List of Fisheries for 2010, 27739-27766 [E9-13714]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 74, Number 111 (Thursday, June 11, 2009)]
[Proposed Rules]
[Pages 27739-27766]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-13714]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 229

[Docket No. 090218194-9196-01]
RIN 0648-AX65


List of Fisheries for 2010

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

ACTION: Proposed rule.

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SUMMARY: The National Marine Fisheries Service (NMFS) publishes its 
proposed List of Fisheries (LOF) for 2010, as required by the Marine 
Mammal Protection Act (MMPA). The proposed LOF for 2010 reflects new 
information on interactions between commercial fisheries and marine 
mammals. NMFS must categorize each commercial fishery on the LOF into 
one of three categories under the MMPA based upon the level of serious 
injury and mortality of marine mammals that occurs incidental to each 
fishery. The categorization of a fishery in the LOF determines whether 
participants in that fishery are subject to certain provisions of the 
MMPA, such as registration, observer coverage, and take reduction plan 
requirements.

DATES: Comments must be received by August 10, 2009.

ADDRESSES: Send comments by any one of the following methods.
    (1) Electronic Submissions: Submit all electronic comments through 
the Federal eRulemaking portal: https://www.regulations.gov (follow 
instructions for submitting comments).
    (2) Mail: Chief, Marine Mammal and Sea Turtle Conservation 
Division, Attn: List of Fisheries, Office of Protected Resources, NMFS, 
1315 East-West Highway, Silver Spring, MD 20910.
    Comments regarding the burden-hour estimates, or any other aspect 
of the collection of information requirements contained in this 
proposed rule, should be submitted in writing to Chief, Marine Mammal 
and Sea Turtle Conservation Division, Office of Protected Resources, 
NMFS, 1315 East-West Highway, Silver Spring, MD 20910, or to David 
Rostker, OMB, by fax to 202-395-7285 or by email to David_Rostker@omb.eop.gov.
    Instructions: All comments received are a part of the public record 
and will generally be posted to https://www.regulations.gov without 
change. All personal identifying information (for example, name, 
address, etc.) voluntarily submitted by the commenter may be publicly 
accessible. Do not submit confidential business information or 
otherwise sensitive or protected information. NMFS will accept 
anonymous comments (enter ``N/A'' in the required fields, if you wish 
to remain anonymous). Attachments to electronic comments will be 
accepted in Microsoft Word, Excel, WordPerfect, or Adobe PDF file 
formats only.
    See SUPPLEMENTARY INFORMATION for a listing of all Regional 
Offices.

FOR FURTHER INFORMATION CONTACT: Melissa Andersen, Office of Protected 
Resources, 301-713-2322; David Gouveia, Northeast Region, 978-281-9280; 
Anne Ney, Southeast Region, 727-551-5758; Elizabeth Petras, Southwest 
Region, 562-980-3238; Brent Norberg, Northwest Region, 206-526-6733; 
Bridget Mansfield, Alaska Region, 907-586-7642; Lisa Van Atta, Pacific 
Islands Region, 808-944-2257. Individuals who use a telecommunications 
device for the hearing impaired may call the Federal Information Relay 
Service at 1-800-877-8339 between 8 a.m. and 4 p.m. Eastern time, 
Monday through Friday, excluding Federal holidays.

SUPPLEMENTARY INFORMATION:

Availability of Published Materials

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

[[Page 27740]]

    NMFS, Northeast Region, Fifty five Great Republic 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 classification of a fishery on the 
LOF determines whether participants in that fishery may be required to 
comply with certain provisions of the MMPA, such as registration, 
observer coverage, and take reduction plan requirements. NMFS must 
reexamine the LOF annually, considering new information in the Marine 
Mammal Stock Assessment Reports (SAR) and other relevant sources, and 
publish in the Federal Register any necessary changes to the LOF after 
notice and opportunity for public comment (16 U.S.C. 1387 (c)(1)(C)).

How Does NMFS Determine in which Category a Fishery is Placed?

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

Fishery Classification Criteria

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

Other Criteria That May Be Considered

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

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

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

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

    Data obtained from observers and the level of observer coverage are 
important tools in estimating the level of marine mammal mortality and 
serious injury in commercial fishing operations. The best available 
information on the level of observer coverage, and the spatial and 
temporal distribution of observed marine mammal interactions, is 
presented in the SARs. Starting with the 2005 SARs, each SAR includes 
an appendix with detailed descriptions of each Category I and II 
fishery in the LOF, including observer coverage. The SARs generally do 
not provide detailed information on observer coverage in Category III 
fisheries because, under the

[[Page 27741]]

MMPA, Category III fisheries are not required to accommodate observers 
aboard vessels due to the remote likelihood of mortality and serious 
injury of marine mammals. Information presented in the SARs' appendices 
includes: level of observer coverage, target species, levels of fishing 
effort, spatial and temporal distribution of fishing effort, 
characteristics of fishing gear and operations, management and 
regulations, and interactions with marine mammals. Copies of the SARs 
are available on the NMFS Office of Protected Resource's website at: 
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 website: https://www.st.nmfs.gov/st4/nop/.

How Do I Find Out if a Specific Fishery is in Category I, II, or III?

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

Are High Seas Fisheries Included on the LOF?

