Federal Register / Vol. 60, No. 249 / Thursday, December 28, 1995 / Rules and Regulations 67063

waters, the Coast Guard continues to

recognize that: (1) It would be difficult

for U.S. carriers to effectively

implement the regulations without

cooperation from foreign governments;

(2) in response, foreign governments

could impose restrictions on U.S.

operations; and, perhaps most

importantly, (3) there are distinct

advantages to be gained in aligning

foreign measures and U.S. measures,

especially as they relate to international

transportation operations.

For these reasons, the Coast Guard has

proposed not to require testing under

part 16 in waters subject to the

jurisdiction of a foreign government

[CGD95–011; 60 FR 43426; August 21,

1995]. The comment period on that

NPRM ended October 20, 1995.

In order to allow time to further

consider these issues and to formulate a

final decision, the Coast Guard has

again determined that additional time is

necessary. Another delay of

approximately one year should provide

sufficient time to complete the

rulemaking on foreign applicability.

Accordingly, the Coast Guard has

determined to postpone again the date

by which testing programs would

commence for persons onboard U.S.

vessels in waters that are subject to the

jurisdiction of a foreign government.

This final rule delays the applicability

of the regulations where they may

conflict with foreign law or policy. This

rule imposes no additional burdens on

the regulated industry. Without this

delay in the implementation date,

persons onboard U.S. vessels in waters

that are subject to the jurisdiction of a

foreign government would become

subject to the requirements of part 16 on

January 2, 1996. Delaying the

implementation date ensures that the

applicability of part 16 will continue

unchanged. Accordingly, the Coast

Guard finds that good cause exists

under 5 U.S.C. 553(b) to publish this

rule without notice and comment and to

make this rule effective less than 30

days after publication in the Federal

Register.

Regulatory Evaluation

This final rule is not a significant

regulatory action under section 3(f) of

Executive Order 12866 and does not

require an assessment of potential costs

and benefits under section 6(a)(3) of that

order. It has not been reviewed by the

Office of Management and Budget under

that order. It is not significant under the

regulatory policies and procedures of

the Department of Transportation (DOT)

(44 CFR 11034; February 26, 1979). The

economic impact of these changes is so

minimal that further evaluation is not

necessary. This final rule modifies the

effective date for compliance with Coast

Guard regulations governing drug

testing, insofar as those regulations

would require testing of persons

onboard U.S. vessels that are subject to

the jurisdiction of a foreign government.

It does not change the basic regulatory

structure of that rule.

Small Entities

Under the Regulatory Flexibility Act

(5 U.S.C. 601 et seq.), the Coast Guard

must consider whether this proposal

will have a significant economic impact

on a substantial number of small

entities. ‘‘Small entities’’ include

independently owned and operated

small businesses that are not dominant

in their field and that otherwise qualify

as ‘‘small business concerns’’ under

section 3 of the Small Business Act (15

U.S.C. 632). This rule does not require

a general notice of proposed rulemaking

and, therefore, is exempt from the

regulatory flexibility requirements.

Although exempt, the Coast Guard has

reviewed this rule for potential impact

on small entities.

The amendment in this final rule only

extends a compliance data, and imposes

no costs on affected entities. Therefore,

the Coast Guard certifies under 5 U.S.C.

605(b) that this final rule will not have

a significant economic impact on a

substantial number of small entities.

Collection of Information

This rule contains no collection of

information requirements under the

Paperwork Reduction Act (44 U.S.C.

3501 et seq.).

Federalism

The Coast Guard has analyzed this

rule in accordance with the principles

and criteria contained in Executive

Order 12612 and has determined that it

does not have sufficient federalism

implications to warrant the preparation

of a Federalism Assessment. The

authority to require programs for

chemical drug and alcohol testing of

commercial vessel personnel has been

committed to the Coast Guard by

Federal statutes. This final rule does,

therefore, preempt State and local

regulations regarding drug testing

programs requiring the testing of

persons onboard U.S. vessels in waters

that are subject to the jurisdiction of a

foreign government.

Environment

The Coast Guard has considered the

environmental impact of this final rule,

and has concluded that, under section

2.B.2.e(34)(c) of Commandant

Instruction M16475.1B, it is

categorically excluded from further

environmental documentation. This

final rule merely extends an

implementation date and clearly has no

environmental impact.

List of Subjects in 46 CFR Part 16

Drug testing, Marine safety, Reporting

and recordkeeping requirements, Safety,

Transportation.

For the reasons set forth in the

preamble, the Coast Guard amends 46

CFR part 16 as follows:

PART 16—CHEMICAL TESTING

1. The authority citation for part 16

continues to read as follows:

Authority: 46 U.S.C. 2103, 3306, 7101,

7301 and 7701; 49 CFR 1.46.

2. In § 16.207, paragraph (b) is revised

to read as follows:

§ 16.207 Conflict with foreign laws.

* * * * *

(b) This part is not effective until

January 2, 1997, with respect to any

person onboard U.S. vessels in waters

that are subject to the jurisdiction of a

foreign government. On or before

December 1, 1996, the Commandant

shall issue any necessary amendment

resolving the applicability of this part to

such person on and after January 2,

1997.

Dated: December 20, 1995.

J.C. Card,

Rear Admiral, U.S. Coast Guard, Chief, Office

of Marine Safety, Security and Environmental

Protection.

[FR Doc. 95–31370 Filed 12–27–95; 8:45 am]

BILLING CODE 4910–14–M

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Part 229

[Docket No. 950605147–5288–03; I.D.

112895A]

RIN 0648–AH33

Final List of Fisheries for 1996

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Final rule.

SUMMARY: In accordance with the

Marine Mammal Protection Act of 1972,

as amended (MMPA), NMFS publishes

its MMPA final List of Fisheries (LOF)

for 1996. The LOF classifies fisheries as

either Category I, II, or III, based on their
67064 Federal Register / Vol. 60, No. 249 / Thursday, December 28, 1995 / Rules and Regulations

level of incidental mortalities and

serious injuries of marine mammals.

After February 29, 1996, the owner or

authorized representative of a fishing

vessel or nonvessel fishing gear

(hereinafter vessel owner) which

participates in a Category I or II fishery

must register for and obtain a valid

Authorization Certificate.

EFFECTIVE DATE: March 1, 1996.

ADDRESSES: A copy of the

Environmental Assessment (EA)

prepared for the section 118

implementing regulations may be

obtained by writing to Chief, Marine

Mammal Division, Office of Protected

Resources, National Marine Fisheries

Service, 1315 East-West Highway, Silver

Spring, MD 20910. Information and

registration material for the region in

which a fishery occurs, and reporting

forms, may be obtained from the

following addresses: NMFS, Northeast

Region, One Blackburn Drive,

Gloucester, MA 01930–2298, Attn:

Sandra Arvilla; NMFS, Southeast

Region, 9721 Executive Center Drive

North, St Petersburg, FL 33702; NMFS,

MMAP, Protected Species Management

Division, 501 W. Ocean Blvd., Suite

4200, Long Beach, CA 90802–4213;

NMFS, Northwest Region, 7600 Sand

Point Way NE, Seattle, WA 98115 Attn:

Permits office; NMFS–PMRD, P.O. Box

22668, 709 West 9th Street, Juneau, AK

99082.

FOR FURTHER INFORMATION CONTACT:

Robyn Angliss, Office of Protected

Resources, 301–713–2322; Douglas

Beach, Northeast Region, 508–281–

9254; Charles Oravetz, Southeast

Region, 813–570–5301; James Lecky,

Southwest Region, 310–980–4015; Brent

Norberg, Northwest Region, 206–526–

6140; Steven Zimmerman, Alaska

Region, 907–586–7235.

SUPPLEMENTARY INFORMATION:

Publication of the LOF, which places all

U.S. commercial fisheries into three

categories based on their levels of

incidental mortality and serious injury

of marine mammals, is required by

section 118 of the MMPA. The following

provides the history of this final 1996

LOF, clarification of the process used to

classify fisheries, and a description of

difference between the LOF published

under section 114 of the MMPA and this

final 1996 LOF.

History of the Final List of Fisheries for

1996

A proposed LOF for 1996 was

published on June 16, 1995 (60 FR

31666) with proposed regulations

implementing section 118. An EA was

prepared concurrently with the

development of the proposed

regulations and the LOF and was made

available when the proposed regulations

were published. The public comment

period for the proposed regulations

ended on July 31, 1995; the public

comment period for the proposed LOF

ended September 14, 1995.

The process used to develop the

proposed and final rule implementing

section 118 included many

opportunities for public involvement,

such as working sessions, public

hearings, written comments, press

releases, and a regulatory alert.

Additional details on these activities are

found in the preamble to the final

regulations implementing section 118,

published on August 30, 1995 (60 FR

45086).

During July 1995, NMFS held 10

public hearings at various locations

throughout the country to receive

comments on the proposed

implementing regulations and proposed

LOF. A total of 86 individuals attended

these hearings, 28 of whom submitted

oral comments on the proposed rule,

LOF or both. NMFS also received 23

written letters of comment specifically

on the LOF. Comments were received

from fishers, fishing industry groups,

environmental groups, animal rights

groups, state departments of fisheries,

other executive branch departments,

and members of the general public.

This final LOF responds only to those

public comments addressing the

proposed LOF. Comments addressing

the proposed implementing regulations

for section 118 were included in the

preamble to the section 118 final

implementing regulations.

Definitions of Category I, II, and III

Fisheries

The regulations implementing section

118 of the MMPA introduced a new

three category fishery classification

scheme (50 CFR part 229) based on 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 the rate, in

numbers of animals per year, of serious

injuries and mortalities due to

commercial fishing relative to a stock’s

potential biological removal (PBR) level.

Tier 1: If the total annual mortality

and serious injury across all fisheries

that interact with a stock is less than or

equal to 10 percent of the PBR of such

a stock, then all fisheries interacting

with this stock are placed in Category

III. Otherwise, these fisheries are subject

to the next tier 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 in a given fishery is

greater than 1 percent but less than 50

percent of the PBR level.

Tier 2—Category III: Annual mortality

and serious injury in a given fishery is

less than or equal to 1 percent of the

PBR level.

Tier 1, therefore, considers the

cumulative fishery mortality and serious

injury for a particular stock, while Tier

2 considers fishery-specific mortality for

a particular stock. Additional details

regarding how threshold percentages

between the categories were determined

are provided in the final rule

implementing section 118.

Differences Between the LOF Under

Section 114 and the LOF Under Section

118

There are several key differences

between the LOF required and prepared

under expired section 114 and the new

LOF required and prepared under

section 118.

Under section 114, fisheries were

classified based on the number of

incidental takes of marine mammals. As

defined in 50 CFR 216.3, takes include

harassment. Under section 118, fisheries

are to be classified based on the number

of serious injuries and mortalities that

occur incidental to that fishery. Also,

under section 118 intentional lethal

mortalities and serious injuries of

marine mammals are prohibited. Thus,

incidental or intentional harassment, or

intentional lethal takes are no longer

used to classify fisheries into a

particular category.

The fishery classification criteria

under section 114 were dependent on

the rate of all marine mammal takes per

20 days. The criteria are now based on

the annual rate of incidental, speciesspecific serious injury and mortality of

marine mammals relative to a particular

marine mammal stock’s PBR level.

Under section 114, fisheries were

typically classified primarily based on

observer data and logbook data,

although analogy to fisheries with

similar gear types could be made. Under

the new regulations pursuant to section

118, observer data, logbook data,

stranding data, fishers’ reports,

anecdotal reports, and analogy are used

to classify fisheries.

Both sections 114 and 118 require that

the marine mammal species involved in

interactions with each fishery be

identified in the LOF. Under section

114, ‘‘involved’’ was interpreted broadly

and included those marine mammals
Federal Register / Vol. 60, No. 249 / Thursday, December 28, 1995 / Rules and Regulations 67065

known or reported to be harassed by

fisheries, and those marine mammals

suspected to be injured, killed, or

harassed incidental to commercial

fishing operations. The list of marine

mammal species identified in the final

LOF for 1996 includes only those

marine mammals that have been

documented as having been injured or

killed in observer programs, logbook

reports, strandings data, or by fishers’

reports or anecdotal reports. This list

includes only those marine mammals

that have been injured or killed

incidental to commercial fisheries since

1989.

Registration Requirements for Vessels

Participating in Category I and II

Fisheries

Vessel owners participating in

Category I or II fisheries must register

under the MMPA, as required by 50 CFR

229.4. Registration under the MMPA is

conducted on a NMFS Region-specific

basis. Thus, how registration materials

are distributed and the cost of

registration differ between Regions.

Under 50 CFR 229.4, the granting and

administration of Authorization

certificates is to be integrated and

coordinated with existing fishery

license, registration, or permit systems

and related programs, whenever

possible. Alternative registration

programs have been or are being

implemented in the Alaska Region,

Northwest Region, and Southeast

Region. Special procedures and

instructions for registration in these

Regions appear below.

If the granting and/or administration

of authorizations has not been

integrated with state licensing,

registration, or permit systems, vessel

owners may obtain registration forms

from the NMFS Region in which their

fishery operates. NMFS Regional Offices

will endeavor to send these packets to

known participants in Category I or II

fisheries. The registration packet will

typically include an MMAP registration

form, a list of those fisheries in each

region that require authorization in

order to incidentally kill or injure

marine mammals (Category I and II

fisheries), and an explanation of the

new management regime, including

instructions on reporting requirements.

The registration packet may also include

an explanation of the changes in the

fishery classification criteria, guidance

on deterring marine mammals, and a

reminder that intentional lethal takes of

marine mammals are no longer

permitted except under certain specific

conditions.

Vessel owners must submit the

registration form and the $25 fee to the

NMFS Regional Office in which their

fishery operates. NMFS will send the

vessel owner an Authorization

Certificate, program decals, and

reporting forms within 60 days of

receiving the registration form and

application fee.

Procedures for registering in each

NMFS region are outlined in the

following section.

Region-Specific Registration

Requirements for Category I and II

Fisheries

If the granting and administration of

authorizations under 50 CFR 229.4 is

not integrated or coordinated with

existing fishery licenses, registrations,

or related programs, requests for

registration forms and completed

registration forms should be sent to the

NMFS Regional Offices listed in this

notice under ADDRESSES.

Alaska Region (AKR) MMAP

Registration for 1996

Vessel owners in Category I and II

state and Federal fisheries, as well as all

vessel owners with Alaska Department

of Fish and Game commercial vessel

licenses, will receive a registration

packet. Fishers may not register with

other regions for Alaska fisheries. If a

fisher plans to participate in a Category

I or II fishery and does not receive a

registration packet, AKR should be

contacted see ADDRESSES.

Northwest Region (NWR) MMAP

Registration for 1996

Oregon: Under an agreement

developed between NMFS and the

Oregon Department of Fish and Wildlife

(ODFW), information collected for

licensing purposes by the state of

Oregon will be provided to NMFS in

lieu of NMFS requiring a separate

MMAP registration. Vessel owners in

Oregon who apply for and obtain a

Developmental Fisheries Permit to

harvest and land swordfish using drift

gillnet gear (CA/OR thresher shark/

swordfish drift gillnet fishery; Category

I) or a Developmental Fisheries Permit

to harvest and land swordfish or blue

shark using surface longline gear (OR

swordfish/blue shark surface longline

fishery; Category II) will automatically

receive an Authorization for the

incidental take of marine mammals at

the time of permit issuance. Vessel

owners will receive marine mammal

injury and mortality reporting forms

along with their fisheries permit and

Authorization.

The number of available

Developmental Permits for these

fisheries is limited and the information

necessary to fulfill the requirements of

the MMPA is already being collected by

ODFW for Developmental Permit

processing. NMFS will provide limited

support to ODFW for the issuance of the

Authorizations. Processing costs for

ODFW are expected to be minimal, and

hence, MMAP registration fees will not

be charged to Developmental Fishery

permitholders in 1996.

Since the Authorization will be issued

in combination with the Developmental

Fisheries Permit, it is specific to the

permit and will only authorize the

incidental take of marine mammals

during fishing activities conducted

under this permit. Fishers who

participate in the CA/OR thresher shark/

swordfish drift gillnet fishery under

permits to harvest and land in California

must apply for and obtain a MMAP

Authorization Certificate from the

NMFS Southwest Region.

ODFW will provide NMFS with the

following information:

(1) Name, address, and phone number

of the Vessel Owner;

(2) Name, address, and phone number

of the Permit Holder;

(3) Vessel name, U.S. Coast Guard

documentation number, or state

registration (OR) number (as applicable),

and ODFW Developmental Fishery

Permit number for the permitted vessel.

NMFS will incorporate the information

into a national data base of registered

Category I and II fishers.

Washington: Under an agreement

developed between NMFS and the

Washington Department of Fish and

Wildlife (WDFW), information collected

by the State for licensing purposes will

be provided to NMFS in lieu of NMFS

requiring a separate MMAP registration.

Vessel owners in Washington who

apply for and obtain a Puget Sound

Gillnet License to harvest and land

salmon using drift gillnet gear (WA

Puget Sound Region salmon drift gillnet

fishery; includes all inland waters south

of US-Canada border and eastward of

the Bonilla-Tatoosh line—Treaty Indian

fishing is excluded; Category II) will

automatically receive an Authorization

for the incidental take of marine

mammals at the time of license

issuance. Fishers will receive marine

mammal injury/mortality reporting

forms along with their fisheries license

and Marine Mammal Authorization.

The information necessary to fulfill

the requirements of the MMPA is

already being collected by WDFW for

Fishing License processing and NMFS

will provide limited support for the

issuance of the Authorization.

Processing costs for WDFW are expected

to be minimal, and hence, MMAP

registration fees will not be charged to

licenseholders in 1996. Since the
67066 Federal Register / Vol. 60, No. 249 / Thursday, December 28, 1995 / Rules and Regulations

Authorization will be issued in

combination with the Puget Sound

Gillnet License, it is specific to this

license and will only authorize the

incidental take of marine mammals

during fishing activities conducted

under this state-issued license. Fishers

who participate in other Category I or II

fisheries to harvest and land fish in

other States must apply for and obtain

an MMAP Authorization Certificate

from the appropriate NMFS regional

office to cover that activity (see

procedures for the applicable state/

Federal fishing activity).

WDFW will provide NMFS with a

copy of the following information:

(1) Name, address, and phone number

of the Owner of the Designated Vessel;

(2) Name(s), address(es), and phone

number(s) of License Owner, Primary

Operator, and Alternate Operators;

(3) Vessel name, U.S. Coast Guard

documentation number, or state

registration (WN) number (as

applicable), and WDFW registration

number of the designated vessel. NMFS

will incorporate the information into a

national data base of registered Category

I and II fishers.

Southwest Region (SWR) MMAP

Registration for 1996

SWR is in the process of integrating

MMAP registration for Category I and II

fisheries that occur in California with

the California Department of Fish and

Game’s commercial fishery permit

registration program. However, this

integration will not be completed before

1997. For this reason, Category I and II

vessel owners in California will

continue to register with SWR. In

December 1995, vessel owners who

engaged in a Category I or II fishery in

1995 will receive a registration packet in

the mail. Any Category I or II vessel

owner who has not received an

application package by December 1,

1995, may request one from NMFS SWR

(see ADDRESSES).

Southeast Region (SER) MMAP

Registration for 1996

The only state fisheries in Category I

or II that are under SER jurisdiction

occur in North Carolina. State fishers in

North Carolina will receive a

registration packet in the mail. If a fisher

plans to participate in any state or

federal fishery in Category I or II and a

registration packet is not received,

fishers should contact SER (see

ADDRESSES).

Northeast Region (NER) MMAP

Registration for 1996

NER will distribute registration

packets to those fishers on existing lists

of registrants in the MMEP program,

fishing vessel permit holder lists, and

lists of state fishers obtained from New

Jersey, Delaware, Maryland, and

Virginia. Fishers participating in

Category I or II fisheries should contact

NER (see ADDRESSES).

Extension of Effective Period for Current

List of Fisheries and Extension of

Current Registrations of Vessel Owners

The preamble to the final regulations

implementing section 118 stated that

vessel owners holding a valid

Exemption Certificate under section 114

will be deemed by NMFS to have

registered under section 118 through

December 31, 1995. Because it has taken

longer than expected to publish the

MMPA final LOF for 1996, the current

MMPA LOF will remain in effect until

March 1, 1996, and vessel owners

holding a valid Exemption Certificate

under section 114 will be deemed to

have registered under section 118 until

March 1, 1996. This extension will also

allow vessel owners sufficient time to

register under section 118 of the MMPA.

