[Federal Register Volume 73, Number 115 (Friday, June 13, 2008)]
[Proposed Rules]
[Pages 33760-33800]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 08-1352]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 229

[Docket No. 080204115-8135-01]
RIN 0648-AW48


List of Fisheries for 2009

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

[[Page 33761]]


ACTION: Proposed rule; request for comments.

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SUMMARY: The National Marine Fisheries Service (NMFS) publishes its 
proposed List of Fisheries (LOF) for 2009, as required by the Marine 
Mammal Protection Act (MMPA). The proposed LOF for 2009 reflects new 
information on interactions between commercial fisheries and marine 
mammals. NMFS must categorize each commercial fishery on the LOF into 
one of three categories under the MMPA based upon the level of serious 
injury and mortality of marine mammals that occurs incidental to each 
fishery. The categorization of a fishery in the LOF determines whether 
participants in that fishery are subject to certain provisions of the 
MMPA, such as registration, observer coverage, and take reduction plan 
requirements.

DATES: Comments must be received by August 12, 2008.

ADDRESSES: Send comments by anyone of the following methods.
    (1) Electronic Submissions: Submit all electronic comments through 
the Federal eRulemaking portal: http://www.regulations.gov (follow 
instructions for submitting comments).
    (2) Mail: Chief, Marine Mammal and Sea Turtle Conservation 
Division, Attn: List of Fisheries, Office of Protected Resources, NMFS, 
1315 East-West Highway, Silver Spring, MD 20910.
    Comments regarding the burden-hour estimates, or any other aspect 
of the collection of information requirements contained in this 
proposed rule, should be submitted in writing to Chief, Marine Mammal 
and Sea Turtle Conservation Division, Office of Protected Resources, 
NMFS, 1315 East-West Highway, Silver Spring, MD 20910, or to David 
Rostker, OMB, by fax to 202-395-7285 or by email to <a href="/cdn-cgi/l/email-protection#d692b7a0bfb28984b9a5a2bdb3a496b9bbb4f8b3b9a6f8b1b9a0"><span class="__cf_email__" data-cfemail="95d1f4e3fcf1cac7fae6e1fef0e7d5faf8f7bbf0fae5bbf2fae3">[email protected]</span></a>.
    Instructions: All comments received are a part of the public record 
and will generally be posted to http://www.regulations.gov without 
change. All personal identifying information (for example, name, 
address, etc.) voluntarily submitted by the commenter may be publicly 
accessible. Do not submit confidential business information or 
otherwise sensitive or protected information. NMFS will accept 
anonymous comments. Attachments to electronic comments will be accepted 
in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only.
    See SUPPLEMENTARY INFORMATION for a listing of all Regional 
Offices.

FOR FURTHER INFORMATION CONTACT: Melissa Andersen, Office of Protected 
Resources, 301-713-2322; David Gouveia, Northeast Region, 978-281-9328; 
Nancy Young, Southeast Region, 727-824-5312; Elizabeth Petras, 
Southwest Region, 562-980-3238; Brent Norberg, Northwest Region, 206-
526-6733; Bridget Mansfield, Alaska Region, 907-586-7642; Lisa Van 
Atta, Pacific Islands Region, 808-944-2257. Individuals who use a 
telecommunications device for the hearing impaired may call the Federal 
Information Relay Service at 1-800-877-8339 between 8 a.m. and 4 p.m. 
Eastern time, Monday through Friday, excluding Federal holidays.

SUPPLEMENTARY INFORMATION:

Availability of Published Materials

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

Regional Offices

    NMFS, Northeast Region, One Blackburn Drive, Gloucester, MA 01930-
2298, Attn: Marcia Hobbs;
    NMFS, Southeast Region, 263 13th Avenue South, St. Petersburg, FL 
33701, Attn: Teletha Mincey;
    NMFS, Southwest Region, 501 W. Ocean Blvd., Suite 4200, Long Beach, 
CA 90802-4213, Attn: Lyle Enriquez;
    NMFS, Northwest Region, 7600 Sand Point Way NE, Seattle, WA 98115, 
Attn: Permits Office;
    NMFS, Alaska Region, Protected Resources, P.O. Box 22668, 709 West 
9th Street, Juneau, AK 99802, Attn: Bridget Mansfield; or
    NMFS, Pacific Islands Region, Protected Resources, 1601 Kapiolani 
Boulevard, Suite 1100, Honolulu, HI 96814-4700, Attn: Lisa Van Atta.

What is the List of Fisheries?

    Section 118 of the MMPA requires NMFS to place all U.S. commercial 
fisheries into one of three categories based on the level of incidental 
serious injury and mortality of marine mammals occurring in each 
fishery (16 U.S.C. 1387(c)(1)). The 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 Marine 
Mammal Stock Assessment Reports (SAR) and other relevant sources, and 
publish in the Federal Register any necessary changes to the LOF after 
notice and opportunity for public comment (16 U.S.C. 1387 (c)(1)(C)).

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

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

Fishery Classification Criteria

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

[[Page 33762]]

fishery-specific mortality and serious injury for a particular stock. 
Additional details regarding how the categories were determined are 
provided in the preamble to the proposed rule implementing section 118 
of the MMPA (60 FR 45086, August 30, 1995).
    Because fisheries are categorized on a per-stock basis, a fishery 
may qualify as one Category for one marine mammal stock and another 
Category for a different marine mammal stock. A fishery is typically 
categorized on the LOF at its highest level of classification (e.g., a 
fishery qualifying for Category III for one marine mammal stock and for 
Category II for another marine mammal stock will be listed under 
Category II).

Other Criteria That May Be Considered

    In the absence of reliable information indicating the frequency of 
incidental mortality and serious injury of marine mammals by a 
commercial fishery, NMFS will determine whether the fishery 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 Does NMFS Determine which Species or Stocks are Included as 
Incidentally Killed or Seriously Injured in a Fishery?

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

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

    Data obtained from observers and the level of observer coverage are 
important tools in estimating the level of marine mammal mortality and 
serious injury in commercial fishing operations. The best available 
information on the level of observer coverage, and the spatial and 
temporal distribution of observed marine mammal interactions, is 
presented in the SARs. Starting with the 2005 SARs, each SAR includes 
an appendix with detailed descriptions of each Category I and II 
fishery in the LOF, including observer coverage. The SARs generally do 
not provide detailed information on observer coverage in Category III 
fisheries because, under the MMPA, Category III fisheries are not 
required to accommodate observers aboard vessels due to the remote 
likelihood of mortality and serious injury of marine mammals. 
Information presented in the SARs' appendices includes: level of 
observer coverage, target species, levels of fishing effort, spatial 
and temporal distribution of fishing effort, characteristics of fishing 
gear and operations, management and regulations, and interactions with 
marine mammals. Copies of the SARs are available on the NMFS Office of 
Protected Resource's website at: http://www.nmfs.noaa.gov/pr/sars/. 
Additional information on observer programs in commercial fisheries can 
be found on the NMFS National Observer Program's website: http://www.st.nmfs.gov/st4/nop/.

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

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

Are High Seas Fisheries Included on the LOF?

    NMFS received public comments for the 2007 LOF (72 FR 14466, March 
28, 2007, comment/response 9) and the 2008 LOF (72 FR 66048, November 
27, 2007, comment/response 5) requesting NMFS include high seas 
fisheries on the LOF. In response to these comments, NMFS analyzed the 
relationship between MMPA sections 117 and 118 and the High Seas 
Fishing Compliance Act (HSFCA) and determined that it is appropriate to 
include U.S. fishers fishing on the high seas on the LOF. Beginning 
with the 2009 LOF, NMFS proposes to include high seas fisheries in 
Table 3 of the LOF. NMFS compiled information on vessels issued a HSFCA 
permit to identify fisheries operating on the high seas and to ensure 
that all high seas fisheries are included in the LOF, particularly 
those that do not have a component within waters under the jurisdiction 
of the United States (e.g., State waters, the U.S. territorial sea, and 
the U.S. Exclusive Economic Zone (EEZ); hereafter referred to as ``U.S. 
waters'').
    NMFS acknowledges that many fisheries currently 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. NMFS has 
designated 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 U.S. waters fisheries do not necessarily 
represent additional fishers that are not accounted for in Tables 1 and 
2. Many fishers holding these permits also fish within U.S. waters and 
are included in the number of vessels and participants operating within 
those fisheries in Table 1 and 2. For example, the fishers 
participating in the Category I ``CA/OR thresher shark/swordfish drift 
gillnet fishery'' may operate in both U.S. waters and the adjacent high 
seas, thus the high seas component of this fishery (listed in Table 3 
as the ``Pacific Highly Migratory Species'' drift gillnet) is not a 
separate fishery, but an extension of the fishery operating within U.S. 
waters (listed in Table 1).

How Does NMFS Authorize U.S. Vessels to Participate in High Seas 
Fisheries?

    NMFS issues high seas fishing permits, valid for five years, under 
the HSFCA. To fish under a high seas permit, a fisherman must also 
possess any required permits issued under the Magnuson-Stevens Fishery 
Conservation and Management Act (MSA) (with the exception of the South

[[Page 33763]]

Pacific Tuna Treaty fisheries, the Pacific Tuna Fisheries (Eastern 
Tropical Pacific purse seine vessels) and the South Pacific Albacore 
Troll fishery), and any permits issued by NMFS to fish within the 
convention area of a Regional Fishery Management Organization. Under 
the current permitting system, however, a fisherman can obtain a high 
seas permit prior to obtaining any necessary MSA permits. Similarly, a 
fisherman may have a HSFCA permit that was issued prior to changes in 
permits issued under the MSA. Therefore, some fishers possess valid 
HSFCA permits without the ability to fish under the permit. For this 
reason, the number of HSFCA permits displayed in Table 3 of this 
proposed rule is likely higher than the actual fishing effort by U.S. 
vessels on the high seas.
    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). There are currently seven 
U.S.-authorized high seas fisheries: Atlantic Highly Migratory Species 
Fisheries, Pacific Highly Migratory Species Fisheries, Western Pacific 
Pelagic Fisheries, South Pacific Albacore Troll Fishing, Pacific Tuna 
Fisheries, South Pacific Tuna Fisheries, and Antarctic Marine Living 
Resources. The LOF will not include the ``Pacific (Eastern Tropical) 
Tuna Fisheries'' because these fisheries are managed under Title III of 
the MMPA, separate from those fisheries subject to the LOF under 
section 118. Permits obtained prior to 2004 for fisheries that are no 
longer authorized by the HSFCA, but for which the 5-year permit is 
still valid, are included on the LOF as ``unspecified.'' The 
``unspecified'' fisheries will be removed from the LOF once those 
permits have expired, and the permit holder is required to renew the 
permit under one of the seven authorized fisheries.
    The authorized high seas fisheries are broad in scope and encompass 
multiple specific fisheries identified by gear type. Therefore, the 
seven U.S.-authorized high seas fisheries, exclusive of the ``Pacific 
(Eastern Tropical) Tuna Fisheries'', are subdivided on the LOF based on 
gear types (e.g., trawls, longlines, purse seines, gillnets, etc.), as 
listed on each individual's permit application, to provide more detail 
on composition of effort within these fisheries.

How Will NMFS Categorize High Seas Fisheries on the LOF?

    As discussed in the previous sections of this preamble, commercial 
fisheries operating within U.S. waters are categorized on the LOF based 
on the level of mortality and serious injury of marine mammal stocks 
incidental to commercial fishing as related to the stock's PBR level. 
PBR levels are calculated based on the stock's abundance using data 
presented in the SARs. Section 117 of the MMPA (16 U.S.C. 1386) 
requires NMFS to prepare SARs for marine mammal stocks occurring ``in 
waters under the jurisdiction of the United States.'' NMFS does not 
develop SARs or calculate PBR levels for marine mammal stocks on the 
high seas; therefore, NMFS does not possess the same information to 
categorize high seas fisheries as is used to categorize fisheries 
operating within U.S. waters.
    NMFS proposes to categorize the majority of high seas fisheries on 
the LOF as Category II. Category II is the appropriate category for new 
fisheries for which NMFS does not have adequate information to 
accurately categorize, unless there is reliable information to 
categorize it otherwise, or until further information becomes 
available. Categorizing a fishery as a Category II allows NMFS to place 
observers on vessels in that fishery, providing NMFS the opportunity to 
obtain information needed to most accurately catagorize a commercial 
fishery. For fisheries that operate both within U.S. waters and on the 
high seas, the fishery will be classified according to its status in 
U.S. waters. Therefore, for a Category I or Category III fishery within 
U.S. waters, the high seas component would also be classified as 
Category I or Category III, accordingly. For example, the ``Atlantic 
Ocean, Caribbean, Gulf of Mexico large pelagics longline fishery'' is a 
Category I fishery targeting highly migratory species within U.S. 
waters. Vessels in this fishery regularly cross into the high seas 
while fishing. Therefore, the high seas ``Atlantic Highly Migratory 
Species'' longline fishery would also be classified as Category I 
because it is the same fishery regardless of whether a vessel is 
fishing within U.S. waters or crosses the boundary into the high seas. 
Please see below under ``Summary of changes to the LOF for 2009'' for 
more details. NMFS will continue to gather available information on the 
authorized high seas fisheries and recategorize fisheries in Table 3, 
if necessary, as more information becomes available.

How Will NMFS Determine which Species or Stocks to Include as 
Incidentally Killed or Seriously Injured in a High Seas Fishery?

