List of Fisheries for 2009, 73032-73076 [E8-28378]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

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



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Part V





Department of Commerce





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National Oceanic and Atmospheric Administration



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50 CFR Part 229



List of Fisheries for 2009; Final Rule

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

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 229

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


List of Fisheries for 2009

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

ACTION: Final rule.

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SUMMARY: The National Marine Fisheries Service (NMFS) publishes its 
final List of Fisheries (LOF) for 2009, as required by the Marine 
Mammal Protection Act (MMPA). The final LOF for 2009 reflects new 
information on interactions between commercial fisheries and marine 
mammals. NMFS must categorize each commercial fishery on the LOF into 
one of three categories under the MMPA based upon the level of serious 
injury and mortality of marine mammals that occurs incidental to each 
fishery. The categorization of a fishery in the LOF determines whether 
participants in that fishery are subject to certain provisions of the 
MMPA, such as registration, observer coverage, and take reduction plan 
requirements.

DATES: This final rule is effective on January 1, 2009.

ADDRESSES: See SUPPLEMENTARY INFORMATION for a listing of all Regional 
Offices.
    Comments regarding the burden-hour estimates, or any other aspect 
of the collection of information requirements contained in this final 
rule, should be submitted in writing to Chief, Marine Mammal and Sea 
Turtle Conservation Division, Office of Protected Resources, NMFS, 1315 
East-West Highway, Silver Spring, MD 20910, or to David Rostker, OMB, 
by fax to 202-395-7285 or by e-mail to 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; 
Laura Engleby, Southeast Region, 727-824-5312; Elizabeth Petras, 
Southwest Region, 562-980-3238; Brent Norberg, Northwest Region, 206-
526-6733; Bridget Mansfield, Alaska Region, 907-586-7642; Lisa Van 
Atta, Pacific Islands Region, 808-944-2257. Individuals who use a 
telecommunications device for the hearing impaired may call the Federal 
Information Relay Service at 1-800-877-8339 between 8 a.m. and 4 p.m. 
Eastern time, Monday through Friday, excluding Federal holidays.

SUPPLEMENTARY INFORMATION: 

Availability of Published Materials

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

Regional Offices

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

What Is the List of Fisheries?

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

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

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

Fishery Classification Criteria

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

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

Other Criteria That May Be Considered

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

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

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

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

    Data obtained from observers and the level of observer coverage are 
important tools in estimating the level of marine mammal mortality and 
serious injury in commercial fishing operations. The best available 
information on the level of observer coverage, and the spatial and 
temporal distribution of observed marine mammal interactions, is 
presented in the SARs. Starting with the 2005 SARs, each SAR includes 
an appendix with detailed descriptions of each Category I and II 
fishery in the LOF, including observer coverage. The SARs generally do 
not provide detailed information on observer coverage in Category III 
fisheries because, under the MMPA, Category III fisheries are not 
required to accommodate observers aboard vessels due to the remote 
likelihood of mortality and serious injury of marine mammals. 
Information presented in the SARs' appendices includes: level of 
observer coverage, target species, levels of fishing effort, spatial 
and temporal distribution of fishing effort, characteristics of fishing 
gear and operations, management and regulations, and interactions with 
marine mammals. Copies of the SARs are available on the NMFS Office of 
Protected Resource's Web site at: https://www.nmfs.noaa.gov/pr/sars/. 
Additional information on observer programs in commercial fisheries can 
be found on the NMFS National Observer Program's Web site: 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 three tables that list all U.S. commercial 
fisheries by LOF Category. Table 1 lists all of the fisheries in the 
Pacific Ocean (including Alaska); Table 2 lists all of the fisheries in 
the Atlantic Ocean, Gulf of Mexico, and Caribbean; Table 3 lists all 
U.S.-authorized fisheries on the high seas. A fourth table, Table 4, 
lists all fisheries managed under applicable take reduction plans or 
teams.

Are High Seas Fisheries Included on the LOF?

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

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

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

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

How Does NMFS Categorize High Seas Fisheries on the LOF?

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

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

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

Am I Required To Register Under the MMPA?

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

How Do I Register?

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

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

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

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

How Do I Renew My Registration Under the MMPA?

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

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

    In accordance with the MMPA (16 U.S.C. 1387(e)) and 50 CFR 229.6, 
any vessel owner or operator, or gear owner or operator (in the case of 
non-vessel fisheries), participating in a Category I, II, or III 
fishery must report to NMFS all incidental injuries and mortalities of 
marine mammals that occur during commercial fishing operations. 
``Injury'' is defined in 50 CFR 229.2 as a wound or other physical 
harm. In addition, any animal that ingests fishing gear or any animal 
that is released with fishing gear entangling, trailing, or perforating 
any part of the body is considered injured, regardless of the presence 
of any wound or other evidence of injury, and must be reported. Injury/
mortality reporting forms and instructions for submitting forms to NMFS 
can be downloaded from: 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. MMPA Section 118 
states that an observer will not be placed on a vessel if the 
facilities for quartering an observer or performing observer functions 
are inadequate or unsafe, thereby exempting vessels too small to 
accommodate an observer from this requirement. Observer requirements 
can be found in 50 CFR 229.7.

