[Federal Register Volume 76, Number 124 (Tuesday, June 28, 2011)]
[Proposed Rules]
[Pages 37716-37750]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-16209]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 229

[Docket No. 110207104-1112-02]
RIN 0648-BA76


List of Fisheries for 2012

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

ACTION: Proposed rule.

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SUMMARY: The National Marine Fisheries Service (NMFS) publishes its 
proposed List of Fisheries (LOF) for 2012, as required by the Marine 
Mammal Protection Act (MMPA). The proposed LOF for 2012 reflects new 
information on interactions between commercial fisheries and marine 
mammals. NMFS must classify 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 classification of a fishery in the LOF determines whether 
participants in that fishery are subject to certain provisions of the 
MMPA, such as registration, observer coverage, and take reduction plan 
(TRP) requirements.

DATES: Comments must be received by July 28, 2011.

ADDRESSES: Send comments by any one of the following methods.
    (1) Electronic Submissions: Submit all electronic comments through 
the Federal eRulemaking portal: http://www.regulations.gov (follow 
instructions for submitting comments).
    (2) Mail: Chief, Marine Mammal and Sea Turtle Conservation 
Division, Attn: List of Fisheries, Office of Protected Resources, NMFS, 
1315 East-West Highway, Silver Spring, MD 20910.
    Comments regarding the burden-hour estimates, or any other aspect 
of the collection of information requirements contained in this 
proposed rule, should be submitted in writing to Chief, Marine Mammal 
and Sea Turtle Conservation Division, Office of Protected Resources, 
NMFS, 1315 East-West Highway, Silver Spring, MD 20910, or to Nathan 
Frey, OMB, by fax to 202-395-7285 or by e-mail to [email protected].
    Instructions: All comments received are a part of the public record 
and will generally be posted to http://www.regulations.gov without 
change. All Personal Identifying Information (e.g., name, address, 
etc.) voluntarily submitted by the commenter may be publicly 
accessible. Do not submit Confidential Business Information or 
otherwise sensitive or protected information. NMFS will accept 
anonymous comments (enter ``N/A'' in the required fields if you wish to 
remain anonymous). Attachments to electronic comments will be accepted 
in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only.
    Information regarding the LOF and the Marine Mammal Authorization 
Program, including registration procedures and forms, current and past 
LOFs, information on each Category I and II fishery, 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: Allison Rosner;
    NMFS, Southeast Region, 263 13th Avenue South, St. Petersburg, FL 
33701, Attn: Laura Engleby;
    NMFS, Southwest Region, 501 W. Ocean Blvd., Suite 4200, Long Beach, 
CA 90802-4213, Attn: Charles Villafana;
    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 
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.

FOR FURTHER INFORMATION CONTACT: Melissa Andersen, Office of Protected 
Resources, 301-713-2322; David Gouveia, Northeast Region, 978-281-9280; 
Laura Engleby, Southeast Region, 727-551-5791; 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: 

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

[[Page 37717]]

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 (i.e., frequent incidental mortality and serious injuries of 
marine mammals).
    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 (i.e., occasional incidental mortality and serious 
injuries of marine mammals).
    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 (i.e., a remote likelihood or no known incidental mortality and 
serious injuries of marine mammals).
    While Tier 1 considers the cumulative fishery mortality and serious 
injury for a particular stock, Tier 2 considers fishery-specific 
mortality and serious injury for a particular stock. Additional details 
regarding how the categories were determined are provided in the 
preamble to the final rule implementing section 118 of the MMPA (60 FR 
45086, August 30, 1995).
    Because fisheries are classified 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 
classified 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

    There are several fisheries on the LOF classified as Category II 
that have no recent documented injuries or mortalities of marine 
mammals, or fisheries that did not result in a serious injury or 
mortality rate greater than 1 percent of a stock's PBR level based on 
known interactions. NMFS has classified these fisheries by analogy to 
other Category I or II fisheries that use similar fishing techniques or 
gear that are known to cause mortality or serious injury of marine 
mammals, or according to factors discussed in the final LOF for 1996 
(60 FR 67063, December 28, 1995) and listed in the regulatory 
definition of a Category II fishery, ``In the absence of reliable 
information indicating the frequency of incidental mortality and 
serious injury of marine mammals by a commercial fishery, NMFS will 
determine whether the incidental serious injury or mortality is 
``frequent,'' ``occasional,'' or ``remote'' by evaluating other factors 
such as fishing techniques, gear used, methods used to deter marine 
mammals, target species, seasons and areas fished, qualitative data 
from logbooks or fisher reports, stranding data, and the species and 
distribution of marine mammals in the area, or at the discretion of the 
Assistant Administrator 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 
(50 CFR 229.2).

How does NMFS determine which species or stocks are included as 
incidentally killed or injured in a fishery?

    The LOF includes a list of marine mammal species or stocks 
incidentally killed or injured in each commercial fishery. To determine 
which species or 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.
    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 TRP or a fishery management plan 
(FMP)). NMFS will provide case-specific justification in the LOF for 
changes to the list of species or stocks incidentally killed or 
injured.

How does NMFS determine the levels of observer coverage in a fishery on 
the LOF?

    Data obtained from the observer program and observer coverage 
levels 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 on the LOF, including observer coverage in 
those fisheries. The SARs generally do not provide detailed information 
on observer coverage in Category III fisheries because, under the MMPA, 
Category III fisheries are not required to accommodate observers aboard 
vessels due to the remote likelihood of mortality and serious injury of 
marine mammals. Fishery 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 Resources' Web site at: 
http://www.nmfs.noaa.gov/pr/sars/. Information on observer coverage 
levels in Category I and II fisheries can also be found in the Category 
I and II fishery fact sheets on the NMFS Office of Protected Resources 
Web site: http://www.nmfs.noaa.gov/pr/interactions/lof/. Additional 
information on observer programs in commercial fisheries can be found 
on the NMFS National Observer Program's Web site: http://www.st.nmfs.gov/st4/nop/.

How do I find out if a specific fishery is in category I, II, or III?

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

[[Page 37718]]

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 Seas 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 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. The number of HSFCA permits listed in Table 3 for the 
high seas components of these fisheries operating in U.S. waters does 
not necessarily represent additional effort that is not accounted for 
in Tables 1 and 2. Many vessels/participants holding HSFCA permits also 
fish within U.S. waters and are included in the number of vessels and 
participants operating within those fisheries in Tables 1 and 2.
    HSFCA permits are valid for five years, during which time FMPs can 
change. Therefore, some vessels/participants 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).

Where can I find specific information on fisheries listed on the LOF?

    Starting with the 2010 LOF, NMFS developed summary documents, or 
fishery fact sheets, for each Category I and II fishery on the LOF. 
These fishery fact sheets provide the full history of each Category I 
and II fishery, including: when the fishery was added to the LOF, the 
basis for the fishery's initial classification, classification changes 
to the fishery, changes to the list of species or stocks incidentally 
killed or injured in the fishery, fishery gear and methods used, 
observer coverage levels, fishery management and regulation, and 
applicable TRPs or TRTs, if any. These fishery fact sheets are updated 
after each final LOF and can be found under ``How Do I Find Out if a 
Specific Fishery is in Category I, II, or III?'' on the NMFS Office of 
Protected Resources' Web site: http://www.nmfs.noaa.gov/pr/interactions/lof/, linked to the ``List of Fisheries by Year'' table. 
NMFS plans to develop similar fishery fact sheets for each Category III 
fishery on the LOF. However, due to the large number of Category III 
fisheries on the LOF and the lack of accessible and detailed 
information on many of these fisheries, the development of these 
fishery fact sheets will take significant time to complete. NMFS 
anticipates posting the Category III fishery fact sheets along with the 
final 2013 LOF, although this timeline may be revised as this exercise 
progresses.

Am I required to register under the MMPA?

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

How do I register and receive my authorization certificate and injury/
mortality reporting forms?

    NMFS has integrated the MMPA registration process, implemented 
through 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 and/or 
injury/mortality reporting forms via U.S. mail or with their state or 
Federal license at the time of renewal. In the Northeast region, NMFS 
will issue vessel or gear owners an authorization certificate via U.S. 
mail automatically at the beginning of each calendar year; but vessel 
or gear owners must request or print injury/mortality reporting forms 
by contacting the NMFS Northeast Regional Office at 978-281-9328 or by 
visiting the Northeast Regional Office Web site (http://www.nero.noaa.gov/). In the Southeast region, NMFS will issue vessel or 
gear owners notification of registry and vessel or gear owners may 
receive their authorization certificate and/or injury/mortality 
reporting form by contacting the Southeast Regional Office at 727-209-
5952 or by visiting the Southeast Regional Office Web site (http://sero.nmfs.noaa.gov/pr/mm/mmap.htm) and following the instructions for 
printing the necessary documents.
    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 renew my registration under the MMPA?

