List of Fisheries for 2012, 73912-73953 [2011-30607]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 76, Number 229 (Tuesday, November 29, 2011)]
[Rules and Regulations]
[Pages 73912-73953]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-30607]



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Vol. 76

Tuesday,

No. 229

November 29, 2011

Part V





Department of Commerce





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National Oceanic and Atmospheric Administration





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50 CFR Part 229





List of Fisheries for 2012; Final Rule

Federal Register / Vol. 76, No. 229 / Tuesday, November 29, 2011 / 
Rules and Regulations

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 229

[Docket No. 110207104-1536-02]
RIN 0648-BA76


List of Fisheries for 2012

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 2012, as required by the Marine 
Mammal Protection Act (MMPA). The final LOF for 2012 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 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 
(TRP) requirements.

DATES: This final rule is effective January 1, 2012.

ADDRESSES: 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 email 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) 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: Allison Rosner;
    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 1110, 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 TRP 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).

[[Page 73913]]

    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

    There are several fisheries on the LOF classified as Category II 
that have no recent documented injuries or mortalities of marine 
mammals, or fisheries that did not result in a serious injury or 
mortality rate greater than 1 percent of a stock's PBR level based on 
known interactions. NMFS has classified these fisheries as Category II 
by analogy to other Category I or II fisheries (NMFS does not classify 
fisheries as Category I based on analogy) that are sufficiently 
analogous to the fishery in question (e.g., use similar fishing 
techniques or gear that are known to cause mortality or serious injury 
of marine mammals), or according to factors discussed in the final LOF 
for 1996 (60 FR 67063, December 28, 1995) and listed in the regulatory 
definition of a Category II fishery. The regulations at 50 CFR 229.2 
state that 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 ``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.'' 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).

Information That May Be Considered When Classifying Fisheries

    Under regulations pursuant to section 118 of the MMPA, observer 
data, logbook data, stranding data, fishers' reports, anecdotal 
reports, and information on incidental serious injury or mortality to 
marine mammals reported in SARs are used to classify fisheries (60 FR 
45086, August 30, 1995; 60 FR 67063, December 28, 1995). Further, the 
factors for consideration laid out in 50 CFR 229.2 (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), generally termed ``analogy'' in the LOF, 
are used to classify fisheries in the absence of reliable data on the 
frequency of interactions.

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, fisher self-reports, and 
anecdotal reports.
    In the absence of reliable information on the level of mortality or 
injury of a marine mammal stock, or insufficient observer data, NMFS 
will determine whether a species or stock should be added to, or 
deleted from, the list by considering other factors such as: changes in 
gear used, increases or decreases in fishing effort, increases or 
decreases in the level of observer coverage, and/or changes in fishery 
management that are expected to lead to decreases in interactions with 
a given marine mammal stock (such as a TRP or a fishery management plan 
(FMP)). 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 the observer coverage 
levels in a particular fishery are important tools in estimating the 
level of annual 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 fact sheets 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 TRPs or take reduction teams (TRT).

Are high seas fisheries included on the LOF?

    NMFS includes high seas fisheries in Table 3 of the LOF, along with 
the number of valid High Seas 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

[[Page 73914]]

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 maintains summary documents, or fishery fact sheets, for each 
Category I and II fishery on the LOF. These fishery fact sheets 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 TRPs or TRTs, if any. 
These fishery fact sheets are updated after each final LOF and 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/, linked to the ``List of 
Fisheries by Year'' table. NMFS is developing similar fishery fact 
sheets for each Category III fishery on the LOF. However, due to the 
large number of Category III fisheries on the LOF and the lack of 
accessible and detailed information on many of these fisheries, the 
development of these fishery fact sheets will take significant time to 
complete. NMFS anticipates posting the Category III fishery fact sheets 
along with the final 2013 LOF, although this timeline may be revised as 
this exercise progresses.

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 and receive my authorization certificate and injury/
mortality reporting forms?