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

    Fishers participating in a Category I or II fishery are required to 
comply with any applicable take reduction plans. Table 4 in this final 
rule provides a list of fisheries affected by take reduction teams and 
plans. Take reduction plan regulations can be found at 50 CFR 229.30-
35.

Sources of Information Reviewed for the Final 2009 LOF

    NMFS reviewed the marine mammal incidental serious injury and 
mortality information presented in the SARs for all observed fisheries 
to determine whether changes in fishery classification were warranted. 
The SARs are based on the best scientific information available at the 
time of preparation, including the level of serious injury and 
mortality of marine mammals that occurs incidental to commercial 
fisheries and the PBR levels of marine mammal stocks. The information 
contained in the SARs is reviewed by regional Scientific Review Groups 
(SRGs) representing Alaska, the Pacific (including Hawaii), and the 
U.S. Atlantic, Gulf of Mexico, and Caribbean. The SRGs were created by 
the MMPA to review the science that informs the SARs, and to advise 
NMFS on marine mammal population status, trends, and stock structure, 
uncertainties in the science, research needs, and other issues.
    NMFS also reviewed other sources of new information, including 
marine mammal stranding data, observer program data, fisher self-
reports, fishery management plans, and ESA documents.
    The final LOF for 2009 was based, among other things, on 
information provided in the NEPA and ESA documents analyzing authorized 
high seas fisheries, and the final SARs for 1996 (63 FR 60, January 2, 
1998), the final SARs for 2001 (67 FR 10671, March 8, 2002), the final 
SARs for 2002 (68 FR 17920, April 14, 2003), the final SARs for 2003 
(69 FR 54262, September 8, 2004), the final SARs for 2004 (70 FR 35397, 
June 20, 2005), the final SARs for 2005 (71 FR 26340, May 4, 2006), the 
final SARs for 2006 (72 FR 12774, March 19, 2007), the final SARs for 
2007 (73 FR 21111, April 18, 2008), and the draft SARs for 2008 (73 FR 
40299, July 14, 2008). The SARs are available at: https://www.nmfs.noaa.gov/pr/sars/.

Fishery Descriptions

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

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

High Seas Atlantic Highly Migratory Species Fisheries

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

High Seas Pacific Highly Migratory Species Fisheries

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

[[Page 73037]]

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

High Seas Western Pacific Pelagic Fisheries

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

High Seas South Pacific Albacore Troll Fisheries

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

High Seas South Pacific Tuna Fisheries

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

[[Page 73038]]

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

High Seas Antarctic Living Marine Resources Fisheries

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

CA Spot Prawn Pot Fishery

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

CA Dungeness Crab Pot Fishery

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

OR Dungeness Crab Pot Fishery

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

WA/OR/CA Sablefish Pot Fishery

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

[[Page 73039]]

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

Comments and Responses

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

General Comments

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

[[Page 73040]]

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

Comments on High Seas Fisheries

    Comment 7: The CBD supported NMFS' decision to include high seas 
fisheries on the LOF, but they have concerns with how NMFS is 
implementing the process. NMFS treats fisheries that have both a high 
seas and within-EEZ component as two separate fisheries for LOF 
purposes. CBD believes this raises the risk that the total marine 
mammal take from such a fishery may be inappropriately apportioned into 
two separate fisheries (the high seas and non-high seas components), 
therefore resulting in an underestimation of the true environmental 
effect, and LOF classification of what is more properly considered the 
same fishery. For example, if the total take from a fishery operating 
both in and outside the EEZ is 60 percent of PBR, the fishery should be 
a Category I. However, if the fishery is split into two components and 
take is evenly apportioned, the total take from each fishery is only 30 
percent of PBR, and therefore a Category II. NMFS must clarify how it 
will apportion take so as to not create this problem.
    Response: Although the high seas components of fisheries that 
operate both within U.S. waters and on the high seas are listed in a 
separate table in the LOF, they are not considered separate fisheries 
from their associated components operating in U.S. waters. Instead, 
NMFS considers these fisheries as the same fishery that has extended 
beyond the 200 nmi boundary of the EEZ. Because of the organization and 
format of Tables 1 and 2 in the LOF, and because high seas fisheries 
have additional management (permit) requirements, it is necessary to 
list them on a separate table on the LOF (Table 3). NMFS clarifies 
which fisheries in Table 3 are extensions of fisheries operating in 
U.S. waters by placing a ``*'' after the fishery name. NMFS will