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###### Department of Commerce

###### National Oceanic and Atmospheric Administration

          - 50 CFR Part 229
          - [Docket No. 041108310-4310-01; I.D. 100104H]
          - RIN 0648-AS78

# AGENCY:

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

# ACTION:

Proposed rule.

# SUMMARY:

The National Marine Fisheries Service (NMFS) is publishing the proposed List of Fisheries (LOF) for 2005, as required by the Marine Mammal Protection Act (MMPA). The proposed LOF for 2005 reflects new information on interactions between commercial fisheries and marine mammals. NMFS must categorize each commercial fishery on the LOF into one of three categories under the MMPA based upon the level of serious injury and mortality of marine mammals that occurs incidental to each fishery. The categorization of a fishery in the LOF determines whether participants in that fishery are subject to certain provisions of the MMPA, such as registration, observer coverage, and take reduction plan requirements.

# DATES:

Comments must be received by January 3, 2005.

# ADDRESSES:

You may send comments by any of the following methods:
      - Mail: Chief, Marine Mammal Conservation Division, Attn: List of Fisheries, Office of Protected Resources, NMFS, 1315 East-West Highway, Silver Spring, MD 20910.
      - E-mail: 2005LOF.comments@noaa.gov .                    
      - Federal eRulemaking portal: http://www.regulations.gov                          (follow instructions for submitting comments).                    

                        Comments regarding the burden-hour estimates, or any other aspect of the collection of information requirements contained in this proposed rule, should be submitted in writing to the Chief, Marine Mammal Conservation Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Silver Spring, MD 20910 and to David Rostker, OMB, by e-mail at                         *David_Rostker@omb.eop.gov*                         or by fax to 202-395-7285.                    

Registration information, materials, and marine mammal reporting forms may be obtained from the following regional offices:

NMFS, Northeast Region, One Blackburn Drive, Gloucester, MA 01930-2298, Attn: Marcia Hobbs;

NMFS, Southeast Region, 9721 Executive Center Drive North, St. Petersburg, FL 33702, Attn: Teletha Griffin;

NMFS, Southwest Region, Protected Species Management Division, 501 W. Ocean Blvd., Suite 4200, Long Beach, CA 90802-4213, Attn: Don Peterson;

NMFS, Northwest Region, 7600 Sand Point Way NE, Seattle, WA 98115, Attn: Permits Office;

                        NMFS, Alaska Region, Protected Resources, P.O. Box 22668, 709 West 9th                         Street, Juneau, AK 99802; or                    

NMFS, Pacific Islands Region, Protected Resources Division, 1601 Kapiolani Boulevard, Suite 1110, Honolulu, HI 96814-4700.

# FOR FURTHER INFORMATION CONTACT:

Kristy Long, Office of Protected Resources, 301-713-1401; David Gouveia, Northeast Region, 978-281-9328; Juan Levesque, Southeast Region, 727-570-5312; Cathy Campbell, Southwest Region, 562-980-4060; Brent Norberg, Northwest Region, 206-526-6733; Bridget Mansfield, Alaska Region, 907-586-7642; Tamra Faris, Pacific Islands Region, 808-973-2937. 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:

      ( print page 70095)    

## What is the List of Fisheries?

                    Section 118 of the MMPA requires that NMFS place all U.S. commercial fisheries into one of three categories based on the level of incidental serious injury and mortality of marine mammals that occurs in each fishery (16 U.S.C. 1387 (c)(1)). The categorization of a fishery in the LOF determines whether participants in that fishery may be required to comply with certain provisions of the MMPA, such as registration, observer coverage, and take reduction plan requirements. NMFS must reexamine the LOF annually, considering new information in the Stock Assessment Reports, other relevant sources, and the LOF, 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)(3)).                

## 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 at 50 CFR 229.2.

*Tier 1:*                     If the total annual mortality and serious injury across all fisheries that interact with a stock 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. Otherwise, these fisheries are subject to the next tier (Tier 2) of analysis to determine their classification.                

*Tier 2, Category I:*                     Annual mortality and serious injury of a stock in a given fishery is greater than or equal to 50 percent of the PBR level.                

*Tier 2, Category II:*                     Annual mortality and serious injury of a stock in a given fishery is greater than 1 percent and less than 50 percent of the PBR level.                

*Tier 2, Category III:*                     Annual mortality and serious injury of a stock in a given fishery is less than or equal to 1 percent of the PBR level.                

While Tier 1 considers the cumulative fishery mortality and serious injury for a particular stock, Tier 2 considers fishery-specific mortality and serious injury for a particular stock. Additional details regarding how the categories were determined are provided in the preamble to the final rule implementing section 118 of the MMPA (60 FR 45086, August 30, 1995).

Since fisheries are categorized on a per-stock basis, a fishery may qualify as one Category for one marine mammal stock and another Category for a different marine mammal stock. A fishery is typically categorized on the LOF at its highest level of classification (e.g., a fishery that qualifies 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 qualifies for Category II 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).

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

This proposed rule includes two tables that list all U.S. commercial fisheries by LOF Category. Table 1 lists all of the fisheries in the Pacific Ocean (including Alaska). Table 2 lists all of the fisheries in the Atlantic Ocean, Gulf of Mexico, and Caribbean.

## 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 from NMFS in order to lawfully incidentally take a marine mammal in a commercial fishery. 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?

                    Fishers must register with the Marine Mammal Authorization Program (MMAP) by contacting the relevant NMFS Regional Office (see                     **ADDRESSES**                    ) unless they participate in a fishery that has an integrated registration program (described below). Upon receipt of a completed registration, NMFS will issue vessel or gear owners physical evidence of a current and valid registration that must be displayed or in the possession of the master of each vessel while fishing in accordance with section 118 of the MMPA (16 U.S.C. 1387(c)(3)(A)).                

## What is the Process for Registering in an Integrated Fishery?

                    For some fisheries, NMFS has integrated the MMPA registration process with existing state and Federal fishery license, registration, or permit systems and related programs. Participants in these fisheries are automatically registered under the MMPA and are not required to submit registration or renewal materials or pay the $25 registration fee. Following is a list of integrated fisheries and a summary of the integration process for each Region. Fishers who operate in an integrated fishery and have not received registration materials should contact their NMFS Regional Office (see                     **ADDRESSES**                    ).                

## Which Fisheries Have Integrated Registration Programs?

The following fisheries have integrated registration programs under the MMPA:

1. All Alaska Category II fisheries;

2. All Washington and Oregon Category II fisheries;

                    3. Northeast Regional fisheries for which a state or Federal permit is required. Individuals fishing in fisheries for which no state or Federal permit is required must register with NMFS by contacting the Northeast Regional Office (see                     **ADDRESSES**                    ); and                

4. All North Carolina, South Carolina, Georgia, and Florida Category I and II fisheries for which a state permit is required.

