seals were 
reported caught during fishing operations in 2005/2006, during which 
time no U.S. krill trawl vessel was operating. In 2003/2004, a total of 
158 Antarctic fur seals were observed taken by the single U.S.-
permitted trawl krill fishing vessel in the CCAMLR region, 142 of which 
were mortalities. As a result, a permit provision was added requiring 
the use of a seal excluder device and any other gear modifications or 
fishing practice that reduces or eliminates Antarctic fur seal bycatch. 
In the 2004/2005 fishing season the U.S. vessel used the required seal 
excluder device; and, as a result, 24 Antarctic fur seals were 
incidentally taken, 16 of which were mortalities (2005 Report of the 
CCAMLR Scientific Committee). This modification would be a requirement 
of any CCAMLR fishing permit NMFS would issue to the vessel. Given the 
large estimated abundance of Antarctic fur seals, the current low rate 
of incidental serious injury and mortality would likely be well below 
50 percent of PBR if NMFS were to calculate a PBR for this stock. 
Therefore, the fishery does not qualify as a Category I fishery.
    Comment 10: The WPFMC agreed that, from a ``best science'' 
perspective, it is logical to include high seas fishing activity by 
U.S. vessels on the LOF because the EEZ boundaries are an artificial 
construct which have no meaning biologically or ecologically. However, 
it seems excessive to categorize the majority of high seas fisheries as 
Category II in the absence of reliable data, even if this is done with 
the objective of collecting information through the use of observers. 
Further, it is one-sided, since in the absence of stock assessments, 
the only information that would be collected would be interactions. The 
numbers of interactions, even if substantial, will be meaningless 
without stock assessments against which to assess interactions. 
Moreover, the HI pelagic longline vessels already carry observers and 
report marine mammal interactions. Indeed, the observer coverage rates 
in HI's longline fishery are very high (shallow set-100 percent; deep 
set-20 percent), and the American Samoa longline fishery has a 7-8 
percent average coverage rate.
    Response: At this time, NMFS has little information with which to 
base a Category I or III categorization for many high seas fisheries 
that are not extensions of fisheries operating within U.S. waters. It 
is for this reason that NMFS categorizes the majority of high seas 
fisheries as Category II, the appropriate category for new fisheries 
for which NMFS does not have adequate information to accurately 
categorize (as stated in the final rule implementing section 118 of the 
MMPA 60 FR 45086; August 30, 1995). Because interactions information 
alone, without the associated marine mammal abundance data, is of 
limited use in accurately categorizing a fishery on the LOF, NMFS would 
consider all available abundance data along with interactions data when 
determining whether the reclassification of a given fishery is 
warranted. Observer coverage in the HI longline fisheries is high, and 
the American Samoa longline fishery also has adequate observer 
coverage. The addition of the high seas components of these fisheries 
will not impact observer coverage levels or the categorization of these 
fisheries at this time.
    Comment 11: The HLA stated that NMFS should use fishery- and marine 
mammal-specific information to classify high seas fisheries according 
to their interactions and, where such information is not available, 
should designate high seas fisheries as Category II regardless of the 
classification of their U.S. EEZ components. As a general rule, it may 
be appropriate to assume that high seas fisheries using the same gear 
and operational strategies will have similar interaction rates if 
marine mammals occur in equal numbers on the high seas fishing grounds. 
However, where equal numbers are not expected or where fishing 
techniques and gear vary from within-EEZ practices, NMFS should assume 
that the high seas fishery is a Category II until specific information 
is available warranting a different classification. In particular, 
recent reports call into question the assumption that the HI deep-set 
(tuna target) fishery interacts with non-coastal marine mammals to the 
same extent as the U.S. waters fishery. First, several species listed 
in Table 3, including sperm whales and several species of dolphin, have 
not interacted with the high seas fishery for at least the past five 
years. Second, a 2007 Southwest Fisheries Science Center Report 
indicates that false killer whale density and abundance are greater on 
the high seas south of HI and even greater in the EEZ around Palmyra 
Atoll, showing that they may be sufficiently abundant on the high seas 
that already low deep-set fishery interaction rates may warrant 
something less than a Category I classification for the high seas 
component.
    Response: As stated in the response to comment 7 above, although 
the high seas components of fisheries that operate both within U.S. 
waters and on the high seas are listed in a separate table in the LOF, 
they are not considered a separate fishery from their associated 
component operating in U.S. waters. Instead, these high seas fisheries, 
indicated by a ``*'' in Table 3, are the same fisheries that extend 
into the high seas, not a separate fishery.
    As stated in the preamble of this rule, a fishery is categorized 
based on the stock(s) incidentally seriously injured or killed at the 
highest levels relative to the stock-specific PBR level (i.e., driving 
stocks identified by a ``\1\'' in Tables 1 or 2). Since the high seas 
``Western Pacific pelagic deep-set longline fishery'' is an extension 
of the ``HI deep-set (tuna target) fishery'' operating in U.S. waters, 
and not a separate fishery, it is categorized in the same manner as the 
component in U.S. waters (i.e., based on the serious injury and 
mortality of false killer whales (HI stock), the stock driving the 
categorization of this fishery). Also, as noted in the preamble of this 
rule, a fishery is categorized on the LOF at its highest level of 
classification (e.g., a fishery qualifying for Category II for one 
marine mammal stock and a Category I for another stock, will be listed 
as Category I). If NMFS received information indicating that the high 
seas component of a fishery operates significantly different than the

[[Page 73042]]

component operating within U.S. waters, NMFS would consider splitting 
that fishery into two fisheries at that time. Fisheries that operate 
solely on the high seas will remain categorized as Category II until 
additional information on marine mammal abundance and/or fishery 
interaction data becomes available to warrant a recategorization.
    Also, the calculations of PBR levels are reported in the SARs. NMFS 
uses the PBR levels reported in the SARs in the fishery categorization 
process under the LOF. PBR and interaction levels are not calculated 
through the LOF rulemaking process. Therefore, NMFS recommends that the 
commenter present this comment regarding greater false killer whale 
abundance on the high seas south of HI and around Palmyra and Johnston 
Atolls during the comment period for the SARs.

Comments on Fisheries in the Pacific Ocean

    Comment 12: The HLA requested that NMFS clarify in the final LOF 
whether longline fishing in U.S. waters around Palmyra Atoll, Johnston 
Atoll, and other U.S. Possessions in the Pacific is considered part of 
the Western Pacific Pelagic deep-set fishery or a separate longline 
fishery. NMFS should clarify this particularly because false killer 
whale stock estimates exist for Palmyra Atoll and Johnston Atoll and 
could be used to derive a PBR that could be measured against observer 
data for longline fishing in those waters.
    Response: NMFS considers U.S. vessels deep-set longline fishing in 
U.S. waters around Palmyra Atoll, Johnston Atoll, and other U.S. 
Territories in the Pacific Ocean as operating in the same fishery, the 
``HI deep-set (tuna target) fishery'' (and/or its high seas component, 
the ``Western Pacific pelagic deep-set longline''). NMFS recognizes 
that the HI stock of false killer whales is distinct from the stock of 
false killer whales that resides around Palmyra and Johnston Atolls and 
that a PBR does not currently exist for these animals. However, since 
this is the same fishery throughout its operating range, calculating a 
PBR for the false killer whales residing around Palmyra and Johnston 
Atolls would not impact the classification of the fishery. As noted in 
the preamble of this rule and in the response to Comment 11 above, a 
fishery is categorized on the LOF at its highest level of 
classification (e.g., a fishery qualifying for Category II for one 
marine mammal stock and a Category I for another stock, will be listed 
as Category I). Therefore, the fishery would remain in Category I based 
on the level of incidental mortality and serious injury exceeding PBR 
of the HI stock of false killer whales (i.e., the stock driving the 
classification of this fishery).
    As stated in the response to Comment 11 above, PBR levels are 
reported in the SARs. NMFS uses the PBR levels reported in the SARs in 
the fishery categorization process under the LOF. PBR and interaction 
levels are not calculated through the LOF rulemaking process. 
Therefore, NMFS recommends that the commenter present this comment that 
a PBR could be derived for false killer whales residing around Palmyra 
and Johnston Atolls during the comment period for the next draft SAR.
    Comment 13: The CBD stated that various Hawaiian fisheries are 
known or suspected of interacting with Hawaiian monk seals. Given the 
critically endangered status of the monk seal, any interaction is 
significant. Yet all Hawaiian fisheries known or suspected of 
interactions and entanglements with this species are listed as Category 
III. These fisheries should all be reclassified as Category I or II.
    Response: The LOF lists the Hawaiian monk seal on the list of 
species killed/injured in the Category III ``HI lobster trap,'' ``HI 
Main Hawaiian Islands, Northwestern Hawaiian Islands deep sea 
bottomfish,'' and the ``HI tuna handline'' fisheries. The information 
on Hawaiian monk seal interactions with these fisheries is outlined 
below.
    (1) ``HI lobster trap fishery'': There have not been any reported 
interactions since the mid-1980s, when one seal died in a trap.
    (2) ``HI Main Hawaiian Islands, Northwestern Hawaiian Islands deep 
sea bottomfish fishery'': There were no interactions during the 
bottomfish observer program in 2004-2005, and the fishery has not been 
observed since. While fishing in the Northwestern Hawaiian Islands will 
be phased out in the coming years, in previous years when more 
bottomfish boats were fishing in this area, NMFS received one self-
reported incident (a hooking in 1994) and bottomfish hooks were 
observed in two seals at the French Frigate Shoals (one in 1982 and one 
in 1993). NMFS also had reports from the mid 1990's of seals stealing 
catch, seals being fed bait or non-target species by fishers to 
discourage seals from taking catch, and some seals becoming hooked and 
cut free.
    (3) ``HI Tuna handline fishery'': NMFS has never received a report 
of interactions between Hawaiian monk seals and tuna handline gear.
    While there have been no observed or reported interactions between 
monk seals and the ``HI lobster trap'' and ``HI Main Hawaiian Islands, 
Northwestern Hawaiian Islands deep sea bottomfish'' fisheries in recent 
years, NMFS has retained Hawaiian monk seals as a species/stock 
incidentally killed/injured in these fisheries because monk seals in 
the Main Hawaiian Islands are hooked and entangled at a rate that has 
not been reliably assessed. The 2007 SAR states that without a purpose-
designed observation effort, the true interactions rate between these 
fisheries and monk seals cannot be estimated. Also, the PBR level for 
monk seals is currently ``undetermined'' (Final 2007 SAR). Due to the 
fact that the PBR level for monk seals is undetermined and the hooking 
and entanglement rate cannot be reliably assessed, NMFS will retain the 
``HI lobster trap'' and ``HI Main Hawaiian Islands, Northwestern 
Hawaiian Islands deep sea bottomfish'' fisheries as Category III 
fisheries on the LOF until more information becomes available to 
determine whether reclassification is warranted.
    NMFS is removing the Hawaiian monk seal from the list of species/
stocks killed/injured in the ``HI tuna handline fishery,'' under which 
the stock has been listed since the 1996 LOF. As stated above, NMFS has 
never received a report of interactions between monk seals and tuna 
handline gear. In a thorough review of all of the past and current 
Hawaiian monk seal SARs, NMFS was unable to determine the reason for 
this stock's inclusion on the list of species/stocks killed/injured in 
this fishery. Therefore, NMFS removes the stock from the list of 
species/stocks killed/injured in the ``HI tuna handline fishery.''
    Comment 14: The CBD stated that observer data from the American 
Samoa longline fishery shows high levels of take of false killer 
whales. This fishery should be listed as Category I rather than 
Category III.
    Response: NMFS analyzes observer data and applies observed takes 
against calculated PBR levels during the process of updating and 
publishing the annual SARs. The LOF then categorizes fisheries based on 
the most recent SARs (including observer documented interactions, 
stranding data, and other data reported in the SARs). NMFS recommends 
that the commenter present this concern during the public comment 
period for the SARs.
    Also, NMFS notes that 10 trips, with 410 sets, were observed in 
this fishery in 2007 with no observed marine mammal interactions. NMFS 
will reexamine the classification of this fishery on a future LOF if 
the analysis of the 2008 observer data reported in the SARs indicated 
that a change in categorization is warranted.

