[Federal Register Volume 76, Number 229 (Tuesday, November 29, 2011)]
[Rules and Regulations]
[Pages 73912-73953]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-30607]



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Vol. 76

Tuesday,

No. 229

November 29, 2011

Part V





Department of Commerce





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National Oceanic and Atmospheric Administration





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50 CFR Part 229





List of Fisheries for 2012; Final Rule

  Federal Register / Vol. 76, No. 229 / Tuesday, November 29, 2011 / 
Rules and Regulations  

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 229

[Docket No. 110207104-1536-02]
RIN 0648-BA76


List of Fisheries for 2012

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 2012, as required by the Marine 
Mammal Protection Act (MMPA). The final 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: This final rule is effective January 1, 2012.

ADDRESSES: 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 Nathan Frey, 
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; 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:

Availability of Published Materials

    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 1110, 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 TRP 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 (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).

[[Page 73913]]

    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 as Category II 
by analogy to other Category I or II fisheries (NMFS does not classify 
fisheries as Category I based on analogy) that are sufficiently 
analogous to the fishery in question (e.g., 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. The regulations at 50 CFR 229.2 
state that 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 ``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.'' 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).

Information That May Be Considered When Classifying Fisheries

    Under regulations pursuant to section 118 of the MMPA, observer 
data, logbook data, stranding data, fishers' reports, anecdotal 
reports, and information on incidental serious injury or mortality to 
marine mammals reported in SARs are used to classify fisheries (60 FR 
45086, August 30, 1995; 60 FR 67063, December 28, 1995). Further, the 
factors for consideration laid out in 50 CFR 229.2 (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), generally termed ``analogy'' in the LOF, 
are used to classify fisheries in the absence of reliable data on the 
frequency of interactions.

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, fisher self-reports, and 
anecdotal 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 the observer coverage 
levels in a particular fishery are important tools in estimating the 
level of annual 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 final 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).

Are high seas fisheries included on the 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

[[Page 73914]]

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?

    NMFS maintains 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 is developing 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 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 Pacific Islands region, NMFS will issue vessel or gear 
owners who hold a Federal permit an authorization certificate and/or 
injury/mortality reporting forms via U.S. mail or with their Federal 
permit at the time of renewal; for vessel or gear owners holding state 
licenses only, NMFS will issue an authorization certificate via U.S. 
mail automatically at the beginning of each calendar year. Individuals 
participating in Category I or II fisheries who obtain state commercial 
marine licenses after the beginning of the calendar year may request an 
authorization certificate and/or injury/mortality reporting forms by 
contacting the NMFS Pacific Islands Regional Office at (808) 944-2200.
    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).

[[Page 73915]]

    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/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. 50 CFR 229.2 defines an injury as 
``a wound or other physical harm,'' and includes examples of signs of 
injury. 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 (16 U.S.C. 1387) 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 final 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 Final 2012 LOF

    NMFS reviewed the marine mammal incidental injury, serious injury 
and mortality information presented in the SARs for all fisheries. 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, anecdotal reports, 
FMPs, and ESA documents.
    The final LOF for 2012 was based on information provided in the 
NEPA and ESA documents analyzing authorized high seas fisheries; 
stranding data; fishermen self-reports through the MMAP; observer 
program reports; anecdotal reports; 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 fact sheets 
available on the NMFS Office of Protected Resources Web site (http://www.nmfs.noaa.gov/pr/interactions/lof/). Additional details for 
Category I and II fisheries operating on the high seas are included in 
various FMPs, NEPA, or ESA documents.
    State and regional abbreviations used in the following text 
include: AK (Alaska), BSAI (Bering Sea, Aleutian Islands), CA 
(California), DE (Delaware), FL (Florida), GMX (Gulf of Mexico), HI 
(Hawaii), MA (Massachusetts), ME (Maine), MHI (Main Hawaiian Islands), 
NC (North Carolina), NY (New York), OR (Oregon), RI (Rhode Island), SC 
(South Carolina), VA (Virginia), WA (Washington), and WNA (Western 
North Atlantic).

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 FL. Stone 
crab fishing outside of this area is likely very minimal. In 2010, the 
State of FL issued 1,282 commercial stone crab licenses and 1,190,285 
stone crab trap tags. FL state regulations limit recreational stone 
crab trap/pot numbers to five per person (FL Administrative Code 
(F.A.C.) Chapter 68B-13). The season for commercial and recreational 
stone crab harvest is from October 15 to May 15. Traps are the most 
typical 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 F.A.C. 
Chapter 68B-13. 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 FL, commercial trap/pot buoys are required to be marked with 
the letter ``X,'' the trap owner's stone crab endorsement number (in 
characters at

[[Page 73916]]

least 2 inches high), and a tag that corresponds to a valid FWC-issued 
trap certificate. Recreational trap/pot buoys, except those fished from 
a dock, must have a permanently affixed and legible ``R'' at least 2 
inches high and the harvester's name and address (Ch. 68B-13.009(3), 
F.A.C).

Comments and Responses

    NMFS received 19 comment letters on the proposed 2012 LOF (76 FR 
37716, June 28, 2011). Comments were received from the Blue Water 
Fishermen's Association, Center for Biological Diversity, Florida Fish 
and Wildlife Conservation Commission, Florida Keys Commercial 
Fishermen's Association, Freezer Longline Coalition, Garden State 
Seafood Association, Hawaii Longline Association, Humane Society of the 
United States, Marine Mammal Commission, Natural Resources Defense 
Council, State of Hawaii, U.S. Fish and Wildlife Service, Western 
Pacific Regional Fishery Management Council, and 6 individuals. 
Comments on issues outside the scope of the LOF were noted, but are 
generally not responded to in this final rule.

General Comments

    Comment 1: An individual commenter recommends NMFS inform the U.S. 
Department of Defense (DOD) of the LOF, NMFS, and MMPA. The commenter 
further wondered whether the Navy is also a contributor of injury or 
death of animals listed on the LOF, if the process is complying with 
Advisory Council on Historic Preservation Section 106, and, if so, 
which Native Hawaiian Organizations are involved.
    Response: Certain military readiness activities are subject to 
sections 101(a)(5)(A) and (D) of the MMPA, which authorizes the 
Secretary of Commerce to allow, upon request, the incidental, but not 
intentional taking of marine mammals subject to required notifications 
and determinations. However, the Navy is not subject to section 118 of 
the MMPA, which applies to commercial fisheries. National Historic 
Preservation Act (NHPA) section 106 generally requires federal agencies 
to consult the appropriate State Historic Preservation Office (SHPO) 
and/or Tribal or Native Hawaiian groups on undertakings, including 
projects, activities, and programs that may affect qualifying historic 
properties. The LOF only involves classification determinations for 
commercial fisheries based upon marine mammal interactions, and is not 
a federal undertaking under the NHPA.
    Comment 2: The Marine Mammal Commission (Commission) acknowledges 
NMFS' efforts for summarizing and providing information about observer 
coverage and other characteristics of listed fisheries, and commends 
NMFS for its efforts to centralize information used to classify 
Category III fisheries and looks forward to seeing this effort come to 
fruition. The Commission appreciates that NMFS has considered their 
concerns and is exploring ways to fully and effectively convey the 
reasons for listing fisheries, which must be based on the best 
available information and may or may not include observer-derived data.
    Response: NMFS agrees that summarizing the information used as the 
basis to classify each fishery on the LOF in one location could be 
useful for interested readers. NMFS has posted information on each 
Category I and II fishery on the LOF on the NMFS Office of Protected 
Resources Web site, where it can be considered at the readers' 
discretion, and is pleased the Commission finds the information useful 
while reviewing the LOF. NMFS is developing similar fishery fact sheets 
for each Category III fishery and anticipates posting those fishery 
fact sheets along with the final 2013 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, this timeline may 
be revised as this exercise progresses.
    Comment 3: The Center for Biological Diversity (CBD) notes that the 
proposed 2012 LOF once again includes aquaculture operations as 
Category III fisheries and reiterates comments on past LOFs that 
aquaculture facilities are not ``commercial fishing operations'' 
eligible for the take authorization contained in Section 118 of the 
MMPA. The CBD states that these operations consistently compete with 
marine mammals for habitat and resources due to their stationary 
nature; therefore, aquaculture facilities and activities are more 
appropriately subject to the take prohibitions and permitting regimes 
contained in Section 101 of the MMPA.
    Response: NMFS received similar comments on the 2009 and 2010 LOFs. 
Section 118 of the MMPA governs the ``taking of marine mammals 
incidental to commercial fishing operations.'' The MMPA does not 
provide a definition of a commercial fishing operation; therefore, NMFS 
defined ``commercial fishing operation'' in regulations at 50 CFR 
229.2. The definition was presented in the proposed and final rules 
implementing the regulations for section 118 of the MMPA (60 FR 31666, 
June 16, 1995; 60 FR 65086, August 30, 1995). As noted in those 
proposed and final rules, and in the responses to comments on the 2009 
and 2010 LOFs (73 FR 73032, December 1, 2008, comment/response 5; 74 FR 
58859, November 16, 2009, comment/response 11), the definition of a 
``commercial fishing operation'' includes aquaculture. 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 MMPA and are therefore 
included on the annual LOF.
    Comment 4: The CBD urges NMFS not to reclassify fisheries to a less 
serious category when information on the fishery and its interactions 
with marine mammals is scant. In these cases, the CBD urges NMFS to 
instead rely more heavily upon the known impacts of the fishery's gear 
and the marine mammals known to inhabit the area being fished, rather 
than relying, for example, on the lack of reported interactions in 
fisheries with little or no observer coverage. The CBD states that 
every Federal FMP by law must include ``a standardized reporting 
methodology to assess the amount and type of bycatch,'' and that the 
ESA and MMPA make no exceptions to protection on the basis of state 
versus Federal fisheries. The CBD asserts that failure to assess marine 
mammal bycatch is an unacceptable justification for denying marine 
mammals protection via the LOF.
    Response: NMFS considers a broad range of information when 
proposing or making fishery classification decisions on the LOF, and 
does not classify fisheries based solely on the presence or absence of 
serious injuries or mortalities obtained through observer programs. 
Under regulations pursuant to section 118, NMFS uses observer data, 
logbook data, stranding data, fishers' reports, anecdotal reports, 
qualitative factors outlined 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), information on incidental serious injury or 
mortality to marine mammals reported in SARs (50 CFR 229.2; 60 FR 
45086, August 30, 1995; 60 FR 67063, December 28, 1995), and input 
received during the public comment periods.

[[Page 73917]]

NMFS considers all of the information to determine whether the fishery 
can be classified on the LOF based on quantitative information analyzed 
through the Tier 1 and 2 analyses; or whether the fishery can be 
classified on the LOF based on the qualitative information outlined in 
NMFS regulations at 50 CFR 229.2 (and presented above).