                    5. The Hawaii Swordfish, Tuna, Billfish, Mahi Mahi, Wahoo, Oceanic Sharks Longline/Set line Fishery (Hawaii longline fishery) was elevated to Category I in the 2004 LOF. The Pacific Islands Regional Office is integrating the MMPA registration process with the existing Hawaii longline fishery limited entry permit                           ( print page 70096)                        process. Participants in this fishery will be automatically registered under the MMPA and will not be required to submit registration or pay the $25 registration fee.                

## How Do I Renew My Registration Under the MMPA?

                    Regional Offices, except for the Northeast Region, annually send renewal packets to participants in Category I or II fisheries that have previously registered; however, it is the responsibility of the fisher to ensure that registration or renewal forms are completed and submitted to NMFS at least 30 days in advance of fishing. Individuals who have not received a renewal packet by January 1 or are registering for the first time should request a registration form from the appropriate Regional Office (see                     **ADDRESSES**                    ).                

## 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 fisher (in the case of non-vessel fisheries), participating in a Category I, II, or III fishery must report all incidental injuries or mortalities of marine mammals that occur during commercial fishing operations to NMFS. “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 absence of any wound or other evidence of an injury, and must be reported. Instructions on how to submit reports can be found in 50 CFR 229.6.

## Am I Required to Take an Observer Aboard My Vessel?

Fishers participating in a Category I or II fishery are required to accommodate an observer aboard vessel(s) upon request. Observer requirements can be found in 50 CFR 229.7.

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

Fishers participating in a Category I or II fishery are required to comply with any applicable take reduction plans.

## Sources of Information Reviewed for the Proposed 2005 LOF

NMFS reviewed the marine mammal incidental serious injury and mortality information presented in the Stock Assessment Reports (SARs) for all observed fisheries to determine whether changes in fishery classification were warranted. NMFS' SARs are based on the best scientific information available at the time of preparation for the information presented in the SARs, including the level of serious injury and mortality of marine mammals that occurs incidental to commercial fisheries and the PBR levels of marine mammal stocks. NMFS also reviewed other sources of new information, including marine mammal stranding data, observer program data, fisher self-reports, and other information that is not included in the SARs.

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 goes into SARs, and to advise NMFS on population status and trends, stock structure, uncertainties in the science, research needs, and other issues.

The proposed LOF for 2005 was based, among other things, on information provided in the final SARs for 1996 (63 FR 60, January 2, 1998), the final SARs for 2001 (67 FR 10671, March 8, 2002), the final SARs for 2002 (68 FR 17920, April 14, 2003), and the final SARs for 2003 (69 FR 54262, September 8, 2004).

## Summary of Changes to the Proposed LOF for 2005

The following summarizes changes in fishery classification including fisheries listed on the LOF, the number of participants in a particular fishery, and the species and/or stocks that are incidentally killed or seriously injured in a particular fishery that are proposed for the 2005 LOF. The placement and definitions of U.S. commercial fisheries proposed for 2005 are identical to those provided in the LOF for 2004 with the following exceptions.

## Commercial Fisheries in the Pacific Ocean: Fishery Classification

#### Alaska Fisheries

The List of Fisheries from 1990 through 2003 included the Alaska groundfish fisheries as large combinations of fisheries. In the 2003 final LOF (68 FR 41725, July 15, 2003), NMFS indicated we would review the existing fishery delineations in the LOF for Federal and state fisheries in Alaska. The decision to review Alaska fisheries was based, in part, on NMFS' recognition that the large fishery groups previously included in the LOF are not a homogenous fishery, but rather a diverse group of fisheries that operate during different seasons and target different groundfish species over distinct geographic areas within the Bering Sea and Gulf of Alaska. Marine mammal interactions are known to vary among Alaska groundfish fisheries based on time and area of operations, method of gear deployment, and target groundfish species. Therefore, the identification of these fisheries on a finer scale will allow for improved resolution of factors affecting incidental mortality and serious injury of marine mammals in these fisheries.

NMFS reviewed the Bering Sea/Aleutian Islands (BSAI) groundfish trawl, Gulf of Alaska (GOA) Groundfish Trawl, Bering Sea and GOA Finfish Pot, AK Crustacean Pot, BSAI Groundfish Longline/Set Line (federally regulated waters, including miscellaneous finfish and sablefish), and GOA Groundfish Longline/Set Line (federally regulated waters, including miscellaneous finfish and sablefish) fisheries. Based on this review, the 2004 final LOF (69 FR 48407, August 10, 2004) delineated these fisheries by target species and gear type. An analysis to assign each of these newly delineated fisheries to the appropriate LOF category was deferred until the 2005 LOF and all newly designated fisheries were placed in Category III pending the results of the analysis.

NMFS has completed an analysis of past incidental mortality and serious injury for each of the Federal fisheries specified in the 2004 LOF in accordance with the fishery classification criteria set forth in the implementing regulations of section 118 of the MMPA (50 CFR part 229). Based on these analyses, NMFS proposes that five of the Federal fisheries newly delineated in the 2004 LOF be reclassified as Category II fisheries and the remainder of the fisheries newly delineated in the 2004 LOF remain as Category III fisheries.

#### AK Bering Sea Aleutian Islands Flatfish Trawl Fishery

NMFS proposes elevating the BSAI flatfish trawl fishery from Category III to Category II based on documented interactions between the fishery and the western U.S. stock of Steller sea lions and the eastern North Pacific resident and transient stocks of killer whales.

*Tier 1 Evaluation:*                     The total estimated annual mortality and serious injury across all fisheries is greater than 10% of the PBR levels for the following stocks: western U.S. stock of Steller sea lions, eastern North Pacific resident stock of killer whales, and eastern North Pacific transient stock of killer whales.                           ( print page 70097)                        Therefore, the BSAI flatfish trawl fishery is subject to Tier 2 analysis for these stocks.                

*Tier 2 Evaluation:*                     The average annual estimated mortality and serious injury of the western U.S. stock of the Steller sea lions in this fishery is 3.1 animals per year or 1.48% of the stock's PBR (209 animals per year). Because this level of mortality and serious injury exceeds 1% but is less than 50% of the stock's PBR level, this fishery qualifies for classification as a Category II fishery.                

The average annual estimated mortality and serious injury of eastern North Pacific resident stock of killer whales in this fishery is 0.5 animals per year or 6.94% of the stock's PBR (7.2 animals per year). Because this level of mortality and serious injury exceeds 1% but is less than 50% of the stock's PBR level, this fishery qualifies for classification as a Category II fishery.