    NMFS has integrated the MMPA registration process, implemented 
through 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 Southwest, Northwest, and Alaska regions, NMFS will issue 
vessel or gear owners an authorization certificate and/or injury/
mortality reporting forms via U.S. mail or with their state or Federal 
license at the time of renewal.
    In the Pacific Islands region, NMFS will issue vessel or gear 
owners who hold a Federal permit an authorization certificate and/or 
injury/mortality reporting forms via U.S. mail or with their Federal 
permit at the time of renewal; for vessel or gear owners holding state 
licenses only, NMFS will issue an authorization certificate via U.S. 
mail automatically at the beginning of each calendar year. Individuals 
participating in Category I or II fisheries who obtain state commercial 
marine licenses after the beginning of the calendar year may request an 
authorization certificate and/or injury/mortality reporting forms by 
contacting the NMFS Pacific Islands Regional Office at (808) 944-2200.
    In the Northeast region, NMFS will issue vessel or gear owners an 
authorization certificate via U.S. mail automatically at the beginning 
of each calendar year; but vessel or gear owners must request or print 
injury/mortality reporting forms by contacting the NMFS Northeast 
Regional Office at (978) 281-9328 or by visiting the Northeast Regional 
Office Web site (https://www.nero.noaa.gov/).
    In the Southeast region, NMFS will issue vessel or gear owners 
notification of registry and vessel or gear owners may receive their 
authorization certificate and/or injury/mortality reporting form by 
contacting the Southeast Regional Office at (727) 209-5952 or by 
visiting the Southeast Regional Office Web site (https://sero.nmfs.noaa.gov/pr/mm/mmap.htm) and following the instructions for 
printing the necessary documents.
    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 renew my registration under the MMPA?

    In Pacific Islands, Southwest, Alaska or Northeast 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. 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).

[[Page 73915]]

    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/mm/mmap.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. 50 CFR 229.2 defines an injury as 
``a wound or other physical harm,'' and includes examples of signs of 
injury. 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 (16 U.S.C. 1387) 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 marine mammal take reduction plan 
regulations?

    Table 4 in this final rule provides a list of fisheries affected by 
TRPs and TRTs. TRP regulations can be found at 50 CFR 229.30 through 
229.36. A description of each TRT and copies of each TRP can be found 
at: https://www.nmfs.noaa.gov/pr/interactions/trt/.

Sources of Information Reviewed for the Final 2012 LOF

    NMFS reviewed the marine mammal incidental injury, serious injury 
and mortality information presented in the SARs for all fisheries. 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, reports to the SRGs, conference papers, anecdotal reports, 
FMPs, and ESA documents.
    The final LOF for 2012 was based on information provided in the 
NEPA and ESA documents analyzing authorized high seas fisheries; 
stranding data; fishermen self-reports through the MMAP; observer 
program reports; anecdotal reports; and the final SARs for 1996 (63 FR 
60, January 2, 1998), 2001 (67 FR 10671, March 8, 2002), 2002 (68 FR 
17920, April 14, 2003), 2003 (69 FR 54262, September 8, 2004), 2004 (70 
FR 35397, June 20, 2005), 2005 (71 FR 26340, May 4, 2006), 2006 (72 FR 
12774, March 19, 2007), 2007 (73 FR 21111, April 18, 2008), 2008 (74 FR 
19530, April 29, 2009), 2009 (75 FR 12498, March 16, 2010), and 2010 
(76 FR 34054, June 10, 2011). 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 on the 2012 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 fact sheets 
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.
    State and regional abbreviations used in the following text 
include: AK (Alaska), BSAI (Bering Sea, Aleutian Islands), CA 
(California), DE (Delaware), FL (Florida), GMX (Gulf of Mexico), HI 
(Hawaii), MA (Massachusetts), ME (Maine), MHI (Main Hawaiian Islands), 
NC (North Carolina), NY (New York), OR (Oregon), RI (Rhode Island), SC 
(South Carolina), VA (Virginia), WA (Washington), and WNA (Western 
North Atlantic).

Southeastern U.S. Atlantic, Gulf of Mexico Stone Crab Trap/Pot Fishery

    The ``Southeastern U.S. Atlantic, Gulf of Mexico stone crab trap/
pot'' fishery operates primarily nearshore in the State of FL. Stone 
crab fishing outside of this area is likely very minimal. In 2010, the 
State of FL issued 1,282 commercial stone crab licenses and 1,190,285 
stone crab trap tags. FL state regulations limit recreational stone 
crab trap/pot numbers to five per person (FL Administrative Code 
(F.A.C.) Chapter 68B-13). The season for commercial and recreational 
stone crab harvest is from October 15 to May 15. Traps are the most 
typical gear type used for the commercial and recreational stone crab 
fishery. Commercial traps must be designed to conform to the 
specifications established under U.S. 50 CFR 654.22, as well as F.A.C. 
Chapter 68B-13. Baited traps are frequently set in waters of 65 ft 
(19.8 m) depth or less in a double line formation, generally 100-300 ft 
(30.5-91.4 m) apart, running parallel to a bottom contour. The margins 
of seagrass flats and bottoms with low rocky relief are also favored 
areas for trap placement. Buoys are attached to the trap/pot via float 
line. In FL, commercial trap/pot buoys are required to be marked with 
the letter ``X,'' the trap owner's stone crab endorsement number (in 
characters at

[[Page 73916]]

least 2 inches high), and a tag that corresponds to a valid FWC-issued 
trap certificate. Recreational trap/pot buoys, except those fished from 
a dock, must have a permanently affixed and legible ``R'' at least 2 
inches high and the harvester's name and address (Ch. 68B-13.009(3), 
F.A.C).