Comments on Commercial Fisheries in the Pacific Ocean

    Comment 5: The Freezer Longline Coalition (FLC) recommends the 
``BSAI Pacific cod longline'' fishery be reclassified as Category III 
because the annual serious injury and mortality for all stocks listed 
as killed or injured in this fishery is less than 1 percent of PBR for 
the most recent five-year period (2004-2008). The FLC states that the 
2010 SAR shows that there are no serious injuries or mortalities of 
killer whales (AK resident stock) or ribbon seals from 2004-2008, and 
the mean annual serious injury and mortality of Steller sea lions 
(Western distinct population segment) is 0.488 percent of PBR; however, 
the fishery continues to be classified as Category II based on serious 
injury and mortality of resident killers whales from 2002-2006. The FLC 
asserts that the fishery should not continue to be classified based on 
outdated data simply because NMFS has been unable to ``finalize'' data 
for 2007 and 2008, which is inconsistent with the MMPA's best available 
science mandate, the Information Quality Act, and NMFS' associated 
guidelines.
    Response: The classification of fisheries for the proposed 2012 LOF 
was based on the best available scientific information at the time the 
fishery classifications were made. In this case, the most current 
available information on serious injury and mortality of marine mammals 
was presented in the final 2010 SAR, which included an analysis data 
from 2002-2006. More recent data from a new analysis for the 2007-2010 
period will be available for use in classifying fisheries on the 2013 
LOF. At that time, NMFS will consider the information available from 
the new analysis and consider a reclassification for the BSAI Pacific 
cod longline fishery, if appropriate.
    Comment 6: The FLC asserts that the estimated mortality reported in 
the SARs for AK longline fisheries uses incorrect observer coverage 
percentages, resulting in significant overestimation of mortality. The 
FLC further asserts that the default recovery factors used for multiple 
AK marine mammal stocks need to be re-evaluated for populations that 
are increasing, have a large population, or whose population status is 
known.
    Response: NMFS does not calculate observer percentages or recovery 
factors in the annual LOF, instead this information is provided in the 
SARs after NMFS and the Alaska SRG have evaluated the information 
during their annual review. Therefore, NMFS suggests the FLC submit 
this comment during the public comment period for the draft 2011 SARs. 
Further, NMFS responded to similar comments on the 2009 SARs and 
therefore refers the FLC to that Federal Register notice for additional 
information (75 FR 12498, March 16, 2010; comment/response 13 and 16).
    Comment 7: The Commission concurs that the ``CA thresher shark/
swordfish drift gillnet'' fishery meets the criteria for Category II 
and concurs with the designation of the CA/OR/WA stock of humpback 
whales as the basis for that classification.
    Response: NMFS acknowledges this comment. The ``CA thresher shark/
swordfish drift gillnet'' fishery is classified as Category II in this 
final rule.
    Comment 8: The Humane Society of the United States (HSUS) supports 
the elevation of the ``CA thresher shark/swordfish drift gillnet'' 
fishery to Category II. The HSUS notes that there is a long-standing 
record of interactions between drift gillnet fisheries and protected 
species worldwide and feels it is appropriate for NMFS to develop a 
better understanding of this driftnet fishery and the extent to which 
it interacts with marine mammals through use of observer coverage, 
which is more likely for a fishery placed in Category II.
    Response: NMFS acknowledges this comment and notes that this 
fishery is subject to requirements under the Pacific Offshore Cetacean 
Take Reduction Plan and is regulated under the Fishery Management Plan 
for U.S. West Coast Fisheries for Highly Migratory Species, which 
authorizes NOAA to place observers on fishing vessels in west coast 
highly migratory species fisheries (such as drift gillnet), regardless 
of the LOF category.
    Comment 9: The U.S. Fish and Wildlife Service (USFWS) reiterated a 
recommendation made on the 2011 LOF to include southern sea otters on 
the list of species/stocks killed or injured in the Category III ``CA 
spiny lobster trap'' or the ``CA coonstripe shrimp, rock crab, tanner 
crab pot or trap'' fisheries because experiments have shown that sea 
otters can enter these traps and drown. The USFWS provided a 
publication by Hatfield et al. (2011) to support this recommendation.
    Response: NMFS responded to a similar comment on the 2011 LOF (75 
FR 68475, November 8, 2010, comment/response 13) and provided detailed 
information on an extensive review of marine mammal interactions with 
West Coast trap and pot gear in the proposed 2009 LOF (73 FR 33760, 
June 13, 2008). In 2008, NMFS Southwest Regional Office (SWRO) 
consulted with experts on marine mammals and pot/trap fisheries 
including the NMFS Southwest Fisheries Science Center, NMFS Northwest 
Fisheries Science Center, NMFS Northwest Regional Office, and CA 
Department of Fish and Game (CDFG) to evaluate which fisheries may be 
affecting marine mammals. The primary intent of the analysis was to 
review interactions between trap/pot gear and humpback whales, but all 
marine mammals were addressed in the review. During the 2008 review, 
the only information available on southern sea otter interactions with 
trap/pot gear were stranding records of from 1987 and 1991 (2008 SAR; 
pers. comm. with staff from CDFG). At that time, NMFS determined that 
sea otters should be removed from the list of species killed or injured 
in the ``CA spiny lobster trap'' and the ``CA coonstripe shrimp, rock 
crab, tanner crab pot or trap'' fisheries because the information was 
approximately 20 years old and there had been no indications of 
interactions since that time. NMFS SWRO continues to consult with NMFS 
and CDFG specialists regarding marine mammal interactions with trap/pot 
gear. NMFS has not received additional information since 2008 to 
suggest that southern sea otters are currently being incidentally 
killed or injured in pot and trap gear.
    As part of their public comment, the USFWS submitted a paper by 
Hatfield et al. (2011), detailing experiments that indicate sea otters 
can enter and become entrapped in traps with openings of certain sizes. 
However, this paper presented no evidence of such takes occurring 
during commercial fishing activities off CA. The possibility of an 
interaction is insufficient justification to include southern sea 
otters on the list of species incidentally injured or killed in the 
``CA spiny lobster trap'' or the ``CA coonstripe shrimp, rock crab, 
tanner crab pot or trap'' fisheries. Instead, NMFS needs some 
indication that takes are occurring or have occurred in these fisheries 
in recent years (e.g., fisher self reports, observer data, stranding 
data). If additional information becomes available to indicate that 
southern sea otters have been injured or killed in CA trap/pot 
fisheries in recent years, NMFS

[[Page 73918]]

will consider including this species on the LOF at that time.
    Comment 10: The Hawaii Longline Association (HLA) believes that the 
abundance estimate for the false killer whale (pelagic stock) is not 
scientifically sound and, because the survey data used for that 
abundance estimate was collected in 2002, that NMFS is using data it 
knows to be stale to make LOF determinations for the 2012 LOF (as 
defined by NMFS guidelines). The HLA views these errors to be 
particularly acute because NMFS completed a new marine mammal survey in 
the Hawaiian EEZ in 2010; however, this current, available data are not 
the data upon which the proposed 2012 LOF is based. Therefore, the HLA 
asserts that if the 2012 LOF is issued as proposed (i.e., not based on 
the 2010 data), it would violate the MMPA's ``best available science'' 
mandate.
    Response: NMFS used the best available science in preparing the 
2012 LOF. Proposed changes to the 2012 LOF were developed in spring and 
summer 2011, and were largely based on the draft and final 2010 SARs, 
which were the most recent SARs available. NMFS conducted a new 
cetacean assessment survey in the U.S. EEZ around the Hawaiian Islands 
(HICEAS II) in August-December 2010, with the goal of updating 
abundance estimates for all Hawaiian cetaceans. The survey data are 
currently being analyzed, and abundance estimates and PBR calculations 
based on the data are not yet available. Preliminary estimates of 
abundance based on the visual sightings data will be included in the 
draft 2012 SAR, which is expected to be published and available for 
public review and comment in spring 2013. The acoustic and other data 
collected during the survey will take longer to analyze, and abundance 
estimates will likely be revised in future SARs to incorporate the new 
analysis. The currently available data and estimates still constitute 
the best available information within existing NMFS parameters and 
therefore are appropriately included in the final 2010 SARs, draft 2011 
SARs, and the 2012 LOF.
    Comment 11: The Western Pacific Fishery Management Council 
(Council) and the HLA both recommend that the ``HI shallow-set 
(swordfish target) longline/set line'' fishery be classified as a 
Category III. The Council and the HLA note that this fishery is 
classified as Category II based on one serious injury of a bottlenose 
dolphin (HI stock) within the HI EEZ. The commenters note that the only 
other fishery to have incidental serious injury or mortality of this 
stock is the ``HI deep-set (tuna target) longline/set line'' fishery, 
and the combined serious injury and mortality rate for these two 
fisheries is less than 10 percent of PBR. The Council and HLA further 
note that the analysis for fishery classification places all fisheries 
interacting with a stock in Category III if the total interaction rate 
is equal to or less than 10 percent of the PBR unless a fishery 
qualifies for another Category for a different stock; however, no other 
marine mammal stock qualifies the HI shallow-set fishery for Category I 
or II.
    Response: NMFS concurs that, based on the marine mammal 
interactions within the U.S. EEZ reported in the final 2010 SAR, the 
shallow-set longline fishery would meet the definition of a Category 
III fishery. There are no marine mammal stocks within the EEZ that have 
mortality and serious injury that exceed 10 percent of PBR across all 
fisheries and that individually exceed 1 percent of PBR in the shallow-
set fishery. However, there are documented injuries and mortalities of 
numerous species and stocks of marine mammals by the shallow-set 
longline fishery on the high seas, which are listed in Table 3 for the 
high seas component of the shallow-set longline fishery (``Western 
Pacific Pelagic (HI Shallow-set component)''). Because there currently 
are no abundance estimates or PBRs available for most of these marine 
mammal stocks on the high seas, quantitative comparison of mortality 
and serious injury against PBR is currently not possible.
    MMPA regulations (50 CFR 229.2) provide that 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 
``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. HI-based shallow-set fishing vessels operating within 
the U.S. EEZ and on the high seas employ the same vessels, the same 
fishing methods and gear, target the same fish stocks, and employ the 
same marine mammal mitigation and deterrence measures. A review of NMFS 
observer data indicates that approximately 7 percent of shallow-set 
trips from 2004-2008 had marine mammal interactions, including 
interactions with Bryde's whale, Risso's dolphin, humpback whale, 
striped dolphin, bottlenose dolphin, and Kogia sp. whale (pygmy or 
dwarf sperm whale). The number and rate of marine mammal interactions 
increased each year in that 5-year timeframe. Of the 22 total marine 
mammal interactions observed on 325 shallow-set trips from 2004-2008, 
19 were taken on the high seas. Seventeen of the total 22 observed 
interactions resulted in mortality or serious injury, 16 of which 
occurred on the high seas (Forney, 2010; NMFS Pacific Islands Regional 
Observer Program, 2004-2008). Although NMFS is currently unable to 
quantitatively establish the impact of these interactions on high seas 
marine mammal stocks because of the lack of population information, 
these interactions do provide qualitative evidence that the shallow-set 
fishery continues to have ``occasional'' interactions with marine 
mammals and should remain a Category II commercial fishery.
    As noted in the preamble of the proposed 2012 LOF and the response 
to a comment in the final 2010 LOF (74 FR 58859, November 16, 2009; 
comment/response 17) regarding high seas fisheries classification, the 
high seas portion of the shallow-set longline fishery is an extension 
of the fishery operating within U.S. waters, and is not a separate 
fishery. A fishery is classified on the LOF as its highest level of 
classification (e.g., a fishery qualifying for Category II for one 
marine mammal stock and Category III for another marine mammal stock 
will be listed as Category II). Because the ``Western Pacific Pelagic 
(HI Shallow-set component)'' and ``HI shallow-set (swordfish target) 
longline/set line'' are two components of the same fishery, both 
components are classified as Category II.
    The Category II classification is further supported by data in the 
draft 2011 SAR, which was not available when the proposed 2012 LOF was 
drafted. The draft 2011 SAR reports an observed serious injury to a 
false killer whale in the shallow-set fishery within the U.S. EEZ in 
2009. Based on one observed non-serious injury in 2008 and one observed 
serious injury in 2009, the shallow-set fishery has an average annual 
mortality and serious injury rate of 0.2 HI pelagic false killer whales 
per year within the EEZ. This represents approximately 8 percent of the 
stock's PBR level, which also qualifies it as a Category II fishery.
    Comment 12: The HLA disagrees with the addition of the insular 
stock of false killer whales to the list of stocks incidentally injured 
or killed in the ``HI deep-set (tuna target) longline/set line'' 
fishery because the inclusion is based