    All serious injury and mortality of marine mammals incidental to 
commercial fishing operations, both in U.S. waters and on the high 
seas, must be reported to NMFS. High seas fishers are provided with 
Marine Mammal Take Reporting Forms to record such incidents. (Very few 
marine mammal takes by U.S. vessels participating in high seas 
fisheries, however, have been reported on these forms to date.) 
Observer programs for fisheries operating within U.S. waters also 
collect data on the high seas if the vessel should cross into high seas 
waters. Additionally, some fisheries that operate exclusively on the 
high seas have formal observer programs that provide data on 
interactions. In these cases, the MSA, NEPA, or ESA documents 
supporting the authorization of the seven U.S.-authorized high seas 
fisheries review observer documented interactions and list the marine 
mammal species taken in those fisheries. This information is used to 
identify marine mammals killed/injured in these fisheries in Table 3 on 
the LOF. For other fisheries without observer data, the MSA, NEPA, and 
ESA documents supporting the authorization of the seven U.S.-authorized 
high seas fisheries present information on marine mammal interactions 
from anecdotal and other reports, which do not always specify the 
marine mammal species involved in the interactions. Therefore, marine 
mammal species killed or injured in the high seas fisheries without 
observer data that are listed in Table 3 would be designated as 
``undetermined'' until additional information on marine mammal 
populations and fishery interactions on the high seas become available.
    For high seas fisheries with an associated fishery operating within 
U.S. waters, as discussed above, Table 3 would list the same marine 
mammal species killed or injured (excluding coastal species that would 
not be found on the high seas) as those killed or injured by that 
fishery operating within U.S. waters. For example, the ``CA/OR thresher 
shark/swordfish drift gillnet ([gteqt]14 in, mesh)'' lists Risso's 
dolphins as killed or injured in the fishery operating within U.S. 
waters. This species occurs both within U.S. waters and the adjacent 
high seas and vessels in this fishery often cross into the high seas to 
fish. NMFS assumes that these vessels pose the same risk to the species 
on both sides of the EEZ boundary. Therefore, NMFS will also list 
Risso's dolphins under the high seas component of this fishery, the 
``Pacific Highly Migratory Species'' drift gillnet fishery. NMFS will 
add and delete

[[Page 33764]]

species from the LOF as additional information becomes available.

Am I Required to Register Under the MMPA?

    Owners of vessels or gear engaging in a Category I or II fishery 
are required under the MMPA (16 U.S.C. 1387(c)(2)), as described in 50 
CFR 229.4, to register with NMFS and obtain a marine mammal 
authorization to lawfully take a marine mammal incidental to commercial 
fishing. Owners of vessels or gear engaged in a Category III fishery 
are not required to register with NMFS or obtain a marine mammal 
authorization.

How Do I Register?

    NMFS has integrated the MMPA registration process, the Marine 
Mammal Authorization Program (MMAP), with existing state and Federal 
fishery license, registration, or permit systems for all Category I and 
II fisheries on the LOF. Participants in these fisheries are 
automatically registered under the MMAP and NMFS will issue vessel or 
gear owners an authorization certificate. Participants in these 
fisheries are not required to submit registration or renewal materials 
directly under the MMAP. The authorization certificate, or a copy, must 
be on board the vessel while it is operating in a Category I or II 
fishery, or for non-vessel fisheries, in the possession of the person 
in charge of the fishing operation (50 CFR 229.4(e)). Although efforts 
are made to limit the issuance of authorization certificates to only 
those vessel or gear owners that participate in Category I or II 
fisheries, not all state and Federal permit systems distinguish between 
fisheries as classified by the LOF. Therefore, some vessel or gear 
owners in Category III fisheries may receive authorization certificates 
even though they are not required for Category III fisheries. 
Individuals fishing in Category I and II fisheries for which no state 
or Federal permit is required must register with NMFS by contacting 
their appropriate Regional Office (see ADDRESSES).

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

    All vessel or gear owners will receive their authorization 
certificates and/or injury/mortality reporting forms via U.S. mail, 
except those vessel owners participating in the Northeast and Southeast 
Regional Integrated Registration Program. Vessel or gear owners 
participating in the Northeast and Southeast Regional Integrated 
Registration Program will receive their authorization certificates as 
follows:
    1. Northeast Region vessel or gear owners participating in Category 
I or II fisheries for which a state or Federal permit is required may 
receive their authorization certificate and/or injury/mortality 
reporting form by contacting the Northeast Regional Office at 978-281-
9300 x6505 or by visiting the Northeast Regional Office Web site 
(http://www.nero.noaa.gov/prot_res/) and following instructions for 
printing the necessary documents.
    2. Southeast Region vessel or gear owners participating in Category 
I or II fisheries for which a Federal permit is required, as well as 
fisheries permitted by the states of North Carolina, South Carolina, 
Georgia, Florida, Alabama, Mississippi, Louisiana, and Texas may 
receive their authorization certificate and/or injury/mortality 
reporting form by contacting the Southeast Regional Office at 727-824-
5312 or by visiting the Southeast Regional Office Web site (http://sero.nmfs.noaa.gov/pr/pr.htm) and following instructions for printing 
the necessary documents.

How Do I Renew My Registration Under the MMPA?

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

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

    In accordance with the MMPA (16 U.S.C. 1387(e)) and 50 CFR 229.6, 
any vessel owner or operator, or gear owner or operator (in the case of 
non-vessel fisheries), participating in a Category I, II, or III 
fishery must report to NMFS all incidental injuries and mortalities of 
marine mammals that occur during commercial fishing operations. 
``Injury'' is defined in 50 CFR 229.2 as a wound or other physical 
harm. In addition, any animal that ingests fishing gear or any animal 
that is released with fishing gear entangling, trailing, or perforating 
any part of the body is considered injured, regardless of the presence 
of any wound or other evidence of injury, and must be reported. Injury/
mortality reporting forms and instructions for submitting forms to NMFS 
can be downloaded from: http://www.nmfs.noaa.gov/pr/pdfs/interactions/mmap_reporting_form.pdf. Reporting requirements and procedures can be 
found in 50 CFR 229.6.

Am I Required to Take an Observer Aboard My Vessel?

    Fishers participating in a Category I or II fishery are required to 
accommodate an observer aboard vessel(s) upon request. 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. Refer to Table 4 in 
this document for a list of fisheries affected by take reduction teams 
and plans. Take reduction plan regulations can be found at 50 CFR 
229.30-35.

Sources of Information Reviewed for the Proposed 2009 LOF

    NMFS reviewed the marine mammal incidental serious injury and 
mortality information presented in the SARs for all observed fisheries 
to determine whether changes in fishery classification were warranted. 
NMFS' SARs are based on the best scientific information available at 
the time of preparation, including the level of serious injury and 
mortality of marine mammals that occurs incidental to commercial 
fisheries and the PBR levels of marine mammal stocks. The information 
contained in the SARs is reviewed by regional Scientific Review Groups 
(SRGs) representing Alaska, the Pacific (including Hawaii), and the 
U.S. Atlantic, Gulf of Mexico, and Caribbean. The SRGs were created by 
the MMPA to review the science that informs the SARs, and to advise 
NMFS on population status and trends, stock structure, uncertainties in 
the science, research needs, and other issues.
    NMFS also reviewed other sources of new information, including 
marine mammal stranding data, observer program data, fisher self-
reports, fishery management plans, ESA documents,

[[Page 33765]]

and other information that may not be included in the SARs.
    The proposed LOF for 2009 was based, among other things, on 
information provided in the NEPA and ESA documents analyzing authorized 
high seas fisheries, and the final SARs for 1996 (63 FR 60, January 2, 
1998), the final SARs for 2001 (67 FR 10671, March 8, 2002), the final 
SARs for 2002 (68 FR 17920, April 14, 2003), the final SARs for 2003 
(69 FR 54262, September 8, 2004), the final SARs for 2004 (70 FR 35397, 
June 20, 2005), the final SARs for 2005 (71 FR 26340, May 4, 2006), the 
final SARs for 2006 (72 FR 12774, March 19, 2007), the final SARs for 
2007 (73 FR 21111, April 18, 2008), and the draft SARs for 2008. All 
the SARs are available at: http://www.nmfs.noaa.gov/pr/sars/.

Fishery Descriptions

    NMFS described each Category I and II fishery on the LOF for 2008 
in the final 2008 LOF (72 FR 66048, November 27, 2007). Below, NMFS 
briefly describes each fishery listed as a Category I or II fishery 
appearing on the LOF for the first time. Additional details for 
Category I and II fisheries operating in U.S. waters are included in 
the SARs, Fishery Management Plans (FMPs), and Take Reduction Plans 
(TRPs), or through state agencies. Additional details for Category I 
and II fisheries operating on the high seas are included in various 
FMPs, NEPA, or ESA documents.

High Seas Atlantic Highly Migratory Species Fisheries

    The Atlantic Highly Migratory Species (HMS) high seas fisheries are 
similar to fisheries targeting Atlantic HMS within U.S. waters, but 
primarily use pelagic longline gear. Atlantic swordfish and bigeye tuna 
are the primary target species on the high seas, with Atlantic 
yellowfin, albacore and skipjack tunas, and pelagic and some deepwater 
sharks also caught and retained for sale. Bluefin tuna are caught 
incidental to pelagic longline operations, both on the high seas and 
within U.S. waters, and may be retained subject to specific target 
catch requirements.
    Within U.S. waters, HMS commercial fishers use several gear types. 
Authorized gear for tuna include speargun (except when targeting 
bluefin), rod and reel, handlines, bandit gear, harpoon, pelagic 
longline, trap (pound net and fish weir), and purse seine. Purse seines 
used to target bluefin tuna must have a mesh size of less than or equal 
to 4.5 in (11.4 cm) and at least 24-count thread throughout the net. 
Only rod and reel gear may be used to target billfish and commercial 
possession of Atlantic billfish is prohibited. Authorized gear for 
sharks includes rod and reel, handline, bandit gear, longline, and 
gillnet. Gillnets must be less than or equal to 2.5 km (1.6 mi) in 
length. Authorized gear for swordfish includes handline, handgear 
(including buoy gear), and longline for north Atlantic swordfish, and 
longline for south Atlantic swordfish. North Atlantic swordfish 
incidentally taken in squid trawls may be retained. The fishery 
management area for Atlantic HMS includes U.S. waters and the adjacent 
high seas.
    Atlantic HMS are managed under regulations implementing the 
Consolidated Atlantic HMS FMP (2006), under the authority of the MSA 
and the Atlantic Tunas Convention Act (ATCA). Regulations issued under 
the MSA address the target fish species, as well as bycatch of species 
protected by the ESA, MMPA, and Migratory Bird Treaty Act. The MSA 
regulations (50 CFR part 635) require vessel owners and operators 
targeting Atlantic HMS with longline or gillnet gear to complete 
protected species (sea turtles and marine mammals) safe handling, 
release, and identification workshops. The regulations also require 
shark dealers to complete an Atlantic shark identification workshop.
    The high seas components of Atlantic HMS fisheries are extensions 
of various Category I II, and III fisheries operating in U.S. waters 
(Tables 1 and 2). The longline fishery targeting Atlantic HMS in U.S. 
waters is the Category I, ``Atlantic Ocean, Caribbean, Gulf of Mexico 
large pelagics longline fishery.'' NMFS is currently developing 
regulations to implement the Pelagic Longline Take Reduction Plan 
(PLTRP) for this fishery. The gillnet fishery targeting Atlantic HMS in 
U.S. waters is the Category II, ``Southeastern U.S. Atlantic shark 
gillnet'' fishery. This fishery is subject to the Bottlenose Dolphin 
TRP (BDTRP) (50 CFR 229.35), for coastal gillnetting only, and the 
Atlantic Large Whale TRP (ALWTRP) (50 CFR 229.32). The purse seine 
fishery targeting Atlantic HMS in U.S. waters is the Category III, 
``Atlantic tuna purse seine fishery.''
    For more information on the Atlantic HMS fisheries and details on 
the management and regulations of these fisheries, please see the 
Consolidated Atlantic HMS FMP (http://www.nmfs.noaa.gov/sfa/hms/hmsdocument_files/FMPs.htm) and the regulations for Atlantic HMS 
fisheries in 50 CFR part 635.

