[Federal Register Volume 74, Number 219 (Monday, November 16, 2009)]
[Rules and Regulations]
[Pages 58859-58901]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-27431]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 229

[Docket No. 090218194-91045-02]
RIN 0648-AX65


List of Fisheries for 2010

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

ACTION: Final rule.

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SUMMARY: The National Marine Fisheries Service (NMFS) publishes its 
final List of Fisheries (LOF) for 2010, as required by the Marine 
Mammal Protection Act (MMPA). The final LOF for 2010 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 January 1, 2010.

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 email to [email protected].

FOR FURTHER INFORMATION CONTACT: Melissa Andersen, Office of Protected 
Resources, 301-713-2322; David Gouveia, Northeast Region, 978-281-9280; 
Anne Ney, Southeast Region, 727-551-5758; 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:
    NMFS, Northeast Region, 55 Great Republic Drive, Gloucester, MA 
01930-2298, Attn: Marcia Hobbs;
    NMFS, Southeast Region, 263 13th Avenue South, St. Petersburg, FL 
33701, Attn: Anne Ney;
    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: Protected Resources Division;
    NMFS, Alaska Region, Protected Resources, P.O. Box 22668, 709 West

[[Page 58860]]

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 classification of a fishery on 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 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 and Stocks are Included as 
Incidentally Killed or Injured in a Fishery?

    The LOF includes a list of marine mammal species and stocks 
incidentally killed or injured in each commercial fishery. To determine 
which species and stocks are included as incidentally killed or 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 interaction with commercial fishing 
operations. NMFS also reviews other sources of new information, 
including observer data, stranding data, and fisher self-reports.
    When reliable information and sufficient levels of observer 
coverage are available, the most recent five years of data are used to 
determine whether a species or stock should be added to, or deleted 
from, the list of species and stocks incidentally killed or injured in 
each commercial fishery. In the absence of reliable information on the 
level of mortality or 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 (FMP) or a take reduction plan (TRP)). NMFS will 
provide case-specific justification in the LOF for changes to the list 
of species and stocks incidentally killed or 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

[[Page 58861]]

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 website 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 website: 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. 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). The authorized high seas fisheries are broad in scope and 
encompass multiple specific fisheries identified by gear type. For the 
purposes of the LOF, the high seas fisheries are subdivided based on 
gear type (e.g., trawl, longline, purse seine, gillnet, troll, etc.) to 
provide more detail on composition of effort within these fisheries. 
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 considered a separate fishery, but an extension of the 
fishery operating within U.S. waters (listed in Table 1 or 2). In these 
fisheries, a single vessel may set both within the U.S. Exclusive 
Economic Zone (EEZ) and on the high seas during a single fishing trip. 
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.
    HSFCA permits are valid for five years, during which time FMPs can 
change. Therefore, some fishers may possess valid HSFCA permits without 
the ability to fish under the permit because it was issued for a gear 
type that is no longer authorized under the most current FMP. For this 
reason, the number of HSFCA permits displayed in Table 3 is likely 
higher than the actual U.S. fishing effort on the high seas. For more 
information on how NMFS classifies high seas fisheries on the LOF, see 
the preamble text in the final 2009 LOF (73 FR 73032; December 1, 
2008).

Are Treaty Tribal Fisheries Included on the LOF?

    In the final rule implementing section 118 of the MMPA (60 FR 
45086, August 30, 1995) NMFS concluded that treaty tribal fisheries are 
conducted under the authority of the Indian treaties; the MMPA's 
requirements in section 118 do not apply to treaty Indian tribal 
fisheries. NMFS explained this decision in the final rule stating (the 
remaining text in this paragraph is quoted direction from the final 
rule at 60 FR 45086, August 30, 1995), `` the rights to fish and hunt 
are already secured separately for Northwest tribes pursuant to their 
treaties with the United States. NMFS reviewed the relationship of the 
Northwest Indian treaties to the MMPA and did not find clear evidence 
that Congress intended to abrogate treaty Indian rights. Section 14 of 
the Amendments to the MMPA (Public Law No. 103-238) states 'Nothing in 
this Act, including any amendments to the Marine Mammal Protection Act 
of 1972 made by this Act -- alters or is intended to alter any treaty 
between the United States and one or more Indian tribes.' This 
provision clarifies that existing treaty Indian fishing rights are not 
affected by the amendments to the MMPA. Therefore, tribal fisheries are 
conducted under the authority of the Indian treaties rather than the 
MMPA, and the MMPA's mandatory registration systems do not apply to 
treaty Indian fishers operating in their usual and accustomed fishing 
areas. Since inclusion of the treaty Indian fisheries in the LOF would 
also establish an obligation to obtain an MMPA registration under 
section 118, NMFS has deleted reference to tribal fisheries in the LOF. 
The registration requirements for Category I or II fisheries will not 
apply to treaty Indian tribes.'' (60 FR 45086, August 30, 1995.)
    NMFS considered, among other things, the public comments received 
on the proposed 2010 LOF and the 1994 amendments to the MMPA and 
accompanying legislative history to re-evaluate its 1995 conclusion to 
exempt tribal fisheries from the LOF (60 FR 45086, August 30, 1995) 
should be changed due to Anderson v. Evans. NMFS determined that 
Anderson v. Evans did not alter NMFS' original analysis in the final 
rule implementing section 118 of the MMPA (60 FR 45086, August 30, 
1995); therefore, the inclusion of tribal fisheries on the LOF at this 
time is not warranted. NMFS will continue to work on a government-to-
government basis with the affected treaty tribal governments to gather 
data on injuries and mortalities of marine mammals incidental to tribal 
fisheries. Additional information on NMFS' decision to continue to 
exclude tribal fisheries from the LOF is provided below in the response 
to comments 1-5 in the section ``Comments and Responses.''

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 be registered with NMFS and obtain a marine mammal 
authorization to lawfully take a non-endangered and non-threatened 
marine mammal incidental to commercial fishing. Owners of vessels or 
gear engaged in a Category III fishery are not required to be 
registered with NMFS or obtain a marine mammal authorization.

What is the Registration Process?

    NMFS has integrated the MMPA registration process, known as 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 are not required to submit 
registration or renewal materials directly under the MMAP. In the 
Pacific Islands, Southwest, Northwest, and Alaska regions, NMFS will 
issue vessel or gear owners an authorization certificate; in the 
Northeast and Southeast Regions, NMFS will issue vessel or gear owners 
notification of

[[Page 58862]]

registry and directions on obtaining an authorization certificate. 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, 
Southwest, Northwest, or Alaska regional fisheries will receive their 
authorization certificates and/or injury/mortality reporting forms via 
U.S. mail, or with their state or Federal license at the time of 
renewal. Vessel or gear owners participating in 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-
9328 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 state or Federal permit is required will 
receive notice of registry and may receive their authorization 
certificate and/or injury/mortality reporting form by contacting the 
Southeast Regional Office at 727-551-5758 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.

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 an authorization certificate 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 marine mammal that ingests fishing gear or any 
marine mammal 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. However, observer 
requirements will not be exempted for U.S. Atlantic Ocean, Caribbean, 
Gulf of Mexico large pelagics longline vessels operating in special 
areas designated by the Pelagic Longline Take Reduction Plan 
implementing regulations (50 CFR 229.36(d)) or vessels operating in 
North Carolina fisheries observed under the Alternative Platform 
Program. 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 TRP regulations. 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 
through 229.36.

Sources of Information Reviewed for the Final 2010 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 three 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 2010 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), 2001 (67 FR 10671, March 8, 2002), 2002 (68 FR 17920, April 14, 
2003), 2003 (69 FR 54262, September 8, 2004), 2004 (70 FR 35397, June 
20, 2005), 2005 (71 FR

[[Page 58863]]

26340, May 4, 2006), 2006 (72 FR 12774, March 19, 2007), 2007 (73 FR 
21111, April 18, 2008), and 2008 (74 FR 19530, April 29, 2009). The 
SARs are available at http://www.nmfs.noaa.gov/pr/sars/.

Fishery Descriptions

    Beginning with the final 2008 LOF (72 FR 66048, November 27, 2007), 
NMFS describes each Category I and II fishery on the LOF. Below, NMFS 
describes the fisheries classified as Category I or II fisheries on the 
2010 LOF that were not classified as such on a previous LOF (and 
therefore have not yet been defined on the LOF). Additional details for 
Category I and II fisheries operating in U.S. waters are included in 
the SARs, FMPs, and 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.

American Samoa Longline Fishery

    The Category II ``American Samoa longline'' fishery operates in 
waters around American Samoa targeting tuna (mainly albacore, also 
skipjack, yellowfin and bigeye). Wahoo, sharks, billfish, and other 
miscellaneous pelagic species are also caught, with most of the sharks 
and billfish released. In 2000, the ``American Samoa longline'' fishery 
began to expand rapidly with the influx of large (more than 50 ft (15.2 
m) overall length) conventional monohull vessels, similar to the type 
used in the Hawaii-based longline fisheries. Vessels over 50 ft (15.2 
m) may set 1,500 2,500 hooks and have a greater fishing range and 
capacity for storing fish (8 40 metric tons). The fleet reached a peak 
of 66 vessels in 2001, and set a peak of almost 7,000 sets in 2002.
    The rapid expansion of longline fishing effort within the EEZ 
waters around American Samoa prompted the Western Pacific Fishery 
Management Council (WPFMC) to develop a limited entry system for the 
fishery, implemented by NMFS in 2005. Under the limited access program, 
NMFS issued a total of 60 initial longline limited entry permits in 
2005 to qualified candidates, spread among 4 vessel size classes (72 FR 
10711, March 9, 2007): 22 permits issued in Class A (less than or equal 
to 40 ft (12.2 m) length); 5 in Class B (40-50 ft (12.2-15.2 m)); 12 in 
Class C (50-70 ft (15.2-21.3 m)); and 21 in Class D (more than 70 ft 
(21.3 m)). The limited entry program regulations cap the maximum number 
of permits to the 60 initial permits issued. Permits may be 
transferred, upgraded, and renewed. In 2008, the American Samoa 
longline fishery had 28 active vessels. Observers were first placed on 
American Samoa longline vessels in April 2006 to monitor protected 
species interactions, with observer coverage averaging approximately 6-
8 percent each year.
    Under the limited entry program, vessel operators must submit 
Federal longline logbooks, vessels over 40 ft (12.2 m) must carry 
observers if requested by NMFS, and vessels over 50 ft (15.2 m) must 
have an operational vessel monitoring system. In addition, vessel 
owners and operators of vessels registered to an American Samoa 
longline limited entry permit must attend a protected species workshop 
annually, carry and use dip nets, line clippers, and bolt cutters, and 
follow handling, resuscitation, and release requirements for 
incidentally hooked or entangled sea turtles (70 FR 69282, November 15, 
2005). There are existing regulations intended to mitigate sea turtle 
incidental hookings, and in 2009 the WPFMC recommended additional 
measures be implemented to minimize interactions with green sea 
turtles, including modifications to gear to place hooks below 100 m 
(328 ft) depth and to increase observer coverage (WPFMC 144th Meeting, 
March 23-26, 2009). Current regulations include a prohibition on U.S. 
vessels greater than 50 ft (15.2 m) in length from using longline gear 
within 50 nmi around the islands of American Samoa. American Samoa 
longline fishery regulations can be found at 50 CFR 665.36-38.

HI Shortline Fishery

    The Category II ``HI shortline'' fishery is a small-scale system 
operating off the State of HI, and targeting bigeye tuna (Thunnus 
obesus) or the lustrous pomfret (Eumigistes illustris). This fishery 
was developed to target these fish species when they concentrate over 
the summit of Cross Seamount (290 km (180 mi) south of the State of 
HI). The gear style is designed specifically to target the aggregating 
fish species over seamount structures. The primary gear type used is a 
horizontal main line (monofilament) less than 1 nmi long, and includes 
two baskets of approximately 50 hooks each. The gear is set before dawn 
and has a short soak time, with the gear retrieved about two hours 
after it is set. This fishery has no seasonal component and may operate 
year-round. There are no specific fishing permits issued for this 
fishery. However, all persons with a State of Hawaii Commercial Marine 
License (CML) may participate in any fishery, including the ``HI 
shortline'' fishery. Of those persons possessing CMLs, shortline 
participation has changed from 5 to 11 vessels during 2003-2008. From 
2003-2008, there was an average of 135,757 pounds (lbs) of fish landed 
each year. In 2008 alone, 104,152 lbs of fish were landed. Currently, 
there is no reporting system in place to document potential marine 
mammal interactions in this fishery. However, there are anecdotal 
reports of interactions off the north side of the island of Maui, but 
the species and extent of interactions are unknown.

Comments and Responses

    NMFS received 11 comment letters on the proposed 2010 LOF (74 FR 
27739, June 11, 2009). Comments were received from the California 
Department of Fish and Game, California Wetfish Producers Association, 
Center for Biological Diversity, Columbia River Inter-Tribal Fish 
Commission, Eighteen Western Washington Indian Tribes, Garden State 
Seafood Association, Hawaii Longline Association, Makah Tribal Council, 
Makah Tribe's marine mammal biologist, Marine Conservation Alliance, 
and Marine Mammal Commission. Comments on issues outside the scope of 
the LOF were noted, but are not responded to in this final rule.