In general, NMFS recommends that

completed registration forms be

submitted as soon as possible in

advance of fishing in order to ensure

that a valid Authorization Certificate

has been received.

Extension of Interim Permit for the

Incidental Taking of Threatened or

Endangered Marine Mammals

On August 31, 1995, NMFS issued a

single interim permit, valid through

December 31, 1995, to certain vessel

owners currently registered in Category

I and II commercial fisheries for the

incidental, but not intentional, taking of

marine mammal stocks listed as

threatened or endangered under the

Endangered Species Act (60 FR 45399).

Individual permits for 1996, 1997, and

1998 will be issued in conjunction with

the issuance Authorization Certificates

under section 118 of the MMPA.

Because the current MMPA LOF will

remain in effect until March 1, 1996,

and vessel owners holding a valid

Exemption Certificate under section 114

will be deemed to have registered under

section 118 until March 1, 1996, NMFS

hereby extends the interim permit until

March 1, 1996.

Reporting Requirements for All Vessels

Vessel owners or operators in

Category I, II, or III fisheries must

comply with 50 CFR 229.6 and report

all incidental mortality and injury of

marine mammals during the course of

commercial fishing operations to NMFS

Headquarters or appropriate NMFS

Regional Office. ‘‘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 will be considered

injured and must be reported.

Instructions for submission of reports is

found in 50 CFR 229.6(a).

Responses to Comments

Many comments were lengthy and

raised many points of concern. Key

issues and concerns are summarized

and responded to as follows:

Comments on Fisheries in the Alaska

Region

Comment 1: Incidental and

intentional mortality of marine

mammals appear to be under reported

for the Alaska Yakutat salmon set gillnet

fishery, indicating the fishery should be

in Category I instead of Category II. It is

strongly recommended that an observer

program be established in Yakutat and

Dry Bay, so that more reliable

information on intentional killing of

marine mammals might be available.

Response: The intentional lethal take

of marine mammals was made illegal by

the 1994 amendments to the MMPA,

except in situations where it is

imminently necessary in self defense or

to save the life of a person in immediate

danger. Since intentional lethal takes

are no longer authorized, NMFS cannot

use rates of this type of take to

categorize fisheries for the section 118

regime. Incidental, but not intentional,

marine mammal serious injury or

mortality rates, are used for categorizing

fisheries for this final LOF. With the

information available to NMFS at this

time, the incidental serious injury and

mortality rate of marine mammals in the

Yakutat set gillnet fishery places them

in Category II. Fishery categories are

evaluated each year, and as more

information becomes available, it will

be used in these evaluations.

Comment 2: The report of low injury

rates to humpback whales and Steller

sea lions in many fisheries appears to be

due to a lack of data rather than to a

solid understanding of the rate of injury.

Response: NMFS agrees that there is

a lack of data regarding serious injury

and mortality rates for many fisheries in

Alaska. Only three fisheries are

regularly observed for marine mammal

interactions, and only three other

fisheries have ever been observed; one

for two seasons and two others for one

season each. NMFS is currently

evaluating observer needs in the region

and intends to formulate and implement

a long-term plan for observer coverage

of Alaska fisheries. The extent of future
Federal Register / Vol. 60, No. 249 / Thursday, December 28, 1995 / Rules and Regulations 67067

coverage will depend on the availability

of funds.

Comment 3: The Bering Sea and the

Aleutian Islands trawl fisheries should

be separated for the purpose of setting

categories. Many of the commercial

fishing quotas are set separately for the

Bering Sea and Aleutian districts and

the ecosystems have somewhat different

characteristics. There is no justification

for declaring both areas the same fishery

for purposes of categorization if marine

mammal interactions occur in only one

area. To classify all the Bering Sea and

Aleutian trawl fisheries as the same

category for marine mammal

interactions that occur in only one target

fishery or in only one portion of the area

is arbitrary and capricious and inflicts

unwarranted regulations on a large

number of vessels.

Response: Splitting the fishery into

smaller statistical areas would isolate

the portions of those fisheries that are

responsible for marine mammal takes.

However, because the Bering Sea and

Aleutian Islands statistical areas are

contiguous and most participants fish in

both areas, categorizing the two areas

separately would have little practical

value and would make management

difficult.

Comment 4: Being classified as a

Category I or II fishery imposes serious

reporting requirements on many small

business entities.

Response: Since the publication of the

final implementing regulations for

section 118 of the MMPA, on August 30,

1995, logbooks of fishing effort and

marine mammal interactions are no

longer required to be kept and turned in

annually. The reporting requirements

now in effect have been reduced to

submitting a one-page report on a form

supplied by NMFS within 48 hours of

returning from the fishing trip (or from

tending non-vessel gear) in which an

incidental injury or mortality to a

marine mammal occurred. Thus, the

reporting requirements are limited to

occurrences of an injury or mortality to

a marine mammal in the course of

fishing operations.

Comment 5: Although commenters

supported the use of scientific evidence

to determine the total allowable fishery

induced mortality for a marine mammal

stock, serious questions were raised

regarding the data used to classify the

Bering Sea/Aleutian Island (BSAI)

groundfish trawl fishery. The take of

two killer whales during the period

1990–93 resulted in moving BSAI trawl

fisheries from Category III to Category II.

However, the 1995 marine mammal

stock assessment for killer whales

indicates that the minimum population

estimate is based on a direct count, with

no available correction factors.

Commenters also indicated that no

reliable data on the population

abundance of killer whale stocks were

available and neither was a reliable

estimate of maximum net productivity

rate. Therefore the use of overly

conservative measures in setting the

acceptable level of fishing induced

mortality should be discouraged. Better

and more relevant data are needed

before reclassifying all BSAI trawl

fisheries as Category II.

In the NMFS stock assessment report

(SAR) for the Alaska region, the killer

whale chapter is divided into two

sections, resident (759 animals) and

non-resident (245 animals) populations.

The total population size is 1004

animals. The total killer whale take is

two animals—the population from

which each was taken is listed as

unknown. A commenter calculated the

PBR level based on the entire

population (1004 × 0.02 × 0.5) which

resulted in a PBR level of 10.4 animals.

The annual take as reported in the SAR

is 0.8 animals per year. This number

(0.8) divided by 10.4 animals (PBR)

results in a take of 7.69 percent of PBR,

not 10 percent as stated in the proposed

LOF. It should be noted that the two

sections of the killer whale chapter each

calculate PBR level separately, 7.6 for

resident killer whales and 2.4 for the

non-resident population. The proposed

LOF notice does not say which number

was used to move the BSAI trawl fishery

into Category II. Obviously, the killer

whale population was not considered as

a whole.

Response: NMFS believes that

calculating the percentages of the PBR

level separately for the two killer whale

stocks is the most risk-averse approach.

The BSAI groundfish trawl fishery

will be classified in Category III. This

fishery was proposed to be classified in

Category II in the proposed LOF based

on serious injuries and mortalities of

killer whales. However, because the

level of serious injury and mortality to

killer whales in this fishery is low (0.8

to 1.4 animals per year), the fishery is

observed with over 60 percent observer

coverage, and the population estimates

for both the resident and transient

stocks of killer whales are direct counts

of known individuals and thus

underestimate the total stock size, it is

likely that the serious injury or

mortality of approximately one killer

whale per year is not adversely

impacting the population. In addition,

the final SARs for resident and transient

killer whales notes that these stocks are

not considered to be strategic.

If information becomes available that

indicates that this observed fishery has

excessive incidental serious injuries or

mortalities from killer whale stocks or

other stocks of marine mammals, it will

be reclassified as necessary.

Comment 6: The August 9, 1994, draft

stock assessment shows ‘‘zero’’ Pacific

coast fishery mortalities of humpback

whales. Yet the current proposed LOF

would reclassify the Southeast Alaska

salmon purse seine fishery from

Category III to Category II, because

‘‘total known humpback whale

mortality and serious injury level across

all fisheries exceed 10 percent of this

stock’s PBR, and the known serious

injury level for this fishery is 0.4

animals per year.’’ The EA implies that

the take in this fishery was documented

through a single voluntary report, but

does not describe the nature of the

interaction (i.e., mortality,

entanglement, etc). According to the

proposed LOF, the Southeast Alaska

salmon drift gillnet fishery also has a

known mortality and serious injury rate

of 0.13 animals per year, but the EA

makes no mention of any humpback

takes by this fishery.

Response: The reports of humpback

whale mortalities in the Southeast

Alaska purse seine fishery were

identified after the publication of the

August 9, 1994 draft stock assessments.

There were two mortalities of humpback

whales in this fishery, one in 1989 and

one in 1994. In both cases, individual

whales became entangled in purse seine

nets being actively fished. One whale

was entangled in the bunt and

subsequently in the net. The second

whale became entangled in the lead line

and then wrapped in the net as it tried

to free itself. The fishers involved tried

to free the whales, but were

unsuccessful. Data on humpback whale

entanglements in the Southeast Alaska

salmon drift gillnet fishery came from

stranding network data, but, in addition,

there have been several cases where

fishers have notified the Coast Guard or

NMFS, and NMFS personnel assisted

with freeing the whales. This kind of

cooperation is greatly appreciated by

NMFS.

Comment 7: One commenter was

disturbed by the weight one

unsubstantiated anecdotal report of a

marine mammal take was given in

determining the category status of the

Southeast Alaska salmon purse seine

fishery and believed the procedures

used to document and authenticate this

report were seriously lacking. The

commenter asserted that while NMFS

may be erring on the side of caution

because humpback whales are a

strategic stock and because of a low

population estimate, a low estimate

does not validate an unconfirmed
67068 Federal Register / Vol. 60, No. 249 / Thursday, December 28, 1995 / Rules and Regulations

report. Based on the commenter’s

experience, mortalities and serious

injuries to humpback whales due to

interactions with purse seine gear are

extremely rare, and seiners will expend

a great deal of effort to avoid any

interaction with whales because of

damage to the gear and a substantial loss

of fishing time. The commenter believed

that a Category III listing is more

appropriate for this fishery. Even if the

Southeast Alaska salmon purse seine

fishery were to remain in Category III,

NMFS could still use alternative

monitoring methods to acquire reliable

information on the fishery’s humpback

interactions.

Response: Fisheries are classified

based on the annual number of

incidental serious injuries and

mortalities relative to the PBR level for

each marine mammal stock. Thus, a

fishery could be placed in Category I or

II as a result of a high mortality level or

a low population abundance estimate,

or some combination of the two. The

weight that any number of serious

injuries or mortalities in a given marine

mammal stock has on categorization of

fisheries is directly related to the PBR

level for that stock. In the case of the

central North Pacific stock of humpback

whales, the PBR level is 2.8 animals.

There were three mortalities reported

for all fisheries between 1989 and 1994.

In a Tier I categorization evaluation, this

calculates to a rate of 0.5 animals per

year, or 17.9 percent of the PBR level.

Because this rate is higher than 10

percent of the PBR level, the effects of

individual fisheries must be evaluated.

There were two reported mortalities to

humpbacks in the Southeast Alaska

purse seine fishery, one in 1989 and one

in 1994. The mortality rate for this

fishery calculates to 0.33 animals per

year, or 11.9 percent of the PBR level.

Because this rate is greater than 1

percent, but less than 50 percent of the

PBR level, the fishery is placed in

Category II.

NMFS does not consider these

Category III reports to be unreliable and

has full confidence in their veracity.

These data were reported by a crew

member aboard the vessel(s) that

interacted with the whales. The reports

have been given no special treatment or

additional weight.

NMFS agrees that the mortality and

serious injury rate of humpbacks in the

Southeast Alaska salmon purse seine

fishery were low. However, the annual

rate of serious injury and mortality in

this fishery does fit the definition of a

Category II fishery. If the categorization

criteria were ignored, and the fishery

was placed in Category III, NMFS would

have no mechanism except for

voluntary cooperation of Category III

fishers, short of an emergency rule, to

monitor the fishery interactions with

humpbacks. Because the incidental

serious injury or mortality of a

humpback whale in a purse seine net is

a ‘‘no-win’’ situation for all parties

concerned, NMFS would like to work

with the fishing industry to understand

the nature of these interactions and

develop means for fishers to avoid them,

as well as effective responses if an

interaction does occur.

Comment 8: Using the PBR level to

classify fisheries has advantages, but it

is only as accurate as the data being

used. It is our understanding that the

population estimate for humpbacks is

12 years old and is based on a survey

done in Hawaii. How often will NMFS

update its population estimates for

strategic stocks?

Response: Stock assessment reports

(SAR) for strategic stocks are required

by the MMPA to be reviewed annually.

Additional data for population estimates

will be gathered according to the

greatest need and subject to the

availability of funds.

NMFS acknowledges that the

population estimates for the Central

North Pacific stock of humpback whales

are problematic, and intends to address

them in the next couple of years through

new analyses of recent data and

population surveys.

Comment 9: The Alaska Peninsula/

Aleutian Island salmon drift gillnet

should be classified in Category III and

not in Category II as proposed. The

rationale presented for a Category III

categorization is that the drift gillnet

fishery takes 1.8 percent of the PBR

level for Dall’s porpoise, although the

Alaskan Dall’s porpoise stock is one of

the few stocks for which a

determination has been made that the

optimum sustainable population level is

met. The PBR level is calculated to be

1,537 and the SAR indicates total

estimated fishery mortality is 41 per

year, well less than 10 percent of the

PBR level. This, by itself, should result

in a Category III classification. Further,

using extrapolated data, the estimated

mortality rate for the Alaska Peninsula

drift gillnet fishery is 1.8 percent, just

over the Tier 2 threshold of 1 percent of

the PBR level for a Category II

classification.

Response: NMFS agrees that

classification of commercial fisheries

should be based on reliable information.

The most reliable source for this

information are observer programs,

which can be employed for fisheries

classified in Category I or II but can only

be employed for a Category III fishery if

emergency regulations are in effect.

Because of this statutory limitation,

NMFS is uncomfortable with classifying

a fishery as Category III if data exist that

suggest the marine mammal incidental

take level may be above the relevant

threshold. The Alaska Peninsula/

Aleutian Islands salmon drift gillnet

fishery, like other salmon drift gillnet

fisheries in Alaska, has documented

takes of a variety of marine mammal

stocks (Dall’s porpoise, harbor porpoise,

harbor seals, northern fur seals, walrus

and unidentified small cetaceans).

Because of inadequate observer coverage

across fisheries in Alaska, NMFS

considers the current information on

take levels for many stocks to be

underestimates. Dall’s porpoise serious

injury and mortality is documented in

the logbooks from six fisheries. Based

on those levels, NMFS believes that if

more accurate observer information

were available, the level of Dall’s

porpoise takes would exceed the 10

percent threshold across all fisheries. In

that case, the Alaska Peninsula drift

gillnet fishery, with its Dall’s porpoise

take level of 1.8 percent the PBR level,

would be classified in Category II.

Additional support for placement of

this fishery in Category II is based on

low levels of harbor porpoise serious

injuries and mortalities documented in

logbook reports submitted in this

fishery. Because the documented annual

serious injury and mortality of harbor

porpoise in Alaska is greater than the 10

percent threshold level across all

fisheries, and because logbook reports

represent an underestimate of the total

number of serious injuries and

mortalities in a fishery, the total impact

to the harbor porpoise population may

be above the 1 percent of PBR level that

would cause this fishery to be classified

as Category II.

Comment 10: The rationale regarding

the proposed Category II classification

of Alaska Peninsula set gillnet fishery is

weak. It states that this fishery takes a

substantial number of marine mammals.

The proposed LOF does not discuss

what data suggest that levels of

mortality and serious injury may exceed

10 percent of each stock’s PBR level if

observer information were available,

why it is to be expected that incidental

mortality may exceed certain levels, or

why this fishery would interact with

similar species as do set gillnet fisheries

in other areas. In this case, classification

is too speculative and supports

classification of the Alaska Peninsula/

Aleutian Islands salmon set gillnet

fishery in Category III.

Response: Because this fishery has

documented mortalities and serious

injuries to marine mammals at an

unknown rate, has never been observed,
Federal Register / Vol. 60, No. 249 / Thursday, December 28, 1995 / Rules and Regulations 67069

and uses a gear type with the potential

to take various species of marine

mammals, NMFS believes that placing

this fishery in Category II is warranted

until additional information can be

collected. When more reliable

information becomes available, the level

of marine mammal mortality and

serious injury in this fishery will be

reassessed. (See response to Comment 9

regarding the level of harbor porpoise

serious injuries and mortalities in this

fishery.)

Comment 11: One commenter noted

that there is no mention of humpback

whale interactions with the Prince

William Sound salmon drift gillnet or

the AK Peninsula/Aleutians salmon

drift gillnet fisheries. The commenter

believed that this species may have been

inadvertently omitted from the list of

species involved in interactions with

these fisheries.

Response: NMFS has no information

regarding any humpback mortalities or

serious injuries in the Prince William

Sound or Alaska Peninsula/Aleutian

Islands drift gillnet fisheries.

Comment 12: The proposed LOF

states that the classification of the

Southeast Alaska salmon drift gillnet

fishery is based on observer and

strandings data and does not mention

logbook data. The stock assessment for

humpback whales mentions that

logbook data from salmon and herring

gillnet fisheries indicate that

humpbacks are entangled. The

commenter presumed that since the

Southeast Alaska salmon drift gillnet

fishery is the only gillnet fishery with

humpbacks listed as taken, it is logbook

reports from this fishery that led to the

statement in the SARs. Given that

logbooks are known to under report

interactions, the commenter believed

that this fishery might be more

appropriately classified as a Category I

fishery.

Response: Stranding data is used to

document humpback whale interactions

with the Southeast Alaska salmon drift

gillnet fishery. There are no reported

humpback mortalities or serious injuries

for this fishery in the logbook data. The

currently available data support placing

this fishery in Category II based on

humpback whale and harbor porpoise

mortalities. The annual level of harbor

porpoise mortality and serious injury in

this fishery based on logbook reports

was 3.25 per year, or 1.3 percent of the

PBR level. There were no humpback

mortalities or serious injuries reported

in logbooks for drift gillnet fisheries, but

there were Category III reports from

fishers indicating mortalities occurred

in 1989 and 1994, not 1993 and 1994 as

stated in the SAR.

Comment 13: Drift and set gillnet

fisheries in Cook Inlet, Yakutat, Alaska

Peninsula/Aleutian Islands, Kodiak

Island and Bristol Bay are not listed as

interacting with humpback whales.

Given the information in the SARs that

logbook data from salmon and herring

gillnet fisheries indicate that

humpbacks are entangled, these

fisheries should be considered to

interact with this species. It also seems

likely that these fisheries all interact

with harbor porpoise. The commenter

noted that a NMFS Federal Register

notice dealing with harbor porpoise

acknowledged that wherever harbor

porpoise and gillnets coincide, harbor

porpoise are caught. Further, in the

Federal Register notice (60 FR 45399)

that lists fisheries permitted to take

endangered and threatened species

under section 101(a)(5)(e) of the MMPA,

these set gillnet fisheries are specifically

permitted to take Steller sea lions,

although no Steller sea lions are listed

in the LOF as interacting with these

fisheries. Also, the Southeast Alaska

salmon purse seine, Alaska herring roe

food/bait purse seine fisheries and

salmon troll do not have humpbacks

listed as a species with which it

interacts, even though the SARs indicate

they do interact. Finally, there are

fisheries with ‘‘none documented’’

listed as their interactions, but the

commenter believes that analogy to

other fisheries might indicate otherwise.

Response: The list of marine

mammals that interact with each fishery

has been revised. Only marine mammal

species that have incurred documented

mortalities and injuries in a given

fisheries are included in this list.

Analogy is not used to determine which

stocks interact with a particular fishery.

There may be discrepancies between

the list of marine mammal species

identified in the LOF published

pursuant to section 118 and the list

published pursuant to section

101(a)(5)(E), due to an attempt by NMFS

to issue interim permits to all fisheries

that may have interactions with marine

mammal species listed under the

Endangered Species Act, while the

section 118 LOF includes only those

marine mammal species or stocks with

documented injuries and mortalities

incidental to a particular commercial

fishery.

