List of Fisheries for 2007, 14466-14491 [E7-5709]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 72, Number 59 (Wednesday, March 28, 2007)]
[Rules and Regulations]
[Pages 14466-14491]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-5709]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 229

[Docket No. 061106290-7059-02, I.D. 101706C]
RIN 0648-AV01


List of Fisheries for 2007

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

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The National Marine Fisheries Service (NMFS) is publishing its 
final List of Fisheries (LOF) for 2007, as required by the Marine 
Mammal Protection Act (MMPA). The final LOF for 2007 reflects new 
information on interactions between commercial fisheries and marine 
mammals. NMFS must categorize each commercial fishery on the LOF into 
one of three categories under the MMPA based upon the level of serious 
injury and mortality of marine mammals that occurs incidental to each 
fishery. The categorization of a fishery in the LOF determines whether 
participants in that fishery are subject to certain provisions of the 
MMPA, such as registration, observer coverage, and take reduction plan 
requirements.

DATES: This final rule is effective April 27, 2007.
    The Alaska Cook Inlet set gillnet fishery, Alaska Cook Inlet salmon 
purse seine fishery, Alaska Kodiak salmon purse seine fishery, 
California tuna purse seine fishery, Mid-Atlantic mid-water trawl 
(including pair trawl) fishery, and Mid-Atlantic flynet fishery are 
considered to be Category II fisheries on April 27, 2007, and are 
required to comply with all requirements of Category II fisheries 
(i.e., complying with applicable registration requirements, complying 
with applicable take reduction plan requirements, and carrying 
observers, if requested) on that date.

ADDRESSES: See SUPPLEMENTARY INFORMATION for a listing of all Regional 
offices.
    Written comments regarding the burden-hour estimates or other 
aspects of the information collection requirements contained in this 
final rule may be submitted to NMFS, Attn: Patricia Lawson, fax: 301-
427-2522 or Patricia.Lawson@noaa.gov, or the Office of Management and 
Budget, Attn: David Rostker, fax: 202-395-7285 or David--
Rostker@omb.eop.gov.

FOR FURTHER INFORMATION CONTACT: Melissa Andersen, Office of Protected 
Resources, 301-713-2322; David Gouveia, Northeast Region, 978-281-9328; 
Nancy Young, Southeast Region, 727-551-5607; Elizabeth Petras, 
Southwest Region, 562-980-3238; Brent Norberg, Northwest Region, 206-
526-6733; Bridget Mansfield, Alaska Region, 907-586-7642; Lisa Van 
Atta, Pacific Islands Region, 808-944-2257. Individuals who use a 
telecommunications device for the hearing impaired may call the Federal 
Information Relay Service at 1-800-877-8339 between 8 a.m. and 4 p.m. 
Eastern time, Monday through Friday, excluding Federal holidays.

SUPPLEMENTARY INFORMATION:

Availability of Published Materials

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

Regional Offices

    NMFS, Northeast Region, One Blackburn Drive, Gloucester, MA 01930-
2298, Attn: Marcia Hobbs;
    NMFS, Southeast Region, 263 13th Avenue South, St. Petersburg, FL 
33701, Attn: Teletha Mincey;
    NMFS, Southwest Region, 501 W. Ocean Blvd., Suite 4200, Long Beach, 
CA 90802-4213, Attn: Lyle Enriquez;
    NMFS, Northwest Region, 7600 Sand Point Way NE, Seattle, WA 98115, 
Attn: Permits Office;
    NMFS, Alaska Region, Protected Resources, P.O. Box 22668, 709 West 
9th Street, Juneau, AK 99802; or
    NMFS, Pacific Islands Region, Protected Resources, 1601 Kapiolani 
Boulevard, Suite 1100, Honolulu, HI 96814-4700.

What is the List of Fisheries?

    Section 118 of the MMPA requires NMFS to place all U.S. commercial 
fisheries into one of three categories based on the level of incidental 
serious injury and mortality of marine mammals occurring in each 
fishery (16 U.S.C. 1387(c)(1)). The categorization of a fishery in the 
LOF determines whether participants in that fishery may be required to 
comply with certain provisions of the MMPA, such as registration, 
observer coverage, and take reduction plan requirements. NMFS must 
reexamine the LOF annually, considering new information in the Stock 
Assessment Reports 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

[[Page 14467]]

stock, across all fisheries, is less than or equal to 10 percent of the 
PBR level of the stock, all fisheries interacting with the stock would 
be placed in Category III (unless those fisheries interact with other 
stock(s) in which total annual mortality and serious injury is greater 
than 10 percent of PBR). Otherwise, these fisheries are subject to the 
next tier (Tier 2) of analysis to determine their classification.
    Tier 2, Category I: Annual mortality and serious injury of a stock 
in a given fishery is greater than or equal to 50 percent of the PBR 
level.
     Tier 2, Category II: Annual mortality and serious injury of a 
stock in a given fishery is greater than 1 percent and less than 50 
percent of the PBR level.
    Tier 2, Category III: Annual mortality and serious injury of a 
stock in a given fishery is less than or equal to 1 percent of the PBR 
level.
    While Tier 1 considers the cumulative fishery mortality and serious 
injury for a particular stock, Tier 2 considers fishery-specific 
mortality and serious injury for a particular stock. Additional details 
regarding how the categories were determined are provided in the 
preamble to the final rule implementing section 118 of the MMPA (60 FR 
45086, August 30, 1995).
    Since fisheries are categorized on a per-stock basis, a fishery may 
qualify as one Category for one marine mammal stock and another 
Category for a different marine mammal stock. A fishery is typically 
categorized on the LOF at its highest level of classification (e.g., a 
fishery qualifying for Category III for one marine mammal stock and for 
Category II for another marine mammal stock will be listed under 
Category II).

Other Criteria That May Be Considered

    In the absence of reliable information indicating the frequency of 
incidental mortality and serious injury of marine mammals by a 
commercial fishery, NMFS will determine whether the incidental serious 
injury or mortality qualifies for Category II by evaluating other 
factors such as fishing techniques, gear used, methods used to deter 
marine mammals, target species, seasons and areas fished, qualitative 
data from logbooks or fisher reports, stranding data, and the species 
and distribution of marine mammals in the area, or at the discretion of 
the Assistant Administrator for Fisheries (50 CFR 229.2).

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

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

How do I Determine the Level of Observer Coverage in a Fishery?