[[Page 73919]]

on NMFS' proration of an isolated non-serious interaction between this 
fishery's insular stock and pelagic stock interaction rate, which is 
not based on the best available science. The HLA asserts that this 
fishery has never been observed to interact with the insular stock and 
that the interaction in question occurred in an area where no member of 
the insular stock has ever been observed in or near, and that NMFS has 
no genetic evidence showing that the deep-set fishery has ever 
interacted with a member of the insular stock. The HLA also disagrees 
with NMFS' extension of the 140 km insular stock ``range'' uniformly 
around the MHI based on a single tagged animal over 100 km to the south 
of the MHI.
    Response: NMFS determines which species or stocks are included as 
incidentally killed or injured in a fishery by annually reviewing the 
information presented in the current SARs, among other relevant 
sources. The SARs are based on the best available scientific 
information and provide the most current and inclusive information on 
each stock, including range, abundance, PBR level, and level of 
interaction with commercial fishing operations. The LOF does not 
analyze or evaluate the SARs. The commenter questions the validity of 
the data and calculations contained within the SAR for false killer 
whales; and, thus, NMFS encourages the commenter to submit this comment 
during the public comment period for the draft SAR.
    The draft 2011 SAR for false killer whales indicates an average of 
0.6 mortalities or serious injuries of HI insular false killer whales 
per year incidental to the HI-based deep-set longline fishery. One non-
serious injury to a false killer whale was observed within the overlap 
zone between the HI insular and HI pelagic stocks of false killer 
whales. In the SAR, all estimated takes, and observed takes for which 
an injury severity determination could not be made, were prorated based 
on the proportions of observed interactions that resulted in death or 
serious injury, or non-serious injury between 2000-2009. Further, takes 
of false killer whales of unknown stock origin within the insular/
pelagic stock overlap zone were prorated assuming that the density of 
the insular stock declines and the density of the pelagic stock 
increases with increasing distance from shore. No genetic samples are 
available to establish stock identity for these takes, but both stocks 
are considered at risk of interacting with longline gear within this 
region.
    Additionally, the draft 2011 SAR reports that from 2005-2009, eight 
unidentified cetaceans, known to be either false killer whales or 
short-finned pilot whales (together termed ``blackfish'') were 
seriously injured in the deep-set longline fishery within U.S. EEZ 
waters, two of which were taken within the insular stock range. The 
draft 2011 SAR prorates blackfish to each species and stock based on 
their distance from shore (see McCracken, 2010 for details on the 
distance-from-shore model).
    For these reasons, NMFS is not changing its proposal to add the HI 
insular stock of false killer whales on the list of marine mammal 
stocks incidentally killed or injured in the HI deep-set longline 
fishery. For a more complete analysis of the methodology for 
determining mortality and serious injury of insular and pelagic false 
killer whales, the commenter is referred to the draft 2011 SAR.
    Comment 13: The CBD recommends NMFS classify ``American Samoa 
longline'' fishery as Category I based on analogy to the ``HI deep-set 
(tuna target) longline/set line'' fishery, interactions with false 
killer whales, and interactions with rough-toothed dolphins, citing 
three arguments. First, CBD notes that NMFS has proposed to require 
longline hooks in this fishery are set at depths of 100 meters or 
deeper to reduce interactions with Pacific green sea turtles (76 FR 
32929, June 7, 2011), which will make the gear and methods like the 
Category I Hawaii deep-set longline fishery. Second, CBD asserts that 
even though abundance estimates are unavailable for the American Samoa 
false killer whale stocks, the human-caused mortality falls within the 
range of likely PBRs for both of these marine mammal stocks and the 
2010 SAR concludes that the false killer whales in American Samoa would 
probably be strategic if abundance estimates were available. Lastly, 
CBD notes that this fishery also interacts with the American Samoa 
stock of rough-toothed dolphins, for which the 2010 SAR indicates the 
estimated rate of fisheries-related mortality or serious injury (3.6 
dolphins per year) is within the range of likely PBRs (3.4-22).
    Response: Abundance estimates for the American Samoa stocks of 
false killer whales and rough-toothed dolphins are unknown, and PBRs 
cannot be calculated. The final 2010 SARs present a plausible range of 
abundance estimates for each stock based on density estimates of the 
species in other areas of the Pacific, and calculate a range of likely 
PBRs using those ranges of abundance. The SARs further note that 
estimated mortality and serious injury of false killer whales exceeds 
the range of the stock's likely PBRs, and mortality and serious injury 
of rough-toothed dolphin falls within the range of the stock's likely 
PBRs. These estimates provide an indication that cetacean bycatch in 
the fishery is not insignificant. However, without an actual 
calculation of PBR, NMFS cannot accurately evaluate the effect of 
mortality and serious injury on the stocks to determine whether the 
fishery meets the definition of a Category I fishery. Under NMFS 
regulations, a Category I is one that cause frequent mortality or 
serious injury of marine mammals, which is defined as ``one that is by 
itself responsible for the annual removal of 50 percent or more of any 
stock's potential biological removal level'' (50 CFR 229.2). Only in 
the absence of reliable information indicating the frequency of 
incidental mortality and serious injury of marine mammals does NMFS 
consider other factors that may be used to classify the fishery as 
either Category II or III, including evaluation of 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 (50 CFR 229.2). Until quantitative information is 
available to allow a calculation of PBR, NMFS will retain the American 
Samoa longline fishery as Category II, by analogy to other longline 
fisheries.
    Comment 14: The CBD recommended NMFS classify the ``HI vertical 
longline'' and ``HI kaka line'' fisheries as Category I based on 
serious injury and mortality of false killer whales (HI insular stock), 
which is proposed to be listed as endangered under the ESA (75 FR 
70169, November 17, 2010). The CBD notes that the ESA scientific 
Biological Review Team (BRT) for this stock found a high level of 
current and future risk from interactions with troll, handline, 
shortline, and kaka line fisheries (Id. at 70180), and the BRT stated 
that although ``each of these fisheries is required by law under the 
MMPA to report interactions with marine mammals, the low number of 
reports strongly suggests that interactions are occurring and are not 
being reported'' (Id. at 70179). Lastly, the CBD asserts that a high 
level of anecdotal evidence, including fishermen that have reported 
shooting at false killer whales and a high rate of dorsal fin 
disfigurements consistent with injuries from unidentified fishing line, 
and the fact that the State of HI does not monitor

[[Page 73920]]

bycatch of marine mammals in any of its state fisheries, also suggest 
that the fisheries are having a greater impact than is reported. 
Therefore, the CBD asserts that the scientific information and opinion 
show that fisheries interactions present a high risk of extinction to 
the insular false killer whale, compelling NMFS to list these fisheries 
as Category I, especially in light of what appears to be deliberate 
efforts to obscure fishery mortality in order to prevent further 
protection for an endangered marine mammal.
    Response: At this time, there is no quantitative information to 
support a Category I classification for either of these fisheries. As 
stated in the response to comment 13, a Category I fishery is one that 
NMFS determines has frequent incidental mortality and serious injury of 
marine mammals, defined as one that is, by itself, responsible for the 
annual removal of 50 percent or more of any stock's PBR level (50 CFR 
229.2). NMFS considers other factors when determining whether a fishery 
meets the definition of a Category II or III fishery, including 
evaluation of 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 (50 CFR 229.2). Currently, NMFS does not 
have reliable information that either of these fisheries causes 
frequent incidental mortality and serious injury of marine mammals, 
such that would support classification of a Category I fishery, as that 
term is defined. Based on the currently available information, NMFS 
continues to believe that these two fisheries present a remote 
likelihood of interactions with marine mammals. NMFS is retaining these 
fisheries on the LOF as Category III fisheries but will consider any 
information that supports a reevaluation of the fisheries' 
classification in the future.
    Comment 15: The CBD comments that the various fisheries that are 
known or suspected of interacting with Hawaiian monk seals should be 
classified as Category I because, given the critically endangered 
status of the monk seal, any interaction is significant. The CBD notes 
that fishery interactions are becoming more common (Baker et al., 
2011), yet all Hawaiian fisheries known or suspected of interactions 
with monk seals, such as the Hawaii lobster trap and the Hawaii tuna 
handline, are listed as Category III. Further, the CBD asserts that, 
while a PBR is not calculated for this stock (final 2010 SAR), any 
mortality from fisheries would qualify the fishery for Category I if a 
PBR was calculated.
    Response: 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) deep sea 
bottomfish handline'' fisheries. In the 2009 LOF, NMFS removed the 
Hawaiian monk seal from the list of species/stocks killed/injured in 
the ``HI tuna handline fishery,'' under which the stock had been listed 
since the 1996 LOF, because NMFS has never received a report of 
interactions between monk seals and tuna handline gear. The available 
information on Hawaiian monk seal interactions with the other two 
fisheries is:
    (1) ``HI lobster trap'' fishery: There have not been any reported 
interactions since the mid-1980s, when one seal died in a trap; and
    (2) ``HI Main Hawaiian Islands deep sea bottomfish handline 
fishery:'' A Federal observer program of the Northwestern Hawaiian 
Islands (NWHI) bottomfish handline fishery was conducted from the 
fourth quarter of 2003 through 2005, and no monk seal interactions were 
observed. The fishery has since been phased out as required under the 
Proclamation establishing the Papahanaumokuakea Marine National 
Monument. While fishing in the NWHI has been phased out, in previous 
years when commercial bottomfish boats were fishing in this area, NMFS 
received one self-reported incident (a hooking in 1994), and bottomfish 
hooks were observed in two seals at the French Frigate Shoals (one in 
1982 and one in 1993). NMFS also had reports from the mid-1990s of 
seals stealing catch, seals being fed bait or non-target species by 
fishermen to discourage seals from taking catch, and some seals 
becoming hooked and cut free. The final 2010 SAR notes that no 
mortality or serious injuries have been attributed to the MHI deep sea 
bottomfish handline fishery.
    While there have been no observed or reported interactions between 
monk seals and the ``HI lobster trap'' and ``HI Main Hawaiian Islands 
deep sea bottomfish handline'' fisheries 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 MHIs are hooked 
and entangled but at a rate that has not been reliably assessed (final 
2010 SAR). NMFS cannot confirm whether seals have been hooked on 
commercial or recreational gear, or a combination of both. However, 
NMFS consultations completed under the ESA section 7 found the MHI 
federal bottomfish fishery and the MHI federal lobster trap fishery 
were not likely to adversely affect Hawaiian monk seals (NMFS 2008a, 
2008b). Finally, the PBR level for monk seals is currently 
``undetermined,'' and NMFS is unable to make a quantitative evaluation 
of incidental mortality and serious injury compared to PBR. Due to the 
fact that the PBR level for monk seals is undetermined and the hooking 
and entanglement rate with commercial gear cannot be reliably assessed, 
NMFS will retain the ``HI lobster trap'' and ``HI Main Hawaiian Islands 
deep sea bottomfish handline'' fisheries as Category III fisheries on 
the LOF until more information becomes available to determine whether 
reclassification is warranted.