    In Pacific Islands, Southwest, Alaska or Northeast regional 
fisheries, registrations of vessel or gear owners are automatically 
renewed and participants should receive an authorization certificate by 
January 1 of each new year. In Northwest regional fisheries, vessel or 
gear owners 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).
    In Southeast regional fisheries, vessel or gear owners may receive 
an authorization certificate by contacting the Southeast Regional 
Office or visiting the Southeast Regional Office Web site (http://
sero.nmfs.noaa.gov/pr/mm/

[[Page 37719]]

mmap.htm) and following the instructions for printing the necessary 
documents.

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 fishery listed on the LOF 
must report to NMFS all incidental injuries and mortalities of marine 
mammals that occur during commercial fishing operations, regardless of 
the category in which the fishery is placed (I, II or III) within 48 
hours of the end of the fishing trip. ``Injury'' is defined in 50 CFR 
229.2 as a wound or other physical harm. In addition, any animal that 
ingests fishing gear or any animal that is released with fishing gear 
entangling, trailing, or perforating any part of the body is considered 
injured, regardless of the presence of any wound or other evidence of 
injury, and must be reported. Injury/mortality reporting forms and 
instructions for submitting forms to NMFS can be downloaded from: 
http://www.nmfs.noaa.gov/pr/pdfs/interactions/mmap_reporting_form.pdf 
or by contacting the appropriate Regional office (see ADDRESSES). 
Reporting requirements and procedures can be found in 50 CFR 229.6.

Am I required to take an observer aboard my vessel?

    Individuals participating in a Category I or II fishery are 
required to accommodate an observer aboard their vessel(s) upon request 
from NMFS. 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, regardless of vessel size, 
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)). Observer requirements can be found in 50 CFR 229.7.

Am I required to comply with any marine mammal take reduction plan 
regulations?

    Table 4 in this proposed rule provides a list of fisheries affected 
by TRPs and TRTs. TRP regulations can be found at 50 CFR 229.30 through 
229.36. A description of each TRT and copies of each TRP can be found 
at: http://www.nmfs.noaa.gov/pr/interactions/trt/.

Sources of Information Reviewed for the Proposed 2012 LOF

    NMFS reviewed the marine mammal incidental serious injury and 
mortality information presented in the SARs for all 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 fishery operations 
and the PBR levels of marine mammal stocks. The information contained 
in the SARs is reviewed by regional Scientific Review Groups (SRGs) 
representing Alaska, the Pacific (including Hawaii), and the U.S. 
Atlantic, Gulf of Mexico, and Caribbean. The SRGs were created by the 
MMPA to review the science that informs the SARs, and to advise NMFS on 
marine mammal population status, trends, and stock structure, 
uncertainties in the science, research needs, and other issues.
    NMFS also reviewed other sources of new information, including 
marine mammal stranding data, observer program data, fisher self-
reports, reports to the SRGs, conference papers, FMPs, and ESA 
documents.
    The proposed LOF for 2012 was based, among other things, on 
information provided in the NEPA and ESA documents analyzing authorized 
high seas fisheries; stranding data; fishermen self-reports through the 
MMAP; 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 26340, May 4, 2006), 2006 (72 FR 12774, March 19, 2007), 2007 
(73 FR 21111, April 18, 2008), 2008 (74 FR 19530, April 29, 2009), 2009 
(75 FR 12498, March 16, 2010), and 2010 (76 FR 34054, June 10, 2011). 
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 on the 2012 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, through state agencies, or through the fishery summary 
documents available on the NMFS Office of Protected Resources Web site 
(http://www.nmfs.noaa.gov/pr/interactions/lof/ lof/). Additional details 
for Category I and II fisheries operating on the high seas are included 
in various FMPs, NEPA, or ESA documents.

Hawaii Charter Vessel Fishery

    The ``HI charter vessel'' fishery is primarily a troll fishery 
targeting large pelagic species including billfish (Xiphias galdius, 
Makaira and Tetrapterus spp.), tunas (Thunnas spp.), mahi mahi 
(Coryphaena spp.) and ono (Acanthocybium solandri). Other species are 
also landed, including kawakawa and rainbow runner. Trolling gear 
usually consists of short, stout fiberglass rods and lever-drag hand-
cranked reels. Up to six lines may be trolled when outrigger poles are 
used to keep the lines from tangling, using both artificial (lures) and 
natural baits. Some charter vessels also take patrons on deep sea 
bottomfishing trips. Charter vessels fish year-round throughout the 
Main Hawaiian Islands. The Island of Hawaii accounts for the largest 
share of the entire charter fleet in the state, primarily due to its 
reputation as the best location to catch blue marlin. According to a 
survey of charter vessel operators, the vessels typically operate about 
7.5 miles from shore, with an average maximum distance from shore of 
22.5 miles (Hamilton, 1998). Troll vessels often fish at anchored fish 
aggregation devices (FADs), drifting logs or flotsam, and areas of 
sharp changes in bottom topography that may aggregate fish. 
Additionally, charter vessels are also known to troll through groups of 
dolphins to target tuna associated with the dolphins (Baird unpublished 
data cited in Courbis et al., 2010).
    Hawaii state law allows sales of fish caught during sportfishing 
charter boat trips provided that the seller (usually, but not always, 
the captain) possesses a valid Commercial Marine License (CML) from the 
Hawaii Department of Land and Natural Resources (DLNR), Division of 
Aquatic Resources (DAR). Every licensee must provide DLNR/DAR with a 
monthly trip report. Based on survey results of charter boat operators 
(Hamilton, 1998), the majority of charter fishing operators in Hawaii 
sell at least some portion of their catch. There has not been observer 
coverage in this fishery.

[[Page 37720]]

Hawaii Trolling, Rod and Reel Fishery

    The ``HI trolling, rod and reel'' fishery used troll gear to target 
yellowfin tuna, blue marlin, mahi mahi, ono, and skipjack tuna, and 
also lands bycatch of sailfish, spearfish, kawakawa, albacore, rainbow 
runner, and sharks. Bigeye tuna make up a very minor proportion of 
total reported troll catch. Compared to the ``HI charter vessel'' 
described above fishery, which also uses troll gear and methods, the 
``HI trolling, rod and reel'' fishery targets and catches more 
yellowfin tuna (about 80 percent by weight), compared to charter 
vessels' catch of marlin (40-50 percent by weight). Troll fishing is 
conducted by towing lures or baited hooks from a moving vessel, using 
big game-type rods and reels as well as hydraulic haulers, outriggers 
and other gear. Up to six lines rigged with artificial lures or live 
bait may be trolled when outrigger poles are used to keep gear from 
tangling. When using live bait, trollers move at slower speeds to 
permit the bait to swim ``naturally.'' Small boat trolling is Hawaii's 
largest commercial fishery in terms of participation, although it 
catches a relatively modest volume of fish amounting to about 3,000 mt 
annually. The fishery operates year-round in the MHI, with vessels 
tending to fish within 25-50 miles of land and trips lasting only one 
day. Troll vessels fish in areas where water masses converge and where 
the underwater topography changes dramatically, such as near submarine 
cliffs or oceanic seamounts. Troll vessels also fish near anchored 
FADs, or search for drifting logs or flotsam that aggregate tuna, mahi 
mahi, and ono. Additionally, troll vessels are also known to troll 
through groups of dolphins to target tuna associated with the dolphins 
(Baird unpublished data cited in Courbis et al., 2010).
    The small-vessel troll fishery includes poorly differentiated 
commercial, recreational, and subsistence components. Many fishermen 
who are fishing primarily for recreation may sell their fish to cover 
their expenses. All fishery participants who fish, or land at least one 
fish with an intent to sell, within 3 miles of the shoreline (i.e., 
within State waters) are required by the State of Hawaii to have a CML, 
and vessel operators are required to file state catch reports reporting 
the fishing effort, catch, discards, and landings during each fishing 
trip. A longline prohibited area of the Main Hawaiian Islands was 
established by the WPRFMC in 1992 in part to reduce gear conflicts 
between the Hawaii-based longline fleet and the troll fleet. There has 
not been observer coverage in this fishery.