High Seas Pacific Highly Migratory Species Fisheries

    The Pacific HMS high seas fisheries are virtually the same as 
fisheries targeting Pacific HMS within U.S. waters. Pacific HMS 
fisheries target tunas (North Pacific albacore, yellowfin, bigeye, 
skipjack, and bluefin), billfish (striped marlin), sharks (common 
thresher, pelagic thresher, bigeye thresher, shortfin mako, and blue), 
swordfish, and dorado (i.e., dolphinfish) using several gear types. 
Authorized gear include surface hook-and-line (including troll, rod and 
reel, handline, albacore jig, and live bait), harpoon (non-mechanical), 
drift gillnet (14 in (35.5 cm) stretch mesh or greater), pelagic 
longline, and purse seine (including ring, drum, and lampara nets). 
Pacific HMS incidentally caught by unauthorized gear may be landed 
under certain circumstances. Species prohibited in Pacific HMS 
fisheries include any salmon species, great white shark, basking shark, 
megamouth shark, and Pacific halibut. The fishery management area for 
Pacific HMS covers U.S. waters from the U.S.-Mexico border to the U.S.- 
Canada border, and the adjacent high seas.
    Pacific HMS are managed under regulations implementing the FMP for 
U.S. West Coast Fisheries for HMS, adopted in April 2004. The MSA 
regulations (50 CFR part 660, subpart K) address the target fish 
species as well as species protected by the ESA and MMPA. The MSA 
regulations lay out multiple restrictions for fishing for Pacific HMS 
with longline gear. Vessels fishing longline gear may not target HMS 
within U.S. waters. Targeting swordfish with shallow set longline gear 
or possessing a light stick on board the vessel west of 150[deg] W. 
long. and north of the equator is prohibited. From April 1-May 31, 
longline gear is prohibited in the area bounded on the south by the 
equator, north by 15[deg] N. lat., east by 145[deg] W. long., and west 
by 180[deg] long. Longline vessels must have a valid protected species 
workshop certificate onboard, along with safe handling and release 
tools for sea turtles and seabirds.
    Along with the MSA requirements, including area closures for marine 
mammal and sea turtle protection, drift gillnet fishing for Pacific HMS 
is managed under the MMPA through the Pacific Offshore Cetacean Take 
Reduction Plan (POCTRP) (50 CFR 229.31). The POCTRP regulations require 
multiple gear modifications during the May 1-January 31 fishing season, 
including a requirement that all extenders (buoy lines) be at least 6 
fathoms (36 ft; 10.9 m) in length, all

[[Page 33766]]

floatlines be fished at a minimum of 36 ft (10.9 m) below the surface, 
all nets have operational pingers to a water depth of a least 100 
fathoms (600 ft; 182.9 m). Also, all drift gillnet vessel operators 
must attend skipper education workshops before each fishing season.
    The high seas components of Pacific HMS fisheries are extensions of 
various Category I, II, and III fisheries operating within U.S. waters 
(Tables 1 and 2). The drift gillnet fishery targeting Pacific HMS, the 
Category I ``CA/OR thresher shark/swordfish drift gillnet ([gteqt]14in. 
mesh) fishery,'' is managed under the POCTRP. The purse seine fishery 
targeting Pacific HMS within U.S. waters is the Category II ``CA tuna 
purse seine fishery.'' While longline fishing for Pacific HMS is 
prohibited within U.S. waters, the LOF includes the Category II ``CA 
pelagic longline fishery'' to account for swordfish caught outside U.S. 
waters, but landed into the U.S. West coast. The troll fishery 
targeting Pacific HMS is an extension of U.S. waters Category III ``AK 
North Pacific halibut, AK bottom fish, WA/OR/CA albacore, groundfish, 
bottom fish, CA halibut non-salmonid troll fisheries.''
    For more information on the Pacific HMS fisheries and details on 
the management and regulations of these fisheries, please see the 
Pacific HMS FMP (http://www.pcouncil.org/hms/hmsfmp.html#final), the 
Pacific HMS FMP Biological Opinion (BiOp) (http://swr.nmfs.noaa.gov/HMS_FMP_Opinion_Final.pdf), and the regulations for Pacific HMS in 
50 CFR part 660, subpart K.

High Seas Western Pacific Pelagic Fisheries

    The Western Pacific pelagic high seas fisheries are virtually the 
same as fisheries targeting Wester Pacific pelagic species in U.S. 
waters. Western Pacific pelagic fisheries target tunas (albacore, 
bigeye, yellowfin, bluefin, and skipjack), billfish (Indo-Pacific blue 
marlin, black marlin, striped marlin, shortbill spearfish), sharks 
(pelagic thresher, bigeye thresher, common thresher, silky, oceanic 
whitetip, blue, shortfin mako, longfin mako, and salmon), swordfish, 
sailfish, wahoo, kawakawa, moonfish, pomfret, oilfish, and other tuna 
relatives. The main gears used to fish in the Western Pacific Pelagic 
fisheries are pelagic longline, troll, and handline. The Western 
Pacific Pelagic fisheries take place in the Western Pacific Fishery 
Management Area (including waters shoreward of the EEZ boundary around 
American Samoa, Guam, Hawaii, the Northern Mariana Islands, Midway, 
Johnston and Palmyra Atolls, Kingman Reef, and Wake, Jarvis, Baker, and 
Howland Islands) and the adjacent high seas waters.
    Western Pacific Pelagic fisheries are managed under regulations 
implementing the FMP for the Pelagic Fisheries of the Western Pacific 
Region developed by the Western Pacific Fishery Management Council 
(WPFMC). The MSA regulations (50 CFR part 665, subpart C) address 
target fish species as well as bycatch of species protected under the 
ESA, MMPA, and Migratory Bird Treaty Act. The MSA regulations outline 
restrictions on effort, observer coverage requirements, longline 
fishing prohibited areas, sea turtle and seabird bycatch mitigation 
measures, annual fleetwide limits on interactions with leatherback and 
loggerhead sea turtles, and a requirement for owners of longline 
vessels to participate in annual protected species workshops. Drift 
gillnet fishing in the fishery management area is prohibited, except 
where authorized by an experimental fishery permit.
    The high seas components of the Western Pacific Pelagic longline 
fishery are extensions of the Category I ``HI deep-set (tuna target) 
longline/set line fishery'' and the Category II ``HI shallow-set 
(swordfish target) longline/set line fishery'' (proposed to be split 
into two fisheries from the ``HI swordfish, tuna, billfish, mahi mahi, 
wahoo, oceanic sharks longline/set line fishery'' in this proposed 
rule) operating within U.S. waters. All requirements for vessels 
fishing longline gear within U.S. waters remain effective in high seas 
waters (as described in the above paragraph).
    For more information on the Western Pacific Pelagic fisheries and 
details on the management and regulations of these fisheries, please 
see the Western Pacific Pelagic FMP BiOp (http://www.fpir.noaa.gov/Library/PUBDOCs/), the Western Pacific Pelagic FMP Environmental Impact 
Statement (EIS) (http://www.fpir.noaa.gov/Library/PUBDOCs/), and the 
regulations for Western Pacific Pelagic fisheries in 50 CFR 665, 
Subpart C.

High Seas South Pacific Albacore Troll Fisheries

    The South Pacific albacore troll high seas fisheries target South 
Pacific albacore using mostly longline or troll gear in waters solely 
outside of any nation's EEZ. Longline gear, set with 1,000 or more 
hooks suspended from a horizontally buoyed mainline several miles long, 
accounts for 86 percent of the catch. Trolling vessels (including jigs 
or live bait) attach 10-20 fishing lines of various lengths to the 
vessel's outriggers on a slow-moving boat (5-6 knots). The total U.S. 
catch of South Pacific albacore has accounted for less than 5 percent 
of the total international catch in recent years.
    U.S. vessels fish in the South Pacific albacore fishery from 
November/December-April. Many vessels then participate in the larger 
North Pacific albacore fishery from April-October. South Pacific 
albacore fishing occurs outside any nation's EEZ in an area bounded by 
approximately 110[deg] W. long. and 180[deg] W. long., and by 25[deg] 
S. lat. and 45[deg] S. lat. Most U.S. troll vessels depart from the 
U.S. West Coast or Hawaii and unload in American Samoa, Fiji, or 
Tahiti.
    The South Pacific albacore troll fishery is not managed by 
regulations implementing any FMP. The WPFMC has concluded, and NMFS 
agrees, that conservation and management measures for this fishery are 
not warranted as the stock in not overfished and there are no known 
protected species interactions. Sea turtles and marine mammals do not 
prey on the bait species used by these vessels and vessels are 
typically slow-moving and would therefore likely able to avoid a 
collision with a whale. As of 2001, the HSFCA requires U.S. albacore 
troll vessel operators to file logbooks with NMFS for fishing in the 
South Pacific.
    For more information on the South Pacific albacore troll fishery, 
please see the 2004 U.S. South Pacific albacore troll fishery 
Environmental Assessment (EA) (http://www.fpir.noaa.gov/Library/PUBDOCs/). There are no regulations governing these fisheries.

High Seas South Pacific Tuna Fisheries

    The South Pacific Tuna Treaty (SPTT) manages access of U.S. purse 
seine vessels targeting tuna (skipjack and yellowfin) within the EEZs 
of 16 Pacific Island Countries in the Western and Central Pacific Ocean 
that are party to the Treaty. The SPTT Area includes the waters from 
north of 60[deg] S. lat. and east of 90[deg] E. long. subject to the 
fishing jurisdiction of Pacific Island parties, and all waters within 
rhumb lines connecting multiple geographic coordinates, and north along 
the 152[deg] E. long. out to Australia's EEZ border. The Treaty Area 
includes portions of waters in the EEZs of most of the Pacific Island 
Countries included in the Treaty. The SPTT is intended to apply only to 
U.S. purse seine vessels; however, provisions have been made to 
accommodate high seas fishing by U.S. albacore tuna troll and U.S. 
longline vessels within the Treaty Area. Both a SPTT and a HSFCA permit 
are required to fish in SPTT waters.

[[Page 33767]]

    Under the SPTT, observers are recruited from the Pacific Island 
Countries and then trained and deployed by the Forum Fisheries Agency 
(FFA) in Honiara in the Solomon Islands. Many of the FFA deployed 
observers serve in and have experience from domestic observer programs 
active in each observer's respective country. The target observer level 
coverage is 20 percent of U.S. purse seine vessels, the full costs of 
which are the responsibility of the U.S. purse seine vessel owners. 
Observers collect a range of data, including a form for recording 
information on interactions with seabirds, sea turtles, marine mammals, 
and sharks. Fishery observers undergo training in species 
identification for target and bycatch species; however, marine mammal 
species identification has only recently been placed as a priority 
matter for reporting. Observer data from January 1997-June 2002 show 
that 11 sets resulted in interactions with marine mammals. However, the 
data indicate only that the animals were ``unidentified whales, marine 
mammals, or dolphin/porpoise.'' The International Fisheries Division in 
the NMFS Pacific Islands Region is working with the FFA observer 
program to better train observers in marine mammal identification.
    For additional information on the South Pacific Tuna Treaty and 
details on the management and regulations of these fisheries, see the 
South Pacific Tuna Treaty EA (http://www.fpir.noaa.gov/Library/PUBDOCs/
) and the regulations for the South Pacific Tuna Treaty in 50 CFR 300, 
subpart D.

High Seas Antarctic Living Marine Resources Fisheries

    The Commission for the Conservation of Antarctic Marine Living 
Resources (Convention or CCAMLR) conserves and manages Antarctic marine 
living resources (AMLR) in waters surrounding Antarctica. The 
Convention applies to AMLR in the waters from 60[deg] S. lat. south to 
the Antarctic Convergence, with limited exceptions, covering 32.9 
million square kilometers. Both an AMLR and a HSFCA permit are required 
to fish in CCAMLR waters. There are multiple gear types used to target 
multiple species in the Convention Area. Gear types include pelagic and 
bottom trawl, trap/pot, gillnet, and longline. Target species include 
krill and Antarctic finfish (rockcod species, toothfish species, 
icefish species, silverfish, cod, and lanternfish), mollusks, and 
crustaceans. CCAMLR Conservation Measures require or recommend several 
measures for fisheries in the Convention area. Mandatory measures 
include requirements for reporting; operating a Vessel Monitoring 
System while in the Convention area; longline gear modifications to 
reduce seabird interactions; mesh sizes restrictions for trawl gear. 
Recommendations include seal bycatch mitigation measures, such as a 
seal excluder device.
    CCAMLR has identified two types of scientifically trained observers 
to collect information required in CCAMLR-managed fisheries, including 
information on entanglements and incidental mortality of seabirds and 
marine mammals. The first type of observer is a ``national 
observer,<gr-thn-eq>such as a U.S. observer placed on a U.S. vessel by 
the U.S. Government. The second type of observer is an ``international 
observer,'' or an observer operating in accordance with bilateral 
arrangements between the Nation whose vessel is fishing and the nation 
providing the observer. CCAMLR Conservation measures require all 
fishing vessels in the Convention area (except vessels fishing for 
krill) to carry at least one international observer and, where 
possible, an additional observer. The United States requires all of its 
vessels fishing in the CCAMLR area, for any target species and with any 
gear, to carry an observer. In certain exploratory toothfish fisheries, 
the vessel must carry two observers, with at least one being an 
international observer.
    For additional information on the fishing activities in the CCAMLR 
region and details on the management and regulations of these 
fisheries, see the CCAMLR Programmatic EIS http://www.nmfs.noaa.gov/
sfa/domes_fish/news_of_note.htm<greek-i>ccamlr), the CCAMLR Schedule 
of Conservation Measures in Force (http://www.ccamlr.org), and the 
regulations for the harvesting of AMLR in 50 CFR 300, subpart D.

CA spot prawn pot

    The ``CA spot prawn pot fishery'' (proposed to be listed as a 
Category II in this rule) operates from Central CA southward to the 
Mexican border. Strings of 10-50 oblong cylindrical traps are commonly 
fished at depths usually greater than 100 fathoms. This is a limited 
access fishery managed by the state of CA. A tiered permit system has 
been implemented allowing a maximum of 150 or 500 traps to be fished at 
one time depending on the fishing history associated with the permit. A 
maximum of 300 traps may be located within state waters (inside 3 
miles), regardless of permit tier. North of Point Arguello, the season 
is open from August 1-April 30. South of Point Arguello, the season 
runs from February 1-October 30.

CA Dungeness crab pot

    The ``CA Dungeness crab pot fishery'' (proposed to be listed as a 
Category II in this rule) operates along the central and northern 
coastal waters of CA in depths typically from 10-40 fathoms. The 
cylindrical or rectangular pots used in the fishery are buoyed, or 
fished, individually, although fishing strings of multiple traps are 
allowed in the central region. There is no limit on the number of traps 
which may operated by a fisherman at one time. This is a limited access 
fishery managed in part by the State of California and the Tri-State 
Committee agreement for Dungeness crab, which also includes the states 
of OR and WA. The fishery is divided into two management areas. The 
central region (south of the Mendocino-Sonoma county line) is open 
November 15-June 30. The northern region (north of the Mendocino-Sonoma 
county line) can open on December 1, but may be delayed by the 
California Department of Fish and Game (CDFG) based on the condition of 
market crabs, and continues until July 15.