Comment 14a: The Alaska

Kuskokwim, Yukon, Norton Sound,

Kotzebue salmon gillnet fisheries are

acknowledged as likely to have

occasional interactions with marine

mammals, yet have been placed in

Category III because these interactions

are believed to ‘‘result in directed takes

for subsistence purposes.’’ Because

these fisheries do not have observer data

available, and given that they interact

with harbor porpoise and beluga

whales, the commenter believes these

fisheries should be placed in Category II

and be subject to observer coverage.

Response: NMFS believes that

virtually all takes of marine mammals

related to these fisheries are actually

directed takes by Alaska Natives for

subsistence use. Any marine mammals

that are taken incidentally in these

fisheries are likewise retained for

subsistence use by Alaskan Natives.

NMFS is currently developing cooperative agreements with Alaska

Native organizations for the

management of marine mammals in

Alaska used for subsistence purposes.

The number of animals taken in the

above fisheries and used for subsistence

will be considered through comanagement agreements rather than

under section 118.

Comment 14b: The Alaska salmon

troll and sablefish longline/set line

fisheries intentionally killed orcas in the

past, and it is optimistic to believe that

these intentional killings will cease

simply because they are now illegal.

The commenter believes that these

fisheries warrant further monitoring and

should be placed in Category II.

Response: See the response to

Comment 1 for explanation of how

intentional lethal takes will be

addressed by NMFS. NMFS does not

have data documenting incidental

mortalities or serious injuries of killer

whales for these fisheries.

Comments on Fisheries in the Northwest

Region

Comment 15: The Columbia River

salmon fishery is appropriately placed

in Category III.

Response: NMFS agrees.

Comment 16: The California/Oregon/

Washington (CA/OR/WA) thresher

shark/swordfish/blue shark drift gillnet

fishery should be renamed in the final

LOF to accurately reflect the target

species and the current state licensing

practices for the fishery. The

Washington portion of the fishery

should be deleted since there is no

Washington licensed swordfish gillnet

fishery.

Response: The CA/OR thresher shark/

swordfish drift gillnet fishery has been

renamed. The reference to blue shark

has been removed because this species

may not be landed in Oregon and is not

a target species in the California fishery.

The reference to Washington has been

removed because this fishery does not

occur in waters off Washington, nor

does Washington State permit the
67070 Federal Register / Vol. 60, No. 249 / Thursday, December 28, 1995 / Rules and Regulations

harvest or landing of either thresher

shark or swordfish.

Comment 17: NMFS should retain

commercial fisheries classified in

Categories I or II under the Interim

Exemption on the basis of intentional

lethal take in those categories until it

has been demonstrated that the

intentional lethal takes have ceased.

Response: Because intentional lethal

takes of marine mammals are now

illegal, except in cases of self defense or

in order to save the life of a person in

imminent danger, and because fisheries

must be categorized based on incidental

serious injury or mortality, commercial

fisheries will not be classified on the

basis of the number of intentional lethal

takes. In addition, NMFS does not

believe that continuing registration

requirements for fisheries that have

been moved to Category III based on the

available information will have any

effect on the degree of compliance with

the intentional lethal take prohibition.

To the extent that reporting

requirements are consistent for all

fisheries, regardless of category, NMFS

anticipates that fishers reports will

continue to provide qualitative

information as an indicator of incidental

take levels. This qualitative information

can be useful in determining the need

for more intensive monitoring. NMFS

will continue to investigate illegal takes

of marine mammals regardless of

whether vessels are registered.

Comment 18: No information on

incidental takes of marine mammals is

available for the Washington/Oregon

(WA/OR) herring, smelt, shad, sturgeon,

bottom fish, mullet, perch, rockfish

gillnet fishery. A lack of information

does not mean that no serious injuries

or mortalities have occurred. Analogy

with other gillnet fisheries could justify

placing this fishery in Category II.

Response: As indicated in the EA,

non-salmon gillnet fisheries in the

Northwest, (i.e., WA/OR herring, smelt,

shad, sturgeon, bottomfish, mullet,

perch, and rockfish gillnet) are

predominantly in-river fisheries. NMFS

is not aware of any information

indicating that incidental takes of

marine mammals are occurring in these

fisheries.

Comment 19: Because salmon net pen

and ranch fisheries, and the California/

Oregon/Washington (CA/OR/WA)

salmon troll fisheries have histories of

lethal takes of pinnipeds, these fisheries

should remain in Category II until

NMFS receives documentation that the

lethal takes have ceased.

Response: The incidence of

intentional lethal take was not used for

categorizing fisheries under section 118

of the MMPA. (See response to

Comment 17.)

Comment 20: Serious injuries and

mortalities of humpback whales caused

the Southeast Alaska salmon purse

seine fishery to be proposed for

Category II. By analogy, the Washington

(WA) salmon purse seine should also be

placed in Category II and the humpback

whale should be listed in the LOF as an

interacting species.

Response: There are no records of

interactions between the Washington

salmon purse seine fishery and

humpback whales. Humpback whales

are only rarely sighted in the inland

waters of Washington where the fishery

operates.

Comment 21: The humpback whale

should be listed in the LOF as an

interacting species for the Washington/

Oregon/California (WA/OR/CA)

groundfish, bottomfish longline/set line

fishery, and this fishery should be

considered for classification in Category

II.

Response: There are no records of

humpback whale interactions with this

fishery; thus this fishery is placed in

Category III.

Comment 22: Analogy to the

intentional lethal takes that occur

during commercial net pen fisheries

should be used to place salmon

enhancement rearing pens in Category

II.

Response: Because salmon

enhancement rearing pens have not

been considered a commercial fishing

operation, in the past they have not

been subject to requirements of section

118. If NMFS were to consider this a

commercial fishery, analogy would

indicate correct placement of salmon

enhancement rearing pens in Category

III, because interactions would be

similar to commercial net pens without

any active deterrence methods. As

indicated in the EA, the incidence of

mortality or serious injury resulting

from gear interactions with net pens is

less than one percent of the PBR for the

stocks that interact with net pen fishery

operations (harbor seals and California

sea lions).

Because enhancement rearing pens

are typically not considered commercial

fisheries, NMFS will consider proposing

to remove this fishery from the LOF in

a future proposed LOF.

Comments on Fisheries in the Northeast

and Southeast Regions

Comment 23: The mid-water squid

fishery defined in the proposed LOF

does not exist. It’s a bottom trawl

fishery, and not mid-water. It should not

be lumped with other mid-water gear.

Response: Mackerel, butterfish, and

squid are fished by trawl in a similar

manner, with minimal modifications to

gear. A mid-water squid trawl fishery

does exist, although it is not the

preferred fishing method for this species

at this time. NMFS agrees that ‘‘Atlantic

mid-water trawl’’ may not be an

accurate description of the fishery. In

this final LOF, this fishery is renamed

‘‘Atlantic Squid, Mackerel, Butterfish

Trawl’’ with no reference to the depth

at which the gear is fished. This fishery

is placed in Category II based on serious

injuries and mortalities of pilot whales

recorded in fishers’ logbooks. In

addition, and regardless of the trawl

method used, a potential for incidental

interactions between this fishery and

marine mammals exists, because squid,

mackerel, and butterfish are important

prey species for marine mammals.

Comment 25: The number of marine

mammal mortalities and serious injuries

as published in the proposed LOF and

the method used to extrapolate raw data

into a total estimated take needs to be

explained, especially with regard to

pilot whale mortalities in the longline

fishery. In addition, the source of the

data indicating humpback whale and

minke whale interactions with the

longline fishery should be cited. The

number of participants listed in Table 2,

830, is a considerable overestimate of

the total number of vessels in the fleet.

If this information were used to

extrapolate the observer data, the total

number of takes in the fishery would be

greatly overestimated. The Atlantic

Ocean, Caribbean and Gulf of Mexico

swordfish, tuna, and shark longline

fishery should not be listed as a

Category I fishery but should remain in

Category II.

Response: NMFS observers recorded

one mortality of a pilot whale in

coverage scheduled between late 1992

and 1993. The mortality occurred in the

U.S. Atlantic Ocean. In addition, 24

non-lethal interactions (2 injuries and

22 unspecified interactions) of pilot

whales have been observed in the

fishery. It is unknown how many of

these animals eventually died due to

injuries resulting from entanglement.

Observed kills of other species include

one Risso’s dolphin in 1993, which

occurred in the Gulf of Mexico.

The annual level of serious injury and

mortality for this fishery was not

calculated by extrapolating observed

serious injuries and mortalities to the

entire fishery using the number of

permitted vessels. Rather, it was

calculated by extrapolating observed

serious injury and mortality in the

whole fishery using the total number of

sets reported in the mandatory fishing
Federal Register / Vol. 60, No. 249 / Thursday, December 28, 1995 / Rules and Regulations 67071

vessel logbooks. The pilot whale

mortality was not reported as coming

from the long- or short-finned stock;

however, the estimated total mortality of

pilot whales exceeds the 50 percent of

the PBR threshold for either long-finned

or short-finned pilot whales. Therefore

classification in Category I is warranted.

In addition, section 114 Marine

Mammal Exemption Program (MMEP)

logbook data support a Category I

classification. Injuries and mortalities

reported in the MMEP from 1990

through 1992 indicate that an average of

nine pilot whales are injured or killed

in longline gear each year. A variety of

other marine mammal species,

including but not limited to bottlenose

dolphins, harbor porpoise, Risso’s

dolphins, and unidentified large

cetaceans, have also been recorded as

injured or killed. NMFS has also

received sighting reports (both at sea

and stranded) of whales carrying gear

which may be attributable to the pelagic

longline fishery. Species listed in these

reports include humpback whale, sperm

whale, long-finned pilot whale, and

minke whale.

Comment 26: The Rhode Island,

southern Massachusetts (to Monomoy

Island), and New York Bight (Raritan

and Lower New York Bays) inshore

gillnet fishery, Long Island Sound

inshore gillnet fishery, Delaware Bay

inshore gillnet fishery, and North

Carolina inshore gillnet fishery are

currently, and incorrectly, listed as

Category III fisheries. These fisheries

interact on a sufficiently high level with

humpback whales, minke whales,

bottlenose dolphins and harbor porpoise

that they should be moved to Category

II.

Response: These inshore and bay

fisheries were divided out from other

mid-Atlantic coastal gillnet fisheries,

because there were no observed takes in

these areas, and because it is believed

that there is a low probability of

interaction. In the last several years, an

interaction problem with small

cetaceans has been identified in the

mid-Atlantic based on observations of

stranded animals. It is possible to

identify evidence of gillnet interactions

from a stranded specimen, but it is not

yet possible to determine conclusively

which gillnet fishery is responsible for

the interaction unless the gear is

recovered with the carcass, which is not

usually the case. Based on the

geographic distribution of strandings,

marine mammal high-use areas, and

concentrations of fishing gear, NMFS

believes that the gillnet interactions in

the mid-Atlantic occur largely in areas

outside the ‘‘inshore’’ fishery division

lines. Placement of these inshore

fisheries into Category II is not

warranted at this time. However, recent

information (1994–1995) indicates that

marine mammal incidental serious

injury and mortality in some of these

inshore fisheries may be higher than

originally believed. These fisheries will

be re-evaluated based on an

examination of more recent stranding

data when developing the next

proposed LOF.

Comment 27: The pair trawl fishery

should be renamed, as it occurs between

Cape Hatteras and the Hague Line, and

not in the Caribbean Ocean, the Gulf of

Mexico, or off the Grand Banks of

Newfoundland. The references to sharks

should also be deleted from the name of

the fishery, as sharks are not targeted

and are, in fact, minimally represented

in the bycatch. In addition, the number

of participants in the fishery needs to be

updated, as the number included in the

proposed LOF is incorrect.

Response: NMFS agrees that the

fishery should be renamed. Therefore,

the fishery is now listed as ‘‘U.S.

Atlantic Large Pelagics Pair Trawl’’ and

the number of participants has been

updated in the final LOF.

Comment 28: The average annual

serious injury and mortality

(extrapolated from observer data, 1992–

93) of marine mammals incidentally

taken in the pair trawl fishery appears

to be highly inflated when compared to

actual data, leading constituents to

suspect that the data used to compile

this information were not correct. Data

from 1994 should be used in order for

the LOF to be based on the best

available information. Members of the

fishing community have worked to

change those aspects of the pair trawl

fishery to reduce the number of marine

mammal takes that occur incidental to

the fishery, and none of those changes

will have any significance in this final

LOF. It is unfair to impose additional

regulations on the fishing community

without using every piece of data

collected over all the years.

Response: See the response to

Comment 25 for an explanation of how

observer data are extrapolated to

provide an annual estimate of the total

serious injuries and mortalities of

marine mammals in a commercial

fishery.

Development of the new fisheries data

reporting and analysis systems for the

NMFS pair trawl observer program is

ongoing. Observed serious injuries and

mortalities from the pair trawl fishery in

1994 cannot be extrapolated to total kill

numbers until the fishing effort data are

available for the calculation. Data from

the first half of 1994 were collected but

were not available in the form necessary

for the calculations used in developing

the proposed LOF and cannot be

finalized in time to allow the final LOF

to be published before January 1, 1996.

These data will be available for future

consideration in making any necessary

revisions for the next proposed LOF.

Although serious injury and mortality of

marine mammals incidental to the pair

trawl fishery may have been below

average in 1994, preliminary analysis of

serious injury and mortality levels for

1995 suggests a bycatch increase and

indicates an increase in the number of

marine mammal species involved.

Comment 29: Data on marine mammal

incidental mortalities and serious

injuries from the 1994 pair trawl fishery

have been made available to NMFS

through reports and presentations in

public forums. Because observer

coverage was very high in 1994, this

data set represents the most complete

information for the pair trawl fishery to

date. This information should be used to

classify the pair trawl fishery.

Response: NMFS agrees that observer

coverage was most intensive in 1994.

However, incorporation of non-NMFS

data presented in the aforementioned

report would not result in reclassifying

the pair trawl fishery as Category II. For

example, if the non-NMFS information

on the number of observed mortalities of

the offshore stock of bottlenose dolphin

and common dolphins are assumed to

approximate the actual values,

averaging these values with NMFS

mortality and serious injury estimates

from 1992 and 1993 results in average

estimated serious injuries and

mortalities of 53 and 22 animals,

respectively. Both values exceed 50

percent of the PBR level for these stocks.

In addition, the serious injury and

mortality levels in 1995 seem to have

increased substantially over the 1994

levels. To date, 25 marine mammals

have been observed seriously injured or

killed, including three dolphin species

and long-finned pilot whales.

Classifying this fishery as Category I is

warranted.

Comment 30: In order to categorize a

particular fishery, it is imperative that

NMFS know how many vessels there are

and where they fish. It is incumbent

upon NMFS to make this number reflect

reality to the best of its ability, because

the extrapolation will make an

erroneous result that could have

extraordinary consequences. For

example, for the pelagic longline

fishery, NMFS has used 830 vessels to

extrapolate the estimate of the ‘‘takes’’

for the fishery. According to the NMFS

database, there were only 147 vessels

that landed more than one swordfish in

each of 5 or more months in 1993.
67072 Federal Register / Vol. 60, No. 249 / Thursday, December 28, 1995 / Rules and Regulations

Response: NMFS appreciates the

information regarding the total number

of participants in the pelagic longline

fishery. The numbers in the ‘‘Estimated

number of vessels/persons’’ column in

the proposed LOF sometimes

represented the total number of

permitted vessels/persons, and

sometimes represented the total number

of active vessels/persons. Because the

number of active vessels/participants is

a more valid indicator of the total effort

in a fishery, this was included in the

proposed LOF when that information

was available. If the number of active

participants was not available, the

number of, or an estimate of, the

permitted participants was used.

The number of vessels in the longline

fishery was originally estimated based

on the number of swordfish permits

issued. There were 361 vessels reporting

swordfish catch in 1994. (See response

to Comment 25 regarding extrapolation

of observer data.)

Comment 31: A more appropriate

method of calculating effort for the

fishery is the number of hooks used. If

the reported number of hooks were used

for calculating this estimate, NMFS

must recognize that a hook in the Gulf

of Mexico and a similar hook at the

Grand Banks have a very different

likelihood of interacting with a

particular marine mammal species.

NMFS should investigate splitting the

longline fleet into different statistical

areas, preferably using the five areas

used by the fisheries statisticians.

It would be especially important to

separate the fishery into northern and

southern components, as many of the

interactions occur in the northern

portion of the fishery. For instance, it

would be unjustified to severely restrict

or close the yellowfin tuna fishery in the

Gulf of Mexico if a northern marine

mammal stock’s PBR is taken. This

approach would be consistent with the

approach used for some of the

Northwest Pacific fisheries that catch

the same Pacific species with the same

fishing gear but are separately

categorized by the bays, inlets, sounds,

etc., where they fish. Despite the effort

involved to consider the variables and

complexity of this fishery, NMFS must

not take the ‘‘easy’’ way by leaving this

wide-ranging fleet vulnerable to a

complete closure that may not be

warranted.

Response: NMFS agrees that the

pelagic longline data should be

analyzed to determine whether the

fishery could be separated into different

statistical areas. The most logical

division based on the demographics of

the fishery may be into a U.S. Atlantic

component and a U.S. Gulf of Mexico

component. This will be investigated

during the development of the next

proposed LOF.

The Take Reduction Teams that will

be established pursuant to the 1994

MMPA amendments will consider all

fisheries known to interact with each

strategic marine mammal stock. NMFS

anticipates that the teams will make

recommendations on whether or not to

proceed with a geographic partitioning

of the fishery. In addition, it does not

necessarily follow that the yellowfin

tuna fishery in the Gulf of Mexico

would be closed if a northern marine

mammal stock’s PBR is taken. Closures

designed to protect marine mammals

would most likely be designed to

encompass areas where those marine

mammals occur. For example, closures

restricting groundfish gillnet effort in

the Gulf of Maine to reduce porpoise

bycatch are designed to encompass

areas of high porpoise bycatch, not all

areas where gillnetting traditionally

occurs.

Comment 32: The pelagic longline

fishery is classified based on the annual

level of serious injury and mortality for

pilot whales. The PBR for pilot whales

is based upon conservative calculations

using dated surveys.

Response: The 1995 SARs were

prepared using the best available data.

Because NMFS conducted surveys in

1995, this information will be

incorporated in future calculations of

PBR for pilot whale stocks. As both

short- and long-finned pilot whales are

considered strategic stocks, the SARs

addressing these stocks must be

reviewed on an annual basis, and new

information can be incorporated at that

time.

Comment 33: Atlantic commercial

passenger fishing vessels should be

categorized in the LOF to be consistent

with the categorization of the Pacific

commercial passenger fishing vessels.

Response: The 1996 LOF contains a

listing of ‘‘Atlantic Commercial

Passenger Vessel’’ in Category III. An

estimate of 4000 participants is also

given.

Comment 34: Some fishery names in

the proposed LOF are vague. For

example, there is a reference to the

Atlantic mid-water trawl fishery, which

is proposed to include the ‘‘MidAtlantic squid trawl,’’ and the ‘‘MidAtlantic mackerel trawl.’’ There is a

small amount of mackerel caught by

mid-water trawl, but the vast majority of

squid are caught using bottom trawl

gear.

Response: See response to Comment

23 for a discussion of this fishery.

Comment 35: The designation of the

lobster fishery as Category III should be

revisited, given the interactions of

lobster gear with endangered right

whales.

Response: NMFS will consider

proposing to reclassify the lobster

fishery as Category II in developing the

next proposed LOF. Entanglement

records indicate interactions between

lobster pot fisheries and right whales,

humpback whales, finback whales, and

minke whales, but NMFS has no way of

extrapolating these reports to the whole

fishery.

Comment 36: The commenter

questioned whether the estimated total

take of 1.75 dolphins per year for the

Atlantic menhaden fleet justifies

classifying this fishery in Category II.

Subjecting a fleet of vessels to

permitting, decal, and observer

requirements in these circumstances

appears to be excessive given the size of

the interaction and the fact that this

particular fishery has been subject to

intensive bycatch analysis in the past

few years by agency scientists.

Response: The bottlenose dolphin

takes were incorrectly attributed to the

menhaden purse seine fishery. Because

of this error, this fishery was

inappropriately proposed for

classification in Category II in the

proposed LOF. This fishery is placed in

Category III in this final LOF.