Comments and Responses

    NMFS received 19 comment letters on the proposed 2012 LOF (76 FR 
37716, June 28, 2011). Comments were received from the Blue Water 
Fishermen's Association, Center for Biological Diversity, Florida Fish 
and Wildlife Conservation Commission, Florida Keys Commercial 
Fishermen's Association, Freezer Longline Coalition, Garden State 
Seafood Association, Hawaii Longline Association, Humane Society of the 
United States, Marine Mammal Commission, Natural Resources Defense 
Council, State of Hawaii, U.S. Fish and Wildlife Service, Western 
Pacific Regional Fishery Management Council, and 6 individuals. 
Comments on issues outside the scope of the LOF were noted, but are 
generally not responded to in this final rule.

General Comments

    Comment 1: An individual commenter recommends NMFS inform the U.S. 
Department of Defense (DOD) of the LOF, NMFS, and MMPA. The commenter 
further wondered whether the Navy is also a contributor of injury or 
death of animals listed on the LOF, if the process is complying with 
Advisory Council on Historic Preservation Section 106, and, if so, 
which Native Hawaiian Organizations are involved.
    Response: Certain military readiness activities are subject to 
sections 101(a)(5)(A) and (D) of the MMPA, which authorizes the 
Secretary of Commerce to allow, upon request, the incidental, but not 
intentional taking of marine mammals subject to required notifications 
and determinations. However, the Navy is not subject to section 118 of 
the MMPA, which applies to commercial fisheries. National Historic 
Preservation Act (NHPA) section 106 generally requires federal agencies 
to consult the appropriate State Historic Preservation Office (SHPO) 
and/or Tribal or Native Hawaiian groups on undertakings, including 
projects, activities, and programs that may affect qualifying historic 
properties. The LOF only involves classification determinations for 
commercial fisheries based upon marine mammal interactions, and is not 
a federal undertaking under the NHPA.
    Comment 2: The Marine Mammal Commission (Commission) acknowledges 
NMFS' efforts for summarizing and providing information about observer 
coverage and other characteristics of listed fisheries, and commends 
NMFS for its efforts to centralize information used to classify 
Category III fisheries and looks forward to seeing this effort come to 
fruition. The Commission appreciates that NMFS has considered their 
concerns and is exploring ways to fully and effectively convey the 
reasons for listing fisheries, which must be based on the best 
available information and may or may not include observer-derived data.
    Response: NMFS agrees that summarizing the information used as the 
basis to classify each fishery on the LOF in one location could be 
useful for interested readers. NMFS has posted information on each 
Category I and II fishery on the LOF on the NMFS Office of Protected 
Resources Web site, where it can be considered at the readers' 
discretion, and is pleased the Commission finds the information useful 
while reviewing the LOF. NMFS is developing similar fishery fact sheets 
for each Category III fishery and anticipates posting those fishery 
fact sheets along with the final 2013 LOF. However, due to the large 
number of Category III fisheries on the LOF and the lack of accessible 
and detailed information on many of these fisheries, this timeline may 
be revised as this exercise progresses.
    Comment 3: The Center for Biological Diversity (CBD) notes that the 
proposed 2012 LOF once again includes aquaculture operations as 
Category III fisheries and reiterates comments on past LOFs that 
aquaculture facilities are not ``commercial fishing operations'' 
eligible for the take authorization contained in Section 118 of the 
MMPA. The CBD states that these operations consistently compete with 
marine mammals for habitat and resources due to their stationary 
nature; therefore, aquaculture facilities and activities are more 
appropriately subject to the take prohibitions and permitting regimes 
contained in Section 101 of the MMPA.
    Response: NMFS received similar comments on the 2009 and 2010 LOFs. 
Section 118 of the MMPA governs the ``taking of marine mammals 
incidental to commercial fishing operations.'' The MMPA does not 
provide a definition of a commercial fishing operation; therefore, NMFS 
defined ``commercial fishing operation'' in regulations at 50 CFR 
229.2. The definition was presented in the proposed and final rules 
implementing the regulations for section 118 of the MMPA (60 FR 31666, 
June 16, 1995; 60 FR 65086, August 30, 1995). As noted in those 
proposed and final rules, and in the responses to comments on the 2009 
and 2010 LOFs (73 FR 73032, December 1, 2008, comment/response 5; 74 FR 
58859, November 16, 2009, comment/response 11), the definition of a 
``commercial fishing operation'' includes aquaculture. 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 MMPA and are therefore 
included on the annual LOF.
    Comment 4: The CBD urges NMFS not to reclassify fisheries to a less 
serious category when information on the fishery and its interactions 
with marine mammals is scant. In these cases, the CBD urges NMFS to 
instead rely more heavily upon the known impacts of the fishery's gear 
and the marine mammals known to inhabit the area being fished, rather 
than relying, for example, on the lack of reported interactions in 
fisheries with little or no observer coverage. The CBD states that 
every Federal FMP by law must include ``a standardized reporting 
methodology to assess the amount and type of bycatch,'' and that the 
ESA and MMPA make no exceptions to protection on the basis of state 
versus Federal fisheries. The CBD asserts that failure to assess marine 
mammal bycatch is an unacceptable justification for denying marine 
mammals protection via the LOF.
    Response: NMFS considers a broad range of information when 
proposing or making fishery classification decisions on the LOF, and 
does not classify fisheries based solely on the presence or absence of 
serious injuries or mortalities obtained through observer programs. 
Under regulations pursuant to section 118, NMFS uses observer data, 
logbook data, stranding data, fishers' reports, anecdotal reports, 
qualitative factors outlined in 50 CFR 229.2 (i.e., 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), information on incidental serious injury or 
mortality to marine mammals reported in SARs (50 CFR 229.2; 60 FR 
45086, August 30, 1995; 60 FR 67063, December 28, 1995), and input 
received during the public comment periods.