OR Dungeness crab pot

    The ``OR Dungeness crab pot fishery'' (proposed to be listed as a 
Category II in this rule) operates along the coastal waters of OR in 
depths typically from 10-40 fathoms. This is a limited access fishery 
managed by the OR Department of Fish and Wildlife (ODFW) in conjunction 
with the Tri-State Committee agreement for Dungeness crab, which also 
includes the states of CA and WA. The Dungeness crab season runs from 
December 1-August 14, although the state may delay the opening based on 
the condition of the crabs. Additionally, the state may close the 
season after the end of May if catch rates are still high to protect 
molting crab. A three-tiered pot limitation system has been implemented 
allowing a maximum 200, 300, or 500 pots to be fished at once depending 
on previous landing history. Logbook reporting of effort and catch data 
to the state is now required. The cylindrical or rectangular pots used 
in the fishery are fished individually by law.

WA/OR/CA sablefish pot

    The ``CA/OR/WA sablefish pot fishery'' (proposed to be listed as a 
Category II in this rule) sets gear in waters past the 100 fathom curve 
off the West coast of the U.S. In CA, gear is set outside 150 fathoms, 
with an average depth of 190 fathoms. There are two separate trap 
fisheries, open access and

[[Page 33768]]

limited entry, and both have quotas. Open access fishers will usually 
fish 1 to 8 strings of 3-4 pots, each with a float line and buoy stick. 
The gear sometimes soaks for long periods. Fishers in the limited entry 
fishery will normally fish 20-30 pot strings. The fishery operates year 
round and effort varies from southern CA to the Canadian border.
    This fishery is managed under regulations implementing the West 
Coast Groundfish FMP developed by Pacific Fishery Management Council. 
Access to the limited entry fishery is granted under a limited entry 
permit system, in addition to gear endorsements required by the 
individual states. Open access privileges are currently available to 
any fisherman with the requisite state gear endorsement, but involve 
much more restrictive limitations in catch quotas and additional area 
closures than the primary limited entry permit. Open access quotas vary 
based upon the area being fished. The limited entry fishery is open 
from April 1-October 31, while open access is available year-round. 
Limited entry permits are tiered based on the annual cumulative 
landings allowed by each permit. Permits are transferable, but the tier 
category remains fixed. Up to three limited entry permits may be 
stacked on a single vessel. As with most pot gear fished out in deeper 
waters, sablefish traps are set in strings of multiple traps.

Summary of Changes to the LOF for 2009

    The following summarizes changes to the LOF for 2009 in fishery 
classification, fisheries listed in 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. The 
classifications and definitions of U.S. commercial fisheries for 2009 
are identical to those provided in the LOF for 2008 with the proposed 
changes discussed below. State abbreviations used in the following 
paragraphs include: AK (Alaska), AL (Alabama), CA (California), DE 
(Delaware), FL (Florida), GA (Georgia), HI (Hawaii), LA (Louisiana), MA 
(Massachusetts), ME (Maine), MS (Mississippi), NC (North Carolina), NJ 
(New Jersey), NY (New York), OR (Oregon), RI (Rhode Island), SC (South 
Carolina), TX (Texas), VA (Virginia), and WA (Washington).

Commercial Fisheries on the High Seas

    NMFS proposes to add high seas fisheries to the LOF, beginning with 
the 2009 LOF. NMFS is soliciting public comments on the proposed 
process for including high seas fisheries on the LOF (presented in the 
preamble under the section ``Are high seas fisheries included on the 
LOF?''), the fishery descriptions for the authorized high seas 
fisheries (presented in the preamble under the section ``Fishery 
descriptions''), and the proposed fishery additions described below.
Addition of Fisheries to the LOF

High Seas Atlantic Highly Migratory Species Fisheries

    NMFS proposes to add the U.S.-authorized high seas Atlantic HMS 
fisheries to the LOF. The Atlantic HMS high seas fisheries include all 
fisheries using multiple gear types to target Atlantic HMS (described 
in the ``Fishery Descriptions'' section in the preamble of this 
proposed rule). Due to the lack of specific information on marine 
mammal abundance and marine mammal-fishery interactions on the high 
seas, NMFS proposes to categorize all fisheries targeting Atlantic HMS 
on the high seas with gear other than longline and purse seine (e.g., 
gillnet, trawl, handline, and troll gear) as Category II. Category II 
is the appropriate classification for new fisheries on the LOF for 
which there is little information on which to base classification. NMFS 
proposes to categorize the longline component of this fishery as a 
Category I because it is an extension of the Category I ``Atlantic 
Ocean, Caribbean, Gulf of Mexico large pelagics longline'' fishery 
operating within U.S. waters. The gear used, fishing methods, and 
target species are the same, and longline vessels targeting Atlantic 
HMS regularly cross into the high seas, and back, when fishing. NMFS 
proposes to categorize the purse seine component of this fishery as a 
Category III because it is an extension of the Category III ``U.S. 
Atlantic tuna purse seine fishery'' operating within U.S. waters. There 
are 88 valid HSFCA permits for fishers targeting Atlantic HMS on the 
high seas with all gear types. As noted in the preamble, the number of 
valid permits may not accurately account for annual fishing effort on 
the high seas. Please see the discussion on the HSFCA permitting 
process under the section ``Are high seas fisheries included on the 
LOF?'' in the preamble of this proposed rule for additional details.
    Many marine mammal species interacting with Atlantic HMS fisheries 
operating in U.S. waters also inhabit the high seas. Observer coverage 
for the Category I pelagic longline fishery extends into the high seas, 
so information is available on which marine mammal stocks are 
incidentally taken by this fishery on the high seas. For this reason, 
NMFS proposes to list the marine mammal species that have been 
documented killed or injured in the Category I high seas longline 
component of Atlantic HMS fisheries in Table 3.
    Similar observer data are not available for the high seas Atlantic 
HMS drift gillnet fishery, which is an extension of the Category II 
``Southeastern U.S. Atlantic shark gillnet fishery''; or the purse 
seine fishery, which is an extension of the Category III ``Atlantic 
tuna purse seine fishery.'' For those fisheries where no interaction 
data (observer or other data) exist on the high seas, NMFS proposes to 
list all the non-coastal marine mammal species/stocks killed or injured 
in the portion of the fishery that operates in U.S. waters as injured 
or killed in the same fishery operating on the high seas in Table 3. 
Specifically, NMFS proposes to add all non-coastal marine mammal 
species killed or injured in the Category II ``Southeastern U.S. 
Atlantic shark gillnet fishery'' (operating within U.S. waters) as 
injured or killed in the Category II drift gillnet component of the 
Atlantic HMS fisheries (operating on the high seas). Also, NMFS 
proposes to list all non-coastal marine mammal species killed or 
injured in the Category III purse seine component of the Atlantic HMS 
fisheries (operating within U.S. waters) as injured or killed in the 
Category III ``Atlantic tuna purse seine fishery'' (operating on the 
high seas).
    There is little information on interactions between marine mammals 
and fishing gear used to target Atlantic HMS on the high seas, other 
than that listed in the previous paragraphs. Given the lack of data on 
marine mammal abundance and interactions with high seas Atlantic HMS 
fisheries (excluding the longline, drift gillnet, and purse seine 
components), NMFS proposes to list the marine mammal species killed or 
injured in these fisheries as ``undetermined'' in Table 3.

High Seas Pacific Highly Migratory Species Fisheries

    NMFS proposes to add the U.S.-authorized high seas Pacific HMS 
fisheries to the LOF. The Pacific HMS fisheries include all fisheries 
using multiple gear types to target Pacific HMS (described in the 
``Fishery Descriptions'' section in the preamble of this proposed 
rule). Due to the lack of specific information on marine mammal 
abundance and interactions with Pacific HMS high seas fisheries, NMFS 
proposes to categorize all fisheries targeting Pacific HMS on the high 
seas with gear other than drift gillnet and

[[Page 33769]]

troll (e.g., longline, gillnet, trawl, purse seine, and handline gear) 
as Category II. Category II is the appropriate classification for new 
fisheries on the LOF for which there is little information on which to 
base classification as described in the definition for ``Category II'' 
in 50 CFR 229.2. NMFS proposes to categorize the drift gillnet 
component of this fishery as a Category I because it is an extension of 
the Category I ``CA/OR thresher shark/swordfish drift gillnet 
([gteqt]14 in. mesh) fishery'' operating within U.S. waters. The gear 
used, fishing methods, and target species are the same in U.S. waters 
and on the high seas. Similarly, NMFS proposes to categorize the troll 
component of this fishery as a Category III because it is an extension 
of the Category III ``AK North Pacific halibut, AK bottom fish, WA/OR/
CA albacore, groundfish, bottom fish, CA halibut non-salmonid troll 
fisheries'' operating within U.S. waters.
    There are 344 valid HSFCA permits for fishers targeting Pacific HMS 
on the high seas using all gear types. As noted in the preamble, the 
number of valid permits may not accurately account for annual fishing 
effort on the high seas. Please see the discussion on the HSFCA 
permitting process under the section ``Are high seas fisheries included 
on the LOF?'' in the preamble of this proposed rule for additional 
details.
    Many marine mammal species interacting with Pacific HMS fisheries 
operating in U.S. waters also inhabit the high seas. Thus, fishing 
vessels that cross into the high seas are also likely to interact with 
these marine mammals once they cross into the high seas. For those 
fisheries where no interaction data (observer or other data) exist on 
the high seas, NMFS proposes to list all the non-coastal marine mammal 
species/stocks killed or injured in the portion of the fishery that 
operates in U.S. waters as injured or killed in the same fishery 
operating on the high seas in Table 3.
    NMFS proposes to add all non-coastal marine mammal species killed 
or injured in the Category I ``CA/OR thresher shark/swordfish drift 
gillnet (>14 in mesh) fishery'' (operating within U.S. waters) as 
injured or killed in the associated drift gillnet component of Pacific 
HMS fisheries (operating on the high seas).
    NMFS proposes to add all non-coastal marine mammal species killed 
or injured in the Category II ``CA tuna purse seine fishery'' 
(operating within U.S. waters) as injured or killed in the associated 
purse seine component of the Pacific HMS fisheries (operating on the 
high seas).
    NMFS proposes to list all marine mammal species killed or injured 
in the Category II ``CA pelagic longline fishery'' as injured or killed 
in the associated longline component of the Pacific HMS fisheries 
(operating on the high seas). This fishery is currently prohibited 
within U.S. waters, but remains listed on Table 1 because catch is 
landed on the U.S. West coast. Therefore, the marine mammal species 
listed as killed or injured in this fishery were observed taken on the 
high seas.
    There is little information on interactions between marine mammals 
and fishing gear used to target Pacific HMS on the high seas, other 
than that listed in the previous paragraphs. Given the lack of data on 
marine mammal abundance and interactions with high seas Pacific HMS 
fisheries (excluding the longline, drift gillnet, and purse seine 
components), NMFS proposes to list the marine mammal species killed or 
injured in these fisheries as ``undetermined'' in Table 3.

High Seas Western Pacific Pelagic Fisheries

    NMFS proposes to add the U.S.-authorized high seas Western Pacific 
pelagic fisheries to the LOF. The Western Pacific pelagic fisheries 
include all fisheries using multiple gear types to target Western 
Pacific pelagic species (described in the ``Fishery Descriptions'' 
section in the preamble of this proposed rule). Due to the lack of 
specific information on marine mammal abundance and interactions with 
fisheries on the high seas, NMFS proposes to categorize all fisheries 
targeting Western Pacific pelagic species on the high seas with gear 
other than longline (e.g., trawl, purse seine, pot, handline, and troll 
gear) as Category II. Category II is the appropriate classification for 
new fisheries on the LOF for which there is little information on which 
to base classification, as described in the definition for ``Category 
II'' in 50 CFR 229.2. NMFS proposes to categorize the deep-set longline 
component of this fishery in U.S. waters as Category I, and the 
shallow-set longline component of this fishery in U.S. waters as 
Category II, because they are extensions of the Category I `` HI deep-
set (tuna target) longline/set line fishery'' and the Category II ``HI 
shallow-set (swordfish target) longline/set line fishery,'' 
respectively. (The ``HI swordfish, tuna, billfish, mahi mahi, wahoo, 
oceanic sharks longline/set line fishery'' is proposed to be split into 
these two fisheries in this proposed rule, as stated below). The gear 
used, fishing methods, and target species are the same, and longline 
vessels targeting Western Pacific pelagic species regularly cross over 
into the high seas when fishing.
    There are 219 valid HSFCA permits for fishers targeting Western 
Pacific pelagic species with all gear types on the high seas. As noted 
in the preamble, the number of valid permits may not accurately account 
for annual fishing effort on the high seas. Please see the discussion 
on the HSFCA permitting process under the section ``Are high seas 
fisheries included on the LOF?'' in the preamble of this proposed rule 
for additional details.
    Many marine mammal species are also found on the high seas and the 
Western Pacific pelagic fishery operates the same on both sides of the 
EEZ boundary. Fishing vessels that cross into the high seas are likely 
to also interact with these marine mammal stocks once they cross the 
EEZ boundary. For those fisheries where no interaction data (observer 
or other data) exist on the high seas, NMFS proposes to list all the 
non-coastal marine mammal species/stocks killed or injured in the 
portion of the fishery that operates in U.S. waters as injured or 
killed in the same fishery operating on the high seas in Table 3.
    NMFS proposes to add all non-coastal marine mammal species killed 
or injured in the Category I ``HI deep-set (tuna target) longline/set 
line fishery'' (operating within U.S. waters) as injured or killed in 
the Category I ``Western Pacific Pelagic fishery (deep-set component)'' 
(operating on the high seas).
    NMFS proposes to add all non-coastal marine mammal species killed 
or injured in the Category II ``HI shallow-set (swordfish target) 
longline/set line fishery'' (operating within U.S. waters) as injured 
or killed in the Category II ``Western Pacific Pelagic fishery 
(shallow-set component)'' (operating on the high seas).
    There is little information on interactions between marine mammals 
and fishing gear used to target Western Pacific pelagic species on the 
high seas, other than that listed in the previous paragraphs. Given the 
lack of data on marine mammal abundance and interactions with high seas 
Western Pacific pelagic fisheries (excluding longline effort), NMFS 
proposes to list the marine mammal species killed or injured in these 
fisheries as ``undetermined'' in Table 3.