    Beginning with the 2009 LOF, NMFS includes high seas fisheries in 
Table 3 of the LOF, along with the number of valid High Sea Fishing 
Compliance Act (HSFCA) permits in each fishery. As of 2004, NMFS issues 
HSFCA permits only for high seas fisheries analyzed in accordance with 
the National Environmental Policy Act (NEPA) and the Endangered Species 
Act (ESA). The authorized high seas fisheries are broad in scope and 
encompass multiple specific fisheries identified by gear type. For the 
purposes of the LOF, the high seas fisheries are subdivided based on 
gear type (e.g., trawl, longline, purse seine, gillnet, troll, etc.) to 
provide more detail on composition of effort within these fisheries. 
Many fisheries operate in both U.S. waters and on the high seas, 
creating some overlap between the fisheries listed in Tables 1 and 2 
and those in Table 3. In these cases, the high seas component of the 
fishery is not considered a separate fishery, but an extension of a 
fishery operating within U.S. waters (listed in Table 1 or 2). NMFS 
designates those fisheries in Tables 1, 2, and 3 by a ``*'' after the 
fishery's name. The number of HSFCA permits listed in Table 3 for the 
high seas components of these fisheries operating in U.S. waters do not 
necessarily represent additional fishers that are not accounted for in 
Tables 1 and 2. Many fishers holding these permits also fish within 
U.S. waters and are included in the number of vessels and participants 
operating within those fisheries in Table 1 and 2.
    HSFCA permits are valid for five years, during which time FMPs can 
change. Therefore, some fishers may possess valid HSFCA permits without 
the ability to fish under the permit because it was issued for a gear 
type that is no longer authorized under the most current FMP. For this 
reason, the number of HSFCA permits displayed in Table 3 is likely 
higher than the actual U.S. fishing effort on the high seas. For more 
information on how NMFS classifies high seas fisheries on the LOF, see 
the preamble text in the final 2009 LOF (73 FR 73032; December 1, 
2008).

Are Treaty Tribal Fisheries Included on the LOF?

    In the final rule implementing section 118 of the MMPA (60 FR 
45086, August 30, 1995) NMFS concluded that treaty tribal fisheries are 
conducted under the authority of the Indian treaties; therefore, the 
MMPA's requirements in section 118 do not apply to treaty Indian 
tribes. NMFS stated, `` the rights to fish and hunt are already secured 
separately for Northwest tribes pursuant to their treaties with the 
United States. NMFS reviewed the relationship of the Northwest Indian 
treaties to the MMPA and did not find clear evidence that Congress 
intended to abrogate treaty Indian rights. Section 14 of the Amendments 
to the MMPA (Pub. L. No. 103-238) states 'Nothing in this Act, 
including any amendments to the Marine Mammal Protection Act of 1972 
made by this Act -- alters or is intended to alter any treaty between 
the United States and one or more Indian tribes.' This provision 
clarifies that existing treaty Indian fishing rights are not affected 
by the amendments to the MMPA. Therefore, tribal fisheries are 
conducted under the authority of the Indian treaties rather than the 
MMPA, and the MMPA's mandatory registration systems do not apply to 
treaty Indian fishers operating in their usual and accustomed fishing 
areas. Since inclusion of the treaty Indian fisheries in the LOF would 
also establish an obligation to obtain an MMPA registration under 
section 118, NMFS has deleted reference to tribal fisheries in the LOF. 
The registration requirements for Category I or II fisheries will not 
apply to treaty Indian tribes.'' (60 FR 45086, August 30, 1995.)
    During the public comment phase for the proposed 2009 LOF, NMFS 
received a comment requesting the LOF be amended to include tribal 
fisheries (73 FR 73039, December 1, 2008; comment/response 4). The 
commenter stated that because 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, NMFS' 
1995 conclusion exempting tribal fisheries from the LOF and the Section 
118 authorization process may no longer be valid. NMFS responded in the 
final 2009 LOF that the Agency would consider the comment during the 
development of future proposed LOFs (73 FR 73039, December 1, 2008; 
comment/response 4).
    NMFS is evaluating whether or not the 1995 conclusion to exempt 
tribal fisheries from the LOF should be changed due to Anderson v. 
Evans. At this time, NMFS is seeking public comment on whether or not 
to include treaty tribal fisheries on future LOFs during the public 
comment period for the proposed 2010 LOF.

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 non-endangered and non-threatened 
marine mammal incidental to commercial fishing. Owners of vessels or 
gear engaged in a Category III fishery are not required to 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 are not required to submit registration 
or renewal materials directly under the MMAP. In the Pacific Islands, 
Southwest, Northwest, and Alaska regions, NMFS will issue vessel or 
gear owners an authorization certificate; in the Northeast and 
Southeast Regions, NMFS will issue vessel or gear owners notification 
of registry and directions on obtaining an authorization certificate. 
The authorization certificate, or a copy, must be on board the vessel 
while it is operating in a Category I or II fishery, or

[[Page 27742]]

for non-vessel fisheries, in the possession of the person in charge of 
the fishing operation (50 CFR 229.4(e)). Although efforts are made to 
limit the issuance of authorization certificates to only those vessel 
or gear owners that participate in Category I or II fisheries, not all 
state and Federal permit systems distinguish between fisheries as 
classified by the LOF. Therefore, some vessel or gear owners in 
Category III fisheries may receive authorization certificates even 
though they are not required for Category III fisheries. Individuals 
fishing in Category I and II fisheries for which no state or Federal 
permit is required must register with NMFS by contacting their 
appropriate Regional Office (see ADDRESSES).

