List of Fisheries for 2011, 68468-68504 [2010-28073]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 75, Number 215 (Monday, November 8, 2010)]
[Rules and Regulations]
[Pages 68468-68504]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-28073]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 229

[Docket No. 100216088-0454-02]
RIN 0648-AY69


List of Fisheries for 2011

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 2011, as required by the Marine 
Mammal Protection Act (MMPA). The final LOF for 2011 reflects new 
information on interactions between commercial fisheries and marine 
mammals. NMFS must classify each commercial fishery on the LOF into one 
of three categories under the MMPA based upon the level of serious 
injury and mortality of marine mammals that occurs incidental to each 
fishery. The classification of a fishery on 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, 2011.

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 Nathan Frey, 
OMB, by fax to 202-395-7285 or by e-mail to Nathan_Frey@omb.eop.gov.

FOR FURTHER INFORMATION CONTACT: Melissa Andersen, Office of Protected 
Resources, 301-713-2322; David Gouveia, Northeast Region, 978-281-9280; 
Laura Engleby, Southeast Region, 727-551-5791; Elizabeth Petras, 
Southwest Region, 562-980-3238; Brent Norberg, Northwest Region, 206-
526-6733; Bridget Mansfield, Alaska Region, 907-586-7642; Lisa Van 
Atta, Pacific Islands Region, 808-944-2257. Individuals who use a 
telecommunications device for the hearing impaired may call the Federal 
Information Relay Service at 1-800-

[[Page 68469]]

877-8339 between 8 a.m. and 4 p.m. Eastern time, Monday through Friday, 
excluding Federal holidays.

SUPPLEMENTARY INFORMATION:

Availability of Published Materials

    Information regarding the LOF and the Marine Mammal Authorization 
Program, including registration procedures and forms, current and past 
LOFs, information on each Category I and II fishery, observer 
requirements, and marine mammal injury/mortality reporting forms and 
submittal procedures, may be obtained at: 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: Laura Engleby;
NMFS, Southwest Region, 501 W. Ocean Blvd., Suite 4200, Long Beach, CA 
90802-4213, Attn: Charles Villafana;
NMFS, Northwest Region, 7600 Sand Point Way NE, Seattle, WA 98115, 
Attn: Protected Resources Division;
NMFS, Alaska Region, Protected Resources, P.O. Box 22668, 709 West 9th 
Street, Juneau, AK 99802, Attn: Bridget Mansfield; or
NMFS, Pacific Islands Region, Protected Resources, 1601 Kapiolani 
Boulevard, Suite 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 (i.e., frequent incidental mortality and serious injuries of 
marine mammals).
    Tier 2, Category II: Annual mortality and serious injury of a stock 
in a given fishery is greater than 1 percent and less than 50 percent 
of the PBR level (i.e., occasional incidental mortality and serious 
injuries of marine mammals).
    Tier 2, Category III: Annual mortality and serious injury of a 
stock in a given fishery is less than or equal to 1 percent of the PBR 
level (i.e., a remote likelihood or no known incidental mortality and 
serious injuries of marine mammals).
    While Tier 1 considers the cumulative fishery mortality and serious 
injury for a particular stock, Tier 2 considers fishery-specific 
mortality and serious injury for a particular stock. Additional details 
regarding how the categories were determined are provided in the 
preamble to the final rule implementing section 118 of the MMPA (60 FR 
45086, August 30, 1995).
    Because fisheries are classified on a per-stock basis, a fishery 
may qualify as one Category for one marine mammal stock and another 
Category for a different marine mammal stock. A fishery is typically 
classified on the LOF at its highest level of classification (e.g., a 
fishery qualifying for Category III for one marine mammal stock and for 
Category II for another marine mammal stock will be listed under 
Category II).

Other Criteria That May Be Considered

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

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

[[Page 68470]]

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 levels of observer coverage in a fishery on 
the LOF?

    Data obtained from the observer program and observer coverage 
levels 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 on the LOF, including observer coverage in 
those fisheries. The SARs generally do not provide detailed information 
on observer coverage in Category III fisheries because, under the MMPA, 
Category III fisheries are not required to accommodate observers aboard 
vessels due to the remote likelihood of mortality and serious injury of 
marine mammals. Fishery information presented in the SARs' appendices 
includes: Level of observer coverage, target species, levels of fishing 
effort, spatial and temporal distribution of fishing effort, 
characteristics of fishing gear and operations, management and 
regulations, and interactions with marine mammals. Copies of the SARs 
are available on the NMFS Office of Protected Resources' Web site at: 
https://www.nmfs.noaa.gov/pr/sars/. Information on observer coverage 
levels in Category I and II fisheries can also be found in the Category 
I and II fishery summary documents on the NMFS Office of Protected 
Resources Web site: https://www.nmfs.noaa.gov/pr/interactions/lof/. 
Additional information on observer programs in commercial fisheries can 
be found on the NMFS National Observer Program's Web site: 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 commercial 
fisheries in the Pacific Ocean (including Alaska); Table 2 lists all of 
the commercial fisheries in the Atlantic Ocean, Gulf of Mexico, and 
Caribbean; and Table 3 lists all U.S.-authorized commercial fisheries 
on the high seas. A fourth table, Table 4, lists all commercial 
fisheries managed under applicable 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 does 
not necessarily represent additional effort that is not accounted for 
in Tables 1 and 2. Many vessels/participants holding HSFCA permits also 
fish within U.S. waters and are included in the number of vessels and 
participants operating within those fisheries in Tables 1 and 2.
    HSFCA permits are valid for five years, during which time FMPs can 
change. Therefore, some vessels/participants may possess valid HSFCA 
permits without the ability to fish under the permit because it was 
issued for a gear type that is no longer authorized under the most 
current FMP. For this reason, the number of HSFCA permits displayed in 
Table 3 is likely higher than the actual U.S. fishing effort on the 
high seas. For more information on how NMFS classifies high seas 
fisheries on the LOF, see the preamble text in the final 2009 LOF (73 
FR 73032; December 1, 2008).