The average annual estimated mortality and serious injury of eastern North Pacific transient stock of killer whales by the BSAI flatfish trawl fishery is 0.5 animals per year or 17.86% of the stock's PBR (2.8 animals per year). Because this level of mortality and serious injury exceeds 1% but is less than 50% of the stock's PBR level, this fishery qualifies for classification as a Category II fishery.

Since the annual estimated level of marine mammal mortality and serious injury incidental to this fishery is less than 50 percent and greater than 1 percent of the PBR level for all marine mammal stocks described in the Tier 2 analysis, NMFS proposes to reclassify this fishery as a Category II fishery.

#### AK Bering Sea Aleutian Islands Pollock Trawl Fishery

NMFS proposes elevating the BSAI pollock trawl fishery from Category III to Category II based on the following analysis of the takes of five stocks of marine mammals: western U.S. stock of Steller sea lions, eastern North Pacific resident and transient stocks of killer whales, and the central and western North Pacific stocks of humpback whales.

*Tier 1 Evaluation:*                     The total estimated annual mortality and serious injury across all fisheries is greater than 10% of the PBR levels for the following stocks: western U.S. stock of Steller sea lions, eastern North Pacific resident stock of killer whales, eastern North Pacific transient stock of killer whales, central North Pacific stock of humpback whales, and western North Pacific stock of humpback whales. Therefore, the BSAI pollock trawl fishery is subject to Tier 2 analysis for these stocks.                

*Tier 2 Evaluation:*                     The average annual estimated mortality and serious injury of the western U.S. stock of the Steller sea lions in this fishery is 2.5 animals per year or 1.2% of the stock's PBR (209 animals). Because this level of mortality and serious injury exceeds 1% but is less than 50% of the stock's PBR level, this fishery qualifies for classification as a Category II fishery.                

The average annual estimated mortality and serious injury of eastern North Pacific resident stock of killer whales in this fishery is 0.6 animals per year or 8.33% of the stock's PBR level (7.2 animals per year). Because this level of mortality and serious injury exceeds 1% but is less than 50% of the stock's PBR level, this fishery qualifies for classification as a Category II fishery.

The average annual estimated mortality and serious injury of eastern North Pacific transient stock of killer whales in this fishery is 0.6 animals per year or 21.43% of the stock's PBR level (2.8 animals per year). Because this level of mortality and serious injury exceeds 1% but is less than 50% of the stock's PBR level, this fishery qualifies for classification as a Category II fishery.

The average annual estimated mortality and serious injury of central North Pacific stock of humpback whales in this fishery is 0.3 animals per year or 4.05% of the stock's PBR level (7.4 animals per year). Because this level of mortality and serious injury exceeds 1% but is less than 50% of the stock's PBR level, this fishery qualifies for classification as a Category II fishery.

The average annual estimated mortality and serious injury of western North Pacific stock of humpback whales in this fishery is 0.3 animals per year or 42.86% of the stock's PBR level (0.7 animals per year). Because this level of mortality and serious injury exceeds 1% but is less than 50% of this stock's PBR level, this fishery qualifies for classification as a Category II fishery.

Since the annual estimated level of marine mammal mortality and serious injury incidental to this fishery is less than 50 percent and greater than 1 percent of the PBR level for all marine mammal stocks described in the Tier 2 analysis, NMFS proposes to reclassify this fishery as a Category II fishery.

#### AK Bering Sea Aleutian Islands Greenland Turbot Longline Fishery

NMFS proposes elevating the AK BSAI Greenland turbot longline fishery from Category III to Category II fishery based on the following analysis of takes of the eastern North Pacific resident and transient stocks of killer whales.

*Tier 1 Evaluation:*                     The total estimated annual mortality and serious injury across all fisheries is greater than 10% of the PBR levels for the eastern North Pacific resident and transient stocks of killer whales. Therefore, the AK BSAI Greenland turbot longline fishery is subject to Tier 2 analysis for these stocks.                

*Tier 2 Evaluation:*                     The average annual estimated mortality and serious injury of eastern North Pacific resident stock of killer whales in this fishery is 0.6 animals per year or 8.33% of the stock's PBR level (7.2 animals per year). Because this level of mortality and serious injury exceeds 1% but is less than 50% of the stock's PBR level, this fishery qualifies for classification as a Category II fishery.                

The average annual estimated mortality and serious injury of eastern North Pacific transient stock of killer whales in this fishery is 0.6 animals per year or 21.43% of the stock's PBR (2.8 animals per year). Because this level of mortality and serious injury exceeds 1% but is less than 50% of the stock's PBR level, this fishery qualifies for classification as a Category II fishery.

Since the annual estimated level of marine mammal mortality and serious injury incidental to this fishery is less than 50 percent and greater than 1 percent of the PBR level for the marine mammal stocks described in the Tier 2 analysis, NMFS proposes to reclassify this fishery as a Category II fishery.

#### AK Bering Sea Aleutian Islands Pacific Cod Longline Fishery

NMFS proposes elevating the AK BSAI Pacific cod longline fishery from Category III to Category II based on the following analysis of interactions between the fishery and the eastern North Pacific resident and transient stocks of killer whales.

*Tier 1 Evaluation:*                     The total estimated annual mortality and serious injury across all fisheries is greater than 10% of the PBR levels for the eastern North Pacific resident and transient stocks of killer whales. Therefore, the AK BSAI Pacific cod longline fishery is subject to Tier 2 analysis for these stocks.                

*Tier 2 Evaluation:*                     The average annual estimated mortality and serious injury of eastern North Pacific resident stock of killer whales in this fishery is 0.8 animals per year or 11.11% of the stock's PBR (7.2 animals per year). Because this level of mortality and serious injury exceeds 1% but is less than 50% of the stock's PBR level, this fishery qualifies for classification as a Category II fishery.                

                    The average annual estimated mortality and serious injury of eastern North Pacific transient stock of killer whales in this fishery is 0.8 animals per                           ( print page 70098)                        year or 28.57% of the stock's PBR (2.8 animals per year). Because this level of mortality and serious injury exceeds 1% but is less than 50% of the stock's PBR level, this fishery qualifies for classification as a Category II fishery.                

Since the annual estimated level of marine mammal mortality and serious injury incidental to this fishery is less than 50 percent and greater than 1 percent of the PBR level for two of the marine mammal stocks described in the Tier 2 analysis, NMFS proposes to reclassify this fishery as a Category II fishery.

#### AK Bering Sea Sablefish Pot Fishery

NMFS proposes elevating the AK Bering Sea sablefish pot fishery from Category III to Category II based on the following analysis of interactions between this fishery and the central and western North Pacific stocks of humpback whales.