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

    All vessel or gear owners that participate in Pacific Islands, 
Southwest, Northwest, or Alaska regional fisheries will receive their 
authorization certificates and/or injury/mortality reporting forms via 
U.S. mail, or with their State or Federal license at the time of 
renewal. Vessel or gear owners participating in the Northeast and 
Southeast Regional Integrated Registration Program will receive their 
authorization certificates as follows:
    1. Northeast Region vessel or gear owners participating in Category 
I or II fisheries for which a state or Federal permit is required may 
receive their authorization certificate and/or injury/mortality 
reporting form by contacting the Northeast Regional Office at 978-281-
9328 or by visiting the Northeast Regional Office Web site (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 will 
receive notice of registry and may receive their authorization 
certificate and/or injury/mortality reporting form by contacting the 
Southeast Regional Office at 727-551-5758 or by visiting the Southeast 
Regional Office Web site (https://sero.nmfs.noaa.gov/pr/pr.htm) and 
following instructions for printing the necessary documents.

How Do I Renew My Registration Under the MMPA?

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

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

    In accordance with the MMPA (16 U.S.C. 1387(e)) and 50 CFR 229.6, 
any vessel owner or operator, or gear owner or operator (in the case of 
non-vessel fisheries), participating in a Category I, II, or III 
fishery must report to NMFS all incidental injuries and mortalities of 
marine mammals that occur during commercial fishing operations. 
``Injury'' is defined in 50 CFR 229.2 as a wound or other physical 
harm. In addition, any 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. However, observer 
requirements will not be exempted for U.S. Atlantic Ocean, Caribbean, 
Gulf of Mexico large pelagics longline vessels operating in special 
areas designated by the Pelagic Longline Take Reduction Plan 
implementing regulations (50 CFR 229.36(d)). Observer requirements can 
be found in 50 CFR 229.7.

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

    Fishers participating in a Category I or II fishery are required to 
comply with any applicable TRP regulations. Table 4 in this proposed 
rule provides a list of fisheries affected by take reduction teams and 
plans. Take reduction plan regulations can be found at 50 CFR 229.30 
through 229.35.

Sources of Information Reviewed for the Proposed 2010 LOF

    NMFS reviewed the marine mammal incidental serious injury and 
mortality information presented in the SARs for all observed fisheries 
to determine whether changes in fishery classification were warranted. 
The SARs are based on the best scientific information available at the 
time of preparation, including the level of serious injury and 
mortality of marine mammals that occurs incidental to commercial 
fisheries and the PBR levels of marine mammal stocks. The information 
contained in the SARs is reviewed by 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 proposed LOF for 2010 was based, among other things, on 
information provided in the NEPA and ESA documents analyzing authorized 
high seas fisheries, and the final SARs for 1996 (63 FR 60, January 2, 
1998), 2001 (67 FR 10671, March 8, 2002), 2002 (68 FR 17920, April 14, 
2003), 2003 (69 FR 54262, September 8, 2004), 2004 (70 FR 35397, June 
20, 2005), 2005 (71 FR 26340, May 4, 2006), 2006 (72 FR 12774, March 
19, 2007), 2007 (73 FR 21111, April 18, 2008), and 2008 (74 FR 19530, 
April 29, 2009). The SARs are available at: https://www.nmfs.noaa.gov/pr/sars/.

[[Page 27743]]

Fishery Descriptions

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

American Samoa Longline Fishery

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

HI Shortline Fishery

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

CA Spiny Lobster Trap Fishery

    The Category II ``CA spiny lobster trap'' fishery operates in 
southern California, with the highest proportion of landings made into 
Santa Barbara. The fishery operates from the first Wednesday in October 
to the first Wednesday after March 15. The fishery tends to be most 
productive during the first two months, when gear is set close to shore 
in shallow water (15 fathoms or less). By the end of the season, traps 
are set in waters deeper than 50 fathoms. This is a limited access 
fishery with both transferable and non-transferable permits. An 
estimated 225 permits are in use each year. There is no restriction on 
the number of traps set, but most vessels set 100 to 500 traps per day. 
Traps are generally fished singularly and are required to have a buoy 
marker with the owner's license number, followed by the letter ``P'' to 
signify that it is a spiny lobster trap. This estimated number of 
vessels/participants in this fishery is 225.

Summary of Changes to the LOF for 2010

    The following summarizes changes to the LOF for 2010 in fishery 
classification, fisheries listed in the LOF, the estimated number of 
vessels/participants in a particular fishery, and the species/stocks 
that are incidentally killed or seriously injured in a particular 
fishery. The classifications and definitions of U.S. commercial 
fisheries for 2010 are identical to those provided in the LOF for 2009 
with the proposed changes discussed below. State abbreviations used in 
the following paragraphs include: AK (Alaska), CA (California), HI 
(Hawaii), MD (Maryland), NC (North Carolina), NJ (New Jersey), SC 
(South Carolina), and VA (Virginia).

Commercial Fisheries in the Pacific Ocean

Fishery Classification
    NMFS proposed to elevate the ``American Samoa longline'' fishery 
from Category III to Category II based on analogy with other Category I 
and II longline fisheries in the tropical/sub-tropical latitudes of the 
Pacific. The fishing gear and methods used to fish in the ``American 
Samoa longline'' fishery are similar to the Category I ``HI deep-set 
(tuna target) longline/set line'' and