Comments on the Hawaii Troll and Charter Vessel Fisheries

    NMFS received 10 comment letters addressing the proposed 
reclassification of the Hawaii trolling and charter vessel fisheries, 
four of which supported the proposal and six of which did not support 
the proposal. Generally, the comments focused on the following issues: 
(1) Concern regarding the use and quality of anecdotal reports of 
marine mammal interactions in the fisheries; (2) NMFS' use of 
quantitative versus qualitative information; (3) NMFS' estimation of 
commercial fishing effort ``fishing on'' dolphins; (4) the frequency of 
marine mammal interactions in the fisheries; (5) the severity of 
injuries sustained by marine mammals; (6) the PBR level for Pantropical 
spotted dolphins; (7) bait depredation by other dolphin species in 
these fisheries; (8) support for better understanding fishery 
interactions in HI and prioritization of a fishery observer program to 
better inform management; (9) the burden to the State of HI for mailing 
marine mammal Authorization Certificates to Category II fishery 
participants; and (10) the potential for the fisheries' elevation to 
lead to increased illegal fishing. Below, NMFS summarizes each comment 
received on the 2012 proposed LOF related to the HI troll and charter 
vessel fisheries and issues one response following the collective 
comments.
    Comment 16: Three individual commenters, the Council, and the State 
of HI assert that NMFS should not use anecdotal reports of hookings as 
evidence or support for management decisions, given their lack of 
verification and details, nor should they be used to extrapolate 
mortality and serious injury to the entire fleet. An individual 
commenter notes that the use of such anecdotal reports does not

[[Page 73921]]

constitute objective and thorough science, and the Council suggests 
that NMFS develop a standard in using anecdotal reports in rulemaking 
to require verification and ensure decisions are based on the best 
available science. Further, the author of the newspaper article NMFS 
considered (Rizutto, 2007) commented that NMFS should not rely on his 
newspaper article for purposes of elevating the fisheries, that the 
instance described in the article was based on a third-hand account, 
and that he reported on this one instance because he believed it to be 
a rare event.
    Comment 17: Four commenters address NMFS' use of quantitative 
versus qualitative data in drawing conclusions regarding the frequency 
of fishery interactions with spotted dolphins. The Council states that 
NMFS did not provide an upper limit of estimated mortality and serious 
injury, so there was not sufficient information to establish that 
collective fishery impacts exceeds 10 percent of PBR (Tier 1 analysis). 
Three commenters note the lack of quantitative data on the frequency of 
marine mammal interactions in the fisheries, and pointed to MMPA 
implementing regulations that instruct NMFS to evaluate other factors 
to determine the level of interactions when quantitative information is 
not available. The NRDC notes that the regulations also allow NMFS to 
consider other evidence at its own discretion. These three commenters 
concluded that the available qualitative data indicate a strong 
likelihood of occasional interactions, and the Commission stated that, 
until quantitative data are available on marine mammal takes from 
observer or other programs, the fisheries should be Category II.
    Comment 18: Six commenters provide information on patterns of 
fishing effort in these fisheries. The Council, the State of HI, and 
two individual commenters suggest that NMFS overestimated the level of 
commercial fishing effort ``fishing on'' dolphins; i.e., where vessels 
congregate on and deploy lines in close proximity to dolphins. The 
Council and two individual commenters assert that the majority of 
participants in these fisheries do not target tunas associated with, or 
fish within spotted dolphin pods, and an individual commenter noted 
that those who do, fish ``in front of'' not ``on'' dolphins, and that 
fishing around dolphins is only known to occur in two locations off the 
Big Island and Oahu. The State of HI noted that many commercial vessels 
fish part-time, and much of the effort is seasonal when there is a run 
of tuna. The State of HI also commented that many of those vessels 
observed trolling around dolphins may be non-commercial. The Council 
expresses concern that NMFS' account of Dr. Robin Baird's sightings 
rate of vessels ``fishing on'' spotted dolphins is skewed to produce a 
high result.
    Dr. Baird asserts that his estimate of the percentage of spotted 
dolphin groups that had fishing vessels present is negatively biased 
(i.e., is likely more than the percentage NMFS cites in proposed rule). 
He states that beginning in 2008, his research group began avoiding 
clusters of fishing vessels in their surveys to reduce the likelihood 
of encountering spotted dolphin groups at rates higher than would be 
expected given their presence in the area. As such, he states that in 
the last three years, he has been more likely to encounter groups that 
do not have fishing vessels present. Dr. Baird commented that 
observations of troll fishing vessels included up to eight vessels 
actively targeting dolphin pods, with multiples lines trailing hooks 
being trolled through the dolphins repeatedly. The Natural Resources 
Defense Council (NRDC) notes that this often occurred for several 
hours, at speeds up to 10 knots. The NRDC states that the degree of 
targeted fishing effort alone suggests the likelihood of incidental 
mortality or serious injury is not ``remote.''
    Comment 19: The Council, the State of HI, the NRDC, and two 
individual commenters address the frequency of incidental interactions 
with Pantropical spotted dolphins in the HI troll and charter vessel 
fisheries. The Council, the State of HI and two individuals suggest 
that fishery interactions with Pantropical spotted dolphins are a rare 
event, the frequency is lower than NMFS estimated, and these fishery 
interactions are therefore not a conservation concern. One individual 
commenter cites experience fishing with these methods and never having 
hooked a dolphin, that they are not drawn to the lures or bait, and 
having only heard of one hooked dolphin that was hooked in the tail and 
released alive. The State of HI provides license and trip report data 
that indicate infrequent (0.25 percent of trips annually) reporting of 
catch lost to dolphin predation, and suggested the frequency at which 
dolphins are seriously injured fall below these percentages. The State 
of HI also states that NMFS applied assumptions that likely resulted in 
an overestimate of projected take levels.
    The NRDC and an individual commenter suggest that interactions or 
the risk of interactions are likely higher than NMFS estimated, or at 
least do not qualify as ``remote.'' Dr. Baird describes his 
conversations with four HI fishermen, two of whom reported they had 
hooked spotted dolphins, and noted that spotted dolphins feed on flying 
fish near the surface during the day, increasing the potential for 
interactions with fishers. Finally, the NRDC states that the degree of 
targeted fishing effort alone suggests that the likelihood of 
incidental mortality and serious injury is not ``remote,'' which is 
required for a Category III fishery.
    Comment 20: The Council and one individual commenter disagree with 
NMFS' determination that dolphins interacting with the troll and 
charter fisheries likely suffer serious injuries. One individual 
commenter notes that the reported dolphin was hooked in the mouth, was 
treated gently and cut loose without suffering the stress of being 
brought close to the boat. The Council asserts that NMFS ignored 
anecdotal information about dolphins surviving and recovering from 
these interactions, and that not all hookings result in the removal of 
the animal from the population. The Council also notes that the 
dolphins' injuries described in the proposed rule cannot be attributed 
to fishing vessels, and scarring shows that animals can survive and 
recover from such incidents.
    Comment 21: The NRDC, the HSUS, and two individual commenters 
address the Pantropical spotted dolphin's PBR level. One individual 
commenter states that the PBR for the affected Pantropical spotted 
dolphin stock is underestimated. One individual commenter asserts that 
the abundance survey, the basis for the abundance estimate, was not 
designed to assess the dolphin population being impacted, evidenced by 
the low number of spotted dolphin sightings and the high CV. However, 
Dr. Baird says that the CV for the abundance estimate (upon which PBR 
is based) is the fifth lowest of all 18 species for which abundance was 
estimated from the 2002 survey, reflecting low density in Hawaiian 
waters. Dr. Baird, the NRDC, and the HSUS state that NMFS' SAR 
indicates the stock may be split into multiple island-associated stocks 
in the future pursuant to new genetic studies, so PBR, especially for 
the population around the Big Island where the largest share of charter 
fishing occurs, is likely to be smaller than the current PBR for the 
single defined stock.
    Comment 22: The Council comments that NMFS ignored the information 
in a newspaper article (Rizzuto, 2007) regarding other dolphin species 
(rough-toothed and bottlenose) depredating on bait in these fisheries. 
The Council claims that NMFS has made selective

[[Page 73922]]

and arbitrary use of anecdotal information.
    Comment 23: The HSUS comments that they were pleased to see a 
proposal for better understanding fishery interactions in Hawaii where 
marine mammal stock structure, abundance, and fishery interactions have 
long been ignored or accorded a lower priority than appropriate, and 
notes that the reclassification allows for a targeted observer program, 
which will provide data to better inform management.
    Comment 24: The State of HI is concerned that since NMFS does not 
possess a database of commercial fishermen in HI, the proposed 
elevation of the ``HI charter vessel'' and ``HI trolling, rod and 
reel'' fisheries would place a significant administrative burden on the 
State for mailings of the MMAP authorization certificate to the more 
than 2,000 state-registered fishers. Further, the State of HI notes 
that it continually receives new applications for licenses during the 
year; however, NMFS only issues MMAP certificates at the beginning of 
the calendar year.
    Comment 25: The State of HI states that NMFS must consider the 
potential for fishermen who are now licensed in the ``HI charter 
vessel'' and ``HI trolling, rod and reel'' fisheries to refuse to renew 
their Commercial Marine Licenses because of the requirements associated 
with participating in a Category II fishery, and if they continue to 
fish, may market their catch illegally. The State of HI asserts that 
this would reduce reportings to the State's licensing and reporting 
system, which NMFS relies on to manage fisheries.
    Comment 26: The Council is concerned that NMFS apparently applies 
an arbitrary standard in determining fishery classifications and 
requests NMFS standardize any inconsistent analysis and determinations 
across regions. The Council observes that the proposed 2012 LOF 
includes seven Category III troll fisheries in the Pacific and several 
other Category III fisheries in the Atlantic that presumably include 
troll fisheries; however, the only proposed elevation to Category II is 
for the HI troll fishery. The Council argues that if gear type, fishing 
techniques, and anecdotal reports are sufficient to elevate one fishery 
to Category II, then all other troll fisheries in the Pacific and 
Atlantic, by the method of analogy, should also be analyzed for similar 
elevation. Further, the Council argues that where data and anecdotal 
reports of interactions (e.g., depredation) are available for other 
fisheries, those fisheries should also be evaluated to determine 
whether they meet the criteria for Category II.
    Response: NMFS proposed to elevate the ``HI trolling, rod and 
reel'' and ``HI charter vessel'' fisheries based on a suite of 
information, including NMFS reports, Western Pacific Regional Fishery 
Management Council reports, input from staff in the Pacific Islands 
Regional Office's Sustainable Fisheries Division, reports to the 
Pacific SRG, the SARs, consideration of the fishing gear and techniques 
of the fishery and the documented risk that they present to marine 
mammals, anecdotal reports from researchers, including researcher 
observations and researcher's discussions with fishermen, and 
information from a newspaper article (Rizzuto, 2007) (see 76 FR at 
37720-37721, June 28, 2011). NMFS clarifies that the Agency does not 
rely exclusively on anecdotal reports of marine mammal interactions to 
support reclassifications of fisheries, but rather considers anecdotal 
information when it has been sufficiently corroborated by other sources 
of information.
    As a result of the proposal to elevate the ``HI trolling, rod and 
reel'' and ``HI charter vessel'' fisheries from Category III to 
Category II, NMFS received an abundance of information from the public. 
This information, which is summarized in the comments 16-26 above, 
provides NMFS with new information the Agency had not been aware of or 
considered when proposing to elevate these fisheries to Category II. In 
support of the proposed elevation, NMFS received evidence that may 
further corroborate the anecdotal reports of hookings reported by 
fishermen to researchers (comment 19), including direct observations 
and a videotape of troll and charter vessel operations in close 
proximity to spotted dolphins (information provided after the comment 
period had closed). At the same time, NMFS received multiple comments 
suggesting that elevation may not be warranted. First, multiple 
commenters provided information to suggest NMFS may have overestimated 
the distribution and level of commercial fishing effort ``fishing on'' 
dolphins (comment 16). Second, the State of HI provided license and 
trip report data that indicate infrequent reporting of catch lost to 
dolphin predation, which suggests the frequency at which dolphins are 
seriously injured may fall below the projected take estimates provided 
by NMFS in the proposed rule (comment 18). Third, the author of the 
newspaper article NMFS considered (Rizutto, 2007) commented that NMFS 
should not rely on his newspaper article for purposes of elevating the 
fisheries, that the instance described in the article was based on a 
third-hand account, and that he reported on this one instance because 
he believed it to be a rare event (comment 16).
    Based on the information described in comments 16-26 and summarized 
in the previous paragraph, it is apparent that certain pieces of the 
new information seem to indicate a Category II classification is not 
warranted, while other pieces of new information seem to indicate a 
Category II classification is warranted. Therefore, NMFS needs 
additional time to consider and investigate the information provided by 
the public commenters to better understand the nature and level of 
interactions between these fisheries and Pantropical spotted dolphins. 
For this reason, NMFS is not elevating the ``HI trolling, rod and 
reel'' and ``HI charter vessel'' fisheries to Category II or adding 
Pantropical spotted dolphins to the list of species or stocks killed or 
injuries in these fisheries in this final rule. Instead, over the next 
year NMFS will continue to review the information received from the 
public, along with the information on which the initial proposed 
fishery elevations were based (see 76 FR at37720-37721, June 28, 2011), 
and will propose to elevate the ``HI trolling, rod and reel'' and ``HI 
charter vessel'' fisheries to Category II on the 2013 LOF, if 
warranted.