*Tier 1 Evaluation:*                     The total estimated annual mortality and serious injury across all fisheries is greater than 10% of the PBR levels for the central and western North Pacific stocks of humpback whales. Therefore, the AK Bering Sea sablefish pot fishery is subject to Tier 2 analysis for these stocks.                

*Tier 2 Evaluation:*                     The average annual estimated mortality and serious injury of central North Pacific stock of humpback whales in this fishery is 0.2 animals per year or 2.7% of the stock's PBR (7.4 animals per year). Because this level of mortality and serious injury exceeds 1% but is less than 50% of the stock's PBR level, this fishery qualifies for classification as a Category II fishery.                

The average annual estimated mortality and serious injury of western North Pacific stock of humpback whales in this fishery is 0.2 animals per year or 28.57% of the stock's PBR (0.7 animals per year). Because this level of mortality and serious injury exceeds 1% but is less than 50% of the stock's PBR level, this fishery qualifies for classification as a Category II fishery.

Since the annual estimated level of marine mammal mortality and serious injury incidental to this fishery is less than 50 percent and greater than 1 percent of the PBR level for both marine mammal stocks described in the Tier 2 analysis, NMFS proposes to reclassify this fishery as a Category II fishery.

#### CA/OR Thresher Shark/Swordfish Drift Gillnet Fishery (≥14 in. mesh)

NMFS proposes to elevate the CA/OR thresher shark/swordfish drift gillnet fishery from Category II to Category I. The CA/OR thresher shark/swordfish drift gillnet fishery includes all vessels using drift gillnets of greater than or equal to 14 inch stretched mesh to target thresher shark and swordfish off of California and Oregon. This fishery primarily operates outside of state waters to about 150 miles offshore, ranging from the U.S.-Mexico border to northward of the Columbia River in Oregon. This fishery is the subject of the Pacific Offshore Cetacean Take Reduction Team (POCTRT), which was convened by NMFS in 1996 to reduce the take of marine mammals incidental to this fishery. The Pacific Offshore Cetacean Take Reduction Plan took effect in 1997 and has resulted in a significant reduction in the number of marine mammals taken in this fishery. As a result of this reduction in marine mammal mortality and serious injury, NMFS changed the classification of this fishery from Category I to Category II in the 2003 LOF (68 FR 41725, July 15, 2003).

Based on data collected during a fall 2002 research cruise, NMFS developed revised abundance estimates and PBR levels for several marine mammal stocks in the Pacific Ocean and incorporated these into the 2003 SARs. As a result of these changes, the PBR level for the CA/OR/WA stock of short-finned pilot whales was revised from 5.1 animals per year to 1.19 animals per year.

                    NMFS' analysis of the incidental marine mammal mortality and serious injury for this fishery is based on NMFS observer data from 1999 through 2003. Based on these observer data, the NMFS Southwest Fisheries Science Center produced annual reports providing estimates of marine mammal mortality and serious injury for this fishery. These reports were presented to the Pacific SRG and the POCTRT and are incorporated into the SARs as they are updated. The annual mortality reports for 1997-2003 are available on the internet at:                     *http://swfsc.nmfs.noaa.gov/​PRD/​PROGRAMS/​CMMP/​default.htm*.                

Overall, the incidental take of marine mammal stocks in the CA/OR thresher shark/swordfish drift gillnet fishery has continued to decrease. However, based on the recent revised PBR level for short-finned pilot whales and the incidental take of one short-finned pilot whale by the fishery in 2003, NMFS is proposing to elevate this fishery to Category I. NMFS intends to continue placing observers on vessels participating in this fishery and to continue working with the POCTRT to address the entanglement of marine mammals in this fishery. In addition, NMFS will be conducting a research cruise in fall 2005 that will result in revised abundance estimates and PBR levels for several marine mammal stocks in the Pacific Ocean, including the CA/OR/WA stock of short-finned pilot whales.

*Tier 1 Evaluation:*                     NMFS observer data indicate that animals from the following marine mammal stocks were killed or seriously injured incidental to the CA/OR thresher shark/swordfish drift gillnet fishery from 1999-2003: California sea lion (U.S. stock), northern elephant seal (CA breeding stock), Dall's porpoise (CA/OR/WA stock), Pacific white-sided dolphin (CA/OR/WA Northern and Southern stocks), Risso's dolphin (CA/OR/WA stock), short-beaked common dolphin (CA/OR/WA stock), long-beaked common dolphin (CA/OR/WA stock), northern right whale dolphin (CA/OR/WA stock), short-finned pilot whale (CA/OR/WA stock), and gray whale (eastern North Pacific stock). According to the best available information, the estimated annual mortality and serious injury across all fisheries is greater than 10 percent of the PBR levels for the following stocks: California sea lion (U.S. stock), northern right whale dolphin (CA/OR/WA stock), short-finned pilot whale (CA/OR/WA stock), and fin whale (CA/OR/WA stock); therefore, this fishery is subject to Tier 2 analysis for these stocks.                

*Tier 2 Evaluation:*                     NMFS analysis of the incidental marine mammal mortality and serious injury for this fishery is based on NMFS observer data from 1999 through 2003. The average annual estimated mortality and serious injury of California sea lions incidental to this fishery during this period was 36.6 animals per year, which represents 0.4 percent of the PBR level for California sea lions (8,333 animals). The average annual estimated mortality and serious injury of northern right whale dolphins incidental to this fishery is 21.2 animals per year, which represents 12.9 percent of the PBR level for this stock (164 animals). The average annual estimated mortality and serious injury of short-finned pilot whales incidental to this fishery during this period is 1 animal per year, which represents 84 percent of the PBR level for this stock (1.19 animals). The average annual estimated mortality and serious injury of fin whales incidental to this fishery is 0.9 animals per year, which represents 17.6 percent of the PBR level for this stock (5.1 animals).                

Because the level of mortality and serious injury is greater than 50 percent of the PBR level for short-finned pilot whales, this fishery qualifies for reclassification as a Category I fishery.
      ( print page 70099)    

## Fishery Name and Organizational Changes and Clarifications

#### Bering Sea and Aleutian Islands Cod Longline Fishery

NMFS proposes to modify the name of the “Bering Sea and Aleutian Islands cod longline fishery” to the “Bering Sea and Aleutian Islands Pacific cod longline fishery” to correct an error in the final 2004 LOF (69 FR 48407, August 10, 2004) in which “Pacific” was mistakenly omitted.

#### Number of Vessels/Persons

The estimated number of participants in the “OR Swordfish Floating Longline Fishery” is updated to 0 based on 2004 permit data.

The estimated number of participants in the CA/OR thresher shark/swordfish drift gillnet fishery is updated to 85 based on recent permit data.

The estimated number of participants in the CA anchovy, mackerel, tuna purse seine fishery is updated to 110 based on recent permit data.