[[Page 27744]]

the Category II ``HI shallow-set (swordfish target) longline/set line'' 
fisheries, both fisheries which frequently or occasionally seriously 
injure or kill marine mammals. The ``American Samoa longline'' fishery, 
although a Category III, has been observed since 2006 with an average 
of 7.2 percent coverage. There were three interactions between the 
``American Samoa longline'' fishery and marine mammals in 2008, two 
false killer whales (stock unknown), one of which was a mortality, and 
one rough-tooth dolphin (stock unknown). These interactions will be 
analyzed by the Southwest Fisheries Science Center (SWFSC) during the 
development of the 2010 SARs to determine whether or not the surviving 
animals were injured or seriously injured during these interactions. 
The analysis may also enable NMFS to determine whether or not the false 
killer whales interacting with this fishery are from the HI stock which 
interacts with the ``HI deep-set (tuna target) longline/set line'' 
fishery, or if the animals belong to a separate stock associated with 
American Samoa. Although the abundance estimate and the PBR for the 
false killer whales are unknown, the population around American Samoa 
may be a relatively small, island-associated population, as has been 
documented around other Pacific Islands. When completed, the results of 
these analyses will be reported and addressed in future LOFs.
    NMFS proposes to reclassify the ``AK southeast salmon purse seine'' 
fishery from Category II to Category III. The current Category II 
classification is based on one permit holder self-report of an 
incidental mortality of a humpback whale (Central North Pacific) in 
this fishery in 1996. There are no further self-reports, known 
entanglements, or anecdotal information of any humpback whales or other 
marine mammals injured or killed in this fishery since 1996. Though 
entanglements of humpbacks occur annually in Southeast Alaska, gear 
found on such animals in Southeast Alaska has never been identified as 
purse seine gear. While the ``AK southeast salmon purse seine'' fishery 
has never been observed, NMFS reasons that some additional information 
on incidental takes would have come to light over the thirteen years 
since the first report if there were a level of serious injury and 
mortality of concern in this fishery, either through strandings/
entanglement network data or permit holder self-reports.
    NMFS stated in a response to public comments in the final 2009 LOF 
that the agency would review sperm whale (North Pacific) interactions 
in the Category III ``Gulf of Alaska sablefish longline'' fishery. The 
2008 SAR reports three sperm whales were observed seriously injured in 
this fishery in 2006 (with 11.2 percent observer coverage), which 
extrapolates to 10 sperm whales from 2002-2006 (or an average annual 
serious injury or mortality level of two sperm whales/year). Analysis 
for more recent years' data is not complete, and there is no calculated 
PBR for this stock. Therefore, no change to this fishery's category is 
recommended at this time. NMFS will continue to review sperm whale 
interactions with this fishery and will revisit the classification of 
the fishery on future LOFs, if warranted, once the more recent years' 
data are analyzed and reported.
    NMFS proposes to classify the ``CA spiny lobster trap'' fishery 
(proposed to be split from the Category III ``CA spiny lobster, 
coonstripe shrimp, rock crab, tanner crab pot or trap'' fishery, 
proposed to be renamed the ``CA coonstripe shrimp, rock crab, tanner 
crab pot or trap'' fishery, in this proposed rule) as Category II based 
on serious injuries to humpback whales (CA/OR/WA). The NMFS Large Whale 
Disentanglement Network (LWDN) reported four humpback whale 
entanglement events off CA resulting in serious injury, with various 
types of fishing gear, in 2007. (Details on humpback whale 
entanglements on the west coast prior to 2007 can be found in the 2009 
proposed LOF (73 FR 33760; June 13, 2008.)) The gear involved in a July 
2007 entanglement event that caused a serious injury to a humpback 
whale was identified as lobster trap gear. The total annual rate of 
mortality and serious injury (Tier 1 analysis) of humpback whales (CA/
OR/WA) in all commercial fisheries from 2002 through 2006 exceeds 10 
percent of the PBR level for this stock (final 2008 SAR). This single 
serious injury of a humpback whale in lobster trap gear results in an 
average mortality and serious injury rate of 0.2 humpback whales/year 
(when averaged over 5 years), or 8 percent of the PBR (2.5). Therefore, 
Category II classification is warranted. NMFS acknowledges that 
entanglements reported to the LWDN likely represent a minimum number of 
interactions. There is no observer coverage in this fishery.
     NMFS proposes to reclassify the ``CA pelagic longline'' fishery 
from Category II to Category III. This fishery includes the shallow-set 
longline fishery that previous to 2004 operated on the high seas with 
most vessels landing in CA. In 2004, this fishery was prohibited inside 
the EEZ under a regulation promulgated under the ESA in order to 
protect loggerhead sea turtles. This fishery also includes a deep-set 
longline fishery that developed since 2005. The classification of this 
fishery as Category II was based upon analogy with other pelagic 
longline fisheries and an injury of a Risso's dolphins (CA/OR/WA) in 
2003. In addition, one mortality of an unidentified dolphin was 
observed in this fishery in 2003. The total annual fishery mortality 
and serious injury of Risso's dolphins (CA/OR/WA) in all commercial 
fisheries (Tier 1 analysis) is less than10 percent of the stock's PBR 
(final 2008 SAR); therefore, Category III classification is warranted. 
NMFS has no information to indicate that the ``CA pelagic longline'' 
fishery interacts with other marine mammal species/stocks and observer 
coverage is high in this fishery (ranged from 12 percent to 50 percent 
from 2003-2005, and was 100 percent in 2006 and 2007).
Addition of Fisheries to the LOF
    NMFS proposes to add the ``CA spiny lobster trap'' fishery Category 
II fishery (see the discussion in the previous section for details).
    NMFS proposes to add the ``HI shortline'' fishery as Category II 
based on analogy with the Category I ``HI deep-set (tuna-target) 
longline/set line'' and Category II ``HI shallow-set (swordfish-target) 
longline/set line'' fisheries. NMFS recently became aware of the 
operation of this commercial fishery. NMFS proposes to classify the 
``HI shortline'' fishery as Category II by analogy to the HI longline 
fisheries based on similarities between the gear used, areas fished, 
and species targeted in the three fisheries. NMFS has received 
anecdotal reports of interactions with marine mammals in this fishery; 
however, the species and extent of the interactions are unknown. For 
more information, see the description of this fishery in the ``Fishery 
Descriptions'' section of this proposed rule.
Fishery Name and Organizational Changes and Clarifications
    NMFS proposes to rename the Category III ``CA spiny lobster, 
coonstripe shrimp, rock crab, tanner crab pot or trap'' fishery to the 
``CA coonstripe shrimp, rock crab, tanner crab pot or trap'' fishery to 
more accurately reflect the target species of the fishery. As explained 
above, the spiny lobster portion of this fishery is proposed to be 
added to 2010 LOF as a separate Category II fishery. The estimated 
number of vessels/participants in the Category III ``CA