Comments on Tribal Treaty Fisheries Inclusion on the 2010 LOF

    During the public comment phase for the then-proposed 2009 LOF, 
NMFS received a comment requesting the 2009 LOF be amended to include 
tribal fisheries. The commenter stated that ``in light of the 
subsequent holding of the Ninth Circuit in Anderson v. Evans...finding 
that the MMPA applies to the Makah application to the gray whale hunt 
NMFS' 1995 conclusion exempting tribal fisheries from the LOF and the 
Section 118 authorization process is no longer valid'' (73 FR 73039, 
December 1, 2008; comment/response 4). In response to this 2009 LOF 
comment, NMFS included a request for public comment in the proposed 
2010 LOF (74 FR 27739, June 11, 2009) on whether or not to include 
treaty tribal fisheries on future LOFs. Below, NMFS summarizes each 
comment received on the 2010 proposed LOF related to tribal fisheries 
and issues one response following the collective tribal fisheries 
comments.
    Comment 1: The Center for Biological Diversity (CBD) reiterated a 
comment on the 2009 LOF (73 FR 73039, December 1, 2008; comment/
response 4), noting that in an earlier decision the Ninth Circuit Court 
of Appeals determined that MMPA requirements applied to the Makah 
application to hunt gray whales (Anderson v. Evans, 371 F.3d 475 (9th 
Cir. 2004)). The CBD stated that the decision demonstrated that MMPA 
requirements can be harmonized with

[[Page 58864]]

treaty rights. Therefore, the CBD encouraged NMFS to move forward with 
determining how best to harmonize tribal fishing and treaty rights with 
MMPA requirements such that all fisheries operating in US waters are 
included in the LOF and categorized as I, II or III, as appropriate.
    Comment 2: The Marine Mammal Commission (MMC) recommended NMFS (1) 
include tribal fisheries on the LOF, (2) revise its regulations 
implementing section 118 (e.g., 50 C.F.R. Sec.  229.1 (d)) to clarify 
that treaty tribal fisheries are subject to the requirements of the 
MMPA, including section 118, and (3) begin working with the affected 
tribes to integrate the registration process with existing licensing or 
permitting systems if it appears that some tribal fisheries will be 
listed as category I or category II fisheries.
    Comment 3: The Makah Tribe presented data indicating that tribal 
incidental takes of marine mammals do not present any conservation 
issues notwithstanding NMFS' 1995 decision to exclude treaty tribal 
fisheries from the LOF. The Makah Tribe compiled data regarding 
incidental take in its treaty fisheries and requires that all mortality 
or injury resulting from an incidental take, required in Makah Tribal 
regulations to be reported to the Tribe, and submits an annual report 
to NMFS. Records of these reports have been kept since the Tribe hired 
a marine mammal biologist in 2003. In general the rate of incidental 
take of marine mammals during fishing operations is low. From 2003-
2009, the Makah Tribal fisheries incidentally killed 12 harbor seals (1 
in 2003, 6 in 2004, 4 in 2008, 1 in 2009), 1 Dall's porpoise (in 2004), 
5 harbor porpoise (2 in 2004, 3 in 2008), 6 unknown small odontocetes 
(in 2005), 1 Steller sea lion (in 2008), 1 unidentified sea lion (in 
2008), and 2 sea otters (in 2004). One unidentified whale and one gray 
whale were successfully released after entanglement (in 2005 and 2009, 
respectively).
    The Makah tribe noted that, despite a long history of interactions 
between Makah Tribal fishers and marine mammals, these animals remain 
abundant, as indicated by NMFS' SARs. Observed take of marine mammals 
by the Makah Tribe's treaty fisheries is well below PBR for each stock. 
In addition, populations of marine mammal stocks which are most likely 
to interact with Makah tribal fisheries have either increased or 
remained stable since the MMPA was amended in 1994 and NMFS determined 
that treaty tribal fisheries would not be included in the LOF: CA sea 
lions have increased 5.6 percent/year since the 1970s; WA/OR stock of 
harbor seals has been stable since 1996; Inland WA stock of harbor 
seals has been stable at carrying capacity since 1994; Outer coast 
stock of harbor porpoises has been stable; Inland WA stock of harbor 
porpoise 2002 population estimate is three times more than the 1996 
estimate; Eastern stock of Steller sea lions increased 3.1 percent/year 
(with regional variances); and WA stock of sea otters increased at 8 
percent/year.
    Comment 4A: The Makah Indian Tribe outlined three arguments 
(comments 4A, 4B, and 4C in this final rule) for the continued 
exclusion of treaty tribal fisheries from the LOF, based on its 
experience with the MMPA and as a party to Anderson v. Evans. The Makah 
Indian Tribe also joined and fully incorporated the comments in the 
joint tribal letter submitted by eighteen other Western Washington 
treaty tribes (see comments 5A, 5B, and 5C in this final rule) 
asserting that NMFS' 1995 rule interpreting the relationship between 
the Tribe's treaty-reserved right to take fish and Section 118 of the 
MMPA has not been affected by Anderson v. Evans and continues to be 
valid. Therefore, the Makah Tribe recommends that NMFS reaffirm its 
1995 decision that treaty tribal fisheries are not subject to the 
MMPA's mandatory registration and that treaty tribal fisheries will not 
be included in the LOF.
    The Makah Tribe's first argument for the continued exclusion of 
treaty tribal fisheries from the LOF was that the proper reading of the 
1994 MMPA Amendments' treaty savings clause (section 14) protects 
incidental take of marine mammals by tribal fishers because the treaty 
fishing right, as understood by the Indian signatories, includes the 
right to take marine mammals incidental to tribal fisheries.
    Comment 4B: The Makah Tribe's second argument for the continued 
exclusion of treaty Tribal fisheries from the LOF was that Anderson v. 
Evans was wrongly decided (a position which the United States has also 
repeatedly expressed) and, therefore, should not be extended to the 
LOF. The Makah Tribe asserted that although Anderson v. Evans addressed 
direct take of marine mammals such as the Makah gray whale hunt, by its 
own terms it does not apply to the question of incidental take in 
treaty tribal fisheries. Therefore, the Makah Tribe believed NMFS need 
not and should not extend the decision to the issues of mandatory 
registration and inclusion in the LOF.
    During the Anderson v. Evans case, the United States took the 
position that the panel opinion was incorrectly based on numerous 
fundamental errors in reaching its conclusion. In the Makah Tribe's 
opinion, if NMFS were to extend Anderson v. Evans to the LOF issue, it 
would further reinforce the panel's numerous incorrect applications of 
settled precedent and directly contradict the United States' ongoing 
disagreement with the case. Moreover, the Makah Tribe concluded that it 
would substantially undermine the Makah's and other western Washington 
Tribes' treaty rights notwithstanding their express protection by the 
1994 Amendments. The Makah Tribe believed such a decision would 
contravene Congress's express intent.
    Comment 4C: The Makah Tribe's third argument for the continued 
exclusion of treaty Tribal fisheries from the LOF was that the Makah 
Tribe does and will continue to work with NMFS to protect marine 
mammals. The Makah Tribe noted that NMFS' 1995 rule excluding treaty 
tribal fisheries from the LOF was based in part on the extensive 
cooperation between the tribes and NMFS in managing tribal fisheries, 
including their interactions with marine mammals (See 60 FR at 45096, 
Aug. 30, 1995). The Makah Tribe noted that in the 1995 final rule, NMFS 
found that tribal self-regulation and cooperation with NMFS were 
instrumental to the agency achieving its responsibilities to protect 
marine mammals.
    Comment 5A: NMFS received two separate letters, each representing 
multiple Washington Indian tribes that were similar to each other in 
the arguments presented. Therefore, the two comments presented in the 
two letters are summarized together below. The first letter represented 
the comments of the Columbia River Inter-Tribal Fish Commission (Nez 
Perce, Umatilla, Warm Springs and Yakama Tribes), the second letter 
represented the joint comments of eighteen Indian Tribes of western 
Washington State (Lummi Nation, Quinault Indian Nation, Swinomish 
Indian Tribal Community, and Nooksack, Tulalip, Suquamish, Squaxin 
Island, Nisqually, Puyallup, Sauk-Suiattle, Skokomish, Muckleshoot, 
Port Gamble, Jamestown, Lower Elwha, Upper Skagit, Quileute, and 
Stillaguamish Indian Tribes), collectively, the ``Tribes.'' The Tribes 
outlined three arguments (comments 5A, 5B, and 5C in this final rule) 
asserting that NMFS' 1995 conclusion that treaty fisheries are properly 
excluded from the LOF (60 FR 45086, August 30, 2009; at 45096) was 
correct, and remains correct.
    The Tribes' first argument was that NMFS' 1995 conclusion remains 
correct

[[Page 58865]]

because the Tribes' rights are reserved by various treaties and the 
U.S. has broad trust responsibility to the Tribes.
    Comment 5B: The Tribes' second argument was that NMFS' 1995 
conclusion regarding Tribal fisheries remains correct because it is not 
affected by the rulings of the Ninth Circuit in Anderson v. Evans. The 
Tribes asserted that Anderson v. Evans involved the Makah Tribe's 
exercise of its express whaling rights in the Treaty of Neah Bay, and 
was wholly unrelated to the Makah Tribe's - or any other Tribes' - 
treaty right to take fish. The Tribes argued that the Anderson v. Evans 
court did not address the applicability of the 1994 MMPA amendments to 
treaty fisheries or the exercise of any other treaty rights, but 
instead focused solely on the applicability of the MMPA's general take 
prohibition, which has no Indian treaty savings clause, to the Makah 
Tribe's gray whale hunt. The Tribes asserted that as a result of the 
narrow scope of the case, the court did not address - nor did it have 
any reason to address - the MMPA's provisions governing incidental take 
of marine mammals in commercial fisheries, much less treaty tribal 
fisheries. In the Tribes' opinion, because Anderson v. Evans did not 
address Section 118 of the Act, the 1994 amendments (including the 
treaty savings clause) or the 1995 rule, it is inapplicable to the 2010 
LOF rulemaking. The Tribes also asserted that the incidental take of 
marine mammals in treaty fisheries is well within the treaty rights 
protected by the 1994 treaty savings clause, a statute which must be 
construed liberally in favor of the Indians.
    Comment 5C: The Tribes' third argument was that NMFS' 1995 
conclusion regarding Tribal fisheries remains accurate because the 
Tribes' regulate their fisheries (including interactions with marine 
mammals) and NMFS retains authority to regulate tribal fisheries should 
the principle of conservation necessity deem it necessary. In the 
Tribes' opinion, NMFS need not take the radical step of reversing its 
1995 rule with respect to treaty tribal fisheries and the LOF because, 
as a practical and legal matter, the agency is fully capable of 
protecting marine mammals under the existing rule. Finally, the Tribes 
noted that, just as in 1995 when NMFS asserted its authority to 
regulate tribal fisheries under the treaty rights principle of 
conservation necessity, NMFS retains that option should the impact of 
treaty tribal fisheries on certain marine mammal species reach the 
threshold to apply the conservation necessity principle. Thus, NMFS 
retains the authority to regulate treaty fisheries under appropriate 
circumstances.
    Response: In the final rule implementing section 118 of the MMPA 
(60 FR 45086, August 30, 1995) NMFS concluded that treaty tribal 
fisheries are conducted under the authority of Indian treaties; 
therefore, the MMPA's requirements in section 118 do not apply to 
treaty Indian tribal fisheries. NMFS explained this decision in the 
1995 final rule stating (the remaining text in this paragraph is quoted 
directly from the final rule at 60 FR 45086, August 30, 1995), `` the 
rights to fish and hunt are already secured separately for Northwest 
tribes pursuant to their treaties with the United States. NMFS reviewed 
the relationship of the Northwest Indian treaties to the MMPA and did 
not find clear evidence that Congress intended to abrogate treaty 
Indian rights. Section 14 of the Amendments to the MMPA (Public Law No. 
103-238) states ``Nothing in this Act, including any amendments to the 
Marine Mammal Protection Act of 1972 made by this Act -- alters or is 
intended to alter any treaty between the United States and one or more 
Indian tribes. '' This provision clarifies that existing treaty Indian 
fishing rights are not affected by the amendments to the MMPA. 
Therefore, tribal fisheries are conducted under the authority of the 
Indian treaties rather than the MMPA, and the MMPA's mandatory 
registration systems do not apply to treaty Indian fishers operating in 
their usual and accustomed fishing areas. Since inclusion of the treaty 
Indian fisheries in the LOF would also establish an obligation to 
obtain an MMPA registration under section 118, NMFS has deleted 
reference to tribal fisheries in the LOF. The registration requirements 
for Category I or II fisheries will not apply to treaty Indian 
tribes.'' (60 FR 45086, August 30, 1995.)
    NMFS considered the public comments received on the proposed 2010 
LOF, existing Indian treaties providing rights for tribal fisheries, 
the statutory provisions and context of the MMPA, and the legislative 
history of the 1994 amendments to the MMPA in evaluating whether the 
1995 decision to exempt treaty tribal fisheries from the LOF should be 
changed due to Anderson v. Evans, 371 F.3d 475 (9th Cir. 2004). NMFS 
has determined that the facts and holding of Anderson v. Evans do not 
alter NMFS' original analysis in the final rule implementing section 
118 of the MMPA (60 FR 45086, August 30, 1995). Anderson v. Evans 
applied to directed hunt of marine mammals and not incidental take of 
marine mammals by fishers. Section 118 of the MMPA specifically 
regulates incidental take of marine mammals by commercial fishers. The 
court in Anderson v. Evans did not address the treaty savings clause, 
which restricts the application of section 118 in the context of tribal 
treaty rights. In addition, NMFS continues to adhere to a policy of 
implementing the Federal trust responsibility by protecting treaty 
fishing rights of tribes. NMFS also will continue to work closely with 
the affected tribal governments on a government-to-government basis to 
gather data on injuries and mortalities of marine mammals incidental to 
tribal fisheries. In light of the above, NMFS did not include in the 
2010 LOF the treaty tribal fisheries where tribal fishers exercise 
their treaty-protected fishing rights.
    Based on the information presented in the final 2008 SARs and 
provided in Indian Tribal self-reports, there is no indication that any 
marine mammal bycatch associated with tribal fisheries presents a 
biological concern for applicable stocks. In the event this becomes an 
issue, NMFS would consider invoking the treaty-rights principle of 
``conservation necessity'' to protect marine mammals.
    The 2008 SARs show that nine species have been or are incidentally 
seriously injured and killed in Pacific Northwest treaty tribe 
fisheries, though many of these species have not been seriously injured 
or killed in recent years. All of the takes by tribal fisheries listed 
in the 2008 SARs are from non-depleted stocks of marine mammals. One 
take occurring after publication of the 2008 SARs was from a depleted 
stock. Below is a summary of the information provided in the 2008 SARs 
as well as information available from tribal self-reporting since 
publication of the 2008 SARs. Please see the 2008 SARs for more 
detailed information on these stocks and/or their interactions with 
treaty tribal fisheries.
    (1) California sea lions: Current estimates of annual serious 
injury or mortality of this stock in tribal fisheries is zero to two 
animals/year. The stock's PBR level is 8,511.
    (2) Harbor seal (OR/WA coast): The Northern WA marine set gillnet 
(tribal fishery in coastal waters) fishery seriously injured or killed 
3 harbor seals in 2000 and 6 in 2004. The PBR for this stock is 1,343 
and the minimum total fishery mortality and serious injury is less than 
10 percent of the PBR. Therefore, fishery mortality and serious injury 
appears to be insignificant and approaching a zero mortality and 
serious injury rate.