Southeastern U.S. Atlantic, Gulf of Mexico Stone Crab Trap/Pot Fishery

    The ``Southeastern U.S. Atlantic, Gulf of Mexico stone crab trap/
pot'' fishery operates primarily nearshore in the State of Florida. 
Stone crab fishing outside of this area is likely very minimal. In 
2010, the State of Florida issued 1,282 commercial stone crab licenses 
and 1,190,285 stone crab trap tags. Florida state regulations limit 
recreational stone crab trap/pot numbers to five per person. The season 
for commercial and recreational stone crab harvest is from October 15 
to May 15. Traps are the exclusive gear type used for the commercial 
and recreational stone crab fishery. Commercial traps must be designed 
to conform to the specifications established under U.S. 50 CFR 654.22, 
as well as State of Florida statutes. Baited traps are frequently set 
in waters of 65 ft (19.8 m) depth or less in a double line formation, 
generally 100-300 ft (30.5-91.4 m) apart, running parallel to a bottom 
contour. The margins of seagrass flats and bottoms with low rocky 
relief are also favored areas for trap placement. Buoys are attached to 
the trap/pot via float line. In Florida, commercial trap/pot buoys are 
required to be marked with the letter ``X,'' but there are no specific 
marking requirements for recreational crab traps.

Summary of Changes to the LOF for 2012

    The following summarizes changes to the LOF for 2012 in fishery 
classification, fisheries listed in the LOF, the estimated number of 
vessels/participants in a particular fishery, and the species or stocks 
that are incidentally killed or injured in a particular fishery. The 
classifications and definitions of U.S. commercial fisheries for 2012 
are identical to those provided in the LOF for 2011 with the proposed 
changes discussed below. State and regional abbreviations used in the 
following paragraphs include: AK (Alaska), CA (California), DE 
(Delaware), FL (Florida), GMX (Gulf of Mexico), HI (Hawaii), MA 
(Massachusetts), ME (Maine), NC (North Carolina), NY (New York), OR 
(Oregon), RI (Rhode Island), SC (South Carolina), VA (Virginia), WA 
(Washington), and WNA (Western North Atlantic).

Commercial Fisheries in the Pacific Ocean

Fishery Classification

CA/OR Thresher Shark/Swordfish Drift Gillnet Fishery

    NMFS proposes to elevate the ``CA thresher shark/swordfish drift 
gillnet'' fishery from Category III to Category II. NMFS observed this 
fishery from 2004 through 2009 at coverage levels ranging from 13.3 
percent to 20.9 percent. NMFS reclassified this fishery from Category I 
to Category III on the 2011 LOF (75 FR 68468; November 8, 2010), 
because NMFS Southwest Observer Program reports indicated there were no 
serious injuries or mortalities of any marine mammal stock for which 
the average total fishery mortality and serious injury exceeded 10 
percent of the stock's PBR (2010 SARs). However, NMFS received a 
mortality/injury self-report through the MMAP from a fisherman 
indicating a humpback whale was entangled in 2009 during operations of 
this fishery. Based on the information in this self-report and follow-
up discussion with the reporting fisherman, NMFS Science Center staff 
determined this whale to be seriously injured because the animal was 
cut loose and released alive with entangling and trailing gear. The 
location of the entanglement off of Southern CA indicates the animal 
was most likely part of the CA/OR/WA stock of humpback whales. The 
total annual mortality and serious injury of humpback whales (CA/OR/WA 
stock) in all fisheries exceeds 10 percent of the stock's PBR (Tier 1 
analysis). This single serious injury results in an average mortality 
and serious injury rate of 0.2 humpback whales per year (when averaged 
over the last 5 years of data) in this fishery (Tier 2 analysis), or 
1.8 percent PBR of 11.3 (2010 SAR), warranting a Category II 
classification. This fishery is currently observed under the authority 
of the Highly Migratory Species FMP (50 CFR 660.719) and must comply 
with Pacific Offshore Cetacean TRP regulations (50 CFR 229.31).

HI Charter Vessel and HI Trolling, Rod and Reel Fisheries

    NMFS proposes to elevate the ``HI charter vessel'' and ``HI 
trolling, rod and reel'' fisheries from Category III to Category II 
based their fishing techniques and anecdotal reports of hookings of 
Pantropical spotted dolphins (HI stock) (Rizutto 2007, Courbis et al., 
2009). There is no observer coverage in either of these fisheries, and 
no quantitative data are available to conduct a tier analysis.

[[Page 37721]]

However, as described in the preamble of this proposed rule, in the 
absence of reliable information on the frequency of incidental serious 
injuries and mortalities, MMPA regulations specify that NMFS should 
determine whether the incidental serious injury or mortality is 
``occasional'' (i.e., Category II) by evaluating other factors such as 
fishing techniques, gear used, methods used to deter marine mammals, 
target species, seasons and areas fished, qualitative data from 
logbooks or fisher reports, stranding data, and the species and 
distribution of marine mammals in the area, or at the discretion of the 
NMFS Assistant Administrator (50 CFR 229.2).
    Charter and commercial trolling vessels in HI frequently troll 
multiple lines through groups of spotted dolphins to target schools of 
tunas that aggregate below the dolphins. Eighteen of 47 (38%) 
opportunistic sightings of Pantropical spotted dolphins near the Main 
Hawaiian Islands between November 2006 and July 2008 included one or 
more (with a maximum of six) troll fishing vessels actively ``fishing 
on'' groups of the dolphins (Baird unpublished data cited in Courbis et 
al., 2010). Fishermen have reported that spotted dolphins occasionally 
take lures or bait and are hooked in the mouth, or are sometimes hooked 
in the body (Rizzuto, 2007; Baird unpublished data cited in Courbis et 
al., 2010). In one anecdotal report, a fisherman released a hooked 
dolphin by cutting the fishing line as short as possible to the animal, 
but the hook remained in the animal's mouth (Rizzuto, 2007). While NMFS 
scientists have not made a determination on the severity of injuries in 
these anecdotal reports, a hook in the mouth of a small cetacean is 
considered a serious injury and a hook in the body could be considered 
an injury according the most current and best available information 
(Andersen et al., 2008).
    As stated above, quantitative information on the level of serious 
injury or mortality is not available for these fisheries. However, NMFS 
can project the likely level of serious injury and mortality in these 
fisheries based on the available information presented in the previous 
paragraph. The PBR for Pantropical spotted dolphins (HI stock) is 61; 
however, NMFS may split this stock into several smaller, island-
associated stocks in the future (2010 SAR), which would result in lower 
PBRs for each new stock. Given the fishing techniques, evidence of 
takes from eyewitness reports, and the level of effort in these two 
fisheries (2,305 vessels combined), NMFS projects that each fishery 
will have at least one incidental serious injury or mortality of a 
Pantropical spotted dolphin (HI stock) per year. This level of take 
represents a minimum of 1.6 percent of PBR of 61 in each fishery; 
therefore, Category II classification is warranted for both the ``HI 
charter vessel'' and ``HI trolling, rod and reel'' fisheries.

Number of Vessels/Persons

    NMFS proposes to update the estimated number of persons/vessels in 
the following HI fisheries to reflect the number of licensees reporting 
landings in 2010.
    Category I: ``HI deep-set (tuna target) longline/set line'' from 
127 to 124.
    Category II: ``American Samoa longline'' from 60 to 26; ``HI 
shortline'' from 21 to 13; and ``HI trolling, rod and reel'' from 2,210 
to 2,191.
    Category III: ``HI inshore gillnet'' from 39 to 44; ``HI crab net'' 
from 8 to 5; ``HI Kona crab loop net'' from 41 to 46; ``HI opelu/akule 
net'' from 20 to 16; ``HI hukilau net'' from 36 to 27; ``HI lobster 
tangle net'' from 2 to 1; ``HI inshore purse seine'' from 8 to 5; ``HI 
throw net, cast net'' from 28 to 22; ``HI crab trap'' from 9 to 5; ``HI 
fish trap'' from 11 to 13; ``HI lobster trap'' from 3 to 1; ``HI shrimp 
trap'' from 1 to 2; ``HI kaka line'' 28 to 24; ``HI vertical longline'' 
from 18 to 10; ``HI aku boat, pole, and line'' from 6 to 2; ``HI 
inshore handline'' from 460 to 416; ``HI tuna handline'' from 531 to 
445; ``HI handpick'' from 53 to 61; ``HI lobster diving'' from 36 to 
39; ``HI spearfishing'' from 163 to 144; ``HI fish pond'' from N/A to 
16; and ``HI Main Hawaiian Islands deep-sea bottomfish handline from 
580 to 569.