[[Page 73917]]

NMFS considers all of the information to determine whether the fishery 
can be classified on the LOF based on quantitative information analyzed 
through the Tier 1 and 2 analyses; or whether the fishery can be 
classified on the LOF based on the qualitative information outlined in 
NMFS regulations at 50 CFR 229.2 (and presented above).

Comments on Commercial Fisheries in the Pacific Ocean

    Comment 5: The Freezer Longline Coalition (FLC) recommends the 
``BSAI Pacific cod longline'' fishery be reclassified as Category III 
because the annual serious injury and mortality for all stocks listed 
as killed or injured in this fishery is less than 1 percent of PBR for 
the most recent five-year period (2004-2008). The FLC states that the 
2010 SAR shows that there are no serious injuries or mortalities of 
killer whales (AK resident stock) or ribbon seals from 2004-2008, and 
the mean annual serious injury and mortality of Steller sea lions 
(Western distinct population segment) is 0.488 percent of PBR; however, 
the fishery continues to be classified as Category II based on serious 
injury and mortality of resident killers whales from 2002-2006. The FLC 
asserts that the fishery should not continue to be classified based on 
outdated data simply because NMFS has been unable to ``finalize'' data 
for 2007 and 2008, which is inconsistent with the MMPA's best available 
science mandate, the Information Quality Act, and NMFS' associated 
guidelines.
    Response: The classification of fisheries for the proposed 2012 LOF 
was based on the best available scientific information at the time the 
fishery classifications were made. In this case, the most current 
available information on serious injury and mortality of marine mammals 
was presented in the final 2010 SAR, which included an analysis data 
from 2002-2006. More recent data from a new analysis for the 2007-2010 
period will be available for use in classifying fisheries on the 2013 
LOF. At that time, NMFS will consider the information available from 
the new analysis and consider a reclassification for the BSAI Pacific 
cod longline fishery, if appropriate.
    Comment 6: The FLC asserts that the estimated mortality reported in 
the SARs for AK longline fisheries uses incorrect observer coverage 
percentages, resulting in significant overestimation of mortality. The 
FLC further asserts that the default recovery factors used for multiple 
AK marine mammal stocks need to be re-evaluated for populations that 
are increasing, have a large population, or whose population status is 
known.
    Response: NMFS does not calculate observer percentages or recovery 
factors in the annual LOF, instead this information is provided in the 
SARs after NMFS and the Alaska SRG have evaluated the information 
during their annual review. Therefore, NMFS suggests the FLC submit 
this comment during the public comment period for the draft 2011 SARs. 
Further, NMFS responded to similar comments on the 2009 SARs and 
therefore refers the FLC to that Federal Register notice for additional 
information (75 FR 12498, March 16, 2010; comment/response 13 and 16).
    Comment 7: The Commission concurs that the ``CA thresher shark/
swordfish drift gillnet'' fishery meets the criteria for Category II 
and concurs with the designation of the CA/OR/WA stock of humpback 
whales as the basis for that classification.
    Response: NMFS acknowledges this comment. The ``CA thresher shark/
swordfish drift gillnet'' fishery is classified as Category II in this 
final rule.
    Comment 8: The Humane Society of the United States (HSUS) supports 
the elevation of the ``CA thresher shark/swordfish drift gillnet'' 
fishery to Category II. The HSUS notes that there is a long-standing 