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

    Comment 27: The Garden State Seafood Association submitted four 
questions regarding the spatial boundary NMFS uses to separate 
fisheries in the northeast from the mid-Atlantic, including: (1) What 
is the Agency's justification for the spatial boundary of 70[deg] west 
long. separating the northeast and mid-Atlantic?; (2) What purpose does 
the clarification of the boundary serve?; (3) How does the spatial 
boundary impact the bycatch analysis and the estimates?; (4) If bycatch 
incidents are attributed to a directed fishery, what is the purpose of 
the spatial boundary?
    Response: NMFS' justification originates from the review of the 
northeast Fishing Vessel Trip Report (VTR) data, as stated in the 
language for the proposed change. Spatial data from fishing effort 
reported on VTR's were used in conjunction with our current state of 
knowledge regarding ecosystem, habitat, spatial, and temporal 
characteristics associated with marine mammal stock distributions. This 
information in aggregate was used to define the Northeast and Mid-
Atlantic regions for the purpose of estimating

[[Page 73923]]

bycatch of marine mammals in trawl gear. The clarification was made to 
provide more detail on the spatial boundary and report to the public 
that it is consistent with how scientists at the NEFSC define the 
fishery. The clarification of the spatial boundary will have no impact 
on the bycatch analyses as the NEFSC has been using the reported 
spatial boundary since 2006 when the Atlantic Trawl Gear Take Reduction 
Team was first convened. Bycatch incidents of marine mammals are not 
attributed to a directed fishery. Marine mammal bycatch rates are 
estimated by gear type operating within the defined spatial strata. The 
Northeast and Mid-Atlantic regions essentially perform as spatial 
strata that can be further stratified by temporal and/or environmental 
parameters that show strong correlation with bycatch events (Rossman, 
2010).
    Comment 28: In addition to providing the estimated number of 
vessels in a particular fishery in the annual LOF, which NMFS 
acknowledges is ``inflated,'' the Garden State Seafood Association asks 
why NMFS does not also provide the number of vessels reporting landings 
in a particular fishery per year, because it would be informative for 
the public to see the difference?
    Response: After investigating the use of landings data as an 
indicator of active fishery participants, NMFS has determined that 
landings databases that include state fisheries do not always record 
unique values or permit information that would result in 
differentiating one fishery participant from another. This may have a 
significant impact on estimating the number of active vessels or permit 
holders, though it is not clear whether or not these numbers would 
represent inflations or deflations of actual effort. While the numbers 
provided in Table 2 may be inflated compared to actual effort, they do 
represent potential effort. NMFS feels this use is appropriate for the 
purposes of the List of Fisheries given that this information is used 
solely for descriptive purposes and not used in determining current or 
future management of fisheries, observer coverage designations, or 
bycatch rates.
    Comment 29: The Commission recommends that NMFS work on its own and 
in collaboration with states to develop new, consistent methods for 
estimating fishing effort for several Southeast Atlantic, Mid-Atlantic, 
and New England fisheries because fisheries managers should have clear 
measures of effort for the fisheries they manage. The Commission 
understands, based on NMFS' responses to previous recommendations on 
this issue, that the newly proposed numbers of estimated vessels/
participants in these fisheries are intended to reflect potential 
effort (given that not all permitted fishermen fish), and that ``a 
clear measure of effort for all state fisheries in the Northeast and 
Mid-Atlantic has not been determined due to the manner in which many 
state permits allow for the use of multiple gear types'' (75 FR 68478, 
June 28, 2011). However, although NMFS has tried to reassure the 
Commission that these great fluctuations in vessel/person numbers have 
no management or observer implications, the Commission remains 
concerned about the uncertainty conveyed by these numbers.
    Response: As stated in the Final 2011 LOF, Table 2 represents a 
description of each fishery including the estimated number of persons/
vessels active in the fishery. Currently, a clear measure of effort for 
all state fisheries has not been determined due to the way many state 
permits allow for the use of multiple gear types. Therefore, NMFS has 
determined that this portion of the table will be representative of 
current permit holders, state and federal, that have the potential to 
participate in a particular fishery. As stated in the proposed LOF, 
NMFS recognizes there may be disparity between permit holders listed 
and actual fishery effort; however, the numbers provided in the LOF are 
solely used for descriptive purposes and will not be used in 
determining future management of fisheries, observer coverage 
designations, or bycatch rates. Further, NMFS has communicated with the 
states regarding the need for consistent fishing effort data collection 
methods across states to better assess fisheries' effects on marine 
mammal stocks that have interstate distributions. NMFS will continue to 
communicate this need through TRT processes, LOF yearly inquiries, and 
the MMAP's integrated registration process.
    Comment 30: The Commission concurs with NMFS' proposal to add 
Risso's dolphin (WNA stock) to the list of species or stocks 
incidentally killed or seriously injured in the Category II ``Mid-
Atlantic bottom trawl'' fishery based on 15 Risso's dolphins observed 
killed in this fishery in 2010. The Commission states that this level 
of take is noteworthy, because although fishery-related mortality for 
this stock between 2004 and 2008 averaged 20 deaths or serious injuries 
in all fisheries per year, no deaths in this specific fishery were 
reported during that 5-year period. Therefore, the Commission also 
recommends NMFS further investigate any factors that may account for 
the notable recent increase in takes of Risso's dolphins in this 
fishery.
    Response: NMFS agrees with the Commission's comment. There could be 
several factors related to the increase in observed bycatch of Risso's 
dolphins in the Mid-Atlantic region bottom trawl fishery. It is unclear 
whether an increase in observer coverage may have contributed to number 
of takes observed in 2010. The NEFSC intends to evaluate the Risso's 
dolphin bycatch events from 2010 and will reports its findings in the 
2012 SAR.
    Comment 31: The CBD applauds NMFS' proposal 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 
despite the 2010 SAR's failure to include any mortality after 2008 to 
Risso's dolphins; however, the CBD asserts that this fishery should be 
classified as Category I. The CBD notes that the fifteen dolphins 
killed in 2010 were those observed and the actual mortality should be 
estimated at several times that based on levels of observer coverage 
ranging from 0 to 13.3 percent. Therefore, CBD asserts that it is very 
likely that this multiplier causes mortality in this fishery to 
represent more than 50 percent of the stock's PBR of 124 (i.e., if 
observer coverage were 10 percent, observed mortality should be 
multiplied by ten and actual mortality estimated at 150 dolphins, 
exceeding the PBR).
    Response: For the 2012 LOF, a reclassification of the ``Mid-
Atlantic bottom trawl'' fishery to a Category I is not warranted. 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 current timing of the 
LOF publication and availability of both fishery dependent and 
independent data (both needed to estimate total mortality) to 
scientists are not in sync making it difficult to fully evaluate total 
bycatch mortality of a given stock for annual updates to the LOF. Using 
the count of takes seen by fisheries observers is an approach that is 
historically consistent with documenting relative levels of 
interactions with commercial fisheries for the LOF. Total bycatch 
mortality for Risso's dolphins due to commercial fishery interactions 
is scheduled to be evaluated and reported in the 2012 SAR. NMFS will 
revisit the classification of the ``Mid-Atlantic bottom trawl'' fishery 
once the 2012 SAR is published.

[[Page 73924]]