[[Page 73043]]

    Comment 15: The CBD stated that the proposal to split the HI 
longline fishery into separate deep-set and shallow-set components 
appears appropriate. However, they believe that both components should 
be classified as Category I. Observer data from 2008 shows take of 
false killer whales and humpback whales from the shallow-set component 
of the fishery, indicating that it too meets the Category I criteria.
    Response: As noted in the response to comment 14, NMFS analyzes 
observer data and applies observed takes against calculated PBR levels 
during the process of updating and publishing the annual SARs. NMFS 
then classifies fisheries on the LOF based on the most recent SARs 
(including observer documented interactions, stranding data, and other 
data reported in the SARs). The data presented in the annual SARs have 
an average of a two-year time delay because of the time needed to 
properly analyze the data and complete the peer-review process. 
Observer data from 2008 has not yet been analyzed and included in the 
current SARs or included in the level of annual mortality and serious 
injury for false killer whales or humpback whales. NMFS recommends that 
the commenter present this concern during the public comment period for 
the next draft SAR. NMFS will reexamine the categorization of this 
fishery on a future LOF if the analysis of the 2008 observer data 
reported in the SARs indicates that a change in categorization is 
warranted.
    Comment 16: The HLA supported NMFS proposal to separately 
categorize the deep-set and shallow-set HI-based longline fisheries. As 
explained by NMFS in the proposed rule, based on the factors listed in 
the proposed rule (and as HLA has previously commented). Recognizing 
the well-documented distinctions between these fisheries, NMFS brings 
the LOF into harmony with the purpose of the annual LOF, to provide 
meaningful public identification of fisheries by the extent to which 
they interact with marine mammals.
    Response: NMFS acknowledges the comment. The split is warranted 
based on the several factors listed in the proposed rule.
    Comment 17: The WPFMC and HLA stated that the shallow-set component 
of the HI longline fishery must be based on the best available 
population data, and may be more appropriately classified as a Category 
III fishery. NMFS bases the Category II designation on a single 
interaction from 2006 with a humpback whale, thought to be from the 
Central North Pacific stock, which has a PBR level of 12.9 whales. 
However, NMFS recognized in the draft 2008 SAR (73 FR 40299, July 14, 
2008) that this information is outdated because it is based on 
abundance estimates that are more than eight years old. NMFS has new, 
reliable population abundance data from the Structure of Populations, 
Levels of Abundance, and Status of Humpbacks (SPLASH) project, which 
reports a marked increase in North Pacific humpback whale populations. 
In a May 2008 press release, NMFS announced that the overall population 
of humpbacks in the North Pacific Ocean ``has rebounded to 
approximately 18,000 to 20,000 animals.'' The HLA added that the MMPA 
requires that NMFS use the best available scientific information in 
determining the minimum population estimate used and to classify 
fisheries on the LOF; which is true regardless of whether the 
information has been published yet. Further, the WPFMC believes that 
there should be a transparent peer reviewed process for the designation 
of strategic stocks.
    Response: This comment refers to a recalculation of the PBR for 
humpback whales. Changes to population estimates, trends, and PBR 
levels are reported in the SARs, and NMFS then categorizes fisheries on 
the LOF based on the information presented in the SARs. The most recent 
SARs have not yet incorporated the published data from the SPLASH 
project to calculate a new and/or different PBR for humpback whales. 
NMFS recommends that the commenter present this concern during the 
public comment period for the next draft SAR. NMFS will reexamine the 
categorization of this fishery on a future LOF if future SARs report a 
change to the current PBR for this stock of humpback whales.
    The process for designating strategic stocks is both transparent 
and peer-reviewed. The designation of a strategic stock is first listed 
in the proposed annual SARs, which are both peer-reviewed by the 
Scientific Review Groups and released for public review and comment 
before becoming final.
    Comment 18: The Marine Mammal Commission concurred with NMFS' 
proposal to split the HI longline fishery into the Category II shallow-
set and Category I deep-set fisheries based on the reasons provided in 
the proposed rule. The reclassification of the shallow-set fishery is 
warranted based on the lack of information regarding population 
structure and abundance of marine mammals that the fishery interacts 
with outside the U.S. EEZ. NMFS based the proposed Category II 
classification on observed interactions rates that do not exceed 50 
percent of PBR for stocks within the U.S. EEZ. However, the PBR level 
is unknown for stocks that occur outside the U.S. EEZ and are taken 
incidentally by this fishery. As stated in the proposed LOF, Category 
II is the appropriate category for new fisheries for which NMFS does 
not have adequate information to accurately categorize the fishery.
    Response: NMFS acknowledges the comment and will continue to 
conduct and support research regarding the population structure and 
abundance of the marine mammals that are interacting with these 
fisheries.
    Comment 19: The WPFMC continues to be concerned about the 
categorization of all hookings on the exterior of the head and in the 
jaw in cetaceans as being likely to result in mortality. The Council 
does not believe that there is sufficient scientific information to 
justify a 100 percent mortality rate for these injuries, and suggests 
instead that some realistic probability scale be developed similar to 
that for longline hooked turtles. For turtles, an external hooking is 
given a 5 to 20 percent probability of causing a post-release 
mortality, while internal hookings range from 10 to 60 percent 
probability, based on various factors. It seems inconsistent of NMFS to 
develop a precise defensible system of categorization for turtle 
hookings and a blanket 100 percent mortality rate for cetaceans based 
on any hooking to the head and internally. Clearly, these are very 
different taxa, but there must be sufficient scientific observations 
available on cetaceans with which to construct better evaluation 
criteria for hookings. As such, the interactions with cetaceans are 
always going to be positively biased, with excessive mortalities being 
ascribed to fisheries.
    Response: This comment is related to the determination of a serious 
injury, which NMFS scientists and/or the authors of the SARs make and 
report in the annual SARs. The SARs estimate annual human-caused 
mortality and serious injury caused by interactions with commercial 
fisheries and other human activities. NMFS does not make serious injury 
determinations through the LOF rulemaking process. NMFS classifies 
fisheries on the LOF based on the level of serious injury (and 
mortality) presented in the SARs. NMFS recommends that WPFMC submit 
this comment during the public comment period on the next draft SAR.
    Comment 20: The WPFMC stated that the proposed list of marine 
mammals with which HI's deep set longline fishery interacts includes 
the Bryde's whale, pantropical spotted dolphin, and sperm whale. A 
search of the observer

[[Page 73044]]

data from 2003-2007 shows no records of these three species interacting 
with the fishery. If they are to be listed in Table 1, there should be 
a footnote to the effect that these cetaceans were not seen within the 
past five years, which the Council understands is the criteria used 
when evaluating the fisheries for the LOF.
    Response: There are no records of recent serious injuries or 
mortalities of Bryde's whales, sperm whales, or pantropical spotted 
dolphins in the ``HI deep-set (tuna target) longline/set line 
fishery.'' The recorded interactions with these species were in the 
shallow-set component of the HI longline fishery. These species were 
inadvertently retained under the list of species/stocks killed/injured 
in this fishery when NMFS split the HI longline fishery into the 
separate deep-set and shallow-set components on the proposed 2009 LOF 
(73 FR 33760, June 13, 2008).
    NMFS has corrected this error and removed Byrde's whale, sperm 
whale, and pantropical spotted dolphin from the list of species/stocks 
killed/injured in the ``HI deep-set (tuna target) longline/set line 
fishery'' in the final 2009 LOF, and included the species on the list 
for the shallow-set longline fishery.
    Comment 21: The WPFMC believes that the evidence for categorizing 
the HI deep-set tuna longline fishery as a Category I is inadequate. 
The Council does not dispute the existence of an isolated, small false 
killer whale stock around Hawaii. However, the current longline 
exclusion zone around Hawaii extends from 50-75 nmi and creates a 
separation between these individuals and the fishery. Available genetic 
data suggests that the deep-set fishery interacts primarily with a 
larger Eastern Pacific false killer whale population.
    Response: Based on the PBR and the average annual serious injury 
and mortality rate reported in the recent SARs, the ``HI deep-set (tuna 
target) longline/set line fishery'' qualifies as a Category I fishery 
on the LOF (serious injury and mortality exceeds 50 percent of PBR for 
the HI stock of false killer whales). NMFS calculates PBR levels and 
determine the status of marine mammal stocks during the annual process 
of developing a SAR; then NMFS classifies fisheries on the LOF based on 
data reported in the annual SARs. NMFS recommends the commenter submit 
this comment, and any other comments regarding the stock's PBR or 
strategic status, during the public comment period for the next draft 
SAR.
    Comment 22: The CBD stated that the ``Gulf of AK sablefish longline 
fishery'' is listed as a Category III. Due to frequent interactions 
with sperm and killer whales, this fishery should be listed as a 
Category I or II.
    Response: Fisheries are categorized in the LOF based on the level 
of serious injuries and mortalities relative to the PBR levels for 
specific species, not the frequency of ``interactions.'' At the time 
the proposed 2009 LOF was developed, the best available information was 
that no marine mammals were seriously injured or killed incidental to 
this fishery between 2001 and 2005, the most current data available in 
the SARs, so the fishery is appropriately retained in Category III. New 
information on serious injuries and mortalities has been included in 
the recent draft SARs which indicates that 3 serious injuries of sperm 
whales were observed in 2006, which would extrapolate to an estimated 
10 serious injuries or mortalities of sperm whales incidental to this 
fishery, or 2 sperm whales per year for the 5-year period from 2002-
2006. This information is still under review and will be considered 
when the next LOF (the proposed 2010 LOF) is developed.
    Comment 23: The CBD noted inconsistencies in the classification of 
AK purse seine fisheries. Three salmon purse seine fisheries are listed 
as Category II, yet the description of the Category III ``AK salmon 
purse seine (except Southeast AK, which is in Category II) fishery'' 
only excludes one of these Category II fisheries from its description. 
This should be corrected, and the estimated number of vessels altered 
as necessary for consistency.
    Response: The Category III fishery identified as ``AK salmon purse 
seine (except Southeast AK, which is in Category II) fishery'' was 
included in the LOF when it was created under the section 118 of the 
MMPA (i.e., under the 1994 MMPA Amendments). The ``AK salmon purse 
seine (except Southeast AK, which is in Category II) fishery'' was 
created to include all of the numerous purse seine fisheries around the 
state of AK, other than the Category II ``Southeast AK purse seine 
fishery.'' Information on marine mammal interactions with any of these 
purse seine fisheries included in the ``AK salmon purse seine (except 
Southeast AK, which is in Category II) fishery,'' particularly serious 
injury and mortality, was not available to NMFS when the LOF was 
created at that time. Since 1994, information on serious injury and 
mortality to humpback whales in the Cook Inlet and Kodiak purse seine 
fisheries has been obtained. Therefore, NMFS identified the ``Cook 
Inlet salmon purse seine fishery'' and the ``Kodiak salmon purse seine 
fishery'' separately on the 2007 LOF (72 FR 14466, March 28, 2007) as 
Category II fisheries based on the results from the analysis of the 
respective serious injury and mortality levels of humpback whales in 
these fisheries. To clarify that the Category III AK salmon purse seine 
fishery includes all AK salmon purse seine fisheries other than those 
listed as Category II on the LOF, NMFS has renamed the Category III 
``AK salmon purse seine (except Southeast AK, which is in Category II) 
fishery'' as the ``AK salmon purse seine (excluding salmon purse seine 
fisheries listed as Category II).'' If additional information on marine 
mammal serious injury and mortality incidental to other discrete AK 
salmon purse seine fisheries becomes available in the future, and meets 
the criteria for elevation to Category II, those individual fisheries 
will be removed from the broader ``AK salmon purse seine (excluding 
salmon purse seine fisheries listed as Category II)'' and elevated to 
Category II under appropriate, specific fishery-identifying 
nomenclature.
    Comment 24: The CBD noted that high levels of entanglement-related 
scarring have been documented for humpback whales in AK. While some 
gillnet and purse seine fisheries are listed as Category II due to 
humpback interactions, the ``AK Bering Sea sablefish pot fishery'' is 
the only pot, ring net or trap fishery so categorized. All other AK pot 
fisheries should also be classified as Category II rather than Category 
III.
    Response: NMFS uses very careful criteria in assigning marine 
mammal serious injuries and mortalities to specific fisheries for the 
purpose of categorizing them in the LOF. In the Alaska Region, these 
criteria include, but are not limited to: Clear identification of 
attached gear, eyewitness accounts, or other credible information. When 
those criteria have been met, the individual serious injury or 
mortality is included in the data set used in the standard annual 
analysis conducted to assign fisheries in the LOF.
    Current information on humpback scarring in Alaska is not detailed 
enough to allow NMFS to be able to identify and link specific scars or 
scarred animals to an individual fishery or even a specific fishing 
gear type, except under the rarest of circumstances. Further, humpback 
whales travel long distances and obtain scars from gear originally set 
great distances from the geographic location where the scar was noted. 
Finally, the analysis conducted for the annual LOF uses a rolling five-
year average. This