The estimated number of participants in the California pelagic longline fishery is updated to 6 based on recent permit data.

The estimated number of participants in the California sardine purse seine fishery is updated to 110 based on recent permit data.

The estimated number of participants in the California swordfish harpoon fishery is updated to 30 based on recent permit data.

#### List of Species that are Incidentally Injured or Killed

NMFS proposes to add the Eastern North Pacific stock of gray whales to the list of marine mammal species and stocks incidentally injured or killed by the WA, OR, CA crab pot fishery. An interaction between this stock and the WA, OR, CA crab pot fishery was documented by the marine mammal health and stranding network and NOAA's Office of Law Enforcement.

NMFS proposes to add the CA/OR/WA stocks of long-beaked and short-beaked common dolphins, and California sea lions to the list of marine mammal species and stocks that interact with the CA yellowtail, barracuda, white seabass, and tuna drift gillnet fishery. An interaction between this stock and this fishery was documented by the NMFS observer program.

NMFS proposes to add the CA/OR/WA stock of Risso's dolphin to the list of marine mammal species and stocks that interact with the California pelagic longline fishery. An interaction between this stock and this fishery was documented by the NMFS observer program.

NMFS proposes to add the U.S. stock of California sea lions to the list of marine mammal species and stocks that interact with the California sardine purse seine fishery. An interaction between this stock and this fishery was documented by the NMFS observer program.

NMFS proposes to add the eastern North Pacific resident and transient stocks of killer whales to the list of marine mammal species and stocks that interact with the AK BSAI Pacific cod longline fishery. Interactions between these stocks and this fishery have been documented in recent SARs.

## Commercial Fisheries in the Atlantic Ocean, Gulf of Mexico, and Caribbean: Fishery Classification

#### Mid-Atlantic Bottom Trawl Fishery

NMFS proposes elevating the “Mid-Atlantic bottom trawl fishery” (proposed name change from “Mid-Atlantic mixed species trawl fishery,” see Fishery Name and Organizational Changes and Clarifications section) from Category III to Category II based on documented interactions between the fishery and the Western North Atlantic stocks of common dolphins and pilot whales.

*Tier 1 Evaluation:*                     Total annual incidental mortality and serious injury across all fisheries is greater than or equal to 10 percent of PBR levels for the following stocks: Western North Atlantic stocks of common dolphins, long-finned and short-finned pilot whales. Therefore, this fishery is subject to Tier 2 analysis for these stocks.                

*Tier 2 Evaluation:*                     Total fishery-related mortality and serious injury of pilot whales cannot be estimated separately for long-finned and short-finned pilot whales because fishery observers cannot reliably identify pilot whales to species as they are very similar in appearance. Therefore, the average annual estimated mortality and serious injury of these two species of pilot whales in the Western North Atlantic (                    *Globicephala spp.*) incidental to the Mid-Atlantic bottom trawl fishery during 1997-2001 was 46 animals per year, or 42.59 percent of the PBR level for pilot whales (108 animals per year). Because this level of mortality and serious injury exceeds 1 percent of the PBR level but is less than 50 percent of the PBR level, this fishery qualifies for reclassification as a Category II fishery.                

The average annual estimated mortality and serious injury of the Western North Atlantic stock of common dolphins incidental to the Mid-Atlantic bottom trawl fishery during 1997-2001 was19 animals per year, or 8.37 percent of the PBR level for common dolphins (227 animals per year). Because this level of mortality and serious injury exceeds 1 percent of the PBR level but is less than 50 percent of the PBR level, this fishery qualifies for reclassification as a Category II fishery.

Since the annual estimated level of marine mammal mortality and serious injury incidental to this fishery is less than 50 percent and greater than 1 percent of the PBR levels of both marine mammal stocks described in the Tier 2 analysis, NMFS proposes to reclassify this fishery as Category II.

#### Northeast Bottom Trawl Fishery

NMFS proposes elevating the “Northeast bottom trawl fishery,” (proposed name change from “North Atlantic bottom trawl fishery,” see Fishery Name and Organizational Changes and Clarifications section) from Category III to Category II based on documented interactions between the fishery and the Western North Atlantic stock of Atlantic white-sided dolphins.

*Tier 1 Evaluation:*                     Total annual incidental mortality and serious injury across all fisheries is greater than or equal to 10 percent of PBR levels for the Western North Atlantic stock of Atlantic white-sided dolphins. Therefore, this fishery is subject to Tier 2 analysis for this stock.                

*Tier 2 Evaluation:*                     The annual observed mortality and serious injury of the Western North Atlantic stock of Atlantic white-sided dolphins incidental to the Northeast bottom trawl fishery during 2003 was 12 animals, or 3.3 percent of the PBR level for white-sided dolphins (364 animals per year). Because this level of mortality and serious injury exceeds 1 percent of the PBR level but is less than 50 percent of the PBR level, this fishery qualifies for reclassification as a Category II fishery. Therefore, NMFS proposes to reclassify this fishery as Category II.                

## Addition of Fisheries to the LOF

#### Atlantic Shellfish Bottom Trawl Fishery

                    NMFS proposes to add the “Atlantic shellfish bottom trawl fishery” to the LOF to encompass the calico scallops trawl fishery, crab trawl fishery, Georgia/South Carolina/Maryland whelk trawl fishery, Gulf of Maine/Mid-Atlantic sea scallops trawl fishery, and Gulf of Maine northern shrimp trawl fishery. Additionally, NMFS proposes to list the Atlantic shellfish bottom trawl fishery as a Category III fishery because all fisheries proposed to be combined                           ( print page 70100)                        are currently Category III fisheries and have no documented interactions with marine mammals.                

#### Removal of Fisheries from the LOF

NMFS proposes to remove the “U.S. Atlantic monkfish trawl fishery” from the LOF. This fishery is currently a Category III fishery that operates throughout the Mid-Atlantic and Northeast regions. Both the North Atlantic bottom trawl fishery (proposed name change to Northeast bottom trawl fishery, see Fishery Name and Organizational Changes and Clarifications section) and Mid-Atlantic mixed species trawl fishery (proposed name change to Mid-Atlantic bottom trawl fishery, see Fishery Name and Organizational Changes and Clarifications section) descriptions include fishing gear managed under the monkfish fishery management plans as well as other groundfish fishery management plans. Therefore, NMFS proposes deleting this fishery and incorporating any trawl fisheries that target monkfish in the Atlantic under existing trawl fisheries on the LOF, e.g., the Northeast bottom trawl fishery or the Mid-Atlantic bottom trawl fishery.