    Additionally, percent observer coverage is not an appropriate 
metric to use as a multiplier for evaluating the risk a particular 
fishery poses to a marine mammal stock. It is also not appropriate to 
arbitrarily select 10 percent coverage from values ranging from 0 to 
13.3 percent. Observer coverage has been increasing in small increments 
in specific target fisheries within the ``Mid-Atlantic bottom trawl'' 
fishery in recent years. What is presently known is that all the 
reports of observed bycatch of Risso's dolphins in 2010 originated from 
the Mid-Atlantic region where observer coverage has averaged only three 
percent during the last 5 years (2005-2009; draft 2011 SAR).
    Comment 32: The USFWS provides NMFS with a report and photos from 
the Puerto Rico Department of Natural and Environmental Resources 
briefly describing the capture of a manatee by seine gear in July 2009.
    Response: NMFS thanks USFWS for the report regarding the manatee 
take. Based on Puerto Rico (PR) Fishing Regulations 6768 of February 
11, 2004 Article 15, use of beach seines in Puerto Rican waters was 
prohibited at the time of the take. Because this take was illegal and 
the specifics of are unknown (e.g., gear design, soak time, location 
specifics, etc.), NMFS is not including manatees on the list of species 
or stocks killed or injured by the Caribbean haul/beach seine fishery 
on the LOF, and the fishery will remain classified as Category III. 
However, NMFS recommends that the USFWS add this take to the SAR for 
the Antillean manatee. Furthermore, the PR Fishing Regulations 7949 of 
November 29, 2010, now allows the use of beach seines. NMFS will work 
with USFWS to ensure any future takes that occur in this fishery are 
considered in the future LOFs and SAR.
    Comment 33: The Commission concurs with NMFS' proposal to list 
bottlenose dolphins (Northern NC estuarine system stock) as a stock 
subject to incidental killing or serious injury in the ``VA pound net'' 
fishery. The Commission further recommends that NMFS work with the 
State of VA to develop a formal, scientifically sound system for 
observing or otherwise monitoring marine mammal interactions in this 
fishery.
    Response: NMFS agrees that developing and implementing a formal 
observer program for the VA pound net fishery is important, and NMFS is 
exploring mechanisms to accomplish this with the State of VA. 
Meanwhile, NMFS monitors marine mammal interactions with this fishery 
in two ways: (1) Monitoring through the NMFS Northeast Fishery Science 
Center and (2) evaluating stranding data collected by the Stranding 
Network since the late 1990s.
    Comment 34: The Commission concurs with the addition of bottlenose 
dolphins (Gulf of Mexico bay, sound, and estuarine stock) to the list 
of species or stocks incidentally killed or injured by the ``Atlantic 
Ocean, Gulf of Mexico, Caribbean commercial passenger fishing vessel'' 
fishery and recommends NMFS elevate this fishery to Category II based 
on evidence of interactions from 38 dolphins between 2002-2009 in gear 
consistent with recreational hook and line gear. The Commission 
believes that even without a quantitative analysis of average annual 
mortality and serious injury or comparisons with PBR levels, NMFS has 
sufficient evidence to conclude that the fishery results in at least 
occasional takes of bottlenose dolphins and warrants a Category II 
listing.
    Response: At this time, there are not sufficient data to elevate 
this fishery. Hook and line fishing gear is used by both individual 
recreational anglers and commercial passenger fishing vessels; thus, it 
is difficult to discern how many animals are taken incidental to the 
Atlantic Ocean, Gulf of Mexico, Caribbean commercial passenger fishing 
vessel fishery and how many animals are taken by a similar recreational 
fishery. NMFS will continue analyzing all stranding information for 
future LOFs to determine appropriate classification for hook and line 
fishery interactions.
    Comment 35: The Commission reiterated past concerns about the lack 
of information on many species and stocks of marine mammals in the Gulf 
of Mexico and recommends that NMFS work with the Commission to develop 
an effective long-term strategy for determining marine mammal stock 
structure and abundance, potential biological removal levels, and 
fisheries mortality and serious injury rates in the Gulf of Mexico. The 
Commission notes that in responding to these past recommendations, NMFS 
has consistently stated that collection of information about fishery 
interactions is a high priority and will occur if resources become 
available, also emphasizing the value of information gathered via 
fishermen self-reports and stranding networks. In its response to the 
Commission's letter on the proposed 2011 LOF, NMFS noted how, as a 
result of the BP/Deepwater Horizon MC252 oil spill response and 
restoration efforts, additional surveys and mark-recapture studies were 
underway for some bay, sound, and estuarine stocks, and that this work 
would provide updated abundance estimates and potential biological 
removal levels for some stocks. The Commission appreciates NMFS' 
expressed intention to expand its efforts and investments in these 
areas; however, the Commission also believes that these efforts and 
investments would benefit from a more comprehensive, aggressive, and 
innovative strategy.
    Response: NMFS agrees that determining marine mammal stock 
structure and abundance, potential biological removal levels, and 
fisheries mortality and serious injury rates in the Gulf of Mexico are 
priorities. NMFS Southeast Fisheries Science Center (SEFSC) conducts 
all marine mammal stock assessments for the Southeast, which are 
provided annually in SARs and include information on stock structure 
and abundance, potential biological removal levels, and fisheries 
mortality and serious injury rates. While NMFS uses this and other 
information to classify fisheries on the LOF, NMFS does not determine 
this information on the annual LOF. Therefore, NMFS recommends the 
Commission continue to provide comments regarding enhanced stock 
assessments during the public comment period for the annual SARs.
    Comment 36: The Blue Water Fishermen's Association (BWFA) 
recommends NMFS standardize methods for analyzing data and observer 
coverage in the Atlantic pelagic longline fishery. BWFA states that the 
Atlantic and Gulf of Mexico SARs maintain the use of data that result 
in a gross distortion of the impacts of the shrinking longline fleet, 
including estimates of total annual serious injury and mortality 
extrapolated from an imprecise ``pooling'' method, the problems with 
which are compounded by attempts to assess serious injury by studying 
observer comments and applying a percentage to all extrapolated 
estimates. Further, BWFA asserts that NMFS continues to use disparate 
methods and different values to calculate percentages of observer 
coverage for the pelagic longline fishery versus other fisheries, which 
presents a skewed picture of the true rate of observer coverage of 
fishing effort.
    Response: NMFS responded to a similar comment on the 2006 LOF (71 
FR 48802, August 22, 2006, comment/response 18). NMFS' SEFSC develops 
fishery observer programs and methods for analyzing related data, and 
reports this information in the annual SARs. While NMFS uses this and 
other information to classify fisheries on the

[[Page 73925]]

LOF, NMFS does not determine this information on the annual LOF. 
Therefore, NMFS recommends the BWFA provide comments regarding these 
methods during the public comment period for the annual SARs.
    Comment 37: The BWFA hopes that NMFS will provide financial support 
through the establishment of specific grants to help continue research 
efforts for practical solutions to the problem of marine mammal 
depredation on hooked catches. The BWFA notes that with the current 
requirements to use corrodible circle hooks and to carry and use safe 
handling and release tools and techniques, along with BWFA's support 
for research efforts of the Consortium for Wildlife Bycatch Reduction 
in helping to expand the understanding of the nature of pilot whale 
interactions, this fishery is already leading the way toward 
alleviating its interactions with protected species.
    Response: NMFS thanks BWFA for their support of research efforts to 
reduce marine mammal bycatch. While the LOF does not include any 
funding mechanisms to support research efforts, NMFS provides funding 
for such research via other sources. For example, NMFS provides funding 
through NC Sea Grant for cooperative research between academics and 
fishermen to better understand pilot whale interactions with the 
pelagic longline fishery as described in the Pelagic Longline Take 
Reduction Plan.
    Comment 38: The BWFA reiterated past recommendations for NMFS to 
subdivide the Atlantic Ocean, Caribbean and Gulf of Mexico pelagic 
longline fisheries for swordfish, tuna and sharks into three regional 
fisheries, the Atlantic (north), Caribbean (south), and Gulf of Mexico, 
citing four arguments. First, BWFA states that subdividing the fishery 
would more accurately reflect the geographical differences in target 
species, scientific data on the stocks of marine mammals listed as 
interacting with the U.S. Atlantic pelagic longline gear, and would 
take into account NMFS's regulations that have permanently closed 
specific areas of the southeast Atlantic coast. Second, BWFA notes that 
the catch and effort information for U.S. pelagic longline gear is 
recorded in distinct geographical regions and NMFS takes effort by area 
into account when calculating estimates of interactions; therefore, 
separating these fisheries by fishing region would facilitate 
establishing a standardized process for monitoring effort, estimating 
serious injury and incidental mortality rates, and evaluating the 
effectiveness of reduction methods. Third, BWFA disagrees with past 
statements from NMFS that nearly all of the fishery participants move 
across the proposed boundaries, noting that the recent available effort 
data shows a very high percentage of the Gulf of Mexico vessels fish 
nowhere else, most of the vessels that fish north or south of the 
Georgia/Florida border (within the EEZ) do not travel north or south of 
their region, and a small number (<12) of Atlantic distant-water 
vessels customarily travel north and south in international waters 
beyond the U.S. EEZ. Lastly, BWFA asserts that when compared to NMFS's 
division of various Pacific and Alaska fisheries, including the AK 
gillnet fisheries, the pelagic longline fisheries in the Atlantic and 
the Gulf of Mexico are being unjustly and incorrectly grouped into one 
single fishery.
    Response: NMFS responded to similar comments in the 2001, 2003, and 
2006 LOFs (66 FR 42780, August 15, 2001, comment/response 16; 68 FR 
41725, July 15, 2003, comment/response 29; 71 FR 48802, August 22, 
2006, comment/response 16). NMFS designates fishery descriptions on the 
LOF so as to be consistent with the current management structure for 
the fishery under the Atlantic Highly Migratory Species (HMS) FMP. The 
pelagic longline fishery in the Atlantic is managed by NMFS as one 
fishery under the Atlantic HMSFMP encompassing all longline fishing 
effort targeting highly migratory species that may occur throughout the 
Atlantic Ocean, Caribbean, and Gulf of Mexico. The development of 
management measures to reduce serious injuries and mortalities of 
marine mammals in the longline fishery has focused primarily on those 
areas where interactions pose particular risk to marine mammals. 
However, as long as interactions continue to occur throughout the 
fishery, NMFS will maintain the current fishery designation on the LOF.
    Comment 39: The Florida Fish and Wildlife Conservation Commission 
(FWC) agrees that the proposed LOF 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. However, the FWC 
recommends that, should any changes be made to the proposed LOF before 
it is finalized, the decision by NMFS not to provide a consistency 
determination for this activity should be revisited. Further, the FWC 
would appreciate consultation prior to NMFS making a decision not to 
provide a consistency determination for future LOFs.
    Response: In the future NMFS will consult with the State of FL when 
determining consistency determinations under CZMA for any LOF actions 
that may impact fisheries managed by the State.
    Comment 40: The HSUS is supportive of the inclusion of bottlenose 
dolphins in the list of species or stocks that are killed or injured 
with a number of Atlantic gillnet, trawl and trap/pot fisheries 
utilizing gear types known to interact with bottlenose dolphins, whose 
evolving changes in stock structure may result in impacts from these 
fisheries occurring at levels that are greater than previously thought.
    Response: NMFS acknowledges this comment. The proposed additions of 
bottlenose dolphins to the list of species or stocks that are killed or 
injured to a number of Atlantic gillnet, trawl and trap/pot fisheries 
are finalized in this final rule.
    Comment 41: The FWC identifies some mischaracterizations in the 
description of the ``Southeastern U.S. Atlantic, Gulf of Mexico stone 
crab trap/pot fishery,'' including: (1) The proposed rule is 
essentially correct that traps are the only gear used in the commercial 
portion of this fishery, but stone crab claws are also lawfully 
harvested by hand recreationally; (2) Trap specifications for stone 
crab traps may be found in FWC rule, Chapter 68B-13, FL Administrative 
Code (F.A.C), not FL statutes; (3) In addition to the requirement for 
buoys attached to commercial traps to be marked with an ``X,'' the trap 
owner's stone crab endorsement number must be marked in characters at 
least 2 inches high on each buoy and harvester's must attach a tag that 
corresponds to a valid FWC-issued trap certificate; and (4) Ch. 68B-
13.009(3), F.A.C. includes trap marking requirements for recreational 
harvest, stating the buoy attached to each trap, except those fished 
from a dock, shall have a permanently affixed and legible ``R'' at 
least 2 inches high, and the harvester's name and address.
    Response: NMFS thanks the FWC for providing this information. Based 
on information provided by FWC, NMFS has clarified the language 
characterizing the ``Southeastern U.S. Atlantic, Gulf of Mexico stone 
crab trap/pot'' in this final LOF.
    Comment 42: The Florida Keys Commercial Fishermen's Association 
(FKCFA) requests NMFS continue to classify the ``South Atlantic, Gulf 
of Mexico stone crab trap/pot'' fishery as Category III based on the 
real differences between this fishery and the ``Atlantic blue crab 
trap/pot'' fishery, questionable data, a substantial law enforcement 
presence in the areas fished, and the extremely low number of 
interactions in the past decade. First, the FKCFA notes