    Data obtained from observers and the level of observer coverage are 
important tools in estimating the level of marine mammal mortality and 
serious injury in commercial fishing operations. The best available 
information on the level of observer coverage, and the spatial and 
temporal distribution of observed marine mammal interactions, is 
presented in the SARs. Starting in 2005, each SAR includes an appendix 
with detailed descriptions of each Category I and II fishery on the 
LOF. The SARs generally do not provide detailed information on observer 
coverage in Category III fisheries because Category III fisheries are 
not required to accommodate observers aboard vessels due to the remote 
likelihood of mortality and serious injury of marine mammals. 
Information presented in the SARs' appendices include: level of 
observer coverage, target species, levels of fishing effort, spatial 
and temporal distribution of fishing effort, gear characteristics, 
management and regulations, and marine mammal interactions.
    NMFS refers readers to the SARs for the most current information on 
the level of observer coverage for each fishery. Copies of the SARs are 
available on the NMFS Office of Protected Resource's web site at: 
https://www.nmfs.noaa.gov/pr/sars/. Additional information on observer 
coverage in commercial fisheries can be found on the National Observer 
Program's web site at: https://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 two tables that list all U.S. commercial 
fisheries by LOF Category. Table 1 lists all of the fisheries in the 
Pacific Ocean (including Alaska). Table 2 lists all of the fisheries in 
the Atlantic Ocean, Gulf of Mexico, and Caribbean.

Am I Required to Register Under the MMPA?

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

How Do I Register?

    Vessel or gear owners must register with the Marine Mammal 
Authorization Program (MMAP) by contacting the relevant NMFS Regional 
Office (see ADDRESSES) unless they participate in a fishery that has an 
integrated registration program (described below). Upon receipt of a 
completed registration, NMFS will issue vessel or gear owners an 
authorization certificate. The authorization certificate, or a copy, 
must be on board the vessel while it is operating in a Category I or II 
fishery, or for non-vessel fisheries, in the possession of the person 
in charge of the fishing operation (50 CFR 229.4(e)).

What is the Process for Registering in an Integrated Fishery?

    For some fisheries, NMFS has integrated the MMPA registration 
process with existing state and Federal

[[Page 14468]]

fishery license, registration, or permit systems. Participants in these 
fisheries are automatically registered under the MMPA and are not 
required to submit registration or renewal materials or pay the $25 
registration fee. The following section indicates which fisheries are 
integrated fisheries and has a summary of the integration process for 
each Region. Vessel or gear owners who operate in an integrated fishery 
and have not received an authorization certificate by January 1 of each 
new year or with renewed state fishing licenses (as in Washington and 
Oregon) must contact their NMFS Regional Office (see ADDRESSES). 
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).

Which Fisheries Have Integrated Registration Programs?

    The following fisheries have integrated registration programs under 
the MMPA:
    1. All Alaska Category II fisheries;
    2. All Washington and Oregon Category II fisheries;
    3. Northeast Regional fisheries for which a state or Federal permit 
is required;
    4. All Southeast Regional fisheries for which a Federal permit is 
required, as well as fisheries permitted by the states of North 
Carolina, South Carolina, Georgia, Florida, Alabama, Mississippi, 
Louisiana, and Texas; and
    5. The Hawaii Swordfish, Tuna, Billfish, Mahi Mahi, Wahoo,Oceanic 
Sharks Longline/Set line Fishery.

How Do I Renew My Registration Under the MMPA?

    Vessel or gear owners that participate in fisheries that have 
integrated registration programs (described above) are automatically 
renewed and should receive an authorization certificate by January 1 of 
each new year, with the exception of Washington and Oregon Category II 
fisheries. Washington and Oregon fishers receive authorization with 
each renewed state fishing license, the timing of which varies based on 
target species. Vessel or gear owners who participate in an integrated 
fishery and have not received authorization certificates by January 1 
or with renewed fishing licenses (Washington and Oregon) must contact 
the appropriate NMFS Regional Office (see ADDRESSES). Vessel or gear 
owners that participate in fisheries that do not have integrated 
registration programs and that have previously registered in a Category 
I or II fishery will receive a renewal packet from the appropriate NMFS 
Regional Office at least 30 days prior to January 1 of each new year. 
It is the responsibility of the vessel or gear owner in these fisheries 
to complete their renewal form and return it to the appropriate NMFS 
Regional Office at least 30 days in advance of fishing. Individuals who 
have not received a renewal packet by January 1 or are registering for 
the first time must request a registration form from the appropriate 
Regional Office (see ADDRESSES).

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

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

Am I Required to Take an Observer Aboard My Vessel?

    Fishers participating in a Category I or II fishery are required to 
accommodate an observer aboard vessel(s) upon request. Observer 
requirements can be found in 50 CFR 229.7.

Am I Required to Comply With Any Take Reduction Plan Regulations?

    Fishers participating in a Category I or II fishery are required to 
comply with any applicable take reduction plans. Take reduction plan 
requirements can be found at 50 CFR 229.30-34.

Sources of Information Reviewed for the Final 2007 LOF

    NMFS reviewed the marine mammal incidental serious injury and 
mortality information presented in the SARs for all observed fisheries 
to determine whether changes in fishery classification were warranted. 
NMFS' SARs are based on the best scientific information available at 
the time of preparation, including the level of serious injury and 
mortality of marine mammals that occurs incidental to commercial 
fisheries and the PBR levels of marine mammal stocks. The information 
contained in the SARs is reviewed by regional Scientific Review Groups 
(SRGs) representing Alaska, the Pacific (including Hawaii), and the 
U.S. Atlantic, Gulf of Mexico, and Caribbean. The SRGs were created by 
the MMPA to review the science that informs the SARs, and to advise 
NMFS on population status and trends, 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, and other information that may not be included in the SARs.
    The LOF for 2007 was based, among other things, on information 
provided in the final SARs for 1996 (63 FR 60, January 2, 1998), the 
final SARs for 2001 (67 FR 10671, March 8, 2002), the final SARs for 
2002 (68 FR 17920, April 14, 2003), the final SARs for 2003 (69 FR 
54262, September 8, 2004), the final SARs for 2004 (70 FR 35397, June 
20, 2005), the final SARs for 2005 (71 FR 26340, May 4, 2006), and the 
draft SARs for 2006 (71 FR 42815, July 28. 2006). All SARs are 
available at: https://www.nmfs.noaa.gov/pr/sars/.