record of interactions between drift gillnet fisheries and protected 
species worldwide and feels it is appropriate for NMFS to develop a 
better understanding of this driftnet fishery and the extent to which 
it interacts with marine mammals through use of observer coverage, 
which is more likely for a fishery placed in Category II.
    Response: NMFS acknowledges this comment and notes that this 
fishery is subject to requirements under the Pacific Offshore Cetacean 
Take Reduction Plan and is regulated under the Fishery Management Plan 
for U.S. West Coast Fisheries for Highly Migratory Species, which 
authorizes NOAA to place observers on fishing vessels in west coast 
highly migratory species fisheries (such as drift gillnet), regardless 
of the LOF category.
    Comment 9: The U.S. Fish and Wildlife Service (USFWS) reiterated a 
recommendation made on the 2011 LOF to include southern sea otters on 
the list of species/stocks killed or injured in the Category III ``CA 
spiny lobster trap'' or the ``CA coonstripe shrimp, rock crab, tanner 
crab pot or trap'' fisheries because experiments have shown that sea 
otters can enter these traps and drown. The USFWS provided a 
publication by Hatfield et al. (2011) to support this recommendation.
    Response: NMFS responded to a similar comment on the 2011 LOF (75 
FR 68475, November 8, 2010, comment/response 13) and provided detailed 
information on an extensive review of marine mammal interactions with 
West Coast trap and pot gear in the proposed 2009 LOF (73 FR 33760, 
June 13, 2008). In 2008, NMFS Southwest Regional Office (SWRO) 
consulted with experts on marine mammals and pot/trap fisheries 
including the NMFS Southwest Fisheries Science Center, NMFS Northwest 
Fisheries Science Center, NMFS Northwest Regional Office, and CA 
Department of Fish and Game (CDFG) to evaluate which fisheries may be 
affecting marine mammals. The primary intent of the analysis was to 
review interactions between trap/pot gear and humpback whales, but all 
marine mammals were addressed in the review. During the 2008 review, 
the only information available on southern sea otter interactions with 
trap/pot gear were stranding records of from 1987 and 1991 (2008 SAR; 
pers. comm. with staff from CDFG). At that time, NMFS determined that 
sea otters should be removed from the list of species killed or injured 
in the ``CA spiny lobster trap'' and the ``CA coonstripe shrimp, rock 
crab, tanner crab pot or trap'' fisheries because the information was 
approximately 20 years old and there had been no indications of 
interactions since that time. NMFS SWRO continues to consult with NMFS 
and CDFG specialists regarding marine mammal interactions with trap/pot 
gear. NMFS has not received additional information since 2008 to 
suggest that southern sea otters are currently being incidentally 
killed or injured in pot and trap gear.
    As part of their public comment, the USFWS submitted a paper by 
Hatfield et al. (2011), detailing experiments that indicate sea otters 
can enter and become entrapped in traps with openings of certain sizes. 
However, this paper presented no evidence of such takes occurring 
during commercial fishing activities off CA. The possibility of an 
interaction is insufficient justification to include southern sea 
otters on the list of species incidentally injured or killed in the 
``CA spiny lobster trap'' or the ``CA coonstripe shrimp, rock crab, 
tanner crab pot or trap'' fisheries. Instead, NMFS needs some 
indication that takes are occurring or have occurred in these fisheries 
in recent years (e.g., fisher self reports, observer data, stranding 
data). 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

[[Page 73918]]

