List of Fisheries for 2010, 58859-58901 [E9-27431]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 74, Number 219 (Monday, November 16, 2009)]
[Rules and Regulations]
[Pages 58859-58901]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-27431]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 229

[Docket No. 090218194-91045-02]
RIN 0648-AX65


List of Fisheries for 2010

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

ACTION: Final rule.

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SUMMARY: The National Marine Fisheries Service (NMFS) publishes its 
final List of Fisheries (LOF) for 2010, as required by the Marine 
Mammal Protection Act (MMPA). The final 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: This final rule is effective January 1, 2010.

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 email to David_Rostker@omb.eop.gov.

FOR FURTHER INFORMATION CONTACT: Melissa Andersen, Office of Protected 
Resources, 301-713-2322; David Gouveia, Northeast Region, 978-281-9280; 
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:
    NMFS, Northeast Region, 55 Great Republic Drive, Gloucester, MA 
01930-2298, Attn: Marcia Hobbs;
    NMFS, Southeast Region, 263 13th Avenue South, St. Petersburg, FL 
33701, Attn: Anne Ney;
    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: Protected Resources Division;
    NMFS, Alaska Region, Protected Resources, P.O. Box 22668, 709 West

[[Page 58860]]

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 and Stocks are Included as 
Incidentally Killed or Injured in a Fishery?

    The LOF includes a list of marine mammal species and stocks 
incidentally killed or injured in each commercial fishery. To determine 
which species and 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.
    When reliable information and sufficient levels of observer 
coverage are available, the most recent five years of data are used to 
determine whether a species or stock should be added to, or deleted 
from, the list of species and stocks incidentally killed or injured in 
each commercial fishery. 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 and 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 58861]]

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 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. 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 the 
fishery operating within U.S. waters (listed in Table 1 or 2). In these 
fisheries, a single vessel may set both within the U.S. Exclusive 
Economic Zone (EEZ) and on the high seas during a single fishing trip. 
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.
    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; the MMPA's 
requirements in section 118 do not apply to treaty Indian tribal 
fisheries. NMFS explained this decision in the final rule stating (the 
remaining text in this paragraph is quoted direction from the final 
rule at 60 FR 45086, August 30, 1995), `` 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 (Public Law 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.)
    NMFS considered, among other things, the public comments received 
on the proposed 2010 LOF and the 1994 amendments to the MMPA and 
accompanying legislative history to re-evaluate its 1995 conclusion to 
exempt tribal fisheries from the LOF (60 FR 45086, August 30, 1995) 
should be changed due to Anderson v. Evans. NMFS determined that 
Anderson v. Evans did not alter NMFS' original analysis in the final 
rule implementing section 118 of the MMPA (60 FR 45086, August 30, 
1995); therefore, the inclusion of tribal fisheries on the LOF at this 
time is not warranted. NMFS will continue to work on a government-to-
government basis with the affected treaty tribal governments to gather 
data on injuries and mortalities of marine mammals incidental to tribal 
fisheries. Additional information on NMFS' decision to continue to 
exclude tribal fisheries from the LOF is provided below in the response 
to comments 1-5 in the section ``Comments and Responses.''

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 be registered 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 be 
registered with NMFS or obtain a marine mammal authorization.

What is the Registration Process?

    NMFS has integrated the MMPA registration process, known as 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

[[Page 58862]]

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 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 state or Federal permit is required 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 marine mammal that ingests fishing gear or any 
marine mammal 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)) or vessels operating in 
North Carolina fisheries observed under the Alternative Platform 
Program. 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 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 
through 229.36.

Sources of Information Reviewed for the Final 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 three 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 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

[[Page 58863]]

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/.

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 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 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 the island of Maui, but 
the species and extent of interactions are unknown.