List of Species or Stocks Incidentally Killed or Injured

    NMFS proposes to add humpback whale (CA/OR/WA stock) to the list of 
species or stocks incidentally killed or injured in the ``CA thresher 
shark/swordfish drift gillnet'' fishery (proposed to be elevated to 
Category II in this proposed rule). NMFS further proposes to include 
the notation `` \1\ '' following humpback whale (CA/OR/WA stock) in 
Table 1, indicating that this stock is driving the classification of 
the fishery. NMFS received a mortality/injury self-report through the 
MMAP from a fisherman indicating a humpback whale was entangled while 
operating in this fishery in 2009. Based on the information in this 
self-report and follow-up discussion with the reporting fisherman, NMFS 
Science Center staff determined this whale to be seriously injured 
because the animal was cut loose and released alive with entangling and 
trailing gear. The single serious injury results in an average 
mortality and serious injury rate of 0.2 humpback whales per year (when 
averaged over the latest 5 year data period), or 1.8 percent of the 
stock's PBR of 11.3 (2010 SAR). Observer coverage in this fishery from 
2004 through 2009 ranged from 13.3 percent to 20.9 percent.
    NMFS proposes to add Pantropical spotted dolphin (HI stock) to the 
list of species or stocks incidentally killed or injured in the ``HI 
charter vessel'' and ``HI trolling, rod and reel'' fisheries (both 
proposed to be elevated to Category II in this proposed rule). NMFS 
further proposes to include a superscript `` \1\ '' following the 
Pantropical spotted dolphin (HI stock) in Table 1 for each fishery, 
indicating that this stock is driving the classification of these 
fisheries. As described above under ``Fishery Classification,'' charter 
and commercial trolling vessels in HI frequently troll multiple lines 
through groups of Pantropical spotted dolphins to target schools of 
tunas that aggregate below the dolphins. Fishermen have reported that 
Pantropical spotted dolphins occasionally take lures or bait, and are 
sometimes released with hooks in the mouth or the body. While NMFS 
scientists have not made a determination on the severity of injuries in 
these anecdotal reports, a hook in the mouth of a small cetacean is 
considered a serious injury and a hook in the body could be considered 
an injury according to the current and best available information 
(Andersen et al., 2008). Further, the PBR for Pantropical spotted 
dolphins (HI stock) is 61 (2010 SAR). Given the fishing techniques, 
evidence of takes from eyewitness reports, and the level of effort in 
these two fisheries, NMFS projects that each fishery will have at least 
one incidental serious injury or mortality of a Pantropical spotted 
dolphin per year, or 1.6 percent of PBR. There has not been observer 
coverage in either of these fisheries.

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

Fishery Classification

Southeastern U.S. Atlantic, Gulf of Mexico Stone Crab Trap/Pot Fishery

    NMFS proposes to elevate the ``Southeastern U.S. Atlantic, Gulf of 
Mexico stone crab trap/pot'' fishery from Category III to Category II 
based on analogy to the Category II ``Atlantic blue crab trap/pot'' 
fishery, and serious injury and mortality to bottlenose dolphins 
(multiple stocks) reported in stranding data. As stated in the preamble 
of this proposed rule, in the absence of reliable or quantitative 
information, NMFS must determine if a

[[Page 37722]]

fishery causes ``occasional'' serious injury or mortality to marine 
mammals (i.e., Category II) by considering other factors (e.g., fishing 
techniques, gear used) (50 CFR 229.2). A Category II classification for 
the ``Southeastern U.S. Atlantic, Gulf of Mexico stone crab trap/pot'' 
fishery is warranted by analogy to the Category II ``Atlantic blue crab 
trap/pot'' fishery because the fisheries use similar fishing 
techniques, habitat and gear; therefore, posing a similar level of risk 
of interactions resulting in serious injury or mortality to bottlenose 
dolphins. Additionally, from 2002-2010, 3 bottlenose dolphin strandings 
(multiple stocks) resulting in serious injury or mortality were 
confirmed to result from interactions with stone crab trap/pot gear. 
Further, 7 bottlenose dolphin (multiple stocks) strandings resulting in 
serious injury or mortality were confirmed to result from interactions 
with a southeast trap/pot fishery, plausibly the stone crab fishery 
because of its spatial and temporal overlap with the strandings. The 
ten strandings from 2002-2010 strongly suggest the stone crab fishery 
has ``occasional incidental mortality and serious injury of marine 
mammals'' (50 CFR 229.2), further warranting a Category II 
classification. There has not been observer coverage in this fishery.
    Marine mammal stranding data from 2002-2010 suggest the stone crab 
trap/pot fishery interacts with the following strategic marine mammal 
stocks, resulting in serious injury or mortality: (1) Bottlenose 
dolphin, Central FL coastal; (2) bottlenose dolphin, Jacksonville 
estuarine system; (3) bottlenose dolphin, Indian River Lagoon estuarine 
system; (4) bottlenose dolphin, Biscayne Bay ; (5) bottlenose dolphin, 
Lemon Bay estuarine system; and (6) bottlenose dolphin, Pine Sound 
[sic], Charlotte Harbor, Gasparilla Sound estuarine system. This 
fishery also interacts with the non-strategic bottlenose dolphin, 
Eastern GMX coastal stock. The PBR level is known for two of the seven 
bottlenose dolphin stocks interacting with this fishery: Central FL 
coastal stock (51) and Eastern GMX coastal stock (66) (2010 SARs). PBR 
is unknown or undetermined for the remaining five stocks. Therefore, a 
LOF classification based on serious injury and mortality as a 
percentage of PBR cannot be directly calculated for most of these 
stocks.

Addition of Fisheries

    NMFS proposes to add the ``RI floating trap'' fishery as Category 
III. The ``RI floating trap'' fishery is described as a maze of 
vertical nets anchored to the bottom and stretched to the water's 
surface by attached buoys. The nets are anchored to the bottom and may 
be secured to the shore. These nets are set similar to weir/pound nets. 
At least four reflective buoys (high-flyers) mark the traps. One buoy 
is located at the shoreward end of the leader, one at the seaward end 
of the leader adjacent to the head of the trap, and two buoys at the 
seaward side of the head of the trap. Nets are set seasonally between 
May and October and primarily target scup, striped bass, and squid. 
Floating fish traps are executed only in RI state waters. There is 
currently no observer coverage for this fishery. No marine mammal 
interactions have been reported for this gear type and strandings data 
do not provide evidence for interactions. Given this fishery's close 
proximity to shore and the absence of evidence for marine mammal injury 
or mortality resulting from this gear, a Category III classification is 
warranted. There are currently nine companies that hold state permits 
for participating in this fishery. NMFS is soliciting public comment to 
obtain more information on this fishery and whether or not similar 
floating trap fisheries exist elsewhere.