Comments and Responses

    NMFS received 9 comment letters on the proposed 2007 LOF (71 FR 
70339, December 4, 2006) from environmental, commercial fishing, and 
Federal and state interests. Comments on issues outside the scope of 
the LOF were noted, but are not responded to in this final rule.

General Comments

    Comment 1: One commenter recommended NMFS continue to support 
current research efforts, and support and engage in additional 
research, on depredation and associated fishery interactions. Research 
should focus on developing means of reducing or controlling depredation 
rates and

[[Page 14469]]

minimizing or mitigating any serious injuries or deaths of marine 
mammals from depredation-related interactions.
    Response: NMFS has supported and will continue to support research 
efforts intended to better understand the nature of depredation-related 
interactions, to reduce the risk of serious injury and mortality to 
marine mammal stocks, and to investigate potential mitigation 
strategies.
    Through the Take Reduction Team (TRT) process, NMFS has developed 
and implemented successful gear research components to several Take 
Reduction Plans (TRP). Specifically, NMFS has allocated research 
funding for several TRPs including the Atlantic Trawl Gear, Atlantic 
Large Whale, Pelagic Longline, and Bottlenose Dolphin TRPs. The 
research identified by the respective TRTs allows NMFS to better 
understand the behavior of several marine mammal species. The 
recommended research included techniques such as the use of video 
cameras to document marine mammal interactions with various gear types 
in hopes of gaining a better understanding of whether these 
interactions are a result of depredation of the target species by the 
marine mammals, or other behavioral factors. This knowledge will 
provide insights into what types of mitigation measures can be 
implemented in order to minimize the serious injuries and mortalities 
associated with depredation-related interactions. Various gear 
modifications are routinely researched to reduce the risk of 
interactions and serious injury and mortality of marine mammals should 
an entanglement occur.
    NMFS also gathers information on marine mammal depredation in 
fisheries from various sources including, fishery observer records, 
vessel logbooks, data collected during dockside surveys, independent 
researchers, State agencies, and the general public. NMFS uses this 
information to monitor fisheries and evaluate whether action is needed 
to prevent or limit depredation in order to protect marine mammals. For 
example, in the past NMFS has participated in a program to conduct 
research in California, Oregon, and Washington examining pinniped 
depredation in various fisheries and develop methods to reduce or 
control the depredation. However, funding for this program was 
eliminated in 2005 and it is not known if funding will be re-instated 
in the future. Also, NMFS is currently reviewing the issues related to 
depredation by false killer whales in the Hawaii-based longline fishery 
and is supportive of research efforts to reduce false killer whale 
take. NMFS continues to seek ways to support and participate in 
research on depredation and the development of deterrent methods, 
within existing budget constraints.
    Comment 2: One commenter recommended NMFS work with regional 
Fishery Management Councils to improve monitoring and mitigation of 
serious injury and mortality rates incidental to trap/pot fisheries. 
Interactions with trap/pot gear are known to occur. However, the 
frequency is difficult to quantify because traditional fishery observer 
programs are unlikely to observe entangled animals, particularly large 
whales that often carry entangling gear away. In absence of better 
monitoring, characterization of such problems is often based on 
anecdotal information.
    Response: NMFS has been often unable to identify lines wrapped on 
entangled whales conclusively or determine to which specific fishery 
gear belongs, including whether it is a commercial or recreational 
fishery. This is particularly difficult for pot gear, when often just a 
single line or line with an unidentified buoy is found associated with 
an entangled whale. This information is critically important in 
assigning fisheries under the LOF, and NMFS will only assign a serious 
injury or mortality to a specific fishery when gear can be identified 
to that fishery with a high degree of certainty. NMFS is working to 
improve the ability to identify such gear found on entangled whales.
    NMFS agrees that quantifying entanglement rates in the trap/pot 
fishery would be difficult through an observer program due to the low 
likelihood of observing an entanglement. However, other means of 
collecting information on entanglements of marine mammals are also 
available. For example, information regarding fishery interactions with 
marine mammals is included in reports by fishermen collected under the 
Marine Mammal Authorization Program (MMAP), under which all commercial 
vessel owners or operators, regardless of the category of fishery they 
participate in, must report all incidental injuries and mortalities of 
marine mammals. Stranding data is also used to collect information on 
entanglements.
    Trap/pot fisheries are of interest based on available information 
concerning trap/pot gear interactions with large whales in the 
Atlantic, Pacific, and Alaska, and bottlenose dolphins in the Southeast 
Atlantic and Gulf of Mexico. In the Atlantic Ocean and Gulf of Mexico, 
NMFS has funded, and plans to continue to fund based on available 
resources, several research projects for mitigating blue crab trap/pot 
interactions with bottlenose dolphins in the Southeast Atlantic and 
Gulf of Mexico. Many of these projects have been incorporated into non-
regulatory components of the Bottlenose Dolphin Take Reduction Plan. 
NMFS is considering folding trap/pot fisheries into the Atlantic Large 
Whale Take Reduction Plan (ALWTRP) in an upcoming action. The Atlantic 
Large Whale Take Reduction Team (ALWTRT) currently emphasizes the 
incorporation of the regional fishery management councils by asking 
council representatives to serve as team members. NMFS will raise this 
issue with council representatives at future meetings to further the 
discussion.
    In the Pacific Ocean, NMFS plans to communicate with the Pacific 
Fisheries Management Council when considering current fishery 
descriptions for trap/pot fisheries, as well as when assessing 
potential changes to fishery descriptions to more accurately reflect 
differences in trap gear fisheries and the likelihood for interactions 
with marine mammals.
    In Alaska, a high proportion of all humpback whale entanglements 
are thought to be from pot gear relative to other fishery sources, 
while in reality the proportion of entanglements resulting in known 
serious injuries and mortalities from known or assumed pot gear when 
compared to serious injury and mortalities from all entanglements is 
not as high. From 2001 through 2005 there were 40 humpback whale 
entanglements attributed to commercial or recreational fisheries, and 
15 (37.5 percent) of those were thought to be from various pot gear, 
although that is not conclusive. Of those 40 humpback whale 
entanglements, 17 (42.5 percent) were serious injuries or mortalities, 
all attributed to commercial fisheries. Five of the 17 (29 percent) 
serious injuries or mortalities were thought to be from various pot 
gear. Therefore, from 2001-2005, 5 of the overall 40 humpback whale 
entanglements, or 12.5 percent, resulted in serious injuries or 
mortalities thought to be from various pot gear.
    Determining whether an entanglement results in a serious injury 
(one that leads to mortality) is a challenge for NMFS, and an improved 
approach to this is needed, and the agency is working toward that end. 
In the Alaska region, NMFS is working to increase public awareness of 
the dangers to whales of vertical lines in the water column, and is 
asking for voluntary cooperation to minimize the amount of vertical 
line in the water column where possible and in marking personal and 
commercial gear.