Comment 37: The classification of the

menhaden purse seine fishery as a

Category II fishery is based on a

mortality and serious injury rate of 1.75

Atlantic coastal bottlenose dolphins per

year in the entire fishery. As stated in

the preamble to the proposed LOF, this

species does not occur in the Gulf of

Maine and therefore ‘‘it may be

appropriate to separate this fishery into

northern and southern components.’’ In

view of the absence of bottlenose

dolphins from the Gulf of Maine, the

menhaden fishery should be separated

into two components north and south of

Cape Cod, and the Gulf of Maine

menhaden purse seine fishery should

continue to be classified as a Category

III fishery.

Response: See response to Comment

36 regarding takes of bottlenose

dolphins in the mid-Atlantic component

of the menhaden purse seine fishery.

However, because of the geographic

ranges of the fisheries, the differences in

marine mammal species likely to be

encountered, and the harvested ageclass in the two fisheries, the Gulf of

Maine menhaden purse seine and the

mid-Atlantic menhaden purse seine are

separate fisheries in the final LOF.

Comment 38: Serious injuries and

mortalities of the western North Atlantic

coastal bottlenose dolphin drive the

classification of several fisheries (mid-
Federal Register / Vol. 60, No. 249 / Thursday, December 28, 1995 / Rules and Regulations 67073

Atlantic menhaden purse seine, midAtlantic coastal gillnet fishery). How is

this population defined? Has it been

shown to be reproductively isolated

from the offshore dolphin stock?

Response: The final SAR states that

there are ‘‘two hematologically and

morphologically distinct bottlenose

dolphin ecotypes that correspond to a

shallow, warm water ecotype and a

deep, cold water ecotype . . . .’’

(Blaylock, et al., 1995).

Comment 39: The Gulf of Maine small

pelagics surface gillnet fishery should

be removed from Category 1. The EA

states (p. 30) that this fishery no longer

operates.

Response: Additional research on the

Gulf of Maine small pelagics surface

gillnet fishery indicates that, although

there are few vessels participating, the

fishery is still operational. This fishery

operates in areas of high marine

mammal concentrations. One report

indicated that a white-sided dolphin

was killed incidental to this fishery, and

another report indicated that a

humpback whale became entangled

incidental to fishing operations and was

later released by divers. Because there

was a report of a mortality in this

fishery, and because information is not

available to justify a placement in

Category I or III, the fishery is placed in

Category II.

Comment 40: There is a small (5

boats) Gulf of Maine midwater trawl

fishery for herring, separate from the

Category II Atlantic midwater trawl

fishery for squid and butterfish (620

boats). It should be listed as a Category

III fishery. These boats also fish for

herring in southern New England in the

winter.

Response: In this final LOF, the trawl

fishery for Atlantic herring has been

renamed the ‘‘Northeast U.S. Atlantic

Herring Trawl.’’ This fishery is

separated from fisheries in the Southern

North Atlantic and Gulf of Mexico

because the Atlantic herring species

only ranges as far south as Cape

Hatteras. This fishery is placed in

Category III, as no incidental mortalities

or serious injuries have been reported

for this fishery, nor are incidental

mortalities or serious injuries expected

to occur incidental to this fishery.

Comment 41: A commenter supports

placement of new fisheries in Category

II until observer data or other

information can be used to properly

place the fishery, unless information

already exists to place a new fishery in

a different category.

Response: NMFS agrees. This

approach was included in the final

regulations implementing section 118.

Comment 42: According to the

proposed LOF, the U.S. mid-Atlantic

coastal gillnet fishery interacts with

humpback whales (PBR level = 1).

Published data indicate that stranded

humpback whales in the mid-Atlantic

may be interacting at a significant rate

with these fisheries (Wiley et al., 1995).

This information indicates that this

fishery should be classified as Category

I, as it may be responsible for greater

than 1 percent of the annual mortality

in this stock of humpbacks.

Response: The PBR level for this

humpback whale stock is currently set

at 10 animals. The stranding records

mentioned in Wiley (1995) demonstrate

that stranded humpbacks in the midAtlantic have been entangled in

commercial fishing gear. However, none

of those humpback stranding records

conclusively identify which fishery is

responsible. One of the fundamental

problems with linking a large whale

entanglement to a particular fishery is

that the whales are capable of carrying

many kinds of gear great distances from

the original point of entanglement.

Reports received usually do not include

gear identification information that

would identify the location in which the

gear was originally set.

Recent cetacean entanglement records

in the mid-Atlantic have been linked to

this fishery. These records suggest that,

although the level of humpback

entanglement in coastal gillnets in the

mid-Atlantic is greater than 1 percent of

PBR, there is no evidence to suggest that

it is greater than 50 percent of PBR.

Therefore, classification of this fishery

as Category I is not warranted at this

time.

Comment 43: There is no mention of

interactions with northern right whales

in the U.S. South Atlantic shark gillnet

fishery. State officials concluded that a

juvenile right whale that was entangled

in netting that likely came from this

fishery was subsequently killed by a

large ship in 1994. Right whales should

be added as an interacting stock and this

fishery should be classified as a

Category I fishery.

Response: A seriously injured

juvenile right whale was observed

swimming with its mother off the coast

of Georgia. Marks on the animal closely

resembled the types of marks observed

on other right whales that have been

entangled in gill nets. The juvenile

whale had apparently also been hit by

the propellers of a ship, as its flukes had

been nearly severed. No gear was

recovered from this animal and it is

unknown whether the animal actually

died, although its demise was highly

likely based upon its injuries. The only

gillnet fishery operating in the vicinity

was the Southeast U.S. Atlantic shark

gill net fishery. Because this fishery’s

interaction with right whales is

suspected but not confirmed, it is

appropriate to place this fishery in

Category II.

Comment 44: The North Atlantic

bottom trawl fishery was classified as a

Category III fishery despite observer

data indicating a take of 62 percent of

the PBR for striped dolphins. It is noted

that there was minimal observer

coverage (1 percent) and there is,

therefore, a high coefficient of variation

of the estimate. It is also possible with

this high coefficient of variance that the

mortality estimate is low. Furthermore,

text in the proposed LOF states that the

observers were not assigned to monitor

marine mammal mortality but to

‘‘monitor fishery management related

issues.’’ Similar observer objectives on

the Gulf of Maine gillnet vessels

resulted in an underestimate of marine

mammal bycatch. NMFS should

reconsider the category for this fishery.

Response: A justification for

categorizing the North Atlantic bottom

trawl fishery in Category III was

provided in the proposed LOF.

Although concerns regarding some

observer programs that focus on fishery

monitoring have been raised, other

observer programs with the same goals,

such as those operating in the BSAI

groundfish trawl fishery and the U.S.

Atlantic large pelagics drift gillnet

fishery, have provided important

information on the level of marine

mammal incidental serious injury and

mortality. NMFS anticipates receiving

additional marine mammal bycatch

information on the bottom trawl fishery

from observer programs directed at fish

bycatch. This fishery will be reevaluated for potential listing in

Category II in a future proposed LOF.

The trawl and gillnet fisheries have very

different methods for hauling the gear

and removing catch from the gear. It is

much less likely that an observer will

miss a marine mammal from a trawl

haul than from a gillnet haul.

Comment 45: It may be premature to

place the finfish aquaculture fishery in

Category III based on a presumption

that, since intentional killing is now

prohibited, participants will not shoot

seals. Media accounts of fishers

shooting hundreds of seals belie the

NMFS contention that the industry is

likely to stop killing seals (justifying

reclassification from Category II to

Category III). Thus, the fishery should

remain in Category II.

Response: The finfish aquaculture

fishery was placed in Category II in the

previous LOF, because intentional lethal

takes of harbor seals and grey seals were
67074 Federal Register / Vol. 60, No. 249 / Thursday, December 28, 1995 / Rules and Regulations

thought to occur ‘‘occasionally.’’ The

authority to intentionally kill the seals

was revoked by the 1994 MMPA

amendments. A fishery categorization

under section 118 cannot be based on

the supposition that aquaculturists will

violate the law. Anyone who

intentionally kills marine mammals to

protect fishing gear or catch will be

subject to enforcement actions. This

fishery will be re-evaluated in

developing a future proposed LOF based

on recent seal entanglement records

from the fishery.

Comment 46: The Gulf of Mexico

inshore gillnet fishery has not been

classified correctly. There are over 40

discrete stocks of bottlenose dolphins in

the Gulf of Mexico bay, sound and

estuarine stocks, each with a PBR of

between 0 and 3 animals per year. If this

fishery were to be classified based on

analogy to U.S. inshore fisheries in the

mid-Atlantic, then it must be supposed

that it is likely to interact with

bottlenose dolphins (see Long Island

sound inshore gillnet, Delaware Bay

inshore gillnet and North Carolina

inshore gillnet). As such, this fishery

should be either a Category I or II

fishery, as it would have to kill 0.03

animals per year or less to be placed in

Category III if it is operating in an area

coincident with any of the Gulf bays

stocks. If this fishery is not operating in

bays, sounds and estuaries (as could be

the case in an ‘‘inshore’’ fishery) and is

instead interacting with coastal stocks,

then the PBR for the Western Gulf of

Mexico coastal stock is 29 animals

(0.2=1 percent of PBR); the PBR level for

the northern Gulf of Mexico coastal

stock is 35 (0.3=1 percent of the PBR

level); and the PBR level for the Eastern

Gulf of Mexico coastal stock is 89 (0.8=1

percent of the PBR level). Thus, the

fishery would have to kill less than one

of these animals each year in order to

properly be placed in Category III. This

too appears unlikely, given the

propensity of gillnets to interact with

bottlenose dolphins. It would seem that

this fishery is totally inappropriate for

Category III. This new fishery should be

either Category I or Category II based on

its potential to interact with bottlenose

dolphins.

Response: Because NMFS has no

documented, direct observations of

serious injury or mortality to marine

mammals in this fishery, it has been

classified as category III by analogy with

Atlantic inshore gillnet fisheries.

However, as explained under responses

to comments on those fisheries, NMFS

believes there is potential for interaction

with marine mammals in this fishery.

Several bottlenose dolphins were

incidentally caught in research-related

tangle nets set for turtles between Texas

and Louisiana between 1993 and 1995.

These nets are similar to, and used like

nets used in the inshore gillnet fishery.

In addition, these nets were fully tended

specifically to prevent marine mammal

entanglements from occurring. This

information and any additional

information that can be obtained with

respect to this fishery may be

considered in developing a future

proposed LOF.

Comment 47: The offshore monkfish

bottom gillnet fishery, a new fishery to

the proposed LOF for 1996, was placed

in Category III based on an expectation

that there will be a remote likelihood of

interactions between bottom gillnet gear

and marine mammals. While it is true

that deep-set gear is less likely to kill

marine mammals, a number of stocks

(e.g., sperm whales) do use deep water

areas, and gillnets are the gear type most

likely to interact with any marine

mammal species in the area. Until such

time as it can be ascertained that

interactions are unlikely, this new

fishery should be placed in Category II

to allow observer coverage and the

gathering of more reliable information

on interactions.

Response: This fishery may have been

listed incorrectly as Category III in the

proposed LOF. Because this fishery may

have a high potential to take several

cetacean species based on analogy with

other shelf-edge fisheries such as the

large pelagic drift gillnet fishery, NMFS

will examine available data during the

development of the next proposed LOF

for reclassification of this fishery as

Category II.

Since the publication of the proposed

LOF, two other components of the

monkfish fishery have been recognized

by NMFS. The following provides a

description of each component, and its

treatment in this final LOF:

U.S. Atlantic Monkfish Trawl Fishery,

Unknown Number of Participants

The monkfish trawl fishery harvests

monkfish in deep waters off the Atlantic

coast. Some participants in this fishery

use a modified beam trawl; most use

otter trawls. In addition, some

participants in the scallop dredge

fishery target monkfish using dredge

gear during off-days for scallops as well

as simultaneously with scallops.

Because the target species, gear type,

and geographic range of this fishery is

unique, it is considered a new fishery

for the purposes of the LOF. There are

no documented reports of incidental

serious injury or mortality of marine

mammals in this fishery, nor are

incidental serious injuries or mortalities

expected. Accordingly, this fishery is

placed in Category III in this final LOF.

Monkfish Gillnetting in the Gulf of

Maine

Fishers participating in the New

England multispecies sink gillnet

fishery have targeted monkfish for

several years. When targeting this

species, a large mesh (10–14′′ stretched

mesh) sink gillnet is used, and the net

is either tied down, or is set upright

without floats using a polyfoam core

floatline. Reports indicate that at least

some fishers target monkfish in the Gulf

of Maine near Jeffrey’s Ledge. This

fishery is an extension of the New

England multispecies sink gillnet

fishery, but has not been specifically

included in the name of the fishery.

Because of the increasing dominance of

monkfish in the groundfish catch, the

name of the New England multispecies

sink gillnet fishery has been changed to

the ‘‘New England multispecies sink

gillnet fishery (includes all species as

defined in the Multispecies FMP, spiny

dogfish, and monkfish)’’ to clarify that

sink gillnet fishers targeting monkfish

are included.

Comment 48: The Gulf of Maine, U.S.

mid-Atlantic tuna, shark, swordfish

hook-and-line/harpoon fishery is stated

to have no documented interactions

with marine mammals. This is incorrect.

For example, NMFS records indicate

that, on September 1, 1986 a humpback

whale was reported by the U.S. Coast

Guard off Nantucket shoals with tuna

floats trailing; on November 14, 1986,

the U.S. Coast Guard reported to NMFS

that a right whale calf was seen with ‘‘a

tuna dart with line attached’’ in its

body; on July 7, 1989, a humpback

whale was reported by the Cetacean

Research Unit in Gloucester, MA, to

have a tuna line from an identified

Gloucester-based tuna boat around its

left flipper and flukes, with the float

attached. Furthermore, on August 29,

1995, a humpback whale was observed

by both whale watching boats and the

U.S. Coast Guard on Jeffreys Ledge, with

a tuna boat anchor, line and float

wrapped around and trailing from its

body. While this most recent sighting

may not yet have appeared in the main

data base, the three earlier reports are

from NMFS files. This information

should be corrected in the LOF, and this

fishery should be considered for

reclassification.

Response: Because NMFS chose to

use the most current data available,

entanglement references prior to the

Marine Mammal Exemption Program

(MMEP) inception in 1989 were not

used in developing the proposed LOF.

This fishery may be considered for re-
Federal Register / Vol. 60, No. 249 / Thursday, December 28, 1995 / Rules and Regulations 67075

classification in Category II in a future

proposed LOF based on recent

entanglement records. A humpback

entanglement in tuna hand gear was

conclusively identified in 1995, and the

recent references presented in Comment

47, along with additional records, may

be used to support this re-classification.

Comment 49: NMFS entanglement

reports indicate that a number of

animals have been seen entangled in

trawl gear from an unspecified fishery.

On February 15, 1983, a right whale calf

was reported dead in an otter trawl, on

February 23, 1986, a humpback whale

was reported by the Cetacean Research

Unit off Jeffreys Ledge ‘‘caught in otter

trawl,’’ and on September 18, 1989, the

Marine Mammal Stranding Center in

New Jersey reported a failed attempt to

rescue a humpback whale from trawl

net and cable. Either the Gulf of Maine

mackerel trawl or the mid-Atlantic

multi-species trawl, or another trawl

fishery operating in the area is

apparently having interactions with

endangered species. Thus, it may not be

accurate to say that these fisheries have

no documented interactions.

Response: The right whale calf

entangled in otter trawl gear in 1983

was determined to have been dead and

decomposed prior to this observation

and should therefore not be attributed to

the otter trawl fishery. The February 23,

1986 report of a humpback in an otter

trawl was an incomplete report. The

whale was still alive, but it is likely that

the whale was weakened by a previous

entanglement, a vessel collision, or

other injury or disease. The carcass was

not recovered, so no conclusions can be

drawn from this incident. The

September 18, 1989, entanglement of a

humpback in trawl gear in New Jersey

was not conclusively linked to the

specific trawl type, and there was no

information obtained that would give a

location for the original point of

entanglement. Because the fishery that

caused the above entanglements cannot

be specifically identified, the

information may not be used to classify

fisheries at this time.

Comment 50: It is stated that the Gulf

of Maine, U.S. mid-Atlantic offshore

lobster trap/pot fishery has no

documented interactions. This is

incorrect. A right whale, which washed

up dead this summer (1995) in Rhode

Island, was found with line from offshore lobster gear wrapped so tightly

around its flippers, that it cut through

the bone and likely contributed to the

animal’s death. In addition, a NMFS

report from April 25, 1981, states that a

minke whale was found entangled in

offshore lobster gear and released on

April 28, 1981. Thus, it can be seen that

this fishery does have interactions.

Response: Because NMFS chose to

use the most current data available,

entanglement references prior to the

MMEP program inception in 1989 were

not used in developing the current

proposed LOF. These records may be

considered in developing a future

proposed LOF. The right whale that

stranded in Rhode Island in July of 1995

had been entangled as early as

December 1993, although the original

point of entanglement is unknown.

Although entanglement experts onscene believed that the gear on the

whale was probably offshore lobster

gear, this could not be confirmed

because no identification unique to this

fishery was recovered. NMFS also

anticipates that both inshore and

offshore lobster fisheries may be

considered by the Take Reduction Team

that will be established to make

recommendations to NMFS on reducing

interactions between fisheries and large

cetaceans.

Comment 51: A number of fisheries

have had species of marine mammals

listed as interacting species, based on

analogy to similar fisheries that have

interactions with marine mammal

species known to occur in the area. The

U.S. mid-Atlantic mixed species stop

seine/weir fishery should therefore not

have its interactions reported as ‘‘none

documented.’’ Seines and weirs pose a

significant interaction problem for a

number of species of marine mammals.

For instance, in 1981 a humpback whale

was reported caught in a cod weir in

Long Island and released by the

Okeanos Research Center. In 1988, a

weir in Truro, MA, caught two

humpbacks: one on October 16 and one

on December 6. Both animals were

released by the Center for Coastal

Studies. Furthermore, there is no

justification for assuming that this

fishery’s interaction potential is

significantly different than that of the

Gulf of Maine herring and Atlantic stop

seine/weir fishery, which has

humpback, right whale, minke whale

and harbor porpoise interactions. The

final LOF should include these

corrections.

Response: The entanglement records

mentioned by the commenter were not

considered for the proposed LOF. These

records and any records received since

the development of the proposed LOF

may be considered while developing a

future proposed LOF. In general, NMFS

believes that potential for serious injury

or mortality due to these fisheries is

low.

Comments on Fisheries in the Southwest

Region

Comment 52: Reclassify the California

(CA) set/drift gillnet fisheries that use

small mesh to Category II based on takes

of central California harbor porpoise.

Response: California gillnet fisheries

that use a mesh size of 3.5 inches or less

target white croaker, bonito, flying fish,

herring, smelt, shad sturgeon,

bottomfish, mullet, perch, and rockfish.

There have been no observed or

reported incidental takes of central

California harbor porpoise, or any

marine mammal, in these fisheries. In

addition, no mention of central

California harbor porpoise mortalities or

serious injuries in the small mesh

gillnet fisheries were made in the final

SAR. Due to the small mesh size used

in this fishery, the likelihood of

incidental marine mammal mortality

and serious injury is very low. For these

reasons, this fishery is placed in

Category III.

Comment 53: Reclassify the CA

herring, sardine, and squid purse seine

fisheries into Category II, because the

interactions are similar to those that

occur in the CA anchovy, mackerel, and

tuna purse seine fishery.

Response: The CA anchovy, mackerel,

and tuna purse seine fishery has been

classified as Category II, because

mortality and serious injury of the

offshore bottlenose dolphin stock across

all fisheries is greater than 10 percent of

this stock’s PBR level, and the estimated

annual average mortality and serious

injury of this stock in the CA anchovy,

mackerel, tuna purse seine fishery is 2

percent of this stock’s PBR level. At this

time, there are no data indicating that

the herring, sardine, and squid purse

seine fisheries have similar incidental

serious injury and mortality rates to the

anchovy, mackerel, and tuna purse

seine fishery. For these reasons, the

herring, sardine, and squid purse seine

fisheries are placed in Category III.

Comment 54: Hawaii (HI) lobster trap/

crab trap fishery should be considered

to interact with humpback whales based

on analogy with interactions between

trap fisheries and large cetaceans on the

U.S. Atlantic coast.