[[Page 27745]]

coonstripe shrimp, rock crab, tanner crab pot or trap'' fishery is 305.
List of Species That are Incidentally Killed or Injured
    NMFS proposes to change the stock name for false killer whales 
incidentally killed/injured in the ``HI deep-set (tuna-target) 
longline/set line'' fishery from ``HI'' to ``HI pelagic.'' The 2008 
SARs separates the ``HI'' stock into the ``HI insular'' and ``HI 
pelagic'' stocks, stating that all of the false killer whale injuries 
and mortalities due to interactions with longline fisheries are 
considered to be from the ``HI pelagic'' stock (74 FR 19530, April 29, 
2009).
    NMFS proposes to add pantropical spotted dolphin (stock unknown) to 
the list of species/stocks incidentally killed/injured in the Category 
I ``HI deep-set (tuna target) longline/set line'' fishery based on a 
documented mortality in 2008. While analysis of the 2008 observer data 
will not be finalized until publication of the 2010 SARs, NMFS proposes 
to add the species at this time because a mortality does not need to be 
analyzed to determine the severity (as is necessary for an animal 
released after an interaction). The average observer coverage over the 
past five years was 22.7 percent.
    NMFS proposes to remove spinner dolphin (HI) from the list of 
species/stocks incidentally killed/injured in the Category I ``HI deep-
set (tuna target) longline/set line'' fishery because there have been 
no observed interactions in the past five years. The average observer 
coverage over the past five years was 22.7 percent.
    NMFS proposes to remove pantropical spotted dolphin (stock unknown) 
from the list of species/stocks incidentally killed/injured in the 
Category II ``HI shallow-set (swordfish target) longline/set line'' 
fishery. There have been no observed interactions in the past five 
years and observer coverage is 100 percent.
    NMFS indicated in the final 2009 LOF (73 FR 73032, December 1, 
2008; comment response 15) that the agency would reexamine 2008 
observer data which reported an interaction between the Category II 
``HI shallow-set (swordfish target) longline/set line'' fishery and a 
false killer whale. NMFS is not proposing to add false killer whales to 
the list of species/stocks incidentally killed/injured in the ``HI 
shallow-set (swordfish target) longline/set line'' fishery at this 
time. As stated in the final 2009 LOF (comment response 15), the data 
presented in the annual SARs have an average of a two-year time delay 
because of the time needed to properly analyze the data and complete 
the peer-review process. Therefore, this 2008 interaction will be 
analyzed by the SWFSC during the development of the 2010 SARs to 
determine whether or not the animal was injured or seriously injured 
during this interaction. If the SWFSC analysis reveals the animal was 
injured during the interaction, NMFS will add false killer whales to a 
future LOF at that time.
    NMFS proposes to add false killer whale (stock unknown) to the list 
of species/stocks incidentally killed/injured in the ``American Samoa 
longline'' fishery (proposed to be elevated from Category III to 
Category II in this proposed rule) based on a mortality reported in 
2008. As stated above during NMFS' justification for proposing to 
elevate this fishery to Category II, there were two reported 
interactions with false killer whales (stock unknown) (one interaction 
resulted in the animal's mortality and the other animal was released 
alive with the injury status not yet analyzed), and one with a rough-
toothed dolphin (stock unknown) (also released alive with the injury 
status not yet analyzed). NMFS proposes to add false killer whale 
(stock unknown) to the list of species/stocks incidentally killed/
injured because the mortality does not need to be analyzed further to 
determine the level of injury to the animal. However, NMFS is not 
proposing to add rough-toothed dolphin (stock unknown) to list of 
species/stocks incidentally killed/injured until after the SWFSC 
completes the analysis of the interaction and determines whether or not 
the animal was injured during the interaction. If the analysis reveals 
that the animal was injured during this interaction, NMFS will add 
rough-toothed dolphin (stock unknown) to a future LOF at that time.
    NMFS proposes to remove humpback whales (Central North Pacific) 
from the list of species/stocks incidentally killed or injured in the 
``AK southeast salmon purse seine'' fishery (proposed to be 
reclassified from Category II to Category III in this proposed rule). 
There are no self-reports, known entanglements, or anecdotal 
information of any humpback whales or other marine mammals injured or 
killed in this fishery since 1996. This fishery has never been 
observed, but stranding and entanglement networks are active in the 
area.
    NMFS proposes to change the stock name for Northern fur seals on 
the list of species/stocks incidentally killed or injured in the 
Category II ``AK Bering Sea, Aleutian Islands flatfish trawl'' fishery 
from ``Eastern North Pacific'' to ``Eastern Pacific,'' to correct a 
typographical error. This stock has been referred to as the ``Eastern 
Pacific'' stock since the 1998 SARs.
    NMFS proposes to remove short-finned pilot whales (CA/OR/WA) from 
the list of species/stocks incidentally killed or injured in the 
Category II ``CA squid purse seine'' fishery. NMFS has reviewed the 
available information on the distribution and abundance of short finned 
pilot whales, along with observer records, self-reports from the 
fishers, and the SWR stranding data base, and has concluded that the 
likelihood of interactions between this fishery and short-finned pilot 
whales (CA/OR/WA) is extremely remote. Short-finned pilot whales were 
once commonly seen off the coast of CA, but have become quite rare in 
recent years (Barlow and Forney 2007). Observer coverage in the ``CA 
squid purse seine'' fishery began in 2004 with less than 10 percent 
observer coverage. In 2005 and 2006, observer coverage was 
approximately 2.0 percent and 1.3 percent, respectively.
    NMFS proposes to add a superscript ``1'' after long-beaked common 
dolphins (CA) in the list of species/stocks incidentally killed or 
injured in the Category II ``CA squid purse seine'' fishery. This 
fishery was classified as a Category II based on the level of serious 
injury and mortality of short-finned pilot whales (CA/OR/WA), which 
NMFS proposes to remove from the list of species/stocks incidentally 
killed or injured in this proposed rule (see preceding paragraph). The 
``CA squid purse seine'' fishery will remain a Category II fishery due 
to a serious injury with a suspected long-beaked common dolphin. As 
described in the final 2009 LOF (73 FR 73032, December 1, 2008) an 
unidentified common dolphin was observed entangled and seriously 
injured during an interaction with the squid purse seine fishery in 
2006 in an area where long-beaked common dolphins (CA) are known to 
occur. Given the area in which the interaction occurred, the 
unidentified common dolphin could have been a short-beaked common 
dolphin (CA) or a long-beaked common dolphin (CA). Due to the paucity 
of the information on the interaction and the low level of observer 
coverage in this fishery, NMFS cannot eliminate the possibility that a 
long-beaked common dolphin was seriously injured during this event. The 
level of serious injury of long-beaked common dolphin in this fishery, 
when extrapolated from the level of observer coverage, results in a 
mean annual mortality and serious injury of approximately 29 animals, 
which is 30 percent of the stock's PBR (95) and consistent with 
Category II