Comments and Responses

    NMFS received 11 comment letters on the proposed 2010 LOF (74 FR 
27739, June 11, 2009). Comments were received from the California 
Department of Fish and Game, California Wetfish Producers Association, 
Center for Biological Diversity, Columbia River Inter-Tribal Fish 
Commission, Eighteen Western Washington Indian Tribes, Garden State 
Seafood Association, Hawaii Longline Association, Makah Tribal Council, 
Makah Tribe's marine mammal biologist, Marine Conservation Alliance, 
and Marine Mammal Commission. Comments on issues outside the scope of 
the LOF were noted, but are not responded to in this final rule.

Comments on Tribal Treaty Fisheries Inclusion on the 2010 LOF

    During the public comment phase for the then-proposed 2009 LOF, 
NMFS received a comment requesting the 2009 LOF be amended to include 
tribal fisheries. The commenter stated that ``in light of the 
subsequent holding of the Ninth Circuit in Anderson v. Evans...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 is no longer valid'' (73 FR 73039, 
December 1, 2008; comment/response 4). In response to this 2009 LOF 
comment, NMFS included a request for public comment in the proposed 
2010 LOF (74 FR 27739, June 11, 2009) on whether or not to include 
treaty tribal fisheries on future LOFs. Below, NMFS summarizes each 
comment received on the 2010 proposed LOF related to tribal fisheries 
and issues one response following the collective tribal fisheries 
comments.
    Comment 1: The Center for Biological Diversity (CBD) reiterated a 
comment on the 2009 LOF (73 FR 73039, December 1, 2008; comment/
response 4), noting that in an earlier decision the Ninth Circuit Court 
of Appeals determined that MMPA requirements applied to the Makah 
application to hunt gray whales (Anderson v. Evans, 371 F.3d 475 (9th 
Cir. 2004)). The CBD stated that the decision demonstrated that MMPA 
requirements can be harmonized with

[[Page 58864]]