Response: There is no evidence to

indicate that humpback whales interact

with this fishery in Hawaii. Because

there is no evidence of incidental

mortality or serious injury of humpback

whales, or other marine mammals in

this fishery, this fishery is placed in

Category III.

Changes from the Proposed LOF

The following is a list of other

changes that have not been discussed in
67076 Federal Register / Vol. 60, No. 249 / Thursday, December 28, 1995 / Rules and Regulations

the preamble or response to comments

section, or that were made for editorial

consistency:

Marine mammal species list.

According to statute, the LOF must

include a description of the marine

mammal stocks that interact with each

commercial fishery. The proposed LOF

included marine mammals that are

known, reported, or strongly suspected

to be injured, killed, entangled, or

harassed in a particular commercial

fishery. All marine mammals listed as

interacting with a particular commercial

fishery in the 1994 LOF were also

included. In this final LOF, the list of

marine mammals specified as

interacting with commercial fisheries is

limited to those that have had

documented incidental injuries or

mortalities in commercial fisheries

between 1989 and 1995. Information

from observer programs, logbook data,

stranding reports, and anecdotal reports

were used to develop the species list. In

addition, the names of the marine

mammal species/stock involved are

listed instead of a code.

Alaskan Bering Sea and Aleutian

Islands groundfish trawl fishery. This

fishery was proposed to move from

Category III to Category II in the

proposed LOF based on the serious

injury and mortality of killer whales

that is over 50 percent of the PBR.

However, because the population

estimates of both the resident and

transient stocks of killer whales are

known to be biased low, and because

NMFS has good estimates of the level of

mortality and serious injury in this

observed fishery, this fishery will be

placed in Category III.

AK southern Bering Sea, Aleutian

Islands, and Western Gulf of Alaska

sablefish longline/set line (federally

regulated waters). This fishery was

placed in Category II in the 1994 LOF

and was proposed to remain in Category

II in the proposed LOF. The proposed

classification was based on an annual

level of serious injury and mortality of

both the resident and transient stocks of

killer whales that is greater than 10

percent of the PBR level for all fisheries,

and greater than 1 percent of the PBR

level for this fishery. However, because

the population estimates of both the

resident and transient stocks of killer

whales are known to be biased low, this

fishery is placed in Category III.

Mid-Atlantic Menhaden Purse Seine.

This fishery was erroneously proposed

to be placed in Category II in the

proposed LOF, because incidental takes

of bottlenose dolphins that occurred in

the Gulf of Mexico menhaden purse

seine were attributed to the MidAtlantic menhaden purse seine. This

error has been corrected, and the MidAtlantic menhaden purse seine is

placed in Category III in this final LOF.

Gulf of Maine small pelagics surface

gillnet. This fishery was identified in

Category I in the 1994 LOF, and was

proposed to remain in Category I in the

proposed LOF, based on a lack of

available information that could be used

to place the fishery in a different

category. Because only two reports of

serious injury and mortality of marine

mammals incidental to this fishery have

been reported, Category I is not

warranted. Thus, this fishery has been

placed in Category II.

Occasional anecdotal reports of

mortalities and injuries of marine

mammals incidental to this fishery have

been reported. Because there have been

reports of mortalities in this fishery, it

will be placed in Category II.

Atlantic squid, mackerel, butterfish

trawl. The name of this fishery was the

‘‘Atlantic mid-water trawl’’ in the

proposed LOF. In the proposed LOF,

this fishery was defined as including

those mid-water trawlers that target fish

managed by the Atlantic Mackerel,

Squid, and Butterfish Fishery

Management Plan (FMP). Because both

mid- and bottom-trawl gear are used to

harvest squid, the name of this fishery

has been changed to reflect the target

species in lieu of the technique. Thus,

this fishery is now called the ‘‘Atlantic

squid, mackerel, butterfish trawl’’ in the

final LOF.

Atlantic Ocean, Gulf of Mexico large

pelagics drift gillnet fishery. The name

of this fishery was the ‘‘Atlantic Ocean,

Caribbean, Gulf of Mexico swordfish,

tuna, shark drift gillnet’’ in the proposed

LOF. The name of this fishery has been

changed in the final LOF because the

species targeted in this fishery have

changed in the past and may change in

the future.

U.S. Atlantic large pelagics pair trawl.

The name of this fishery was proposed

as the ‘‘Atlantic Ocean, Caribbean, Gulf

of Mexico Swordfish, Tuna, Shark Pair

trawl’’ in the proposed LOF. The name

has been changed in the final LOF to

encompass all large pelagic species

targeted using this gear.

Atlantic Ocean, Caribbean, Gulf of

Mexico large pelagics longline. The

name of this fishery was proposed as the

‘‘Atlantic Ocean, Caribbean, Gulf of

Mexico tuna, shark, swordfish longline’’

in the proposed LOF. The name has

been changed in the final LOF to

encompass all large pelagic species

targeted using this gear.

To remain consistent throughout the

United States, the Atlantic Ocean, Gulf

of Mexico, and Caribbean commercial

passenger fishing vessel fishery has

been added to the LOF. This fishery is

placed in Category III, because there are

no documented or suspected serious

injuries or mortalities of marine

mammals incidental to this fishery.

Number of participants in commercial

fisheries. The LOF tables include

estimates of the number of participants

in each commercial fishery. Comments

were received updating the number of

participants in certain commercial

fisheries, and these updates are reflected

in Tables 1 and 2. The number of

participants was updated for the

following fisheries: Gulf of Mexico

menhaden purse seine, Florida west

coast purse seine, Southeast U.S.

Atlantic, Gulf of Mexico snappergrouper and other reef fish bottom

longline/hook&line, and the Southeast

U.S. Atlantic, Gulf of Mexico, Caribbean

spiny lobster trap/pot.

All occurrences of ‘‘South Atlantic’’

in the fishery names in the LOF have

been changed to ‘‘Southeast U.S.

Atlantic’’ to more appropriately

designate the geographic location of the

commercial fisheries as occurring in

southern U.S. waters and not south of

the equator.

‘‘Weakfish, mullet, spot, croaker’’

were added to the list of target species

in the ‘‘Gulf of Mexico inshore gillnet’’

fishery to better reflect the nature of the

fishery.

The name of the Gulf of Maine, South

Atlantic coastal shad, sturgeon gillnet

has been changed to ‘‘Gulf of Maine,

Southeast U.S. Atlantic coastal shad,

sturgeon gillnet fishery’’ to better reflect

the geographical range of this fishery,

and to specifically include the waters of

North Carolina.

The Gulf of Mexico, Southeast U.S.

Atlantic coastal gillnet (includes mullet

gillnet fishery in Louisiana and

Mississippi) fishery has been separated

into a Gulf of Mexico component and a

Southeast U.S. Atlantic coastal gillnet,

because the marine mammal stocks with

which the fisheries interact are

different.

The Florida mullet gillnet fishery has

been removed from the LOF. This

fishery no longer operates due to the net

ban in Florida state waters. Some

participants in this fishery have moved

their operations to Louisiana and

Mississippi; thus, the phrase ‘‘includes

mullet gillnet fishing in LA and MS’’

has been added to the name of the

Southeast U.S. Atlantic, Gulf of Mexico

coastal gillnet fishery.
Federal Register / Vol. 60, No. 249 / Thursday, December 28, 1995 / Rules and Regulations 67077

Responses to Comments

Justification for the Categorization of

Commercial Fisheries

The following are justifications for the

final categorization of commercial

fisheries into Category I, II, or III based

on the classification scheme defined in

the final rule implementing section 118

(60 FR 45086, August 30, 1995).

Justifications are presented for only

those fisheries placed in Category I and

II, or those fisheries placed in Category

III for which observer, logbook,

stranding or other information exist.

The evaluation of each fishery at both

the Tier 1 (total, species-specific marine

mammal serious injuries and mortalities

across all fisheries) and the Tier 2

(fishery-specific incidental marine

mammal serious injury and mortality)

levels is provided.

Commercial Fisheries in the Pacific

Ocean

Category I

CA Angel Shark/Halibut and Other

Species Using Large Mesh (>3.5 inches)

Set Gillnet Fishery

Tier 1 evaluation: Based on observer

data and fishing effort during 1991–93

(Barlow et al., 1994, NMFS 1995),

annual mortality and serious injury of

the central California harbor porpoise

across all fisheries, including the

California angel shark/halibut largemesh set gillnet fishery, exceeds 10

percent of this stock’s PBR level.

Tier 2 evaluation: The CA angel

shark/halibut large-mesh set gillnet

fishery is responsible for an estimated

annual removal level of 50 percent or

more of the Central California harbor

porpoise’s PBR level. CA/OR Thresher

Shark/Swordfish Drift Gillnet Fishery

Tier 1 evaluation: Based on observer

data and fishing effort during 1991–93

(Barlow et al., 1994, NMFS 1995), total

annual mortality and serious injury of

sperm whales across all fisheries,

including the CA/OR drift gillnet

fishery, exceeds 10 percent of this

stock’s PBR level.

Tier 2 evaluation: The CA/OR

thresher shark/swordfish drift gillnet

fishery is responsible for an estimated

annual removal level of 50 percent or

more of the CA/OR/WA sperm whale

stock’s PBR level.

Category II

AK Prince William Sound Salmon Drift

Gillnet

Tier 1 evaluation: Total known harbor

porpoise mortality and serious injury

levels across all fisheries exceed 10

percent of the stock’s PBR level.

Tier 2 evaluation: Known harbor

porpoise mortality and serious injury in

this fishery exceed 1 percent of the

stock’s PBR.

AK Peninsula/Aleutian Islands Salmon

Drift Gillnet

Tier 1 evaluation: Total known harbor

porpoise mortality and serious injury

levels across all fisheries exceed 10

percent of the stock’s PBR level.

Tier 2 evaluation: Known harbor

porpoise mortality and serious injury in

this fishery exceed 1 percent of the

stock’s PBR level.

AK Peninsula/Aleutian Island Salmon

Set Gillnet

Tier 1 evaluation: Total known

marine mammal mortality and serious

injury levels across all fisheries does not

exceed 10 percent of each stock’s PBR

level based on the current information.

Low levels of observer coverage have

been inadequate to determine mortality

and serious injury levels for these stocks

across all fisheries, and available data

suggest that levels of mortality and

serious injury may exceed 10 percent of

some stocks’ PBR levels if observer

information were available, especially

for harbor porpoise and Steller sea lions.

Tier 2 evaluation: Low levels of

marine mammal mortalities and serious

injuries have been documented for this

fishery. This fishery has not been

observed, and because levels of marine

mammal mortalities and serious injuries

in this fishery are expected to be similar

to levels of other set gillnet fisheries that

interact with similar marine mammal

species, especially for harbor porpoise,

this fishery is placed in Category II.

Southeast Alaska Salmon Drift Gillnet

Tier 1 evaluation: Total known harbor

porpoise and humpback whale mortality

and serious injury levels across all

fisheries exceed 10 percent of each

stock’s PBR level.

Tier 2 evaluation: Known harbor

porpoise and humpback whale mortality

and serious injury levels in this fishery

exceed 1 percent of each stock’s PBR

level.

AK Cook Inlet Drift Gillnet

Tier 1 evaluation: Total known

marine mammal mortality and serious

injury levels across all fisheries do not

exceed 10 percent of the PBR of each

stock taken by this fishery with

currently available information. Low

levels of observer coverage have been

inadequate to determine mortality and

serious injury levels for these stocks

across all fisheries, and available data

suggest that levels of mortality and

serious injury may exceed 10 percent of

some stocks’ PBRs if observer

information were available.

Tier 2 evaluation: Low levels of

marine mammal mortalities and serious

injuries have been documented for this

fishery. Low levels of observer coverage

have been inadequate to determine

mortality and serious injury levels for

these stocks, and available data suggest

that levels of mortality and serious

injury may exceed 1 percent of some

stocks’ PBR levels if observer

information were available. Levels of

marine mammal mortalities and serious

injuries in this fishery are expected to

be similar to levels of other drift gillnet

fisheries that interact with similar

marine mammal species.

AK Cook Inlet Salmon Set Gillnet

Tier 1 evaluation: Total known

marine mammal mortality and serious

injury levels across all fisheries do not

exceed 10 percent of each stock’s PBR

level with the current information. Low

levels of observer coverage have been

inadequate to determine mortality and

serious injury levels for these stocks

across all fisheries, and available data

suggest that levels of mortality and

serious injury may exceed 10 percent of

some stocks’ PBR levels if observer

information were available, especially

for harbor porpoise.

Tier 2 evaluation: Low levels of

marine mammal mortalities and serious

injuries have been documented for this

fishery. Low levels of observer coverage

have been inadequate to determine

mortality and serious injury levels for

these stocks, and available data suggest

that levels of mortality and serious

injury may exceed 1 percent of some

stocks’ PBR levels if observer

information were available. Levels of

marine mammal mortalities and serious

injuries in this fishery are expected to

be similar to levels of other set gillnet

fisheries that interact with similar

marine mammal species, especially for

harbor porpoise.

AK Yakutat Salmon Set Gillnet

Tier 1 evaluation: Total known harbor

seal mortality and serious injury levels

across all fisheries do not exceed 10

percent of the stock’s PBR level with the

current information. Low levels of

observer coverage have been inadequate

to determine mortality and serious

injury levels for these stocks across all

fisheries, and available data suggest that

levels of mortality and serious injury

may exceed 10 percent of some stocks’

PBR levels if observer information were

available.

Tier 2 evaluation: Known harbor seal

mortality and serious injury levels
67078 Federal Register / Vol. 60, No. 249 / Thursday, December 28, 1995 / Rules and Regulations

exceed 1 percent of the stock’s PBR

level.

AK Kodiak Salmon Set Gillnet

Tier 1 evaluation: Total known harbor

porpoise mortality and serious injury

levels across all fisheries exceed 10

percent of the stock’s PBR level.

Tier 2 evaluation: Known harbor

porpoise mortality and serious injury

levels in this fishery exceed 1 percent of

the stock’s PBR level.

AK Bristol Bay Drift Gillnet

Tier 1 evaluation: Total known harbor

seal and beluga whale mortality and

serious injury levels across all fisheries

do not exceed 10 percent of each stock’s

PBR level with the current information.

Low levels of observer coverage have

been inadequate to determine mortality

and serious injury levels for these stocks

across all fisheries, and available data

suggest that levels of mortality and

serious injury may exceed 10 percent of

some stocks’ PBR levels if observer

information were available.

Tier 2 evaluation: Known harbor seal

and beluga whale mortality and serious

injury levels exceed 1 percent of each

stock’s PBR level.

AK Bristol Bay Set Gillnet

Tier 1 evaluation: Total known

marine mammal mortality and serious

injury levels across all fisheries do not

exceed 10 percent of each stock’s PBR

level with the current information. Low

levels of observer coverage have been

inadequate to determine mortality and

serious injury levels for these stocks

across all fisheries, and available data

suggest that levels of mortality and

serious injury may exceed 10 percent of

some stocks’ PBR levels if observer

information were available, especially

for harbor porpoise, harbor seals and

Steller sea lions.

Tier 2 evaluation: Low levels of

marine mammal mortalities and serious

injuries have been documented for this

fishery. Low levels of observer coverage

have been inadequate to determine

mortality and serious injury levels for

these stocks, and available data suggest

that levels of mortality and serious

injury may exceed 1 percent of some

stocks’ PBR levels if observer

information were available. Levels of

marine mammal mortalities and serious

injuries in this fishery are expected to

be similar to levels of other set gillnet

fisheries that interact with similar

marine mammal species, especially for

harbor porpoise, harbor seals and Steller

sea lions.

AK Metlakatla/Annette Island Salmon

Drift Gillnet

This fishery is separated from the

Southeast drift gillnet fishery only for

purposes of registration. It is a tribal

fishery and is thus exempt from the

registration fee. For categorization

purposes, it is considered the same as

the Southeast drift gillnet fishery.

WA Puget Sound Region Salmon Drift

Gillnet (Includes All Inland Waters

South of the US-Canada Border and

Eastward of the Bonilla-Tatoosh Line—

Treaty Indian Fishing is Excluded)

Tier 1 evaluation: As reported in the

final SAR, the estimated total fisheryrelated mortality for the inland

Washington stock of harbor porpoise

(16), exceeds 10 percent of the

calculated PBR level (2.7) and,

therefore, can not be considered

insignificant.

Tier 2 evaluation: The reported

incidental take estimate of 15 harbor

porpoise per year was calculated from

observed take in the sockeye salmon

fishery. However, that estimate includes

Treaty Indian fishing effort, which

constitutes about one half of the effort

in Puget Sound. Therefore, the

estimated take of harbor porpoise for the

non-tribal salmon drift gillnet fishery

would be about one half of the total

estimated take (7.5), which is greater

than 1 percent but less than 50 percent

of the calculated PBR level for this

stock.

CA Anchovy, Mackerel, Tuna Purse

Seine

Tier 1 evaluation: Based on observer

data and fishing effort during 1991–93

and logbook data (1990–92) (Barlow et

al., 1995, NMFS 1995), the average

annual mortality and serious injury of

the offshore bottlenose dolphin across

all fisheries, including the CA anchovy,

mackerel, tuna purse seine fishery,

exceeds 10 percent of this stock’s PBR

levels.

Tier 2 evaluation: The mortality and

serious injury of the offshore bottlenose

dolphin in the CA mackerel, anchovy,

tuna purse seine fishery is two percent

of this stock’s PBR level.

AK Southeast Salmon Purse Seine

Tier 1 evaluation: Total known

humpback whale mortalities and serious

injuries across all fisheries exceed 10

percent of the stock’s PBR level.

Tier 2 evaluation: Known humpback

whale mortalities and serious injuries in

this fishery exceed 1 percent of the

stock’s PBR level.

AK pair trawl

This is a new fishery in Alaskan

waters and is therefore categorized by

analogy with pair trawl fisheries in the

U.S. North Atlantic. The U.S. North

Atlantic large pelagics pair trawl fishery

has demonstrated high levels of

mortalities and serious injury for some

marine mammal species. The Alaska

pair trawl fishery is classified as

Category II pending additional

information on the level of marine

mammal serious injuries and mortalities

in the fishery.

OR Swordfish/Blue Shark Surface

Longline

Categorization of this fishery is based

on analogy with observed pelagic

longline fisheries in the Atlantic Ocean.

Based on observer data, the Atlantic

Ocean pelagic longline fishery for

swordfish and tuna has at least an

occasional incidental serious injury and

mortality of marine mammals.

Accordingly, this fishery is placed in

Category II.

Category III

AK Prince William Sound Set Gillnet

Tier 1 evaluation: Total known harbor

seal and Steller sea lion mortality and

serious injury levels across all fisheries

do not exceed 10 percent of each stock’s

PBR level with the current information.

Low levels of observer coverage have

been inadequate to determine mortality

and serious injury levels for these stocks

across all fisheries, and available data

suggest that levels of mortality and

serious injury may exceed 10 percent of

these stocks’ PBR levels if observer

information were available.

Tier 2 evaluation: Marine mammal

mortality and serious injury levels

approaching 1 percent are not expected

for any stock by this fishery.

AK Kuskokwim, Yukon, Norton Sound,

Kotzebue Salmon Gillnet

Interactions in these fisheries usually

result in directed takes of marine

mammals for subsistence purposes.

AK Roe Herring and Food/Bait Herring

Gillnet

Tier 1 evaluation: No marine mammal

serious injuries or mortalities have been

documented incidental to this fishery.

Tier 2 evaluation: Although marine

mammal mortalities and serious injuries

have been documented for other gillnet

fisheries, the roe herring gillnet fishery

openers are of such short duration,

marine mammal mortality and serious

injury levels approaching 1 percent are

not expected for any stock for this

fishery.
Federal Register / Vol. 60, No. 249 / Thursday, December 28, 1995 / Rules and Regulations 67079

WA Willapa Bay Drift Gillnet

Tier 1 evaluation: The estimated total

fishery related mortality and serious

injury for the Oregon and Washington

coastal stock of harbor seals is greater

than 10 percent of the PBR level.

Tier 2 evaluation: No harbor seal

mortalities were observed incidental to

fishing effort in 1991. However, harbor

seals did interact with the fishery. Two

incidents of entanglement were

observed in which the seals were

released alive and uninjured. Based on

observer data, incidental mortality was

estimated to be a rare event which

would not exceed 1 percent of the

calculated PBR level for this stock.