[[Page 27746]]

classification. Observer coverage in the ``CA squid purse seine'' 
fishery began in 2004 with less than 10 percent observer coverage. In 
2005 and 2006, observer coverage was approximately 2.0 percent and 1.3 
percent, respectively.
    NMFS proposes to add humpback whale (CA/OR/WA) and gray whale 
(Eastern North Pacific) to the list of species/stocks incidentally 
killed or injured in the ``CA spiny lobster'' fishery (proposed to be 
classified as Category II in this proposed rule), with a superscript 
``1'' after humpback whales, indicating that takes of this stock are 
driving the classification of the fishery. As described above, a 
humpback whale was reported seriously injured due to an entanglement in 
spiny lobster trap gear in July 2007, resulting in an average annual 
serious injury and mortality level of 8 percent of the stock's PBR. 
Gray whales (Eastern North Pacific) have also been reported 
incidentally killed or injured in this fishery. NMFS has received 
multiple reports of gray whales entangled in trap/pot gear off CA, 
including a report from April 2000 of a dead gray whale stranded on a 
beach in Santa Barbara County entangled in spiny lobster trap gear. 
Interactions with gray whales are not driving the Category II 
classification of this fishery. Currently, total commercial fishery-
related annual mortality levels less than10 percent of the stock's PBR 
(final 2007 SAR); therefore, a Tier 2 evaluation is not necessary.
    NMFS is requesting public comment and/or information on two large 
whale entanglement events in 2007. On May 10, 2007, a free-swimming 
humpback whale was reported seriously injured with pink monofilament 
gillnet draped on its body. The animal was first seen offshore of Dana 
Point and was seen again later the same day off Palos Verdes Bay Club, 
of Palos Verdes, CA. On April 2, 2007, a free-swimming gray whale was 
reported entangled in and seriously injured by small mesh blue/green 
monofilament gillnet. The animal was seen at Rocky Point, near Rancho 
Palos Verdes, CA. No other information is available on the sightings. 
Based upon the area and time of year that these animals were sighted, 
gear from either or both of the Category II ``CA halibut/white seabass 
and other species set gillnet (3.5 in mesh)'' or the ``CA yellowtail, 
barracuda, and white seabass drift gillnet (mesh size [gteqt]3.5 in and 
<14 in)'' fisheries could have caused the entanglement events. As 
described in the proposed 2009 LOF (73 FR 33760, December 1, 2005), 
NMFS must consider which fisheries operate in the same time and area as 
an observed entangled marine mammal. Both gillnet fisheries were active 
at the time and area when the humpback whale and gray whale were 
observed entangled in gillnet gear. The ``CA halibut/white seabass and 
other species set gillnet (>3.5 in mesh)'' fishery was observed only 
once between 2003 and 2007, with 17.8 percent coverage in 2007. The 
``CA yellowtail, barracuda, and white seabass drift gillnet (mesh size 
[gteqt]3.5 in and <14 in)'' fishery was observed twice between 2003 and 
2007, with 10.4 percent and 11.0 percent coverage in 2003 and 2004, 
respectively. NMFS is continuing to review the available information on 
the types of gear used in each fishery, and the distribution of each 
fishery and large whales during the time of the entanglement events. 
NMFS is also specifically requesting available information on the gear 
characteristics of each fishery or the entanglement events reported 
above. NMFS may propose to add humpback whales (CA/OR/WA) and gray 
whales (Eastern North Pacific) to the list of species/stocks 
incidentally killed or injured in the Category II ``CA halibut/white 
seabass and other species set gillnet (3.5 in mesh)'' and/or ``CA 
yellowtail, barracuda, and white seabass drift gillnet (mesh size 
[gteqt]3.5 in and <14 in)'' fisheries to the final 2010 LOF or a future 
LOF, if warranted.
    NMFS proposes to remove CA sea lion (U.S.) from the list of 
species/stocks incidentally killed or injured in the ``CA pelagic 
longline'' fishery (proposed to be reclassified as Category III in this 
proposed rule). CA sea lions (U.S.) were included on the list of 
species/stocks incidentally killed or injured in this fishery based on 
logbook reports when the fishery was originally included on the LOF in 
1996. There have been no reported interactions since that time. 
Observer coverage in this fishery ranged from 12 percent to 50 percent 
from 2003-2005, and was 100 percent in 2006 and 2007.