treaty rights. Therefore, the CBD encouraged NMFS to move forward with 
determining how best to harmonize tribal fishing and treaty rights with 
MMPA requirements such that all fisheries operating in US waters are 
included in the LOF and categorized as I, II or III, as appropriate.
    Comment 2: The Marine Mammal Commission (MMC) recommended NMFS (1) 
include tribal fisheries on the LOF, (2) revise its regulations 
implementing section 118 (e.g., 50 C.F.R. Sec.  229.1 (d)) to clarify 
that treaty tribal fisheries are subject to the requirements of the 
MMPA, including section 118, and (3) begin working with the affected 
tribes to integrate the registration process with existing licensing or 
permitting systems if it appears that some tribal fisheries will be 
listed as category I or category II fisheries.
    Comment 3: The Makah Tribe presented data indicating that tribal 
incidental takes of marine mammals do not present any conservation 
issues notwithstanding NMFS' 1995 decision to exclude treaty tribal 
fisheries from the LOF. The Makah Tribe compiled data regarding 
incidental take in its treaty fisheries and requires that all mortality 
or injury resulting from an incidental take, required in Makah Tribal 
regulations to be reported to the Tribe, and submits an annual report 
to NMFS. Records of these reports have been kept since the Tribe hired 
a marine mammal biologist in 2003. In general the rate of incidental 
take of marine mammals during fishing operations is low. From 2003-
2009, the Makah Tribal fisheries incidentally killed 12 harbor seals (1 
in 2003, 6 in 2004, 4 in 2008, 1 in 2009), 1 Dall's porpoise (in 2004), 
5 harbor porpoise (2 in 2004, 3 in 2008), 6 unknown small odontocetes 
(in 2005), 1 Steller sea lion (in 2008), 1 unidentified sea lion (in 
2008), and 2 sea otters (in 2004). One unidentified whale and one gray 
whale were successfully released after entanglement (in 2005 and 2009, 
respectively).
    The Makah tribe noted that, despite a long history of interactions 
between Makah Tribal fishers and marine mammals, these animals remain 
abundant, as indicated by NMFS' SARs. Observed take of marine mammals 
by the Makah Tribe's treaty fisheries is well below PBR for each stock. 
In addition, populations of marine mammal stocks which are most likely 
to interact with Makah tribal fisheries have either increased or 
remained stable since the MMPA was amended in 1994 and NMFS determined 
that treaty tribal fisheries would not be included in the LOF: CA sea 
lions have increased 5.6 percent/year since the 1970s; WA/OR stock of 
harbor seals has been stable since 1996; Inland WA stock of harbor 
seals has been stable at carrying capacity since 1994; Outer coast 
stock of harbor porpoises has been stable; Inland WA stock of harbor 
porpoise 2002 population estimate is three times more than the 1996 
estimate; Eastern stock of Steller sea lions increased 3.1 percent/year 
(with regional variances); and WA stock of sea otters increased at 8 
percent/year.
    Comment 4A: The Makah Indian Tribe outlined three arguments 
(comments 4A, 4B, and 4C in this final rule) for the continued 
exclusion of treaty tribal fisheries from the LOF, based on its 
experience with the MMPA and as a party to Anderson v. Evans. The Makah 
Indian Tribe also joined and fully incorporated the comments in the 
joint tribal letter submitted by eighteen other Western Washington 
treaty tribes (see comments 5A, 5B, and 5C in this final rule) 
asserting that NMFS' 1995 rule interpreting the relationship between 
the Tribe's treaty-reserved right to take fish and Section 118 of the 
MMPA has not been affected by Anderson v. Evans and continues to be 
valid. Therefore, the Makah Tribe recommends that NMFS reaffirm its 
1995 decision that treaty tribal fisheries are not subject to the 