WA Gray’s Harbor Salmon Drift Gillnet

(Excluding Treaty Tribal Fishing)

Tier 1 evaluation: As reported in the

final SAR, the estimated total fishery

related mortality and serious injury for

the Oregon & Washington coastal stock

of harbor seals (233) is greater than 10

percent of the PBR level (170).

Tier 2 evaluation: The reported

estimate of annual mortality and serious

injury of harbor seals in this fishery

(10), based on observer data, is less than

1 percent of the calculated PBR level for

the stock (17).

WA, OR Lower Columbia River

(Includes Tributaries) Drift Gillnet

Tier 1 evaluation: The estimated total

fishery related mortality and serious

injury for the Oregon and Washington

coastal stock of harbor seals (233) is not

less than 10 percent of the PBR level

(170).

Tier 2 evaluation: Based on

observations in 1991–92, the estimated

annual mortality and serious injury of

harbor seals in this fishery is 213.

However, during the observation period,

all but one of the observed mortalities

occurred during the winter season. The

extrapolated annual mortality of harbor

seals in this fishery from 1991 to 1993

was 233 seals in 1991 (all during the

winter season), 192 seals in 1992 (180

in the winter season and 12 in the fall),

and 11 seals in 1993 (all during the

winter season). Although the estimated

annual mortalities of harbor seals in

1991 and 1992 could justify placing this

fishery in Category II, reduced fishing

seasons and or season closures (due to

restrictions on the fishery to minimize

impacts on Snake River chinook

salmon, which are listed under the

Endangered Species Act (ESA)) are

unlikely to result in the levels of harbor

seal mortality observed in 1991 and

1992. The winter season of 1993, when

an estimated 11 harbor seals were taken,

was restricted due to ESA

considerations. The winter season was

closed in 1994. The estimated annual

harbor seal mortality for the fall fishery,

4 (0+11+0/3=3.66) is less than 1 percent

of the calculated PBR level for this stock

(17).

CA Set and Drift Gillnet Fisheries That

Use a Stretched Mesh Size of 3.5 Inches

or Less

Tier 1 evaluation: Based on logbook

data (1991–1994) (NMFS 1995, Joe

Cordaro, pers. com., SWO, NMFS), no

annual mortality and serious injury of

marine mammals has been reported in

the CA set and drift gillnet fishery with

small mesh.

AK Miscellaneous Finfish Set Gillnet

Tier 1 evaluation: No marine mammal

serious injuries or mortalities have been

documented incidental to this fishery.

Tier 2 evaluation: Marine mammal

mortality and serious injury levels

approaching 1 percent are not expected

for any stock by this fishery.

HI Gillnet

Tier 1 evaluation: One bottlenose

dolphin was reported entangled in a gill

net in 1991 (Nitta and Henderson 1993);

however, bottlenose dolphins are rarely

reported as entangled in set gillnets in

Hawaii. There are records of spinner

dolphins being taken in nets or net

fragments in Hawaiian waters, and one

eyewitness account in 1990. There has

been one reported incidental mortality

of a Hawaiian monk seal in an inshore

gillnet in 1976 (Barlow et al., 1995). Due

to the rarity of these interactions, this

fishery is placed in Category III.

CA Herring Purse Seine

Tier 1 evaluation: Based on logbook

data (1990–94) (Joe Cordaro, pers.

comm.) the total mortality and serious

injury of the CA coastal bottlenose

dolphins across all fisheries, including

the CA herring purse seine fishery, is

less than 10 percent of this stock’s PBR

level (Barlow et al., 1995).

CA Sardine Purse Seine

Tier 1 evaluation: Based on logbook

data (1990–1992), no mortality or

serious injury has been reported in this

fishery.

CA Squid Purse Seine

Tier 1 evaluation: Based on logbook

data (1990–92), the total annual average

mortality and serious injury of

California sea lions across all fisheries,

including the squid purse seine fishery,

exceeds 10 percent of this stock’s PBR

level.

Tier 2 evaluation: The total annual

average mortality and serious injury of

California sea lions in the CA squid

purse seine fishery is less than one

percent of this stock’s PBR level.

CA Squid Dip Net

Tier 1 evaluation: Based on logbook

data (1990–1992), no mortality or

serious injury has been reported in the

CA squid dip net fishery.

WA, OR Salmon Net Pens

Tier 1 evaluation: As reported in the

final SAR, the total estimated fishery

related mortality and serious injury of

the U.S. stock of California sea lions

(2,446) based on observer data collected

from 1991 to 1993 exceeds 10 percent of

the calculated PBR level for this stock

(505). However, preliminary estimates

for the first three quarters of 1994

indicate that a large reduction in the

mortality rate has taken place and that

mortality may be less than 10 percent of

the calculated PBR for 1994.

Tier 2 evaluation: Based on logbook

data the incidental take of marine

mammals is infrequent and California

sea lion mortality and serious injuries

are at a level less than 1 percent of the

calculated PBR level.

OR Salmon Ranch

Tier 1 evaluation: No incidental, but

not intentional, mortalities or serious

injuries of marine mammals have been

reported for this fishery.

AK Salmon Troll

Tier 1 evaluation: Total known Steller

sea lion mortalities and serious injuries

across all fisheries do not exceed 10

percent of the stock’s PBR level with the

current information. Low levels of

observer coverage have been inadequate

to determine mortality and serious

injury levels for these stocks across all

fisheries, and available data suggest that

levels of mortality and serious injury

may exceed 10 percent of some stocks’

PBR levels if observer information were

available.

Tier 2 evaluation: Known Steller sea

lion mortalities and serous injuries for

this fishery do not exceed 1 percent of

the stock’s PBR level and current

information does not indicate that this

level would exceed 1 percent with

observer coverage for this fishery.

CA/OR/WA Salmon Troll

Tier 1 evaluation: Based on logbook

data (1990–92), the mortality and

serious injury of California sea lions

across all fisheries, including the CA/

OR/WA salmon troll fishery, exceeds 10

percent of this stock’s PBR level.

Tier 2 evaluation: A review of logbook

data (1990–1992) indicated that the

majority of fishers reported intentional
67080 Federal Register / Vol. 60, No. 249 / Thursday, December 28, 1995 / Rules and Regulations

lethal takes for deterrence in both the

deterrence columns and the gear

columns, owing to ambiguities in the

reporting instructions. However, based

on an earlier study (Miller et al., 1983)

it is known that incidental mortalities in

this fishery are the result of intentional

deterrence efforts which are now illegal.

Once the duplicate reports are removed,

the annual average mortality and serious

injury of California sea lions is below

one percent.

AK State Waters Sablefish Longline/Set

Line

Tier 1 evaluation: No marine mammal

serious injuries or mortalities have been

documented incidental to this fishery.

HI Swordfish, Tuna, Billfish, Mahi

Mahi, Wahoo, Oceanic Sharks Longline/

Set Line

Tier 1 evaluation: Evidence of

interactions between the Hawaii pelagic

longline fishery and Hawaiian monk

seals began to accumulate in 1990,

including 5 hooked seals and 13

unusual seal wounds that some believe

were the result of interactions with the

longline gear (Barlow et al. 1995). In

October 1991, a permanent protected

species zone was established around the

Northwest Hawaiian Islands, which

precludes longline fishing. One Risso’s

dolphin was observed ‘‘hooked’’ and

was released alive in 1993 (pers. comm.,

Gene Nitta, Southwest Region, NMFS).

Preliminary analysis of observer data

from the swordfish longline fishery

indicates that two Risso’s dolphins were

incidentally taken during 85 observed

longline trips between February 1994

and October 1995 (NMFS unpublished

data). One animal had ingested a hook

and another appeared to be hooked in

the caudal peduncle region. Both

animals were released alive and swam

away. Also, one bottlenose dolphin had

ingested a hook and was also released

alive. In 1994, a pygmy killer whale was

hooked and released from longline gear.

Furthermore, in 1991, a humpback

whale was observed entangled in

longline gear in Hawaii. Although the

estimated PBR level for the central

North Pacific humpback whale is 2.8

animals, no estimates of annual average

humpback whale mortality and serious

injury in the Hawaii longline fishery are

available at this time. Thus, it is not

possible to compare annual mortality

and serious injury of humpback whales

with its estimated PBR level. Estimates

of PBR levels and annual mortality and

serious injury for the other marine

mammal species that have been

documented interacting with the

Hawaiian longline fishery are currently

not available. For these reasons, this

fishery is placed in Category III.

AK Southern Bering Sea, Aleutian

Islands, and Western Gulf of Alaska

Sablefish Longline/Set Line (Federally

Regulated Waters)

Tier 1 evaluation: Total known

mortalities or serious injuries of killer

whales across all fisheries exceed 10

percent of the PBR level for transient,

resident and transient and resident

stocks together.

Tier 2 evaluation: Known killer whale

mortalities or serious injuries in this

fishery exceed 1 percent of the PBR

level for transient, resident and

transient and resident stocks together.

The majority of the serious injuries

and mortalities of killer whales

incidental to commercial fisheries

occurred in the BSAI groundfish trawl.

Because this trawl fishery has a high

level of observer coverage, good

mortality estimates for killer whales are

available from this fishery. However,

because the population estimates for

killer whales are known to be

underestimated and the low level of

serious injury and mortality that occurs

incidental to the trawl and longline

fisheries are not likely to have a

significant effect on the population, and

because neither fishery has significant

interactions with other species of

marine mammals both fisheries are

placed in Category III.

AK Gulf of Alaska Groundfish Trawl

Tier 1 evaluation: Total known Steller

sea lion, harbor seal, northern elephant

seal and Dall’s porpoise mortalities or

serious injuries across all fisheries do

not exceed 10 percent of each stock’s

PBR level with the current information.

Low levels of observer coverage have

been inadequate to determine mortality

and serious injury levels for these stocks

across all fisheries, and available data

suggest that levels of mortality and

serious injury would exceed 10 percent

of some stocks’ PBR levels if observer

information were available.

Tier 2 evaluation: Marine mammal

mortalities and serious injuries levels

approaching 1 percent are not expected

for any stock by this fishery.

AK BSAI Groundfish Trawl

Tier 1 evaluation: Total known

mortalities or serious injuries of killer

whales across all fisheries exceed 10

percent of the PBR level for transient,

resident, and transient and resident

stocks combined.

Tier 2 evaluation: Known killer whale

mortalities or serious injuries in this

fishery exceed 1 percent of the PBR

level for transient, resident and

transient and resident stocks combined.

Killer whales are seriously injured

and killed incidental to two fisheries:

The AK southern BSAI, and Western

Gulf of Alaska sablefish longline/set line

(federally regulated waters) fishery and

the AK BSAI groundfish trawl fishery.

However, the majority of the serious

injuries and mortalities of killer whales

incidental to commercial fisheries

occurred in the BSAI groundfish trawl.

Because this trawl fishery has a high

level of observer coverage, good

mortality estimates for killer whales are

available from this fishery. However,

because the population estimates for

killer whales are known to be

underestimated, and the low level of

serious injury and mortality that occurs

incidental to the trawl and longline

fisheries are not likely to have a

significant effect on the population,

both fisheries are placed in Category III.

AK Bering Sea, Gulf of Alaska (GOA)

Finfish Pot

Tier 1 evaluation: Total known harbor

seal mortalities or serious injuries across

all fisheries do not exceed 10 percent of

each stock’s PBR level with the current

information. Low levels of observer

coverage have been inadequate to

determine mortality and serious injury

levels for these stocks across all

fisheries, and available data suggest that

levels of mortality and serious injury

may exceed 10 percent of some stocks’

PBR levels if observer information were

available.

Tier 2 evaluation: Marine mammal

mortalities and serious injuries levels

approaching 1 percent are not expected

for any stock by this fishery.

CA Lobster, Prawn, Shrimp, Rock Crab,

Fish Pot

Tier 1 evaluation. Although the

California Marine Mammal Stranding

Network, NMFS, receives reports of gray

whales entangled in lobster pot gear,

these entanglements, while technically

‘‘injuries’’, do not appear to result in

mortalities. No other reports of marine

mammal incidental takes have been

reported from these fisheries. For these

reasons, this fishery is placed in

Category III.

Commercial Fisheries in the Atlantic

Ocean, Caribbean, and Gulf of Mexico

Category I

Atlantic Ocean, Caribbean, Gulf of

Mexico Large Pelagics Pair Trawl

Tier 1 evaluation: Annual incidental

mortality and serious injury across all

fisheries for all stocks known to interact
Federal Register / Vol. 60, No. 249 / Thursday, December 28, 1995 / Rules and Regulations 67081

with this fishery is greater than 10

percent of the PBR level.

Tier 2 evaluation: Extrapolation of

observer data results in an estimated

total incidental serious injury and

mortality of 79 offshore bottlenose

dolphins and 33 common dolphins per

year from 1992–93. These take levels

represent an annual incidental mortality

and serious injury that is greater than 50

percent of the PBR levels for both

species.

Atlantic Ocean, Caribbean, Gulf of

Mexico Large Pelagics Drift Gillnet

Fishery

Tier 1 evaluation: Incidental annual

mortality and serious injury across all

fisheries for all stocks (with known PBR

levels) interacting with this fishery is

greater than 10 percent of the PBR level.

Tier 2 evaluation: Extrapolation of

observer data results in an annual

estimated total serious injuries and

mortalities of 59 Risso’s dolphins, 424

common dolphins, 61 pilot whales, and

53 offshore bottlenose dolphins per year

from 1989–1993. These serious injury

and mortality levels represent an annual

incidental mortality and serious injury

that is greater than 50 percent of the

PBR levels for these species.

The serious injury of a right whale in

1993 was reported by the observer

program. It was not an observed

mortality; therefore it was not reported

as an ‘‘observed kill.’’ NMFS believes,

however, that this whale probably died

from injuries sustained in this incident.

One serious injury or mortality of a right

whale is greater than 50 percent of the

PBR level for this species. Therefore,

this fishery would also fall into Category

I based on interactions with right

whales. New England multispecies sink

gillnet (including species as defined in

the Multispecies Fisheries Management

Plan and spiny dogfish and monkfish)

Tier 1 evaluation: Incidental annual

mortality and serious injury across all

fisheries for all stocks interacting with

this fishery—with the exception of grey

seals—is greater than 10 percent of the

PBR level.

Tier 2 evaluation: Extrapolation of

observer data results in an estimated

total serious injury and mortality of 102

Atlantic white-sided dolphins and 1,875

harbor porpoise per year from 1990–93.

These serious injury and mortality

levels represent an annual incidental

mortality and serious injury that is

greater than 50 percent of the PBR levels

for these species.

Atlantic Ocean, Caribbean, Gulf of

Mexico Large Pelagics Longline Fishery

This fishery was listed as Category II

in the previous LOF and is moved to

Category I in this LOF and re-named

‘‘Atlantic Ocean, Caribbean, Gulf of

Mexico Large Pelagics Longline.’’

Tier 1 evaluation: Incidental annual

mortality and serious injury across all

fisheries for pilot whale stock(s)

interacting with this fishery is greater

than 10 percent of the PBR level.

Tier 2 evaluation: Extrapolation of

observer data results in an estimated

total incidental mortality and serious

injury of 26 pilot whales per year from

1992–93. This represents an annual

incidental mortality and serious injury

that is greater than 50 percent of the

PBR level for either long-finned or

short-finned pilot whales. Therefore,

this fishery is moved from Category II to

Category I.

This reclassification is supported by

MMEP logbook data, which includes

reports of injury or mortality of an

average of nine pilot whales (stock

unspecified) per year for the years 1990

to 1992. NMFS has also received

sighting reports (both at sea and

stranded) of whales carrying gear that

may be attributable to the pelagic

longline fishery.

Category II

U.S. Mid-Atlantic Coastal Gillnet

Fishery

Tier 1 evaluation: Incidental mortality

and serious injury across all fisheries for

harbor porpoise, coastal bottlenose

dolphins, and humpback whales, which

are known to interact with this fishery,

is greater than 10 percent of the PBR

levels for these stocks. Therefore this

fishery is subject to Tier 2 analysis.

Tier 2 evaluation: Little observer

coverage occurred in this fishery

between 1989 and 1993. No serious

injuries and mortalities were observed

during those years. Therefore, no annual

incidental mortality and serious injury

from this fishery can be reported from

observer data for these years. Based on

observer coverage in 1994,

entanglements of humpback whales and

dolphins observed by NMFS and the

public (not the observer program) and

evidence of gillnet entanglement

observed in stranded harbor porpoise,

bottlenose dolphins, and humpback

whales, NMFS believes that annual

serious injury and mortality for these

species due to this fishery is greater

than 1 percent but less than 50 percent

of the PBR levels for these stocks.

Therefore this fishery is placed in

Category II. For clarification of how the

stranding data were used in this

analysis, see the proposed LOF (60 FR

31680, June 16, 1995).

Gulf of Maine Small Pelagics Surface

Gillnet

Occasional anecdotal reports of

mortalities and injuries of marine

mammals incidental to this fishery have

been reported. Because there have been

reports of mortalities in this fishery, it

is placed in Category II.

Southeast U.S. Atlantic Shark Gillnet

Fishery

Tier 1 evaluation: Incidental annual

mortality and serious injury across all

fisheries for the western North Atlantic

coastal bottlenose dolphin stock

interacting with this fishery are greater

than 10 percent of the PBR level.

Tier 2 evaluation: Observer data for

this fishery indicate that mortality to the

western North Atlantic coastal

bottlenose dolphin stock due to this

fishery is 4 percent; thus, the fishery

belongs in Category II.

In addition, a young right whale calf

was observed off the northern coast of

Florida, which had wounds indicative

of interaction with gillnet gear in

February 1994. The animal also

exhibited propeller wounds believed by

researchers investigating the incident to

have been inflicted by the fishery vessel

responsible for the net wounds. It was

concluded that the shark gillnet fishery

was the only large mesh gillnet fishery

operating in that area at the time. The

animal has not been sighted since, and

is presumed to be dead. Another

suspected interaction between this

fishery and a right whale cow was also

reported in this same year, although it

is believed that this particular

interaction was not fatal.

Atlantic Squid, Mackerel, Butterfish

Trawl

This fishery was proposed to combine

‘‘Mid-Atlantic Squid Trawl’’ and ‘‘MidAtlantic Mackerel Trawl’’ from the 1994

LOF. The proposed LOF called this

fishery the ‘‘Atlantic mid-water trawl.’’

In the final LOF, the fishery is renamed

‘‘Atlantic Squid, Mackerel, Butterfish

Trawl’’ with no reference to whether

fishermen are using bottom or midwater gear.

Tier 1 evaluation: Based on MMEP

logbook reports from the squid and

mackerel trawl fisheries, incidental

annual mortality and serious injury

across all fisheries for all stocks

reported to interact with this fishery are

greater than 10 percent of the PBR level.

Tier 2 evaluation: MMEP logbook data

averaged over 1990–92 result in

reported serious injuries and mortalities

of five pilot whales per year. This

represents a minimum serious injury

and mortality level of greater than 1
67082 Federal Register / Vol. 60, No. 249 / Thursday, December 28, 1995 / Rules and Regulations

percent but less than 50 percent of the

PBR level for either long-finned or

short-finned pilot whales. Therefore,

this fishery is placed in Category II.

North Carolina Haul Seine

Representatives of the North Carolina

marine mammal stranding network have

noted interactions between this gear and

western North Atlantic coastal

bottlenose dolphins. Three dolphins

were observed as they were released live

from this gear; on another occasion, one

dolphin was recovered dead from an

interaction with a haul seine. These

observations support the decision to

place this new fishery in Category II

until NMFS has more data with which

to support this or another classification.

North Carolina Roe Mullet Stop Net

Tier 1 evaluation: Incidental annual

mortality and serious injury across all

fisheries for the coastal bottlenose

dolphin stock interacting with this

fishery is greater than 10 percent of

PBR.

Tier 2 evaluation: Evidence of

mortality due to stop net entanglement

observed in stranded western North

Atlantic coastal bottlenose dolphins

indicate that annual serious injury and

mortality related to this fishery for this

stock is greater than 1 percent but less

than 50 percent of PBR. Therefore, this

fishery is placed in Category II.