Where can I find specific information on fisheries listed on the LOF?

    NMFS developed summary documents for each Category I and II fishery 
on the LOF. These summaries provide the full history of each Category I 
and II fishery, including: When the fishery was added to the LOF, the 
basis for the fishery's initial classification, classification changes 
to the fishery, changes to the list of species or stocks incidentally 
killed or injured in the fishery, fishery gear and methods used, 
observer coverage levels, fishery management and regulation, and 
applicable take reduction plans or teams, if any. These summaries are 
updated after each final LOF. The summaries can be found under ``How Do 
I Find Out if a Specific Fishery is in Category I, II, or III?'' on the 
NMFS Office of Protected Resources' Web site: https://www.nmfs.noaa.gov/pr/interactions/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 non-endangered and non-threatened marine 
mammals incidental to commercial fishing operations. Owners of vessels 
or gear engaged in a Category III fishery are not required to register 
with NMFS or obtain a marine mammal authorization.

How do I register?

    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 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

[[Page 68471]]

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 Programs will receive their 
authorization certificates and/or injury/mortality reporting forms 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 the 
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 the instructions for printing the necessary documents.

How do I renew my registration under the MMPA?

    In Pacific Islands, Southwest, or Alaska regional fisheries, 
registrations of vessel or gear owners are automatically renewed and 
participants should receive an authorization certificate by January 1 
of each new year. In Northwest regional fisheries, vessel or gear 
owners receive authorization with each renewed state fishing license, 
the timing of which varies based on target species. In Northeast 
regional fisheries, authorization certificates will be mailed directly 
to all applicable State and Federal permit holders who have registered 
their permits during the previous calendar year. 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).
    In Southeast regional fisheries, vessel or gear owners may receive 
an authorization certificate by contacting the Southeast Regional 
Office or visiting the Southeast Regional Office Web site (https://sero.nmfs.noaa.gov/pr/pr.htm) and following the instructions for 
printing the necessary documents.

Am I required to submit reports when I injure or kill a marine mammal 
during the course of commercial fishing operations?

    In accordance with the MMPA (16 U.S.C. 1387(e)) and 50 CFR 229.6, 
any vessel owner or operator, or gear owner or operator (in the case of 
non-vessel fisheries), participating in a fishery listed on the LOF 
must report to NMFS all incidental injuries and mortalities of marine 
mammals that occur during commercial fishing operations, regardless of 
the category in which the fishery is placed (I, II or III) within 48 
hours of the end of the fishing trip. ``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 
or by contacting the appropriate Regional office (see ADDRESSES). 
Reporting requirements and procedures can be found in 50 CFR 229.6.

Am I required to take an observer aboard my vessel?

    Individuals participating in a Category I or II fishery are 
required to accommodate an observer aboard their vessel(s) upon request 
from NMFS. MMPA section 118 states that an observer will not be placed 
on a vessel if the facilities for quartering an observer or performing 
observer functions are inadequate or unsafe; thereby, exempting vessels 
too small to accommodate an observer from this requirement. However, 
observer requirements will not be exempted, regardless of vessel size, 
for U.S. Atlantic Ocean, Caribbean, Gulf of Mexico large pelagics 
longline vessels operating in special areas designated by the Pelagic 
Longline Take Reduction Plan implementing regulations (50 CFR 
229.36(d)). Observer requirements can be found in 50 CFR 229.7.

Am I required to comply with any take reduction plan regulations?

    Table 4 in this final rule provides a list of fisheries affected by 
take reduction plans and teams. Take reduction plan regulations can be 
found at 50 CFR 229.30 through 229.36.

Sources of Information Reviewed for the Final 2011 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 
fishery operations and the PBR levels of marine mammal stocks. The 
information contained in the SARs is reviewed by regional Scientific 
Review Groups (SRGs) representing Alaska, the Pacific (including 
Hawaii), and the U.S. Atlantic, Gulf of Mexico, and Caribbean. The SRGs 
were created by the MMPA to review the science that informs the SARs, 
and to advise NMFS on marine mammal population status, trends, and 
stock structure, uncertainties in the science, research needs, and 
other issues.
    NMFS also reviewed other sources of new information, including 
marine mammal stranding data, observer program data, fisher self-
reports, FMPs, and ESA documents.
    The final LOF for 2011 was based, among other things, on 
information provided in the NEPA and ESA documents analyzing authorized 
high seas fisheries, the final SARs for 1996 (63 FR 60, January 2, 
1998), 2001 (67 FR 10671, March 8, 2002), 2002 (68 FR 17920, April 14, 
2003), 2003 (69 FR 54262, September 8, 2004), 2004 (70 FR 35397, June 
20, 2005), 2005 (71 FR 26340, May 4, 2006), 2006 (72 FR 12774, March 
19, 2007), 2007 (73 FR 21111, April 18, 2008), 2008 (74 FR 19530, April 
29, 2009), 2009 (75 FR 12498, March 16, 2010), and the draft SARs for 
2010 (75 FR 46912, August 4, 2010). The SARs are available at: https://

[[Page 68472]]

www.nmfs.noaa.gov/pr/sars/. State and regional abbreviations used in 
the following sections include: CA (California), FL (Florida), GA 
(Georgia), GMX (Gulf of Mexico), HI (Hawaii), NC (North Carolina), OR 
(Oregon), SC (South Carolina), VA (Virginia), WA (Washington), and WNA 
(Western North Atlantic).