High Seas South Pacific Albacore Troll Fisheries

    NMFS proposes to add the high seas South Pacific albacore troll 
fisheries to the LOF. While the main gear types used are troll and 
longline, the South Pacific albacore troll fisheries include

[[Page 33770]]

all fisheries using multiple gear types to target South Pacific 
albacore tuna. While marine mammals are unlikely to be injured or 
killed in troll gear because of the nature of trolling methods and the 
bait used (South Pacific Albacore Troll EA), there is no official 
observer program for this fishery. Therefore, NMFS proposes to 
categorize all fisheries targeting South Pacific albacore on the high 
seas with trawl, purse seine, pot, longline, handline, and troll gear 
as Category II (the appropriate classification for new fisheries on the 
LOF for which there is little information on which to base 
classification). There are 83 valid HSFCA permits for vessels 
participating in the South Pacific albacore troll fisheries on the high 
seas with all gear types. As noted in the preamble, the number of valid 
permits may not accurately account for annual fishing effort on the 
high seas. Please see the discussion on the HSFCA permitting process 
under the section ``Are high seas fisheries included on the LOF?'' in 
the preamble of this proposed rule for additional details.
    There are no records of incidental mortality or serious injury of 
marine mammals in the South Pacific albacore troll fisheries. While 
there is little indication of marine mammal interactions with South 
Pacific albacore troll fishing, NMFS proposes to list the marine mammal 
species killed or injured in these fisheries as ``undetermined'' in 
Table 3 due to the lack of an observer program covering these 
fisheries.

High Seas South Pacific Tuna Fisheries

    NMFS proposes to add the high seas South Pacific tuna fisheries, as 
authorized under the South Pacific Tuna Treaty, to the LOF. While a 
formal observer program exists for fishing in the Treaty area, 
information on marine mammal stock abundance in the area is scarce and 
observer reports of fishery interactions are not yet specific enough to 
determine the level of marine mammal serious injury and mortality. 
Therefore, NMFS proposes to categorize all fisheries participating in 
the South Pacific tuna fishery as Category II (the appropriate 
classification for new fisheries on the LOF for which there is little 
information on which to base classification). There are 26 valid HSFCA 
permits for vessels participating in the South Pacific tuna fishery. 
This number is considered to accurately reflect the effort by U.S. 
vessels in the SPTT area because it closely matches the number of U.S. 
vessels with a valid SPTT license.
    Under the SPTT, U.S. purse seine vessels are observed with a target 
of 20 percent coverage. While observer data document interactions with 
marine mammals, the data only currently identify the animals as 
unidentified whales, marine mammals, or dolphin/porpoise. For this 
reason, Table 3 lists the marine mammal species killed/injured in these 
fisheries as ``undetermined.''

High Seas Antarctic Living Marine Resources Fisheries

    NMFS proposes to add the high seas Antarctic Living Marine 
Resources (or CCAMLR) fisheries to the LOF. The CCAMLR fisheries 
include all fisheries using multiple gear types to target living marine 
resources in the CCAMLR region (described in the ``Fishery 
Descriptions'' section in the preamble of this proposed rule). While a 
formal observer program exists for fishing under CCAMLR, specific 
information on marine mammal abundance and fishery interactions levels 
has not been calculated in the manner necessary to categorize the 
fisheries based on a marine mammal stock's PBR (as described in the 
preamble). Therefore, NMFS proposes to categorize all fisheries 
operating in the CCAMLR region as Category II (the appropriate 
classification for new fisheries on the LOF for which there is little 
information on which to base classification). There are no valid HSFCA 
permits for vessels participating in the CCAMLR fisheries for the 2008 
fishing season, which accurately reflects effort by U.S. vessels in the 
CCAMLR area. Therefore, CCAMLR fisheries do not appear on Table 3 
(Commercial Fisheries on the High Seas) in this proposed rule. When a 
HSFCA permit is requested and granted for a U.S. vessel to participate 
in the CCAMLR fisheries, this information will appear in Table 3 of the 
LOF.
    In fishing seasons prior to 2004, Antarctic fur seals have been 
observed incidentally injured and killed by U.S. vessels in the CCAMLR 
trawl fishery for krill. These takes were drastically reduced in the 
2004/2005 fishing season due to a requirement to include a seal 
excluder device on all trawls (CCAMLR EA). Due to the large population 
size of Antarctic fur seals, the current low rate of serious injury and 
mortality is likely not a conservation risk. There are no documented 
interactions between other marine mammal species and U.S. vessels when 
using other gear types in the CCAMLR region.

Commercial Fisheries in the Pacific Ocean

Fishery Classification

HI swordfish, tuna, billfish, mahi mahi, wahoo, oceanic sharks 
longline/set line fishery

    NMFS proposes to split the Category I ``HI swordfish, tuna, 
billfish, mahi mahi, wahoo, oceanic sharks longline/set line fishery'' 
(hereinafter the current HI-based longline fishery) and list it in the 
2009 LOF as two separately managed commercial fisheries: (1) The ``HI 
deep-set (tuna target) longline/set line fishery<gr-thn-eq>; and (2) 
the ``HI shallow-set (swordfish target) longline/set line fishery.'' 
NMFS believes such a split is warranted because the shallow-set and 
deep-set fisheries have different target species, operating patterns, 
management regimes, and marine mammal interaction rates. See the 
Fishery Descriptions section in the Final 2008 LOF for additional 
information (72 FR 66048; November 27, 2007). NMFS has split other 
fisheries in prior LOFs based upon similar factors.
    The current HI-based longline fishery is listed as a Category I 
fishery as a result of the fishery's serious injuries or mortalities to 
false killer whales (Pseudorca crassidens), which currently exceed the 
stock's PBR. NMFS proposes that splitting the current HI-based longline 
fishery into two fisheries for purposes of the LOF would result in a 
Category I deep-set fishery and a Category II shallow-set fishery. The 
definitions for the fishery classification criteria can be found in the 
implementing regulations for section 118 of the MMPA (50 CFR 229.2) and 
in the preamble of this proposed rule.
    The ``HI deep-set (tuna target) longline/set line fishery'' will 
remain a Category I fishery because the fishery's serious injuries or 
mortalities to false killer whales currently exceed the stock's PBR. 
Observer coverage in the deep-set fishery is approximately 20 percent 
annually.
    The ``HI shallow-set (swordfish target) longline/set line fishery'' 
was closed from 2001 to 2004. Since 2004, this fishery has been subject 
to strict management measures including: prescribed use of large circle 
hooks and fish bait, restricted annual effort, annual limits on turtle 
captures, and 100-percent onboard observer coverage because of sea 
turtle interactions. NMFS considered data from 2004 to 2007 in the tier 
analysis, which takes into account operation of the shallow-set fishery 
under this new management regime. While there were no documented 
interactions with false

[[Page 33771]]

killer whales in the shallow-set fishery during this period, there have 
been observed serious injuries or mortalities to the following marine 
mammal stocks: Risso's dolphin (Grampus griseus) (one serious injury in 
2005; one serious injury and one mortality in 2006; three serious 
injuries in 2007); bottlenose dolphin (Tursiops truncatus) (one serious 
injury in 2006; three serious injuries in 2007); and humpback whale 
(Megaptera novaeangliae) (one serious injury in 2006). There was also 
an interaction with a Bryde's whale (Balaenoptera edeni) in 2005 that 
did not result in a serious injury or mortality.
    Each of these serious injuries or mortalities occurred outside U.S. 
waters. Section 117(a) of the MMPA requires NMFS to prepare a draft 
stock assessment for each marine mammal stock which occurs in waters 
under the jurisdiction of the United States. Each draft stock 
assessment must include, among other things, an estimate of the PBR 
level for the stock. Because the serious injuries and mortality of 
Risso's dolphins and bottlenose dolphins occurred outside U.S. waters, 
there is no PBR for these stocks upon which to conduct a tier analysis 
(as described in the preamble of this proposed rule). However, there is 
a high degree of certainty that the humpback whale from the 2006 
interaction was from the Central North Pacific stock of humpback 
whales, which migrates seasonally between breeding grounds in HI and 
foraging areas in AK. The PBR of this stock is 12.9; the annual 
mortality and serious injury of this stock in the shallow set fishery 
is 1.94 percent of PBR (one animal during the four-year period 2004-
2007, or 0.25 per year). Because the annual mortality and serious 
injury of this humpback whale stock is greater than 1 percent and less 
than 50 percent of the PBR level, NMFS has determined that the shallow-
set portion of the longline fishery merits recategorization as a 
Category II fishery.

CA angel shark/halibut and other species set gillnet (>3.5 in mesh)

    NMFS proposes to reclassify the ``CA angel shark/halibut and other 
species set gillnet (>3.5 mesh size) fishery'' (proposed to be renamed 
``CA halibut/white seabass and other species set gillnet (>3.5 in mesh) 
fishery'' in this proposed rule) from a Category I to a Category II 
fishery. This fishery was classified as Category I due to serious 
injury and mortality to the Monterey Bay and Morro Bay stocks of 
central CA harbor porpoises. Since 2002, however, there has been a ban 
on set gillnetting in central CA. As a result, effort in this fishery 
shifted and is now concentrated in southern CA, south of the range of 
these harbor porpoise stocks. The elimination of this fishery from the 
stocks' range removed the threat of mortality and serious injury to the 
stocks. Because interactions ceased as of 2002, no tier analysis was 
conducted for the level of annual mortality and serious injury of these 
stocks in this fishery for this proposed reclassification. The mean 
annual mortality and serious injury of CA sea lions in this fishery is 
1,138, or 13 percent of PBR (PBR=8,511); the mean annual mortality and 
serious injury of harbor seals (CA stock) is 386, which is 20 percent 
of PBR (PBR=1,896). Thus, the mean annual serious injury and mortality 
of CA sea lions and harbor seals (CA stock) in this fishery is greater 
than 1-percent and less than 50 percent of the stocks' PBR levels, 
thereby further supporting a Category II classification. Observer 
coverage in this fishery is approximately 5 percent.

West Coast trap/pot fisheries

    NMFS proposes the recategorization of various West Coast trap and 
pot fisheries from Category III to Category II based on interactions 
with humpback whales (CA/OR/WA stock). Below, NMFS provides a review of 
the analysis conducted to support the proposed recategorizations. 
Comments are specifically requested from the public on the proposed 
recategorizations of these fisheries.
    From January 1, 2002, through December 31, 2006, NMFS documented 13 
sightings of free-swimming humpback whales entangled in trap gear, pot 
gear, or unidentified gear along the U.S. West Coast. Twelve of the 
thirteen observations occurred off the coast of CA and one was off the 
coast of OR. One stranded dead humpback whale was reported in OR, and 
it is believed that this humpback whale was one of the 13 free-swimming 
entangled whales reported to NMFS.
    A review of the available data from the NMFS Large Whale 
Disentanglement Network (LWDN) was initiated to understand the nature 
of the 13 entangled humpback whales (Table 5). Four animals were 
observed with pots or traps on their bodies during the reported 
entanglement, including one with spot prawn gear and one with sablefish 
gear. Of these, three were not disentangled from the gear and, due to 
the amount of trailing gear reported on these animals, these three are 
considered seriously injured. One of the four observed entangled 
animals was disentangled from pot gear and released without injury; 
however, the animal would have been considered seriously injured if it 
had not been observed, tracked, and disentangled. One whale was 
observed off OR entangled in gear which has been identified as likely 
to have been Dungeness crab pot gear based upon photos of the animal. 
An additional three humpback whales were reported to NMFS as being 
entangled in crabpot line, although there is no way to determine if the 
line was actually from pot or trap gear. Five humpback whales were 
reported to NMFS entangled in line or netting, with no means of 
identifying the type of fishing gear involved. Details of these 
entanglements can be found in Table 5.
    For this analysis, NMFS has been conservative in attributing 
records of entanglements to the pot and traps fisheries. It is 
difficult to identify fishing gear based upon observations of gear on 
animals; for most reports there are no photographs of the animals. 
Therefore, only confirmed and probable entanglements of humpback whales 
are attributed to a particular pot/trap fishery. Using this criterion, 
it is estimated that four humpback whales were seriously injured or 
killed between 2002 and 2006 due to entanglements with pot or trap 
gear. This number should be considered a minimum estimate of seriously 
injured animals because it is based upon opportunistic sightings 
reported to NMFS and thus do not represent observer data or 
comprehensive surveys. The entire record of seriously injured or killed 
humpback whales is used in the Tier 1 evaluation, but only the three 
confirmed serious injuries are used in the Tier 2 evaluation of the pot 
and trap fisheries.
    Tier 1 evaluation: NMFS began by considering the total annual 
mortality and serious injury of the CA/OR/WA humpback whale stock 
across all U.S. fisheries. The draft 2008 SARs lists the total observed 
mortalities and serious injuries of humpback whales from 2002 through 
2006 as 13 (this number includes one animal reported to the NMFS 
entangled in unidentified gillnet gear). This results in an annual mean 
take of 2.6 humpback whales per year, which exceeds 10 percent of the 
PBR level (2.5) for this stock.
    Tier 2 evaluation: Three humpback whales (CA/OR/WA) have been 
positively identified as being entangled and seriously injured in pot/
trap gear between January 1, 2002, and December 31, 2006. A single 
serious injury or mortality of a humpback whale in a trap/pot fishery 
results in a level of take of 0.2 animals per year, or 8 percent of the 
PBR (PBR=2.5 animals), which is consistent with a Category II 
categorization (the total estimated