[[Page 14470]]

Working with marine mammal researchers, the fishing industry, and NOAA 
Sea Grant over the past several years, the Alaska Stranding Program has 
increased community outreach. Cooperative, ongoing efforts include 
community meetings, informal working groups, increased disentanglement 
response training, developing a vessel wheelhouse guide on preventive 
measures and reporting information, investigating deterrent uses, 
improved reporting, and acquisition of additional response equipment, 
including adding a response vessel to the program, and satellite 
telemetry tags and buoys. Ultimately, the goal is entanglement 
reduction and prevention.
    Comment 3: One commenter stated that the length of the public 
comment period (30 days) on the proposed rule does not allow 
appropriate time for formal review and comment by Fishery Management 
Councils, protected resources committees, industry advisors, and 
individuals.
    Response: NMFS believes the 30-day comment period allowed for 
adequate review and comment on this proposed rule.
    Comment 4: One commenter noted that the categorization of fisheries 
under the MMPA is not congruent with fishery management units defined 
under the Magnuson-Stevens Fishery Conservation and Management Act 
(MSFCMA). Congruency between the definitions under MSFCMA and the 
categorization of fisheries under the MMPA would facilitate the process 
of moving towards an ecosystem approach to management, i.e., for the 
management of fisheries resources and the conservation of marine mammal 
stocks.
    Response: The MSFCMA defines fishery listings based on fish species 
and fish stocks, while the MMPA defines fishery listings based on 
marine mammal stocks and their interactions with fishing gear types. 
Since multiple fishing gear types are usually covered under each 
Fishery Management Plan (FMP), categorizing marine mammal interactions 
with fisheries on an FMP basis is usually not appropriate. To help 
minimize confusion associated with the different fishery definitions, 
the agency will continue, as appropriate, to make modest changes to 
facilitate cooperation with regional Fishery Management Councils (see 
responses to comments 2 and 3).
    Comment 5: The proposed rule states that less than 360 small 
entities will be affected by the LOF due to the cost of permits and 
that no economic costs will be incurred by vessels requested to carry 
an observer. This evaluation fails to recognize the burden of carrying 
an observer, especially on smaller fishing vessels that may have to 
operate with one less crew member to accommodate the observer. This 
could lead to operational inefficiencies and loss of revenue.
    Response: An Environmental Assessment (EA) was prepared for the 
Final 2006 LOF, which included a full Regulatory Impact Review (RIR). 
The effects on small entities were discussed and analyzed as part of 
the RIR. Impacts to small entities including the impacts associated 
with carrying an observer were adequately addressed. A full copy of the 
December 2005 EA can be obtained at: https://www.nmfs.noaa.gov/pr/pdfs/
interactions/lof_ea.pdf.
    In addition, under section 118(d)(6)(B) of the MMPA, NMFS is not 
required to place an observer on a Category I or II vessel if the 
facilities for housing the observer or for carrying out observer 
functions are so inadequate or unsafe that the health or safety of the 
observer or the safe operation of the vessel would be jeopardized (also 
stated in 50 CFR 229.7(c)(3)).
    Comment 6: NMFS did not provide sufficient notice in the proposed 
rule to inform fishermen that their fishery is proposed for elevation 
and the associated more stringent regulations. Also, the holiday season 
falling within the comment period (December 4, 2006-January 3, 2007) 
made it difficult to find credible information and to contact agency 
staff to allow public involvement.
    Response: See Comment Response 3 above.
    Comment 7: One commenter viewed the LOF fishery classification 
system as inaccurate, under which NMFS is downplaying the highly 
destructive nature of commercial fisheries. NMFS does not sufficiently 
monitor these fisheries; therefore, many more fisheries should be 
classified higher on the LOF to allow for observer coverage.
    Response: NMFS believes that the fishery classification system is 
accurate. The current fishery classification system, which continues to 
be widely accepted by the scientific community and the fishing 
industry, is based on a two-tiered, stock-specific approach that first 
addresses the total impacts of all fisheries on each marine mammal 
stock and then addresses the impacts of individual fisheries on each 
stock. Please see SUPPLEMENTARY INFORMATION for additional information 
on the classification criteria. NMFS implemented the classification 
criteria in the final regulations to implement the 1994 amendments to 
the MMPA (60 FR 45086, August 30, 1995) after ample consider of 
comments and suggestions from the public. NMFS also finalized an 
Environmental Assessment (EA) in August, 1995, to analyze the impacts 
of the regulations implementing the 1994 amendment on the environment 
and the public, and finalized a revised EA in December 2005 on the 
process of classifying U.S. commercial fisheries. To determine whether 
changes in fishery classification are warranted, NMFS reviews all 
marine mammal incidental injury and mortality information presented in 
the Stock Assessment Reports (SARs). NMFS' SARs are based on the best 
available scientific information available at the time of publication. 
The SARs are peer-reviewed by regional Scientific Review Groups (SRGs), 
created by the MMPA to review the science that informs the SARs.
    NMFS regularly monitors commercial fisheries in the U.S. and 
reviews data gathered by the National Observer Program, fisher self-
reports, stranding data, and other information when categorizing 
fisheries based on the level of interactions with marine mammals. 
Category I and II fisheries are required to register with NMFS, to 
carry NMFS observers if requested, and comply with all applicable take 
reduction plan regulations. In addition, all fishermen, regardless of 
the classification of the fishery in which they operate, are required 
by the MMPA to report, within 48 hours of returning to port, any injury 
or mortality that occurs incidental to commercial fishing operations. 
NMFS also reviews other sources of information, such as stranding data, 
to assess whether elevation of a Category III fishery is warranted, 
thereby requiring the fishery to carry observers, if requested.
    Comment 8: One commenter reiterated previous letters on the 2005 
and 2006 LOFs calling for the inclusion of observer coverage on the 
LOF. The SARs usually include estimates of observer coverage only for 
fisheries known to interact with marine mammals, while fisheries for 
which interactions have not been documented in recent years are not 
described. Without this information, it is not possible to determine 
whether a given fishery was adequately observed and no interactions 
documented, or whether the fishery was not adequately observed and 
interactions may occur. For this reason, NMFS should describe the level 
of observer coverage for each fishery on the LOF.
    Response: Including detailed information on the level, or 
percentage, of observer coverage to each fishery on the LOF will be of 
limited use without also including the confidence associated