MMPA's mandatory registration and that treaty tribal fisheries will not 
be included in the LOF.
    The Makah Tribe's first argument for the continued exclusion of 
treaty tribal fisheries from the LOF was that the proper reading of the 
1994 MMPA Amendments' treaty savings clause (section 14) protects 
incidental take of marine mammals by tribal fishers because the treaty 
fishing right, as understood by the Indian signatories, includes the 
right to take marine mammals incidental to tribal fisheries.
    Comment 4B: The Makah Tribe's second argument for the continued 
exclusion of treaty Tribal fisheries from the LOF was that Anderson v. 
Evans was wrongly decided (a position which the United States has also 
repeatedly expressed) and, therefore, should not be extended to the 
LOF. The Makah Tribe asserted that although Anderson v. Evans addressed 
direct take of marine mammals such as the Makah gray whale hunt, by its 
own terms it does not apply to the question of incidental take in 
treaty tribal fisheries. Therefore, the Makah Tribe believed NMFS need 
not and should not extend the decision to the issues of mandatory 
registration and inclusion in the LOF.
    During the Anderson v. Evans case, the United States took the 
position that the panel opinion was incorrectly based on numerous 
fundamental errors in reaching its conclusion. In the Makah Tribe's 
opinion, if NMFS were to extend Anderson v. Evans to the LOF issue, it 
would further reinforce the panel's numerous incorrect applications of 
settled precedent and directly contradict the United States' ongoing 
disagreement with the case. Moreover, the Makah Tribe concluded that it 
would substantially undermine the Makah's and other western Washington 
Tribes' treaty rights notwithstanding their express protection by the 
1994 Amendments. The Makah Tribe believed such a decision would 
contravene Congress's express intent.
    Comment 4C: The Makah Tribe's third argument for the continued 
exclusion of treaty Tribal fisheries from the LOF was that the Makah 
Tribe does and will continue to work with NMFS to protect marine 
mammals. The Makah Tribe noted that NMFS' 1995 rule excluding treaty 
tribal fisheries from the LOF was based in part on the extensive 
cooperation between the tribes and NMFS in managing tribal fisheries, 
including their interactions with marine mammals (See 60 FR at 45096, 
Aug. 30, 1995). The Makah Tribe noted that in the 1995 final rule, NMFS 
found that tribal self-regulation and cooperation with NMFS were 
instrumental to the agency achieving its responsibilities to protect 
marine mammals.
    Comment 5A: NMFS received two separate letters, each representing 
multiple Washington Indian tribes that were similar to each other in 
the arguments presented. Therefore, the two comments presented in the 
two letters are summarized together below. The first letter represented 
the comments of the Columbia River Inter-Tribal Fish Commission (Nez 
Perce, Umatilla, Warm Springs and Yakama Tribes), the second letter 
represented the joint comments of eighteen Indian Tribes of western 
Washington State (Lummi Nation, Quinault Indian Nation, Swinomish 
Indian Tribal Community, and Nooksack, Tulalip, Suquamish, Squaxin 
Island, Nisqually, Puyallup, Sauk-Suiattle, Skokomish, Muckleshoot, 
Port Gamble, Jamestown, Lower Elwha, Upper Skagit, Quileute, and 
Stillaguamish Indian Tribes), collectively, the ``Tribes.'' The Tribes 
outlined three arguments (comments 5A, 5B, and 5C in this final rule) 
asserting that NMFS' 1995 conclusion that treaty fisheries are properly 
excluded from the LOF (60 FR 45086, August 30, 2009; at 45096) was 
correct, and remains correct.
    The Tribes' first argument was that NMFS' 1995 conclusion remains 
correct