[[Page 33772]]

annual serious injury of mortality is greater than 1 percent and less 
than 50 percent of PBR). Category II is also the appropriate category 
for fisheries for which reliable information on the frequency of marine 
mammal serious injury or mortalities is lacking. Fisheries are placed 
in Category II after evaluating such factors as the type of gear being 
used, stranding records, the distribution of marine mammals in the area 
of the fishery, and at the discretion of the Assistant Administrator 
for Fisheries (see 50 CFR 229.3). As described in the 2007 Final LOF 
(72 FR 14466, March 28, 2007), the available information from the LWDN 
alone is not sufficient to identify which of the numerous pot and trap 
fisheries may interact with humpback whales and cause serious injuries 
or mortalities. Therefore, other methods must be used to determine 
which pot and trap fisheries should be listed as Category II.
    As described in the 2008 Final LOF (72 FR 66048, November 27, 
2007), NMFS recently prepared, with assistance from the states, a 
characterization of the current commercial trap/pot fisheries off the 
CA, OR, and WA coasts. NMFS has also been working closely with the 
states to obtain the best available information on these trap/pot 
fisheries and has integrated this into its analysis. NMFS used the 
reported entanglement of humpback whales as the data that drives the 
recategorization of some fisheries. As part of the analysis, some 
assumptions were necessary and are outlined here. NMFS assumes that the 
time and area in which the entanglement was reported is the location 
where the entanglement occurred, as with a humpback whale entangled off 
San Francisco in December 2005. NMFS acknowledges that it is possible 
that a whale could travel from other areas carrying gear. NMFS also 
assumes that the reported entanglements are a fraction of the total 
mortalities and serious injury caused by trap/pot gear, and the reports 
are best used to represent areas where fisheries and humpback whales 
interact. Under this assumption, all entanglements characterized as 
confirmed entanglements in trap/pot gear and unconfirmed but probable 
entanglement with trap/pot gear (see Table 5) were used to determine 
which commercial fisheries are most likely to interact with humpback 
whales. Finally, NMFS assumed that the distribution of trap/pot fishing 
effort and the distribution of humpback whales are not likely to 
drastically change in the near future; therefore, past interactions are 
reasonable predictors of future events. NMFS acknowledges that 
environmental variability can change the distribution of fishing effort 
and marine mammals; NMFS will continue to monitor both and make 
recommendations for changes to the LOF as appropriate.
    To determine which pot and trap fisheries should be listed as 
Category II, NMFS asked the following questions: (1) Has the fishery 
been identified as causing one of the entanglements of humpback 
whales?; and (2) Does the fishery operate in the area and time when a 
humpback was reported entangled in pot and trap gear? Fisheries that 
did not meet either of these criterion were eliminated from possibly 
causing humpback whale mortalities or serious injuries and remained 
Category III fisheries.
    Once NMFS identified which fisheries met either of the criterion 
above, NMFS considered the following: (1) Does the fishery overlap, 
spatially and temporally, with the known distribution of the Eastern 
North Pacific stock of humpback whales?; and (2) Does the fishery 
currently have a substantial amount of effort and is there likely to be 
change in this level of effort in the future? These second two 
questions address whether future interactions, based upon observed 
entanglements, would be likely. NMFS considered these factors because 
while one observed interaction may be insufficient to recategorize a 
fishery; a likelihood of entanglement supports the recategorization of 
some fisheries.
    Based on the analysis described above, the following are being 
proposed to be classified as Category II fisheries (all were Category 
III on the 2008 LOF or included within the Category III ``CA lobster, 
prawn, shrimp, rock crab, fish pot'' [proposed to be renamed the ``CA 
spiny lobster, coonstrip shrimp, finfish, rock crab, tanner crab pot or 
trap'']):
    (1) The ``CA spot prawn pot fishery'' (see name change explanation 
for this fishery described below under ``West Coast trap/pot 
fisheries'' discussion in section ``Fishery Name and Organizational 
Changes and Clarifications'') as a Category II fishery. A humpback 
whale was reported entangled and seriously injured in this gear type in 
September 2005 at Monterey. As described above, a single humpback whale 
serious injury or mortality is equal to 8 percent of the stock's PBR; 
therefore, a Category II categorization is appropriate. The estimated 
number of vessels or participants in the ``CA spot prawn pot fishery'' 
is 29.
    (2) The ``WA/OR/CA sablefish pot fishery''. A humpback whale was 
reported entangled in this gear type in September 2006 off Monterey, 
CA. As described above, a single humpback whale serious injury or 
mortality is equal to 8 percent of the stock's PBR; therefore, a 
Category II categorization is appropriate. The estimated number of 
vessels or participants in the ``WA/OR/CA sablefish pot fishery'' is 
155, including both limited and open access permits (there are 32 
limited access permits).
    (3) The ``OR Dungeness crab pot fishery'' (see name change 
explanation for this fishery described below under ``West Coast trap/
pot fisheries'' discussion in section ``Fishery Name and Organizational 
Changes and Clarifications''). A humpback whale was observed and 
photographed entangled in gear in May 2006 off the coast of OR. This 
animal is believed to be the same animal that stranded on a beach in OR 
with marks consistent with the type of entanglement observed. Based 
upon the gear observed on the animal in the field and in photographs, 
and the unusually high amount of Dungeness crab gear in the water 
during that time, it is most likely that this is the type of gear that 
entangled the animal. As described above, a single humpback whale 
serious injury or mortality is equal to 8 percent of the stock's PBR; 
therefore, a Category II categorization is appropriate. The estimated 
number of vessels or participants in the ``OR Dungeness crab pot 
fishery'' is 433 (433 permits exist, 364 landings were made in 2006).
    (4) The ``CA Dungeness crab pot fishery'' (see name change 
explanation for this fishery described below under ``West Coast trap/
pot fisheries'' discussion in section ``Fishery Name and Organizational 
Changes and Clarifications''). Two of the reported humpback whale 
entanglements (shown in Table 5) could not be identified to a type of 
pot or trap fishery by gear type, thus NMFS considered whether this 
fishery could be listed as Category II by analogy to other West Coast 
trap/pot fisheries proposed for Category II classification in this 
rule, because it operates with similar gear in the same location as 
confirmed humpback whale serious injury events. NMFS reviewed the 
entanglements and identified which pot and trap fisheries were 
operating in the time and area of the reported entanglements. The ``CA 
Dungeness crab pot'' and the ``CA spot prawn trap'' fisheries were both 
operating at the time and place of the two humpback whale 
entanglements, thus either of these could have caused the serious 
injury to the humpback whales. Therefore, NMFS

[[Page 33773]]

proposes to reclassify the ``CA Dungeness crab pot fishery'' as a 
Category II fishery by analogy. The estimated number of vessels or 
participants in the ``CA Dungeness crab pot fishery'' is 625 (625 
permits exist, 435 landings were made in 2006).
    NMFS acknowledges that other pot and trap fisheries may overlap in 
space and time with humpback whales feeding or migrating along the West 
Coast, but in the absence of evidence of interactions, NMFS cannot 
justify placing these fisheries in Category II at this time. If 
additional information becomes available, NMFS will consider 
recategorization of other trap/pot fisheries.
    NMFS also reviewed the level of gray whale takes in all West coast 
commercial fisheries, including trap and pot fisheries, and determined 
that it was well below 10 percent of the stock's PBR, thus re-
categorization of trap and pot fisheries based upon gray whale takes is 
not warranted. Entanglements of gray whales in trap and pot gear have 
been reported; however, NMFS has not yet determined which specific 
fisheries may be involved. Therefore, gray whales will remain listed 
under the Category III, ``CA lobster, prawn, shrimp, rock crab, fish 
pot fishery'' (proposed to be renamed as the ``CA spiny lobster, 
coonstripe shrimp, finfish, rock crab, tanner crab pot or trap 
fishery'' in this proposed rule) and under the proposed Category II 
trap and pot fisheries discussed below (gray whales have been listed as 
injured or killed in these fisheries since the 2005 and 2007 LOFs, 
respectively). Data related to interactions with gray whales and the 
newly categorized Category II trap and pot fisheries will be reviewed 
and discussed in future LOFs.
Addition of Fisheries to the LOF
    NMFS proposes to add the ``HI deep-set (tuna target) longline/set 
line fishery'' as a Category I (see the discussion in the previous 
section for details).
    NMFS proposes to add the ``HI shallow-set (swordfish target) 
longline/set line fishery'' as a Category II (see the discussion in the 
previous section for details).
    NMFS proposes to add the ``CA spot prawn trap fishery'' as a 
Category II (see the discussion in the previous section for details).
    NMFS proposes to add the ``CA Dungeness crab pot fishery'' as a 
Category II (see the discussion in the previous section for details).
    NMFS proposes to add the ``OR Dungeness crab pot fishery'' as a 
Category II (see the discussion in the previous section for details).
    NMFS proposes to add the ``WA Dungeness crab pot fishery'' as a 
Category III (see the discussion in the previous section for details).
    NMFS proposes to add ``AK statewide miscellaneous finfish pot 
fishery'' as a Category III fishery. There are 293 participants in this 
fishery and no documented takes of marine mammals.
    NMFS proposes to add ``AK shrimp pot, except Southeast fishery'' as 
a Category III fishery. There are 15 participants in this fishery and 
no documented takes of marine mammals.
Removal of Fisheries from the LOF
    NMFS propose to remove the Category II ``AK Metlakatla/Annette 
Island salmon drift gillnet'' fishery from the LOF. NMFS received a 
comment on the 2008 LOF stating that this fishery is an exclusively 
tribal fishery (72 FR 66048, November 27, 2007, comment/response 27). 
As an exclusively tribal fishery, this fishery is not subject to the 
LOF (Final rule implementing section 118 of the MMPA, 60 FR 45086, 
August 30, 1995, comment/response 68). Tribal governments have 
developed regulations for the management of tribal fishing under 
treaties. NMFS and other fisheries regulatory agencies have 
participated with the tribes during this regulatory development.
Fishery Name and Organizational Changes and Clarifications
    NMFS proposes to change the name of the ``CA angel shark/halibut 
and other species set gillnet (>3.5 mesh size)'' fishery to the ``CA 
halibut/white seabass and other species set gillnet (>3.5 in. mesh) 
fishery'' to more accurately reflect the current target species of the 
fishery.
    NMFS proposes to change the name of the Category III ``AK state-
managed waters groundfish longline/set line (including sablefish, 
rockfish, and miscellaneous finfish'' to ``AK state-managed waters 
longline/set line (including sablefish, rockfish, lingcod, and 
miscellaneous finfish'' to more accurately reflect the current target 
species of the fishery.
    NMFS proposes to change the name of the Category III ``AK North 
Pacific halibut handline and mechanical jig fishery'' to ``AK North 
Pacific halibut handline/hand troll and mechanical jig fishery'' to 
more accurately reflect the gear used in the fishery.
    NMFS proposes to change the name of the Category III ``AK 
miscellaneous finfish handline and mechanical jig fishery'' to ``AK 
miscellaneous finfish handline/hand troll and mechanical jig fishery'' 
to more accurately reflect the gear used in the fishery.
    NMFS proposes to remove the superscript ``1'' following Steller sea 
lion, Western U.S. stock, under the Category II ``AK Bristol Bay salmon 
drift gillnet fishery'' in Table 1. Although Steller sea lions (Western 
U.S. stock) were reported taken in this fishery in logbook entries 
prior to the 1996 LOF (2007 SAR, Appendix 7), there have been no 
reported interactions since 1993. Therefore, this Steller sea lion 
stock is not driving the categorization of this fishery. However, this 
fishery is classified as a Category II based on analogy with other 
Category II AK gillnet fisheries because it operates in the same manner 
as other AK gillnet fisheries and it has not been observed by the 
Alaska Marine Mammal Observer Program. Therefore, the superscript ``2'' 
will remain after the fishery's name in Table 1.