[[Page 58866]]

    (3) Harbor seal (WA inland waters): The Puget Sound treaty and non-
treaty sockeye salmon gillnet fishery seriously injured or killed one 
harbor seal in 1994. The PBR for this stock is 771 and the minimum 
estimated fishery mortality and serious injury for this stock appears 
to be less than 10 percent of the PBR. Therefore, fishery mortality and 
serious injury appears to be insignificant and a approaching zero 
mortality and serious injury rate.
    (4) Harbor Porpoise (Northern CA/Southern OR): One harbor porpoise 
mortality was documented for the Klamath River tribal salmon gillnet 
fishery in 1995. The PBR for this stock is 259 and the minimum 
estimated fishery mortality and serious injury for this stock appears 
to be less than 10 percent of the PBR. Therefore, fishery mortality and 
serious injury appears to be insignificant and approaching a zero 
mortality and serious injury rate.
    (5) Harbor Porpoise (OR/WA coast): The Northern WA marine set 
gillnet (tribal fishery in coastal waters) fishery seriously injured or 
killed 3 harbor porpoise in 2000. In addition, 2 harbor porpoise (stock 
unknown) were reported killed in 2004 in a Makah Tribal fishery (Makah 
Tribe self-reports). Based on the range of the stock and the location 
of the Makah fisheries, the animals were either part of the OR/WA coast 
stock or the WA Inland Waters stock. The PBR for this stock is 277 and 
the minimum estimated fishery mortality and serious injury for this 
stock appears to be less than 10 percent of the PBR. Therefore, fishery 
mortality and serious injury appears to be insignificant and 
approaching zero mortality and serious injury rate.
    (6) Harbor Porpoise (WA inland waters): The Puget Sound treaty and 
non-treaty sockeye salmon gillnet fishery seriously injured or killed 
one harbor porpoise in 1994. As stated above, 2 harbor porpoise (stock 
unknown) were reported killed in 2004 in a Makah Tribal fishery (Makah 
Tribe self-reports). Based on the range of the stock and the location 
of the Makah fisheries, the animals were either part of the OR/WA coast 
stock or the WA Inland Waters stock. The PBR for this stock is 63. 
While the status of the WA Inland Waters stock relative to its Optimum 
Sustainable Population level and population trends is unknown, the 
uncorrected estimate of abundance in Washington inland waters was 
significantly greater in 2002-2003 than in 1996.
    (7) Dall's Porpoise (CA/OR/WA): The Puget Sound salmon drift 
gillnet tribal fishery seriously injured or killed one Dall's porpoise 
in the period from 2000 to 2004. The PBR for this stock is 318 and the 
minimum estimated fishery mortality and serious injury for this stock 
appears to be less than 10 percent of the PBR. Therefore, fishery 
mortality and serious injury appears to be insignificant and 
approaching a zero mortality and serious injury rate.
    (8) Sea otter (WA): Sea otters (WA) are managed by the U.S. Fish 
and Wildlife Service. According to the Service's 2008 SAR, the Makah 
Northern Washington marine set-gillnet fishery seriously injured or 
killed 11 sea otters over a period of 13 years between 1988 and 2001 
(2008 SAR) and 2 sea otters in 2004 (Makah Indian Tribe self-report). 
The stock has increased at a rate of 8 percent since 1989. The PBR for 
this stock is 11 per year. The Service was unable to determine whether 
the level of human-caused mortalities and serious injuries are 
insignificant and approaching a zero mortality and serious injury rate, 
based on a lack of information on the level of all sources of human-
caused serious injury and mortality of this stock. However, the current 
population estimate of 1,125 is above the lower end of the Optimum 
Sustainable Population (60 percent of the maximum carrying capacity for 
the stock) (2008 SAR).
    In addition to the information provided in the 2008 SARs, recent 
self-reports from the Makah Indian Tribe show additional serious injury 
and mortality of marine mammal stocks not yet represented in the SARs 
(see comment 3 above). The Makah Indian Tribe's self-reported data 
indicate that Makah fisheries interacted with three marine mammal 
stocks in 2008 and 2009.
    (1) In 2009, a gray whale was entangled in a Makah fishery and 
released alive. The Eastern North Pacific gray whales are currently 
considered to be at the stock's Optimum Sustainable Population size 
(2008 SAR).
    (2) In 2008, a Steller sea lion was killed in a Makah fishery. 
Based on the geographical range of the species, this animal was most 
likely from the Eastern stock of Steller sea lions, which is listed as 
threatened under the ESA and therefore considered depleted under the 
MMPA. Based on currently available data, the minimum estimated U. S. 
commercial fishery-related mortality and serious injury for Eastern 
Steller sea lions is less than that 10 percent of the stock's PBR of 
200 per year; therefore, fishery mortality and serious injury appears 
to be insignificant and approaching a zero mortality and serious injury 
rate (2008 SAR). In addition, the Eastern Steller sea lion population 
has been consistently increasing at an overall annual rate of 3.1 
percent throughout most of the range (Oregon to southeastern Alaska), 
which may indicate that this stock is reaching Optimum Sustainable 
Population size (2008 SAR).
    (3) In 2008, 3 harbor porpoises were killed in a Makah fishery. 
While the stock is unknown, based on the geographic range of the stock 
and the location of the Makah fisheries, the animals were either part 
of the OR/WA coast stock or the WA Inland Waters stock. As stated 
above, the PBR for this OR/WA coast stock is 277 and the minimum 
estimated fishery mortality and serious injury for this stock appears 
to be less than 10 percent of the PBR. Therefore, fishery mortality and 
serious injury appears to be insignificant and approaching zero 
mortality and serious injury rate. Also stated above, while the status 
of the WA Inland Waters stock relative to its Optimum Sustainable 
Population level and population trends is unknown, the uncorrected 
estimate of abundance in Washington inland waters was significantly 
greater in 2002-2003 than in 1996 (2008 SARs).
    NMFS will continue to work closely with the affected tribal 
governments on a government-to-government basis to gather data on 
injuries and mortalities of marine mammals incidental to tribal 
fisheries.

General Comments

    Comment 6: The MMC recommended, based on their recommendation that 
tribal fisheries be included on the LOF (comment/response 2 above), 
that NMFS notify all treaty tribes believed to be engaged in hunting 
that any directed taking of marine mammals requires authorization under 
the MMPA. In reviewing the SARs prepared by NMFS under section 117 of 
the MMPA, the MMC noted that tribal hunting of harbor seals and 
California sea lions is included as a possible source of mortality. The 
MMC asserted that if such hunting is in fact ongoing, it would be 
subject to the same analysis as the proposed taking of gray whales at 
issue in Anderson v. Evans and would presumably require authorization 
under the MMPA.
     Response: NMFS acknowledges this comment; however, this comment is 
not applicable to the LOF rulemaking at hand. The LOF categorizes 
fisheries based solely on the incidental, not intentional, serious 
injury and mortality to marine mammals. However, this comment is 
relevant to the SARs rulemaking process; therefore, NMFS will address 
this comment as part of the comments received during the comment period 
for the proposed 2009 SARs

[[Page 58867]]

(June 26, 2009-September 24, 2009; overlapping with the comment period 
for the proposed 2010 LOF).
    Comment 7: The MMC recommended NMFS incorporate into the applicable 
SARs language similar to that included in the SAR for the Washington 
stock of sea otters prepared by the U.S. Fish and Wildlife Service to 
clarify that, in accordance with the ruling in Anderson v. Evans, any 
such taking requires authorization under the MMPA.
    Response: NMFS acknowledges this comment; however, this comment is 
not applicable to the LOF rulemaking at hand. This comment is relevant 
to the SARs rulemaking process; therefore, NMFS will address this 
comment as part of the comments received during the comment period for 
the proposed 2009 SARs (June 26, 2009-September 24, 2009; overlapping 
with the comment period for the proposed 2010 LOF).
    Comment 8: The Garden State Seafood Association (GSSA) requested 
that NMFS provide the number of vessels which reported landings for 
specific fisheries and gear types, along with estimated number of 
vessels or persons in individual fisheries currently reported on the 
LOF. The GSSA noted that this information would be specifically 
pertinent when considering the ``Mid Atlantic mid-water trawl'' fishery 
and the ``Northeast mid-water trawl'' fishery. The GSSA stated that 
recently the number of vessels who reported landings using a mid-water 
trawl in the Mid-Atlantic was approximately 17 vessels.
    Response: NMFS agrees that including information on the number of 
vessels landing catches to compare to the estimated number of permit 
holders could be helpful for providing an accurate description of 
effort in each fishery. However, while this information is readily 
available for some fisheries, gathering this information in other 
fisheries may be more complicated. It is unclear if the information 
would be readily available from state agencies. NMFS will consult with 
the responsible state agencies and consider incorporating this 
additional data for each fishery in future LOFs.
    Comment 9: The CBD reiterated a comment made on the 2009 LOF that 
the LOF lists over 40 fisheries that are known to interact with ESA-
listed marine mammals. Only one fishery, the ``CA/OR thresher shark/
swordfish drift gillnet'' fishery, has authorization to take ESA-listed 
marine mammals. The CBD asserted that each of the other fisheries is 
therefore operating in violation of the both the ESA and MMPA. The CBD 
further asserted that 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: NMFS received a similar comment on the 2009 LOF. As noted 
in NMFS' response to comments in the final 2009 LOF (73 FR 73032, 
December 1, 2008; comment/response 2), the CBD's comment refers to how 
NMFS authorizes takes of ESA listed marine mammals incidental to 
commercial fishing. The MMPA requires fishermen 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 fishermen 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 or 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 
and 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 continuing this process of making these 
determinations in various fisheries on the LOF. Since the publication 
of the final 2009 LOF, NMFS has been reviewing available bycatch data 
for ESA-listed species in fisheries on the LOF.
    Comment 10: The CBD reiterated a comment made on the 2008 and 2009 
LOFs that the proposed 2010 LOF includes a table of fisheries subject 
to take reduction teams. While CBD found this table is very useful, 
they noted that there are Category I and II fisheries not yet subject 
to take reduction teams that also meet the statutory criteria for the 
convening of such teams. The CBD asserted that Category I and II 
fisheries not yet subject to take reduction teams which interact with 
strategic stocks must have take reduction teams promptly convened. The 
CBD viewed the Hawaii pelagic longline fishery as the highest priority 
for such a team as take continues to exceed PBR for the false killer 
whale.
    Response: NMFS received similar comments on the 2008 and 2009 LOFs. 
As noted in the responses to comments on the 2008 LOF (72 FR 66048, 
November 27, 2007; comment/response 6) and 2009 LOF (73 FR 73032, 
December 1, 2008; comment/response 3), 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 and stocks whose level 
of incidental mortality and serious injury exceeds PBR, has a small 
population size, and are declining most rapidly, pursuant to MMPA 
section 118(f)(3).
    Comment 11: The CBD reiterated a comment made on the 2009 LOF that 
the LOF once again includes ``Marine Aquaculture Fisheries'' as 
Category III fisheries. As stated in the past, the CBD does not believe 
aquaculture facilities are properly considered ``commercial fishing 
operations'' eligible for the take authorization contained in Section 
118 of the MMPA. The CBD asserted that these facilities and activities, 
to the degree they interact with marine mammals, should be subject to 
the take prohibitions and permitting regimes contained in Section 101 
of the MMPA.
    Response: NMFS received a similar comment on the 2009 LOF. As noted 
in the responses to comments on the 2009 LOF (73 FR 73032, December 1, 
2008; comment/response 5), 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 a ``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.'' Therefore, 
aquaculture fisheries are considered commercial fisheries that are 
managed under section 118 of the

[[Page 58868]]

MMPA, including inclusion on the annual LOF.
    Comment 12: Consistent with its recommendations regarding the 2005 
through 2009 LOFs, the MMC reiterated its previous recommendation that 
NMFS indicate the level of observer coverage for each fishery as part 
of the LOF.
    Response: NMFS received similar comments on the 2005 through 2009 
LOFs. As noted in the responses to comments on the 2005 LOF (71 FR 247, 
January 2, 2006; comment/response 6), 2006 LOF (71 FR 48802, August 22, 
2006; comment response 4), 2007 LOF (72 FR 14466, March 28, 2007; 
comment/response 8), 2008 LOF (72 FR 66048, November 27, 2007; comment/
response 4), and 2009 LOF (73 FR 73032, December 1, 2008; comment/
response 1), NMFS continues to feel that the LOF is not the appropriate 
avenue for reporting this data because it will confuse rather than 
clarify if presented without all the associated information supplied in 
the SARs. Also, the LOF is not meant to be redundant to the SARs, but 
to base fishery classifications based on the information presented in 
the SARs.
    NMFS continues to agree 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 
developing summaries for each Category I and II fishery on the LOF, 
which include a description of each fishery, the history of the fishery 
and it's interactions with marine mammals, and the level of observer 
coverage in recent years. When completed, these summaries will be 
placed on the NMFS Office of Protected Resources website for easy 
public access, the citation for which will be included in each LOF. 
NMFS hopes to have these summaries available for reference during the 
public comment period on the 2011 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 Resources' 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 13: The Marine Conservation Alliance (MCA) stated that 
there is a significant legal and structural issue associated with the 
fishery categorization process which is completely ignored by NMFS. The 
MCA asserted that the formula NMFS has developed for placing fisheries 
into Category I, II, or III is arbitrary and capricious and may well 
violate the equal protection and due process clauses of the U.S. 
Constitution. The MCA asserted that if a fishery is the only one 
interacting with a strategic marine mammal stock and it is responsible 
for the serious injury or death of 1 percent of the PBR, the fishery is 
placed into Category III and subject to no further regulation under 
this section of the MMPA. However, the MCA stated that if a second and 
new fishery enters the scene and it is responsible for taking 10 
percent or more of the PBR, then the first fishery, which a moment ago 
was determined to be having no impact on the marine mammal stock, is 
suddenly transformed into a fishery having a significant impact and a 
fishery that must be subject to additional regulation as a Category II 
fishery. The MCA asserted that the regulations provide that if only one 
fishery is interacting with a strategic marine mammal stock, and it is 
responsible for 10 percent or less of the PBR, then it is a Category 
III fishery since it, together with all other fisheries interacting 
with that marine mammal stock, is responsible for the serious injury 
and mortality of 10 percent or less of the PBR. The MCA asserts that 
classifying fisheries into Categories II or III based on such 
methodology is inconsistent and arbitrary.
    Response: The current fishery classification system continues to be 
widely accepted as accurate by NMFS, the scientific community, 
environmental organizations and the fishing industry. As noted in a 
response to a similar comment on the 2008 LOF (72 FR 66048, November 
27, 2007; comment/response 7), NMFS implemented the LOF fishery 
classification criteria in the final regulations to implement the 1994 
amendments to the MMPA (60 FR 45086, August 30, 1995) after ample 
consideration of comments and suggestions from the public. NMFS refers 
the reader to the response to comments 5 through 9 in that rule for a 
detailed explanation of the reasoning for setting the dividing 
thresholds between Category II and III as 1 percent of PBR. NMFS also 
finalized an Environmental Assessment (EA) in August 1995, to analyze 
the impacts of the regulations implementing the 1994 amendments on the 
environment and the public. NMFS finalized a revised EA in December 
2005 on the process of classifying U.S. commercial fisheries. A full 
copy of the updated 2005 EA can be found at http://www.nmfs.noaa.gov/pr/pdfs/interactions/loflea.pdf.
    The fishery classification criteria consider the rate of incidental 
serious injury and mortality of marine mammals in commercial fisheries 
on a stock specific basis. Therefore, the rate of interaction of a 
fishery with a marine mammal stock with a low PBR can be significant 
even if it appears to be a minimal problem based on the size of the 
fishery or frequency of the interactions. The chosen approach allows 
NMFS to focus management actions where fishery interactions have a 
significant negative effect on the population. In addition to the 1 
percent threshold, the definitions of Category II and III fisheries 
include qualitative criteria that allow the Assistant Administrator for 
Fisheries to place a fishery into Category II or III in the absence of 
reliable information. These qualitative criteria will allow the 
Assistant Administrator to take into consideration cases where the PBR 
level for a particular stock is very low and/or where the level of 
incidental interaction with commercial fisheries is low and not likely 
to delay the population's attainment of its Optimum Sustainable 
Population. See the general description of the two-tiered scheme and 
qualitative criteria that may be used to classify a fishery in the 
preamble in this rule under Fishery Classification Criteria.