[[Page 73045]]

allows for changes to fishing methods or natural fluctuations in animal 
distribution or behavior. Scars persist for varying lengths of time and 
scarring information would need to be much better understood than it is 
currently to be able to be used effectively in the annual LOF analysis. 
Information regarding serious injury or mortality incidental to the 
``Gulf of Alaska sablefish pot fishery'' clearly indicates the take of 
the humpback whale was associated with that fishery, leading to the 
Category II classification for that fishery.
    Without more detailed evidence, NMFS cannot assume that all 
humpback whale scars result from interactions with specific commercial 
fisheries. Further, NMFS cannot make assumptions at this time as to 
what proportion of entanglements that result in scarring lead to 
serious injury or mortality, the driving criteria for classifying 
fisheries on the LOF.
    Comment 25: If the ``OR Dungeness crab pot fishery'' is elevated to 
a Category II on the final 2009 LOF, the ODFW requested NMFS advice and 
assistance to fulfill, in the most efficient manner possible, those 
requirements under the ESA that would apply to the fishery's 
interactions with listed humpback whales.
    Response: This final rule classifies the ``OR Dungeness crab pot 
fishery'' as a Category II fishery. NMFS will work with the State of 
Oregon relative to changes on the LOF that affect state-managed 
fisheries.
    Comment 26: If the ``OR Dungeness crab pot fishery'' is elevated to 
a Category II on the final 2009 LOF, fishing vessel owners will be 
required to register with NMFS and obtain a marine mammal authorization 
certificate by January 1, 2009. This would occur during the height of 
effort in this fishery and most participants will be actively fishing 
when the new rule would take effect. The ODFW requests that NMFS strive 
to minimize any disruptions to fishing activities in order to implement 
any new requirements. ODFW and NMFS regional staff have discussed 
potential implementation issues, particularly for the first year, and 
ODFW staff remains available to work with NMFS on these issues.
    Response: NMFS will work with the state fishery managers to 
integrate fisher registration for the MMAP program with state licensing 
processes, to the extent possible. NMFS will request fisher 
registration information from the state licensing office in order to 
issue authorization certificates to fishers in a timely and cost 
efficient manner.
    Comment 27: ODFW supports the addition of a separate Category II 
``OR Dungeness crab pot fishery.'' ODFW is concerned about fishery 
interactions with marine mammals and has implemented several on-going 
management measures for the OR Dungeness crab pot fishery that will 
reduce the risk of interactions in the future. Fishing effort has been 
reduced from an estimated high of 200,000 pots in 2006, when the 
observed humpback whale entanglement occurred, to a maximum of 150,000 
pots per season. Logbook information including date, location, and 
amount of gear fished is now required for all crab vessels. This 
information will be useful in the future to assess the potential for 
interactions and ways to reduce interactions. ODFW has also implemented 
management measures that restrict untended gear to no more than 14 days 
and several temporary rules to facilitate fishers opportunistically 
retrieving lost or derelict gear. ODFW has also partnered with others 
to charter vessels specifically to retrieve derelict and lost crab 
pots. ODFW anticipates working with NMFS to smoothly and efficiently 
implement the new requirements.
    Response: NMFS acknowledges the State of Oregon's positive steps in 
reducing the incidental take of marine mammals in the ``OR Dungeness 
crab pot fishery.''
    Comment 28: ODFW strongly supports the proposal to split the 
current ``WA/OR/CA crab pot fishery'' into three fisheries, one for 
each state. Each state has different management and permitting 
frameworks for Dungeness crab trap/pot fishing, and different amounts 
of gear in state waters. Also, known interactions with marine mammals 
differ between states, probably mainly due to differences in the timing 
and amount of gear fished, and differences in timing and distribution 
of marine mammals along the coast. The potential risk of humpback whale 
entanglements in Dungeness crab pot gear appears to progressively 
decrease from CA to WA, based on the humpback whale movement patterns, 
fishing intensity patterns, and observed reports of humpback whale 
entanglements. This differential risk from south to north justifies the 
proposed separation of the west coast fishery into three fisheries. 
Also, while there is a Tri-State agreement that addresses some aspects 
of the West Coast Dungeness crab fishery, the individual states have 
the primary role in managing their respective fishery and the 
management authorities and actions differ among states. The different 
authorities and the lack of a true regional management system provide 
added justification to separate the fishery among states.
    Response: NMFS has classified the three fisheries by state in this 
final rule. The presence of humpback whales along the west coast varies 
seasonally and the relationship between the presence of whales and the 
peak periods of fishing effort likely influences the potential for 
entanglement. The management of the fisheries by the individual states 
affords added flexibility to respond to regional differences more 
quickly to reduce the risk of entanglement for the whales.
    Comment 29: The CBD stated that, while the proposed 2009 LOF 
includes several West Coast pot and trap fisheries as Category II due 
to interactions with humpback whales, the proposed LOF improperly 
excluded many similar fisheries. CBD stated that NMFS acknowledges 
humpback whale entanglements are likely significantly underreported, 
yet only includes those fisheries as Category II if the fishery is 
known to interact with humpbacks or if there is a time/space overlap 
with a reported entanglement. CBD believes this method results in 
several fisheries being classified as Category III when Category II is 
the more appropriate classification. All pot or trap fisheries that 
occur within the range of the humpback whale should be classified as 
Category II until and unless observer coverage demonstrates that they 
do not pose a risk of entanglement to the species.
    Response: As described in the final 2008 LOF (72 FR 66048, 66066, 
November 27, 2008), NMFS researched the commercial pot and trap 
fisheries to better understand which of those fisheries may interact 
with humpback whales along the coast of California. NMFS extended its 
analysis for the 2009 LOF to include pot and trap fisheries along the 
coasts of Washington and Oregon and worked closely with fisheries staff 
from the three states. NMFS developed criteria described in the 
proposed 2009 LOF to evaluate the pot and trap fisheries along 
California, Oregon, and Washington and determine which are most likely 
to interact with humpback whales. The first criterion was whether there 
is direct evidence of entanglements with a specific fishery (e.g., the 
identification of spot prawn gear on a humpback whale entangled in 
September 2005). In the absence of direct evidence on interactions, the 
second criterion was used, (i.e., the fishery occurs in an area and 
time where humpback whale entanglements have been observed and reported 
to NMFS). This criterion was used to refine the analysis with the 
limited information

[[Page 73046]]

available. NMFS acknowledges the uncertainties associated with this 
analysis. However, NMFS believes that the criteria described in the 
proposed 2009 LOF and used to assess the fisheries is the most 
reasonable means at this time of using the available information and 
reclassifying certain pot and trap fisheries.
    The commenter suggests that all west coast pot and trap fisheries 
in the range of humpback whales be listed as Category II, until 
observers can show that the fisheries do not pose a threat to marine 
mammals. However, observers in pot and trap fisheries have very limited 
ability to detect these types of interactions. In most instances, trap/
pot gear is left to soak for some time and is not actively tended by 
the fishing vessel for the majority of the soak period. Interactions 
(entanglements) between large whales and trap/pot gear are therefore 
unlikely to be observed from the fishing vessel except in the rare 
instance when the vessel is present at the time the entanglement 
occurs. Therefore, alternative monitoring methods are needed for trap/
pot fisheries. NMFS has begun work (and will cooperate with other 
agencies, the scientific and fishing communities, and the general 
public) to find ways to monitor pot/trap fisheries and gather 
additional data to better understand the nature of the interactions 
between these fisheries and marine mammals. As noted in the 2009 LOF 
proposed rule, when and if additional information becomes available, 
NMFS would consider reclassifying pot/trap fisheries.
    Comment 30: The Marine Mammal Commission recommended that NMFS 
reclassify all currently recognized west coast pot and trap fisheries 
as Category II until additional information is available to categorize 
a given fishery as a Category I or III. Although the Commission 
appreciates NMFS' efforts to evaluate information on observed humpback 
whale entanglements and attribute those entanglements to specific trap/
pot fisheries, the Commission believes that the analysis and resulting 
proposed reclassifications do not account appropriately for the 
substantial uncertainty in the number and location of entanglements. 
The Commission acknowledged that NMFS has shown that humpback whales do 
become entangled in trap/pot gear, and that there is no evidence to 
suggest that whales are more or less likely to become entangled in gear 
from any specific trap/pot fishery. NMFS noted in the proposed 2009 LOF 
that ``other pot and trap fisheries may overlap in space and time with 
humpback whales feeding or migrating along the West coast, but in the 
absence of evidence of interactions, NMFS cannot justify placing these 
fisheries in Category II at this time.'' The Commission believes that 
this statement misplaces the burden of proof and removes the incentive 
for collecting important information on entanglement rates. The vast 
majority (90 to 97 percent) of humpback whale entanglements are not 
observed (Robbins and Matilla, 2001, 2004) and, by implication, at 
least some entanglements of endangered baleen whales are not observed 
and reported. Given that the majority of entanglements are not 
observed, it is reasonable to classify all west coast trap/pot 
fisheries as Category II based on their similarity to those trap/pot 
fisheries that are known to have incidentally entangled whales. Also, 
NMFS acknowledges in the proposed rule that ``Category II is also the 
appropriate category for fisheries for which reliable information on 
the frequency of marine mammal serious injury or mortalities is 
lacking.''
    Response: Please see the response to Comment 29 above. NMFS 
acknowledges that there are likely interactions with marine mammals 
that are not observed or reported. However, NMFS reviewed all of the 
records of entanglements, the distribution of humpback whales and the 
spatial and temporal characteristics of the pot and trap fisheries on 
the U.S. west coast and developed criteria to reclassify fisheries 
based upon the best available information. NMFS is also working on ways 
to increase the amount of information available on interactions between 
marine mammals and pot and trap fisheries on the U.S. west coast. The 
commenter suggests that other species of endangered baleen whales may 
be entangled in pot and trap gear, but not observed. At this time, NMFS 
is focused on interactions with humpback whales and gray whales since 
these are the only species observed entangled in pot and trap gear on 
the U.S. west coast. Also, other pot and trap fisheries in the Pacific 
(including Hawaii and Alaska fisheries) have not been observed to 
interact with baleen whale species other than humpback whales.
    NMFS notes that there was a typographical error in the proposed 
2009 LOF on page 33772. The text should have stated that Category II is 
appropriate for new fisheries for which NMFS does not have adequate 
information. This is consistent with the text throughout the proposed 
rule related to the addition of high seas fisheries, and as stated in 
the final rule implementing the section 118 regulations (60 FR 45086, 
August 30, 1995, at 45090) and the final 2006 LOF (71 FR 48802, August 
22, 2006; Comment/Response 4). As noted on page 33763, 33768, 33769, 
and 33770 of the proposed 2009 LOF, ``Category II is the appropriate 
category for new fisheries for which NMFS does not have adequate 
information to accurately categorize.'' Fisheries previously included 
on the LOF as a Category I or III are reclassified as Category II after 
evaluating the information in the SARs, the type of gear being used, 
stranding records, and the distribution of marine mammals in the area. 
All west coast pot and trap fisheries have been previously included in 
the LOF as Category III fisheries; therefore, NMFS conducted this type 
of analysis on the west coast pot and trap fisheries and detailed the 
process in the proposed rule. As stated in the proposed 2009 LOF, NMFS 
will continue to review information related to humpback and gray whale 
entanglement events in pot and trap gear and consider reclassifying 
other west coast pot and trap fisheries if additional information 
becomes available.
    Comment 31: The CA Wetfish Producers Association requested NMFS 
remove short-finned pilot whales from the list of species killed/
injured in the Category II ``CA squid purse seine fishery'' because the 
most recent scientific information available does not justify including 
this species for interactions with this fishery. The fishery is being 
monitored and was observed during the expansion period. The 2007 SAR 
indicates that 193 sets were observed from 2004-2006. The commenter 
examined the NMFS SWR CA Coastal Pelagic Purse Seine Observer Program 
database, which indicated that 95 sets were observed through March 
2007, with an additional 80 sets observed from July 2007-December 2007. 
Based on these data, there is not evidence that short-finned pilot 
whales were taken in this fishery during this recent span of years.
    Response: NMFS received a similar comment on the proposed 2008 LOF 
(72 FR 66048, November 27, 2008; comment/response 18). As noted in the 
response to comment 18 in the 2008 LOF, there have been no observed 
takes of short-finned pilot whales in this fishery during the three 
years it was monitored (2004-2006); however, annual observer coverage 
was very low (the estimated coverage was only 1.1 percent in 2005, and 
less than 2 percent in the other years). The low level of observer 
coverage over three years may not reliably indicate the frequency of 
incidental mortality or serious injury of marine mammals in this 
fishery. In