[[Page 73926]]

that the stone crab trap/pot fishery differs significantly from the 
blue crab trap/pot fishery in the methods the gear is fished, the 
location the gear is deployed, and how the gear may interact with 
marine mammals. Second, the FKCFA requests additional details about the 
stranding data used to propose the classification change. Third, the 
FKCFA notes that nearly 50 percent of stone crab trap/pot fishing takes 
place in the waters of the FL Keys and Monroe County where there have 
been no recorded deaths to dolphins associated with the stone crab 
trap/pot fishery, and where there is a tremendous presence from law 
enforcement, marine scientists, and charter/for-hire and recreational 
boaters who are likely to observe and report interactions.
    Response: From 2002-2010 stranding data, NMFS confirmed that three 
bottlenose dolphin serious injuries and mortalities were a result of 
interactions with the stone crab fishery. The NMFS Southeast Regional 
Office gear analysis team analyzed the gear recovered on the stranded 
dolphins and confirmed the gear was from the stone crab fishery. Seven 
additional bottlenose dolphin serious injuries or mortalities were 
confirmed to result from interactions with trap/pot gear from a 
southeast trap/pot fishery. Although specific fishery attribution was 
not possible for the gear found on these seven dolphins, NMFS conducted 
a spatial and temporal analysis of the fishery and interactions and 
determined it is likely these dolphins were also entangled in stone 
crab gear. The three confirmed stone crab takes and seven additional 
possible takes by stone crab gear since 2002 provide reasonable 
evidence that the stone crab fishery by itself is responsible for the 
annual removal of between 1 and 50 percent of any stock's PBR and 
should be classified as a Category II fishery. Two of the three 
confirmed takes incidental to the stone crab fishery occurred in 
Biscayne Bay, Florida, within the range of the Biscayne Bay bottlenose 
dolphin stock, representing at least 4.4 percent of the Biscayne Bay 
bottlenose dolphin stock's total. NMFS classifies each fishery on the 
LOF based on the serious injury or mortality level in the entire 
fishery; therefore, regardless of the three serious injuries to 
dolphins from trap/pot gear reported in the FL Keys and Monroe County 
waters between 2002-2010 (gear was not analyzed by gear analysis team, 
but based on spatial temporal analysis stone crab gear is a possibility 
for all three cases), the stranding data from Biscayne Bay and by 
analogy to the ``Atlantic blue crab trap/pot'' fishery indicate a 
Category II classification of the fishery is warranted. Based on this 
information, NMFS has classified this fishery as Category II in this 
final rule.
    Comment 43: The HSUS and the CBD support the elevation of the 
``Southeastern U.S. Atlantic, Gulf of Mexico stone crab trap/pot'' 
fishery to a Category II fishery. However, the CBD asserts that given 
the small size and complex stock structure of Gulf of Mexico bottlenose 
dolphin stocks, the stone crab fishery should be categorized as a 
Category I fishery. The HSUS is also concerned that the growing 
understanding of the existence of resident populations of bottlenose 
dolphins in individual bays, sounds, and estuaries underscores the need 
to better inform management of fishery interactions with dolphins. Both 
the CBD and HSUS recommend that observer coverage is necessary to 
better monitor fisheries interaction effects on these small, distinct 
dolphin stocks.
    Response: The stranding data analyses described in the proposed 
2012 LOF indicates that the ``Southeastern U.S. Atlantic, Gulf of 
Mexico stone crab trap/pot'' fishery is not responsible for a PBR 
removal level of greater than 50 percent for any stock. The removal 
calculation of the two takes by stone crab gear was estimated to be at 
least 4.4 percent of the Biscayne Bay bottlenose dolphin stock's total. 
Therefore, based on the best available information and according to the 
definition of a Category I fishery (``annual mortality and serious 
injury of a stock in a given fishery is greater than or equal to 50 
percent of the PBR level''), a Category I classification for the 
``Southeastern U.S. Atlantic, Gulf of Mexico stone crab trap/pot'' is 
not warranted. The fishery is classified as Category II in this final 
rule. NMFS will continue to monitor interactions with this fishery each 
year to determine if reclassification is warranted. Furthermore, NMFS 
agrees that a greater understanding of the operations of fishery 
interactions with dolphins is important to inform management. Observer 
coverage for fisheries in which historical data, anecdotal accounts, or 
stranding data indicate a high probability for serious injury or lethal 
interactions to marine mammal populations are a priority if funding 
becomes available. For example, in 2011 NMFS was able to support 
observer coverage for the Gulf of Mexico Menhaden fishery in order to 
help better understand the nature and scope of marine mammal 
interactions with this fishery.
    Comment 44: The Commission concurs with NMFS' proposal to elevate 
the ``Southeastern Atlantic, Gulf of Mexico stone crab trap/pot'' 
fishery to Category II because it utilizes gear and techniques common 
with other fisheries that are known to entangle bottlenose dolphins. 
The Commission recognizes that while quantitative information on 
mortality and serious injury rates and PBR levels for 5 of the 7 stocks 
confirmed or plausibly seriously injured by this fishery are not 
available, the many similarities with the Category II ``Atlantic blue 
crab trap/pot'' fishery and information on dolphin stranding events 
warrant a Category II classification.
    Response: NMFS acknowledges this comment. The ``Southeastern 
Atlantic, Gulf of Mexico stone crab trap/pot'' fishery is classified as 
Category II in this final rule.

Comments on Commercial Fisheries on the High Seas

    Comment 45: The HLA disagrees with NMFS' proposal to add a number 
of ``unknown'' stocks to the list of species or stocks injured or 
killed in the ``HI deep-set (tuna target)'' and ``HI shallow-set 
(swordfish target)'' longline/set line fisheries, despite NMFS' 
acknowledging that the ``proposed addition of these unknown stocks is 
not due to additional observed takes[hellip]'' (76 FR 37716, June 28, 
2011). The HLA asserts that the inclusion of species or stocks for 
which there has never been an observed interaction is arbitrary and 
capricious and violates the plain language of the MMPA, which states 
that NMFS include in the LOF ``a statement describing the marine mammal 
stocks interacting with'' a given fishery (MMPA section 118(c)). The 
HLA states that there is no room in this language for the inclusion of 
``unknown'' marine mammal species or stocks that NMFS speculates may, 
but have not been observed to, interact with the fishery.
    Response: The proposed additions of unknown stocks are for species 
that have been observed to have been taken by the HI-based deep-set and 
shallow-set longline fisheries on the high seas, but for which the 
stock identity could not be determined. For this fishery, the unknown 
stocks include stocks for Blainville's beaked whale, bottlenose 
dolphin, Pantropical spotted dolphin, Risso's dolphin, short-finned 
pilot whale, striped dolphin, Bryde's whale, and Kogia spp. whale. 
(Please refer to the proposed rule at 76 FR 37716, June 28, 2011, for 
more information.) NMFS' SARs for HI pelagic cetacean stocks note that 
the stocks' ranges extend into the high seas, but the full offshore 
ranges are unknown. For those animals taken by the longline fisheries 
on the high seas, it is unknown in most cases

[[Page 73927]]

whether the animals belong to the HI pelagic stocks, or whether the 
animals are from stocks beyond the (unknown) range of the HI pelagic 
stocks. This is particularly true for takes that occur far outside the 
U.S. EEZ. At this point, NMFS cannot assume that all takes are from HI 
pelagic stocks. Therefore, NMFS' inclusion of ``unknown'' stocks that 
are known to interact with the longline fisheries on the high seas 
merely acknowledges the uncertainty in stock identification.
    Comment 46: The Commission concurs with NMFS' proposal to add 
several marine mammal stocks, absent information on stock identity and 
fisheries interactions, to the list of those subject to incidental 
killing or serious injury in the Category I ``Western Pacific pelagic 
fishery, I deep-set component'' and the Category II ``Western Pacific 
pelagic fishery, HI shallow-set component'' because such additions 
better reflect the state of information and need for caution in 
managing interactions between marine mammals and these high seas 
fisheries. Further, the Commission notes that these additions point to 
the need to work with industry and increase investment and initiatives 
to gather more information about high seas marine mammal stocks, 
including their boundaries and interactions with fisheries. Therefore, 
the Commission recommends that NMFS work with its international and 
industry partners to compile and analyze information about marine 
mammals on the high seas and their interactions with fisheries, so that 
the list of species incidentally killed or seriously injured in high 
seas fisheries can be refined in the near future.
    Response: NMFS agrees that the addition of these ``unknown'' stocks 
reflects the lack of information on stock structure and stock identity 
for marine mammals on the high seas that interact with the U.S. 
longline fisheries. NMFS has and will continue to work with 
international and industry partners to gather information on marine 
mammal stocks and high seas fishery interactions to better understand 
the stocks and U.S. fisheries' impacts on them.
    Comment 47: The Council argues that while additions of ``unknown 
stocks'' are made for the high seas ``Western Pacific pelagic'' 
fisheries, additions of ``unknown stocks'' are not made for other high 
seas fisheries, including the high seas ``Atlantic highly migratory 
species'' fishery that has ten different stocks of marine mammals known 
to be incidentally injured or killed.
    Response: There is not significant evidence that ``unknown stocks'' 
are currently incidentally killed or injured in the ``Atlantic highly 
migratory species longline'' fishery; therefore, ``unknown'' stocks are 
not listed under this fishery in Table 3. For detailed information on 
why NMFS includes ``unknown'' stocks in on the list of species or 
stocks killed or injured in the high seas ``Pacific highly migratory 
species longline'' fisheries (HI deep-set and HI shallow-set), please 
see the response to comment 45 above.
    For the majority of high seas fisheries, NMFS does not have data to 
create a list of which marine mammal species or stocks are killed or 
injured on the high seas. For fisheries that occur only on the high 
seas and are not extensions of fisheries operating in U.S. waters, the 
marine mammals species killed or injured in those fisheries are listed 
as ``undetermined'' in Table 3. For high seas fisheries that are 
extensions of a fishery operating in U.S. waters, but for which there 
are no data on takes on the high seas, NMFS includes an identical list 
of marine mammal species as are listed as killed or injured in the 
portion of the fishery operating in U.S. waters (minus exclusively 
coastal stocks). These fisheries are identified in Table 3 by a ``-'' 
after their names. For high seas fisheries that are extensions of a 
fishery operating in U.S. waters for which NMFS does have observed 
mortalities or injuries on the high seas, the species or stocked 
observed as killed or injured on the high seas are listed. These 
fisheries are identified in Table 3 by a ``+'' after their names.

Summary of Changes From the Proposed Rule

    In this final rule, NMFS is not elevating the ``HI trolling, rod 
and reel'' or the ``HI charter vessel'' fisheries to Category II as 
proposed, instead these fisheries are retained as Category III. For 
additional information, see comments 16-26, and the associated comment 
response, under ``Comments on the Hawaii Troll and Charter Vessel 
Fisheries'' above.
    In this final rule, NMFS is not adding Pantropical spotted dolphins 
(HI stock) to the list of species or stocks incidentally killed or 
injured in the ``HI trolling, rod and reel'' or ``HI charter vessel'' 
fisheries. For additional information, see comments 16-26, and the 
associated comment response, under ``Comments on the Hawaii Troll and 
Charter Vessel Fisheries'' above.
    In this final rule, NMFS updates the fishery description for the 
``Southeastern U.S. Atlantic, Gulf of Mexico stone crab trap/pot'' 
fishery to clarify the State of Florida's regulations for this fishery, 
based on comments received from the FL Fish and Wildlife Commission 
(see comment/response 41). The final fishery description is provided 
above under the section ``Fishery Descriptions.''
    NMFS corrects a typographical error in the proposed rule, which 
stated the ``CA pelagic longline'' fishery occurs within the EEZ, when 
in fact this fishery has always occurred on the high seas, seaward of 
the EEZ. The ``CA pelagic longline'' fishery targets highly migratory 
species (HMS) and the use of longline gear to target HMS within the EEZ 
off of CA is prohibited by NOAA regulations under the Magnuson-Stevens 
Fishery Conservation and Management Act, as well as by State of CA.