Fishery Name and Organizational Changes and Clarifications

    NMFS proposes to clarify the spatial boundary of the Category II 
``Northeast bottom trawl'' fishery. In the 2011 LOF, NMFS modified the 
trawl fishery boundary definitions to more accurately depict the 
boundaries used for calculating marine mammal bycatch estimates. 
Currently the Northeast bottom trawl fishery boundary is defined as: 
``from the Maine-Canada border through waters east of 70[deg] W. 
long.'' NMFS proposes to clarify this boundary to read as follows: 
``The Northeast bottom trawl fishery includes all U.S. waters south of 
Cape Cod, MA that are east of 70[deg] W and extending south to the 
intersection of the Exclusive Economic Zone (EEZ) and 70[deg] W 
(approximately 37[deg] 54' N), as well as all U.S. waters north of Cape 
Cod to the Maine-Canada border.''
    NMFS proposes to clarify the spatial boundary of the Category II 
``Mid-Atlantic bottom trawl'' fishery. In the 2011 LOF, NMFS modified 
the trawl fishery boundary definitions to more accurately depict the 
boundaries used for calculating marine mammal bycatch estimates. 
Currently the Mid-Atlantic bottom trawl fishery boundary is defined as: 
``Cape Cod, MA, to Cape Hatteras, NC, in waters west of 70[deg] W. 
long. and north of a line extending due east from the North Carolina/
South Carolina border.'' NMFS proposes to clarify this boundary to read 
as follows: ``all waters due east from the NC/SC border to the EEZ and 
north to Cape Cod, MA in waters west of 70[deg] W. long.''
    NMFS proposes to update the spatial boundary of the Category II 
``Northeast mid-water trawl'' fishery. Currently, this fishery's 
spatial boundary is defined as ``occurs primarily in ME State waters, 
Jeffrey's Ledge, southern New England, and Georges Bank during the 
winter months when the target species continues its southerly migration 
from the Gulf of ME/Georges Bank, into mid-Atlantic waters'' (72 FR 
35393, June 28, 2007). As a result of reviewing trip locations from 
vessel trip report data, the NMFS Northeast Fisheries Science Center 
(NEFSC) separates the Northeast and Mid-Atlantic trawl fisheries at 
70[deg] W. long. in marine mammal bycatch analyses. Therefore, to 
maintain consistency with how the NEFSC defines these fisheries, NMFS 
proposes to further clarify the spatial boundary for this fishery. NMFS 
proposes to add the following to the spatial distribution: ``The 
Northeast mid-water trawl fishery includes all U.S. waters south of 
Cape Cod, MA that are east of 70[deg] W and extending south to the 
intersection of the EEZ and 70[deg] W (approximately 37[deg] 54'N), as 
well as all U.S. waters north of Cape Cod to the Maine-Canada border.''
    NMFS proposes to update the spatial boundary for the Category II 
``Mid-Atlantic mid-water trawl'' fishery. Currently, this fishery's 
spatial boundary is defined as: ``The fishery for Atlantic mackerel 
occurs primarily from southern New England through the mid-Atlantic 
from January to March and in the Gulf of Maine during the summer and 
fall (May to December). This fishery is managed under the federal 
Atlantic Mackerel, Squid, and Butterfish FMP using an annual quota 
system.'' As noted in the paragraph above, the NEFSC separates the 
Northeast and Mid-Atlantic trawl fisheries at 70[deg] W. long. 
Therefore, to further clarify the spatial distribution of this fishery, 
NMFS proposes to add the following to the spatial distribution: ``The 
Mid-Atlantic mid-water trawl fishery includes all waters due east from 
the NC/SC border to the EEZ and north to Cape Cod, MA in waters west of 
70[deg] W. long.''

Number of Vessels/Persons

    NMFS proposes to update the estimated number of vessels/persons in 
the ``Southeastern U.S. Atlantic, Gulf of Mexico stone crab trap/pot'' 
fishery (proposed to be elevated to Category II in this proposed rule) 
from 4,453 to 1,282.

[[Page 37723]]

    NMFS proposes to update the estimated number of vessels/persons in 
the Category III ``FL spiny lobster trap/pot'' fishery from 2,145 to 
1,268.
    NMFS proposes to update the estimated number of vessels/persons for 
several Mid-Atlantic and New England fisheries in order to reflect the 
potential state and Federal permit effort. NMFS acknowledges that these 
estimations are inflations of actual effort; however, they represent 
the potential effort for each fishery, given the multiple gear types 
state permits may allow for. These changes do not necessarily represent 
a change in industry effort. Federal permit information was collected 
through Federal Vessel Trip Report and by querying Federal permit 
databases. State permit information was collected through the MMAP 
registration process.
    Category I: ``Mid-Atlantic gillnet'' from 5,495 to 6,402; 
``Northeast sink gillnet'' from 7,712 to 3,828; and ``Northeast/Mid-
Atlantic American lobster trap/pot'' from 12,489 to 11,767.
    Category II: ``Chesapeake Bay inshore gillnet'' from 1,167 to 
3,328; ``Northeast anchored float gillnet'' from 662 to 414; 
``Northeast drift gillnet'' from 608 to 414; ``Mid-Atlantic mid-water 
trawl'' from 546 to 669; ``Mid-Atlantic bottom trawl'' from 1,182 to 
1,388; ``Northeast mid-water trawl (including pair trawl)'' from 953 to 
887; ``Northeast bottom trawl'' from 1,635 to 2,584; Atlantic blue crab 
trap/pot from 6,479 to 10,008; ``Atlantic mixed species trap/pot'' from 
1,912 to 3,526; ``Mid-Atlantic menhaden purse seine'' from 54 to 56; 
``Mid-Atlantic haul/beach seine'' from 666 to 874; and ``VA pound net'' 
from 52 to 231.
    Category III: ``Gulf of Maine, U.S. Mid-Atlantic sea scallop 
dredge'' from 258 to >230; ``Northeast, Mid-Atlantic bottom longline/
hook & line'' from 1,183 to >1,281; ``DE River inshore gillnet'' from 
60 to unknown; ``Long Island Sound inshore gillnet'' from 20 to 
unknown; ``RI, southern MA (to Monomy Island), and NY Bight (Raritan 
and Lower NY Bays) inshore gillnet'' from 32 to unknown; ``Gulf of 
Maine Atlantic herring purse seine'' from >7 to >6; ``U.S. Mid-Atlantic 
eel trap/pot'' from >700 to unknown; and ``Atlantic shellfish bottom 
trawl'' from > 67 to >86.

List of Species or Stocks Incidentally Killed or Injured

    NMFS proposes to add the following stocks to the list of species or 
stocks incidentally killed or injured in the Category I ``Atlantic 
Ocean, Caribbean, Gulf of Mexico large pelagic longline'' fishery: 
Killer whale (GMX oceanic stock), sperm whale (GMX oceanic stock), and 
Gervais beaked whale (GMX oceanic stock). A killer whale (GMX oceanic 
stock) and a sperm whale (GMX oceanic stock) were each injured in this 
fishery in 2008, and a Gervais beaked whale (GMX oceanic stock) was 
injured in this fishery in 2007. Further, NMFS proposes to update the 
name of the Atlantic spotted dolphin stock from ``Northern GMX'' to 
``GMX continental and oceanic'' to reflect the stock name in the 2010 
SAR. Observer coverage in this fishery from 2004-2007 ranged from 4-7 
percent, with coverage exceeding 10 percent in some areas and regions 
(2010 SAR).
    NMFS proposes to combine bottlenose dolphin (GA coastal stock) and 
bottlenose dolphin (SC coastal stock) listed as incidentally killed or 
injured in the Category II ``Southeast Atlantic gillnet'' fishery and 
rename the stock as ``bottlenose dolphin (SC/GA coastal stock)'' to 
reflect the stock name in the 2010 SAR.
    NMFS proposes to add bottlenose dolphin (Northern FL coastal stock) 
to the list of species or stocks incidentally killed or injured in the 
Category II ``Southeastern U.S. Atlantic shark gillnet'' fishery. There 
were 2 takes (level of injury undetermined) of bottlenose dolphins that 
occurred in drift gillnet gear in 2002 and 2003 just south of the range 
of the Northern FL coastal stock, and the dolphins were possibly from 
this stock (2010 SAR). There has been no observer coverage in this 
fishery in recent years.
    NMFS proposes to add bottlenose dolphin (Northern GMX coastal 
stock) and bottlenose dolphin (GMX continental shelf stock) to the list 
of species or stocks incidentally killed or injured in the Category II 
``Southeastern U.S. Atlantic, Gulf of Mexico shrimp trawl'' fishery. A 
bottlenose dolphin was killed in this fishery in 2003 and could have 
belonged to the Northern GMX coastal stock or a GMX bay, sound and 
estuarine stock (which is already included on the list of species or 
stocks killed or injured in this fishery). Additionally, 1 or more of 6 
unidentified dolphins taken in this fishery from 1992-2008 could be 
from this stock (2010 SAR). A bottlenose dolphin (GMX continental shelf 
stock) was killed in this fishery in 2008. However, the PBR for this 
stock is undetermined, so NMFS cannot determine the exact percentage of 
PBR this take would represent. Additionally, 3 or 4 unidentified 
dolphins injured or killed in this fishery from 1992-2008 could be from 
this stock (2010 SAR). Further, NMFS proposes to update the name of the 
Atlantic spotted dolphin stock from ``Northern GMX'' to ``GMX 
continental and oceanic,'' and combine the bottlenose dolphin (GA 
coastal stock) and bottlenose dolphin (SC coastal stock) and rename the 
stock as ``bottlenose dolphin (SC/GA coastal stock),'' to reflect the 
stock names in the 2010 SAR. Observer coverage currently averages about 
1 percent of the total fishery effort (2010 SAR).
    NMFS proposes to combine bottlenose dolphin (GA coastal stock) and 
bottlenose dolphin (SC coastal stock) on the list of species or stocks 
incidentally killed or injured in the Category II ``Atlantic blue crab 
trap/pot'' fishery and rename the stock as ``bottlenose dolphin (SC/GA 
coastal stock)'' to reflect the stock name in the 2010 SAR.
    NMFS proposes to add bottlenose dolphin (Southern NC estuarine 
system stock) to the list of species or stocks incidentally killed or 
injured in the Category II ``NC long haul seine'' fishery. Three 
bottlenose dolphins were caught and released alive in this fishery; 
however, the level of injury for these three dolphins was undetermined. 
The 2010 SAR states that this fishery is known to interact with this 
stock. There has been no observer coverage in this fishery.
    NMFS proposes to add bottlenose dolphin (Northern NC estuarine 
system stock) to the list of species or stocks incidentally killed or 
injured in the Category II ``VA pound net'' fishery. Stranding data for 
2004-2008 indicate 17 bottlenose dolphins (Northern NC estuarine system 
stock) were killed in pound net gear and 3 were released alive. The 
level of injury for the 3 dolphins released alive was undetermined. 
These interactions occurred primarily inside estuarine waters near the 
mouth of the Chesapeake Bay in summer months. Nine of these mortalities 
occurred during the summer (July-September) and, therefore, could be 
from the Northern NC estuarine system stocks. The 2010 SAR states that 
this fishery is known to interact with this stock. There has not been 
formal observer coverage in this fishery; however, the Northeast 
Fishery Observer Program (NEFOP) has monitoring and characterization 
that occurs sporadically in this fishery.
    NMFS proposes to add bottlenose dolphin (Central FL coastal stock) 
to the list of species or stocks incidentally killed or injured in the 
Category III ``FL spiny lobster trap/pot'' fishery. From 2002-2010, 4 
bottlenose dolphin serious injuries or mortalities (multiple stocks) 
were confirmed to result from interactions with a southeast trap/pot 
fishery, plausibly the spiny lobster fishery because of its spatial and