[[Page 73047]]

considering whether a fishery should be listed as Category II, NMFS 
must evaluate a variety of factors including the fishing technique 
used, the seasons and areas fished, stranding reports, and the 
distribution of marine mammals in the area. NMFS feels that based upon 
the most recently available information, including stranding reports 
over the past few years, that a thorough evaluation of the ``CA squid 
purse seine fishery,'' as well as the ``CA anchovy, mackerel, sardine 
purse seine fishery'' and the ``CA tuna purse seine fishery,'' is 
warranted. NMFS will thoroughly evaluate the available information on 
the three above referenced California purse seine fisheries and will 
include the results in the proposed 2010 LOF. At that time, NMFS will 
determine whether reclassifying some of the CA purse seine fisheries, 
including the ``CA squid purse seine fishery,'' is appropriate.
    Comment 32: The CA Wetfish Producers Association requested NMFS 
remove common dolphin, stock unknown, from the list of species killed/
injured in the Category II ``CA squid purse seine fishery'' based on 
the most recent scientific information available. The NMFS SWR CA 
Coastal Pelagic Purse Seine Observer Program data contain one single 
observed interaction off Santa Barbara on January 3, 2005, resulting in 
one dead unidentified common dolphin. The most recent and relevant 
scientific information indicates there have been zero interactions with 
either long- or short-beaked common dolphins. There were more than 193 
trips observed by federal observed during 2004-2006, and 80 sets 
observed in mid- to late-2007, with zero interactions (except for the 
single 2005 incident). Clearly, this fishery represents no current 
threat to either stock of common dolphins.
    Response: A similar comment was made on the 2008 LOF. As described 
in NMFS' response to this comment in the final 2008 LOF (72 FR 66048, 
November 27, 2007; Comment/Response 19), there is insufficient 
information available to identify the species of common dolphin 
observed taken in the squid purse seine fishery. Both species, long-
beaked common dolphins and short-beaked common dolphins, utilize much 
of the same habitat and overlap in areas with the squid purse seine 
fishery; therefore, it is possible that either species could have been 
taken. Further, the draft 2008 SARs includes an account in 2006 of 
eight unidentified dolphins entangled in a squid purse seine net. Seven 
of the animals were released unharmed, and one was seriously injured. 
The area in which these interactions occurred is an area where long-
beaked common dolphins are known to occur. Given the paucity of 
information on the interaction, NMFS cannot eliminate the possibility 
that a long-beaked common dolphin was seriously injured during this 
event.
    To make the list of marine mammal species and stocks incidentally 
killed/injured in the ``CA squid purse seine fishery'' more clear, NMFS 
is changing the stock from ``common dolphin, unknown'' to ``short-
beaked common dolphin, CA/OR/WA'' and ``long-beaked common dolphin, 
CA'' to account for the uncertainty of the species observed seriously 
injured or killed in this fishery. This is consistent with how NMFS 
lists marine mammal stocks on the LOF that are difficult to distinguish 
from one another in the field and/or for which additional genetic data 
is not available for a given interaction (i.e., resident and transient 
killer whales in Alaska fisheries, and long-finned and short-finned 
pilot whales in Atlantic fisheries).
    Comment 33: The CA Wetfish Producers Association requested NMFS 
recategorize the Category II ``CA squid purse seine fishery'' to a 
Category III based on existing observer data from 2004-2007, the 
paucity of marine mammal interactions with this fishery, and because 
the number of participants has reduced from 71 to 64 active vessels. 
Recategorization of this fishery to a Category III is justifiable and 
consistent with the best scientific information available. Also, a 
recategorization would provide the industry with validation that NMFS 
actually utilizes observer data to adjust the LOF annually to reflect 
current circumstances in commercial fisheries. Furthermore, the 
commenter requested the LOF be updated to reflect the reduction in the 
number of participants to 64, consistent with CA Department of Fish and 
Game records indication that 64 purse seine vessels landed squid in 
2007.
    Response: NMFS recognizes that the squid purse seine fishery 
warrants further evaluation based upon all available information, 
including observer records. Please see response to Comment 31 above for 
more information. NMFS appreciates the information on the number of 
active vessels in this fishery and has updated the number of active 
vessels to 64 in the final 2009 LOF.
    Comment 34: The Marine Mammal Commission concurred with NMFS' 
proposal to reclassify the ``CA halibut/white seabass set net fishery'' 
from Category I to II based on the information provided in the proposed 
rule.
    Response: NMFS acknowledges and appreciates the comment.
    Comment 35: The CDFG supported reclassifying the ``CA Dungeness 
crab pot fishery'' to a Category II fishery given the relatively high 
likelihood of humpback whale interactions. However, as with the 
sablefish pot fishery, CDFG believes that this fishery should have a 
coastwide designation as the ``(WA/OR/CA) Dungeness crab pot fishery'' 
because it is difficult to determine the precise location of the 
original entanglement or other incident, and humpback whale migratory 
patterns are such that an entangled whale might be encountered and 
reported far from the site of the incident. Also, there is no evidence 
that primary fishing areas in California, which are north of Point 
Arena, differ from Oregon and coastal Washington with respect to the 
likelihood of these interactions.
    Response: As explained in the proposed 2009 LOF, NMFS believes that 
because of the differences in management of the Dungeness crab pot 
fishery by each state, it is appropriate to split the fishery into 
three separate fisheries by state. Also, unlike the sablefish fishery, 
fishermen targeting Dungeness crab are limited to fishing the waters 
off the state for which they hold a permit. For example, a fisherman 
with a Washington permit may only set Dungeness crab pot gear off 
Washington, while a fisherman with a California permit may only set 
gear off California. The sablefish fishery permit does not have this 
same restriction. A fisherman possessing a sablefish fishery permit 
(open access) may set gear in the waters off any of the three states.
    As noted in the proposed 2009 LOF, NMFS acknowledged some level of 
uncertainty associated with the assumption that the area in which an 
entangled animal is observed is the area where the entanglement 
occurred. However, this assumption was considered necessary in order to 
utilize the available information and is supported by the available 
data on entanglements. For example, spot prawn gear was identified on a 
humpback during a time and in an area during high levels of effort in 
the spot prawn trap fishery (73 FR 33799, June 13, 2008). NMFS believes 
that effort in the fisheries is likely to affect the likelihood of an 
interaction with a humpback whale, since each fishery occurs at 
slightly different times of the year off the coasts of California, 
Oregon, and Washington. For example, the effort in the southern half of 
California in the ``CA Dungeness crab pot fishery'' may begin in mid-
November, overlapping with the time that humpback whales are

[[Page 73048]]

likely to be migrating through the waters. However, in Oregon and 
Washington the peak of the fishery is December through February, at 
which time most humpback whales have migrated out of the area on their 
way to winter breeding areas off Mexico. As described in NMFS' pot and 
trap fishery characterization referenced in the proposed 2009 LOF, 
Dungeness crab pots may be fished through the spring, in waters off 
each of the three states' coasts, thus affecting the likelihood of 
interactions with humpback whales (i.e., Dungeness crab pot gear fished 
off Oregon in May, is believed to be responsible for the entanglement 
of a humpback whale that stranded dead on the Oregon coast). However, 
given the typical fishery patterns and the migratory behavior of 
humpbacks in California waters, it is likely that gear off California 
is more likely to entangle humpbacks during their migration.
    Comment 36: The CDFG supported the evaluation of the ``WA/OR/CA 
sablefish pot fishery'' to a Category II fishery and supported the 
continuation of the tri-state, coastwide designation of the sablefish 
pot fishery. The limited information available regarding humpback whale 
interactions makes it difficult to determine the precise location of 
the original entanglement or other incident, and humpback whale 
migratory patterns are such that an entangled whale might be 
encountered and reported far from the site of the incident.
    Response: As described in the proposed 2009 LOF and in the response 
to comment 35 above, the existing sablefish fishery regulations allow 
fishers from one state to fish sablefish pot gear off another state. 
Therefore, it is most appropriate to list the sablefish pot fishery on 
the LOF as one fishery that includes effort in waters in all three 
states.
    Comment 37: The CDFG supported the removal of Eastern North Pacific 
humpback whales and CA sea otters from the list of species and stocks 
incidentally killed/injured in the Category III ``CA spiny lobster, 
coonstripe shrimp, finfish, rock crab, tanner crab pot or trap 
fishery,'' based on the 2008 analysis of humpback and gray whale 
interactions, and the lack of any known interactions with sea otters 
since 1987.
    Response: NMFS acknowledges this comment.
    Comment 38: The CDFG proposed that NMFS remove finfish from the 
Category III ``CA spiny lobster, coonstripe shrimp, finfish, rock crab, 
tanner crab pot or trap fishery,'' and that the fishery be renamed to 
reflect this change, because the finfish trap fishery is a separate and 
distinct fishery from the various crustacean fisheries. Additionally, 
finfish are included in the Category III ``CA finfish and shellfish 
live trap/hook-and-line fishery.'' Furthermore, finfish cannot be taken 
in the lobster and rock crab trap fisheries (Fish and Game Code Section 
8250.5 and Title 14, CCR, Section 125.1). However, if the reference to 
finfish in this fishery is meant for hagfish, then it should be 
specified as such. Finally, the gray whale interaction listed in the 
LOF table comes from an observation of a gray whale with a lobster trap 
buoy line attached, and not from a finfish trap.
    Response: NMFS appreciates CDFG's clarification on these fisheries 
and has removed finfish from the existing fishery description and name. 
The name of the fishery in the final 2009 LOF has been renamed to the 
``CA spiny lobster, coonstripe shrimp, rock crab, tanner crab pot or 
trap fishery.'' Finfish in this fishery did not refer to hagfish, as 
the hagfish pot/trap fishery is currently listed separately on the LOF 
as the Category III ``OR/CA hagfish fishery.'' NMFS acknowledges and 
appreciates the clarification on the gray whale take in the lobster 
trap fishery and will continue to list gray whale as one of the species 
incidentally killed or injured in this fishery, as it is listed in the 
proposed 2009 LOF.
    Comment 39: The CDFG supported the proposal to separate the spot 
prawn trap fishery from the other crustacean trap/pot fisheries and 
place it in Category II. CDFG understands that the change is being 
proposed so that the other fisheries can remain in Category III.
    Response: NMFS acknowledges the comment.
    Comment 40: The CDFG proposed removing shellfish from the ``CA 
finfish and shellfish live trap/hook-and-line fishery'' and renaming it 
the ``CA nearshore finfish live trap/hook-and-line fishery,'' 
maintaining the Category III status because there are no documented 
instances of marine mammal interactions. Shellfish are already covered 
in the proposed ``CA spiny lobster, coonstripe shrimp, finfish, rock 
crab, tanner crab pot or trap fishery.'' Also, while these shellfish 
species are taken live they are not taken with hook-and-line gear. The 
majority of nearshore finfish are landed in the live condition. 
Nearshore finfish traps are set in very shallow waters (two to eight 
fathoms) in kelp beds and over rock habitat off southern and central 
CA. Traps are usually set and pulled multiple times a day.
    Response: The proposal to rename this fishery is appropriate for 
the reasons stated by the commenter. NMFS has renamed the Category III 
``CA finfish and shellfish live trap/hook-and-line fishery'' as the 
``CA nearshore finfish live trap/hook-and-line fishery'' in the final 
2009 LOF.