NMFS proposes to delete the following trawl fisheries from the 2005 LOF: “Calico Scallops Trawl Fishery,” “Crab Trawl Fishery,” “Georgia/South Carolina/Maryland Whelk Trawl Fishery,” “Gulf of Maine/Mid-Atlantic Sea Scallops Trawl Fishery,” and “Gulf of Maine Northern Shrimp Trawl Fishery.” NMFS proposes to combine these fisheries under one listing in the LOF as the “Atlantic shellfish bottom trawl fishery” (see Addition of Fisheries section).

## Fishery Name and Organizational Changes and Clarifications

#### Atlantic Herring Mid-Water Trawl Fishery (Including Pair Trawl)

NMFS proposes to modify the name of the “Atlantic herring mid-water trawl fishery (including pair trawl)” to the “Northeast mid-water trawl fishery.” This fishery primarily operates in the Gulf of Maine and George's Bank regions. There have been occasional interactions documented between this fishery and marine mammals and, thus, the fishery is currently classified as a Category II fishery. NMFS proposes to modify the name of this fishery in order to appropriately classify all similar mid-water trawl fisheries operating in the Northeast region, with home ports between Connecticut and Maine, that may be interacting with marine mammals.

#### Atlantic Squid, Mackerel, and Butterfish Trawl Fishery

NMFS proposes to modify the name of the “Atlantic squid, mackerel, and butterfish trawl fishery” to the “Mid-Atlantic mid-water trawl fishery.” Trawl fisheries targeting squid occur mainly in southern New England and Mid-Atlantic waters and typically use small-mesh otter trawls throughout the water column. Trawl fisheries targeting mackerel occur mainly in southern New England and Mid-Atlantic waters and generally operate in mid-water. Butterfish are predominately caught incidental to directed squid and mackerel trawls fisheries. There have been frequent interactions documented between this fishery and several species/stocks of marine mammals and, thus, the fishery is currently classified as a Category I fishery. NMFS proposes to modify the name of this fishery in order to appropriately classify all similar mid-water trawl fisheries operating in the Mid-Atlantic region, with home ports between New York and North Carolina, that may be interacting with marine mammals.

#### Delaware Bay Inshore Gillnet Fishery

NMFS proposes to modify the name of the “Delaware Bay inshore gillnet fishery” to the “Delaware River inshore gillnet fishery.” The Delaware Bay inshore gillnet fishery is currently a Category III fishery. The Atlantic Large Whale Take Reduction Plan (ALWTRP) regulations apply to all waters inside Delaware Bay between the COLREGS and a line from the southern point of Nantuxent Cove, NJ to the southern end of Kelley Island, Port Mahon, DE. This proposed change would therefore place all gillnet fisheries operating in Delaware Bay outside of the line between the southern point of Nantuxent Cove, NJ to the southern end of Kelley Island, Port Mahon, DE in the Category I “Mid-Atlantic gillnet fishery” (proposed name change from Mid-Atlantic coastal gillnet fishery; see below) and, as such, would be regulated under the ALWTRP. Moreover, gillnet fisheries operating inland of the COLREGS would be placed in the “Delaware River inshore gillnet fishery” and would not be subject to ALWTRP regulations.

#### Gulf of Maine Tub Trawl Groundfish Bottom Longline/Hook-and-Line Fishery

NMFS proposes to modify the name of the “Gulf of Maine tub trawl groundfish bottom longline/hook-and-line fishery” to the “Northeast/Mid-Atlantic bottom longline/hook-and-line fishery.” The fishery is currently in Category III and predominately operates between Cape Cod, MA and George's Bank, in an area extending beyond the Gulf of Maine. Therefore, NMFS proposes to delete the reference to the “Gulf of Maine” in the fishery name. Additionally, NMFS solicits public comment regarding interactions between this fishery and marine mammals.

#### Mid-Atlantic Coastal Gillnet Fishery

NMFS proposes to modify the name of the “Mid-Atlantic coastal gillnet fishery” to the “Mid-Atlantic gillnet fishery.” Currently, the Mid-Atlantic coastal gillnet fishery is a Category I fishery that includes all fisheries using any type of gillnet gear, west of 72°30′ W and north of a line extending due east from the North Carolina/South Carolina border, except for inshore gillnet fisheries currently placed in Category III. This area includes both nearshore waters (under State jurisdiction) and offshore waters (under Federal jurisdiction). Therefore, NMFS proposes to remove the reference to “coastal” waters in the name of this fishery.

#### Mid-Atlantic Mixed Species Trawl Fishery

NMFS proposes to modify the name of the “Mid-Atlantic mixed species trawl fishery” to the “Mid-Atlantic bottom trawl fishery” to encompass similar bottom trawl fisheries operating in the region that potentially interact with marine mammals.

#### North Atlantic Bottom Trawl Fishery

NMFS proposes to modify the name of the “North Atlantic bottom trawl fishery” to the “Northeast bottom trawl fishery” to encompass similar bottom trawl fisheries operating in the region that potentially interact with marine mammals.

#### Number of Vessels/Persons

The estimated number of participants in the “Atlantic shellfish bottom trawl fishery” is 972.

## List of Species that are Incidentally Injured or Killed

#### Atlantic Mixed Species Trap/Pot Fishery

NMFS proposes to remove the Canadian east coast stock of minke whales and the Gulf of Maine/Bay of Fundy stock of harbor porpoise from the list of marine mammal species and stocks incidentally injured or killed by the Atlantic mixed species trap/pot fishery. Interactions between each of these marine mammal stocks and this fishery have not been documented in recent years.
      ( print page 70101)    

#### Atlantic Ocean, Caribbean, and Gulf of Mexico Large Pelagics Longline Fishery

NMFS proposes to remove the Western North Atlantic stock of striped dolphins, the Gulf of Maine/Bay of Fundy stock of harbor porpoise, the Western North Atlantic stock of humpback whales, and the Canadian East coast stock of minke whales from the list of marine mammal species and stocks incidentally injured or killed by the Atlantic Ocean, Caribbean, and Gulf of Mexico large pelagics longline fishery. Interactions between each of these marine mammal stocks and this fishery have not been documented in recent years.

NMFS proposes to add the Western North Atlantic stocks of mesoplodon beaked whales and Cuvier's beaked whales, and the Northern Gulf of Mexico stock of short-finned pilot whales to the list of marine mammal species and stocks incidentally injured or killed by the Atlantic Ocean, Caribbean, and Gulf of Mexico large pelagics longline fishery. Interactions between pilot whales and this fishery have been documented in recent SARs while interactions between beaked whales and a Balaenopterid whale and this fishery have been documented by the observer program.

#### Chesapeake Bay Inshore Gillnet Fishery

NMFS proposes to remove the Gulf of Maine/Bay of Fundy stock of harbor porpoise from the list of marine mammal species and stocks incidentally injured or killed by the Chesapeake Bay inshore gillnet fishery. Interactions between this marine mammal stock and this fishery have not been documented in recent years.