[[Page 14471]]

with mortality/serious injury estimates generated from observer data. 
Presenting the level of observer coverage in the LOF without the 
associated confidence information will likely lead to misinterpretation 
of the information provided. Information including details of the 
interaction data, and the Coefficient of Variance (CV) for stock-
specific information, is reported in the SARs. Please also see NMFS' 
response to a similar comment in the final LOF for 2006 (see Response 
to Comment 4 in 60 FR 48802, August 22, 2006).
    NMFS continues to refer readers to the SARs for the most current, 
peer-reviewed information on observer coverage. Since 2005 each SARs 
includes an Appendix with Category I and II fishery-specific 
information, including the level of observer coverage; therefore, this 
information does not need to be duplicated in the LOF. NMFS is 
continuing to work to build and improve the fisheries interaction 
information presented in order to provide a useful source of 
information for the reader. NMFS will consider this comment when 
considering improvements to the SARs appendices. The SARs can be 
accessed through the NMFS Office of Protected Resource's web site at: 
https://www.nmfs.noaa.gov/pr.sars/. Additional information can also be 
found on the National Observer Program web site at: https://
www.st.nmfs.gov/st4/nop/.
    Information beyond stating ``interactions have not been documented 
in recent years'' would be useful as further explanation and support 
for changes in fishery classifications or additions and deletions of 
stocks from the list of marine mammal species or stocks incidentally 
killed/injured in a fishery. For this reason, NMFS will present 
information associated with the level of observer coverage or lack of 
observer coverage, if available, as part of the justification for 
proposing changes in future LOFs.
    Comment 9: One commenter reiterated a previous comment made on the 
2004 LOF for inclusion of high seas fisheries on the LOF. Multiple high 
sea fisheries, in which U.S. flagged vessels operate, are known to 
interact or are likely to interact with marine mammals. Section 118 of 
the MMPA applies to ``commercial fishing operations by persons using 
vessels of the United States''. Therefore, NMFS failure to include 
these high seas fisheries is unlawful. Specific fisheries suggested as 
additions are the Cobb Seamount fishery, Pacific Pelagic Squid Jig 
fishery, South Pacific Tuna Purse Seine fishery, and fisheries in the 
area of the Convention on the Conservation of Antarctic Marine Living 
Resources (CCAMLR) including the Patagonian toothfish longline fishery 
and a trawl fishery for krill.
    Response: NMFS is currently investigating available information on 
existing high seas fisheries in which U.S. nationals and flagged 
vessels participate, the estimated number of vessels/participants in 
these fisheries, and fishery interactions with marine mammal stocks on 
the high seas. NMFS will continue its investigation and consider the 
inclusion of high seas fisheries in future LOFs.

Comments on Fisheries in the Pacific Ocean

    Comment 10: One commenter supported the elevation and addition of 3 
Alaska fisheries, the AK Cook Inlet salmon set gillnet fishery, AK Cook 
Inlet salmon purse seine fishery, and AK Kodiak salmon purse seine 
fishery, to Category II.
    Response: NMFS has added the AK Cook Inlet salmon set gillnet 
fishery as a Category II, and has elevated the AK Cook Inlet salmon 
purse seine fishery and the AK Kodiak salmon purse seine fishery to 
Category II, on the 2007 LOF.
    Comment 11: One commenter stated that NMFS' proposed elevation or 
addition of 3 Alaska nearshore fisheries, the AK Cook Inlet salmon set 
gillnet fishery, AK Cook Inlet salmon purse seine fishery, and AK 
Kodiak salmon purse seine fishery, highlights the importance of 
monitoring interactions in state-managed fisheries. The Alaska Marine 
Mammal Observer Program (AMMOP) has not been funded sufficiently or 
consistently and does not provide an adequate basis for characterizing 
the full extent of such interactions. NMFS should increase and maintain 
funding for the AMMOP at levels sufficient for reasonable assessment of 
marine mammal take levels in AK state-managed fisheries or consider 
alternative means for assessing take levels and their population 
impacts.
    Response: The cost of the Alaska Marine Mammal Observer Program is 
very high, relative to other observer programs around the country, due 
to the remote nature of the fisheries observed. To offset such high 
costs, NMFS is investigating alternatives to implementing full observer 
programs in these fisheries, such as observing focused portions of the 
fisheries.
    Comment 12: Estimates of abundance and PBR level are not readily 
available for North Pacific sperm whales. NMFS should develop a 
scientifically sound estimate of this stock's abundance and PBR level 
that can be used to evaluate potential fishery impacts. For example, 
sperm whales are known to depredate on catch in the sablefish longline 
fishery and at least one serious injury of a sperm whale has been 
observed, with the current estimate of injury/mortality at 0.45 whales/
year. This rate may increase if depredation becomes more widespread.
    Response: At this time, resources are not available to assess the 
abundance of North Pacific sperm whales in order to calculate a PBR 
level.
    Comment 13: One commenter recommended NMFS expedite analyses of 
humpback whale stock structure in the North Pacific and increase 
efforts to observe entangled and stranded whales in southeastern Alaska 
to obtain accurate estimates of interactions with trap/pot fisheries. 
These analyses will better assess the potential impact of fishery 
interactions on the southeastern AK feeding aggregation of Central 
North Pacific humpback whales (which NMFS is currently considering 
designating as a separate stock), considering recent reports of 
stranded/entangled whales suggest interactions with trap/pot fisheries 
in southeastern Alaska may be unsustainable.
    Response: The Structure of Populations, Levels of Abundance, and 
Status of Humpbacks (SPLASH) project collected information on humpback 
whales throughout the North Pacific. This project has only recently 
concluded. At this time, NMFS anticipates that some preliminary results 
may begin to be published in 2008 and may be considered during the 
preparation of the draft List of Fisheries for 2009.
    Comment 14: One commenter referenced the case of a humpback whale 
removed from a set gillnet by NMFS personnel in June 2005. Although 
they were not successful in removing all the webbing, the animal swam 
away. We are not aware of conclusive information that provides a 
determination that mortality resulted from this incidental take.
    Response: The Marine Mammal Protection Act (MMPA) requires that 
serious injuries and mortalities be included in consideration of the 
classification of fisheries under the annual List of Fisheries. NMFS 
has defined serious injury in 50 CFR 229.2 as an injury that is likely 
to lead to mortality. The agency convened a workshop in April 1997 to 
develop guidelines for a consistent approach for determining which 
injuries may be considered serious injuries. Results from that workshop 
were published as a NOAA Technical Memorandum in 1998 (NMFS-OPR-13, 
Angliss, R.P., and