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

    Comment 41: The MAFMC supported the proposal to eliminate Loligo, 
Illex, and butterfish from the list of species targeted by the Category 
II ``Mid-Atlantic Mid-Water trawl fishery.'' In addition, the MAFMC 
supports the addition of these three species to the list of species 
targeted by the Category II ``Mid-Atlantic bottom trawl fishery.'' The 
MAFMC notes that it was not possible to determine what other species 
were added to the species list for this fishery given the information 
provided in the proposed rule.
    Response: After removing Illex squid, Loligo squid, and butterfish 
from the species targeted by the ``Mid-Atlantic mid-water trawl 
fishery,'' NMFS added ``chub mackerel and miscellaneous other pelagic 
species'' (73 FR 33775, June 13, 2008) to the description of species 
targeted by the Mid-Atlantic mid-water trawl fishery based on 
information provided in Appendix III of the 2007 final SAR.
    Comment 42: The MAFMC, the NCDMF, and the Garden State Seafood 
Association (reiterating a request made as a comment on the 2007 LOF 
and in a letter sent directly to NMFS in November 2006) each requested 
that NMFS conduct a Tier Analysis of the bluefish gillnet and croaker 
gillnet fisheries, currently included under the Category I ``Mid-
Atlantic gillnet fishery.'' The commenters requested the Tier Analysis 
to determine whether the data support downgrading these fisheries from 
Category I to Category II or III (thereby also separating the bluefish 
and croaker components from the ``Mid-Atlantic gillnet fishery''). 
Available observer data indicate that from 2000-2005 there were 109 
Atlantic croaker gillnet trips and 70 bluefish gillnet trips observed 
with no documented marine mammal interactions. Should these fisheries 
be downgraded to a Category II or III, the NCDMF recommends that 
observer coverage be increased in other Category I Mid-Atlantic gillnet 
fisheries.
    Response: In 1998, NMFS determined regulatory measures should be 
based on the characteristics of the gillnet fisheries that relate to 
marine mammal bycatch, rather than to base the regulations on target 
fisheries. NMFS determined that

[[Page 73049]]

the nature of the gear and how the gear is deployed determines whether 
marine mammals become entangled. Additionally, because the intended 
target species is not always the actual species landed, regulations 
based on sub-fisheries would become very difficult to enforce (See 
Harbor Porpoise Take Reduction Plan Final Environmental Assessment and 
Final Regulatory Flexibility Analysis, NMFS, 1998). Since the 
characteristics of gillnet gear targeting bluefish and croaker cannot 
be differentiated from the ``Mid-Atlantic gillnet'' fishery gear 
definition, NMFS has determined that the bluefish and croaker fisheries 
cannot be separated out for a separate tier analysis. Therefore, NMFS 
retains the current inclusion of the bluefish and croaker gillnet 
fisheries in the ``Mid-Atlantic gillnet fishery'' (Category I) and does 
not find the suggested sub-division to be warranted.
    Comment 43: NMFS proposes to add trotline gear as a new Category 
III fishery. The proposed rule describes trotline gear as a series of 
baited hooks attached to a horizontal line targeting blue crab, 
catfish, and other finfish species throughout the coastal Atlantic and 
Gulf of Mexico. The MAFMC states that in the Mid-Atlantic region, 
primarily in the Chesapeake Bay, trotlines are fished for blue crab 
without the use of hooks and asks if this fishery should be included 
under the newly proposed trotline category. If so, then the LOF should 
recognize a separate category for trotlines that do not use hooks, or 
consider excluding this fishery from the list because no hooks are 
deployed in this fishery. Similarly, the NCDMF did not support the 
inclusion of the blue crab trotline fishery in the proposed Category 
III ``U.S. Atlantic Ocean, Gulf of Mexico trotline fishery,'' and 
recommended that blue crab trotlines not be listed under this fishery. 
Blue crab trotlines used in North Carolina do not use hooks for 
retention of bait. Instead, the bait is tied to the trotline using 
small diameter twine.
    Response: At this time, the current definition only includes 
trotlines with hooks. However, in the future, NMFS intends to evaluate 
all Category III ``longline/hook and line fisheries'' definitions for 
clarification purposes. NMFS will investigate if the expansion of the 
``U.S. Atlantic, Gulf of Mexico trotline fishery'' warrants including 
gear without hooks or if non-hook trotline gear is more specific, 
therefore requiring a unique fishery definition.
    Comment 44: The MAFMC supported the addition of the North Carolina 
striped bass beach haul seine fishery to the list of fisheries included 
in the Mid-Atlantic haul/beach seine fishery.
    Response: NMFS has added the North Carolina striped bass beach haul 
seine fishery to the list of fisheries included in the Category II 
``Mid-Atlantic haul/beach seine fishery'' based on current gear 
practices and thus enabling more effective conservation measures and 
management.
    Comment 45: The NCDMF supported the proposed revisions to the 
description of the Category II ``Mid-Atlantic haul/beach seine 
fishery.'' The revised description will complement NCDMF Proclamation 
FF-51-2008, effective December 2008, which requires seines used in the 
Atlantic Ocean striped bass beach seine fishery to be constructed of 
multifilament or multi-fiber webbing. NCDMF intends to maintain the 
multifilament or multi-fiber webbing requirements throughout the 
Atlantic Ocean beach seine season.
    Response: NMFS will continue to work collaboratively with NCDMF to 
ensure descriptions and classifications in the list of fisheries of 
beach-based fisheries in North Carolina complement NCDMF's efforts.
    Comment 46: The CBD and the Marine Mammal Commission reiterated 
previous years' comments expressing concerns about marine mammal 
interactions with Gulf of Mexico fisheries. The Commission recommended 
that NMFS expedite its investigation of bottlenose dolphin stock 
structure, and both CBD and the Commission recommended NMFS reevaluate 
the classification of Gulf of Mexico fisheries. The CBD believes that 
the ``Gulf of Mexico blue crab trap/pot fishery'' should be classified 
as at least a Category II, and the ``Gulf of Mexico menhaden purse 
seine'' and the ``Gulf of Mexico gillnet'' fisheries should be 
classified as Category I based on known or likely impacts to bottlenose 
dolphin stocks.
    Response: NMFS does not believe elevating the ``Gulf of Mexico blue 
crab trap/pot fishery,'' ``Gulf of Mexico menhaden purse seine 
fishery,'' or ``Gulf of Mexico gillnet fishery'' is supported by 
available information. There is no observer program for these 
fisheries. NMFS relies on stranding data and fisher self-reports to 
document fishery interactions with marine mammals. While these sources 
show only a low level of interactions, NMFS recognizes that they are 
unreliable and likely to be biased low. However, NMFS will continue 
monitoring using self-reports and stranding data. Observer coverage for 
these fisheries also remains a priority if resources become available. 
In addition, PBR is unknown for these stocks because of insufficient 
information on stock structure and abundance.
    In the ``Gulf of Mexico blue crab trap/pot fishery,'' stranding 
data indicate there were two confirmed bottlenose dolphin interactions 
with crab pot fishing gear between 2002-2006, one of which was released 
alive. In the same period, four dead bottlenose dolphins stranded with 
rope or rope marks that may have been from trap/pot gear, but cause of 
death could not be determined.
    The ``Gulf of Mexico menhaden purse seine fishery'' was observed by 
researchers from Louisiana State University in 1992, 1994, and 1995. 
The observers documented nine bottlenose dolphin captures, three of 
which were mortalities. Using observed and total fishery effort data, 
the number of takes was linearly extrapolated to an estimate of 68 
animals. On the basis of this information, the fishery was elevated 
from Category III to Category II on the 1999 LOF (64 FR 9067, February 
24, 1999). Since that time, there has been no observer coverage in this 
fishery. Fishers' self-reports through the Marine Mammal Authorization 
Program (MMAP) reveal five bottlenose dolphin mortalities from 2002-
2006, with two mortalities in 2002, one in 2004, and two in 2005. 
However, information gathered under the MMAP cannot be verified, so it 
is not possible to extrapolate these numbers to obtain an estimate of 
total takes in this fishery.
    No marine mammal mortalities associated with gillnet fisheries in 
the Gulf of Mexico have been reported through the MMAP. Stranding data 
suggest that marine mammal interactions with gillnets do occur, causing 
mortality and serious injury. NMFS acknowledges that stranding data 
likely underestimate the extent of fishery-related mortality and 
serious injury. Interpreting the data is difficult due to varying 
ability among the stranding network to detect and respond to strandings 
in all areas and accurately document human interactions and the 
condition of the carcass when stranded.
    It is important to further investigate stock structure and 
abundance of bottlenose dolphins in the Gulf of Mexico. There is 
currently no PBR calculated for coastal stocks or bay, sound, and 
estuarine stocks, preventing NMFS from assessing the population-level 
impacts of serious injuries and mortalities. To address this, NMFS is 
working toward updating estimates of bottlenose dolphin abundance and 
refining bottlenose dolphin stock structure in the Gulf of Mexico. 
Specifically, in July and August 2007, NMFS completed a ship-based 
survey of

[[Page 73050]]

the Gulf of Mexico continental shelf and completed winter and summer 
aerial line-transect abundance surveys of coastal bottlenose dolphin 
stocks. To help characterize stock structure and abundance in bays, 
sounds, and estuaries, NMFS conducted a photo-ID mark-recapture study 
and biopsy sampling in Choctawhatchee Bay, FL, in July and August 2007 
and biopsy sampling in Mississippi Sound in 2005 and 2006. Data 
collected during these surveys are currently being analyzed, and 
updated information on population abundance and stock structure will 
appear in the 2008 SARs. Once this information is available and PBR is 
calculated for each stock, NMFS will be better able to assess the 
impacts of mortality and serious injury of marine mammals associated 
with commercial fisheries in the Gulf.
    Comment 47: The Marine Mammal Commission recommended that NMFS 
expand its efforts to collect reliable information on serious injury 
and mortality rates of marine mammals incidental to Gulf of Mexico 
fisheries, with priority being given to instituting an observer program 
for the menhaden purse seine fishery and expanding efforts to evaluate 
bottlenose dolphin entanglements in blue crab trap/pot gear. The CBD 
also recommended that NMFS make it a high priority to place observer 
coverage in the ``Gulf of Mexico menhaden purse seine fishery'' and 
further recommended that NMFS convene a TRT to address bottlenose 
dolphin take in the Gulf from this and other fisheries.
    Response: Collecting reliable information on serious injury and 
mortality of marine mammals in the Gulf of Mexico is essential. 
However, there are currently no resources to fund observer programs in 
these fisheries. Therefore, NMFS is focusing on building volunteer 
stranding network capacity in the Gulf and increasing the level and 
quality of stranding response. NMFS held training workshops for the 
stranding network in Texas, Louisiana, and Mississippi in May 2008 to 
train responders how to recognize and document human interaction and 
conduct necropsies. NMFS expects these efforts to increase the 
effectiveness of the stranding networks and better inform management 
decisions in the future.
    Observer coverage for the ``Gulf of Mexico menhaden purse seine 
fishery'' and evaluating bottlenose dolphin entanglements in the blue 
crab/trap pot gear are priorities if resources become available. 
Because population size and PBR are unknown for the three coastal and 
all the bay, sound, and estuary stocks, NMFS is unable to assess the 
population level impacts of serious injuries and mortalities from 
fisheries to determine whether annual mortality is greater than or 
equal to 50 percent of PBR. Thus, NMFS does not believe a TRT is 
supported by currently available information. As stated in the response 
comment 46, NMFS is working to collect and analyze additional data. 
Once this information is available and a PBR is calculated for each 
stock, NMFS will be better able to assess the impacts of mortality and 
serious injury of marine mammals associated with commercial fisheries 
in the Gulf of Mexico.