Comments on High Seas Fisheries

    Comment 14: The CBD reiterated previous concerns that the 
Commission for the Conservation of Antarctic Marine Living Resources 
(CCAMLR) fisheries are listed in the LOF as Category II fisheries. The 
CBD asserted that the CCAMLR trawl fishery for krill should be listed 
as Category I. The CBD noted that a 2006 Federal Register notice 
indicated that observer data from three vessels, including a U.S. 
flagged vessel, reported that 95 fur seals were caught in the 2004/2005 
season and 156 fur seals were caught in the 2003/2004 season in two 
CCAMLR areas (71 FR 39642, 39646, July 13, 2006). The CBD also noted 
that the Final Programmatic Environmental Impact Statement (EIS) for 
CCAMLR fisheries noted that a single U.S.-flagged krill vessel killed 
138 Antarctic fur seals in a five-week period in 2004. The CBD asserted 
that this fishery is clearly not operating at a ``zero mortality and 
serious injury rate'' and must be listed in the LOF as a Category I 
fishery.
    Response: NMFS received similar comments on the 2008 and 2009 LOFs.

[[Page 58869]]

As noted in the responses to comments on the 2008 LOF (72 FR 66048, 
November 27, 2007; comment/response 5) and 2009 LOF (73 FR 73032, 
December 1, 2008; comment/response 9), and in the final rule 
implementing measures adopted by CCAMLR (72 FR 48496, August 23, 2007; 
comment/response 29), 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 (50 CFR 229.2). While NMFS does not have sufficient 
information to calculate PBR level for marine mammal stocks found 
outside of the U.S. waters, including Antarctic fur seals, there is 
available information on the relative abundance of this species. 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. 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. Ninety-five fur seals were reported caught 
during fishing operations in 2005/2006, during which time no U.S. krill 
trawl vessel was operating. 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. In addition, no U.S. vessels have 
participated in this fishery in recent years and NMFS has not received 
any requests for a permit to participate in this fishery in the 
upcoming fishing season.
    Comment 15: In comments on the proposed 2009 LOF, the CBD raised 
the concern that NMFS was treating single fisheries that have both a 
high seas and within-EEZ component as two separate fisheries for LOF 
purposes. The CBD was pleased that NMFS has clarified that the high 
seas operations of certain fisheries are extensions or components of 
existing fisheries operating in U.S. waters and therefore injure and 
kill the same marine mammal species and share the same LOF category. 
The CBD noted that this change reduces 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 of a 
single fishery) and therefore result in an underestimation of the true 
environmental effect, and LOF classification, of what is more properly 
considered a single fishery.
    Response: NMFS will continue to include language in the preamble of 
future LOFs to clarify that 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 considered a separate fishery, but 
an extension of the same fishery operating within U.S. waters (listed 
in Table 1 or 2). NMFS will continue to designate those fisheries in 
Tables 1, 2, and 3 by an ``*'' after the fishery's name.
    Comment 16: The MMC supported NMFS' inclusion of high-seas 
fisheries on the LOF. The MMC noted that the descriptions and 
evaluations of high-seas fisheries on the LOF highlight the lack of 
data on both the status and the incidental take of marine mammals 
outside the U.S. EEZ, a lack of data that is not surprising because 
current U.S. marine mammal stock assessment programs are focused on 
U.S. waters. The MMC commented that gathering data to support the 
management of high-seas fisheries will be difficult but will provide 
many ancillary benefits, including the development of useful tools for 
managing transboundary stocks. Therefore, the MMC reiterated its 
previous recommendation that NMFS develop and implement the research 
and monitoring programs needed to manage high-seas fisheries in a 
manner consistent with the requirements of the MMPA and the High Seas 
Driftnet Fishing Moratorium Protection Act.
    Response: NMFS continues to agree that 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 (please see the 2009 LOF, 74 FR 73032, 
December 1, 2008; comment/response 8). NMFS is currently developing a 
strategic action plan for addressing international marine mammal 
conservation issues, including the need to gather the necessary data 
and strengthen international partnerships to effectively manage marine 
mammal bycatch in domestic and foreign high seas fisheries.
    Comment 17: The Hawaii Longline Association (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 EEZ components. 
The HLA asserted that, as a threshold matter, the proposed LOF 
arbitrarily and inaccurately justifies its categorization of the high 
seas deep-set fishery on the assumption that the fishery interacts with 
the so-called ``pelagic'' false killer whale stock. The HLA noted that 
by NMFS's definition, the ``pelagic'' false killer whale stock occurs 
only in the U.S. EEZ - an area that does not include the high seas. The 
HLA stated that NMFS is arbitrarily picking and choosing when and where 
it will split or combine artificially-constructed false killer whale 
stocks for purposes of estimating abundance and establishing a given 
fishery's rate of interaction with the stock (and, hence, the fishery's 
LOF categorization). The HLA asserted that either NMFS must acknowledge 
that all false killer whales outside the ``insular'' zone belong to the 
Eastern North Pacific stock, the size of which is unknown, or it must 
consistently apply its arbitrary and scientifically unsound ``pelagic'' 
stock definition.
    The HLA also commented that recent reports call into question the 
proposed LOF's assumption that the high seas deep-set fishery interacts 
with noncoastal marine mammals to the same extent as the U.S. EEZ 
fishery (Forney and McCracken, 2008), and suggest that false killer 
whales may be sufficiently abundant on the high seas between Hawaii and 
Palmyra Atoll that already low deep-set fishery interaction rates may 
warrant at least a Category II classification (Barlow and Rankin, 
2007).
    Response: This comment questions: (1) NMFS' criteria for 
classifying high seas fisheries in general; (2) The manner in which 
NMFS classifies the high seas portion of the HI-based deep-set

[[Page 58870]]

longline fishery (the ``Western Pacific pelagic deep-set longline'') 
based on serious injury and mortality levels of false killer whales (HI 
pelagic stock); and (3) Information regarding false killer whale stock 
delineation, and false killer whale abundance and fishery takes on the 
high seas. NMFS responded to a similar comment in the final 2009 LOF 
(73 FR 73032, December 1, 2008; comment/response 11).
    (1) The first part of this comment questioned NMFS' criteria for 
classifying high seas fisheries. NMFS agrees that fisheries should be 
classified on the LOF according to their interactions with marine 
mammals. Although information on interaction rates (per trip or per 
set) are available for the high seas deep-set and shallow-set 
fisheries, PBR levels for marine mammal stocks on the high seas are not 
available. This is because, as mandated by Section 117 of the MMPA (16 
U.S.C. 1386), NMFS prepares SARs and calculates PBR levels for marine 
mammal stocks occurring ``in waters under the jurisdiction of the 
United States.'' NMFS does not generally develop SARs or calculate PBR 
levels for 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.
    As stated in the preamble of the proposed 2010 LOF (74 FR 27739, 
June 11, 2009), many fisheries operate in both U.S. waters and on the 
high seas, and fishing gears and methods in these fisheries remain 
virtually unchanged on either side of the 200 nmi EEZ boundary. In 
these cases, the high seas component of the fishery (Table 3) is not 
considered 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 a ``*'' after the fishery's name. 
While NMFS recognizes it is somewhat confusing to include different 
components of the same fishery in two tables on the LOF, listing the 
two components separately on two tables is necessary because of 
differences in the Federal permitting systems for vessels permitted to 
operate only within U.S. waters versus those permitted to operate 
within U.S. waters and on the high seas.
    (2) The second part of this comment questioned the manner in which 
NMFS classifies the high seas portion of the HI-based deep-set longline 
fishery (the ``Western Pacific pelagic deep-set longline'') based on 
serious injury and mortality levels of false killer whales (HI pelagic 
stock). As stated in the preamble of the proposed 2010 LOF, 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). This also 
applies to fisheries that operate over a large geographic range. The 
entire fishery is categorized on the LOF at its highest level of 
classification, regardless of where marine mammal interactions occur 
within the fishery's range. Since the ``Western Pacific pelagic deep-
set longline'' and ``HI deep-set (tuna target)'' are two components of 
the same fishery, distinguished from each other only by which side of 
the 200 nmi EEZ boundary they operate, and the component of the fishery 
operating in U.S. waters is classified as Category I, the high seas 
component of the fishery is also classified as Category I.
    If NMFS receives information indicating that the high seas 
component of a fishery operates significantly differently than the 
component operating within U.S. waters, NMFS would consider splitting 
that fishery into two fisheries. However, the fishing operations of the 
high seas component of this fishery are not significantly different 
than fishing operations within the U.S. EEZ, and a single vessel may 
set both within the U.S. EEZ waters and on the high seas. Therefore, 
splitting these components into separate fisheries, and classifying 
them separately, is not warranted.
    (3) The third part of this comment is related to information 
regarding false killer whale stock delineation, and false killer whale 
abundance and fishery takes on the high seas. The commenter is correct 
in that NMFS currently defines the pelagic stock of false killer whales 
as occurring from 75nmi to the EEZ boundary (2008 SAR). However, these 
animals are thought to move across the EEZ boundary into the high seas. 
NMFS truncated the stock boundary as ending at the 200nmi EEZ line 
because of the mandate in section 117 of the MMPA (16 U.S.C. 1386) for 
NMFS to create SARs and calculate PBR levels for marine mammal stocks 
occurring ``in waters under the jurisdiction of the United States.'' 
While NMFS does not gather detailed abundance information for the 
entire range of Hawaiian false killer whales, NMFS has estimated the 
density of false killer whales on the high seas within the area of 
operation of U.S. longline fisheries to be 0.049 animals per 100 km2, 
which is not dramatically different than the density within the 
Hawaiian EEZ (0.022 animals per 100 km2) (Barlow and Rankin 2007). 
Also, while NMFS does not have information on the level of bycatch by 
international vessels on the high seas, take rates by U.S. vessels on 
the high seas (0.78 animals per 1000 sets) are similar to take rates by 
U.S. vessels within the Hawaiian EEZ (0.71 per 1000 sets) (Forney and 
Kobayashi, 2007). No complete abundance estimate for false killer 
whales on the high seas is available, but an estimate made for part of 
the high seas range of these fisheries is 906 (C.V. = 0.68), which 
would result in a PBR of 5.2 false killer whales for all U.S. and 
international fisheries combined. The estimated mortality and serious 
injury of false killer whales by U.S. vessels operating on the high 
seas is 5.4 animals per year (Draft 2009 SAR), which already exceeds 
the PBR, without taking into account international takes.
    Comment 18: The HLA stated that the proposed 2010 LOF nowhere 
mentions longline fishing in and around Palmyra Atoll, Johnston Atoll 
and other U.S. possessions in the Pacific Ocean. The HLA noted that the 
2008 false killer whale SAR estimates a population size of 1,329 
animals for the Palmyra Atoll stock, butt is not clear how the proposed 
2010 LOF takes into account, in any manner, longline fishing in U.S. 
waters around these possessions. The HLA asked if the proposed LOF 
intended to include these animals in its ``pelagic'' false killer whale 
stock definition? Or, are fisheries in these areas considered part of 
the deep-set fishery or a separate longline fishery (which then should 
be separately categorized)? The HLA then asked, if the former, why is 
the fishery categorized based only upon a population estimate and PBR 
that does not include the Palmyra population estimate? The HLA asserted 
that NMFS should clarify these issues in the final 2010 LOF, 
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: As stated in the response to a similar comment on the 
2009 LOF (73 FR 73032, December 1, 2008; comment/response 12), 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''). The fishery description provided 
in the final 2008 LOF (72 FR 66048, November 27, 2007), states that 
Hawaii-based longline fishing effort takes place over a huge geographic 
range extending north-south from 40[deg] N. lat. to the equator and 
east-west from

[[Page 58871]]

Kure Atoll to as far as 135[deg] W. long., with fishing for tunas 
primarily occurring around the main Hawaiian Islands and south of the 
Hawaiian Islands.
    In the final 2008 SARs, there were three recognized false killer 
whale stocks in the Pacific Islands region, including the Palmyra 
stock: (1) the Hawaii insular stock, and (2) the Hawaii pelagic stock, 
and (3) the Palmyra stock. The status of false killer whales in Palmyra 
Atoll EEZ waters relative to the Optimal Sustainable Population is 
unknown, and there are insufficient data to evaluate trends in 
abundance. The rate of mortality and serious injury to false killer 
whales within the Palmyra Atoll EEZ in the Hawaii-based longline 
fishery (0.3 animals per year) does not exceed the PBR (6.4) for this 
stock. The total fishery mortality and serious injury for Palmyra Atoll 
false killer whales is less than 10 percent of PBR. Additional injury 
and mortality of false killer whales is known to occur in U.S and 
international longline fishing operations in international waters, and 
the potential effect on the Palmyra stock is unknown.
    The ``HI deep-set (tuna target) longline'' fishery is classified as 
a Category I fishery based on its interactions resulting in serious 
injury and mortality levels that exceed the PBR of the Hawaii pelagic 
stock of false killer whales. As noted in the response to comment 17, a 
fishery is categorized on the LOF based at its highest level of 
classification. Therefore, while the rate of mortality and serious 
injury to false killer whales within the Palmyra Atoll EEZ in the 
Hawaii-based longline fishery does not warrant a Category I 
classification, the fishery remains a Category I based on serious 
injury and mortality levels of the pelagic stock of false killer 
whales.