[[Page 37724]]

temporal overlap with the strandings (2010 SAR). The 2010 SAR further 
indicates that at least one of these 4 takes was from the Central FL 
coastal stock. There has not been observer coverage in this fishery.
    NMFS proposes to add the following stocks to the list of species or 
stocks incidentally killed or injured in the ``Southeastern U.S. 
Atlantic, Gulf of Mexico stone crab trap/pot'' fishery (proposed to be 
elevated to Category II in this proposed rule): Bottlenose dolphin 
(Central FL coastal stock), bottlenose dolphin (Eastern GMX coastal 
stock), bottlenose dolphin (FL Bay stock), bottlenose dolphin (GMX bay, 
sound, estuarine stock, FL west coast portion), bottlenose dolphin 
(Indian River Lagoon estuarine system stock), bottlenose dolphin 
(Jacksonville estuarine system stock), and bottlenose dolphin (Northern 
GMX coastal stock). From 2002-2010, 3 bottlenose dolphin serious 
injuries or mortalities were confirmed to result from interactions with 
the stone crab fishery, and 7 bottlenose dolphin serious injuries or 
mortalities were confirmed to result from interactions with a southeast 
trap/pot fishery, plausibly the stone crab fishery based on spatial and 
temporal overlap with these strandings (2010 SAR). The 2010 SARs 
indicate that the serious injuries or mortalities were confirmed and/or 
could have been from the stocks listed above. This fishery has not been 
observed.
    NMFS proposes to add bottlenose dolphin (GMX continental shelf 
stock) to the list of species or stocks incidentally killed or injured 
in the Category III ``Southeastern U.S. Atlantic, Gulf of Mexico, and 
Caribbean snapper-grouper and other reef fish bottom longline/hook-and-
line'' fishery. One bottlenose dolphin was killed and one was seriously 
injured in this fishery in 2010, one reported in a 2010 NMFS Observer 
Program report and one observed and photo documented report from a 
local researcher and NMFS gear expert. In 2009, the observer coverage 
in the fishery was 1.7 percent (5.5 percent for the longline portion, 
nearly 0 percent for the modified buoy portion, and .07 percent for the 
vertical line portion). The PBR for this stock is undetermined; 
therefore, NMFS cannot determine what percentage of PBR these 
mortalities represent.
    NMFS proposes to add bottlenose dolphin (GMX bay, sound, and 
estuarine stock) to the list of species or stocks incidentally killed 
or injured in the Category III ``Atlantic Ocean, Gulf of Mexico, 
Caribbean commercial passenger fishing vessel'' fishery. Stranding data 
from 2002-2009 indicate 6 bottlenose dolphins stranded with 
recreational hook and line gear (confirmed by gear analysis) and an 
additional 2 bottlenose dolphins were released after disentanglement 
from this gear. There was also one dead bottlenose dolphin entangled in 
what the NMFS gear analysis team thought was recreational gear or 
commercial longline gear. Further, from 2002-2009 there were 29 
additional strandings of bottlenose dolphins that were entangled in 
gear consistent with recreational hook and line gear. This gear can be 
attributed to either vessels operating in the ``Atlantic Ocean, Gulf of 
Mexico, Caribbean commercial passenger fishing vessel'' fishery or 
individual recreational fishers. Given the large number of stranding 
events, it is highly likely that one or more of the strandings resulted 
from interactions with this commercial fishery. The GMX bay, sound, and 
estuarine stock includes 32 distinct stocks, and for 29 of those stocks 
the PBR is undetermined. Given that fact, and the uncertainties 
surrounding the number of animals taken in this specific fishery and 
their exact stock assignment, NMFS cannot determine the percentage of 
PBR these takes represent. There has not been observer coverage in this 
fishery.
    NMFS proposes to add Risso's dolphin (WNA stock) to the list of 
species or stocks incidentally killed or injured in the Category II 
``Mid-Atlantic bottom trawl'' fishery. In 2010, fifteen Risso's 
dolphins were observed killed in this fishery: One was killed during a 
bottom otter trawl trip targeting summer flounder in April 2010; one 
was killed during a bottom otter trawl trip targeting monkfish in April 
2010; eight were killed in a bottom otter trawl trip targeting Illex 
squid in June 2010; and five were killed in bottom otter trawls again 
targeting Illex squid in October 2010. These recorded takes occurred 
west of 70[deg] W. long., which serves as the boundary between the 
Northeast and Mid-Atlantic bottom trawl fisheries. These mortalities 
were observed and reported in the April 2010, June 2010, and October 
2010 NEFOP Incidental Take Reports (http://www.nefsc.noaa.gov/fsb/). 
The total annual estimated average fishery-related mortality or serious 
injury to this stock during 2004-2008 was 20 Risso's dolphins (2010 
SAR). However, no takes were attributed to the Mid-Atlantic bottom 
trawl fishery during this time. The fifteen takes that occurred during 
2010 in this fishery represents more than 1 percent of the stock's PBR 
of 124. Therefore NMFS also proposes to include the notation ``\1\ '' 
next to this stock in Table 2 to indicate that the stock is driving the 
Category II classification of the fishery. Observer coverage in this 
fishery from 1997-2008 ranged from 0 to 13.3 percent (2010 SAR).
    NMFS proposes to add harbor seal (WNA stock) to the list of species 
or stocks incidentally killed or injured in the Category II ``Mid-
Atlantic bottom trawl'' fishery. In March 2009, a harbor seal was 
killed in a bottom trawl targeting Loligo squid and operating west of 
70[deg] W. long., which serves as the boundary between the Northeast 
and Mid-Atlantic bottom trawl fisheries. The PBR for this stock is 
unknown (2010 SAR); therefore, it is unknown what percentage of PBR 
this mortality represents. However, given the most recent PBR reported 
for this stock was 2,746 (2009 SAR), it is unlikely that this one 
mortality equates to a rate of annual serious injury and mortality that 
exceeds 1 percent of PBR. Therefore, this stock is not driving the 
classification of this fishery. This mortality was observed and 
reported in the March 2009 NEFOP Incidental Take Reports (http://www.nefsc.noaa.gov/fsb/ fsb/). Observer coverage in this fishery from 1997-
2008 was 0 to 13.3 percent (2010 SAR).
    NMFS proposes to add bottlenose dolphin (WNA offshore stock) to the 
list of species or stocks incidentally killed or injured in the 
Category II ``Northeast bottom trawl'' fishery. From 2009-2010, five 
bottlenose dolphins (WNA offshore stock) were killed in this fishery: 
One bottlenose dolphin was killed during a trip targeting groundfish in 
April 2009; three were killed on during a trip targeting Illex squid in 
August 2009; and one was killed in a bottom otter trawl targeting 
Loligo squid in March 2010. The most recent total mean estimated annual 
fishery-related mortality for this stock is unknown (2010 SAR), but 
these 5 mortalities in one year represent less than 1 percent of the 
stock's PBR of 566. In the 2011 LOF, the three August 2009 takes were 
incorrectly attributed to the Category II ``Mid-Atlantic bottom trawl'' 
fishery. However, these three takes occurred east of 70[deg] W. long., 
which serves as the boundary between the Northeast and Mid-Atlantic 
bottom trawl fisheries, and therefore should be attributed to the 
``Northeast bottom trawl'' fishery. These mortalities were observed and 
reported in the April 2009, August 2009 and March 2010 Northeast 
Fisheries Observer Program Incidental Take Reports (http://www.nefsc.noaa.gov/fsb/). Observer coverage in this fishery from 1994-
2008 was 0.1 to 8 percent (2010 SAR).