[[Page 14472]]

D.P. DeMaster) and have been incorporated into the annual process of 
fisheries classification.
    Current guidelines for making serious injuries determinations for 
marine mammals injuries resulting from entanglement in fishing gear 
include consideration of whether the animal's locomotion or feeding is 
or could be impaired by the entanglement. Information for each humpback 
whale entanglement in Alaska is reviewed by members of the Alaska 
Scientific Review Group (SRG), a Congressionally mandated regional 
advisory board to NMFS made up of marine mammal scientists. The SRG 
forwards to NMFS recommendations for each entanglement on whether the 
entanglement is likely to result in a serious injury or not. NMFS makes 
the final determination for each entanglement, taking into account the 
SRG's recommendation and the proper application of the serious injury 
determination guidelines.
    NMFS anticipates holding a follow-up serious injury workshop in 
2007 to update and advance the current guidelines for making serious 
injury determinations.
    Comment 15: One commenter stated that the population of the Central 
North Pacific humpback whale stock appears to be increasing. Therefore, 
the take in the Cook Inlet set gillnet fishery, which is calculated to 
be 1.55 percent of the stock's PBR, should not trigger changing this 
fisheries' classification from Category III to Category II.
    Response: There is evidence that the central North Pacific stock of 
humpback whales is increasing in at least portions of its range, such 
as in Southeast Alaska. However, it is not clear that this is the case 
throughout the range of the stock. Further, the results of the recent 
study of North Pacific humpback whales may indicate that the existing 
stock structure is incorrect and that smaller stocks may be more 
appropriate. Given the uncertainty in the rate of increase and stock 
structure, NMFS will classify this fishery using the classification 
criteria without adjusting for possible changes in abundance.
    Comment 16: One commenter stated that the area in which the 
humpback whale take in 2005 occurred in Cook Inlet is remote, and that 
portion of the fishery is not conducted in the same time, area or 
methodology as 95 percent of the set gillnet fishery within Cook Inlet. 
The productivity of this small portion of the fishery is only 1 percent 
of the targeted sockeye salmon species. There has been no documented 
incidence with humpback whales in the Central or Northern districts of 
Upper Cook Inlet through the previous observer program (1999-2000) or 
in the commercial fishery. Please consider listing Upper and Lower Cook 
Inlet set gillnet fisheries as separate fisheries on the List of 
Fisheries.
    Response: NMFS organizes Alaska fisheries under the LOF by target, 
gear type, and geographic area. Separating the Upper and Lower Cook 
Inlet set gillnet fisheries into two fisheries on the LOF would not be 
consist with the scale of identification of other Alaska state and 
Federal fisheries on the LOF.
    The Alaska Department of Fish and Game manages the state fisheries 
at the local scale to achieve the success that they have in maintaining 
sustainable fish population levels, because salmon fishery management 
is based in large part on achieving local escapement goals. However, 
NMFS manages marine mammals by stocks, which generally cover large 
geographic areas in Alaska. The fisheries within or across those areas 
are classified under the LOF in order to track the relative impacts of 
the fisheries on the marine mammal stocks. Because of the large scale 
of Alaska and the high number of small, local fisheries throughout the 
state, NMFS believes that the geographic areas and other variables used 
to identify fisheries under the LOF are comprehensive enough to detect 
potential concerns with marine mammal-fishery interactions, but not so 
large that the local source becomes unclear. Under circumstances 
outlined in the MMPA, when fishery-related serious injuries and 
mortalities reach a level which trigger the need to institute focused 
take reduction measures, a finer scale of review is instituted. In such 
cases, detailed differences in gear, area, timing, effort, and other 
variables would be taken into account to address specific sources of 
marine mammal incidental serious injuries and mortalities.
    Comment 17: One commenter noted errors in the number of permits 
issued in, and management of, the WA/OR purse seine fishery. The 
proposed rule states that OR and WA issued 26 and 16 permits, 
respectively, for the 2004 fishery, when the correct number of permits 
was 20 and 21, respectively. At that time, the OR fishery was a 
developmental fishery and the WA fishery was an experimental fishery. 
In 2006 the OR fishery operated as a state run limited entry fishery 
and WA remained an experimental fishery.
    Response: The commenter is correct. OR and WA issued 20 and 21 
permits, respectively, for the WA/OR purse seine fishery in 2004. The 
figures provided in the proposed rule, 26 permits issued in OR and 16 
in WA, were incorrectly associated with the fishery for 2004. In fact, 
26 and 16 permits were issued for OR and WA, respectively in 2006. The 
commenter is also correct that OR become a limited entry fishery in 
2006, while WA remained an emerging fishery.
    Comment 18: Two commenters recommended elevating the CA lobster, 
prawn, shrimp, rock crab, fish pot fishery and the WA/OR/CA crab pot 
fishery to Category II based on interactions with humpback and gray 
whales. Interactions with humpback whales off the CA coast are likely 
to exceed 1 percent of PBR (PBR = 1.9). At least 14 large whales were 
documented entangled in this gear type from 2000-2005.
    Response: NMFS is aware of interactions between humpback and gray 
whales and pot and trap gear. The 2005 Pacific SAR indicates that there 
were six Eastern North Pacific humpback whales observed killed or 
injured between 1999 and 2003 attributed to unidentified fisheries. 
This results in a mean annual take of more than 1.2 humpback whales per 
year, which is greater than 1 percent of this stock's PBR of 2.3. Based 
upon available data from the California Marine Mammal Stranding Network 
Database, which is currently being reviewed and updated, five humpbacks 
were observed entangled in pot or trap gear between 1999 and 2003. Thus 
NMFS has initiated a review of the trap/pot fisheries to determine 
whether recategorization of the CA lobster, prawn, shrimp, rock crab, 
fish pot fishery or the WA/OR/CA crab pot fishery is appropriate. At 
this time, NMFS has insufficient information on the spatial and 
temporal distribution on these various fisheries to determine which 
fisheries may be interacting with marine mammals, particularly humpback 
whales. Stranding reports from the stranding network are not 
necessarily a reliable identifier of fishing gear types as it is 
difficult to distinguish different pot and trap gears from surface 
observations of line and floats. Therefore, NMFS will work with the 
States of California, Oregon, and Washington to characterize the state 
and Federal fisheries that utilize these gear types, and review 
observed marine mammal entanglement from stranding reports and limited 
data from observer programs, to determine which pot and trap fisheries 
are most likely to interact with marine mammals. NMFS will also 
consider if the current fishery descriptions should be adjusted to more 
accurately reflect spatial and temporal differences in the various pot 
and trap gear fisheries, the regulatory authority for the fisheries, 
and the likelihood of