Fishery Descriptions

    Beginning with the final 2008 LOF (72 FR 66048, November 27, 2007), 
NMFS describes each Category I and II fishery on the LOF. Below, NMFS 
describes the fisheries classified as Category I or II on the 2011 LOF 
that were not classified as such on a previous LOF (and therefore have 
not yet been defined on the LOF). Additional details for Category I and 
II fisheries operating in U.S. waters are included in the SARs, FMPs, 
and TRPs, through state agencies, or through the fishery summary 
documents available on the NMFS Office of Protected Resources Web site 
(https://www.nmfs.noaa.gov/pr/interactions/lof/.) Additional details for 
Category I and II fisheries operating on the high seas are included in 
various FMPs, NEPA, or ESA documents.

WA Coastal Dungeness Crab Pot/Trap Fishery

    Washington's coastal commercial crab grounds extend from the 
Columbia River estuary to Cape Flattery, including Grays Harbor and 
Willapa Bay. The coastal crab fishery is a limited entry fishery with 
228 license holders, of which approximately 200 are active annually. 
Each coastal crab license is assigned a maximum pot limit of either 300 
or 500 pots. Pots are fished individually and must be marked with an 
identification number. Surface marker buoys must also be tagged for 
identification. The fishery opens on or about December 1 when the 
majority of male crabs have recovered from the fall molt and shell 
condition has hardened. The season runs through September 15. In 1997 
Congress granted Washington, Oregon and California jurisdiction to 
manage Dungeness Crab fisheries outside of state waters to the 200 mile 
limit of the U.S. EEZ. Under Washington state regulations, pots can be 
no larger than 13 cubic feet and must be equipped with specified escape 
rings for undersize crab and a biodegradable release mechanism to allow 
crabs to escape from pots that become separated from the buoy or have 
otherwise become lost. There is a summer FMP, which is part of the 
larger Washington Coastal Dungeness Crab FMP, in place to protect crabs 
that enter the molt prior to the September 15 season ending date. This 
summer FMP allows for in-season closures of the fishery if the 
percentage of early molting crab reaches a certain level.

Southeastern U.S. Atlantic, Gulf of Mexico Shrimp Trawl Fishery

    The ``Southeastern U.S. Atlantic, Gulf of Mexico shrimp trawl'' 
fishery is a pelagic or bottom trawl fishery operating virtually year-
round in the Atlantic Ocean from North Carolina through Florida, and in 
the Gulf of Mexico from Florida through Texas. Effort occurs in 
estuarine, near shore coastal waters, and along the continental slope 
of the Atlantic and estuarine, near shore coastal, and offshore 
continental shelf and slope waters in the Gulf of Mexico. The fishery 
targets brown, pink and white shrimp within estuaries, and near coastal 
and offshore regions; and targets Royal Red shrimp along the deep 
continental slope. Commercial shrimp vessels most commonly employ a 
double-rig otter trawl, which normally includes a lazy line attached to 
each bag's codend. The lazy line floats free during active trawling, 
and as the net is hauled back, it is retrieved with a boat- or 
grappling-hook to assist in guiding and emptying the trawl nets. Shrimp 
trawl soak time is about three hours; the fishery typically operates 
from sunset to sunrise when shrimp are most likely to swim higher in 
the water column. Although shrimp trawlers are required under ESA 
regulations to use turtle excluder devices to reduce sea turtle bycatch 
(50 CFR 223.206), the fishery currently does not use any method or gear 
modification to deter, or reduce bycatch of, marine mammals. 2009 data 
indicate there are approximately 4,950 shrimp trawl vessels operating 
in the Southeast Atlantic and Gulf of Mexico with an estimated 76,884 
vessel trips.

Comments and Responses

    NMFS received 9 comment letters on the proposed 2011 LOF (75 FR 
36318, June 25, 2010). Comments were received from the California 
Wetfish Producers Association, Hawaii Longline Association, Marine 
Mammal Commission, Natural Resources Defense Council, Oregon Department 
of Fish and Wildlife, United States Department of Interior, Washington 
Department of Fish and Wildlife, Western Pacific Fishery Management 
Council, and one private individual. Comments on issues outside the 
scope of the LOF were noted, but are not responded to in this final 
rule.

General Comments

    Comment 1: Since 2005, the Marine Mammal Commission (Commission) 
has recommended NMFS include observer coverage for each fishery on the 
LOF for use in evaluating the amount of confidence to place on reports 
of mortality or serious injury (or lack thereof) for marine mammals 
stocks. The Commission appreciated NMFS' efforts to provide additional 
information for Category I and II fisheries on the NMFS Web site. 
However, the Commission further recommended NMFS describe in the LOF 
the basis for confirming that a fishery warrants a Category III 
classification. The Commission also stated it would be useful to also 
have information on observer coverage in Category III fisheries to 
determine whether reliable information was collected to justify a 
Category III listing or if a fishery is Category III based on a lack of 
information.
    Response: NMFS generally agrees with the Commission that it is 
important for NMFS to provide its basis for classifying a fishery on 
the LOF. However, including observer coverage information in each LOF 
on its own will not fully explain why a fishery is classified as 
Category I, II, or III. As described in the preamble of each proposed 
and final LOF, including this final rule, NMFS classifies fisheries on 
the LOF based on an assessment of several factors. One of these factors 
includes information collected through observer programs. However, in 
many cases observer data for various fisheries are either inadequate or 
non-existent; therefore, quantitative data on the frequency of 
incidental mortality and serious injury is unavailable. Per the 
requirements in the MMPA's implementing regulations, in the absence of 
reliable information indicating the frequency of incidental mortality 
and serious injury of marine mammals by a commercial fishery, NMFS 
determines whether the incidental serious injury or mortality is 
``occasional'' or ``remote'' by ``evaluating other factors such as 
fishing techniques, gear used, methods used to deter marine mammals, 
target species, seasons and areas fished, qualitative data from 
logbooks or fisher reports, stranding data, the species and 
distribution of marine mammals in the area, and at the discretion of 
the Assistant Administrator for Fisheries'' (50 CFR 229.2). Therefore, 
including the level of observer coverage for each fishery in the LOF 
will not provide the reader with a complete picture of why a fishery is 
classified on the LOF as Category I, II, or III.
    NMFS includes the information used as the basis to classify a 
fishery as Category I, II, or III, on the LOF for the