[[Page 37725]]

    NMFS proposes to add gray seal (WNA stock) to the list of species 
or stocks incidentally killed or injured in the Category II ``Northeast 
bottom trawl'' fishery. In November 2009, a gray seal was killed in a 
bottom trawl targeting Loligo squid and operating east of 70[deg] W. 
long., which serves as the boundary between the Northeast and Mid-
Atlantic bottom trawl fisheries. The PBR for this stock is currently 
undetermined because the minimum population size is unknown (2010 LOF); 
therefore, it is unknown what percentage of PBR this mortality 
represents and whether the take is driving the Category II 
classification of the fishery. However, the stock's abundance appears 
to be increasing in U.S. waters and the total U.S. fishery-related 
serious injury and mortality can be considered insignificant and 
approaching a zero mortality or serious injury rate (2010 SAR). This 
mortality was observed and reported in the November 2009 NEFOP 
Incidental Take Reports (http://www.nefsc.noaa.gov/fsb/). Observer 
coverage in this fishery from 1994-2008 was 0.1 to 8 percent (2010 
SAR).

Commercial Fisheries on the High Seas

Fishery Classification
    NMFS proposes to elevate the high seas ``Pacific highly migratory 
species drift gillnet'' fishery from Category III to Category II. This 
fishery is an extension of the ``CA thresher shark/swordfish drift 
gillnet'' fishery operating within the U.S. EEZ, and is not a separate 
fishery. NMFS proposes to elevate the component of the fishery 
operating in U.S. waters to Category II in this proposed rule (see 
above under ``Commercial Fisheries in the Pacific Ocean'' for details); 
therefore, NMFS also proposes to elevate the high seas component of the 
fishery because it remains the same fishery on either side of the EEZ 
boundary.
    NMFS proposes to correct an error in the 2011 LOF by reclassifying 
the high seas ``Pacific highly migratory species longline'' fishery 
from Category II to Category III. This fishery is an extension of the 
Category III ``CA pelagic longline'' fishery operating within the U.S. 
EEZ, and is not a separate fishery. The component of the fishery 
operating in U.S. waters was reclassified as Category III in the final 
2011 LOF. However, the high seas component of the fishery inadvertently 
remained listed as Category II on the 2011 LOF. Since the high seas 
component of the fishery is the same as the fishery operating within 
the U.S. EEZ, and is not a separate fishery, it should be classified in 
the same Category as the fishery operating within the U.S. EEZ.

Removal of Fisheries

    NMFS proposes to remove the Category II high seas ``Pacific highly 
migratory species trawl'' fishery. There are no active HSFCA permits 
for this gear type in this fishery.
    NMFS proposes to remove the Category II high seas ``South Pacific 
albacore troll trawl'' fishery. There are no active HSFCA permits for 
this gear type in this fishery.

Fishery Name and Organizational Changes and Clarifications

    NMFS proposes to change the name of the Category I high seas 
``Western Pacific pelagic (deep-set component) longline'' fishery to 
the ``Western Pacific pelagic (HI deep-set component) longline'' 
fishery to more clearly reflect that there is one HI-based deep-set 
longline fishery that operates both within the U.S. EEZ and on the high 
seas.
    NMFS proposes to change the name of the Category II high seas 
``Western Pacific pelagic (shallow-set component) longline'' fishery to 
the ``Western Pacific pelagic (HI shallow-set component) longline'' 
fishery to more clearly reflect that there is one HI-based shallow-set 
longline fishery that operates both within the U.S. EEZ and on the high 
seas.

Number of Vessels/Persons

    NMFS proposes to update the estimated number of HSFCA permits in 
multiple high seas fisheries for multiple gear types. The proposed 
updated numbers of HSFCA permits reflect the current number of permits 
in the NMFS National Permit System database.
    High seas Atlantic highly migratory species fishery for the 
following gear types: Longline from 77 to 81; and handline/pole and 
line from 2 to 3.
    High seas Pacific highly migratory species fishery for the 
following gear types: Pot from 7 to 3; longline from 75 to 85; 
handline/pole and line from 25 to 30; multipurpose from 7 to 5; purse 
seine from 8 to 7; and troll from 271 to 258.
    High seas South Pacific albacore troll fishery for the following 
gear types: Pot from 5 to 3; and troll from 59 to 51.
    High seas South Pacific tuna fishery for the following gear types: 
Longline from 8 to 11; and purse seine from 35 to 33.
    High seas Western Pacific pelagic fishery for the following gear 
types: Deep-set longline from 127 to 124; pot from 7 to 3; handline/
pole and line from 10 to 8; multipurpose from 5 to 4; trawl from 3 to 
1; and troll from 40 to 32.

List of Species or Stocks Incidentally Killed or Injured

    NMFS proposes to add humpback whale (CA/OR/WA stock) to the list of 
marine mammal stocks incidentally injured or killed in the high seas 
``Pacific highly migratory species gillnet'' fishery (proposed to be 
elevated to Category II in this proposed rule). This fishery is an 
extension of the ``CA thresher shark/swordfish drift gillnet'' fishery 
(proposed to be elevated to Category II in this proposed rule) 
operating within the U.S. EEZ, and is not a separate fishery. A 
humpback whale was reported as seriously injured in the component of 
the fishery operating in U.S. waters in 2009. Since this fishery 
remains the same and many marine mammals species are found on either 
side of the EEZ boundary, the list of species or stocks incidentally 
killed or injured in the high seas component of the fishery is 
identical to the list of species or stocks killed or injured in the 
component operating in U.S. waters, minus coastal stocks.
    NMFS proposes to correct an error in the 2011 LOF by removing 
Risso's dolphin (CA/OR/WA stock) from the list of marine mammal stocks 
incidentally injured or killed in the high seas ``Pacific highly 
migratory species longline'' fishery (proposed to be reclassified to 
Category III in this proposed rule). This fishery is an extension of 
the Category III ``CA pelagic longline'' fishery operating within the 
U.S. EEZ, and is not a separate fishery. Risso's dolphin (CA/OR/WA 
stock) was removed from the list of species or stocks killed or injured 
in the component of the fishery operating in U.S. waters in the final 
2011 LOF. However, the stock inadvertently remained listed as killed or 
injured in the high seas component of this fishery. Since this fishery 
remains the same and many marine mammals species are found on either 
side of the EEZ boundary, the list of species or stocks incidentally 
killed or injured in the high seas component of the fishery is 
identical to the list of species or stocks killed or injured in the 
component operating in U.S. waters, minus coastal stocks.
    NMFS proposes to add Blainville's beaked whale (unknown stock), 
bottlenose dolphin (unknown stock), Pantropical spotted dolphin 
(unknown stock), Risso's dolphin (unknown stock), short-finned pilot 
whale (unknown stock), and striped dolphin (unknown stock), to the list 
of species or stocks injured or killed in the Category I high