West Coast trap/pot fisheries

    NMFS conducted a review of all West Coast commercial pot and trap 
fisheries in response to reports of humpback whale entanglements in 
this gear type and public comment requests for a review on previous 
LOFs. As described in the ``Fishery Classification'' section above, 
NMFS is proposing to recategorize a number of West Coast commercial pot 
and trap fisheries based upon interactions with humpback whales. The 
fisheries as currently named do not allow NMFS to categorize them 
appropriately, thus NMFS proposes to rename certain West Coast trap/pot 
fisheries by splitting and combining them based upon the probability of 
interactions with the gear and humpback whales and the current 
management structure.
    NMFS proposes to split the prawn portion of the ``CA lobster, 
prawn, shrimp, rock crab, and fish pot fishery'' into a separate 
fishery, the ``CA spot prawn fishery,'' and rename the remaining 
portion of the fishery the ``CA spiny lobster, coonstripe shrimp, 
finfish, rock crab, tanner crab pot or trap fishery.'' NMFS has 
determined that the current name of the fishery does not reflect the 
current fisheries and proposes to list the ``CA spot prawn trap 
fishery'' as a separate Category II fishery due to an observed 
entanglement with a humpback whale. Further, the ``CA spot prawn trap 
fishery'' operates in a time and area when humpback whales are found 
off of the coast of CA. NMFS proposes to rename the remaining portion 
of the fishery the ``CA spiny lobster, coonstripe shrimp, finfish, rock 
crab, tanner crab pot or trap fishery'' because these fisheries are all 
managed

[[Page 33774]]

by the State of CA and the available data from the LWDN shows a low 
likelihood of interactions with humpback whales because of the areas 
and times in which fishery effort occurs and the amount of gear used in 
these fisheries. This fishery will remain a Category III fishery on the 
LOF.
    NMFS proposes to list the ``CA spot prawn trap fishery'' as a 
separate Category II fishery due to an observed entanglement with a 
humpback whale. Further, this fishery operates in a time and area when 
humpback whales are found off of the coast of CA.
    NMFS proposes to split the ``WA/OR/CA crab pot fishery'' into three 
fisheries, the ``CA Dungeness crab pot,'' ``OR Dungeness crab pot,'' 
and ``WA Dungeness crab pot'' fisheries. Each of these fisheries is 
managed and permitted by the individual states and each state has 
different regulations and regulatory capacity for their fishery. Also, 
as explained previously, humpback whale entanglements have occurred in 
Dungeness crab pot gear off the states of CA and OR, but not WA. Thus 
by splitting and re-naming this fishery, NMFS is able to appropriately 
categorize only those Dungeness crab pot fisheries that are of most 
concern due to marine mammal interactions (i.e., categorize the CA and 
OR Dungeness crab pot fisheries as Category II, and the WA Dungeness 
crab pot fishery as Category III).
Number of Vessels/Persons
    NMFS proposes to update the estimated number of vessels or persons 
in the Category III ``CA lobster, prawn, shrimp, rock crab, and fish 
pot fishery'' (proposed to be renamed the ``CA spiny lobster, 
coonstripe shrimp, finfish, rock crab, tanner crab pot or trap 
fishery'' in this rule) from 608 to 530.
    NMFS proposes to update the estimated number of vessels or persons 
in the Category III ``OR/CA hagfish pot or trap fishery'' from 25 to 
54.
    NMFS proposes to update the estimated number of vessels or persons 
in the majority of the AK Category II fisheries because the information 
has not been updated in recent LOFs: AK Southeast salmon drift gillnet 
fishery from 481 to 476; AK Yakutat salmon set gillnet from 170 to 166; 
AK Prince William Sound salmon drift gillnet from 541 to 537; AK Cook 
Inlet salmon drift gillnet from 576 to 571; AK Cook Inlet salmon set 
gillnet from 745 to 738; AK Peninsula/Aleutian Islands salmon drift 
gillnet from 164 to 162; AK Peninsula/Aleutian Islands salmon set 
gillnet from 116 to 115; AK Bristol Bay salmon drift gillnet from 1,903 
to 1,862; AK Bristol Bay salmon set gillnet from 1,014 to 983; AK 
Southeast salmon purse seine fishery from 416 to 415; AK Bering Sea, 
Aleutian Islands pollock trawl from 120 to 95; AK Bering Sea, Aleutian 
Islands Pacific cod trawl from 114 to 54; AK Bering Sea, Aleutian 
Islands finfish trawl from 26 to 34.
    NMFS proposes to update the estimated number of vessels or persons 
in the majority of the AK Category III fisheries because the 
information has not been updated in recent LOFs: AK Kuskokwim, Yukon, 
Norton Sound, Kotzebue salmon gillnet from 1,922 to 1,824 ; AK roe 
herring and food/bait herring gillnet from 2,034 to 986; AK 
miscellaneous finfish set gillnet from 3 to 0; AK salmon purse seine 
(except Southeast AK, which is Category II) from 953 to 936; AK salmon 
beach seine from 34 to 31; AK roe herring and food/bait herring purse 
seine from 624 to 361; AK roe herring and food/bait herring beach seine 
from 8 to 4; AK octopus/squid purse seine from 2 to 0; AK salmon troll 
from 2,335 to 2,045; AK North Pacific halibut/bottom fish troll from 
1,530 (330 AK) to 1,302 (102 AK); AK state-managed waters groundfish 
longline/set line (including sablefish, rockfish, and miscellaneous 
finfish) from 731 to 1,448; AK Gulf of Alaska rockfish longline from 
421 to 0; AK Gulf of Alaska sablefish longline from 412 to 291; AK 
Bering Sea, Aleutian Islands Greenland turbot longline from 12 to 29; 
AK Bering Sea, Aleutian Islands rockfish longline from 17 to 0; AK 
Bering Sea, Aleutian Islands sablefish longline from 63 to 28; AK 
halibut longline/set line (State and Federal waters) from 3,079 to 
2,521; AK octopus/squid longline from 7 to 2; AK shrimp otter and beam 
trawl (statewide and Cook Inlet) from 58 to 32; AK Gulf of Alaska 
flatfish trawl from 52 to 41; AK Gulf of Alaska Pacific cod trawl from 
101 to 62; AK Gulf of Alaska pollock trawl from 83 to 62; AK Gulf of 
Alaska rockfish trawl from 45 to 34; AK Bering Sea, Aleutian Islands 
Atka mackerel trawl from 8 to 9; AK Bering Sea, Aleutian Islands 
Pacific cod trawl from 87 to 93; AK Bering Sea, Aleutian Islands 
rockfish trawl from 9 to 10; AK miscellaneous finfish otter or beam 
trawl from 624 to 317; AK food/bait herring trawl from 3 to 4; AK 
Bering Sea, Aleutian Islands Pacific cod pot from 76 to 68; AK Bering 
Sea, Aleutian Islands crab pot from 329 to 297; AK Gulf of Alaska crab 
pot from unknown to 300; AK Southeast Alaska crab pot from unknown to 
433; AK Southeast Alaska shrimp pot from unknown to 283; AK octopus/
squid pot from 72 to 27; AK snail pot from 2 to 1; AK North Pacific 
halibut handline/hand troll and mechanical jig from 93 to 228; AK 
miscellaneous finfish handline/hand troll and mechanical jig from 100 
to 445; AK octopus/squid handline form 2 to 0; AK Southeast herring 
roe/food/bait pound net from 3 to 6; AK dungeness crab (hand pick/dive) 
from 3 to 2; AK herring spawn on kelp (hand pick/dive) from 363 to 266; 
AK urchin and other fish/shellfish (hand pick/dive) from 471 to 570; AK 
commercial passenger fishing vessel from >7,000 (1,107 AK) to >7,000 
(2,702 AK).
List of Species That are Incidentally Injured or Killed
    NMFS proposes to remove the harbor porpoise (central CA) from the 
list of marine mammal species and stocks incidentally killed/injured in 
the ``CA angel shark/halibut and other species set gillnet (>3.5 mesh 
size) fishery'' (proposed for recategorization to a Category II, and 
renamed as the ``CA halibut/white seabass and other species set gillnet 
(>3.5 mesh size) fishery'' in this proposed rule). As described above, 
there has been a ban on set gillnetting in central CA since 2002, which 
has eliminated the threat to the Monterey Bay stock and Morro Bay stock 
of harbor porpoise in this fishery. This fishery is now concentrated in 
southern California, south of the range of these stocks of harbor 
porpoise.
    NMFS proposes to remove the following marine mammals from the list 
of species/stocks incidentally killed/injured in the ``CA/OR thresher 
shark/swordfish drift gillnet ([gteqt]14 in. mesh) fishery<gr-thn-eq>: 
Dall's porpoise (CA/OR/WA), fin whale (CA/OR/WA), gray whale (Eastern 
North Pacific), humpback whale (CA/OR/WA), and sperm whale (CA/OR/WA). 
None of these species have been observed taken in the fishery from 
January 1, 2002 through December 31, 2006 (the most recent available 
information). This fishery has been observed by NMFS at approximately 
20 percent annually during this five year period.
    NMFS proposes to remove humpback whales (CA/OR/WA) from the list of 
species/stocks incidentally killed/injured in the Category II ``WA 
Dungeness pot fishery'' (proposed to be separated from the ``WA/OR/CA 
crab pot fishery'' in this proposed rule). There have been no recent 
interactions with this species.
    NMFS proposes to remove humpback whales (CA/OR/WA) and sea otters 
(CA) from the list of species/stocks incidentally killed/injured in the 
Category III ``CA spiny lobster, coonstripe shrimp, finfish, rock crab, 
tanner crab pot or trap fishery'' (currently listed as the ``CA 
lobster,

[[Page 33775]]

prawn, shrimp, rock crab, fish pot fishery''). As described above in 
the discussion of West Coast trap/pot fisheries, NMFS analysis of the 
available information on humpback whale entanglements in pot and trap 
gear suggests that these gears are not likely to cause interactions. 
NMFS proposes to remove sea otter (CA) from the list of species/stocks 
incidentally killed/injured due to a lack of recent data to indicate 
that sea otters are seriously injured or killed in this fishery. The 
only available information of a sea otter taken in one of a these types 
of pots or traps is from November 1987. Sea otters (CA) will not be 
listed as incidentally killed/injured in the proposed Category II ``CA 
spot prawn trap'' fisheries (proposed to be separated out from the 
renamed ``CA spiny lobster, coonstripe shrimp, finfish, rock crab, 
tanner crab pot or trap fishery'' in this proposed rule). The only 
available information of a sea otter taken in each of these types of 
pots or traps is from 1991. There have been no reports of interactions 
since 1987 or 1991, respectively.
    NMFS proposes to change the stock name of humpback whales from 
humpback whales (Eastern North Pacific) to humpback whales (CA/OR/WA) 
for all fisheries in Table 1 in which this species is listed as 
incidentally killed or injured to match the stock name in the most 
current SARs. The stock name was changed in the Final 2007 SARs.

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

Addition of Fisheries to the LOF
    NMFS proposes to add the ``U.S. Atlantic, Gulf of Mexico trotline 
fishery'' as a Category III fishery. Trotline gear can be described as 
longline which rests on the seafloor, attached to anchored floats or 
buoys at each end, to which a series of baited hooks are attached at 
intervals of 2-6 ft (0.6-1.8 m). The line is typically set parallel to 
the shore in water 5-12 ft (1.5-3.7 m) deep and the line can reach up 
to a mile (1.6 km) in length. Trotlines are typically worked from a 
boat where rollers are used to haul the line from the water. Target 
species include blue crab, catfish, and other finfish throughout the 
coastal Atlantic and Gulf of Mexico. ``Hook and line'' gear is defined 
at 50 CFR 600.10 as ``one or more hooks attached to one or more lines 
(can include a troll).'' Therefore, NMFS proposes to classify the 
``U.S. Atlantic, Gulf of Mexico trotline fishery'' under ``Longline/
Hook-and-Line Fisheries'' in Table 2 of the LOF. The number of 
participants in this fishery is unknown and there are no known takes of 
any marine mammal from trotline gear.

Fishery Name and Organizational Changes and Clarifications

Northeast sink gillnet fishery

    NMFS proposes to clarify and correct the boundary definition of the 
Category I ``Northeast sink gillnet fishery.'' The current boundaries 
are defined as ``excluding Long Island Sound or other waters where 
gillnet fisheries are listed as Category III. At this time, these 
Category II and II fisheries include...'' (72 FR 66056, November 27, 
2007). NMFS proposes to clarify this boundary definition by replacing 
this with the following language: ''...excluding Long Island Sound and 
other waters where gillnet fisheries are listed as Category II and III. 
At this time, these Category II and III fisheries include...''

Northeast anchored float gillnet fishery

    NMFS proposes to clarify the boundary definition of the Category II 
``Northeast anchored float gillnet fishery.'' The current fishery 
boundary is defined as ''...from the U.S.- Canada border to Long 
Island, NY, at at 72[deg] 30' W. long south to 36[deg] 33.03' N. lat. 
and east to the eastern edge of the EEZ...'' (72 FR 66056, November 27, 
2007). NMFS proposes to clarify this boundary definition by adding the 
following language: ``...from the U.S.-Canada border to Long Island, 
NY, at 72[deg] 30' W. long south to 36[deg] 33.03' N. lat. 
(corresponding with the VA/NC border) and east to the eastern edge of 
the EEZ...''

Northeast drift gillnet fishery

    NMFS proposes to clarify the boundary definition of the Category II 
``Northeast drift gillnet fishery.'' The current fishery boundary is 
defined as occurring ''...at any depth in the water column from the 
U.S.-Canada border to Long Island, NY, at 72[deg] 30' W. long. south to 
36[deg] 33.03' N. lat. and east to the eastern edge of the EEZ...'' (72 
FR 66056, November 27, 2007). NMFS proposes to clarify this boundary 
definition by adding the following language: ''...at any depth in the 
water column from the U.S.-Canada border to Long Island, NY, at 72[deg] 
30' W. long. south to 36[deg] 33.03' N. lat. (corresponding with the 
VA/NC border) and east to the eastern edge of the EEZ...''