[[Page 68473]]

year in which the fishery was added to the LOF and/or reclassified on 
the LOF. If there is no change to the fishery in subsequent LOFs, the 
information outlining why a fishery is classified as Category I, II, or 
III, is not then repeated in each subsequent LOF. Considering that the 
LOF is an annual rule that presents changes to previous LOFs, repeating 
this information in each LOF would create a Federal Register notice 
that would be overly lengthy and cumbersome for the readers to consider 
on an annual basis. For this reason, NMFS provides this information on 
Category I and II fisheries via the fishery summaries to be considered 
at the readers' discretion and included these on the NMFS Office of 
Protected Resources' Web site: https://www.nmfs.noaa.gov/pr/interactions/lof/.
    While NMFS has included, and will continue to include, the 
information used as the basis to classify a fishery as Category III in 
the appropriate LOF for the year in which each Category III fishery was 
added to, or reclassified on, the LOF, NMFS agrees that summarizing 
this information in one location could be useful for the reader. 
Therefore, NMFS will consider how to best provide this information for 
the readers, without creating an annual LOF rule that is overly lengthy 
and cumbersome, during the development of the 2012 LOF.
    Comment 2: Ms. Monasevitch noted that Tables 1-3 do not list the 
number of marine mammal species/stocks incidentally killed or injured, 
only the species/stock name. Can the counts be provided?
    Response: The number of marine mammal species/stocks incidentally 
killed or injured in each fishery on the LOF is included in tabular 
format in each Stock Assessment Report (SAR) and are therefore not 
repeated in each LOF. Please visit the NMFS Office of Protected 
Resources Web site to review the SARs by region or by stock: https://www.nmfs.noaa.gov/pr/sars/.
    Comment 3: The Department of the Interior (DOI) requested NMFS 
continue to coordinate with the Fish and Wildlife Service (FWS) on 
issues involving marine mammals under FWS management jurisdiction, 
including providing any reports of southern sea otters (which are 
excluded from the MMPA's section 118 provisions for authorizing 
incidental take) killed or injured in a commercial fishery.
    Response: NMFS will continue to coordinate with the FWS on all 
issues involving marine mammals under FWS jurisdiction, including sea 
otters, walrus, manatees, and polar bears. NMFS will also continue to 
provide FWS with all reports of interactions between commercial 
fisheries and all marine mammal species under FWS jurisdiction, 
including southern sea otters, that the Agency receives.
    Comment 4: The Hawaii Longline Association (HLA) asserted that NMFS 
cannot make final determinations in the LOF based on information that 
appears in draft SARs and has not been subjected to the public review 
and comment process. The HLA stated that the draft 2010 SAR is based, 
in significant part, on information contained in unpublished reports, 
``working'' papers, and reports containing ``preliminary estimates.'' 
The HLA asserted that this information is not sufficient to meet the 
MMPA's best available scientific information standard and that 
decisions based on this information is contrary to the MMPA, the 
Administrative Procedure Act (APA), and general principles of 
administrative transparency and scientific rigor.
    Response: NMFS responded to a similar comment on the final 2001 LOF 
(see comment/response 61; 66 FR 42780 August 15, 2001). NMFS agrees 
that the annual LOF must be based on the best available scientific 
information. For this reason, NMFS proposes changes to the annual LOF 
on the most current, peer-reviewed version of the SARs. The draft 2010 
SARs used as the basis for the proposed and final 2011 LOFs were 
reviewed by the authors' peers within NMFS Fisheries Science Centers 
and by the Regional SRGs, which were established by the MMPA 117(d) to 
advise NMFS on the status of marine mammal stocks and to provide input 
on the draft SARs before they are released for public input. Basing the 
LOF on best available scientific information includes basing the LOF on 
the most current analyzed data. 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. For 
that reason, the SRG-reviewed draft SAR presents the most current 
analyzed data and is considered the best available scientific 
information. When a peer-reviewed draft SAR is available, the final SAR 
from the previous year is no longer the best available information on 
which to base changes to the annual LOF. Therefore, by basing LOF 
changes on the most recent peer-reviewed SAR, whether draft or final, 
NMFS satisfies the requirements of the MMPA.
    NMFS ensures transparency in the LOF rulemaking process by making 
the draft SARs available for public review prior to or during the 
public comment period for each proposed LOF. The proposed 2011 LOF 
opened for a 60-day public review period on June 25, 2010 (closing 
August 24, 2010). The draft 2010 SARs opened for a 90-day public review 
period on August 4, 2010. This allowed 20 days for review of the draft 
2010 SARs before the close of the proposed 2011 LOF's public comment 
period. The overlapping availability of the public comment periods on 
the proposed LOF and the draft SARs allows the public to review the 
information upon which the LOF is based.