[[Page 58865]]

because the Tribes' rights are reserved by various treaties and the 
U.S. has broad trust responsibility to the Tribes.
    Comment 5B: The Tribes' second argument was that NMFS' 1995 
conclusion regarding Tribal fisheries remains correct because it is not 
affected by the rulings of the Ninth Circuit in Anderson v. Evans. The 
Tribes asserted that Anderson v. Evans involved the Makah Tribe's 
exercise of its express whaling rights in the Treaty of Neah Bay, and 
was wholly unrelated to the Makah Tribe's - or any other Tribes' - 
treaty right to take fish. The Tribes argued that the Anderson v. Evans 
court did not address the applicability of the 1994 MMPA amendments to 
treaty fisheries or the exercise of any other treaty rights, but 
instead focused solely on the applicability of the MMPA's general take 
prohibition, which has no Indian treaty savings clause, to the Makah 
Tribe's gray whale hunt. The Tribes asserted that as a result of the 
narrow scope of the case, the court did not address - nor did it have 
any reason to address - the MMPA's provisions governing incidental take 
of marine mammals in commercial fisheries, much less treaty tribal 
fisheries. In the Tribes' opinion, because Anderson v. Evans did not 
address Section 118 of the Act, the 1994 amendments (including the 
treaty savings clause) or the 1995 rule, it is inapplicable to the 2010 
LOF rulemaking. The Tribes also asserted that the incidental take of 
marine mammals in treaty fisheries is well within the treaty rights 
protected by the 1994 treaty savings clause, a statute which must be 
construed liberally in favor of the Indians.
    Comment 5C: The Tribes' third argument was that NMFS' 1995 
conclusion regarding Tribal fisheries remains accurate because the 
Tribes' regulate their fisheries (including interactions with marine 
mammals) and NMFS retains authority to regulate tribal fisheries should 
the principle of conservation necessity deem it necessary. In the 
Tribes' opinion, NMFS need not take the radical step of reversing its 
1995 rule with respect to treaty tribal fisheries and the LOF because, 
as a practical and legal matter, the agency is fully capable of 
protecting marine mammals under the existing rule. Finally, the Tribes 
noted that, just as in 1995 when NMFS asserted its authority to 
regulate tribal fisheries under the treaty rights principle of 
conservation necessity, NMFS retains that option should the impact of 
treaty tribal fisheries on certain marine mammal species reach the 
threshold to apply the conservation necessity principle. Thus, NMFS 
retains the authority to regulate treaty fisheries under appropriate 
circumstances.
    Response: 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 Indian treaties; 
therefore, the MMPA's requirements in section 118 do not apply to 
treaty Indian tribal fisheries. NMFS explained this decision in the 
1995 final rule stating (the remaining text in this paragraph is quoted 
directly from the final rule at 60 FR 45086, August 30, 1995), `` 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 (Public Law 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.)
    NMFS considered the public comments received on the proposed 2010 
LOF, existing Indian treaties providing rights for tribal fisheries, 
the statutory provisions and context of the MMPA, and the legislative 
history of the 1994 amendments to the MMPA in evaluating whether the 
1995 decision to exempt treaty tribal fisheries from the LOF should be 
changed due to Anderson v. Evans, 371 F.3d 475 (9th Cir. 2004). NMFS 
has determined that the facts and holding of Anderson v. Evans do not 
alter NMFS' original analysis in the final rule implementing section 
118 of the MMPA (60 FR 45086, August 30, 1995). Anderson v. Evans 
applied to directed hunt of marine mammals and not incidental take of 
marine mammals by fishers. Section 118 of the MMPA specifically 
regulates incidental take of marine mammals by commercial fishers. The 
court in Anderson v. Evans did not address the treaty savings clause, 
which restricts the application of section 118 in the context of tribal 
treaty rights. In addition, NMFS continues to adhere to a policy of 
implementing the Federal trust responsibility by protecting treaty 
fishing rights of tribes. NMFS also will continue to work closely with 
the affected tribal governments on a government-to-government basis to 
gather data on injuries and mortalities of marine mammals incidental to 
tribal fisheries. In light of the above, NMFS did not include in the 
2010 LOF the treaty tribal fisheries where tribal fishers exercise 
their treaty-protected fishing rights.
    Based on the information presented in the final 2008 SARs and 
provided in Indian Tribal self-reports, there is no indication that any 
marine mammal bycatch associated with tribal fisheries presents a 
biological concern for applicable stocks. In the event this becomes an 
issue, NMFS would consider invoking the treaty-rights principle of 
``conservation necessity'' to protect marine mammals.
    The 2008 SARs show that nine species have been or are incidentally 
seriously injured and killed in Pacific Northwest treaty tribe 
fisheries, though many of these species have not been seriously injured 
or killed in recent years. All of the takes by tribal fisheries listed 
in the 2008 SARs are from non-depleted stocks of marine mammals. One 
take occurring after publication of the 2008 SARs was from a depleted 
stock. Below is a summary of the information provided in the 2008 SARs 
as well as information available from tribal self-reporting since 
publication of the 2008 SARs. Please see the 2008 SARs for more 
detailed information on these stocks and/or their interactions with 
treaty tribal fisheries.
    (1) California sea lions: Current estimates of annual serious 
injury or mortality of this stock in tribal fisheries is zero to two 
animals/year. The stock's PBR level is 8,511.
    (2) Harbor seal (OR/WA coast): The Northern WA marine set gillnet 
(tribal fishery in coastal waters) fishery seriously injured or killed 
3 harbor seals in 2000 and 6 in 2004. The PBR for this stock is 1,343 
and the minimum total fishery mortality and serious injury is less than 
10 percent of the PBR. Therefore, fishery mortality and serious injury 
appears to be insignificant and approaching a zero mortality and 
serious injury rate.