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

Fishery Name and Organizational Changes and Clarifications
    NMFS proposes to replace the existing description of the Category I 
``Mid-Atlantic gillnet fishery from the final 2008 LOF (72 FR 66048; 
November 27, 2007) and changes to the description outlined in the final 
2007 LOF (73 FR 73032; December 1, 2008) with the following updated 
language, to reflect multiple amendments, including changes in state 
regulations, over the past several years: ``The Category I Mid-Atlantic 
gillnet fishery targets monkfish, spiny dogfish, smooth dogfish, 
bluefish, weakfish, menhaden, spot, croaker, striped bass, large and 
small coastal sharks, Spanish mackerel, king mackerel, American shad, 
black drum, skate spp., yellow perch, white perch, herring, scup, 
kingfish, spotted seatrout, and butterfish. The fishery uses drift and 
sink gillnets, including nets set in a sink, stab, set, strike, or 
drift fashion, with some unanchored drift or sink nets used to target 
specific species. The dominant material is monofilament twine with 
stretched mesh sizes from 2.5-12 in (6.4-30.5 cm), and string lengths 
from 150-8,400 ft. (46-2,560 m). This fishery operates year-round west 
of a line drawn at 72[deg] 30' W. long. south to 36[deg] 33.03' N. lat. 
(VA/NC border) and east to the eastern edge of the EEZ and north of the 
NC/SC border, not including waters where Category II and Category III 
inshore gillnet fisheries operate in bays, estuaries, and rivers. This 
fishery includes any residual large pelagic driftnet effort in the mid-
Atlantic, any shark and dogfish gillnet effort in the mid-Atlantic, and 
those North Carolina small and large mesh beach-anchored gillnets 
formerly placed in the Category II Mid-Atlantic haul/beach seine 
fishery in the mid-Atlantic zone described. This NC component fishing 
effort is prosecuted right off the beach (6 ft [1.8 m]) or in nearshore 
coastal waters to offshore waters (250 ft [76 m]). Gear in this fishery 
is managed by several federal and interstate FMPs managed by the 
Atlantic States Marine Fisheries Commission (ASMFC), the Atlantic Large 
Whale Take Reduction Plan (ALWTRP), the Harbor Porpoise Take Reduction 
Plan (HPTRP), and the Bottlenose Dolphin Take Reduction Plan (BDTRP). 
Fisheries are primarily managed by total allowable catch limits; 
individual trip limits (quotas); effort caps (limited number of days at 
sea per vessel); time and area closures; and gear restrictions and 
modifications.''
    NMFS proposes to replace the existing description of the Category 
II ``Mid-Atlantic haul/beach seine'' fishery from the final 2008 LOF 
(72 FR 66048; November 27, 2007) and changes to the description 
outlined in the final 2007 LOF (73 FR 73032; December 1, 2008) with the 
following updated language, to reflect multiple amendments, including 
changes in state regulations, over the past several years: ``The 
Category II Mid-Atlantic haul/beach seine fishery targets striped bass, 
mullet, spot, weakfish, sea trout, bluefish, kingfish, and harvestfish 
using seines with one end secured (e.g., swipe nets and long seines) 
and seines secured at both ends or those anchored to the beach and 
hauled up on the

[[Page 27747]]