Comments on Commercial Fisheries in the Pacific Ocean

    Comment 5: The DOI supported the continued inclusion of southwest 
AK northern sea otters, south central AK northern sea otters, and 
Pacific walrus on the list of species/stocks incidentally killed or 
injured in the ``AK Kodiak salmon set gillnet,'' ``AK Prince William 
Sound salmon drift gillnet,'' and ``AK BSAI flatfish trawl'' fisheries, 
respectively.
    Response: NMFS has retained southwest AK northern sea otters, south 
central AK northern sea otters, and Pacific walrus on the list of 
species/stocks incidentally killed or injured in the ``AK Kodiak salmon 
set gillnet,'' ``AK Prince William Sound salmon drift gillnet,'' and 
``AK BSAI flatfish trawl'' fisheries in this final rule.
    Comment 6: The Washington Department of Fish and Wildlife (WDFW) 
strongly supported splitting the Washington Dungeness crab pot/trap 
fishery into two distinct fisheries by separating the inland ``Puget 
Sound Dungeness crab pot/trap'' fishery from the ``WA coastal Dungeness 
crab pot/trap'' fishery. The Puget Sound and coastal Dungeness crab 
pot/trap fisheries are both managed by WDFW but are managed under 
separate licensing programs and different management regimes. With no 
known incidental mortalities or serious injuries to marine mammals in 
the ``Puget Sound Dungeness crab pot/trap'' fishery, WDFW supported the 
proposal to classify the ``Puget Sound Dungeness crab pot/trap'' 
fishery under Category III in the LOF.
    Response: The WA Dungeness crab trap/pot fishery is split into two 
fisheries in this final rule, with the ``WA coastal Dungeness crab 
trap/pot'' fishery classified as Category II and the ``WA Puget Sound 
Dungeness crab trap/pot'' fishery is classified as Category III.
    Comment 7: As stated in comment 6 above, the WDFW supported 
elevating the ``WA coastal Dungeness crab pot/trap'' fishery from 
Category III to Category II. With the elevation of this

[[Page 68474]]

fishery to Category II, WDFW further requested NMFS' advice and 
assistance in meeting the requirements under the MMPA. WDFW staff is 
available to work with NMFS to create an implementation plan that 
minimizes the disruption to the fishery while ensuring that MMPA 
requirements are met.
    Response: NMFS is currently working with WDFW and will continue to 
do so to ensure that the MMPA requirements are met, while minimizing 
the disruption to the fishery. The NMFS Northwest Regional Office has 
agreed to work with the WDFW on developing the MMAP Certificates for 
coastal crabbers. WDFW is currently reviewing NMFS' proposed text for 
these Certificates.
    Comment 8: The Commission recommended NMFS provide additional 
justification for splitting the ``WA Dungeness crab pot/trap'' fishery 
into two fisheries, including pointing out arguments that the risks to 
marine mammals from the two proposed fisheries are different. The 
Commission noted that, while the two proposed fisheries do differ based 
on geography, the decision to split the fisheries should be based on 
meaningful evidence that the risks posed to marine mammal species are 
different and that the Puget Sound fishery is not likely to take any 
marine mammals and does not require an observer program. Additional 
evidence might include a difference in fishing practices or gear on the 
coast versus those in Puget Sound, or evidence of different movement 
patterns of humpback whales and other marine mammals, such as sea 
otters.
    Response: As described in the proposed 2011 LOF and further 
explained in the comments supplied by WDFW (comment 6) the coastal and 
Puget Sound Dungeness crab trap/pot fisheries are managed under 
separate licensing programs and different management regimes. The State 
of WA already considers these as separate fisheries. More importantly, 
the migratory routes of humpback whales pass though the coastal waters 
off of the State of WA, but the migratory routes do not pass through 
Puget Sound. Individual humpback whales have been reported to 
occasionally enter Puget Sound, but NMFS has received no reports of 
these individuals interacting with or becoming entangled in Puget Sound 
Dungeness crab trap/pot gear. Trap/pot gear for both the coastal and 
Puget Sound Dungeness crab trap/pot fisheries are uniquely marked for 
identification and, therefore, NMFS is able to ascertain with which 
fishery a humpback whale has interacted. Individual sea otters 
occasionally enter Puget Sound but they have not been reported 
interacting with crab gear. There was one sighting of a gray whale 
trailing crab trap/pot gear in Puget Sound in 2003. However, this 
animal was successfully disentangled and released uninjured. There have 
been no reported interactions since that time.