Mid-Atlantic mid-water trawl fishery

    NMFS proposes to modify the fishery description for the Category II 
``Mid-Atlantic mid-water trawl fishery.'' NMFS received a comment on 
the 2008 LOF suggesting that the ``Mid-Atlantic mid-water trawl 
fishery'' was an inaccurate characterization of the fishery targeting 
Ilex squid, Loligo squid, and Atlantic butterfish (72 FR 66064, 
November 27, 2007, comment/response 28). After consulting with the 
Northeast Fisheries Science Center, observer reports, and vessel trip 
report (VTR) data , NMFS concluded that the gear targeting these 
species is better characterized by the ``Mid-Atlantic bottom trawl 
fishery'' (Category II) rather than the ``Mid-Atlantic mid-water trawl 
fishery'' (Category II) as it is currently listed (72 FR 66048, 
November 27, 2007). Additionally, NMFS has also become aware of 
additional species targeted by the ``Mid-Atlantic mid-water trawl 
fishery'' (2007 final SAR). To reflect this new information, NMFS 
proposes to replace the current ``Mid-Atlantic mid-water trawl'' 
fishery description with the following description:
    ``The 'Mid-Atlantic mid-water trawl fishery' primarily targets 
Atlantic mackerel, chub mackerel, and miscellaneous other pelagic 
species. This fishery consists of both single and pair trawls, which 
are designed, capable, or used to fish for pelagic species with no 
portion of the gear designed to be operated in contact with the bottom. 
The fishery for Atlantic mackerel occurs primarily from southern New 
England through the mid-Atlantic from January to March and in the Gulf 
of Maine during the summer and fall (May to December). This fishery is 
managed under the Federal Atlantic Mackerel, Squid, and Butterfish FMP 
using an annual quota system.''

Mid-Atlantic bottom trawl fishery

    NMFS proposes to modify the fishery description for the Category II 
``Mid-Atlantic bottom trawl fishery.'' NMFS received a comment on the 
2008 LOF regarding gear used for targeting Ilex squid, Loligo squid, 
and Atlantic butterfish (72 FR 66048, November 27, 2007, comment/
response 28). After consulting with the Northeast Fisheries Science 
Center, observer reports, and VTR data , NMFS concluded that the gear 
targeting these species is better characterized by the ``Mid-Atlantic 
bottom trawl fishery'' (Category II) rather than the ``Mid-Atlantic 
mid-water trawl fishery'' (Category II) as it is currently listed (72 
FR 66057, November 27, 2007). Additionally, NMFS has also become aware 
of additional species targeted by the ``Mid-Atlantic bottom trawl 
fishery'' (2007 final SAR). To reflect this new information, NMFS 
proposes to replace the current ``Mid-Atlantic bottom trawl'' fishery

[[Page 33776]]

description with the following description:
    ``The Category II `Mid-Atlantic bottom trawl fishery' uses bottom 
trawl gear to target species including but not limited to: bluefish, 
croaker, monkfish, summer flounder (fluke), winter flounder, silver 
hake (whiting), spiny dogfish, smooth dogfish, scup, black sea bass, 
Atlantic cod, haddock, pollock, yellowtail flounder, witch flounder, 
windowpane flounder, summer flounder, American plaice, Atlantic 
halibut, redfish, red hake, white hake, ocean pout, skate spp, Atlantic 
mackerel, Loligo squid, Ilex squid, and Atlantic butterfish. These 
fisheries occur year round from Cape Cod, MA, to Cape Hatteras, NC, in 
waters west of 72[deg] 30' W. long. and north of a line extending due 
east from the NC/SC border. While the gear characteristics for the 
mixed groundfish bottom trawl gear have not yet been determined, the 
Ilex and Loligo squid fisheries are dominated by small-mesh otter 
trawls. The Loligo fishery occurs mostly offshore near the edge of the 
continental shelf during fall and winter months (October to March) and 
inshore during spring and summer (April-September) though landings of 
Loligo are also taken by inshore pound nets and fish traps in the 
spring and summer. The fishery for Ilex occurs offshore, mainly in 
continental shelf and slope waters during summer months (June-
September). The Ilex and Loligo fisheries are managed by moratorium 
permits, gear and area restrictions, quotas, and trip limits. Atlantic 
butterfish are mainly caught as bycatch in the directed squid and 
mackerel fisheries and observer data has suggested that there is a 
significant amount of butterfish discarding that occurs at sea.''

Mid-Atlantic haul/beach seine fishery

    NMFS proposes to update the fishery description for the Category II 
`Mid-Atlantic haul/beach seine fishery.' In the Final 2008 LOF (72 FR 
66048, November 27, 2007), NMFS stated that it would consider revising 
the description of the fishery following rulemaking by the North 
Carolina Division of Marine Fisheries (NCDMF) involving the NC Atlantic 
Ocean striped bass beach seine fishery. In an effort to distinguish 
between beach-anchored gillnets and true beach seines, NCDMF recently 
finalized regulations, effective for the fall 2008 fishery, defining a 
beach seine for the Atlantic Ocean striped bass beach seine fishery. 
Fishers participating in the fishery will be required to use 
multifilament or multi-fiber webbing swipe nets fished from the ocean 
beach that are deployed from a vessel launched from the ocean beach 
where the fishing operation takes place. Therefore, NMFS proposes to 
add the following information to the description from the Final 2008 
LOF:
    ``The NC component of this fishery operates primarily along the 
Outer Banks using small and large mesh nets. Small mesh nets are 
generally used in the spring and fall to target gray trout (weakfish), 
speckled trout, spot, kingfish (sea mullet), bluefish, and harvest fish 
(star butters). Large mesh nets are used to target Atlantic striped 
bass during the winter and are regulated via NC Marine Fisheries 
Commission rules and NCDMF proclamations. Construction and 
characteristics of the large and small mesh nets differ, but they 
generally both gill fish, rather than haul fish to shore in the manner 
of a traditional beach seine. Small mesh nets are generally constructed 
with a combination of multifilament and monofilament webbing or all 
monofilament webbing material. If a combination of materials is used, 
the construction design often consists of monofilament for the inshore 
(wash) and offshore (wing) portions of the net, while the middle (bunt) 
is constructed of twisted nylong. Conversely, large mesh nets are 
constructed of all monofilament material. Despite the difference in 
construction, they are set and hauled similarly. Nets are deployed out 
of the stern of surf dories and set perpendicular to the shoreline. A 
truck is generally used to haul the net ashore by attaching one end of 
the net to the truck and pulling it ashore while the other end remains 
fixed until the end of the haul.
    NC fishers previously referred to this type of gear as a beach 
seine because of the way the gear was set and hauled. Because of the 
manner in which both large and small mesh nets are constructed (i.e., 
inclusion of monofilament material) and fished, they operate as 
gillnets rather than beach seines, and NMFS considers them a component 
of the Category I, `Mid-Atlantic gillnet fishery.' Once NCDMF's 
regulation is effective, the Atlantic Ocean striped bass beach seine 
fishery will be the only fishery included under the 'Mid-Atlantic haul/
beach seine fishery' for NC. Therefore, small and large mesh nets 
constructed of monofilament and multifilament material will be 
considered part of the Category I ``Mid-Atlantic gillnet fishery.''
    In addition to the NC component as described above, the `Mid-
Atlantic haul/beach seine fishery' also includes haul seining in other 
areas of the mid-Atlantic, including VA, MD, and NJ. Because the net 
materials and fishing practices of the Atlantic Ocean striped bass 
beach seine fishery in NC are different from haul seining in other 
areas, NMFS may consider splitting this fishery in the future.''

List of Species That are Incidentally Seriously Injured or Killed

    NMFS proposes to add white-side dolphin (Western North Atlantic 
[WNA] stock) to the list of marine mammal species and stocks 
incidentally injured or killed in the Category II ``Mid-Atlantic bottom 
trawl fishery.'' Information presented in the 2007 Final SAR states 
that one Atlantic white-sided dolphin incidental take was observed in 
1997 and another in 2005.
    NMFS proposes to add harbor seal (WNA stock) to the list of marine 
mammal species and stocks incidentally injured or killed in the 
Category II ``Northeast bottom trawl fishery.'' Recent information 
presented in the 2007 final SAR states that two harbor seal mortalities 
were observed between 2001 and 2005.
    NMFS proposes to add bottlenose dolphins (WNA coastal stock) to the 
list of marine mammal species and stocks incidentally injured or killed 
in the Category III ``FL spiny lobster trap/pot fishery.'' The 2008 LOF 
includes the bottlenose dolphins (Eastern GMX coastal stock) as 
incidentally killed or injured in the fishery, but stranding data 
indicate that, though rare, interactions are also occurring in the 
Atlantic. Two bottlenose dolphins are known to have stranded with spiny 
lobster trap/pot gear in Miami Beach, FL: one on October 4, 1997, and 
one on August 17, 2007. These animals fall within the WNA coastal 
bottlenose dolphin stock's Central Florida Management Unit, which 
currently has an unknown PBR (2007 final SAR). Therefore, NMFS cannot 
determine whether this fishery requires reclassification until more 
information is available. There is no observer program for this 
fishery.
    NMFS proposes to add bottlenose dolphins (WNA coastal stock) to the 
list of marine mammal species and stocks incidentally injured or killed 
in the Category III ``Southeastern U.S. Atlantic, Gulf of Mexico stone 
crab trap/pot fishery.'' The 2008 LOF states that there are no 
documented marine mammal interactions with this fishery. However, 
stranding data indicate that bottlenose dolphins interact with this 
fishery. Two bottlenose dolphins stranded with stone crab trap/pot 
gear: one in Biscayne Bay, FL, on May 5, 2003, and one in Miami Beach, 
FL, on November 21, 2006. These animals fall within the WNA coastal 
bottlenose dolphin stock's

[[Page 33777]]

Central Florida Management Unit, which currently has an unknown PBR 
(2007 final SAR). Therefore, NMFS cannot determine whether this fishery 
requires reclassification until more information is available. There is 
no observer program for this fishery.

List of Fisheries

    The following tables set forth the proposed list of U.S. commercial 
fisheries according to their classification under section 118 of the 
MMPA. In Tables 1 and 2, the estimated number of vessels/participants 
in fisheries operating within U.S. waters 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. For high seas fisheries, 
Table 3 lists the number of currently valid HSFCA permits held by 
fishers. Although this likely overestimates the number of active 
participants in many of these fisheries, the number of valid HSFCA 
permits is the most reliable data at this time.
    Tables 1, 2, and 3 also list the marine mammal species and stocks 
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 be injured or killed in a given fishery, 
but also includes species or stocks for which there are anecdotal 
records of an injury or mortality. Additionally, species identified by 
logbook entries may not be verified. NMFS has designated those stocks 
driving a fishery's classification (i.e., the fishery is classified 
based on serious injuries and mortalities of a marine mammal stock 
greater than 50 percent [Category I], or greater than 1 percent and 
less than 50 percent [Category II], of a stock's PBR) by a 
``1<gr-thn-eq>after the stock's name.
    In Tables 1 and 2, there are several fisheries classified in 
Category II that have no recent documented injuries or mortalities of 
marine mammals, or that did not result in a serious injury or mortality 
rate greater than 1 percent of a stock's PBR level. NMFS has classified 
these fisheries 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 a ``Category II fishery'' in 50 CFR 
229.2. NMFS has designated those fisheries originally listed by analogy 
in Tables 1 and 2 by a ``2'' after the fishery's name.
    There are several fisheries in Tables 1, 2, and 3 in which a 
portion of the fishing vessels cross the EEZ boundary, and therefore 
operate within U.S. waters and on the high seas. NMFS has designated 
those fisheries in each Table by a ``*'' after the fishery's name.
    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; Table 3 lists commercial fisheries on the 
High Seas; Table 4 lists fisheries affected by Take Reduction Teams or 
Plans.
BILLING CODE 3510-22-S

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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. The factual 
basis leading to the certification is set forth below.
    Under existing regulations, all fishers participating in Category I 
or II fisheries must register under the MMPA and obtain an 
Authorization Certificate. The Authorization Certificate authorizes the 
taking of marine mammals incidental to commercial fishing operations. 
Additionally, fishers may be subject to a Take Reduction Plan (TRP) and 
requested to carry an observer. NMFS has estimated that approximately 
44,200 fishing vessels, most of which are small entities, operate in 
Category I or II fisheries, and therefore, are required to register 
with NMFS. Each region has integrated the MMPA registration process 
with existing state and Federal registration programs. Fishers who have 
a Federal or state fishery permit or landing license, or who are 
authorized through another related Federal or state fishery 
registration program, are currently not required to register separately 
under the MMPA or pay the $25 registration fee under the MMPA. 
Therefore, there are no direct costs to small entities under this 
proposed rule.
    If a vessel is requested to carry an observer, fishers will not 
incur any direct economic costs associated with carrying that observer. 
Potential indirect costs to individual fishers required to take 
observers may include: lost space on deck for catch, lost bunk space, 
and lost fishing time due to time needed to process bycatch data. For 
effective monitoring, however, observers will rotate among a limited 
number of vessels in a fishery at any given time and each vessel within 
an observed fishery has an equal probability of being requested to 
accommodate an observer. Therefore, the potential indirect costs to 
individual fishers are expected to be minimal because observer coverage 
would only be required for a small percentage of an individual's total 
annual fishing time. In addition, section 118 of the MMPA 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. As a result of this certification, an 
initial regulatory flexibility analysis is not required and was not 
prepared. In the event that reclassification of a fishery to Category I 
or II results in a TRP, economic analyses of the effects of that plan 
will be summarized in subsequent rulemaking actions.
    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 (0.15 hours per report for new registrants and 0.09 hours per 
report for renewals). The requirement for reporting marine mammal 
injuries or mortalities 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 and SUPPLEMENTARY INFORMATION).
    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 in June 1995. NMFS revised that EA relative to 
classifying U.S. commercial fisheries on the LOF in December 2005. Both 
the 1995 EA and the 2005 EA concluded that implementation of MMPA 
section 118 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 2005 EA. If NMFS takes a management action, for example, through 
the development of a TRP, NMFS will first prepare an environmental 
document, as required under NEPA, specific to that action.
    This proposed rule will 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 ESA section 7 for that action.
    This proposed rule will 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, stranding and 
sighting data, or take reduction teams.
    This proposed rule will 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: June 9, 2008.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.
[FR Doc. 08-1352 Filed 6-10-08; 3:04pm]
BILLING CODE 3510-22-S


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