#### Delaware River Inshore Gillnet Fishery

NMFS proposes to remove the Gulf of Maine/Bay of Fundy stock of harbor porpoise, the Gulf of Maine stock of humpback whales, and the Western North Atlantic coastal stock of bottlenose dolphins from the list of marine mammal species and stocks incidentally injured or killed by the Delaware River inshore gillnet fishery (proposed name change from Delaware Bay inshore gillnet fishery, see Fishery Name and Organizational Changes and Clarifications section). Interactions between each of these marine mammal stocks and this fishery have not been documented in recent years.

#### Gulf of Maine Herring and Atlantic Mackerel Stop Seine/Weir Fishery

NMFS proposes to remove the Western North Atlantic stocks of humpback whales and North Atlantic right whales from the list of marine mammal species and stocks incidentally injured or killed by the Gulf of Maine herring and Atlantic mackerel stop seine/weir fishery. Interactions between each of these marine mammal stocks and this fishery have not been documented in recent years.

NMFS proposes to add the Western North Atlantic stock of Atlantic white-sided dolphins to the list of marine mammal species and stocks incidentally injured or killed by the Gulf of Maine herring and Atlantic mackerel stop seine/weir fishery. Interactions between this marine mammal stock and this fishery have been documented in recent years.

#### Gulf of Mexico Butterfish Trawl Fishery

NMFS proposes to remove the Eastern Gulf of Mexico stocks of Atlantic spotted dolphins and pantropical spotted dolphins from the list of marine mammal species and stocks incidentally injured or killed by the Gulf of Mexico butterfish trawl fishery. Interactions between these marine mammal stocks and this fishery have not been documented in recent years.

NMFS proposes to add the Northern Gulf of Mexico outer continental shelf stock and Northern Gulf of Mexico continental shelf edge and slope stock of bottlenose dolphins to the list of marine mammal species and stocks incidentally injured or killed by the Gulf of Mexico butterfish trawl fishery. Interactions between each of these marine mammal stocks/species and this fishery have been documented in recent SARs.

#### Gulf of Mexico Menhaden Purse Seine Fishery

NMFS proposes to add the Eastern Gulf of Mexico coastal stock of bottlenose dolphins and the Gulf of Mexico bay, sound and estuarine stock of bottlenose dolphins to the list of marine mammal species and stocks incidentally injured or killed by the Gulf of Mexico menhaden purse seine fishery. Interactions between these marine mammal stocks and this fishery have been documented in recent SARs.

#### Long Island Sound Inshore Gillnet Fishery

NMFS proposes to remove the Gulf of Maine/Bay of Fundy stock of harbor porpoise, the Gulf of Maine stock of humpback whales, and the Western North Atlantic coastal stock of bottlenose dolphins from the list of marine mammal species and stocks incidentally injured or killed by the Long Island Sound inshore gillnet fishery. Interactions between each of these marine mammal stocks and this fishery have not been documented in recent years.

#### Mid-Atlantic Bottom Trawl Fishery

NMFS proposes to add the Western North Atlantic stocks of long-finned pilot whales, short-finned pilot whales, and common dolphins to the list of marine mammal species and stocks incidentally injured or killed by the Mid-Atlantic bottom trawl fishery. Interactions between each of these marine mammal stocks and this fishery have been documented in recent SARs.

#### Mid-Atlantic Gillnet Fishery

NMFS proposes to add the Western North Atlantic stock of gray seals and the Western North Atlantic stock of fin whales to the list of marine mammal species and stocks incidentally injured or killed by the Mid-Atlantic gillnet fishery. Interactions between the Western North Atlantic stock of gray seals and this fishery have been documented in recent SARs and interactions between the Western North Atlantic stock of fin whales and this fishery have been documented by the NMFS Observer Program.

#### Mid-Atlantic Menhaden Purse Seine Fishery

NMFS proposes to remove the Western North Atlantic stock of humpback whales from the list of marine mammal species and stocks incidentally injured or killed by the Mid-Atlantic purse seine fishery. Interactions between each of these marine mammal stocks and this fishery have not been documented in recent years.

#### Mid-Atlantic Mid-water Trawl Fishery

NMFS proposes to add the Western North Atlantic offshore stock of bottlenose dolphins to the list of marine mammal species and stocks incidentally injured or killed by the Mid-Atlantic mid-water trawl fishery. Interactions between this marine mammal stock and this fishery have been documented in recent SARs.

#### Northeast Bottom Trawl Fishery

                    NMFS proposes to add the Western North Atlantic stock of harp seals and the Gulf of Maine/Bay of Fundy stock of harbor porpoise to the list of marine mammal species and stocks incidentally injured or killed by the Northeast bottom trawl fishery (proposed name change from North Atlantic bottom trawl fishery, see Fishery Name and Organizational Changes and Clarification section). Interactions between each of these marine mammal                           ( print page 70102)                        stocks and this fishery have been documented in recent SARs.                

#### Northeast/Mid-Atlantic Bottom Longline/Hook-and-Line Fishery

NMFS proposes to remove the Western North Atlantic stocks of harbor seals, gray seals, and humpback whales from the list of marine mammal species and stocks incidentally injured or killed by the Northeast/Mid-Atlantic bottom longline/hook-and-line fishery. Interactions between each of these marine mammal stocks and this fishery have not been documented in recent years.

#### Northeast Mid-water Trawl Fishery

NMFS proposes to add the Western North Atlantic stocks of long-finned pilot whales, short-finned pilot whales, and Atlantic white-sided dolphins to the list of marine mammal species and stocks incidentally injured or killed by the Northeast mid-water trawl fishery. Interactions between each of these marine mammal stocks and this fishery have been documented in recent SARs.

#### Northeast Sink Gillnet Fishery

NMFS proposes to remove the Western North Atlantic stocks of killer whales, spotted dolphins, and false killer whales from the list of marine mammal species and stocks incidentally injured or killed by the Northeast sink gillnet fishery. Interactions between each of these marine mammal stocks/species and this fishery have not been documented in recent years.

NMFS proposes to add the Western North Atlantic stocks of Risso's dolphins and hooded seals to the list of marine mammal species and stocks incidentally injured or killed by the Northeast sink gillnet fishery. Interactions between each of these marine mammal stocks/species and this fishery have been documented in recent SARs.