    The Puget Sound region has heavily populated coastlines and is a 
major recreational boating area. There are also several active marine 
mammal sighting hotlines in the region. Should entanglements of marine 
mammals occur in the inland waters, the potential for observation and 
reporting by boaters or the public on the shore is high.
    Comment 9: The Commission recommended NMFS consult with the FWS, 
tribal authorities, and other relevant groups on the need for observer 
coverage of the WA Dungeness crab pot/trap fisheries both along the 
outer coast and in Puget Sound to assess bycatch risks for sea otters 
in WA state.
    Response: As recommended, NMFS consulted with state and tribal crab 
managers. The states of WA and OR, and the Northwest Indian Fisheries 
Commission reported that they have received no information indicating 
interactions between sea otters and crab fisheries are occurring. WDFW 
has received complaints in some areas of harbor seals or sea lions 
raiding pots for bait, but not sea otters. The WA population of sea 
otters is at the population's Optimum Sustainable Population (OSP) 
level and continues to grow (FWS 2009 SAR). According to FWS' 2009 SAR 
there has been only one stranding incident of a northern sea otter, in 
2003, where human interaction may have been implicated based on 
necropsy findings. In this case, the animal died from trauma, possibly 
a boat strike.
    Comment 10: The CA Wetfish Producers Association agreed with 
multiple proposed changes to the LOF, including reclassifying the ``CA 
anchovy, mackerel, sardine purse seine'' and ``CA squid purse seine'' 
fisheries from Category II to Category III; updating the number of 
vessels participating in the ``CA anchovy, mackerel, sardine purse 
seine fishery;'' and removing bottlenose dolphins (CA/OR/WA offshore 
stock) from the list of species/stocks incidentally killed or injured 
in the ``CA anchovy, mackerel, sardine purse seine'' fishery.
    Response: NMFS has finalized each of the proposed changes 
referenced in Comment 10 in this final rule.
    Comment 11: The CA Wetfish Producers Association noted the number 
of vessels participating in the ``CA squid purse seine'' fishery is 
proposed to be increased from 64 to 65 vessels. However, according to 
CA Department of Fish and Game authorities, the number of squid vessel 
permits sold in 2010 is 71 transferable vessel permits and 9 non-
transferable vessel permits, for a total of 80 vessels eligible to 
participate in the squid fishery.
    Response: NMFS appreciates the information and has updated Table 1 
to reflect that the estimated number of vessels/persons participating 
in the Category III ``CA squid purse seine'' fishery is 80.
    Comment 12: The Oregon Department of Fish and Wildlife (ODFW) 
requested that OR be removed from the name of the ``CA/OR thresher 
shark/swordfish drift gillnet'' fishery. ODFW noted that the OR 
commercial drift gillnet fishery historically existed as an extension 
of the CA fishery, targeting swordfish as allowed under ODFW's 
Developmental Fisheries Program. For the last few years this fishery 
has been inactive and OR has not issued permits for such a fishery in 
state waters. Also, swordfish were removed from the program in 2009. OR 
no longer issues state permits for drift gillnet gear.
    Response: NMFS appreciates the information provided by ODFW and has 
changed the name of the fishery to the Category III ``CA thresher 
shark/swordfish drift gillnet (>= 14 in mesh)'' fishery in this final 
rule.
    Comment 13: The DOI recommended NMFS continue to include CA sea 
otters on the list of species/stocks incidentally killed or injured in 
the ``CA halibut/white seabass and other species set gillnet'' fishery 
and add CA sea otters to the list of species/stocks incidentally killed 
or injured in the ``CA coonstripe shrimp, rock crab, tanner crab pot or 
trap'' and ``CA spiny lobster trap'' fisheries. Due to lack of observer 
coverage, the FWS does not have recent data to confirm that sea otters 
are injured or killed in these fisheries; however, experiments have 
shown that sea otters can enter these traps and drown.
    Response: NMFS removed southern sea otters from the list of 
species/stocks incidentally killed or injured in the Category III ``CA 
coonstripe shrimp, rock crab, tanner crab pot or trap'' and ``CA spiny 
lobster trap'' fisheries in the 2009 LOF. As detailed in the proposed 
2009 LOF (73 FR 33760, June 13, 2008), NMFS extensively reviewed each 
of the CA pot and trap fisheries, including available information on 
marine mammal species that interact with these fisheries. At that time, 
NMFS had records of one southern sea otter being taken in the ``CA 
targeting spiny lobster, coonstripe shrimp, finfish, rock crab, or