Summary of Changes to the LOF for 2009

    The following summarizes changes to the LOF for 2009 in fishery 
classification, fisheries listed in the LOF, the number of participants 
in a particular fishery, and the species/stocks that are incidentally 
killed or injured in a particular fishery. The classifications and 
definitions of U.S. commercial fisheries for 2009 are identical to 
those provided in the LOF for 2008 with the changes outlined below.

Commercial Fisheries on the High Seas

Addition of Fisheries to the LOF

High Seas Atlantic Highly Migratory Species Fisheries

    The high seas Atlantic HMS fisheries are added to the LOF. All gear 
types targeting Atlantic HMS on the high seas are categorized as 
Category II on the LOF, with the exception of longline and purse seine 
gear. The longline component of this fishery is classified as Category 
I because it is an extension of the Category I ``Atlantic Ocean, 
Caribbean, Gulf of Mexico large pelagics longline fishery'' operating 
within U.S. waters; and the purse seine component of this fishery is 
classified as Category III because it is an extension of the Category 
III ``U.S. Atlantic tuna purse seine fishery'' operating within U.S. 
waters. There are 88 valid HSFCA permits for fishers targeting Atlantic 
HMS on the high seas with all gear types. As noted in the preamble, the 
number of valid permits may not accurately account for annual fishing 
effort on the high seas.
    Observer information is available on which marine mammal stocks are 
incidentally killed or injured on the high seas by the Atlantic HMS 
longline fishery; therefore, NMFS lists the marine mammal species that 
have been documented killed or injured in the Category I high seas 
longline component of Atlantic HMS fisheries in Table 3. Similar 
observer data are not available for the high seas Atlantic HMS purse 
seine fishery, which is an extension of the Category III ``Atlantic 
tuna purse seine fishery.'' NMFS adds all non-coastal marine mammal 
species/stocks killed or injured in the Category III ``Atlantic tuna 
purse seine fishery'' as injured or killed in the high seas purse seine 
component of the Atlantic HMS fisheries.
    There is little information on interactions between marine mammals 
and fishing gear used to target Atlantic HMS on the high seas, other 
than that listed in the previous paragraphs. Given the lack of data on 
marine mammal abundance and interactions with high seas Atlantic HMS 
fisheries using gear other than longline and purse seine, NMFS lists 
the marine mammal species killed or injured in these fisheries as 
``undetermined'' in Table 3.

High Seas Pacific Highly Migratory Species Fisheries

    The high seas Pacific HMS fisheries are added to the LOF. All gear 
types targeting Pacific HMS on the high seas are listed as Category II, 
with the exception of drift gillnet and troll gear. The drift gillnet 
component of this fishery is listed as a Category I because it is an 
extension of the Category I ``CA/OR thresher shark/swordfish drift 
gillnet (>=14 in. mesh) fishery'' operating within U.S. waters; and the 
troll component of this fishery is listed as a Category III because it 
is an extension of the Category III ``AK North Pacific halibut, AK 
bottom fish, WA/OR/CA albacore, groundfish, bottom fish, CA halibut 
non-salmonid troll fisheries'' operating within U.S. waters. There are 
344 valid HSFCA permits for fishers targeting Pacific HMS on the high 
seas using all gear types. As noted in the preamble, the number of 
valid permits may not accurately account for annual fishing effort on 
the high seas.
    Observer information is available for which species/stocks are 
incidentally killed or injured in the high seas longline component of 
this fishery; therefore, NMFS lists the marine mammal species that have 
been documented killed or injured in the high seas longline component 
of Atlantic HMS fisheries in Table 3. This list of species/stocks is 
identical to those listed as taken in the Category II ``CA pelagic 
longline fishery'' operating in U.S. waters. This is because the 
fishery is currently prohibited within U.S. waters, but remains listed 
on Table 1 because catch is landed on the U.S. West coast. Therefore, 
the marine mammal species listed as killed or

[[Page 73051]]

injured in this fishery were observed taken on the high seas.
    For those fisheries where no interaction data (observer or other 
data) exist on the high seas, NMFS lists all the non-coastal marine 
mammal species/stocks killed or injured in the portion of the fishery 
that operates in U.S. waters as injured or killed in the same fishery 
operating on the high seas in Table 3. NMFS adds all non-coastal marine 
mammal species killed or injured in the Category I ``CA/OR thresher 
shark/swordfish drift gillnet (>=14 in. mesh) fishery'' as injured or 
killed in the high seas drift gillnet component of Pacific HMS 
fisheries. NMFS adds all non-coastal marine mammal species killed or 
injured in the Category II ``CA tuna purse seine fishery'' as injured 
or killed in the high seas purse seine component of the Pacific HMS 
fisheries.
    There is little information on interactions between marine mammals 
and fishing gear used to target Pacific HMS on the high seas, other 
than that listed in the previous paragraphs. Given the lack of data on 
marine mammal abundance and interactions with high seas Pacific HMS 
fisheries using gear other than longline, drift gillnet, and purse 
seine, NMFS lists the marine mammal species killed or injured in these 
fisheries as ``undetermined'' in Table 3.

High Seas Western Pacific Pelagic Fisheries

    The high seas Western Pacific pelagic fisheries are added to the 
LOF. All gear targeting Western Pacific pelagic species are listed as 
Category II, with the exception of deep-set longline gear. The deep-set 
longline component of this fishery is listed as a Category I because it 
is an extension of the Category I ``HI deep-set (tuna target) longline/
set line fishery'' operating in U.S. waters. There are 219 valid HSFCA 
permits for fishers targeting Western Pacific pelagic species with all 
gear types on the high seas. As noted in the preamble, the number of 
valid permits may not accurately account for annual fishing effort on 
the high seas.
    NMFS adds all non-coastal marine mammal species/stocks killed or 
injured in the Category I ``HI deep-set (tuna target) longline/set line 
fishery'' as injured or killed in the deep-set longline component 
operating on the high seas. NMFS adds all non-coastal marine mammal 
species killed or injured in the Category II ``HI shallow-set 
(swordfish target) longline/set line fishery'' as injured or killed in 
the shallow-set longline component operating on the high seas.
    There is little information on interactions between marine mammals 
and fishing gear used to target Western Pacific pelagic species on the 
high seas, other than that listed in the previous paragraph. Given the 
lack of data on marine mammal abundance and interactions with high seas 
Western Pacific pelagic fisheries using gear other than longline, NMFS 
lists the marine mammal species killed or injured in these fisheries as 
``undetermined'' in Table 3.

High Seas South Pacific Albacore Troll Fisheries

    The high seas South Pacific albacore troll fisheries are added to 
the LOF, with all gear types listed as Category II. There are 83 valid 
HSFCA permits for vessels participating in the South Pacific albacore 
troll fisheries on the high seas with all gear types. As noted in the 
preamble, the number of valid permits may not accurately account for 
annual fishing effort on the high seas.
    There are no records of incidental mortality or serious injury of 
marine mammals in the South Pacific albacore troll fisheries. While 
there is little indication of marine mammal interactions with South 
Pacific albacore troll fishing, NMFS listed the marine mammal species 
killed or injured in these fisheries as ``undetermined'' in Table 3 due 
to the lack of an observer program covering these fisheries.

High Seas South Pacific Tuna Fisheries

    The high seas South Pacific tuna fisheries (as authorized under the 
SPTT) are added to the LOF. All gear types are listed as Category II 
because, while a formal observer program exists for fishing in the 
Treaty area, information on marine mammal stock abundance in the area 
is scarce and observer reports of fishery interactions are not yet 
specific enough to determine the level of marine mammal serious injury 
and mortality. There are 26 valid HSFCA permits for vessels 
participating in the South Pacific tuna fishery. This number accurately 
reflects the effort by U.S. vessels in the SPTT area because it closely 
matches the number of U.S. vessels with a valid SPTT license.
    While available observer data document interactions with marine 
mammals, the data only currently identify the animals as unidentified 
whales, marine mammals, or dolphin/porpoise. For this reason, Table 3 
lists the marine mammal species killed/injured in these fisheries as 
``undetermined.''

High Seas Antarctic Living Marine Resources Fisheries

    The high seas Antarctic Living Marine Resources (or CCAMLR) 
fisheries are added to the LOF. All gear types are listed as Category 
II because, while a formal observer program exists for fishing under 
CCAMLR, specific information on marine mammal abundance and fishery 
interactions levels has not been calculated in the manner necessary to 
categorize the fisheries based on a marine mammal stock's PBR. There 
are no valid HSFCA permits for vessels participating in the CCAMLR 
fisheries for the 2008 fishing season, which accurately reflects effort 
by U.S. vessels in the CCAMLR area. NMFS has included the trawl and 
gillnet components of the CCAMLR fisheries (the gear types used by U.S. 
vessels in the recent past) on Table 3 with a zero indicating the 
number of HSFCA permits for these fishery components.
    Observer information is available for which species are 
incidentally killed or injured in CCAMLR fisheries. Based on observer 
data of interactions with trawl gear, NMFS adds Antarctic fur seals as 
incidentally killed or injured in the trawl component of the fishery. 
There are no documented injuries or mortalities of other marine mammal 
species and U.S. vessels when using other gear types in the CCAMLR 
region; therefore, Table 3 lists the marine mammal species killed/
injured in longline gear as ``none documented.''

Commercial Fisheries in the Pacific Ocean

Fishery Classification

HI Swordfish, Tuna, Billfish, Mahi mahi, Wahoo, Oceanic Sharks 
Longline/Set Line Fishery

    The Category I ``HI swordfish, tuna, billfish, mahi mahi, wahoo, 
oceanic sharks longline/set line fishery'' is split into two separately 
managed commercial fisheries: (1) The ``HI deep-set (tuna target) 
longline/set line fishery''; and (2) the ``HI shallow-set (swordfish 
target) longline/set line fishery.'' The ``HI deep-set (tuna target) 
longline/set line fishery'' is classified as a Category I fishery, and 
the ``HI shallow-set (swordfish target) longline/set line fishery'' is 
classified as a Category II fishery.

CA Halibut/White Seabass and Other Species Set Gillnet (>3.5 in. mesh) 
Fishery

    The ``CA halibut/white seabass and other species set gillnet (>3.5 
in. mesh)

[[Page 73052]]

fishery'' is recategorized from a Category I to a Category II fishery.

West Coast Trap/Pot Fisheries

    NMFS reclassifies multiple West Coast trap and pot fisheries from 
Category III to Category II based on interactions with humpback whales 
(CA/OR/WA stock).
    The ``CA spot prawn pot fishery'' is split from the Category III 
``CA lobster, prawn, shrimp, rock crab, fish pot'' (renamed the ``CA 
spiny lobster, coonstrip shrimp, rock crab, tanner crab pot or trap'' 
in this final rule) and listed on the LOF as a Category II fishery. The 
estimated number of vessels or participants in this fishery is 29. In 
addition to humpback whales, gray whales remain listed as injured or 
killed in this fishery because gray whales have been listed as injured 
or killed in this fishery on past LOFs.
    The ``WA/OR/CA sablefish pot fishery'' is elevated from Category 
III to a Category II fishery. The estimated number of vessels or 
participants in this fishery is 155, including both limited and open 
access permits (there are 32 limited access permits).
    The ``OR Dungeness crab pot fishery'' is split from the Category 
III ``WA/OR/CA crab pot fishery'' and elevated to Category II. The 
estimated number of vessels or participants in this fishery is 433 (433 
permits exist, 364 landings were made in 2006). In addition to humpback 
whales, gray whales remain listed as injured or killed in this fishery 
because gray whales have been listed as injured or killed in this 
fishery on past LOFs.
    The ``CA Dungeness crab pot fishery'' is split from the Category 
III ``WA/OR/CA crab pot fishery'' and elevated to Category II. The 
estimated number of vessels or participants in this fishery is 625 (625 
permits exist, 435 landings were made in 2006). In addition to humpback 
whales, gray whales remain listed as injured or killed in this fishery 
because gray whales have been listed as injured or killed in this 
fishery on past LOFs.
    The ``WA Dungeness crab pot fishery'' is split from the Category 
III ``WA/OR/CA crab pot fishery'' and remains a Category III fishery. 
In addition to humpback whales, gray whales remain listed as injured or 
killed in this fishery because gray whales have been listed as injured 
or killed in this fishery on past LOFs.