Category III

Rhode Island, Southern Massachusetts

(to Monomoy Island), and New York

Bight (Raritan and Lower New York

Bays) Inshore Gillnet

At this time there is no information

available to suggest that serious injury

and mortality of marine mammals occur

incidental to this fishery. Based on

patterns of marine mammal distribution,

likelihood of encounters with cetaceans

is low, but encounters with seals may

occur. This fishery was separated from

other Mid-Atlantic gillnet fisheries to

account for differences in cetacean

distribution. A closer examination of

more recent stranding and entanglement

records may provide information to

support re-classification of this fishery

in the future.

Long Island Sound Inshore Gillnet

At this time there is no available

information to suggest that serious

injury and mortality of marine mammals

occur incidental to this fishery. Based

on patterns of marine mammal

distribution, likelihood of encounters

with cetaceans is low, but encounters

with seals may occur. This fishery was

separated from other Mid-Atlantic

gillnet fisheries to account for

differences in cetacean distribution. A

closer examination of more recent

stranding and entanglement records

may provide information to support reclassification of this fishery in the

future.

Delaware Bay Inshore Gillnet

At this time, there is no available

information to suggest that serious

injury and mortality of marine mammals

occur incidental to this fishery. Based

on patterns of marine mammal

distribution, likelihood of encounters is

low. This fishery was separated from

other Mid-Atlantic gillnet fisheries to

account for differences in marine

mammal distribution. A closer

examination of more recent stranding

and entanglement records may provide

information to support re-classification

of this fishery in the future.

Chesapeake Bay Inshore Gillnet

This fishery was listed as a Category

III in the previous LOF and remains in

Category III in this LOF. This listing was

inadvertently omitted from the

proposed LOF.

At this time, there is no available

information to suggest that serious

injury and mortality of marine mammals

occur incidental to this fishery. Based

on patterns of marine mammal

distribution, likelihood of encounters is

low. This fishery was separated from

other Mid-Atlantic gillnet fisheries to

account for differences in marine

mammal distribution. A closer

examination of more recent stranding

and entanglement records may provide

information to support re-classification

of this fishery in the future.

North Carolina Inshore Gillnet

No marine mammal serious injuries or

mortalities have been documented

incidental to this fishery. All marine

mammal strandings exhibiting evidence

of gillnet fishery interactions recovered

by the North Carolina marine mammal

stranding network since at least 1992

have been from offshore locations.

However, as marine mammals stranded

in the marshes are difficult to detect,

stranding data will reflect this bias.

NMFS agrees that there is potential for

interaction and will continue to collect

stranding and other information on this

fishery.

Gulf of Mexico Inshore Gillnet (black

drum, sheepshead, weakfish, mullet,

spot, croaker)

Inshore gillnet fisheries in the Gulf of

Mexico have been classified by analogy

with similar inshore fisheries in the

mid-Atlantic. The PBR levels for stocks

of bottlenose dolphins in the Gulf of

Mexico bays, sounds, and estuaries are

low, because dolphin numbers and

densities in many of these areas are low.

These low densities also decrease the

likelihood of a fishery interacting with

dolphins in these areas. Net bans and

restrictions in states such as Texas,

Florida, and Louisiana, further decrease

chances of gillnet fisheries interactions

with marine mammals in inshore waters

of Gulf states. However, researchers

have noted that dolphin densities in

some Gulf bays/sounds may be higher

than that commonly observed in similar

Atlantic bays. Also, detection of

stranded animals is much less likely

along marshy coastlines than on coastal

beaches; thus, stranding data will reflect

this bias. NMFS agrees that there is

potential for interaction between marine

mammals and this fishery.

Offshore Monkfish Bottom Gillnet

This is a new fishery to the LOF and

may have been listed incorrectly as

Category III in the proposed LOF.

Because this fishery may have a high

potential to take many cetacean species

based on analogy with other shelf-edge

fisheries, such as the large pelagic drift

net fishery, NMFS will examine

available data during the development

of the next proposed LOF for possible

re-classification of this fishery as

Category II.

Southeastern U.S. Atlantic, Gulf of

Mexico Coastal Gillnet

Although coastal gillnet fisheries have

been banned in Florida State waters,

and only shark and shad/sturgeon may

be fished using gillnet in South Carolina

and Georgia State waters, the

‘‘Southeastern U.S. Atlantic’’

component of this fishery will be

retained in this final LOF. If there are no

participants in this component of the

coastal gillnet fishery when the next

proposed LOF is developed, NMFS will

consider proposing to remove this

fishery from the LOF. Any strandings

that can be determined to have occurred

incidental to gillnet operations in

Florida, Georgia, or South Carolina,

would have to be attributed to the other

gillnet operations that occur in these

areas (i.e., shark gillnet or shad/sturgeon

gillnet fisheries).

Stranding data from the Gulf of

Mexico indicate that gillnet interactions

with coastal stocks of bottlenose

dolphins may warrant classification of

this fishery in Category II. This may be

examined during preparation of a future

proposed LOF.

Florida Mullet Gillnet

This fishery has been removed from

LOF due to the Florida net ban. Some
Federal Register / Vol. 60, No. 249 / Thursday, December 28, 1995 / Rules and Regulations 67083

fishers that previously fished in Florida

waters may be working in Louisiana

waters; what remains of this fishery is

combined with the other Gulf of Mexico

gillnet fisheries.

North Atlantic Bottom Trawl

Tier 1 evaluation: Incidental annual

mortality and serious injury across all

fisheries for all marine mammal stocks

interacting with this fishery is greater

than 10 percent of the PBR levels.

Tier 2 evaluation: Annual incidental

mortality and serious injury from this

fishery reported by the observer

program (averaged over 1989–93) is

greater than 50 percent of the PBR level

for striped dolphins, coastal bottlenose

dolphins, and pilot whales. Therefore,

this fishery would have been placed in

Category I. However, because the

observer coverage in this fishery is low,

the estimated serious injury and

mortality levels are statistically weak.

Thus, NMFS believes this fishery

should remain in Category III at this

time. The proposed LOF included

further justification for this decision (60

FR 31680–31681, June 16, 1995). NMFS

anticipates having additional

information from other observer

programs that may result in a

reclassification of this fishery in a future

proposed LOF.

Mid-Atlantic, U.S. South Atlantic, Gulf

of Mexico Shrimp Trawl

Tier 1 evaluation: Incidental annual

mortality and serious injury across all

fisheries for all marine mammal stocks

interacting with this fishery is less than

10 percent of the PBR level.

Over 10,000 hours of observer effort

in this fishery have been logged in the

Atlantic, and over 17,000 have been

logged in the Gulf. No takes of any

marine mammal species have been

observed. However, a Category III report

submitted from a shrimp trawl fisher off

Key West indicated a dolphin mortality

occurred due to entanglement with the

lazy line. This incident took place

offshore, on the Gulf side of Key West,

and thus likely involved the eastern

coastal Gulf of Mexico stock of

bottlenose dolphins.

Gulf of Maine Menhaden Purse Seine

This fishery was grouped with the

Mid-Atlantic menhaden purse seine

fishery in the proposed LOF. In this

final LOF, the fishery is divided into

‘‘Gulf of Maine menhaden purse seine’’

and ‘‘Mid-Atlantic menhaden purse

seine’’ because serious injuries and

mortalities of bottlenose dolphins in the

Gulf of Maine portion of this fishery are

unlikely.

The Gulf of Maine menhaden purse

seine fishery is placed in Category III

based on a low probability of marine

mammal encounters resulting in serious

injury or mortality. This fishery may

interact with harbor seals, minke

whales, and humpback whales.

However, NMFS believes that these

interactions would not represent a

serious injury or mortality level above 1

percent of PBR levels for these species

and that the Gulf of Maine menhaden

purse seine fishery is appropriately

placed in Category III.

Mid-Atlantic Menhaden Purse Seine

This fishery was grouped with the

Gulf of Maine menhaden purse seine

fishery in the proposed LOF. In this

final LOF, the fishery is divided into

‘‘Gulf of Maine menhaden purse seine,’’

and ‘‘Mid-Atlantic menhaden purse

seine’’ because serious injuries and

mortalities of bottlenose dolphins in the

Gulf of Maine portion of this fishery are

unlikely.

This fishery was erroneously

proposed to be placed in Category II in

the proposed LOF, because incidental

takes of bottlenose dolphins that

occurred in the Gulf of Mexico

menhaden purse seine were attributed

to the Mid-Atlantic menhaden purse

seine. This error has been corrected, and

the Mid-Atlantic menhaden purse seine

is placed in Category III in this final

LOF.

Gulf of Mexico Menhaden Purse Seine

Information on bycatch studies in this

fishery, recently made available to the

NMFS Southeast Region, indicate that

mortalities of bottlenose dolphin of the

northern Gulf of Mexico coastal stock

have been observed in this fishery (two

observed mortalities in 1992, two caught

live and released in 1994, and one

mortality to date in 1995). Additionally,

category III reports indicate that three

dolphins were taken in 1993. Complete

effort data for the bycatch study is not

yet available; however, the available

information indicates that

reclassification of this fishery may be

proposed in a future LOF. NMFS will

continue to investigate available

information as well as monitor future

results of the bycatch study to

determine whether reclassification is

justified for this fishery.

Gulf of Maine, U.S. Mid-Atlantic Mixed

Species Trap/Pot

U.S. Mid-Atlantic Black Sea Bass Trap/

Pot

Gulf of Maine, U.S. Mid-Atlantic

Inshore Lobster Pot

Gulf of Maine, U.S. Mid-Atlantic

Offshore Lobster Trap/Pot

Atlantic Ocean, Gulf of Mexico Blue

Crab Trap/Pot

U.S. South Atlantic, Gulf of Mexico,

Caribbean Spiny Lobster Trap/Pot

Entanglements of cetacean stocks in

pot and/or trap fisheries have been well

documented. The degree to which

marine mammals become entangled in

pot and/or trap fisheries and whether a

reclassification of some or all pot and/

or trap fisheries is warranted, may be

investigated in a future proposed LOF.

Gulf of Maine Herring and Atlantic

Mackerel Stop Seine/Weir

No new information has been

received which would change or

confirm the placement of this fishery in

Category III. NMFS believes that if

interactions of this fishery with harbor

porpoise occur, there would not be a

serious injury or mortality level that

would represent greater than 1 percent

of the PBR level for harbor porpoise.

U.S. Mid-Atlantic Mixed Species Stop

Seine/Weir (Except the North Carolina

Roe Mullet Stop Net)

This fishery includes the pound net

fishery. The EA states that there is one

report of a bottlenose dolphin mortality

in the observed Chesapeake Bay pound

net fishery. However, data indicates that

more than one stranded dolphin has

been found wrapped in pound net gear.

In addition, a Kogia was recovered from

pound net gear in North Carolina, in

1993. Classification of this fishery will

be re-evaluated in a future proposed

LOF.

List of Fisheries

The following two tables list the

commercial fisheries of the United

States according to their MMPA section

118 categories. The estimated number of

vessels 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 1994

LOF is used.

The information on which marine

mammal species/stocks are involved in

interactions with the fishery is based on

observer data, logbook data, stranding

reports, and fishers’ reports. Only those

species or stocks known to incur injury

or mortality incidental to specific

fisheries are listed. An asterisk (*)

indicates that the stock is a strategic

stock; a plus (+) indicates that the stock

is listed as threatened or endangered

under the ESA.
67084 Federal Register / Vol. 60, No. 249 / Thursday, December 28, 1995 / Rules and Regulations

TABLE 1.—LIST OF FISHERIES—COMMERCIAL FISHERIES IN THE PACIFIC OCEAN

Fishery description

Estimated

No. of vessels/persons

Marine mammal species/stocks incidentally injured/killed

Category I:

Gillnet fisheries:

CA angel shark/halibut and other

species large mesh (>3.5in) set

gillnet fishery.

80 Harbor porpoise, central CA; Common dolphin, short-beaked, CA/OR/WA; Common

dolphin, long-beaked, CA; California sea lion, U.S.; Harbor seal, CA; Northern elephant seal, CA breeding.

CA/OR thresher shark/swordfish

drift gillnet fishery.

150 Steller sea lion, Eastern U.S.*+; Sperm whale, CA to WA*+; Dall’s porpoise, CA/OR/

WA; Pacific white sided dolphin, CA/OR/WA; Risso’s dolphin, CA/OR/WA;

Bottlenose dolphin, CA/OR/WA offshore Common dolphin, short-beaked, CA/OR/

WA; Common dolphin, long-beaked, CA; Northern right whale dolphin, CA/OR/

WA; Short-finned pilot whale, CA/OR/WA*; Baird’s beaked whale, CA/OR/WA;

Mesoplodont beaked whales, CA to WA*; Cuvier’s beaked whale, CA/OR/WA;

Pygmy sperm whale, CA/OR/WA*; California sea lion, U.S.; Harbor seal, CA;

Northern elephant seal, CA breeding; Harbor porpoise, OR/WA coastal; Humpback whale, CA/OR/WA-Mexico.

Category II:

Gillnet fisheries:

AK Prince William Sound salmon

drift gillnet.

509 Steller sea lion, Western U.S.*+; Northern fur seal, North Pacific*; Harbor seal,

GOA; Pacific white-sided dolphin, central North Pacific; Harbor porpoise, AK;

Dall’s porpoise, AK.

AK Peninsula/Aleutians salmon

drift gillnet fishery.

107 Northern fur seal, North Pacific; Harbor seal, GOA; Harbor seal, Bering Sea; Harbor

porpoise, AK; Dall’s porpoise, AK; Northern (Alaska) sea otter, Pacific.

AK Peninsula/Aleutian Island

salmon set gillnet.

120 Steller sea lion, Western U.S.*+; Harbor porpoise, AK.

Southeast Alaska salmon drift

gillnet fishery.

443 Steller sea lion, Eastern U.S.*+; Harbor seal, Southeast AK; Pacific white-sided dolphin, central North Pacific; Harbor porpoise, AK; Dall’s porpoise, AK; Humpback

whale, central North Pacific*+.

AK Cook Inlet drift gillnet .............. 554 Steller sea lion, Western U.S.*+; Harbor seal, GOA; Harbor porpoise, AK; Dall’s porpoise, AK.

AK Cook Inlet salmon set gillnet .. 633 Steller sea lion, Western U.S.*+; Harbor seal, GOA; Harbor porpoise, AK; Beluga,

Cook Inlet.

AK Yakutat salmon set gillnet ...... 152 Harbor seal, Southeast AK.

AK Kodiak salmon set gillnet ........ 162 Harbor seal, GOA; Harbor porpoise, AK.

AK Bristol Bay drift gillnet ............. 1,741 Steller sea lion, Western U.S.*+; Northern fur seal, North Pacific*; Harbor seal, Bering Sea; Beluga, Bristol Bay; Gray whale, Eastern North Pacific.

AK Bristol Bay set gillnet .............. 888 Harbor seal, Bering Sea; Beluga, Bristol Bay; Gray whale, Eastern North Pacific.

AK Metlakatla/Annette Island

salmon drift gillnet.

60 None documented.

WA Puget Sound Region salmon

drift gillnet fishery (includes all

inland waters south of US-Canada border and eastward of the

Bonilla-Tatoosh line—Treaty Indian fishing is excluded).

1,044 Harbor porpoise, inland WA; Dall’s porpoise, CA/OR/WA; Harbor seal, WA inland.

Purse seine fisheries:

CA anchovy, mackerel, tuna

purse seine.

150 Bottlenose dolphin, CA/OR/WA offshore; California sea lion, U.S.; Harbor seal, CA.

AK Southeast salmon purse seine 443 Humpback whale, central North Pacific*+.

Trawl fisheries:

AK pair trawl ................................. 2 None documented.

Longline fisheries:

OR swordfish/blue shark surface

longline fishery.

30 None documented.

Category III:

Gillnet fisheries:

AK Prince William Sound set

gillnet.

29 Steller sea lion, Western U.S.*+; Harbor seal, GOA.

AK Kuskokwim, Yukon, Norton

Sound, Kotzebue salmon gillnet.

1,651 None documented.

AK roe herring and food/bait herring gillnet.162 None documented.

WA, OR herring, smelt, shad,

sturgeon, bottom fish, mullet,

perch, rockfish gillnet.

913 None documented.

WA Willapa Bay drift gillnet .......... 82 Harbor seal, OR/WA coast; Northern elephant seal, CA breeding.

WA Grays Harbor salmon drift

gillnet (excluding treaty Tribal

fishing).

24 Harbor seal, OR/WA coast.

WA, OR lower Columbia River (includes tributaries) drift gillnet.40 California sea lion, U.S.; Harbor seal, OR/WA coast.
Federal Register / Vol. 60, No. 249 / Thursday, December 28, 1995 / Rules and Regulations 67085

TABLE 1.—LIST OF FISHERIES—COMMERCIAL FISHERIES IN THE PACIFIC OCEAN—Continued

Fishery description

Estimated

No. of vessels/persons

Marine mammal species/stocks incidentally injured/killed

CA set and drift gillnet fisheries

that use a stretched mesh size

of 3.5 in or less.

341 None documented.

AK miscellaneous finfish set

gillnet.

9 Steller sea lion, Western U.S.*+.

Hawaii gillnet ................................. 115 Bottlenose dolphin, Hawaiian; Spinner dolphin, Hawaiian.

Purse seine, beach seine, round haul

and throw net fisheries:

AK salmon purse seine (except

Southeast Alaska, which is in

Category II).

1,053 Harbor seal, GOA.

AK salmon beach seine ................ 34 None documented.

AK roe herring and food/bait herring purse seine.866 None documented.

AK roe herring and food/bait herring beach seine.14 None documented.

AK Metlakatla purse seine ............ 3 None documented.

AK octopus/squid purse seine ...... 3 None documented.

CA herring purse seine ................. 100 Bottlenose dolphin, CA coastal; California sea lion, U.S.; Harbor seal, CA.

CA sardine purse seine ................ 120 None documented.

CA squid purse seine ................... 145 California sea lion, U.S.

AK miscellaneous finfish purse

seine.

6 None documented.

AK miscellaneous finfish beach

seine.

4 None documented.

WA salmon purse seine ............... 440 None documented.

WA salmon reef net ...................... 53 None documented.

WA, OR herring, smelt, squid

purse seine or lampara.

130 None documented.

WA (all species) beach seine or

drag seine.

235 None documented.

HI purse seine .............................. 18 None documented.

HI opelu/akule net ......................... 16 None documented.

HI throw net, cast net ................... 47 None documented.

Dip net fisheries:

WA, OR smelt, herring dip net ..... 119 None documented.

CA squid dip net ........................... 115 None documented.

Marine aquaculture fisheries:

WA, OR salmon net pens ............. 21 California sea lion, U.S.

CA salmon enhancement rearing

pen.

>1 None documented.

OR salmon ranch .......................... 1 None documented.

Troll fisheries:

AK salmon troll ............................. 1,450 Steller sea lion, Eastern U.S.*+.

CA/OR/WA salmon troll ................ 4,300 None documented.

AK north Pacific halibut, AK bottom fish, WA, OR, CA albacore,

groundfish, bottom fish, CA halibut non-salmonid troll fisheries.

1,354 None documented.

HI trolling, rod and reel ................. 1,795 None documented.

Guam tuna troll ............................. 50 None documented.

Commonwealth of the Northern

Mariana Islands tuna troll.

50 None documented.

American Samoa tuna troll ........... <50 None documented.

HI net unclassified ........................ 106 None documented.

Longline/set line fisheries:

AK state waters sablefish long

line/set line.

240 None documented.

Miscellaneous finfish/groundfish

longline/set line.

838 Harbor seal, GOA; Harbor seal, Bering Sea; Northern elephant seal, CA breeding.

HI swordfish, tuna, billfish, mahi

mahi, wahoo, oceanic sharks

longline/set line.

140 Hawaiian monk seal, HI*+; Humpback whale, Central North Pacific*+; Risso’s dolphin, Hawaiian; Bottlenose dolphin, Hawaiian.

WA, OR North Pacific halibut

longline/set line.

350 None documented.

AK southern Bering Sea, Aleutian

Islands, and Western Gulf of

Alaska sablefish longline/set

line (federally regulated waters).

226 Northern elephant seal, CA breeding; Killer whale, resident; Killer whale, transient.
67086 Federal Register / Vol. 60, No. 249 / Thursday, December 28, 1995 / Rules and Regulations

TABLE 1.—LIST OF FISHERIES—COMMERCIAL FISHERIES IN THE PACIFIC OCEAN—Continued

Fishery description

Estimated

No. of vessels/persons

Marine mammal species/stocks incidentally injured/killed

AK halibut longline/set line (state

and Federal waters).