#### Rhode Island, Southern Massachusetts (to Monomoy Island), and New York Bight (Raritan and Lower New York Bays) Inshore Gillnet Fishery

NMFS proposes to remove the Gulf of Maine/Bay of Fundy stock of harbor porpoise, the Gulf of Maine stock of humpback whales, and the Western North Atlantic coastal stock of bottlenose dolphins from the list of marine mammal species and stocks incidentally injured or killed by the Rhode Island, Southern Massachusetts (to Monomoy Island), and New York Bight (Raritan and Lower New York Bays) inshore gillnet fishery. Interactions between each of these marine mammal stocks and this fishery have not been documented in recent years.

#### Southeastern U.S. Atlantic and Gulf of Mexico Shrimp Trawl Fishery

NMFS proposes to add the Western Gulf of Mexico coastal stock of bottlenose dolphins, the Eastern Gulf of Mexico coastal stock of bottlenose dolphins, the Gulf of Mexico bay, sound, and estuarine stock of bottlenose dolphins, and the Florida stock of the West Indian manatee to the list of marine mammal species and stocks incidentally injured or killed by the Southeastern U.S. Atlantic and Gulf of Mexico shrimp trawl fishery. Interactions between each of these marine mammal stocks/species and this fishery have been documented in recent SARs.

#### U.S. Atlantic Tuna Purse Seine Fishery

NMFS proposes to add the Western North Atlantic stocks of long-finned and short-finned pilot whales to the list of marine mammal species and stocks incidentally injured or killed by the U.S. Atlantic tuna purse seine fishery. Interactions between each of these marine mammal stocks/species and this fishery have been documented in recent SARs.

## List of Fisheries

The following two tables list U.S. commercial fisheries according to their assigned categories under section 118 of the MMPA. The estimated number of vessels/participants is expressed in terms of the number of active participants in the fishery, when possible. If this information is not available, the estimated number of vessels or persons licensed for a particular fishery is provided. If no recent information is available on the number of participants in a fishery, the number from the most recent LOF is used.

The tables also list the marine mammal species and stocks that are incidentally killed or injured in each fishery based on observer data, logbook data, stranding reports, and fisher reports. This list includes all species or stocks known to experience injury or mortality in a given fishery, but also includes species or stocks for which there are anecdotal or historical, but not necessarily current, records of interaction. Additionally, species identified by logbook entries may not be verified. Not all species or stocks identified are the reason for a fishery's placement in a given category. There are a few fisheries that are in Category II that have no recently documented interactions with marine mammals. Justifications for placement of these fisheries are by analogy to other gear types that are known to cause mortality or serious injury of marine mammals, as discussed in the final LOF for 1996 (60 FR 67063, December 28, 1995), and according to factors listed in the definition of “Category II fishery” in 50 CFR 229.2.

Table 1 lists commercial fisheries in the Pacific Ocean (including Alaska); Table 2 lists commercial fisheries in the Atlantic Ocean, Gulf of Mexico, and Caribbean.
      ( print page 70103)          ( print page 70104)          ( print page 70105)          ( print page 70106)          ( print page 70107)          ( print page 70108)          ( print page 70109)          ( print page 70110)          ( print page 70111)          ( print page 70112)          ( print page 70113)          ( print page 70114)          ( print page 70115)          ( print page 70116)          ( print page 70117)    

## Classification

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule would not have a significant economic impact on a substantial number of small entities. For convenience, the factual basis leading to the certification is repeated below.

Under existing regulations, all fishers participating in Category I or II fisheries must register under the MMPA, obtain an Authorization Certificate, and pay a fee of $25. Additionally, fishers may be subject to a take reduction plan and requested to carry an observer. The Authorization Certificate authorizes the taking of marine mammals incidental to commercial fishing operations. NMFS has estimated that approximately 41,600 fishing vessels, most of which are small entities, operate in Category I or II fisheries, and therefore, are required to register. However, registration has been integrated with existing state or Federal registration programs for the majority of these fisheries so that the majority of fishers do not need to register separately under the MMPA. Currently, approximately 5,800 fishers register directly with NMFS under the MMPA authorization program.

Though this proposed rule would affect a number of small entities, the $25 registration fee, with respect to anticipated revenues, is not considered a significant economic impact. If a vessel is requested to carry an observer, fishers will not incur any economic costs associated with carrying that observer. As a result of this certification, an initial regulatory flexibility analysis was not prepared. In the event that reclassification of a fishery to Category I or II results in a take reduction plan, economic analyses of the effects of that plan will be summarized in subsequent rulemaking actions. Further, if a vessel is requested to carry an observer, fishers will not incur any economic costs associated with carrying that observer.

                    This proposed rule contains collection-of-information requirements subject to the Paperwork Reduction Act. The collection of information for the registration of fishers under the MMPA has been approved by the Office of Management and Budget (OMB) under OMB control number 0648-0293 (0.25 hours per report for new registrants and 0.15 hours per report for renewals). The requirement for reporting marine mammal injuries or moralities has been approved by OMB under OMB control number 0648-0292 (0.15 hours per report). These estimates include the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding these reporting burden estimates or any other aspect of the collections of information, including suggestions for reducing burden, to NMFS and OMB (see                     **ADDRESSES**                    ).                

Notwithstanding any other provision of law, no person is required to respond to nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a currently valid OMB control number.

This proposed rule has been determined to be not significant for the purposes of Executive Order 12866.

An environmental assessment (EA) was prepared under the National Environmental Policy Act (NEPA) for regulations to implement section 118 of the MMPA (1995 EA). The 1995 EA concluded that implementation of those regulations would not have a significant impact on the human environment. This proposed rule would not make any significant change in the management of reclassified fisheries, and therefore, this proposed rule is not expected to change the analysis or conclusion of the 1995 EA. If NMFS takes a management action, for example, through the development of a Take Reduction Plan (TRP), NMFS will first prepare an environmental document as required under NEPA specific to that action.

This proposed rule would not affect species listed as threatened or endangered under the Endangered Species Act (ESA) or their associated critical habitat. The impacts of numerous fisheries have been analyzed in various biological opinions, and this proposed rule will not affect the conclusions of those opinions. The classification of fisheries on the LOF is not considered to be a management action that would adversely affect threatened or endangered species. If NMFS takes a management action, for example, through the development of a TRP, NMFS would conduct consultation under section 7 of the ESA for that action.

This proposed rule would have no adverse impacts on marine mammals and may have a positive impact on marine mammals by improving knowledge of marine mammals and the fisheries interacting with marine mammals through information collected from observer programs or take reduction teams.

This proposed rule would not affect the land or water uses or natural resources of the coastal zone, as specified under section 307 of the Coastal Zone Management Act.

Dated: November 26, 2004.

John Oliver,

Deputy Assistant Administrator for Operations, National Marine Fisheries Service.

BILLING CODE 3510-22-S

BILLING CODE 3510-22-C

[FR Doc. 04-26577 Filed 12-1-04; 8:45 am]