[[Page 37726]]

seas ``Western Pacific pelagic (HI deep-set component)'' fishery. This 
fishery is an extension of the Category I ``HI deep-set (tuna target) 
longline/set line'' fishery operating within the U.S. EEZ, and is not a 
separate fishery. The proposed addition of these unknown stocks is not 
due to additional observed takes; it is however an acknowledgement of 
uncertainty in the stock identification for species of marine mammals 
taken by this fishery outside of the U.S. EEZ (i.e., on the high seas). 
In the 2011 LOF, NMFS made several changes to the stocks listed as 
taken in this fishery because the 2010 SAR noted that the HI pelagic 
stocks include animals found both within the U.S. EEZ around the 
Hawaiian Islands and in adjacent high seas. However, the stock 
boundaries are unknown. Therefore, this fishery may be taking animals 
from the HI pelagic stocks, or from unknown, undefined stocks beyond 
the range of the HI pelagic stocks. Until further information is 
available to assign animals taken on the high seas to a specific stock, 
NMFS proposes adding ``unknown'' stocks for each of the species listed 
to acknowledge this uncertainty and to be consistent with the SARs.
    NMFS proposes to add bottlenose dolphin (unknown stock), Byrde's 
whale (unknown stock), Kogia spp. whale (unknown stock), Risso's 
dolphin (unknown stock), and striped dolphin (unknown stock), to the 
list of species or stocks injured or killed in the Category II high 
seas ``Western Pacific pelagic (HI shallow-set component)'' fishery. 
This fishery is an extension of the Category II ``HI shallow-set 
(swordfish target) longline/set line'' fishery operating within the 
U.S. EEZ, and is not a separate fishery. The proposed addition of these 
unknown stocks is not due to additional observed takes; it is however 
an acknowledgement of uncertainty in the stock identification for 
species of marine mammals taken by this fishery outside of the U.S. EEZ 
(i.e., on the high seas). In the 2011 LOF, NMFS made several changes to 
the stocks listed as taken in this fishery because the 2010 SAR noted 
that the HI pelagic stocks include animals found both within the U.S. 
EEZ around the Hawaiian Islands and in adjacent high seas. However, the 
stock boundaries are unknown. Therefore, this fishery may be taking 
animals from the HI pelagic stocks, or from unknown, undefined stocks 
beyond the range of the HI pelagic stocks. Until further information is 
available to assign animals taken on the high seas to a specific stock, 
NMFS proposes adding ``unknown'' stocks for each of the species listed 
to acknowledge this uncertainty and to be consistent with the SARs.

List of Fisheries

    The following tables set forth the proposed list of U.S. commercial 
fisheries according to their classification under section 118 of the 
MMPA. 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; and Table 4 lists fisheries affected by 
TRPs or TRTs.
    In Tables 1 and 2, the estimated number of vessels/persons 
participating 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, vessels, 
or persons licensed in a fishery, then the number from the most recent 
LOF is used for the estimated number of vessels/persons in the fishery. 
NMFS acknowledges that, in some cases, these estimations may be 
inflations of actual effort, such as for many of the Mid-Atlantic and 
New England fisheries. However, in these cases, the numbers represent 
the potential effort for each fishery, given the multiple gear types 
several state permits may allow for. Changes made to Mid-Atlantic and 
New England fishery participants will not affect observer coverage or 
bycatch estimates as observer coverage and bycatch estimates are based 
on vessel trip reports and landings data. Tables 1 and 2 serve to 
provide a description of the fishery's potential effort (state and 
Federal). If NMFS is able to extract more accurate information on the 
gear types used by state permit holders in the future, the numbers will 
be updated to reflect this change. For additional information on 
fishing effort in fisheries found on Table 1 or 2, NMFS refers the 
reader to contact the relevant regional office (contact information 
included above in SUPPLEMENTARY INFORMATION).
    For high seas fisheries, Table 3 lists the number of currently 
valid HSFCA permits held. 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 on the potential effort in high 
seas fisheries at this time.
    Tables 1, 2, and 3 also list the marine mammal species or stocks 
incidentally killed or injured in each fishery based on observer data, 
logbook data, stranding reports, disentanglement network data, and MMAP 
reports. This list includes all species or stocks known to be injured 
or killed in a given fishery, but also includes species or stocks for 
which there are anecdotal records of an injury or mortality. 
Additionally, species identified by logbook entries, stranding data, or 
fishermen self-reports (i.e., MMAP reports) may not be verified. In 
Tables 1 and 2, 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 that are 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 as 
Category II that have no recent documented injuries or mortalities of 
marine mammals, or fisheries that did not result in a serious injury or 
mortality rate greater than 1 percent of a stock's PBR level based on 
known interactions. NMFS has classified these fisheries by analogy to 
other Category I or II fisheries that use similar fishing techniques or 
gear 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 (i.e., 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). 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, and therefore 
operate both within U.S. waters and on the high seas. These fisheries, 
though listed separately between Table 1 or 2 and Table 3, are 
considered the same fishery on either side of the EEZ boundary. NMFS 
has designated those fisheries in each table by a ``*'' after the 
fishery's name.
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[[Page 37749]]

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 individuals participating in 
Category I or II fisheries must register under the MMPA and obtain an 
Authorization Certificate. The Authorization Certificate authorizes the 
taking of non-endangered and non-threatened marine mammals incidental 
to commercial fishing operations. Additionally, individuals may be 
subject to a TRP and requested to carry an observer. NMFS has estimated 
that up to approximately 69,000 fishing vessels, most of which are 
small entities, may operate in Category I or II fisheries and, 
therefore, are required to register with NMFS. Of these, approximately 
3,600 are new to a Category I or II fishery as a result of this 
proposed rule. The MMPA registration process is integrated with 
existing state and Federal licensing, permitting, and registration 
programs. Therefore, individuals who have a state or Federal fishing 
permit or landing license, or who are authorized through another 
related state or 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 proposed rule.
    If a vessel is requested to carry an observer, individuals will not 
incur any direct economic costs associated with carrying that observer. 
Potential indirect costs to individuals required to take observers may 
include: lost space on deck for catch, lost bunk space, and lost 
fishing time due to time needed by the observer 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 individuals 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 TRP would be summarized in subsequent rulemaking 
actions.
    This proposed rule contains collection-of-information requirements 
subject to the Paperwork Reduction Act. The collection of information 
for the registration of individuals 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 proposed rule has been determined to be not significant for 
the purposes of Executive Order 12866.
    An environmental assessment (EA) was prepared under the National 
Environmental Policy Act (NEPA) for regulations to implement section 
118 of the MMPA 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 proposed rule would not make any significant 
change in the management of reclassified fisheries, and therefore, this 
proposed rule is not expected to change the analysis or conclusion of 
the 2005 EA. 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 would first prepare an environmental 
document, as required under NEPA, specific to that action.
    This proposed rule would not affect species listed as threatened or 
endangered under the Endangered Species Act (ESA) or their associated 
critical habitat. The impacts of numerous fisheries have been analyzed 
in various biological opinions, and this proposed rule will not affect 
the conclusions of those opinions. The classification of fisheries on 
the LOF is not considered to be a management action that would 
adversely affect threatened or endangered species. If NMFS takes a 
management action, for example, through the development of a TRP, NMFS 
would conduct consultation under ESA section 7 for that action.
    This proposed rule would have no adverse impacts on marine mammals 
and may have a positive impact on marine mammals by improving knowledge 
of marine mammals and the fisheries interacting with marine mammals 
through information collected from observer programs, stranding and 
sighting data, or take reduction teams.
    This proposed rule would not affect the land or water uses or 
natural resources of the coastal zone, as specified under section 307 
of the Coastal Zone Management Act.

References

    Andersen, M.S., K.A. Forney, T.V.N. Cole, T. Eagle, R. Angliss, 
K. Long, L. Barre, L. Van Atta, D. Borggaard, T. Rowles, B. Norberg, 
J. Whaley, and L. Engleby. 2008. Differentiating Serious and Non-
Serious Injury of Marine Mammals: Report of the Serious Injury 
Technical Workshop, 10-13 September 2007, Seattle, Washington. NOAA 
Technical Memorandum NMFS-OPR-39, 94p.
    Courbis, S., R.W. Baird, F. Cipriano, and D. Duffield. 2009. 
Population structure of pantropical spotted dolphins near the main 
Hawaiian Islands: Evidence of multiple genetic stocks. Abstract and 
poster presented at the 18th Biennial Conference on the Biology of 
Marine Mammals, Quebec City, October 2009.
    Courbis, S., R.W. Baird, F. Cipriano, and D. Duffield. 2010. 
Population structure of pantropical spotted dophins near the Main 
Hawaiian Islands: Evidence of multiple genetic stocks for 
management. Report to the Pacific Scientific Review Group 2010, 
PSRG-2010-19, 24 p.

[[Page 37750]]

    Hamilton, M.S. 1998. Cost-earnings study of Hawaii's charter 
fishing industry 1996-1997. SOEST 98-08, JIMAR Contribution 98-322. 
112 p. Available online: http://www.soest.hawaii.edu/PFRP/soest_jimar_rpts/hamilton_charter_fishing96_97.pdf.
    Rizzuto, J. 2007. Big fish await HIBT teams. West Hawaii Today 
39(218): 1B, 4B.


    Dated: June 22, 2011.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 2011-16209 Filed 6-27-11; 8:45 am]
BILLING CODE 3510-22-P