[[Page 14473]]

interactions with marine mammals. NMFS will work with the states and 
the Pacific Fisheries Management Council during this process and make 
recommendations on fishery recategorizations once sufficient 
information has been collected and analyzed.
    Comment 19: One commenter recommended NMFS observe the category III 
CA halibut bottom trawl fishery and reevaluate classification once 
reliable information on interactions with marine mammals becomes 
available. This fishery is similar to the WA/OR/CA groundfish trawl 
fishery, also Category III, which is known to interact with several 
marine mammal species.
    Response: NMFS is planning to place observers on the CA halibut 
bottom trawl fishery beginning in 2007. Because this fishery has not 
been previously observed, NMFS reviewed the bottom trawl groundfish 
observer data and classified the CA halibut bottom trawl fishery as a 
Category III fishery based upon the level of interactions with marine 
mammals and by analogy to the WA/OR/CA groundfish trawl fishery based 
upon fishing methods and gear used. As of 2006, the State of California 
requires a license for vessels participating in the previously open-
access CA halibut bottom trawl fishery. Thus NMFS will be able to 
deploy observers in this fleet starting in January 2007. Once the data 
are collected and analyzed, NMFS will re-evaluate the CA halibut bottom 
trawl fishery to determine if recategorization on the LOF is 
appropriate.
    Comment 20: One commenter recommended NMFS reclassify the category 
I HI swordfish, tuna, billfish, mahi mahi, wahoo, oceanic sharks 
longline/set line fishery as Category II, given the lack of evidence of 
geographic isolation or genetic distinction among ``stocklet'' 
populations of false killer whales in the U.S. Exclusive Economic Zone 
(EEZ) and false killer whales on the high seas, and given the genetic 
evidence of central and eastern Pacific stock overlap. Genetic samples 
taken by NMFS observers indicate substantial mixing and genetic overlap 
between central and eastern Pacific stocks. Therefore, false killer 
whales that interact with the Hawaii-based longline fisheries are not 
clearly identifiable as part of the HI EEZ or central Pacific stock. It 
inappropriate to charge all mortalities or serious injuries by HI-based 
longline fisheries against a HI EEZ stock when it is clear that some 
genetic samples of the injured or killed whales cannot be tracked to a 
genetically distinct HI population.
    The commenter also noted errors and uncertainties in the false 
killer whale SARs, which underestimate false killer whale abundance and 
overestimate the seriousness of the HI longline fishery interactions 
with this species. NMFS improperly divides the central Pacific false 
killer whale stock into two stocklets, artificially reducing the 
abundance numbers against which HI longline fishery interactions are 
considered.
    NMFS should also: (1) base final SAR and LOF decisions on a single, 
combined central Pacific stock of false killer whales across the HI and 
Palmyra Atoll EEZs and the central Pacific; (2) recognize the size of 
this single false killer whale stock is greater than the sum of the 
estimated populations of ``stocklets'' in the HI and Palmyra Atoll EEZs 
(i.e. >1813 animals); (3) derive values for minimum false killer whale 
population estimates and PBR levels based on the combined population 
numbers in the HI and Palmyra Atoll EEZs and the central Pacific; and 
(4) apportion mean annual take estimates attributable to the HI-based 
longline fisheries between a central and eastern false killer whale 
stock consistent with ongoing tissue sampling. This approach would 
result in an overall PBR for the single stock as 10.1 (2.4 for the HI 
EEZ + 7.7 for the Palmyra Atoll EEZ). With these changes HI-based 
longline fisheries would be well below 50 percent of PBR, qualifying 
the fishery for reclassification as a Category II. Also, a Category II 
classification would not affect the observer program requirements, 
which are a consequence of Endangered Species Act (ESA) consultation 
requirements.
    Response: Genetic analyses of tissue samples collected within the 
Eastern North Pacific (ENP) indicate restricted gene flow between false 
killer whales sampled near the main Hawaiian Islands and false killer 
whales sampled in all other regions of the ENP (Chivers et al., 2006). 
False killer whales sampled at Palmyra Atoll appear more closely 
related to animals sampled in the waters of the pelagic ENP, Panama, 
and Mexico (Chivers et al., 2006). Thus, false killer whales occurring 
near Palmyra Atoll may be part of a larger stock covering a broad 
geographic area within the central and eastern North Pacific.
    Since 2003, observers of the Hawaii-based longline fishery have 
also been collecting tissue samples of incidentally caught cetaceans 
for genetic analysis whenever possible. Four false killer whale 
samples, two collected outside the Hawaiian EEZ and two collected more 
than 100 nautical miles from the main Hawaiian Islands, were determined 
to have ENP-like haplotypes. This suggests that false killer whales 
within the Hawaiian EEZ belong to two stocks, with a boundary somewhere 
within the Hawaiian EEZ. Efforts are currently underway to obtain and 
analyze additional tissue samples of false killer whales for further 
studies of population structure in the North Pacific Ocean.
    Therefore, for the MMPA SARs, there are currently two Pacific 
Island Region management stocks. One includes animals found within the 
U.S. EEZ of the Hawaiian Islands, the other includes false killer 
whales found with the U.S. EEZ of Palmyra Atoll. Estimates of 
abundance, PBR levels, and status determinations are analyzed 
separately. Abundance estimates are based upon established scientific 
methods have been peer-reviewed and accepted by the Pacific SRG. The 
marine mammal stock assessment process under the MMPA was specifically 
designed to allow for levels of uncertainty similar to those observed 
for false killer whales.
    Furthermore, NMFS has previously responded to a similar comment in 
our List of Fisheries for 2004 (69 FR 48407, August 10, 2004). In our 
Response to Comment 17 (69 FR 48413), NMFS stated: ``The Hawaiian stock 
of false killer whales is considered a strategic stock under the MMPA 
because fishery related mortality and serious injury exceeds the PBR 
level for this stock (see 16 U.S.C. 1362(19)). Genetic analysis of 
samples from false killer whales in the North Pacific Ocean indicates 
population structure, but geographic boundaries of the various 
populations cannot yet be identified. However, the evidence for 
reproductive isolation and strong genetic differentiation of 
individuals sampled around Hawaii from individuals sampled in the ETP 
(Eastern Tropical Pacific) is solid. Furthermore, NMFS' current 
mortality and serious injury estimates are based only on takes within 
the U.S. EEZ and compared to PBR levels derived from abundance 
estimates for waters within the U.S. EEZ. In addition, even if the 
actual boundaries of the Hawaiian stock of false killer whales extended 
beyond the EEZ, the strategic status of the stock would not be changed. 
NMFS' guidelines for preparing marine mammal stock assessment reports 
contain specific instructions for calculating PBR of trans-boundary 
stocks. (The guidelines are available in electronic form at https://
nmml.afsc.noaa.gov/library/gammsrep/gammsrep.htm). In cases such as 
false killer whales in the Hawaiian EEZ, where the stock could extend 
into international waters, the PBR would be