[[Page 58866]]

    (3) Harbor seal (WA inland waters): The Puget Sound treaty and non-
treaty sockeye salmon gillnet fishery seriously injured or killed one 
harbor seal in 1994. The PBR for this stock is 771 and the minimum 
estimated fishery mortality and serious injury for this stock appears 
to be less than 10 percent of the PBR. Therefore, fishery mortality and 
serious injury appears to be insignificant and a approaching zero 
mortality and serious injury rate.
    (4) Harbor Porpoise (Northern CA/Southern OR): One harbor porpoise 
mortality was documented for the Klamath River tribal salmon gillnet 
fishery in 1995. The PBR for this stock is 259 and the minimum 
estimated fishery mortality and serious injury for this stock appears 
to be less than 10 percent of the PBR. Therefore, fishery mortality and 
serious injury appears to be insignificant and approaching a zero 
mortality and serious injury rate.
    (5) Harbor Porpoise (OR/WA coast): The Northern WA marine set 
gillnet (tribal fishery in coastal waters) fishery seriously injured or 
killed 3 harbor porpoise in 2000. In addition, 2 harbor porpoise (stock 
unknown) were reported killed in 2004 in a Makah Tribal fishery (Makah 
Tribe self-reports). Based on the range of the stock and the location 
of the Makah fisheries, the animals were either part of the OR/WA coast 
stock or the WA Inland Waters stock. The PBR for this stock is 277 and 
the minimum estimated fishery mortality and serious injury for this 
stock appears to be less than 10 percent of the PBR. Therefore, fishery 
mortality and serious injury appears to be insignificant and 
approaching zero mortality and serious injury rate.
    (6) Harbor Porpoise (WA inland waters): The Puget Sound treaty and 
non-treaty sockeye salmon gillnet fishery seriously injured or killed 
one harbor porpoise in 1994. As stated above, 2 harbor porpoise (stock 
unknown) were reported killed in 2004 in a Makah Tribal fishery (Makah 
Tribe self-reports). Based on the range of the stock and the location 
of the Makah fisheries, the animals were either part of the OR/WA coast 
stock or the WA Inland Waters stock. The PBR for this stock is 63. 
While the status of the WA Inland Waters stock relative to its Optimum 
Sustainable Population level and population trends is unknown, the 
uncorrected estimate of abundance in Washington inland waters was 
significantly greater in 2002-2003 than in 1996.
    (7) Dall's Porpoise (CA/OR/WA): The Puget Sound salmon drift 
gillnet tribal fishery seriously injured or killed one Dall's porpoise 
in the period from 2000 to 2004. The PBR for this stock is 318 and the 
minimum estimated fishery mortality and serious injury for this stock 
appears to be less than 10 percent of the PBR. Therefore, fishery 
mortality and serious injury appears to be insignificant and 
approaching a zero mortality and serious injury rate.
    (8) Sea otter (WA): Sea otters (WA) are managed by the U.S. Fish 
and Wildlife Service. According to the Service's 2008 SAR, the Makah 
Northern Washington marine set-gillnet fishery seriously injured or 
killed 11 sea otters over a period of 13 years between 1988 and 2001 
(2008 SAR) and 2 sea otters in 2004 (Makah Indian Tribe self-report). 
The stock has increased at a rate of 8 percent since 1989. The PBR for 
this stock is 11 per year. The Service was unable to determine whether 
the level of human-caused mortalities and serious injuries are 
insignificant and approaching a zero mortality and serious injury rate, 
based on a lack of information on the level of all sources of human-
caused serious injury and mortality of this stock. However, the current 
population estimate of 1,125 is above the lower end of the Optimum 
Sustainable Population (60 percent of the maximum carrying capacity for 
the stock) (2008 SAR).
    In addition to the information provided in the 2008 SARs, recent 
self-reports from the Makah Indian Tribe show additional serious injury 
and mortality of marine mammal stocks not yet represented in the SARs 
(see comment 3 above). The Makah Indian Tribe's self-reported data 
indicate that Makah fisheries interacted with three marine mammal 
stocks in 2008 and 2009.
    (1) In 2009, a gray whale was entangled in a Makah fishery and 
released alive. The Eastern North Pacific gray whales are currently 
considered to be at the stock's Optimum Sustainable Population size 
(2008 SAR).
    (2) In 2008, a Steller sea lion was killed in a Makah fishery. 
Based on the geographical range of the species, this animal was most 
likely from the Eastern stock of Steller sea lions, which is listed as 
threatened under the ESA and therefore considered depleted under the 
MMPA. Based on currently available data, the minimum estimated U. S. 
commercial fishery-related mortality and serious injury for Eastern 
Steller sea lions is less than that 10 percent of the stock's PBR of 
200 per year; therefore, fishery mortality and serious injury appears 
to be insignificant and approaching a zero mortality and serious injury 
rate (2008 SAR). In addition, the Eastern Steller sea lion population 
has been consistently increasing at an overall annual rate of 3.1 
percent throughout most of the range (Oregon to southeastern Alaska), 
which may indicate that this stock is reaching Optimum Sustainable 
Population size (2008 SAR).
    (3) In 2008, 3 harbor porpoises were killed in a Makah fishery. 
While the stock is unknown, based on the geographic range of the stock 
and the location of the Makah fisheries, the animals were either part 
of the OR/WA coast stock or the WA Inland Waters stock. As stated 
above, the PBR for this OR/WA coast stock is 277 and the minimum 
estimated fishery mortality and serious injury for this stock appears 
to be less than 10 percent of the PBR. Therefore, fishery mortality and 
serious injury appears to be insignificant and approaching zero 
mortality and serious injury rate. Also stated above, while the status 
of the WA Inland Waters stock relative to its Optimum Sustainable 
Population level and population trends is unknown, the uncorrected 
estimate of abundance in Washington inland waters was significantly 
greater in 2002-2003 than in 1996 (2008 SARs).
    NMFS will continue to work closely with the affected tribal 
governments on a government-to-government basis to gather data on 
injuries and mortalities of marine mammals incidental to tribal 
fisheries.