Commercial Fisheries in the Pacific Ocean

    Comment 19: The MCA believed that NMFS' proposed 2010 
classification of fisheries incorrectly designates the ``Bering Sea 
Aleutian Islands (``BSAI'') Pollock trawl'' and the ``BSAI flatfish 
trawl'' fisheries as Category II fisheries. The MCA noted that the 
``BSAI flatfish trawl'' fishery is classified as Category II because of 
interactions with the western stock of Steller sea lions, and the 
``BSAI Pollock trawl'' fishery is classified as Category II because of 
interactions with the western stock of Steller sea lions; eastern North 
Pacific, Gulf of Alaska, BSAI transient killer whales; central North 
Pacific humpback whales; and western North Pacific humpback whales. The 
MCA stated that, with respect to the two fisheries at issue, the data 
and analyses on which NMFS relied to calculate the PBR and mortality 
and serious injury rates are flawed. The MCA further stated that by 
utilizing this flawed data, NMFS has seemingly made an arbitrary and 
capricious decision not to use the best scientific data available.
    The MCA provided reasoning, research results, and literature 
citations to support the assertion that the data used for stock 
delineations, PBR calculations, and mortality and serious injury 
calculations in the final 2008 SARs (for the marine mammal stocks 
listed in the previous paragraph) are flawed. The MCA stated that NMFS 
double counts mortalities and injuries because of the procedure NMFS 
uses to calculate marine mammal bycatch (including incorporating all 
observed and unobserved fishing sets into analyses and counting 
mortality and serious injury twice for certain stocks). The MCA 
commented that relying on the flawed SARs has caused NMFS to understate 
the PBR for marine mammal stocks. The MCA asserted that the errors in 
the PBR calculations in the SARs require that these errors be corrected 
and PBRs recalculated before NMFS proceeds with any final LOF 
designations.
    Response: NMFS acknowledges this comment; however, this comment is 
not applicable to the LOF rulemaking process at hand. This comment is 
concerned with the calculation of PBRs and mortality and serious injury 
rates, which NMFS' reports in the annual SARs. NMFS then categorizes 
fisheries on the LOF based on the information presented in the SARs. 
NMFS does not complete any PBR or serious injury and mortality-related 
analysis in the LOF rulemaking process. Also, this comment references 
information in the final 2008 SARs, which is not relevant to the 
proposed 2009 SARs rulemaking public comment period that overlapped 
with the proposed 2010 LOF comment period and was therefore not 
directed to the SARs for consideration in the 2009 SARs rulemaking 
process. The commenter may resubmit these comments during the next SARs 
open public comment period.
    Comment 20: The MCA stated that there is a serious disconnect 
between the proposed 2010 LOF and the SARs. In the proposed 2010 LOF, 
NMFS stated the ``BSAI Pollock trawl'' fishery is placed into Category 
II in part because of interactions with the central and western North 
Pacific stocks of humpback whales (74 FR at 27752, June 11, 2009). The 
MCA stated that the SAR assigns 100 percent of the fisheries related 
mortality for these two stocks of humpback whales to other fisheries. 
The MCA noted that the SAR never mentions the ``BSAI Pollock trawl'' 
fishery as causing humpback whale deaths or serious injury (final 2008 
SAR at page 165, 173). The MCA asserted that since the LOF is based on 
the SAR, the ``BSAI Pollock trawl'' fishery cannot be placed in 
Category II based on humpback whale interactions that are not reported 
in the SAR.
    Response: The classification of a fishery as a Category II fishery 
is based on the annual mortality and serious injury of a stock in a 
given fishery exceeding 1 percent and less than 50 percent of the PBR 
level (72 FR 66048, 27 November 2007). While there are known historical 
interactions between the BSAI pollock trawl fishery and the central and 
western North Pacific stocks of humpback whales, these interactions are 
not the basis for classifying the ``BSAI Pollock trawl'' fishery as a 
Category II fishery (i.e., the level of serious injury and mortality of 
these stocks in the ``BSAI Pollock trawl'' fishery is below 1 percent 
of the stocks' PBR levels). The continued inclusion of the superscript 
``1'' following these stocks in this fishery on Table 1 was a 
typographical error, which NMFS has corrected in this final rule. The 
Tier 1 approach to classifying fisheries considers the cumulative 
fishery mortality and serious injury for a particular stock; however, 
Tier 2 classification of fisheries considers fishery-specific mortality 
and serious injury for a particular stock. A fishery is typically 
categorized on the LOF at its highest level of classification. In the 
``BSAI Pollock trawl'' fishery, the estimated annual level of serious 
injury and mortality of the Eastern North Pacific, Gulf of Alaska, 
Aleutian Islands, and Bering Sea transient killer whale stock is 0.4, 
or 12.9 percent of PBR (PBR is 3.1), and the western Steller sea lion 
stock is 3.8, or 1.6 percent of PBR (PBR is 234). Therefore, this 
fishery is classified as a Category II fishery under the Tier 2 
approach to fishery classification.
    Comment 21: The MMC and the CBD recommended the ``Gulf of Alaska 
sablefish longline'' fishery be elevated above a Category III. The CBD 
based this recommendation on frequent interactions with sperm and 
killer whales, qualifying this fishery for Category I or II. The MMC 
noted the 2008 SARs indicate that observers reported that three sperm 
whales were seriously injured in this fishery in 2006. The MMC asserted 
that, given the estimated number of injuries or deaths based on 2002 to 
2006 data, NMFS' inability to calculate a potential

[[Page 58872]]

biological removal level for the North Pacific sperm whale stock is not 
a sufficient basis for maintaining the current Category III 
classification for this fishery. The MMC further noted that NMFS is 
unable to estimate PBR levels for 57 percent of the marine mammal 
stocks that occur in Alaska because of inadequate or outdated data. The 
MMC asserted that NMFS cannot continue to use this lack of information 
as the basis for failing to classify fisheries that incidentally kill 
or seriously injure marine mammals. Doing so is inconsistent with NMFS' 
own guidance for addressing such situations, which directs placement in 
category II when the available information is not sufficient to 
categorize a fishery accurately (74 FR at 27740, June 11, 2009).
    Response: NMFS received similar comments on the 2009 LOF (73 FR 
73032, December 1, 2008; comment/response 22). The PBR level for the 
North Pacific sperm whale stock is unknown because a reliable abundance 
estimate is not available. NMFS is in the process of analyzing bycatch 
data from 2007 and 2008 and will re-evaluate the category placement for 
the ``Gulf of Alaska sablefish longline'' fishery on the 2011 LOF.
    The commenter's interpretation of NMFS' guidance is not entirely 
correct. NMFS' guidance provided in the preamble of each proposed LOF, 
including the proposed 2010 LOF (74 FR at 27740, June 11, 2009), 
states, ``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).'' NMFS has such 
information on some of the ``other factors'' related to the ``Gulf of 
Alaska sablefish longline'' fishery, such as fishing techniques, gear 
used, and qualitative data and stranding data. As stated above, NMFS is 
in the process of evaluating available data and will re-evaluate the 
category placement of this fishery in the 2011 LOF.
    Comment 22: The MMC and the CBD disagreed with NMFS' proposal to 
reclassify the ``Alaska southeast salmon purse seine'' fishery from 
Category II to Category III based on lack of data regarding humpback 
whale takes. The MMC noted that high levels of entanglement-related 
scarring have been documented for humpback whales in Alaska. The MMC 
further noted that the lack of evidence for interactions does not 
provide a reliable basis for reclassifying this fishery to category III 
if NMFS has failed to institute an observer program for it. The MMC 
stated that given that the fishery has no observer coverage and 
analogous fisheries are known to seriously injure humpback whales, NMFS 
should maintain the fishery's Category II classification.
    Response: In this case a 15-year lack of evidence of serious injury 
and mortality in this fishery, even in the absence of an observer 
program, is enough to warrant its re-categorization. Under the annual 
LOF, fishery categories are assigned via NMFS' well-documented process 
of analyzing known or estimated levels of serious injury and 
mortalities relative to a stock's PBR. In some cases, a fishery with no 
recent documented injuries or mortalities of marine mammals may be 
classified in Category II by analogy to similar gear types in similar 
areas that are known to cause mortality or serious injury of marine 
mammals. However, in those instances, additional available information 
(such as stranding data, fishermen self-reports, or anecdotal 
information) suggests serious injury or mortality of marine mammals may 
be occurring that is likely to exceed the Category III threshold. Only 
marine mammal serious injuries and mortalities that can be assigned to 
a specific fishery are included in fisheries' categorization. The re-
categorization of the ``Southeast Alaska purse seine'' fishery in the 
2010 LOF is consistent with this practice, albeit somewhat delayed. 
NMFS delayed the re-categorization of this fishery until this year as a 
precautionary measure, and is satisfied at this time that this fishery 
meets the criteria for Category III.
    While humpback whale scarring is documented in Alaska, at this time 
there is no accepted method to establish a reliable rate of fishing-
related serious injury or mortality from documented scarring. Scarring 
alone is not valid evidence for classifying a fishery as Category II. 
Further, in the few cases of known serious injury or mortality of 
humpback whales in purse seines in Alaska, unique scarring patterns 
from purse seine gear have been shown to be easily identifiable. NMFS 
recognizes that the lack of observer coverage due to funding 
constraints is not ideal; however, the lack of observer coverage along 
is not reason for classifying a fishery as Category II.
    Comment 23: The CBD asserted that all other Alaska pot fisheries 
should be classified as Category II rather than Category III.
    Response: Categorization of individual Alaska fisheries in Category 
II due to interactions with humpback whales are based on documented 
serious injury and mortality levels of humpback whales in each of those 
fisheries, including the ``AK Bering Sea sablefish pot'' fishery. Other 
Alaska pot, ring net, or trap fisheries either have no documented 
humpback whale serious injuries or mortalities or have low levels that 
do not meet the Category II requirements.
    Comment 24: The HLA supported the re-labeling of the false killer 
whale stock with which the deep-set fishery interacts as the ``HI 
pelagic'' stock (as opposed to the ``HI'' stock), but only insofar as 
this change purports to distinguish the false killer whale ``pelagic'' 
stock from the false killer whale ``insular'' stock. As HLA has 
repeatedly commented (including comments submitted on the draft 2008 
SARs), the HLA believes there are significant uncertainties and errors 
perpetuated in NMFS' false killer whale SAR year after year, which is 
then used to generate inaccurate LOFs. Specifically, the HLA disagreed 
with the continued division of false killer whales into three fictional 
stocks based on U.S. EEZ boundaries and NMFS' underestimate for the 
population abundance of false killer whales with which the deep-set 
fishery interacts. Thus, while HLA agreed with the proposed LOF's 
recognition of separate ``pelagic'' and ``insular'' false killer whale 
stocks, it did not agree with the cramped manner in which NMFS has 
defined the ``pelagic'' stock. The HLA asserted that NMFS must address 
these concerns or, at a minimum, acknowledge the significant 
uncertainties that underlie the determinations made in the proposed 
LOF.
    Response: NMFS acknowledges this comment and the reference to the 
false killer whale stock with which the deep-set fishery interacts has 
been changed to the ``HI pelagic'' stock on the final 2010 LOF. The 
comment is also concerned that there are uncertainties with the 
designation of the Hawaii pelagic stock of false killer whales. This 
comment is not relevant to the LOF rulemaking at hand. NMFS reports 
stock delineations and discussions surrounding the uncertainties in the 
data used to base stock delineations, after opportunity for public 
review and comment, in the

[[Page 58873]]

annual SARs. NMFS determines which species and stocks are included as 
incidentally killed or injured in a fishery on the LOF in part by 
annually reviewing the information presented in the current SARs, which 
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 interaction with commercial fishing operations. NMFS also 
reviews other sources of new information, including observer data, 
stranding data, and fisher self-reports. The LOF is not intended to 
repeat the information included in the SARs, but rather to incorporate 
the SARs with other sources of information in order to make 
determinations based on the best available science. However, this 
comment is relevant to the SARs rulemaking process and NMFS is aware of 
the concerns raised by the HLA and the MMC in recent years. Therefore, 
NMFS will address this comment as part of the comments received during 
the comment period for the proposed 2009 SARs (June 26, 2009-September 
24, 2009; overlapping with the comment period for the proposed 2010 
LOF).
    Comment 25: The HLA supported NMFS's proposal to remove spinner 
dolphin (HI stock) and pantropical spotted dolphin (stock unknown) from 
the list of species and stocks that interact with the deep-set fishery 
and shallow-set fishery, respectively.
    Response: NMFS acknowledges this comment. These stocks are removed 
from the list of species and stocks incidentally killed or injured in 
this final rule.
    Comment 26: The CBD reiterated a previous comment from the 2009 LOF 
that various Hawaiian fisheries are known or suspected of interacting 
with Hawaiian monk seals. The CBD asserted that, given the critically 
endangered status of the monk seal, any interaction is significant and 
these fisheries should be reclassified as Category I or II.
    Response: NMFS received a similar comment on the 2009 LOF (73 FR 
73032, December 1, 2008; comment/response 13). The LOF lists the 
Hawaiian monk seal on the list of species and stocks incidentally 
killed or injured in the Category III ``HI lobster trap'' and ``HI Main 
Hawaiian Islands (MHI), Northwestern Hawaiian Islands (NWHI) deep sea 
bottomfish'' fisheries. The available information on Hawaiian monk seal 
interactions with these fisheries is:
    (1) ``HI lobster trap'' fishery: There have not been any reported 
interactions since the mid-1980s; and
    (2) ``HI Main Hawaiian Islands, Northwestern Hawaiian Islands deep 
sea bottomfish'' fishery: The final 2008 SAR states that in the past, 
monk seal interactions with fisheries in the NWHI were documented, but 
direct interactions have since become rare or non-existent, and issues 
related to competition have also somewhat abated. A Federal observer 
program of the NWHI bottomfish handline fishery was conducted from the 
fourth quarter of 2003 through 2006, and no monk seal interactions were 
observed. This fishery has not been observed since 2006. The NWHI 
lobster fishery closed in 2000, and on June 15, 2006, former President 
Bush signed a proclamation that created the Northwestern Hawaiian 
Islands Marine National Monument. Subsequent regulations prohibit 
commercial fishing in the Monument except for the bottomfish fishery 
(and associated pelagic species catch), which may continue until 2011. 
The MHI bottomfish handline fishery may also interact with monk seals 
as evidenced by recent fatty acid research; however, no mortalities or 
serious injuries have been attributed to this fishery.
    While serious injuries and mortalities have not been documented in 
recent years, NMFS has retained Hawaiian monk seals as a species or 
stock incidentally killed or 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 and the true interaction rate 
cannot be estimated without purpose-designed observation effort. Also, 
the PBR level for monk seals is currently ``undetermined.'' Due to the 
fact that the PBR level for monk seals is undetermined and that 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.
    Comment 27: The CBD noted that available information indicates that 
the ``American Samoa longline'' fishery should be listed as Category I 
based on its interactions with false killer whales.
    Response: As stated in the preamble for each LOF, a fishery is 
classified as Category I if the annual mortality and serious injury of 
a stock in a given fishery is greater than or equal to 50 percent of a 
stock's PBR level. A fishery is classified as Category II if the 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. NMFS stated 
in the proposed LOF for 2010 (73 FR 27739, June 11, 2009) that the 
abundance estimate and the PBR for the false killer whales interacting 
with the American Samoa longline fishery are unknown. NMFS biologists 
at the Southwest Fisheries Science Center will analyze the information 
on false killer whale abundance and interactions with the ``American 
Samoa longline'' fishery during the development of the 2010 SAR. NMFS 
will revisit whether reclassification of this fishery is warranted 
based on the updated SAR analyses at that time.
    At this time a fishery classification of Category I cannot be 
scientifically substantiated. The fishing gear and methods used in the 
American Samoa longline fishery are similar to those of other Category 
I and II longline fisheries elsewhere in tropical/sub-tropical 
latitudes of the Pacific that are taking false killer whales. 
Therefore, classification of this fishery as Category II by analogy is 
warranted. NMFS recognizes the uncertainties with the false killer 
whale stock structure in American Samoa and will continue to assess 
false killer whale abundance and take estimates as resources become 
available. Please also see the discussion of a similar comment on the 
2009 LOF (73 FR 73032, December 1, 2008; comment/response 14).
    Comment 28: The MMC concurred with NMFS' proposal to reclassify the 
``American Samoa longline'' fishery from Category III to Category II. 
The MMC further recommended that NMFS not postpone the injury 
determinations for the animals released alive from interactions with 
longline gear in 2008.
    Response: NMFS acknowledges the concurrence and ``American Samoa 
longline'' fishery is reclassified from Category III to Category II in 
this final rule. NMFS understands the concerns about the fishery 
impacts to false killer whales in American Samoa, especially since 
there is a the lack of population abundace or stock status information 
from this area. In response to this concern NMFS began observing this 
fishery. In 2008, the observer coverage was 6.4 percent. NMFS will 
continue to assess false killer whale abundance and take estimates as 
resources become available. NMFS is not postponing determinations of 
the three marine mammal interactions reported in this fishery in 2008. 
NMFS is analyzing the 2008 observer data and making the necessary 
injury determinations during the development of the 2010 SARs. This 
timeline is in line with NMFS' process for reviewing and updating each 
annual NMFS SAR. The data presented in the annual SARs have an average 
of a two-year time delay because of the time