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 changes 
discussed below.

Commercial Fisheries in the Pacific Ocean

Fishery Classification

    The ``CA thresher shark/swordfish drift gillnet'' fishery is 
elevated from Category III to Category II.

Fishery Name and Organizational Changes and Clarifications

    NMFS corrects a typographical error that appeared in the proposed 
2012 LOF, which stated the ``CA pelagic longline'' fishery occurs 
within the EEZ, when in fact this fishery has always occurred on the 
high seas, seaward of the EEZ. The ``CA pelagic longline'' fishery 
targets highly migratory species (HMS) and the use of longline gear to 
target HMS within the EEZ off of CA is prohibited by NOAA regulations 
under the Magnuson-Stevens Fishery Conservation and Management Act, as 
well as by State of CA. This fishery is the same as the ``Pacific 
Highly Migratory Species'' longline fishery listed in Table 3. The 
error in the proposed 2012 LOF occurred when NMFS provided a correction 
to the 2011 LOF to ensure that this one fishery, although listed 
separately on Table 1 and Table 3 (the reasons for which are explained 
in the preamble under ``Are High Seas Fisheries Included on the 
LOF?''), was classified as Category III on

[[Page 73928]]

both tables and that marine mammal species injured or killed is the 
same on both tables.

Number of Vessels/Persons

    The estimated numbers of persons/vessels participating in several 
HI fisheries are updated based on the most recent numbers of federal 
permits or state licenses for each fishery, as outlined below.
    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

    Humpback whale (CA/OR/WA stock) is added to the list of species or 
stocks incidentally killed or injured in the ``CA thresher shark/
swordfish drift gillnet'' fishery followed by the notation ``\1\.''

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

Fishery Classification

    The ``Southeastern U.S. Atlantic, Gulf of Mexico stone crab trap/
pot'' fishery is elevated from Category III to Category II followed by 
the notation ``\2\.''

Addition of Fisheries

    The ``RI floating trap'' fishery is added to the LOF as Category 
III.

Fishery Name and Organizational Changes and Clarifications

    The spatial boundaries for the Category II ``Northeast bottom 
trawl,'' ``Northeast mid-water trawl,'' ``Mid-Atlantic bottom trawl,'' 
and ``Mid-Atlantic mid-water trawl'' fisheries are updated and the 
fishery definitions are updated to reflect this change.

Number of Vessels/Persons

    The estimated number of vessels/persons participating in several 
New England, Mid-Atlantic, and South Atlantic fisheries are updated 
based on the most recent numbers of federal permits or state licenses 
for each fishery, as outlined below.
    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: ``Southeastern U.S. Atlantic, Gulf of Mexico stone 
crab trap/pot'' from 4,453 to 1,282; ``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: ``FL spiny lobster trap/pot'' fishery from 2,145 to 
1,268; ``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

    Killer whale (GMX oceanic stock), sperm whale (GMX oceanic stock), 
and Gervais beaked whale (GMX oceanic stock) are added 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.
    Atlantic spotted dolphin (Northern GMX stock) stock name is updated 
to Atlantic spotted dolphin (GMX continental and oceanic) on the list 
as species or stocks incidentally killed or injured in the Category I 
``Atlantic Ocean, Caribbean, Gulf of Mexico large pelagic longline'' 
fishery.
    Bottlenose dolphin (GA coastal stock) and bottlenose dolphin (SC 
coastal stock) are combined on the list as species or stocks 
incidentally killed or injured in the Category II ``Southeast Atlantic 
gillnet'' fishery and renamed bottlenose dolphin (SC/GA coastal stock).
    Bottlenose dolphin (Northern FL coastal stock) is added to the list 
of species or stocks incidentally killed or injured in the Category II 
``Southeastern U.S. Atlantic shark gillnet'' fishery.
    Bottlenose dolphin (Northern GMX coastal stock) and bottlenose 
dolphin (GMX continental shelf stock) are added 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.
    Atlantic spotted dolphin (Northern GMX) is updated to Atlantic 
spotted dolphin (GMX continental and oceanic) on the list of species or 
stocks incidentally killed or injured in the Category II ``Southeastern 
U.S. Atlantic, Gulf of Mexico shrimp trawl'' fishery.
    Bottlenose dolphin (GA coastal stock) and bottlenose dolphin (SC 
coastal stock) are combined on the list of species or stocks 
incidentally killed or injured in the Category II ``Southeastern U.S. 
Atlantic, Gulf of Mexico shrimp trawl'' fishery and renamed bottlenose 
dolphin (SC/GA coastal stock).
    Bottlenose dolphin (GA coastal stock) and bottlenose dolphin (SC 
coastal stock) are combined on the list of species or stocks 
incidentally killed or injured in the Category II ``Atlantic blue crab 
trap/pot'' fishery and renamed the stock bottlenose dolphin (SC/GA 
coastal stock).
    Bottlenose dolphin (Southern NC estuarine system stock) is added to 
the list of species or stocks incidentally killed or injured in the 
Category II ``NC long haul seine'' fishery.
    Bottlenose dolphin (Northern NC estuarine system stock) is added to 
the list of species or stocks incidentally killed or injured in the 
Category II ``VA pound net'' fishery.
    Bottlenose dolphin (Central FL coastal stock) is added to the list 
of species or stocks incidentally killed or injured in the Category III 
``FL spiny lobster trap/pot'' fishery.
    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) are added to the list 
of species or stocks

[[Page 73929]]

incidentally killed or injured in the Category II ``Southeastern U.S. 
Atlantic, Gulf of Mexico stone crab trap/pot'' fishery.
    Bottlenose dolphin (GMX continental shelf stock) is added 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.
    Bottlenose dolphin (GMX bay, sound, and estuarine stock) is added 
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.
    Risso's dolphin (WNA stock) is added to the list of species or 
stocks incidentally killed or injured in the Category II ``Mid-Atlantic 
bottom trawl'' fishery.
    Harbor seal (WNA stock) is added to the list of species or stocks 
incidentally killed or injured in the Category II ``Mid-Atlantic bottom 
trawl'' fishery.
    Bottlenose dolphin (WNA offshore stock) is added to the list of 
species or stocks incidentally killed or injured in the Category II 
``Northeast bottom trawl'' fishery.
    Gray seal (WNA stock) is added to the list of species or stocks 
incidentally killed or injured in the Category II ``Northeast bottom 
trawl'' fishery.

Commercial Fisheries on the High Seas

Fishery Classification

    The high seas ``Pacific highly migratory species drift gillnet'' 
fishery is elevated from Category III to Category II because the 
component of the fishery operating in U.S. waters is elevated in this 
final rule.
    To correct an error in the 2011 LOF, the high seas ``Pacific highly 
migratory species longline'' fishery from is reclassified from Category 
II to Category III.

Removal of Fisheries

    The Category II high seas ``Pacific highly migratory species 
trawl'' ``South Pacific albacore troll trawl'' fisheries are removed 
from the LOF.

Fishery Name and Organizational Changes and Clarifications

    The name of the Category I high seas ``Western Pacific pelagic 
(deep-set component) longline'' fishery is changed to the ``Western 
Pacific pelagic (HI deep-set component) longline'' fishery.
    The name of the Category II high seas ``Western Pacific pelagic 
(shallow-set component) longline'' fishery is changed to the ``Western 
Pacific pelagic (HI shallow-set component) longline'' fishery.

Number of Vessels/Persons

    The estimated number of HSFCA permits is updated for several high 
seas fisheries for multiple gear types, as outlined below.
    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

    Humpback whale (CA/OR/WA stock) is added to the list of marine 
mammal stocks incidentally killed or injured in the high seas ``Pacific 
highly migratory species gillnet'' fishery.
    Risso's dolphin (CA/OR/WA stock) is removed from the list of marine 
mammal stocks incidentally killed or injured in the high seas ``Pacific 
highly migratory species longline'' fishery.
    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) are added to the list of species or 
stocks killed or injured in the Category I high seas ``Western Pacific 
pelagic (HI deep-set component)'' fishery.
    Bottlenose dolphin (unknown stock), Byrde's whale (unknown stock), 
Kogia spp. whale (unknown stock), Risso's dolphin (unknown stock), and 
striped dolphin (unknown stock) are added to the list of species or 
stocks killed or injured in the Category II high seas ``Western Pacific 
pelagic (HI shallow-set component)'' fishery.

List of Fisheries

    The following tables set forth the 2012 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. Table 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

[[Page 73930]]

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, or at the discretion of the Assistant Administrator for 
Fisheries). 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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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 for 
this certification was published with the proposed rule and is not 
repeated here. No comments were received regarding the economic impact 
of this rule. As a result, a final regulatory flexibility analysis is 
not required, and none was prepared.
    This final rule contains collection-of-information requirements 
subject to the Paperwork Reduction Act. The collection of information 
for the

[[Page 73953]]

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 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 was no need to update the 2005 EA at that 
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. NMFS will 
next review the EA to determine if updates are necessary in 2014.
    This final 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 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 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 final 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.
Baker, J.D., A.L. Harting, T.A. Wurth, and T.C. Johanos. 2011. 
Dramatic shifts in Hawaiian monk seal distribution predicted from 
divergent regional trends. Marine Mammal Science, 27: 78-93.
Forney, K.A. 2010. Serious injury determinations for cetaceans 
caught Hawaii longline fisheries during 1994-2008. NOAA Technical 
Memorandum NOAA-TM-NMFS-SWFSC-462. 24 p.
Hatfield, B.B, J.A. Ames, J.A. Estes, M.T. Tinker, A.B. Johnson, 
M.M. Staedler, M.D. Harris. 2011. Sea otter mortality in fish and 
shellfish traps: estimating potential impacts and exploring possible 
solutions. Endang. Species Res., 13:219-229.
McCracken, M.L. 2010. Adjustments to False Killer Whale and Short-
finned Pilot Whale Bycatch Estimates. NMFS Pacific Islands Fisheries 
Science Center Working Paper WP-10-007. Issued 7 December 2010. 23 
p.
NMFS 2008a. Endangered Species Act--Section 7 Consultation 
Biological Opinion and Incidental Take Statement on the 
Implementation of Bottomfish Fishing Regulations within Federal 
Waters of the Main Hawaiian Islands. Issued March 18, 2008. 37 p.
NMFS 2008b. Endangered Species Act--Section 7 informal consultation 
on the continued authorization of crustacean fisheries in the 
Hawaiian Archipelago. April 4, 2008. 10 p.
NMFS Pacific Islands Regional Observer Program. 2004-2008. Pacific 
Islands Regional Observer Program annual status reports. Available 
online: http://www.fpir.noaa.gov/OBS/obs_qrtrly_annual_rprts.html
Rizzuto, J. 2007. Big fish await HIBT teams. West Hawaii Today 
39(218): 1B, 4B.
Rossman, M. C. 2010. Estimated bycatch of small cetaceans in 
northeast U.S. bottom trawl fishing gear during 2000-2005. J. 
Northw. Atl. Fish. Sci., 42: 77-101. doi:10.2960/J.v42. m650.

    Dated: November 21, 2011.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 2011-30607 Filed 11-28-11; 8:45 am]
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