General Comments

    Comment 6: The MMC recommended, based on their recommendation that 
tribal fisheries be included on the LOF (comment/response 2 above), 
that NMFS notify all treaty tribes believed to be engaged in hunting 
that any directed taking of marine mammals requires authorization under 
the MMPA. In reviewing the SARs prepared by NMFS under section 117 of 
the MMPA, the MMC noted that tribal hunting of harbor seals and 
California sea lions is included as a possible source of mortality. The 
MMC asserted that if such hunting is in fact ongoing, it would be 
subject to the same analysis as the proposed taking of gray whales at 
issue in Anderson v. Evans and would presumably require authorization 
under the MMPA.
     Response: NMFS acknowledges this comment; however, this comment is 
not applicable to the LOF rulemaking at hand. The LOF categorizes 
fisheries based solely on the incidental, not intentional, serious 
injury and mortality to marine mammals. However, this comment is 
relevant to the SARs rulemaking process; therefore, NMFS will address 
this comment as part of the comments received during the comment period 
for the proposed 2009 SARs

[[Page 58867]]

(June 26, 2009-September 24, 2009; overlapping with the comment period 
for the proposed 2010 LOF).
    Comment 7: The MMC recommended NMFS incorporate into the applicable 
SARs language similar to that included in the SAR for the Washington 
stock of sea otters prepared by the U.S. Fish and Wildlife Service to 
clarify that, in accordance with the ruling in Anderson v. Evans, any 
such taking requires authorization under the MMPA.
    Response: NMFS acknowledges this comment; however, this comment is 
not applicable to the LOF rulemaking at hand. This comment is relevant 
to the SARs rulemaking process; therefore, NMFS will address this 
comment as part of the comments received during the comment period for 
the proposed 2009 SARs (June 26, 2009-September 24, 2009; overlapping 
with the comment period for the proposed 2010 LOF).
    Comment 8: The Garden State Seafood Association (GSSA) requested 
that NMFS provide the number of vessels which reported landings for 
specific fisheries and gear types, along with estimated number of 
vessels or persons in individual fisheries currently reported on the 
LOF. The GSSA noted that this information would be specifically 
pertinent when considering the ``Mid Atlantic mid-water trawl'' fishery 
and the ``Northeast mid-water trawl'' fishery. The GSSA stated that 
recently the number of vessels who reported landings using a mid-water 
trawl in the Mid-Atlantic was approximately 17 vessels.
    Response: NMFS agrees that including information on the number of 
vessels landing catches to compare to the estimated number of permit 
holders could be helpful for providing an accurate description of 
effort in each fishery. However, while this information is readily 
available for some fisheries, gathering this information in other 
fisheries may be more complicated. It is unclear if the information 
would be readily available from state agencies. NMFS will consult with 
the responsible state agencies and consider incorporating this 
additional data for each fishery in future LOFs.
    Comment 9: The CBD reiterated a comment made on the 2009 LOF that 
the LOF lists over 40 fisheries that are known to interact with ESA-
listed marine mammals. Only one fishery, the ``CA/OR thresher shark/
swordfish drift gillnet'' fishery, has authorization to take ESA-listed 
marine mammals. The CBD asserted that each of the other fisheries is 
therefore operating in violation of the both the ESA and MMPA. The CBD 
further asserted that 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: NMFS received a similar comment on the 2009 LOF. As noted 
in NMFS' response to comments in the final 2009 LOF (73 FR 73032, 
December 1, 2008; comment/response 2), the CBD's comment refers to how 