will consider including this species on the LOF at that time.
    Comment 10: The Hawaii Longline Association (HLA) believes that the 
abundance estimate for the false killer whale (pelagic stock) is not 
scientifically sound and, because the survey data used for that 
abundance estimate was collected in 2002, that NMFS is using data it 
knows to be stale to make LOF determinations for the 2012 LOF (as 
defined by NMFS guidelines). The HLA views these errors to be 
particularly acute because NMFS completed a new marine mammal survey in 
the Hawaiian EEZ in 2010; however, this current, available data are not 
the data upon which the proposed 2012 LOF is based. Therefore, the HLA 
asserts that if the 2012 LOF is issued as proposed (i.e., not based on 
the 2010 data), it would violate the MMPA's ``best available science'' 
mandate.
    Response: NMFS used the best available science in preparing the 
2012 LOF. Proposed changes to the 2012 LOF were developed in spring and 
summer 2011, and were largely based on the draft and final 2010 SARs, 
which were the most recent SARs available. NMFS conducted a new 
cetacean assessment survey in the U.S. EEZ around the Hawaiian Islands 
(HICEAS II) in August-December 2010, with the goal of updating 
abundance estimates for all Hawaiian cetaceans. The survey data are 
currently being analyzed, and abundance estimates and PBR calculations 
based on the data are not yet available. Preliminary estimates of 
abundance based on the visual sightings data will be included in the 
draft 2012 SAR, which is expected to be published and available for 
public review and comment in spring 2013. The acoustic and other data 
collected during the survey will take longer to analyze, and abundance 
estimates will likely be revised in future SARs to incorporate the new 
analysis. The currently available data and estimates still constitute 
the best available information within existing NMFS parameters and 
therefore are appropriately included in the final 2010 SARs, draft 2011 
SARs, and the 2012 LOF.
    Comment 11: The Western Pacific Fishery Management Council 
(Council) and the HLA both recommend that the ``HI shallow-set 
(swordfish target) longline/set line'' fishery be classified as a 
Category III. The Council and the HLA note that this fishery is 
classified as Category II based on one serious injury of a bottlenose 
dolphin (HI stock) within the HI EEZ. The commenters note that the only 
other fishery to have incidental serious injury or mortality of this 
stock is the ``HI deep-set (tuna target) longline/set line'' fishery, 
and the combined serious injury and mortality rate for these two 
fisheries is less than 10 percent of PBR. The Council and HLA further 
note that the analysis for fishery classification places all fisheries 
interacting with a stock in Category III if the total interaction rate 
is equal to or less than 10 percent of the PBR unless a fishery 
qualifies for another Category for a different stock; however, no other 
marine mammal stock qualifies the HI shallow-set fishery for Category I 
or II.
    Response: NMFS concurs that, based on the marine mammal 
interactions within the U.S. EEZ reported in the final 2010 SAR, the 
shallow-set longline fishery would meet the definition of a Category 
III fishery. There are no marine mammal stocks within the EEZ that have 
mortality and serious injury that exceed 10 percent of PBR across all 
fisheries and that individually exceed 1 percent of PBR in the shallow-
set fishery. However, there are documented injuries and mortalities of 
numerous species and stocks of marine mammals by the shallow-set 
longline fishery on the high seas, which are listed in Table 3 for the 
high seas component of the shallow-set longline fishery (``Western 
Pacific Pelagic (HI Shallow-set component)''). Because there currently 
are no abundance estimates or PBRs available for most of these marine 
mammal stocks on the high seas, quantitative comparison of mortality 
and serious injury against PBR is currently not possible.
    MMPA regulations (50 CFR 229.2) provide that 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 
``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. HI-based shallow-set fishing vessels operating within 
the U.S. EEZ and on the high seas employ the same vessels, the same 
fishing methods and gear, target the same fish stocks, and employ the 
same marine mammal mitigation and deterrence measures. A review of NMFS 
observer data indicates that approximately 7 percent of shallow-set 
trips from 2004-2008 had marine mammal interactions, including 
interactions with Bryde's whale, Risso's dolphin, humpback whale, 
striped dolphin, bottlenose dolphin, and Kogia sp. whale (pygmy or 
dwarf sperm whale). The number and rate of marine mammal interactions 
increased each year in that 5-year timeframe. Of the 22 total marine 
mammal interactions observed on 325 shallow-set trips from 2004-2008, 
19 were taken on the high seas. Seventeen of the total 22 observed 
interactions resulted in mortality or serious injury, 16 of which 
occurred on the high seas (Forney, 2010; NMFS Pacific Islands Regional 
Observer Program, 2004-2008). Although NMFS is currently unable to 
quantitatively establish the impact of these interactions on high seas 
marine mammal stocks because of the lack of population information, 
these interactions do provide qualitative evidence that the shallow-set 
fishery continues to have ``occasional'' interactions with marine 
mammals and should remain a Category II commercial fishery.
    As noted in the preamble of the proposed 2012 LOF and the response 
to a 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 is 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). Because the ``Western Pacific Pelagic 
(HI Shallow-set component)'' and ``HI shallow-set (swordfish target) 
longline/set line'' are two components of the same fishery, both 
components are classified as Category II.
    The Category II classification is further supported by data in the 
draft 2011 SAR, which was not available when the proposed 2012 LOF was 
drafted. The draft 2011 SAR reports an observed serious injury to a 
false killer whale in the shallow-set fishery within the U.S. EEZ in 
2009. Based on one observed non-serious injury in 2008 and one observed 
serious injury in 2009, the shallow-set fishery has an average annual 
mortality and serious injury rate of 0.2 HI pelagic false killer whales 
per year within the EEZ. This represents approximately 8 percent of the 
stock's PBR level, which also qualifies it as a Category II fishery.
    Comment 12: The HLA disagrees with the addition of the insular 
stock of false killer whales to the list of stocks incidentally injured 
or killed in the ``HI deep-set (tuna target) longline/set line'' 
fishery because the inclusion is based