Addition of Fisheries to the LOF

    The ``HI deep-set (tuna target) longline/set line fishery'' is 
added to the LOF as a Category I fishery.
    The ``HI shallow-set (swordfish target) longline/set line fishery'' 
is added to the LOF as a Category II fishery.
    The ``CA spot prawn trap fishery'' is added to the LOF as a 
Category II fishery.
    The ``CA Dungeness crab pot fishery'' is added to the LOF as a 
Category II fishery.
    The ``OR Dungeness crab pot fishery'' is added to the LOF as a 
Category II fishery.
    The ``WA Dungeness crab pot fishery'' is added to the LOF as a 
Category III fishery.
    The ``AK statewide miscellaneous finfish pot fishery'' is added to 
the LOF as a Category III fishery.
    The ``AK shrimp pot, except Southeast fishery'' is added to the LOF 
as a Category III fishery.

Removal of Fisheries From the LOF

    The Category II ``AK Metlakatla/Annette Island salmon drift gillnet 
fishery'' is removed from the LOF.

Fishery Name and Organizational Changes and Clarifications

    The Category II ``CA angel shark/halibut and other species set 
gillnet (>3.5 mesh size) fishery'' is renamed the ``CA halibut/white 
seabass and other species set gillnet (>3.5 in. mesh) fishery.''
    The prawn portion of the Category III ``CA lobster, prawn, shrimp, 
rock crab, and fish pot fishery'' is split into a separate fishery, the 
Category II ``CA spot prawn fishery,'' and the remaining portion of the 
Category III fishery is renamed the ``CA spiny lobster, coonstripe 
shrimp, rock crab, tanner crab pot or trap fishery.''
    The Category III ``WA/OR/CA crab pot fishery'' is split into three 
fisheries, the Category II ``CA Dungeness crab pot'' and ``OR Dungeness 
crab pot'' fisheries, and the Category III ``WA Dungeness crab pot 
fishery.''
    The Category III ``CA finfish and shellfish live trap/hook-and-line 
fishery'' is renamed the ``CA nearshore finfish live trap/hook-and-line 
fishery.''
    The Category III ``AK state-managed waters groundfish longline/set 
line (including sablefish, rockfish, and miscellaneous finfish'' is 
renamed the ``AK state-managed waters longline/set line (including 
sablefish, rockfish, lingcod, and miscellaneous finfish.''
    The Category III ``AK North Pacific halibut handline and mechanical 
jig fishery'' is renamed the ``AK North Pacific halibut handline/hand 
troll and mechanical jig fishery.''
    The Category III ``AK miscellaneous finfish handline and mechanical 
jig fishery'' is renamed the ``AK miscellaneous finfish handline/hand 
troll and mechanical jig fishery.''
    The Category III ``AK salmon purse seine (except Southeast AK, 
which is in Category II) fishery'' is renamed the ``AK salmon purse 
seine (excluding salmon purse seine fisheries listed as Category II).
    The superscript ``\1\'' following Steller sea lion (Western U.S.) 
is removed under the Category II ``AK Bristol Bay salmon drift gillnet 
fishery'' in Table 1. The superscript ``\2\'' remains after the 
fishery's name in Table 1.

Number of Vessels/Persons

    The estimated number of vessels or persons in the Category II ``CA 
squid purse seine fishery'' is updated to 64.
    The estimated number of vessels or persons in the Category III ``CA 
spiny lobster, coonstripe shrimp, rock crab, tanner crab pot or trap 
fishery'' is updated to 530.
    The estimated number of vessels or persons in the Category III 
``OR/CA hagfish pot or trap fishery'' is updated to 54.
    The estimated number of vessels or persons in the majority of the 
AK Category II fisheries are updated: AK Southeast salmon drift gillnet 
fishery to 476; AK Yakutat salmon set gillnet to 166; AK Prince William 
Sound salmon drift gillnet to 537; AK Cook Inlet salmon drift gillnet 
to 571; AK Cook Inlet salmon set gillnet to 738; AK Peninsula/Aleutian 
Islands salmon drift gillnet to 162; AK Peninsula/Aleutian Islands 
salmon set gillnet to 115; AK Bristol Bay salmon drift gillnet to 
1,862; AK Bristol Bay salmon set gillnet to 983; AK Southeast salmon 
purse seine fishery to 415; AK Bering Sea, Aleutian Islands pollock 
trawl to 95; AK Bering Sea, Aleutian Islands Pacific cod trawl to 54; 
AK Bering Sea, Aleutian Islands finfish trawl to 34.
    The estimated number of vessels or persons in the majority of the 
AK Category III fisheries are updated: AK Kuskokwim, Yukon, Norton 
Sound, Kotzebue salmon gillnet to 1,824; AK roe herring and food/bait 
herring gillnet to 986; AK miscellaneous finfish set gillnet to 0; AK 
salmon purse seine (except Southeast AK, which is Category II) to 936; 
AK salmon beach seine to 31; AK roe herring and food/bait herring purse 
seine to 361; AK roe herring and food/bait herring beach seine to 4; AK 
octopus/squid purse seine to 0; AK salmon troll to 2,045; AK North 
Pacific halibut/bottom fish troll to 1,302 (102 AK); AK state-managed 
waters groundfish longline/set line (including sablefish, rockfish, and 
miscellaneous finfish) to 1,448; AK Gulf of Alaska rockfish longline to 
0; AK Gulf of Alaska

[[Page 73053]]

sablefish longline to 291; AK Bering Sea, Aleutian Islands Greenland 
turbot longline to 29; AK Bering Sea, Aleutian Islands rockfish 
longline to 0; AK Bering Sea, Aleutian Islands sablefish longline to 
28; AK halibut longline/set line (State and Federal waters) to 2,521; 
AK octopus/squid longline to 2; AK shrimp otter and beam trawl 
(statewide and Cook Inlet) to 32; AK Gulf of Alaska flatfish trawl to 
41; AK Gulf of Alaska Pacific cod trawl to 62; AK Gulf of Alaska 
pollock trawl to 62; AK Gulf of Alaska rockfish trawl to 34; AK Bering 
Sea, Aleutian Islands Atka mackerel trawl to 9; AK Bering Sea, Aleutian 
Islands Pacific cod trawl to 93; AK Bering Sea, Aleutian Islands 
rockfish trawl to 10; AK miscellaneous finfish otter or beam trawl to 
317; AK food/bait herring trawl to 4; AK Bering Sea, Aleutian Islands 
Pacific cod pot to 68; AK Bering Sea, Aleutian Islands crab pot to 297; 
AK Gulf of Alaska crab pot to 300; AK Southeast Alaska crab pot to 433; 
AK Southeast Alaska shrimp pot to 283; AK octopus/squid pot to 27; AK 
snail pot to 1; AK North Pacific halibut handline/hand troll and 
mechanical jig to 228; AK miscellaneous finfish handline/hand troll and 
mechanical jig to 445; AK octopus/squid handline to 0; AK Southeast 
herring roe/food/bait pound net to 6; AK dungeness crab (hand pick/
dive) to 2; AK herring spawn on kelp (hand pick/dive) to 266; AK urchin 
and other fish/shellfish (hand pick/dive) to 570; AK commercial 
passenger fishing vessel from to >7,000 (2,702 AK).

List of Species That Are Incidentally Killed or Injured

    Harbor porpoise (central CA) are removed from the list of marine 
mammal species/stock incidentally killed/injured in the Category II 
``CA halibut/white seabass and other species set gillnet (>3.5 mesh 
size) fishery.''
    The following marine mammals species/stocks are removed from the 
list of species/stocks incidentally killed/injured in the Category I 
``CA/OR thresher shark/swordfish drift gillnet (>=14 in. mesh) 
fishery'': Dall's porpoise (CA/OR/WA), fin whale (CA/OR/WA), gray whale 
(Eastern North Pacific), humpback whale (CA/OR/WA), and sperm whale 
(CA/OR/WA).
    Humpback whales (CA/OR/WA) are removed from the list of species/
stocks incidentally killed/injured in the Category II ``WA Dungeness 
pot fishery.''
    Humpback whales (CA/OR/WA) and sea otters (CA) are removed from the 
list of species/stocks incidentally killed/injured in the Category III 
``CA spiny lobster, coonstripe shrimp, rock crab, tanner crab pot or 
trap fishery.''
    The stock name of humpback whales (Eastern North Pacific) is 
changed to humpback whales (CA/OR/WA) for all fisheries in Table 1 in 
which this stock is listed as incidentally killed or injured to match 
the stock name in the most current SARs.
    The stock of common dolphin listed as incidentally killed or 
injured in the Category II ``CA squid purse seine fishery'' is changed 
from ``common dolphin, unknown'' to ``short-beaked common dolphin, CA/
OR/WA'' and ``long-beaked common dolphin, CA'' to account for the 
uncertainty of the species observed seriously injured or killed in this 
fishery.
    Bryde's whale, sperm whale, and pantropical spotted dolphin are 
removed from the list of species/stocks killed/injured in the Category 
I ``HI deep-set (tuna target) longline/set line fishery,'' and added to 
the list of species/stocks killed/injured in the Category II ``HI 
shallow-set (swordfish target) longline/set line fishery,'' to correct 
a typographical error in the proposed 2009 LOF.
    Hawaiian monk seal is removed from the list of species/stocks 
killed/injured in the Category III ``HI tuna handline fishery.'' NMFS 
has never received a report of interactions between monk seals with 
tuna handline.

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

Addition of Fisheries to the LOF

    The ``U.S. Atlantic, Gulf of Mexico trotline fishery'' is added to 
the LOF as a Category III fishery.

Fishery Name and Organizational Changes and Clarifications

Gulf of Mexico Menhaden Purse Seine Fishery

    NMFS corrects a typographical error that has persisted since the 
2006 LOF (71 FR 48802; August 22, 2006) and was not proposed in the 
proposed 2009 LOF (73 FR 33760, June 13, 2008). A superscript ``\1\'' 
following bottlenose dolphin (Western Gulf of Mexico coastal) is added 
under the Category II ``Gulf of Mexico menhaden purse seine fishery'' 
in Table 2, indicating that this stock is driving the categorization of 
this fishery. The 2006 LOF included a superscript ``\1\'' following 
bottlenose dolphin (Northern Gulf of Mexico coastal); however, a 
superscript ``\1\'' should have been included for both the Northern and 
the Western Gulf of Mexico coastal stocks.

Northeast Bottom Trawl Fishery

    NMFS corrects a typographical error that has persisted since the 
2005 LOF (71 FR 247; January 4, 2006). In the proposed 2005 LOF (70 FR 
70094; December 2, 2004), NMFS proposed to add harbor porpoise (Gulf of 
Maine/Bay of Fundy) to the list of species/stocks incidentally taken in 
the Category II ``Northeast bottom trawl fishery.'' However, NMFS 
decided not to include this stock on the list based on a public comment 
stating that the animal taken in that fishery was badly decomposed and 
the trawl duration was only five hours (see comment/response 33 in the 
final 2005 LOF). While this stock has never been considered 
incidentally killed/injured in this fishery, it inadvertently remained 
listed in Table 2 of the LOF. NMFS corrects that error at this time by 
removing harbor porpoise (Gulf of Maine/Bay of Fundy) from Table 2 
following the ``Northeast bottom trawl fishery.''

Northeast Sink Gillnet Fishery

    The definition of the Category I ``Northeast sink gillnet fishery'' 
is amended to clarify and correct the boundary description by replacing 
``excluding Long Island Sound or other waters where gillnet fisheries 
are listed as Category III. At this time, these Category II and II 
fisheries include * * *'' with ``* * * excluding Long Island Sound and 
other waters where gillnet fisheries are listed as Category II and III. 
At this time, these Category II and III fisheries include * * *''.