beach. The beach seine system also uses a bunt and a wash net that are 
attached to the beach and extend into the surf. The fishery occurs in 
waters west of 72[deg] 30' W. long. and north of a line extending due 
east from the NC/SC border. The only haul/beach seine gear operating in 
NC included in this Category II fishery is the ``Atlantic Ocean striped 
bass beach seine fishery'' during the winter, as regulated by NC Marine 
Fisheries Commission rules (NCDMF) and NCDMF proclamations. NCDMF 
defines a beach seine operating under the Atlantic Ocean Striped Bass 
beach seine fishery as a ``swipe net constructed of multifilament, 
multifiber webbing fished from the ocean beach that is deployed from a 
vessel launched from the ocean beach where the fishing operation takes 
place, and one end of the beach seine is attached to the shore at all 
times during the operation.'' All other NC small and large mesh beach-
anchored gillnets with webbing constructed of all monofilament material 
or a combination of monofilament and multifilament material were moved 
to the Category I Mid-Atlantic gillnet fishery in the final 2009 LOF 
because their construction and fishing technique were more similar to a 
gillnet than a traditional beach seine. A description of the gear and 
fishing practices for the haul/beach seine and small and large mesh 
beach-anchored gillnets operating in NC are found in the final 2008 LOF 
(72 FR 66048; November 27, 2007) and final 2009 LOF (73 FR 73032, 
December 1, 2008). In addition to the NC component as described above, 
the ``Mid-Atlantic haul/beach seine fishery also includes haul/beach 
seining in other areas of the mid-Atlantic, including NY through VA. 
Because the net materials and fishing practices of the Atlantic Ocean 
striped bass beach seine fishery in NC are different from haul seining 
in other areas, NMFS may consider splitting this fishery in the future. 
The Mid-Atlantic haul/beach seine fishery is managed under several 
state and Interstate FMPs and is an affected fishery under the BDTRP.''
Number of Vessels/Persons
    In past LOFs, the number of state participants for several 
northeast and mid-Atlantic fisheries was unknown and therefore the 
estimations for the number of vessels/persons participating in these 
fisheries were based solely on available federal information. This year 
NMFS has included available state permit information as well as federal 
permit information for the following northeast and mid-Atlantic fishery 
estimates. In some cases the addition of the state dataset has caused 
the fishery participation estimates to increase significantly compared 
to past LOFs. It should be noted that this may provide an artificial 
representation of fishery participation trends and may only reflect the 
addition of the new state dataset, not actual increases in the number 
of fishery participants.
    NMFS proposes to update the estimated number of vessels or persons 
in the Category I ``Mid-Atlantic gillnet'' fishery from >370 to 7,596.
    NMFS proposes to update the estimated number of vessels or persons 
in the Category I ``Northeast sink gillnet'' fishery from 341 to 
>6,455.
    NMFS proposes to update the estimated number of vessels or persons 
in the Category II ``Atlantic mixed species trap/pot'' fishery from 
unknown to >429.
    NMFS proposes to update the estimated number of vessels or persons 
in the Category II ``Mid-Atlantic menhaden purse seine'' fishery from 
22 to 34.
    NMFS proposes to update the estimated number of vessels or persons 
in the Category II ``Mid-Atlantic haul/beach seine'' fishery from 25 to 
>221.
    NMFS proposes to update the estimated number of vessels or persons 
in the Category II ``Mid Atlantic mid-water trawl'' fishery from 620 to 
400.
    NMFS proposes to update the estimated number of vessels or persons 
in the Category II ``Northeast bottom trawl'' fishery from 1052 to 
1,600.
    NMFS proposes to update the estimated number of vessels or persons 
in the Category II ``Northeast mid-water trawl'' fishery from 17 to 
1,000.
    NMFS proposes to update the estimated number of vessels or persons 
in the Category II ``VA pound net'' fishery from 187 to 62.
    NMFS proposes to update the estimated number of vessels or persons 
in the Category III ``Gulf of Maine Atlantic herring purse seine'' 
fishery from 30 to <10.
List of Species That are Incidentally Killed or Injured
    NMFS proposes to add the harbor porpoise (Gulf of Maine/Bay of 
Fundy (GME/BF)) to the list of marine mammal species/stocks 
incidentally killed or injured in the Category II ``Northeast bottom 
trawl fishery'' because of mortalities reported in the final 2008 SARs. 
NMFS removed this stock from the list of species/stocks incidentally 
killed or injured in this fishery on the final 2009 LOF (73 FR 73032; 
December 1, 2008) based on information from past LOFs indicating this 
listing represented a typographical error persisting since the final 
2005 LOF (71 FR 247; January 4, 2006). New information reported in the 
final 2008 SAR indicates there have been several incidental mortalities 
of harbor porpoises (GME/BF) in the Northeast bottom trawl between 2003 
and 2008. These observed takes have included one fresh dead harbor 
porpoise taken in 2003, four in 2005, and one in 2006. Estimates have 
not been generated or reported in the SARs for the percentage of the 
stock's PBR (PBR=610) seriously injured or killed in this fishery 
(final 2008 SARs). Based on this newly available data, NMFS proposes to 
relist the harbor porpoise (GME/BF) under species/stocks incidentally 
injured or killed in the ``Northeast bottom trawl'' fishery. Estimated 
observer coverage (measured in trips) for the ``Northeast bottom 
trawl'' fishery during the period 1994-2006 was 0.4, 1.1, 0.2, 0.2, 
0.1, 0.3, 1, 1, 3, 4, 5, 12 and 6 percent, respectively (final 2008 
SARs).
    NMFS proposes to remove fin whales (Western North Atlantic (WNA)) 
from the list of species/stocks incidentally killed or injured in the 
Category I ``Northeast/Mid-Atlantic American lobster trap/pot'' 
fishery. Fin whales were added to the LOF in 1997 based on an animal 
that was thought to have been entangled in lobster gear. However, 
subsequent analysis revealed the interaction was with hagfish pot gear, 
but the LOF was never updated to reflect this analysis. A fin whale has 
never been reported incidentally killed or injured in Northeast/Mid-
Atlantic American lobster trap/pot gear. Additionally, this fishery 
does not have observer coverage, although it should be noted that 
initial encounters between large whales and fishing gear are rarely 
observed.
    NMFS proposes to remove the superscript ``1'' after humpback whale 
(Gulf of Maine) and minke whale (Canadian east coast) in the Category I 
``Northeast/Mid-Atlantic American lobster trap/pot'' fishery because 
serious injury and mortality of these stocks are not driving the 
Category I classification of this fishery. Annual mortality and serious 
injury of humpback whales in all lobster fisheries is 0.2 animals (PBR 
1.1), or 18 percent of the stock's PBR (final 2008 SAR). Annual 
mortality and serious injury of minke whales in all lobster fisheries 
is 0.4 animals (PBR=19), or 2 percent of the stock's PBR (final 2008 
SAR). The level of annual mortality and serious injury of humpback and 
minke whales in the ``Northeast/Mid-Atlantic American lobster trap/
pot'' fishery is unknown at this time, but is likely less than 50 
percent of the stocks' PBRs. It is important to note that the date 
sighted

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and location provided in the SAR is not necessarily when or where the 
large whale serious injury or mortality occurred. The NMFS Northeast 
Regional Office (NERO) is currently working on a review of large wh