[[Page 68475]]

tanner crab trap/pot'' fishery in November 1987 and one southern sea 
otter interacting with the ``CA spot prawn trap'' fishery in 1991. NMFS 
has received no new or additional information since the 2009 LOF to 
suggest that sea otters are being incidentally killed or injured by 
these gear types. Therefore, NMFS has not included sea otters on the 
list of species/stocks incidentally killed or injured in these two 
fisheries. If additional information becomes available to indicate that 
southern sea otters have been injured or killed in CA trap/pot 
fisheries in recent years, NMFS will consider including this species on 
the LOF at that time.
    Comment 14: The Commission supported retaining the ``HI shallow-set 
(swordfish target) longline/set line'' fishery as Category II based on 
the mortality and serious injury rate of bottlenose dolphins (HI 
pelagic stock) and the additional information documenting takes of 
marine mammals from other stocks.
    Response: The ``HI shallow-set (swordfish target) longline/set 
line'' fishery is classified as Category II in this final rule.
    Comment 15: The HLA noted that the proposed LOF classifies the ``HI 
shallow-set (swordfish target) longline/set line'' fishery as Category 
II by the fishery's serious injury and mortality rate for bottlenose 
dolphin, which is only 1.1 percent of the stock's PBR, and because of 
documented mortalities and serious injuries of other stocks on the high 
seas for which PBRs are unknown. The HLA disagreed with this 
justification and argued that NMFS must make the LOF determinations 
based on the best available science, not speculation that takes may 
exceed 1 percent of a stock's PBR. The HLA further stated that in the 
absence of knowledge about the identity or abundance of stocks with 
which a fishery may have interactions, NMFS cannot assume that any 
interactions may exceed 1 percent of the stock's PBR.
    Response: As noted in the draft 2010 SAR, the HI Pelagic stock of 
bottlenose dolphins includes animals found both within the U.S. EEZ 
around the Hawaiian Islands and in adjacent international waters, but 
because data on abundance, distribution, and human-caused impacts are 
largely lacking for international waters, the status of the stock is 
evaluated based on data from U.S. EEZ waters. In the SAR, the stock's 
PBR is calculated only for the portion of the stock within the U.S. EEZ 
around the Hawaiian Islands.
    The average annual level of mortalities and serious injuries of the 
HI pelagic stock of bottlenose dolphins that occurs incidental to the 
HI shallow-set longline fishery inside the U.S. EEZ around the Hawaiian 
Islands is greater than 1 percent and less than 50 percent of the 
stock's PBR level. This level of mortality and serious injury is close 
to, but exceeds, the threshold between Categories II and III (e.g., 
mortality and serious injury greater than 1 percent of PBR), and thus a 
Category II classification is warranted (50 CFR 229.2). Details 
regarding how the threshold percentages between the categories were 
determined are provided in the preamble to the final rule implementing 
section 118 of the MMPA (60 FR 45086, August 30, 1995).
    In NMFS' proposal to classify this fishery in the proposed 2011 
LOF, NMFS noted that there are documented injuries and mortalities of 
numerous other species and stocks of marine mammals on the high seas, 
which are listed in Table 3 for the high seas component of the shallow-
set longline fishery (``Western Pacific Pelagic (Shallow-set 
component)''). There are no abundance estimates or PBRs currently 
available for most of these marine mammals on the high seas, and 
quantitative comparison of mortality and serious injury against PBR is 
therefore not possible. NMFS is not assuming that interactions on the 
high seas exceed 1 percent of any stock's PBR. Rather, these 
interactions provide a qualitative indication that the shallow-set 
fishery's interactions with marine mammals on the high seas are 
``occasional.'' 50 CFR 229.2 provides that in the absence of reliable 
information indicating the frequency of incidental mortality and 
serious injury of marine mammals by a commercial fishery, the Assistant 
Administrator will determine whether the incidental serious injury or 
mortality is ``occasional'' by evaluating other factors such as fishing 
techniques, gear used, methods used to deter marine mammals, target 
species, seasons and areas fished, qualitative data from logbooks or 
fisher reports, stranding data, and the species and distribution of 
marine mammals in the area, or at the discretion of the Assistant 
Administrator.
    As noted in the preamble of the proposed 2011 LOF and the response 
to a similar comment in the final 2010 LOF (74 FR 58859, November 16, 
2009; comment/response 17) regarding high seas fisheries 
classification, the high seas portion of the shallow-set longline 
fishery is an extension of the fishery operating within U.S. waters, 
and not a separate fishery. A fishery is classified on the LOF as its 
highest level of classification (e.g., a fishery qualifying for 
Category II for one marine mammal stock and Category III for another 
marine mammal stock will be listed as Category II). Since the ``Western 
Pacific Pelagic (Shallow-set component)'' and ``HI shallow-set 
(swordfish target) longline/set line'' are two components of the same 
fishery, targeting the same species and employing the same gear, 
fishing techniques, and methods to deter marine mammals, distinguished 
from each other only by which side of the 200 nmi EEZ boundary they 
operate, and the component of the fishery operating in U.S. waters is 
classified as Category II, the high seas component of the fishery is 
also classified as Category II.
    Comment 16: The Commission recommended NMFS list the ``HI kaka 
line'' and the ``HI vertical longline'' fisheries as Category II 
fisheries and work with the State of HI to create an effective observer 
program for each fishery. NMFS noted in the proposed 2011 LOF, and the 
Commission concurred, that the ``HI kaka line'' fishery may be 
analogous to the Category II Hawaii shortline fishery. The Commission 
also considered the vertical longline fishery to be analogous because 
the gear is similar and presents similar risks to marine mammals. The 
Commission believed that an appropriate approach would be to establish 
an observer program to better characterize the nature and level of the 
interactions of these fisheries with marine mammals, before assuming 
that such interactions do not or only rarely occur.
    Response: At this time, there is no information to support a 
Category II classification for either of these two fisheries. NMFS did 
note in the proposed 2011 LOF that the kaka line fishery may be 
analogous to the shortline fishery because the gear used is similar in 
one respect, specifically a mainline less than 1 nautical mile in 
length to which multiple branchlines with baited hooks are attached. 
However, NMFS further stated in the proposed LOF that the gear in the 
``HI kaka line'' fishery is oriented differently in the water than the 
gear in the ``HI shortline'' fishery, with ``HI kaka line'' fishery 
gear being fixed on or near the bottom or in shallow midwater.
    50 CFR 229.2 states that in absence of reliable information 
indicating the frequency of incidental mortality and serious injury of 
marine mammals by a commercial fishery, NMFS will determine whether the 
incidental serious injury or mortality is ``frequent,'' ``occasional,'' 
or ``remote'' by evaluating