[[Page 14474]]

based on the abundance of animals within the EEZ. This guideline was 
established to prevent underestimating the effects of mortality and 
serious injury incidental to U.S. fisheries in international waters 
where unknown levels of additional human-caused mortality and serious 
injury (e.g., incidental to foreign fisheries in the same waters) may 
also be affecting the stock. NMFS does, however, plan to try to obtain 
additional genetic samples from a broader geographic range to help 
define stock boundaries.''

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

    Comment 21: Two commenters supported reclassification of the mid-
Atlantic mid-water trawl fishery from category I to category II and 
supported findings that this fishery does not pose a serious risk or 
contribute to the mortality or serious injury of common dolphins, 
Western North Atlantic (WNA) stock, and long- and short-finned pilot 
whales, WNA stock. One commenter encouraged NMFS to maintain adequate 
observer coverage to provide robust estimates of mortality and serious 
injury, particularly to inform the Atlantic Trawl Gear Take Reduction 
Team (ATGTRT).
    Response: Based on a recommendation made by the ATGTRT (September 
2006), NMFS re-evaluated the classification of the mid-Atlantic mid-
water trawl fishery as a Category I fishery on the LOF. After 
conducting a tier analysis, NMFS determined that reclassification as a 
Category II fishery is warranted.
    It should be noted that the MMPA establishes a requirement that the 
level of incidental mortality and serious injury of marine mammals be 
reduced to insignificant levels approaching a zero rate, commonly 
referred to as the Zero Mortality Rate Goal (ZMRG). NMFS has 
established a threshold level for mortality and serious injury to meet 
the insignificance threshold requirement. NMFS has defined the 
insignificance threshold as 10 percent of the PBR level for a stock of 
marine mammals (69 FR 43338, July 20, 2004). Since the mid-Atlantic 
mid-water trawl fishery is a Category II fishery and the annual 
mortality and serious injury level is above the insignificance 
threshold, it remains subject to future TRPs developed by the ATGTRT.
    NMFS will continue to allocate observer coverage to the maximum 
extent possible to meet MMPA requirements. NMFS will also try to make 
the best use of available resources by using existing research 
programs, programs operated by states or other authorities, or 
alternative programs where statistically reliable information can be 
obtained.
    Comment 22: One commenter requested further evidence of additional 
species being targeted with trap/pot gear in the mid-Atlantic region. 
It is unclear from the text in the proposed rule (71 FR 70339, December 
4, 2006) which species are being added to the list of target species in 
the Atlantic mixed species trap/pot fishery.
    Response: Clarification on which targeted species are being 
included in the expansion of species associated with the Atlantic mixed 
species trap/pot fishery can be found in the proposed 2007 LOF (71 FR 
70346, December 4, 2006). NMFS added the category II Atlantic mixed 
species trap/pot fishery to the 2003 LOF to encompass the Northeast 
trap/pot fishery, the mid-Atlantic mixed species trap/pot fishery, the 
U.S. mid-Atlantic and Southeast U.S. Atlantic black sea bass trap/pot 
fisheries and any other trap/pot fisheries otherwise not identified in 
the LOF, based on the use of similar gear and the potential for marine 
mammal entanglements. NMFS has recently become aware of additional 
species being targeted in this fishery including but not limited to: 
hagfish, shrimp, conch/whelk, red crab, Jonah crab, rock crab, black 
sea bass, scup, tautog, cod, haddock, pollock, redfish (ocean perch), 
white hake, spot, skate, catfish and American eel (not included in the 
LOF's U.S. mid-Atlantic eel trap/pot fishery description) (71 FR 70346, 
December 4, 2006).
    Evidence for this decision can be found in the Draft Environmental 
Impact Statement (DEIS) for Amending the Large Whale Take Reduction 
Plan (ALWTRP): Broad-Based Gear Modifications (February 2005), chapter 
4 titled ``Affected Environment''. This chapter includes the reasoning 
for why the addition of these fisheries to the Atlantic mixed species 
trap/pot gear fishery is warranted.
    Comment 23: NMFS used ``anecdotal'' data to help make a category 
determination for the Gulf of Maine Atlantic herring purse seine 
fishery (71 FR 70347, December 4, 2006). NMFS should present the 
objective criteria used to evaluate the legitimacy of anecdotal data 
and how such use satisfies the requirements of the Data Quality Act.
    Response: In the 2007 proposed LOF, NMFS proposed to remove the 
Gulf of Maine/Bay of Fundy stock of harbor porpoises from the list of 
species or stocks incidentally killed or seriously injured in the Gulf 
of Maine Atlantic herring purse seine fishery. The rationale for the 
removal of the harbor porpoise from this list comes from the most 
recent SAR (2005) which highlights the most recent 5 years of data 
(from 1999 2003) as well as anecdotal or historical information, as 
records of interaction. According to the SAR, there is currently no 
evidence indicating that harbor porpoises are killed or seriously 
injured in the Gulf of Maine Atlantic herring purse seine fishery (71 
FR 70347, December 4, 2006). The removal of harbor porpoises from the 
list of species or stocks incidentally killed or injured has not 
resulted in a change in the category determination for the Gulf of 
Maine herring purse seine fishery, which is currently classified as a 
Category III fishery.
    In order for the agency to determine which species or stocks are 
included as incidentally killed or seriously injured in a fishery, NMFS 
reviews the marine mammal incidental serious injury and mortality 
information presented in the most recent SARs for commercial fishing 
operations. Historical and/or