[[Page 58874]]

needed to properly analyze the data and complete the peer-review 
process.
    Comment 29: The CBD stated that the ``Hawaii shallow-set longline'' 
fishery should be listed as a Category I fishery, since observer data 
from 2008 show takes of false killer whales and humpback whales in this 
fishery.
    Response: For the 2010 LOF, a reclassification of the Hawaii 
shallow-set longline fishery to a Category I is not warranted. As noted 
in NMFS' response to comments on the 2009 LOF (73 FR 73032, December 1, 
2008; comment/response 15), 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 
2010 LOF is based on information in the final 2008 SARs, which includes 
analysis of the observer takes against calculated PBR levels through 
2006. As noted in the response to comment 28 above, 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. 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 30: The MMC concurred with NMFS' proposal to classify the 
``Hawaii shortline'' fishery as Category II.
    Response: NMFS acknowledges this comment and has added the ``Hawaii 
shortline'' fishery as a Category II fishery in this final rule.
    Comment 31: The CA Wetfish Producers Association (CWPA) agreed with 
NMFS' proposal to remove short-finned pilot whales (CA/OR/WA) from the 
list of species and stocks killed or injured in the Category II ``CA 
squid purse seine'' fishery.
    Response: NMFS acknowledges this comment and has removed short-
finned pilot whales (CA/OR/WA) from the list of species and stocks 
killed or injured in the Category II ``CA squid purse seine'' fishery.
    Comment 32: The CWPA requested NMFS utilize the most recent 
scientific information in terms of observer data from 2004-2008 to 
update the list of species and stocks killed or injured in the ``CA 
squid purse seine'' fishery and reclassify the fishery to a Category 
III. The CWPA noted that observer data from the California Coastal 
Pelagic Purse Seine Observer Program contains a single observed 
mortality of an ``unidentified common dolphin'' in this fishery on 
January 3, 2005, and past LOFs have represented this interaction as 
``common dolphin, unknown.'' The CWPA stated that, while the two 
cetacean species do exhibit some overlapping distribution, there are 
substantially more recent data and robust observer data available to 
NMFS than just 2006: there were more than 193 interaction-free trips 
observed by Federal observers during 2004 to 2006, 80 more clean sets 
observed in mid to late 2007, and 13 interaction-free observed seine 
sets (4 trips) in 2008.
    Response: NMFS received similar comments on the 2008 and 2009 LOFs. 
As noted in the final 2008 LOF (72 FR 66048, November 27, 2007; 
comment/response 19) and final 2009 LOF (73 FR 73032, December 1, 2008; 
comment/response 32), NMFS based this listing on observer information 
from this fishery collected from 2004 through 2007. When able, NMFS 
bases serious injury and mortality estimates on the most recent 5 years 
for which data have been analyzed (NMFS 2005, Guidelines for Assessing 
Marine Mammal Stocks [GAMMS] II). If the total fishing effort has 
changed substantially over the last 5 years, NMFS may use only the most 
recent relevant data to most accurately reflect the current level of 
annual mortality. In some cases where information is lacking, such as 
in cases where there is no observer coverage, information that is more 
than 5 years old may not be ignored if it is the most appropriate 
information available in a particular case (NMFS 2005, GAMMS II 
report).
    In each year from 2004-2007, observer coverage in the ``CA squid 
purse seine'' was low, under 2 percent. There was one mortality of a 
short-beaked common dolphin in 2005 and in 2006 one unidentified common 
dolphin was observed seriously injured. There are no available 
biological samples or photographs of the injured dolphin; therefore, 
there is insufficient information to identify the species. 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 and NMFS cannot eliminate the possibility that a 
long-beaked common dolphin was seriously injured during this event. 
Extrapolating these sightings to the entire fishery and averaging over 
the four years of available information, the estimated annual serious 
injury or mortality is 22 long-beaked common dolphins (draft 2009 SAR). 
The current PBR for long-beaked common dolphins is 95/year (final 2008 
SAR). Therefore the serious injury or mortality rate is 23 percent, 
meeting the Category II criteria (less than 50 percent and greater than 
1 percent of the stock's PBR).
    Comment 33: The California Department of Fish and Game (CDFG) 
disagreed with NMFS' proposal to elevate the ``California spiny lobster 
trap'' fishery from Category III to Category II. The CDFG stated that 
the report of the 2007 humpback whale entanglement event, submitted by 
CDFG to NMFS Southwest Region's stranding coordinator, was submitted 
with the emphasis that the report was a third hand report. The CDFG 
stated that this report was based on information provided to the CDFG 
biologist from friends who heard it from a recreational fisherman. CDFG 
assumed that neither the whale species nor the gear type was verified. 
Also, since the 2007 entanglement event occurred in the first week of 
July, CDFG had doubts as to whether the trap involved in the 
entanglement was a lobster trap.
    Response: NMFS published criteria for evaluating reports from the 
LWDN in the proposed 2009 LOF (73 FR 33760, June 13, 2008). Each year, 
the LWDN receives reports of whales entangled in fishing gear. For some 
fisheries, particularly pot and trap fisheries, this is currently the 
only information NMFS has on which to assess the level of large whale 
entanglement in fisheries on the west coast. NMFS used the criteria to 
elevate four pot and trap fisheries to Category II in the 2009 LOF 
based upon interactions with humpback whales. NMFS acknowledged and 
identified the assumptions that need to be made in using the criteria 
in the proposed 2009 LOF.
    When evaluating an entanglement event, NMFS' first criterion is 
whether a specific fishery has been positively identified as causing 
the entanglement (73 FR 33760, June 13, 2008). Different types of pot 
and trap gear have distinguishing characteristics (e.g., marking 
requirements on buoys) that make it possible to identify the gear to a 
particular fishery. NMFS second criterion is whether the fishery 
operates in the area and time when a humpback whale was reported 
entangled in pot and trap gear (73 FR 33760, June 13, 2008). Most pot 
and trap fisheries have discrete seasons, thus gear can be associated 
with certain fisheries in certain areas based on the time of year.

[[Page 58875]]

    NMFS proposed to elevate the spiny lobster fishery to Category II 
on the 2010 LOF based on available information that indicated a 
humpback whale was observed entangled in spiny lobster gear on July 10, 
2007, south of Newport Harbor, CA. The available information came from 
a staff member from CDFG and was thus considered reliable. 
Unfortunately, there are no photographs available to aid in 
identification of the fishing gear that entangled the whale and no 
other information available. In CDFG's comment they state that they do 
not consider the report to be reliable. The information on the humpback 
whale and gear came not from a CDFG staff member, so CDFG does not have 
confidence in the accuracy of the information. NMFS spoke with staff 
from CDFG to discuss the sighting and the spiny lobster fishery. Based 
upon those discussions and memos from CDFG, NMFS agrees that the 
sighting of a humpback entangled in spiny lobster gear can not be 
considered reliable and does not meet our first criterion for re-
categorizing fisheries based upon LWDN reports.
    NMFS then considered the report using the second criterion to 
propose the fishery's elevation to Category II: does the fishery 
operate at a time and area consistent with the observed entanglement 
(73 FR at 33772, June 13, 2008). The season for the spiny lobster trap 
fishery is October through March and occurs in the southern California 
Bight, so the reported entanglement was observed almost 4 months after 
the fishery closed, within the geographic region in which the spiny 
lobster trap fishery occurs. The information provided by CDFG and a 
review of the fishery indicates that neither of the two criteria for 
re-categorizing the spiny lobster fishery have been met. Based on this 
information, NMFS is not elevating this fishery to Category II in the 
final 2010 LOF. This fishery will remain a separate Category III 
fishery. NMFS will continue to evaluate reports of pot and trap 
interactions with large whales on the west coast and may consider 
elevating this fishery in the future if additional information or 
analysis supports such a change.
    Comment 34: The CBD agreed with NMFS' proposal to reclassify the 
``CA spiny lobster trap'' fishery as a Category II. The CBD further 
asserted that 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: Since the publication of the proposed 2010 LOF, NMFS has 
received information to suggest that re-categorizing the spiny lobster 
fishery to Category II at this time is not supported by the available 
data. Please see response to comment number 33 above. Regarding the 
recommendation that all pot or trap fisheries be placed in Category II 
until observers can show that the fisheries do not pose a threat to 
humpback whales, NMFS received and responded to a similar comment from 
the CBD on the final 2009 LOF (73 FR 73032, December 1, 2008; comment/
response 29). It may not be appropriate to place observers onboard 
fishing vessels in pot and trap fisheries to detect interactions with 
marine mammals. Observers in pot and trap fisheries have very limited 
ability to detect interactions with the gear. In most instances, an 
entangled large whale is likely to swim away with gear and not be 
observed on the fishing grounds. Therefore alternative monitoring 
methods are needed. NMFS continues to work with other government 
agencies, the scientific and fishing communities, and the public to 
collect information on entanglements events and methods for tracking 
interactions between marine mammals and pot and trap gear. NMFS is 
continuing to address the problem of large whale entanglements and is 
committing resources to the issue, including hiring additional staff to 
help advance NMFS' Southwest Region's efforts on this issue. As noted 
in previous LOFs, when and if additional information and/or analysis 
become available, NMFS would consider reclassifying of pot and trap 
fisheries, as appropriate.
    Comment 35: The MMC reiterated its previous recommendation that 
NMFS classify all West Coast pot/trap fisheries (i.e., those off 
Washington, Oregon, and California) as Category II. The MMC asserted 
that dividing and renaming the West Coast pot/trap fisheries based on 
observed entanglement events is not appropriate, given the small 
fraction of entanglements likely to be observed and the fact that the 
gear cannot be distinguished. The MMC also stated that the existing 
evidence on large whale entanglement events is not sufficient to make 
an informed assessment regarding the entanglement rates for pot/trap 
fisheries on the West Coast.
    Response: Please see the responses to comments 33 and 34 above. 
NMFS received a similar comment from the MMC on the 2009 LOF. As noted 
in NMFS' response to comments on the 2009 LOF (73 FR 73032, December 1, 
2008; comment/response 30), NMFS must use the best available 
information in making recommendations for the LOF. NMFS reviewed all of 
the available data on entangled large whales off the U.S. West Coast, 
the distribution of species entangled, and the spatial and temporal 
characteristics of pot and trap fisheries to develop criteria for 
categorizing fisheries. NMFS is continuing to work on methods for 
improved data collection and analysis and will consider re-categorizing 
additional pot and trap fisheries when and if more information and/or 
analysis become available, as appropriate. As noted in the response to 
comment 34, NMFS is continuing to dedicate resources to address the 
issue of large whale entanglements in fishing gear, including hiring 
additional staff to help NMFS' Southwest Region's ongoing efforts.
    Comment 36: The MMC concurred with NMFS' proposal to reclassify the 
``CA pelagic longline'' fishery from Category II to Category III.
    Response: NMFS acknowledges this comment and has reclassified the 
``CA pelagic longline'' fishery from Category II to Category III in 
this final rule.
    Comment 37: The CBD urged NMFS to maintain 100 percent observer 
coverage in the ``CA pelagic longline'' fishery, as recent proposals to 
expand that fishery if brought to fruition are likely to result in 
significant increases in interactions with marine mammals.
    Response: The ``CA pelagic longline'' fishery is re-categorized as 
a Category III fishery in the 2010 LOF due to the low observed bycatch 
of marine mammals. The current fishery has 100 percent observer 
coverage. If a proposed shallow-set longline fishery exempted fishing 
permit is approved, one of the conditions of issuing the permit would 
be 100 percent observer coverage. There are currently no other 
proposals to expand the existing ``CA pelagic longline'' fishery.
    Comment 38: The MMC responded to NMFS' request for public comment 
and information on two large whale entanglements in gillnet gear in 
2007. The MMC asserted that observer coverage is insufficient to 
provide reliable data on marine mammal take rates in both of the 
Category II California set gillnet fishery (3.5-in mesh) for halibut, 
white seabass, and other species or the California drift gillnet 
fisheries (mesh size [gteqt]3.5 in and <14 in) for yellowtail, 
barracuda, and white seabass. The MMC further asserted that the size of 
these fisheries and the number of species they take warrant increased 
observer coverage. For that purpose, the MMC recommended that NMFS 
develop and implement expanded monitoring programs for the ``CA 
halibut, white seabass, and other

[[Page 58876]]

species set gillnet fishery (3.5-in mesh)'' and the ``CA yellowtail, 
barracuda, and white seabass drift gillnet fisheries (mesh size 
[gteqt]3.5 in and <14 in)'' fisheries.
    Response: NMFS is working to expand observer coverage of the 
California state gillnet fisheries. NMFS plans to place observers on 
the California set gillnet fishery (3.5-in mesh) for halibut, white 
seabass, and other species beginning January 2010. Available observer 
funds should yield coverage of up to 25 percent. NMFS plans to place 
observers on the California drift gillnet fisheries (mesh size 
[gteqt]3.5 in and <14 in) for yellowtail, barracuda, and white seabass 
beginning in summer 2010 if observer funds are available.
    NMFS did not receive additional information from the public on the 
two large whale entanglements in 2007 that NMFS believes may have been 
caused by either the California set gillnet fishery (3.5-in mesh) for 
halibut, white seabass, and other species or the California drift 
gillnet fishery (mesh size [gteqt]3.5 in and <14 in). NMFS will 
continue to evaluate new and existing entanglement information to 
better understand the nature of large whale interactions with fishing 
gear along the U.S. West Coast. When and if new information or analysis 
is available, NMFS will assign these entanglements to the appropriate 
fisheries. At this time, these reports will continue to be listed as 
entangled in unknown gillnet gear.