[[Page 73919]]

on NMFS' proration of an isolated non-serious interaction between this 
fishery's insular stock and pelagic stock interaction rate, which is 
not based on the best available science. The HLA asserts that this 
fishery has never been observed to interact with the insular stock and 
that the interaction in question occurred in an area where no member of 
the insular stock has ever been observed in or near, and that NMFS has 
no genetic evidence showing that the deep-set fishery has ever 
interacted with a member of the insular stock. The HLA also disagrees 
with NMFS' extension of the 140 km insular stock ``range'' uniformly 
around the MHI based on a single tagged animal over 100 km to the south 
of the MHI.
    Response: NMFS determines which species or stocks are included as 
incidentally killed or injured in a fishery by annually reviewing the 
information presented in the current SARs, among other relevant 
sources. The SARs are based on the best available scientific 
information and provide the most current and inclusive information on 
each stock, including range, abundance, 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, NMFS encourages the commenter to submit this comment 
during the public comment period for the draft SAR.
    The draft 2011 SAR for false killer whales indicates an average of 
0.6 mortalities or serious injuries of HI insular false killer whales 
per year incidental to the HI-based deep-set longline fishery. One non-
serious injury to a false killer whale was observed within the overlap 
zone between the HI insular and HI pelagic stocks of false killer 
whales. In the SAR, all estimated takes, and observed takes for which 
an injury severity determination could not be made, were prorated based 
on the proportions of observed interactions that resulted in death or 
serious injury, or non-serious injury between 2000-2009. Further, takes 
of false killer whales of unknown stock origin within the insular/
pelagic stock overlap zone were prorated assuming that the density of 
the insular stock declines and the density of the pelagic stock 
increases with increasing distance from shore. 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 2011 SAR reports that from 2005-2009, eight 
unidentified cetaceans, known to be either false killer whales or 
short-finned pilot whales (together termed ``blackfish'') were 
seriously injured in the deep-set longline fishery within U.S. EEZ 
waters, two of which were taken within the insular stock range. The 
draft 2011 SAR prorates blackfish to each species and stock based on 
their distance from shore (see McCracken, 2010 for details on the 
distance-from-shore model).
    For these reasons, NMFS is not changing its proposal to add the HI 
insular stock of false killer whales on the list of marine mammal 
stocks incidentally killed or injured in the HI deep-set longline 
fishery. For a more complete analysis of the methodology for 
determining mortality and serious injury of insular and pelagic false 
killer whales, the commenter is referred to the draft 2011 SAR.
    Comment 13: The CBD recommends NMFS classify ``American Samoa 
longline'' fishery as Category I based on analogy to the ``HI deep-set 
(tuna target) longline/set line'' fishery, interactions with false 
killer whales, and interactions with rough-toothed dolphins, citing 
three arguments. First, CBD notes that NMFS has proposed to require 
longline hooks in this fishery are set at depths of 100 meters or 
deeper to reduce interactions with Pacific green sea turtles (76 FR 
32929, June 7, 2011), which will make the gear and methods like the 
Category I Hawaii deep-set longline fishery. Second, CBD asserts that 
even though abundance estimates are unavailable for the American Samoa 
false killer whale stocks, the human-caused mortality falls within the 
range of likely PBRs for both of these marine mammal stocks and the 
2010 SAR concludes that the false killer whales in American Samoa would 
probably be strategic if abundance estimates were available. Lastly, 
CBD notes that this fishery also interacts with the American Samoa 
stock of rough-toothed dolphins, for which the 2010 SAR indicates the 
estimated rate of fisheries-related mortality or serious injury (3.6 
dolphins per year) is within the range of likely PBRs (3.4-22).
    Response: Abundance estimates for the American Samoa stocks of 
false killer whales and rough-toothed dolphins are unknown, and PBRs 
cannot be calculated. The final 2010 SARs present a plausible range of 
abundance estimates for each stock based on density estimates of the 
species in other areas of the Pacific, and calculate a range of likely 
PBRs using those ranges of abundance. The SARs further note that 
estimated mortality and serious injury of false killer whales exceeds 
the range of the stock's likely PBRs, and mortality and serious injury 
of rough-toothed dolphin falls within the range of the stock's likely 
PBRs. These estimates provide an indication that cetacean bycatch in 
the fishery is not insignificant. However, without an actual 
calculation of PBR, NMFS cannot accurately evaluate the effect of 
mortality and serious injury on the stocks to determine whether the 
fishery meets the definition of a Category I fishery. Under NMFS 
regulations, a Category I is one that cause frequent mortality or 
serious injury of marine mammals, which is defined as ``one that is by 
itself responsible for the annual removal of 50 percent or more of any 
stock's potential biological removal level'' (50 CFR 229.2). Only in 
the absence of reliable information indicating the frequency of 
incidental mortality and serious injury of marine mammals does NMFS 
consider other factors that may be used to classify the fishery as 
either Category II or III, including evaluation of 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 (50 CFR 229.2). Until quantitative information is 
available to allow a calculation of PBR, NMFS will retain the American 
Samoa longline fishery as Category II, by analogy to other longline 
fisheries.
    Comment 14: The CBD recommended NMFS classify the ``HI vertical 
longline'' and ``HI kaka line'' fisheries as Category I based on 
serious injury and mortality of false killer whales (HI insular stock), 
which is proposed to be listed as endangered under the ESA (75 FR 
70169, November 17, 2010). The CBD notes that the ESA scientific 
Biological Review Team (BRT) for this stock found a high level of 
current and future risk from interactions with troll, handline, 
shortline, and kaka line fisheries (Id. at 70180), and the BRT stated 
that although ``each of these fisheries is required by law under the 
MMPA to report interactions with marine mammals, the low number of 
reports strongly suggests that interactions are occurring and are not 
being reported'' (Id. at 70179). Lastly, the CBD asserts that a high 
level of anecdotal evidence, including fishermen that have reported 
shooting at false killer whales and a high rate of dorsal fin 
disfigurements consistent with injuries from unidentified fishing line, 
and the fact that the State of HI does not monitor