NMFS authorizes takes of ESA listed marine mammals incidental to 
commercial fishing. The MMPA requires fishermen 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 fishermen 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 or 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 
and 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 continuing this process of making these 
determinations in various fisheries on the LOF. Since the publication 
of the final 2009 LOF, NMFS has been reviewing available bycatch data 
for ESA-listed species in fisheries on the LOF.
    Comment 10: The CBD reiterated a comment made on the 2008 and 2009 
LOFs that the proposed 2010 LOF includes a table of fisheries subject 
to take reduction teams. While CBD found this table is very useful, 
they noted that there are Category I and II fisheries not yet subject 
to take reduction teams that also meet the statutory criteria for the 
convening of such teams. The CBD asserted that Category I and II 
fisheries not yet subject to take reduction teams which interact with 
strategic stocks must have take reduction teams promptly convened. The 
CBD viewed the Hawaii pelagic longline fishery as the highest priority 
for such a team as take continues to exceed PBR for the false killer 
whale.
    Response: NMFS received similar comments on the 2008 and 2009 LOFs. 
As noted in the responses to comments on the 2008 LOF (72 FR 66048, 
November 27, 2007; comment/response 6) and 2009 LOF (73 FR 73032, 
December 1, 2008; comment/response 3), 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 and stocks whose level 
of incidental mortality and serious injury exceeds PBR, has a small 
population size, and are declining most rapidly, pursuant to MMPA 
section 118(f)(3).
    Comment 11: The CBD reiterated a comment made on the 2009 LOF that 
the LOF once again includes ``Marine Aquaculture Fisheries'' as 
Category III fisheries. As stated in the past, the CBD does not believe 
aquaculture facilities are properly considered ``commercial fishing 
operations'' eligible for the take authorization contained in Section 
118 of the MMPA. The CBD asserted that these facilities and activities, 
to the degree they interact with marine mammals, should be subject to 
the take prohibitions and permitting regimes contained in Section 101 
of the MMPA.
    Response: NMFS received a similar comment on the 2009 LOF. As noted 
in the responses to comments on the 2009 LOF (73 FR 73032, December 1, 
2008; comment/response 5), 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 a ``commercial fishing operation'' as ``the catching, 
taking, or harvesting of fish from the marine environment * * * The 
term includes * * * aquaculture activities.'' Further, ``fishing or to 
fish'' is defined as ``any commercial fishing operation.'' Therefore, 
aquaculture fisheries are considered commercial fisheries that are 
managed under section 118 of the

[[Page 58868]]

MMPA, including inclusion on the annual LOF.
    Comment 12: Consistent with its recommendations regarding the 2005 
through 2009 LOFs, the MMC reiterated its previous recommendation that 
NMFS indicate the level of observer coverage for each fishery as part 
of the LOF.
    Response: NMFS received similar comments on the 2005 through 2009 
LOFs. As noted in the responses to comments on the 2005 LOF (71 FR 247, 
January 2, 2006; comment/response 6), 2006 LOF (71 FR 48802, August 22, 
2006; comment response 4), 2007 LOF (72 FR 14466, March 28, 2007; 
comment/response 8), 2008 LOF (72 FR 66048, November 27, 2007; comment/
response 4), and 2009 LOF (73 FR 73032, December 1, 2008; comment/
response 1), NMFS continues to feel that the LOF is not the appropriate 
avenue for reporting this data because it will confuse rather than 
clarify if presented without all the associated information supplied in 
the SARs. Also, the LOF is not meant to be redundant to the SARs, but 
to base fishery classifications based on the information