213 Steller sea lion, Western U.S.*+.

WA, OR, CA groundfish,

bottomfish longline/set line.

367 None documented.

AK octopus/squid longline ............ 1 None documented.

CA shark/bonito longline/set line .. 10 None documented.

Trawl fisheries:

WA, OR, CA shrimp trawl ............. 300 None documented.

AK shrimp otter trawl and beam

trawl (statewide and Cook Inlet).

48 None documented.

AK Gulf of Alaska groundfish trawl 490 Steller sea lion, Western U.S.*+; Northern fur seal, North Pacific*; Harbor seal,

GOA; Dall’s porpoise, AK; Northern elephant seal, CA breeding.

AK Bering Sea and Aleutian Islands groundfish trawl.490 Steller sea lion, Western U.S.*+; Northern fur seal, North Pacific*; Killer whale, resident; Killer whale, transient; Pacific white-sided dolphin, central North Pacific; Harbor porpoise, AK; Harbor seal, Bering Sea; Harbor seal, GOA; Bearded seal, AK;

Ringed seal, AK; Dall’s porpoise, AK; Spotted seal, AK; Ribbon seal, AK; Northern

elephant seal, CA breeding; Northern (Alaska) sea otter, Pacific; Walrus, Pacific.

AK state-managed waters of Cook

Inlet, Kachemak Bay, Prince

William Sound, Southeast AK

groundfish trawl.

8 None documented.

AK miscellaneous finfish otter or

beam trawl.

324 None documented.

AK food/bait herring trawl ............. 2 None documented.

WA, OR, CA groundfish trawl ....... 585 Steller sea lion, Western U.S.*+; Northern fur seal, North Pacific*; Pacific whitesided dolphin, central North Pacific; Dall’s porpoise, CA/OR/WA; California sea

lion, U.S.; Harbor seal, OR/WA coast.

Pot, ring net, and trap fisheries:

AK crustacean pot ........................ 1,951 None documented.

AK Bering Sea, GOA finfish pot ... 226 Harbor seal, GOA; Northern (AK) sea otter, Pacific.

WA, OR, CA sablefish pot ............ 176 None documented.

WA, OR, CA crab pot ................... 1,478 None documented.

WA, OR shrimp pot and trap ........ 254 None documented.

CA lobster, prawn, shrimp, rock

crab, fish pot.

608 None documented.

OR, CA hagfish pot or trap ........... 25 None documented.

HI lobster trap ............................... 15 Hawaiian monk seal, HI*+.

HI crab trap ................................... 22 None documented.

HI fish trap .................................... 19 None documented.

HI shrimp trap ............................... 5 None documented.

Handline and jig fisheries:

AK North Pacific halibut handline

and mechanical jig.

84 None documented.

AK other finfish handline and mechanical jig.474 None documented.

AK octopus/squid handline ........... 2 None documented.

WA groundfish, bottomfish jig ....... 679 None documented.

HI aku boat, pole and line ............ 54 None documented.

HI inshore handline ....................... 650 Bottlenose dolphin, HI.

HI deep sea bottomfish ................ 434 Hawaiian monk seal, HI*+.

HI tuna .......................................... 144 Rough-toothed dolphin, HI; Bottlenose dolphin, HI; Hawaiian monk seal, HI*+.

Guam bottomfish .......................... <50 None documented.

Commonwealth of the Northern

Mariana Islands bottomfish.

<50 None documented.

American Samoa bottomfish ........ <50 None documented.

Harpoon fisheries:

CA swordfish harpoon .................. 228 None documented.

Pound net/weir fisheries:

AK Southeast Alaska herring

food/bait pound net.

7 None documented.

WA herring brush weir .................. 1 None documented.

Bait pens:

WA/OR/CA bait pens .................... 13 None documented.

Dredge fisheries:

Coastwide scallop dredge ............ 106 None documented.

Dive, hand/mechanical collection fisheries:

AK abalone ................................... 177 None documented.

AK dungeness crab ...................... 1 None documented.
Federal Register / Vol. 60, No. 249 / Thursday, December 28, 1995 / Rules and Regulations 67087

TABLE 1.—LIST OF FISHERIES—COMMERCIAL FISHERIES IN THE PACIFIC OCEAN—Continued

Fishery description

Estimated

No. of vessels/persons

Marine mammal species/stocks incidentally injured/killed

AK herring spawn-on-kelp ............ 306 None documented.

AK urchin and other fish/shellfish . 127 None documented.

AK clam hand shovel .................... 125 None documented.

AK clam mechanical/hydraulic

fishery.

3 None documented.

WA herring spawn-on-kelp ........... 4 None documented.

WA/OR sea urchin, other clam,

octopus, oyster, sea cucumber,

scallop, ghost shrimp hand,

dive, or mechanical collection.

637 None documented.

CA abalone ................................... 111 None documented.

CA sea urchin ............................... 583 None documented.

HI squiding, spear ......................... 267 None documented.

HI lobster diving ............................ 6 None documented.

HI coral diving ............................... 2 None documented.

HI handpick ................................... 135 None documented.

WA shellfish aquaculture .............. 684 None documented.

WA, CA kelp ................................. 4 None documented.

HI fish pond .................................. 10 None documented.

Commercial passenger fishing vessel

(charter boat) fisheries:

AK, WA, OR, CA commercial passenger fishing vessel.1,243 None documented.

AK octopus/squid ‘‘other’’ ............. 19 None documented.

HI ‘‘other’’ ...................................... 114 None documented.

Live finfish/shellfish fisheries:

CA finfish and shellfish live trap/

hook-and-line.

93 None documented.

TABLE 2.—LIST OF FISHERIES—COMMERCIAL FISHERIES IN THE ATLANTIC OCEAN, GULF OF MEXICO, AND CARIBBEAN

Description of fishery

Estimated

No. of vessels/persons

Marine mammal species/stocks incidentally injured/killed

Category I:

Pair trawl fisheries:

U.S. Atlantic large pelagics pair

trawl.

7 Risso’s dolphin, WNA; Long-finned pilot whale, WNA*; Common dolphin, WNA*;

Bottlenose dolphin, WNA offshore*.

Gillnet fisheries:

Atlantic Ocean, Caribbean, Gulf of

Mexico large pelagics drift

gillnet.

75 North Atlantic right whale, WNA*+; Humpback whale, WNA*+; Sperm whale,

WNA*+; Dwarf sperm whale, WNA*; Pygmy sperm whale, WNA*; Cuvier’s beaked

whale, WNA*; True’s beaked whale, WNA*; Gervais’ beaked whale, WNA*;

Blainville’s beaked whale, WNA*; Risso’s dolphin, WNA; Long-finned pilot whale,

WNA*; Short-finned pilot whale, WNA*; White-sided dolphin, WNA*; Common dolphin, WNA*; Atlantic spotted dolphin, WNA*; Pantropical spotted dolphin, WNA*;

Striped dolphin, WNA; Spinner dolphin, WNA; Bottlenose dolphin, WNA offshore*;

Harbor porpoise, GME/BF*.

New England multispecies sink

gillnet (including species as defined in the Multispecies Fisheries Management Plan and

spiny dogfish and monkfish).

341 North Atlantic right whale, WNA*+; Humpback whale, WNA*+; Minke whale, Canadian east coast; Killer whale, WNA; White-sided dolphin, WNA*; Striped dolphin,

WNA; Bottlenose dolphin, WNA offshore; Harbor porpoise, GME/BF*; Harbor seal,

WNA; Gray seal, Northwest North Atlantic; Common dolphin; Fin whale; Spotted

dolphin; False killer whale; Harp seal.

Longline fisheries:

Atlantic Ocean, Caribbean, Gulf of

Mexico large pelagics longline.

361 Humpback whale, WNA*+; Minke whale, Canadian east coast; Risso’s dolphin,

WNA; Long-finned pilot whale, WNA*; Short-finned pilot whale, WNA*; Common

dolphin, WNA*; Atlantic spotted dolphin, WNA*; Pantropical spotted dolphin, WNA;

Striped dolphin, WNA; Bottlenose dolphin, WNA offshore*; Bottlenose dolphin,

GMX Outer Continental Shelf; Bottlenose dolphin, GMX Continental Shelf Edge

and Slope; Atlantic spotted dolphin, Northern GMX; Pantropical spotted dolphin,

Northern GMX; Risso’s dolphin, Northern GMX; Harbor porpoise, GME/BF*.

Category II:

Gillnet fisheries:

U.S. mid-Atlantic coastal gillnet

fishery.

>655 Humpback whale, WNA*+; Minke whale, Canadian east coast; Bottlenose dolphin,

WNA offshore*; Bottlenose dolphin, WNA coastal*+; Harbor porpoise, GME/BF*.

Gulf of Maine small pelagics surface gillnet.133 Humpback whale, WNA*+; White-sided dolphin, WNA; Harbor seal, WNA.
67088 Federal Register / Vol. 60, No. 249 / Thursday, December 28, 1995 / Rules and Regulations

TABLE 2.—LIST OF FISHERIES—COMMERCIAL FISHERIES IN THE ATLANTIC OCEAN, GULF OF MEXICO, AND CARIBBEAN—

Continued

Description of fishery

Estimated

No. of vessels/persons

Marine mammal species/stocks incidentally injured/killed

Southeastern U.S. Atlantic shark

gillnet fishery.

10 Bottlenose dolphin, WNA coastal*; North Atlantic right whale, WNA*+.

Trawl fisheries:

Atlantic squid, mackerel, butterfish

trawl.

620 Common dolphin, WNA*; Risso’s dolphin, WNA*; Long-finned pilot whale, WNA*;

Short-finned pilot whale, WNA*; White-sided dolphin, WNA*.

Haul seine fisheries:

North Carolina haul seine ............. unknown Bottlenose dolphin, WNA coastal*; Harbor porpoise, GME/BF*.

Stop net fisheries:

North Carolina roe mullet stop net 13 Bottlenose dolphin, WNA coastal*.

Category III:

Gillnet fisheries:

Rhode Island, southern Massachusetts (to Monomoy Island),

and New York Bight (Raritan

and Lower New York Bays)

inshore gillnet.

32 Humpback whale, WNA*+; Bottlenose dolphin, WNA coastal*+; Harbor porpoise,

GME/BF*.

Long Island Sound inshore gillnet 20 Humpback whale, WNA*+; Bottlenose dolphin, WNA coastal*+; Harbor porpoise,

GME/BF*.

Delaware Bay inshore gillnet ........ 60 Humpback whale, WNA*+; Bottlenose dolphin, WNA coastal*+; Harbor porpoise,

GME/BF*.

Chesapeake Bay inshore gillnet ... 45 None documented.

North Carolina inshore gillnet ....... 94 None documented.

Gulf of Mexico inshore gillnet

(black drum, sheepshead,

weakfish, mullet, spot, croaker)unknownNone documented..

Offshore monkfish bottom gillnet .. <50 None documented.

Gulf of Maine, Southeast U.S. Atlantic coastal shad, sturgeon

gillnet (includes waters of North

Carolina).

1,285 Minke whale, Canadian east coast; Harbor porpoise, GME/BF*; Bottlenose dolphin,

WNA coastal*+.

Gulf of Mexico coastal gillnet (includes mullet gillnet fishery in

LA and MS).

.................... Bottlenose dolphin, Western GMX coastal; Bottlenose dolphin, Northern GMX coastal; Bottlenose dolphin, Eastern GMX coastal; Bottlenose dolphin, GMX Bay,

Sound, & Estuarine*.

Southeastern U.S. Atlantic coastal

gillnet.

0.00 Bottlenose dolphin, WNA coastal*+.

Florida east coast, Gulf of Mexico

pelagics king and Spanish

mackerel gillnet.

271 Bottlenose dolphin, Western GMX coastal; Bottlenose dolphin, Northern GMX coastal; Bottlenose dolphin, Eastern GMX coastal; Bottlenose dolphin, GMX Bay,

Sound, & Estuarine*.

Trawl fisheries:

North Atlantic bottom trawl ........... 1,052 Long-finned pilot whale, WNA*; Short-finned pilot whale, WNA*; White-sided dolphin,

WNA*; Striped dolphin, WNA; Bottlenose dolphin, WNA offshore*.

Mid-Atlantic, Southeastern U.S.

Atlantic, Gulf of Mexico shrimp

trawl.

>18,000 Bottlenose dolphin, WNA coastal*+.

Gulf of Maine northern shrimp

trawl.

320 None documented.

Gulf of Maine mackerel trawl ........ 30 None documented.

Gulf of Maine, Mid-Atlantic sea

scallop trawl.

215 None documented.

Gulf of Maine, Southern North Atlantic, Gulf of Mexico coastal

herring trawl.

5 None documented.

Mid-Atlantic mixed species trawl .. >1,000 None documented.

Gulf of Mexico butterfish trawl ...... 2 Atlantic spotted dolphin, Northern GMX; Pantropical spotted dolphin, Northern GMX.

Georgia, South Carolina, Maryland whelk trawl.25 None documented.

Calico scallops trawl ..................... 200 None documented.

Bluefish, croaker, flounder trawl ... 550 None documented.

Crab trawl ..................................... 400 None documented.

U.S. Atlantic monkfish trawl .......... unknown None documented.

Marine aquaculture fisheries:

Finfish aquaculture ....................... 48 None documented.

Shellfish aquaculture .................... unknown None documented.

Purse seine fisheries:

Gulf of Maine Atlantic herring

purse seine.

30 Harbor porpoise, GME/BF*; Harbor seal, WNA; Gray seal, Northwest North Atlantic.
Federal Register / Vol. 60, No. 249 / Thursday, December 28, 1995 / Rules and Regulations 67089

TABLE 2.—LIST OF FISHERIES—COMMERCIAL FISHERIES IN THE ATLANTIC OCEAN, GULF OF MEXICO, AND CARIBBEAN—

Continued

Description of fishery

Estimated

No. of vessels/persons

Marine mammal species/stocks incidentally injured/killed

Mid-Atlantic menhaden purse

seine.

22 Bottlenose dolphin, WNA coastal*+.

Gulf of Maine menhaden purse

seine.

10 None documented.

Gulf of Mexico menhaden purse

seine.

50 Bottlenose dolphin, Northern GMX coastal.

Florida west coast sardine purse

seine.

10 Bottlenose dolphin, Eastern GMX coastal.

U.S. mid-Atlantic hand seine ........ >250 None documented.

Longline/hook-and-line fisheries:

Gulf of Maine tub trawl groundfish

bottom longline/ hook-and-line.

46 Harbor seal, WNA; Gray seal, Northwest North Atlantic.

Southeastern U.S. Atlantic, Gulf of

Mexico snapper-grouper and

other reef fish bottom longline/

hook-and-line.

3,800 None documented.

Southeastern U.S. Atlantic, Gulf of

Mexico shark bottom longline/

hook-and-line.

124 None documented.

Gulf of Maine, U.S. mid-Atlantic

tuna, shark swordfish hook-andline/harpoon.

26,223 None documented.

Southeastern U.S. Atlantic, Gulf of

Mexico & U.S. mid-Atlantic pelagic hook-and-line/harpoon.

1,446 None documented.

Trap/pot fisheries—lobster and crab:

Gulf of Maine, U.S. mid-Atlantic

mixed species trap/pot.

100 North Atlantic right whale, WNA*+; Humpback whale, WNA*+; Minke whale, Canadian east coast; Harbor porpoise, GME/BF*; Harbor seal, WNA; Gray seal, Northwest North Atlantic.

U.S. mid-Atlantic and Southeast

U.S. Atlantic black sea bass

trap/pot.

30 None documented.

U.S. mid-Atlantic eel trap/pot ........ >700 None documented.

Gulf of Maine, U.S. mid-Atlantic

inshore lobster trap/pot.

10,613 North Atlantic right whale, WNA*+; Humpback whale, WNA*+; Fin whale, WNA*;

Minke whale, Canadian east coast; White-sided dolphin, Western North Atlantic;

Harbor seal, WNA.

Gulf of Maine, U.S. mid-Atlantic

offshore lobster trap/pot.

2,902 North Atlantic right whale, WNA*; Humpback whale, WNA*+; Fin whale, WNA*;

Minke whale, Canadian east coast; White-sided dolphin, WNA; Harbor seal, WNA.

Atlantic Ocean, Gulf of Mexico

blue crab trap/pot.

20,500 Bottlenose dolphin, WNA coastal*; Bottlenose dolphin, Western GMX coastal;

Bottlenose dolphin, Northern GMX coastal; Bottlenose dolphin, Eastern GMX

coastal; Bottlenose dolphin, GMX Bay, Sound, & Estuarine*; Florida manatee,

FL*+.

Southeastern U.S. Atlantic, Gulf of

Mexico, Caribbean spiny lobster

trap/pot.

750 Florida manatee, FL*+.

Stop seine/weir/pound fisheries:

Gulf of Maine herring and Atlantic

mackerel stop seine/weir.

50 North Atlantic right whale, WNA*; Humpback whale, WNA*+; Minke whale, Canadian

east coast; Harbor porpoise, GME/BF*; Harbor seal, WNA; Gray seal, Northwest

North Atlantic.

U.S. mid-Atlantic mixed species

stop/seine/weir (except the

North Carolina roe mullet stop

net).

500 None documented.

U.S. mid-Atlantic crab stop seine/

weir.

2,600 None documented.

Dredge fisheries:

Gulf of Maine, U.S. mid-Atlantic

sea scallop dredge.

233 None documented.

U.S. mid-Atlantic offshore

surfclam and quahog dredge.

100 None documented.

Gulf of Maine mussel .................... >50 None documented.

U.S. mid-Atlantic/Gulf of Mexico

oyster.

7,000 None documented.

Haul seine fisheries:

Southeastern U.S. Atlantic, Caribbean haul seine.150 None documented.

Beach seine fisheries:

Caribbean beach seine ................. 15 Florida manatee, FL+.
67090 Federal Register / Vol. 60, No. 249 / Thursday, December 28, 1995 / Rules and Regulations

TABLE 2.—LIST OF FISHERIES—COMMERCIAL FISHERIES IN THE ATLANTIC OCEAN, GULF OF MEXICO, AND CARIBBEAN—

Continued

Description of fishery

Estimated

No. of vessels/persons

Marine mammal species/stocks incidentally injured/killed

Dive, hand/mechanical collection fisheries:

Gulf of Maine urchin dive, hand/

mechanical collection.

>50 None documented.

Atlantic Ocean, Gulf of Mexico,

Caribbean shellfish dive, hand/

mechanical collection.

20,000 None documented.

Commercial passenger fishing vessel

(charter boat) fisheries:

Atlantic Ocean, Gulf of Mexico,

Caribbean commercial passenger fishing vessel.

4,000 None documented.

*Marine Mammal stock is strategic.

+Stock is listed as threatened or endangered under the ESA, or as depleted under the MMPA.

List of Abbreviations Used in Table 2:

FL—Florida.

GA—Georgia.

GME/BF—Gulf of Maine/Bay of Fundy.

GMX—Gulf of Mexico.

NC—North Carolina.

SC—South Carolina

TX—Texas.

WNA—Western North Atlantic.

Classification

This action has been determined to be

not significant for purposes of E.O.

12866.

The Assistant General Counsel for

Legislation and Regulation of the

Department of Commerce certified to

the Small Business Administration that

this rule would not have a significant

economic impact on a substantial

number of small entities. This rule will

require certain fishers to pay a fee to

obtain an Authorization Certificate that

will allow the taking of marine

mammals incidental to commercial

fishing operations.

Approximately 20,000 fishers were

required to register under the old

section 114 regime and pay a $30 fee.

The fee under the new section 118

regime is reduced to $25. This fee with

respect to expected revenues is not

significant.

This final rule does not contain

policies with federalism implications

sufficient to warrant preparation of a

federalism assessment under E.O.

12612.

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 final LOF determines which

vessel owners must register under the

MMPA, and which commercial fishers

must report marine mammal mortalities

and injuries within 48 hours of

returning to port, as required by the

section 118 implementing regulations.

The collections associated with these

registration and reporting requirements

have been approved by OMB under

OMB control numbers 0648–0224 and

0648–0225.

Dated: December 19, 1995.

Gary Matlock,

Program Management Officer, National

Marine Fisheries Service.

[FR Doc. 95–31252 Filed 12–20–95; 4:54 pm]

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