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

    Comment 39: The MMC recommended NMFS review the available 
information on state and Federal permit holders in Northeast and Mid-
Atlantic fisheries and revise the published LOF to accurately reflect 
the number of active vessels and participants in each fishery. The MMC 
noted that NMFS revised its estimates of the number of participants for 
Northeast and Mid-Atlantic fisheries in the proposed 2010 LOF based on 
state and Federal permit information without removing any duplication 
(i.e., individuals holding both state and Federal permits for a 
particular fishery) or accounting for inactive permits. Thus, although 
the information previously included in the LOF may have underestimated 
the number of participants, the new information likely overestimates 
the level of participation in some fisheries.
    Response: NMFS concurs that the updated number of estimated 
participants for each fishery may complicate management efforts due to 
uncertainty around the number of active versus passive participants and 
duplicative permit information. Therefore, NMFS will not make the 
changes proposed in the proposed 2010 LOF (74 FR 27739, June 11, 2009) 
and will revert back to the estimates of Federal permits from the 2009 
LOF (73 FR 73032. December 1, 2008) in this final 2010 LOF for the 
``Mid-Atlantic gillnet,'' Northeast sink gillnet,'' ``Atlantic mixed 
species trap/pot,'' ``Mid-Atlantic menhaden purse seine,'' ``Mid-
Atlantic haul/beach seine,'' ``Mid-Atlantic mid-water trawl,'' 
``Northeast bottom trawl,'' ``Northeast mid-water trawl,'' and ``Gulf 
of Maine Atlantic herring purse seine'' fisheries. NMFS will work with 
the relevant state agencies to obtain more reliable information on 
state permits for these fisheries to be incorporated in future LOFs. 
Based on updated information received from the Virginia Marine Resource 
Commission on the 2008 license year, the estimated number of Virginia 
Pound Net fishery participants will be updated to ``41.'' In summary, 
the estimated numbers of fishery participants in this final rule, for 
the previously mentioned fisheries, are: Category I ``Mid-Atlantic 
gillnet'' fishery to >370; Category I ``Northeast sink gillnet'' 
fishery to 341; Category II ``Atlantic mixed species trap/pot'' fishery 
to unknown; Category II ``Mid-Atlantic menhaden purse seine'' fishery 
to 22; Category II ``Mid-Atlantic haul/ beach seine'' fishery to 25; 
Category II ``Mid Atlantic mid water trawl'' fishery to 620; Category 
II ``Northeast bottom trawl'' fishery to 1052; Category II ``Northeast 
mid-water trawl'' fishery to 17; Category II ``VA pound net'' fishery 
to 41; and Category III ``Gulf of Maine Atlantic herring purse seine'' 
fishery to 30.
    Comment 40: The MMC concurred with NMFS' proposal to add the Gulf 
of Maine/Bay of Fundy harbor porpoise stock to the list of species and 
stocks incidentally killed or injured in the Category II ``Northeast 
bottom trawl'' fishery. The MMC further noted that the combined 
mortality of harbor porpoises from this stock in the Category I 
``Northeast sink gillnet,'' Category I ``Mid-Atlantic gillnet,'' and 
Category II ``Northeast bottom trawl'' fisheries exceeds the stock's 
PBR level. For that reason, the MMC commented that NMFS should 
recognize the harbor porpoise as a stock incidentally injured or killed 
in the ``Northeast bottom trawl'' fishery and work jointly with the 
Harbor Porpoise Take Reduction Team and the Atlantic Trawl Gear Take 
Reduction Team to reduce the stock's total incidental serious injury 
and mortality levels.
    Response: NMFS acknowledges the comment and will continue to 
monitor all marine mammal takes within the ``Northeast bottom trawl'' 
fishery. NMFS recognizes the harbor porpoise as a stock incidentally 
injured or killed in the ``Northeast bottom trawl'' fishery, as 
depicted by its current listing in Table 2 of the 2010 LOF. NMFS 
recently proposed modifications to the Harbor Porpoise Take Reduction 
Plan (74 FR 36058, July 21, 2009) to further reduce the serious injury 
and mortality of harbor porpoises from incidental interactions with 
Northeast sink and Mid-Atlantic gillnet fisheries to below the stock's 
PBR level. NMFS will continue to coordinate with the Harbor Porpoise 
Take Reduction Team and the Atlantic Trawl Gear Take Reduction Team to 
ensure that the stock's total incidental serious injury and mortality 
is reduced to below its PBR level and, ultimately, to an insignificant 
level approaching a zero mortality and serious injury rate.
    Comment 41: The MMC recommended that NMFS not remove the 
superscript ``1'' after Gulf of Maine/Bay of Fundy harbor porpoise in 
its listing of the Category I ``Mid-Atlantic gillnet'' fishery until 
NMFS has more definitive information indicating that the number of 
removals is, and is likely to remain, below 50 percent of the stock's 
PBR level. The MMC asserted that it would be premature to conclude that 
the taking of harbor porpoises is no longer driving the classification 
of the ``Mid-Atlantic gillnet'' fishery. The MMC noted that the 
estimated take is only a single percentage point (or 11 animals) below 
the threshold that would trigger a Category I classification. The MMC 
asserted that, given the level of observer coverage in the fishery (2.2 
percent) and the resulting uncertainty around the estimates of 
incidental serious injury and mortality, this difference is not 
significant or justification for removal of the superscript notation. 
The MMC further noted that NMFS' proposal fails to recognize the 
increasing trend in the deaths of harbor porpoises in this fishery in 
recent years.
    Response: The superscript ``1'' in Table 3 of the LOF is defined to 
depict ``Fishery classified based on serious injuries of this stock 
which are greater than 50 percent (Category I) or greater than 1 
percent and less than 50 percent (Category II) of the stock's PBR.'' 
According to the 2008 SAR, the average annual harbor porpoise (Gulf of 
Maine/Bay of Fundy stock) mortality and serious injury in the ``Mid-
Atlantic

[[Page 58877]]

gillnet'' fishery from 2002 to 2006 was 299, which represented the 4-
year average estimate from 2003, 2004, 2005, and 2006. Using this 
average, the fishery was responsible for taking 49 percent of the 
stock's PBR, which is not greater than 50 percent. As the commenter 
stated, regulations (50 CFR 229.2) define a Category I fishery as ``one 
that is by itself responsible for the annual removal of 50 percent or 
more of any stock's potential biological removal level'' and a Category 
II fishery as ``is by itself responsible for the annual removal of 
between 1 and 50 percent, exclusive, of any stock's potential 
biological removal level.'' Therefore, given the specific regulatory 
reference to 50 percent for the cut off for Category I, while harbor 
porpoises are being taken in this fishery, this stock currently does 
not qualify as driving the Category I definition for the ``Mid-Atlantic 
gillnet'' fishery. Harbor porpoise serious injuries and mortalities 
were responsible for the elevation of the ``Mid-Atlantic gillnet'' 
fishery from Category III to Category II on the 1996 LOF (December 28, 
1995; 60 FR 67063) but serious injuries and mortalities of coastal 
bottlenose dolphins were responsible for the elevation of the fishery 
to Category I on the 2003 LOF (July 15, 2003; 68 FR 41725). Currently, 
coastal bottlenose dolphin serious injuries and mortalities still drive 
the Category I definition for this fishery. The placement of the 
superscript for Category I and Category II fisheries is evaluated on a 
yearly basis and if in the future harbor porpoise serious injuries and 
mortalities in this fishery increase to 50 percent of PBR or greater, 
the superscript will be added to Table 2.
    Comment 42: The GSSA requested that NMFS consider that the proposal 
to update the estimated number of vessels or participants in the 2010 
proposed LOF to 7,596 for the ``Mid-Atlantic gillnet'' fishery is 
counting the number of North Carolina state permits that are issued to 
thousands of people who use gillnets for personal consumption in North 
Carolina bays and sounds.
    Response: NMFS will work with state agencies to obtain more 
specific state permit information. See response to number 39 for 
additional discussion on this topic.
    Comment 43: The CBD reiterated previous years' comments stating 
concerns regarding NMFS' failure to adequately classify certain Gulf of 
Mexico fisheries as Category I or Category II in light of known or 
estimated mortality and serious injury to marine mammals from those 
fisheries. Specifically, they suggested the ``Gulf of Mexico menhaden 
purse seine fishery'' and the ``Gulf of Mexico gillnet fishery'' be 
elevated from Category II to Category I, based on known or likely 
impacts to bottlenose dolphin stocks. The CBD expressed pleasure that 
NMFS proposed to reclassify the Gulf of Mexico blue crab trap/pot 
fishery. Finally, the CBD stated that NMFS should make it a high 
priority to place observer coverage on the ``Gulf of Mexico menhaden 
purse seine'' fishery and convene a take reduction team to address 
bottlenose dolphin takes in the Gulf from this and other fisheries.
    Response: The commenter incorrectly states that NMFS has proposed 
to elevate the blue crab trap/pot fishery. This fishery remains a 
Category III on the final 2010 LOF. NMFS does not believe elevation of 
the Gulf of Mexico blue crab trap/pot, menhaden purse seine, or gillnet 
fisheries is supported by currently available information. There is no 
observer program for these fisheries, and NMFS relies on stranding data 
and fishermen's self-reports to document fishery interactions with 
marine mammals. NMFS acknowledges that, while these sources show only a 
low level of interactions, these sources are unreliable and likely to 
be biased low. In addition, PBR is unknown for these stocks because of 
insufficient information on stock structure and abundance. NMFS will 
continue monitoring fishermen's self-reports and stranding data. 
Observer coverage for these fisheries also remains a priority if 
resources become available.
    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 animal which was 
released alive. In the same time 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. Fishermen's self-reports through the MMAP reveal 11 dolphin 
mortalities in the menhaden purse seine fishery from 2000-2008: two in 
2005, one in 2004, two in 2002, one in 2001 and five in 2000. Nine of 
these mortalities were confirmed to be bottlenose dolphins. However, 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; however, four 
dolphin mortalities occurred in gillnet research gear between 2003-
2007. Stranding data also suggests that marine mammal interactions with 
gillnets do occur, causing mortality and serious injury. NMFS 
acknowledges that stranding data likely underestimates 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. To address 
this, NMFS conducted multiple stranding and human interaction workshops 
in Texas, Louisiana, Mississippi and Alabama in 2008, and provided 
additional human interaction training to the Southeast Stranding 
Network at their Biennial Conference in 2009. In addition, in 2009 NMFS 
awarded nearly $292,000 in Prescott Grants to increase stranding 
network capabilities throughout the Gulf of Mexico. Prescott Grant 2010 
Southeast Regional priorities include research into ways to enhance 
stranding response coverage, capability, Level A data collection, and 
number of necropsies in areas where there is little or no coverage, 
including along the Northern Gulf of Mexico.
    Because population size and PBR are undetermined for the three 
coastal stocks and most of the bay, sound, and estuary stocks of 
bottlenose dolphins, NMFS is unable to assess the population level 
impacts of serious injury and mortality from fisheries to determine 
whether annual mortality is greater than or equal to 50 percent of PBR. 
Thus, the currently available information dues not support convening a 
TRT.
    Comment 44: The MMC reiterated its previous recommendations on the 
2003 through 2009 LOFs that NMFS expedite its investigation of 
bottlenose dolphin stock structure in the Gulf of Mexico, expand its 
efforts to collect reliable information on serious injury and mortality 
rates of marine mammals incidental to Gulf of Mexico fisheries, and 
reevaluate the classification of Gulf of Mexico fisheries as 
information becomes available.
    Response: NMFS agrees that it is important to further investigate 
stock structure and abundance of bottlenose

[[Page 58878]]

dolphins in the Gulf of Mexico. PBR is undetermined for most Gulf of 
Mexico stocks because the population size estimates are more than 8 
years old and resources are unavailable to conduct additional surveys. 
Collecting reliable information on serious injury and mortality of 
marine mammals in the Gulf of Mexico is also essential. However, there 
are currently no resources to fund observer programs in the Gulf of 
Mexico fisheries. Therefore, NMFS is focusing on building volunteer 
stranding network capacity in the Gulf and increasing the level and 
quality of stranding response and has taken concrete steps to improve 
stranding capacity, as discussed in the response to Comment 43 above. 
NMFS expects these efforts will increase the effectiveness of the 
stranding networks and better inform management decisions in the 
future.

Summary of Changes to the LOF for 2010

    The following summarizes changes to the LOF for 2010 in fishery 
classification, fisheries listed in the LOF, the number of participants 
in a particular fishery, and the species and stocks that are 
incidentally killed or injured in a particular fishery. The 
classifications and definitions of U.S. commercial fisheries for 2010 
are identical to those provided in the LOF for 2009 with the changes 
outlined below.