[[Page 68476]]

other factors. Therefore, NMFS also examined other factors and 
considers the ``HI kaka line'' and ``HI vertical line'' fisheries to be 
sufficiently different from the HI-based longline fisheries and the HI 
shortline fishery in terms of the fish species targeted, methods of 
setting gear, and location and orientation of the gear in the water 
column, to pose a lower risk to marine mammals such that the likelihood 
of incidental interactions is remote. Additionally, while there are 
anecdotal reports of interactions between the shortline fishery and 
marine mammals, there is no such information regarding the kaka line or 
vertical longline fisheries. If additional information becomes 
available that would indicate an elevation in classification is 
necessary, NMFS will consider reclassification of one or both of these 
fisheries at that time.
    Comment 17: The Natural Resources Defense Council (NRDC) urged NMFS 
to reconsider the proposed classification of the ``HI trolling, rod and 
reel'' and ``HI charter vessel'' fisheries as Category III given their 
bycatch of pantropical spotted dolphins. The NRDC provided multiple 
literature citations documenting dolphins taking lures and being hooked 
when HI troll fishermen ``fish'' on the dolphins, including spotted 
dolphins, to catch associated tuna. The NRDC stated that one serious 
injury or mortality a year for pantropical spotted dolphins would 
exceed the regulatory ceiling of 1 percent of the PBR of 61 (2010 SAR, 
which also states that future assessments may divide the HI population 
into smaller island-associated stocks). The NRDC asserts that where the 
frequency of bycatch is unknown, NMFS is required to determine whether 
serious injury or mortality is ``remote'' by taking into account other 
factors, including target species and fishing techniques (50 CFR 
229.2).
    Response: NMFS will review the information provided by the 
commenter and consider adding this species to the list of species or 
stocks incidentally killed or injured in one or both of these fisheries 
in the next proposed LOF. NMFS will also consider reclassification of 
one or both of these fisheries at that time, if circumstances warrant.
    Comment 18: The HLA reiterated past comments that NMFS inaccurately 
delineates the pelagic false killer whale stock, therefore 
underestimating the false killer whale population with which the ``HI 
deep-set (tuna target) longline/set line'' fishery interacts and 
exaggerating the importance of those rare interactions.
    Response: NMFS responded to similar comments on the 2010 LOF (74 FR 
58859; November 16, 2009; comments/responses 17 and 24), which are 
incorporated in this response by reference. This comment does not 
specifically address the classification of fisheries or the marine 
mammal species and stock incidentally killed or injured in a fishery, 
but rather disputes the delineation of those stocks and stock 
population estimates. Classifications on the LOF are based on the 
information provided in the annual SARs. The SARs report marine mammal 
stock delineations and include discussions of the uncertainties in the 
data used to base stock delineations. NMFS urges the commenter to 
submit these comments during the public comment period for the draft 
SARs.
    Comment 19: The HLA restated an ongoing comment that there are 
significant uncertainties and errors perpetuated in NMFS' SARs, which 
are then used to generate inaccurate LOFs. The HLA disagreed that it 
would be prudent for NMFS to make LOF determinations for 2011 based on 
data that NMFS knows will become stale (as defined by NMFS guidelines) 
in 2010. The HLA recommended that NMFS, at the least, expressly 
recognize the uncertainty underlying its estimates and decisions.
    Response: Changes to the 2011 LOF are largely based on the 2009 
SARs, as updated in the draft 2010 SARs. The draft 2010 SARs for many 
of the Hawaiian cetacean stocks present abundance estimates based on 
data from a 2002 NMFS shipboard line-transect survey of the U.S. EEZ 
around the Hawaiian Islands (Hawaiian Islands Cetacean and Ecosystem 
Assessment Survey, or HICEAS). The NMFS Guidelines for Assessing Marine 
Mammal Stocks (GAMMS) note that confidence in the reliability of 
abundance estimates declines with age, and recommend that minimum 
population estimates older than 8 years should be considered unknown, 
and therefore should not be used to calculate PBR (https://www.nmfs.noaa.gov/pr/pdfs/sars/gamms2005.pdf). As of 2011, data derived 
from the 2002 survey will be considered too uncertain for stock 
assessment. NMFS is currently conducting a new cetacean assessment 
survey in the U.S. EEZ around the Hawaiian Islands (HICEAS II) in 
August-December 2010. It is anticipated that the HICEAS II survey will 
result in updated abundance estimates for all Hawaiian cetaceans. 
Preliminary estimates will likely be available by the end of 2011 or 
early 2012. However, the currently available data and estimates still 
constitute the best available information within existing NMFS 
parameters, and therefore are appropriately included in the 2010 SARs 
and 2011 LOF.
    Comment 20: The HLA recommended NMFS not add false killer whales 
(HI insular stock) to the list of marine mammal stocks incidentally 
killed or injured in the ``HI deep-set (tuna target) longline/set 
line'' fishery. The HLA stated that the best available science does not 
demonstrate that the deep-set fishery has ever interacted with an 
animal from the insular stock. The HLA further stated that the one 
interaction that NMFS purports to assign to the deep-set fishery 
occurred well beyond the range in which the insular stock animals have 
been scientifically observed.
    Response: NMFS determines which species or stocks are included on 
the list of species/stocks incidentally killed or injured in a fishery 
by annually reviewing, in part, the information presented in the 
current SARs, which are based on 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. The LOF does not analyze or evaluate the SARs. The 
commenter questions the validity of the data and calculations contained 
within the SAR for false killer whales, and thus it would be more 
appropriate for this comment to be submitted during the public comment 
period for the draft SAR.
    The draft 2010 SAR for false killer whales indicates an average of 
0.6 false killer whales (HI insular stock) are killed or seriously 
injured per year incidental to the Hawaii deep-set longline fishery. 
One non-serious injury was observed within the newly defined overlap 
zone between the HI insular and HI pelagic stocks of false killer 
whales. Total estimated takes were prorated based on the proportions of 
observed interactions that resulted in death, serious injury, or non-
serious injury. Further, takes of false killer whales of unknown stock 
origin within the insular/pelagic stock overlap zone were prorated 
based on the density of each stock in that area. No genetic samples are 
available to establish stock identity for these takes, but both stocks 
are considered at risk of interacting with longline gear within this 
region. Additionally, the draft 2010 SAR reports that from 2004-2008, 
two unidentified cetaceans that may have been false killer whales were 
seriously injured in the deep-set longline fishery, within the insular 
stock range. Efforts are currently underway to develop methods of 
prorating the unidentified animals by species and stock, taking into 
account

[[Page 68477]]

geographic differences in their ranges and observed rates of documented 
interactions with each species. For these reasons, NMFS is adding the 
HI insular stock of false killer whales to the list of marine mammal 
stocks incidentally killed or injured in the HI deep-set longline 
fishery, as proposed in the proposed 2011 LOF.
    Comment 21: The HLA recommended NMFS not label the false killer 
whales on which the ``HI deep-set (tuna target) longline/set line'' 
fishery interacts on the high seas as ``HI Pelagic.'' The HLA asserted 
that such a designation ignores the fact that high seas false killer 
whale interactions may occur with animals from other international high 
seas stocks, a larger Eastern North Pacific stock, or the Palmyra 
stock.
    Response: The draft 2010 SAR clarifies that the HI pelagic stock of 
false killer whales includes animals found both within the U.S. EEZ 
around the Hawaiian Islands and adjacent international waters. The 
deep-set longline fishery has documented interactions with false killer 
whales just outside of the U.S. EEZ around the Hawaiian Islands, as 
reported in the draft 2010 SAR, and these are almost certainly from the 
HI pelagic stock. Therefore, NMFS is adding false killer whale (HI 
pelagic stock) to the list of species/stocks incidentally killed or 
injured in the ``Western Pacific Pelagic (Deep-set component)'' fishery 
on Table 3, as proposed in the 2011 proposed LOF.
    The draft 2010 SAR also reports that while the range of the HI 
pelagic stock of false killer whales extends into international waters, 
the full offshore range of the stock beyond the EEZ is poorly known. 
NMFS agrees with HLA that the deep-set longline fishery may be 
interacting with false killer whales from other stocks on the high 
seas, beyond the (unknown) range of the HI pelagic stock. For this 
reason, NMFS will retain false killer whale (stock unknown) on the list 
of marine mammal species and stocks incidentally killed or injured in 
the ``Western Pacific Pelagic (deep-set component)'' f