Northeast Anchored Float Gillnet Fishery

    The definition of the Category II ``Northeast anchored float 
gillnet fishery'' is amended to clarify and correct the boundary 
description by replacing `` * * * from the U.S.-Canada border to Long 
Island, NY, at 72[deg]30'' W. long south to 36[deg]33.03'' N. lat. and 
east to the eastern edge of the EEZ * * *'' with `` * * * from the 
U.S.-Canada border to Long Island, NY, at 72[deg]30'' W. long south to 
36[deg]33.03'' N. lat. (corresponding with the VA/NC border) and east 
to the eastern edge of the EEZ * * *''.

Northeast Drift Gillnet Fishery

    The definition of the Category II ``Northeast drift gillnet 
fishery'' is amended to clarify and correct the boundary description by 
replacing ``* * * at any depth in the water column from the U.S.-Canada 
border to Long Island, NY, at 72[deg]30'' W. long. south to 
36[deg]33.03'' N. lat. and east to the eastern edge of the EEZ * * *'' 
with `` * * * at any depth in the water column

[[Page 73054]]

from the U.S.-Canada border to Long Island, NY, at 72[deg]30'' W. long. 
south to 36[deg]33.03'' N. lat. (corresponding with the VA/NC border) 
and east to the eastern edge of the EEZ * * *''.

Mid-Atlantic Mid-water Trawl Fishery

    The fishery description for the Category II ``Mid-Atlantic mid-
water trawl fishery'' is replaced with the following description, ``The 
`Mid-Atlantic mid-water trawl fishery' primarily targets Atlantic 
mackerel, chub mackerel, and miscellaneous other pelagic species. This 
fishery consists of both single and pair trawls, which are designed, 
capable, or used to fish for pelagic species with no portion of the 
gear designed to be operated in contact with the bottom. The fishery 
for Atlantic mackerel occurs primarily from southern New England 
through the mid-Atlantic from January to March and in the Gulf of Maine 
during the summer and fall (May to December). This fishery is managed 
under the Federal Atlantic Mackerel, Squid, and Butterfish FMP using an 
annual quota system.''

Mid-Atlantic Bottom Trawl Fishery

    The fishery description for the Category II ``Mid-Atlantic bottom 
trawl fishery'' is replaced with the following description: ``The 
Category II `Mid-Atlantic bottom trawl fishery' uses bottom trawl gear 
to target species including but not limited to: bluefish, croaker, 
monkfish, summer flounder (fluke), winter flounder, silver hake 
(whiting), spiny dogfish, smooth dogfish, scup, black sea bass, 
Atlantic cod, haddock, pollock, yellowtail flounder, witch flounder, 
windowpane flounder, summer flounder, American plaice, Atlantic 
halibut, redfish, red hake, white hake, ocean pout, skate spp, Atlantic 
mackerel, Loligo squid, Illex squid, and Atlantic butterfish. These 
fisheries occur year round from Cape Cod, MA, to Cape Hatteras, NC, in 
waters west of 72[deg]30'' W. long. and north of a line extending due 
east from the NC/SC border. While the gear characteristics for the 
mixed groundfish bottom trawl gear have not yet been determined, the 
Illex and Loligo squid fisheries are dominated by small-mesh otter 
trawls. The Loligo fishery occurs mostly offshore near the edge of the 
continental shelf during fall and winter months (October to March) and 
inshore during spring and summer (April-September) though landings of 
Loligo are also taken by inshore pound nets and fish traps in the 
spring and summer. The fishery for Illex occurs offshore, mainly in 
continental shelf and slope waters during summer months (June-
September). The Illex and Loligo fisheries are managed by moratorium 
permits, gear and area restrictions, quotas, and trip limits. Atlantic 
butterfish are mainly caught as bycatch in the directed squid and 
mackerel fisheries and observer data has suggested that there is a 
significant amount of butterfish discarding that occurs at sea.''

Mid-Atlantic Haul/Beach Seine Fishery

    The fishery description for the Category II ``Mid-Atlantic haul/
beach seine fishery'' is replaced with the following description: ``The 
NC component of this fishery operates primarily along the Outer Banks 
using small and large mesh nets. Small mesh nets are generally used in 
the spring and fall to target gray trout (weakfish), speckled trout, 
spot, kingfish (sea mullet), bluefish, and harvest fish (star butters). 
Large mesh nets are used to target Atlantic striped bass during the 
winter and are regulated via NC Marine Fisheries Commission rules and 
NCDMF proclamations. Construction and characteristics of the large and 
small mesh nets differ, but they generally both gill fish, rather than 
haul fish to shore in the manner of a traditional beach seine. Small 
mesh nets are generally constructed with a combination of multifilament 
and monofilament webbing or all monofilament webbing material. If a 
combination of materials is used, the construction design often 
consists of monofilament for the inshore (wash) and offshore (wing) 
portions of the net, while the middle (bunt) is constructed of twisted 
nylon. Conversely, large mesh nets are constructed of all monofilament 
material. Despite the difference in construction, they are set and 
hauled similarly. Nets are deployed out of the stern of surf dories and 
set perpendicular to the shoreline. A truck is generally used to haul 
the net ashore by attaching one end of the net to the truck and pulling 
it ashore while the other end remains fixed until the end of the haul.
    North Carolina fishers previously referred to this type of gear as 
a beach seine because of the way the gear was set and hauled. Because 
of the manner in which both large and small mesh nets are constructed 
(i.e., inclusion of monofilament material) and fished, they operate as 
gillnets rather than beach seines, and NMFS considers them a component 
of the Category I, ``Mid-Atlantic gillnet fishery.'' Once NCDMF's 
regulation is effective, the Atlantic Ocean striped bass beach seine 
fishery will be the only fishery included under the ``Mid-Atlantic 
haul/beach seine fishery'' for North Carolina. Therefore, small and 
large mesh nets constructed of monofilament and multifilament material 
will be considered part of the Category I ``Mid-Atlantic gillnet 
fishery.'' NMFS is not currently regulating this component of the 
``Mid-Atlantic gillnet fishery'' (i.e., nets that are anchored to the 
beach and subsequently hauled onto the beach to retrieve the catch). 
NMFS will discuss the appropriate management measures for this fishery 
component with the Atlantic Large Whale Take Reduction Team in the 
future.
    In addition to the North Carolina component as described above, the 
``Mid-Atlantic haul/beach seine fishery'' also includes haul seining in 
other areas of the mid-Atlantic, including VA, MD, and NJ. Because the 
net materials and fishing practices of the Atlantic Ocean striped bass 
beach seine fishery in North Carolina are different from haul seining 
in other areas, NMFS may consider splitting this fishery in the 
future.''

List of Species That Are Incidentally Killed or Injured

    White-side dolphins (Western North Atlantic [WNA]) are added to the 
list of marine mammal species/stocks incidentally injured or killed in 
the Category II ``Mid-Atlantic bottom trawl fishery.''
    Harbor seals (WNA) are added to the list of marine mammal species/
stocks incidentally injured or killed in the Category II ``Northeast 
bottom trawl fishery.''
    Bottlenose dolphins (WNA coastal) are added to the list of marine 
mammal species/ stocks incidentally injured or killed in the Category 
III ``FL spiny lobster trap/pot fishery.''
    Bottlenose dolphins (WNA coastal) are added to the list of marine 
mammal species/stocks incidentally injured or killed in the Category 
III ``Southeastern U.S. Atlantic, Gulf of Mexico stone crab trap/pot 
fishery.''

List of Fisheries

    The following tables set forth the final list of U.S. commercial 
fisheries according to their classification under section 118 of the 
MMPA. In Tables 1 and 2, the estimated number of vessels/participants 
in fisheries operating within U.S. waters 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. For high seas fisheries, 
Table 3 lists the number of

[[Page 73055]]

currently valid HSFCA permits held by fishers. Although this likely 
overestimates the number of active participants in many of these 
fisheries, the number of valid HSFCA permits is the most reliable data 
at this time.
    Tables 1, 2, and 3 also list the marine mammal species and 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 be injured or killed in a given fishery, 
but also includes species or stocks for which there are anecdotal 
records of an injury or mortality. Additionally, species identified by 
logbook entries may not be verified. NMFS has designated those stocks 
driving a fishery's classification (i.e., the fishery is classified 
based on serious injuries and mortalities of a marine mammal stock 
greater than 50 percent [Category I], or greater than 1 percent and 
less than 50 percent [Category II], of a stock's PBR) by a ``\1\'' 
after the stock's name.
    In Tables 1 and 2, there are several fisheries classified in 
Category II that have no recent documented injuries or mortalities of 
marine mammals, or that did not result in a serious injury or mortality 
rate greater than 1 percent of a stock's PBR level. NMFS has classified 
these fisheries 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 the fishery's name.
    There are several fisheries in Tables 1, 2, and 3 in which a 
portion of the fishing vessels cross the EEZ boundary, and therefore 
operate within U.S. waters and on the high seas. NMFS has designated 
those fisheries in each Table by an ``*'' after the 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; Table 3 lists commercial fisheries on the 
High Seas; Table 4 lists fisheries affected by Take Reduction Teams or 
Plans.
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Classification

    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that this rule would not have a significant economic 
impact on a substantial number of small entities. The factual basis 
leading to the certification is set forth below.
    Under existing regulations, all fishers participating in Category I 
or II fisheries must register under the MMPA and obtain an 
Authorization Certificate. The Authorization Certificate authorizes the 
taking of marine mammals incidental to commercial fishing operations. 
Additionally, fishers may be subject to a Take Reduction Plan (TRP) and 
requested to carry an observer. NMFS has estimated that approximately 
44,200 fishing vessels, most of which are small entities, operate in 
Category I or II fisheries, and therefore, are required to register 
with NMFS. The MMPA registration process is integrated with existing 
state and Federal licensing, permitting, and registration programs. 
Therefore, fishers who have a federal or state fishery permit or 
landing license, or who are authorized through another related federal 
or state fishery registration program, are currently not required to 
register separately under the MMPA or pay the $25 registration fee 
under the MMPA. Therefore, there are

[[Page 73076]]

no direct costs to small entities under this final rule.
    If a vessel is requested to carry an observer, fishers will not 
incur any direct economic costs associated with carrying that observer. 
Potential indirect costs to individual fishers required to take 
observers may include: lost space on deck for catch, lost bunk space, 
and lost fishing time due to time needed to process bycatch data. For 
effective monitoring, however, observers will rotate among a limited 
number of vessels in a fishery at any given time and each vessel within 
an observed fishery has an equal probability of being requested to 
accommodate an observer. Therefore, the potential indirect costs to 
individual fishers are expected to be minimal because observer coverage 
would only be required for a small percentage of an individual's total 
annual fishing time. In addition, section 118 of the MMPA states that 
an observer will not be placed on a vessel if the facilities for 
quartering an observer or performing observer functions are inadequate 
or unsafe, thereby exempting vessels too small to accommodate an 
observer from this requirement. As a result of this certification, an 
initial regulatory flexibility analysis is not required and was not 
prepared. In the event that reclassification of a fishery to Category I 
or II results in a TRP, economic analyses of the effects of that plan 
will be summarized in subsequent rulemaking actions.
    This 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 mortalities has been approved by OMB under OMB control 
number 0648-0292 (0.15 hours per report). These estimates include the 
time for reviewing instructions, searching existing data sources, 
gathering and maintaining the data needed, and completing and reviewing 
the collection of information. Send comments regarding these reporting 
burden estimates or any other aspect of the collections of information, 
including suggestions for reducing burden, to NMFS and OMB (see 
ADDRESSES and SUPPLEMENTARY INFORMATION).
    Notwithstanding any other provision of law, no person is required 
to respond to nor shall a person be subject to a penalty for failure to 
comply with a collection of information subject to the requirements of 
the Paperwork Reduction Act unless that collection of information 
displays a currently valid OMB control number.
    This final rule has been determined to be not significant for the 
purposes of Executive Order 12866.
    An environmental assessment (EA) was prepared under the National 
Environmental Policy Act (NEPA) for regulations to implement section 
118 of the MMPA in June 1995. NMFS revised that EA relative to 
classifying U.S. commercial fisheries on the LOF in December 2005. Both 
the 1995 EA and the 2005 EA concluded that implementation of MMPA 
section 118 regulations would not have a significant impact on the 
human environment. This 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 (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 ESA section 7 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, stranding and 
sighting data, 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: November 24, 2008.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. E8-28378 Filed 11-28-08; 8:45 am]
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