Commercial Fisheries in the Pacific Ocean

Fishery Classification
    The ``American Samoa longline'' fishery is elevated from Category 
III to Category II.
    The ``AK southeast salmon purse seine'' fishery is reclassified 
from Category II to Category III.
    The ``CA pelagic longline'' fishery is reclassified from Category 
II to Category III.
Addition of Fisheries to the LOF
    The ``CA spiny lobster trap'' fishery is added as a separate 
Category III fishery (split from the ``CA spiny lobster, coonstripe 
shrimp, rock crab, tanner crab pot or trap'' fishery, renamed the ``CA 
coonstripe shrimp, rock crab, tanner crab pot or trap'' fishery in this 
final rule).
    The ``HI shortline'' fishery is added as a Category II fishery.
Fishery Name and Organizational Changes and Clarifications
    The Category III ``CA spiny lobster, coonstripe shrimp, rock crab, 
tanner crab pot or trap'' fishery is renamed to the ``CA coonstripe 
shrimp, rock crab, tanner crab pot or trap'' fishery.
List of Species and Stocks That are Incidentally Killed or Injured
    The stock name for false killer whales incidentally killed or 
injured in the ``HI deep-set (tuna-target) longline/set line'' fishery 
is changed from ``HI'' to ``HI pelagic.''
    Pantropical spotted dolphin (stock unknown) is added to the list of 
species and stocks incidentally killed or injured in the Category I 
``HI deep-set (tuna target) longline/set line'' fishery.
    Spinner dolphin (HI) is removed from the list of species and stocks 
incidentally killed or injured in the Category I ``HI deep-set (tuna 
target) longline/set line'' fishery.
    Pantropical spotted dolphin (stock unknown) is removed from the 
list of species and stocks incidentally killed or injured in the 
Category II ``HI shallow-set (swordfish target) longline/set line'' 
fishery.
    False killer whale (stock unknown) is added to the list of species 
and stocks incidentally killed or injured in the ``American Samoa 
longline'' fishery (elevated to Category II in this final rule).
    Humpback whale (Central North Pacific) is removed from the list of 
species and stocks incidentally killed or injured in the Category III 
``AK southeast salmon purse seine'' fishery.
    The superscript ``1'' is removed after humpback whale (Central 
North Pacific) and humpback whale (Western North Pacific) in the list 
of species and stocks incidentally killed or injured in the Category II 
``AK Bering Sea Aleutian Islands Pollock trawl'' fishery to correct a 
typographical error.
    The stock name for Northern fur seals is changed on the list of 
species and stocks incidentally killed or injured in the Category II 
``AK Bering Sea, Aleutian Islands flatfish trawl'' fishery from 
``Eastern North Pacific'' to ``Eastern Pacific.''
    Short-finned pilot whale (CA/OR/WA) is removed from the list of 
species and stocks incidentally killed or injured in the Category II 
``CA squid purse seine'' fishery.
    A superscript ``1'' is added after long-beaked common dolphin (CA) 
in the list of species and stocks incidentally killed or injured in the 
Category II ``CA squid purse seine'' fishery.
    Gray whale (Eastern North Pacific) is added to the list of species 
and stocks incidentally killed or injured in the Category III ``CA 
spiny lobster'' fishery.
    CA sea lion (U.S.) is removed from the list of species and stocks 
incidentally killed or injured in the ``CA pelagic longline'' fishery.

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

Fishery Name and Organizational Changes and Clarifications
    The description of the Category I ``Mid-Atlantic gillnet'' fishery 
is replaced with the following: ``The Category I Mid-Atlantic gillnet 
fishery targets monkfish, spiny dogfish, smooth dogfish, bluefish, 
weakfish, menhaden, spot, croaker, striped bass, large and small 
coastal sharks, Spanish mackerel, king mackerel, American shad, black 
drum, skate spp., yellow perch, white perch, herring, scup, kingfish, 
spotted seatrout, and butterfish. The fishery uses drift and sink 
gillnets, including nets set in a sink, stab, set, strike, or drift 
fashion, with some unanchored drift or sink nets used to target 
specific species. The dominant material is monofilament twine with 
stretched mesh sizes from 2.5 12 in (6.4 30.5 cm), and string lengths 
from 150 8,400 ft. (46 2,560 m). This fishery operates year-round west 
of a line drawn at 72[deg] 30' W. long. south to 36[deg] 33.03' N. lat. 
(VA/NC border) and east to the eastern edge of the EEZ and north of the 
NC/SC border, not including waters where Category II and Category III 
inshore gillnet fisheries operate in bays, estuaries, and rivers. This 
fishery includes any residual large pelagic driftnet effort in the mid-
Atlantic, any shark and dogfish gillnet effort in the mid-Atlantic, and 
those North Carolina small and large mesh beach-anchored gillnets 
formerly placed in the Category II Mid-Atlantic haul/beach seine 
fishery in the mid-Atlantic zone described. This NC component fishing 
effort is prosecuted right off the beach (6 ft [1.8 m]) or in nearshore 
coastal waters to offshore waters (250 ft [76 m]). Gear in this fishery 
is managed by several Federal and interstate FMPs managed by the 
Atlantic States Marine Fisheries Commission (ASMFC), the Atlantic Large 
Whale Take Reduction Plan (ALWTRP), the Harbor Porpoise Take Reduction 
Plan (HPTRP), and the Bottlenose Dolphin Take Reduction Plan (BDTRP). 
Fisheries are primarily managed by total allowable catch limits; 
individual trip limits (quotas); effort caps (limited number of days at 
sea per vessel); time and area closures; and gear restrictions and 
modifications.''
    The description of the Category II ``Mid-Atlantic haul/beach 
seine'' fishery is replaced with the following: ``The Category II Mid-
Atlantic haul/beach seine fishery targets striped bass, mullet, spot, 
weakfish, sea trout, bluefish, kingfish, and harvestfish using seines

[[Page 58879]]

with one end secured (e.g., swipe nets and long seines) and seines 
secured at both ends or those anchored to the beach and hauled up on 
the beach. The beach seine system also uses a bunt and a wash net that 
are attached to the beach and extend into the surf. The fishery occurs 
in waters west of 72[deg] 30' W. long. and north of a line extending 
due east from the NC/SC border. The only haul/beach seine gear 
operating in NC included in this Category II fishery is the ``Atlantic 
Ocean striped bass beach seine fishery'' during the winter, as 
regulated by NC Marine Fisheries Commission rules (NCDMF) and NCDMF 
proclamations. NCDMF defines a beach seine operating under the Atlantic 
Ocean Striped Bass beach seine fishery as a ``swipe net constructed of 
multifilament, multifiber webbing fished from the ocean beach that is 
deployed from a vessel launched from the ocean beach where the fishing 
operation takes place, and one end of the beach seine is attached to 
the shore at all times during the operation.'' All other NC small and 
large mesh beach-anchored gillnets with webbing constructed of all 
monofilament material or a combination of monofilament and 
multifilament material were moved to the Category I Mid-Atlantic 
gillnet fishery in the final 2009 LOF because their construction and 
fishing technique were more similar to a gillnet than a traditional 
beach seine. A description of the gear and fishing practices for the 
haul/beach seine and small and large mesh beach-anchored gillnets 
operating in NC are found in the final 2008 LOF (72 FR 66048; November 
27, 2007) and final 2009 LOF (73 FR 73032, December 1, 2008). In 
addition to the NC component as described above, the 'Mid-Atlantic 
haul/beach seine' fishery also includes haul/beach seining in other 
areas of the mid-Atlantic, including NY through VA. Because the net 
materials and fishing practices of the Atlantic Ocean striped bass 
beach seine fishery in NC are different from haul seining in other 
areas, NMFS may consider splitting this fishery in the future. The Mid-
Atlantic haul/beach seine fishery is managed under several state and 
Interstate FMPs and is an affected fishery under the BDTRP.''
Number of Vessels/Persons
    Based on public comments on the proposed 2010 LOF, NMFS agreed that 
the proposed updates to the estimated number of vessels/persons in 
several Northeast and Mid-Atlantic fisheries by including available 
state permit information may complicate management efforts due to 
uncertainty around the number of active versus passive participants and 
duplicative permit information. Therefore, NMFS is not finalizing those 
proposed updates in this final rule. The number of vessels/persons in 
Atlantic fisheries remains the same as those reported in the 2009 LOF.
    The estimated number of vessels or persons in the Category II ``VA 
pound net'' fishery is updated from 187 to 41.
List of Species and Stocks That are Incidentally Killed or Injured
    Harbor porpoise (Gulf of Maine/Bay of Fundy (GME/BF)) is added to 
the list of marine mammal species and stocks incidentally killed or 
injured in the Category II ``Northeast bottom trawl fishery.
    Fin whale (Western North Atlantic (WNA)) is removed from the list 
of species and stocks incidentally killed or injured in the Category I 
``Northeast/Mid-Atlantic American lobster trap/pot'' fishery.
    The superscript ``1'' after humpback whale (Gulf of Maine) and 
minke whale (Canadian east coast) is removed from the list of species 
and stocks incidentally killed or injured in the Category I 
``Northeast/Mid-Atlantic American lobster trap/pot'' fishery.
    The superscript ``1'' after minke whale (Canadian east coast), 
humpback whale (Gulf of Maine), and North Atlantic right whale (WNA) is 
removed from the list of species and stocks incidentally killed or 
injured in the Category I ``Northeast sink gillnet'' fishery.
    The superscript ``1'' after harbor porpoise (GME/BF) and humpback 
whale (Gulf of Maine) is removed from the list of species and stocks 
incidentally killed or injured in the Category I ``Mid-Atlantic 
gillnet'' fishery.
    Pygmy sperm whale (WNA) is removed from the list of species and 
stocks incidentally killed or injured in the Category I ``Atlantic 
Ocean, Caribbean, Gulf of Mexico large pelagics longline'' fishery.

Commercial Fisheries on the High Seas

Removal of Fisheries
    All unspecified high seas fisheries for all gear types are removed, 
except for trawl gear. Four trawl gear HSFCA permits remain valid for 
an unspecified fishery.
Number of HSFCA Permits
    As stated in the preamble under ``How Does NMFS Authorize U.S. 
Vessels to Participate in High Seas Fisheries?,'' some fishers possess 
valid HSFCA permits for gear types that are no longer authorized for 
use (therefore, the fishers are unable to fish under the permit). For 
this reason, the number of HSFCA permits updated below and displayed in 
Table 3 of this final rule may not accurately represent actual fishing 
effort by U.S. vessels on the high seas.
    The estimated number of HSFCA permits in the High Seas Atlantic 
Highly Migratory Species fishery is updated for the following gear 
types: longline, from 75 to 72; trawl, from 3 to 2; handline/pole-and-
line from 2 to 1; and troll, from 5 to 7.
    The estimated number of HSFCA permits in the High Seas Pacific 
Highly Migratory Species fishery is updated for the following gear 
types: drift gillnet, from 5 to 4; trawl, from 14 to 3; purse seine, 
from 5 to 8; pot, from 8 to 7; longline, from 56 to 62; handline/pole 
and line, from 18 to 22; liners not elseware identified (NEI), from 3 
to 1; multipurpose vessels, from 9 to 7; and troll, from 222 to 249.
    The estimated number of HSFCA permits in the High Seas South 
Pacific Albacore Troll fishery is updated for the following gear types: 
trawl, from 5 to 2; longline, from 12 to 11; handline/pole and line, 
from 7 to 8; troll, from 45 to 53; multipurpose vessels, from 6 to 4.
    The estimated number of HSFCA permits in the High Seas South 
Pacific Tuna fishery is updated for the following gear types: purse 
seine from 23 to 36; longline, from 2 to 3; troll, from 1 to 3.
    The estimated number of HSFCA permits in the High Seas Western 
Pacific Pelagic fishery is updated for the following gear types: trawl, 
from 11 to 4; purse seine, from 4 to 3; pot, from 8 to 7; handline/pole 
and line, from 8 to 9; liners NEI, from 2 to 1; multipurpose vessels, 
from 7 to 5.
List of Species That are Incidentally Killed or Injured
    The stock name for false killer whales incidentally killed or 
injured in the ``High Seas Western Pacific Pelagic (Deep-set 
component)'' fishery is changed from ``HI'' to ``unknown.'' This 
fishery is a component of the ``HI deep-set (tuna target) longline/set 
line'' fishery operating in U.S. waters, which interacts with the ``HI 
pelagic'' stock of false killer whales. While the animals in this stock 
are thought to move across the EEZ boundary into the high seas, the 
stock is currently defined as occurring from 75nmi to the EEZ boundary 
(2008 SAR). NMFS truncated the stock boundary as ending at the 200nmi 
EEZ line because of the mandate in section 117 of the MMPA (16 U.S.C. 
1386) for NMFS to create SARs and calculate PBR

[[Page 58880]]

levels for marine mammal stocks occurring ``in waters under the 
jurisdiction of the United States.'' Therefore, to be consistent with 
the stock definition in the final 2008 SARs, NMFS has changed the stock 
name to ``unknown'' at this time. See the response to comment 17 above 
for additional information.
    Pantropical spotted dolphin (stock unknown) is added to the list of 
species and stocks incidentally killed or injured in the Category II 
``High Seas Western Pacific Pelagic (Deep-set component)'' fishery. 
This fishery is a component of the ``HI deep-set (tuna target) 
longline/set line'' fishery operating in U.S. waters.
    Spinner dolphin (HI) is removed from the list of species and stocks 
incidentally killed or injured in the Category I ``High Seas Western 
Pacific Pelagic (Deep-set component)'' fishery. This fishery is a 
component of the ``HI deep-set (tuna target) longline/set line'' 
fishery component operating in U.S. waters.
    Pantropical spotted dolphin (stock unknown) is removed from the 
list of species and stocks incidentally killed or injured in the 
Category II ``High Seas Western Pacific Pelagic (Shallow-set 
component)'' fishery. This fishery is a component of the ``HI shallow-
set (swordfish target) longline/set line'' fishery operating in U.S. 
waters.

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/persons 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 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, disentanglement network data, and 
fisher reports. This list includes all species and stocks known to be 
injured or killed in a given fishery, but also includes species and 
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 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, operating within 
U.S. waters and on the high seas. These fisheries, while listed on both 
Table 1 or 2, and 3, are not separate fisheries. Instead, they are 
components of a single fishery organized on Table 1, 2, or 3 by 
geographic region. 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 Plans or 
Teams.
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BILLING CODE 3510-22-C

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

[[Page 58901]]

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 44,600 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 
state and Federal fishery permit or landing license, or who are 
authorized through another related state and Federal fishery 
registration program, are currently not required to register separately 
under the MMPA or pay the $25 registration fee. Therefore, there are 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. The Council of Environmental Quality (CEQ) recommends agencies 
review EAs every five years; therefore, NMFS reviewed the 2005 EA in 
2009. NMFS concluded that, because there have been no changes to the 
process used to develop the LOF and implement section 118 of the MMPA 
(including no new alternatives and no additional or new impacts on the 
human environment), there is no need to update the 2005 EA at this 
time. 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.

References

    Barlow, J., and S. Rankin. 2007. False killer whale abundance and 
density: preliminary estimates for PICEAS study area south of Hawaii 
and new estimates for the US EEZ around Hawaii. Administrative Report 
LJ-07-02. Southwest Fisheries Science Center, National Marine Fisheries 
Service, 8604 La Jolla Shores Drive La Jolla, CA 92037.
    Forney, K. A., and D. R. Kobayashi. 2007. Updated Estimates of 
Mortality and Injury of Cetaceans in the Hawaii-based Longline Fishery, 
1994-2005. U.S. Department of Commerce, NOAA Technical Memorandum NMFS, 
NOAA-TM-NMFS-SWFSC-412, 30 p.
    NMFS. 2005. Revisions to Guidelines for Assessing Marine Mammal 
Stocks. 24 pp. Available at: http://www.nmfs.noaa.gov/pr/pdfs/sars/gamms2005.pdf

    Dated: November 9, 2009.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. E9-27431 Filed 11-13-09; 8:45 am]
BILLING CODE 3510-22-S