[[Page 73920]]

bycatch of marine mammals in any of its state fisheries, also suggest 
that the fisheries are having a greater impact than is reported. 
Therefore, the CBD asserts that the scientific information and opinion 
show that fisheries interactions present a high risk of extinction to 
the insular false killer whale, compelling NMFS to list these fisheries 
as Category I, especially in light of what appears to be deliberate 
efforts to obscure fishery mortality in order to prevent further 
protection for an endangered marine mammal.
    Response: At this time, there is no quantitative information to 
support a Category I classification for either of these fisheries. As 
stated in the response to comment 13, a Category I fishery is one that 
NMFS determines has frequent incidental mortality and serious injury of 
marine mammals, defined as one that is, by itself, responsible for the 
annual removal of 50 percent or more of any stock's PBR level (50 CFR 
229.2). NMFS considers other factors when determining whether a fishery 
meets the definition of a Category II or III fishery, including 
evaluation of 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 (50 CFR 229.2). Currently, NMFS does not 
have reliable information that either of these fisheries causes 
frequent incidental mortality and serious injury of marine mammals, 
such that would support classification of a Category I fishery, as that 
term is defined. Based on the currently available information, NMFS 
continues to believe that these two fisheries present a remote 
likelihood of interactions with marine mammals. NMFS is retaining these 
fisheries on the LOF as Category III fisheries but will consider any 
information that supports a reevaluation of the fisheries' 
classification in the future.
    Comment 15: The CBD comments that the various fisheries that are 
known or suspected of interacting with Hawaiian monk seals should be 
classified as Category I because, given the critically endangered 
status of the monk seal, any interaction is significant. The CBD notes 
that fishery interactions are becoming more common (Baker et al., 
2011), yet all Hawaiian fisheries known or suspected of interactions 
with monk seals, such as the Hawaii lobster trap and the Hawaii tuna 
handline, are listed as Category III. Further, the CBD asserts that, 
while a PBR is not calculated for this stock (final 2010 SAR), any 
mortality from fisheries would qualify the fishery for Category I if a 
PBR was calculated.
    Response: The LOF lists the Hawaiian monk seal on the list of 
species and stocks incidentally killed or injured in the Category III 
``HI lobster trap'' and ``HI Main Hawaiian Islands (MHI) deep sea 
bottomfish handline'' fisheries. In the 2009 LOF, NMFS removed the 
Hawaiian monk seal from the list of species/stocks killed/injured in 
the ``HI tuna handline fishery,'' under which the stock had been listed 
since the 1996 LOF, because NMFS has never received a report of 
interactions between monk seals and tuna handline gear. The available 
information on Hawaiian monk seal interactions with the other two 
fisheries is:
    (1) ``HI lobster trap'' fishery: There have not been any reported 
interactions since the mid-1980s, when one seal died in a trap; and
    (2) ``HI Main Hawaiian Islands deep sea bottomfish handline 
fishery:'' A Federal observer program of the Northwestern Hawaiian 
Islands (NWHI) bottomfish handline fishery was conducted from the 
fourth quarter of 2003 through 2005, and no monk seal interactions were 
observed. The fishery has since been phased out as required under the 
Proclamation establishing the Papahanaumokuakea Marine National 
Monument. While fishing in the NWHI has been phased out, in previous 
years when commercial bottomfish boats were fishing in this area, NMFS 
received one self-reported incident (a hooking in 1994), and bottomfish 
hooks were observed in two seals at the French Frigate Shoals (one