68468 Federal Register / Vol. 75, No. 215 / Monday, November 8, 2010 / Rules and Regulations 

SUPPLEMENTARY INFORMATION: After a 

lengthy, open, and inclusive rulemaking 

process including an advance notice of 

proposed rulemaking (ANPRM), a notice 

of proposed rulemaking (NPRM), public 

meetings, and consultation with the 

Access Board and the Department of 

Justice (DOJ), the Department of 

Transportation issued a final rule (49 

CFR part 39) applying the ADA to the 

policies and practices of passenger 

vessel operators (PVOs). The rule was 

issued on July 6, 2010 (75 FR 38878) 

with an effective date of November 3, 

2010. The final rule included a request 

for comment on three issues: service 

animals, mobility aids, and the general 

consistency of Part 39 with recent DOJ 

rules under Titles II and III of the ADA. 

The Department worked closely with 

DOJ to ensure that part 39, as published, 

is fully consistent with DOJ ADA rules. 

The question raised in the request for 

comments was whether it would be 

appropriate for the Department to make 

changes to the rule that could differ 

from the DOJ rules in some respects. 

The Department received over 30 

comments. About two-thirds of these 

were from advocates of psychiatric 

service animals (PSAs). They supported 

considering such animals to be service 

animals and opposed permitting 

emotional service animals (ESAs) to be 

considered as service animals. Two 

disability organizations supported the 

use of ESAs on ships and urged the 

Department to permit them to travel 

with their users. The Department is not 

making any changes in its rules in 

response to these comments. Part 39’s 

existing definition of service animals 

encompasses PSAs. The preamble to the 

final rule made clear that ESAs, 

consistent with DOJ rules, are not 

considered to be service animals that 

PVOs are required to accommodate, 

though the Department said that it is a 

good idea for PVOs to accept ESAs. 

Two organizations representing PVOs 

commented on the rule. Both urged that 

the Department’s rules be consistent 

with those of DOJ. DOT regards its 

existing rules as being consistent with 

those of DOJ, in general as well as with 

respect to particular matters such as 

service animals and mobility aids. The 

Department is not making any 

substantive changes to its rules, which 

consequently will remain consistent 

with those of DOJ. 

One of these organizations pointed 

out that the DOJ ADA rules become 

effective in six months rather than four, 

and that a DOJ provision on hotel 

reservations had an 18-month effective 

date. It asked that DOT change its 

effective dates to be consistent with 

these DOJ dates. The Department 

believes that these requests are 

reasonable. Consequently, we are 

changing the effective date for most 

provisions of the rule from November 3, 

2010, to January 3, 2011. In addition to 

being consistent with the DOJ time 

frame, this extension will permit more 

time for the Department to work on 

guidance and interpretations that will 

assist regulated parties and the public to 

implement the new rules smoothly. We 

will also extend the effective date for 

the cabin reservations section of the rule 

to January 3, 2012. In addition to being 

consistent with the DOJ time frame for 

hotel reservations, this extension will 

provide additional time for PVOs to 

make necessary changes to their 

computer systems to carry out the 

regulatory requirements. 

Some commenters made comments 

outside the scope of the Department’s 

request for comment. One of the PVO 

organizations expressed its 

disagreement with various provisions of 

the final rule and sought clarification of 

others. Other comments asked for 

clarifications on some issues, such as 

where complaints should be sent or 

coverage of coastwise vessels carrying 

passengers not for hire. We will not 

respond to those comments here, since 

they are beyond the scope of the 

Department’s request for comments, but 

we would note that, in the normal 

course of business, the Department 

regularly provides interpretations of or 

guidance concerning new regulatory 

provisions. We will do so in the case of 

Part 39 where necessary and 

appropriate. 

Regulatory Process Matters 

This stay of effective dates relates to 

an underlying final rule that was 

significant for purposes of Executive 

Order 12886 and the Department’s 

Regulatory Policies and Procedures. 

However, this notice makes no changes 

in the text of the final regulation, and 

the changes to the effective date of the 

rule are not themselves significant. 

These changes do not impose any 

additional costs or burdens on any 

regulated parties, and they provide 

regulated entities, including small 

entities, additional time to comply with 

the regulations. For this reason, the 

Department certifies that these changes 

to the effective dates do not impose 

significant economic effects on a 

substantial number of small entities. 

Issued at Washington, DC, November 2, 

2010. 

Ray LaHood, 

Secretary of Transportation. 

[FR Doc. 2010–28236 Filed 11–5–10; 8:45 am] 

BILLING CODE 4910–9X–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 229 

[Docket No. 100216088–0454–02] 

RIN 0648–AY69 

List of Fisheries for 2011 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: The National Marine 

Fisheries Service (NMFS) publishes its 

final List of Fisheries (LOF) for 2011, as 

required by the Marine Mammal 

Protection Act (MMPA). The final LOF 

for 2011 reflects new information on 

interactions between commercial 

fisheries and marine mammals. NMFS 

must classify each commercial fishery 

on the LOF into one of three categories 

under the MMPA based upon the level 

of serious injury and mortality of marine 

mammals that occurs incidental to each 

fishery. The classification of a fishery on 

the LOF determines whether 

participants in that fishery are subject to 

certain provisions of the MMPA, such as 

registration, observer coverage, and take 

reduction plan requirements. 

DATES: This final rule is effective 

January 1, 2011. 

ADDRESSES: See SUPPLEMENTARY

INFORMATION for a listing of all Regional 

Offices. Comments regarding the 

burden-hour estimates, or any other 

aspect of the collection of information 

requirements contained in this final 

rule, should be submitted in writing to 

Chief, Marine Mammal and Sea Turtle 

Conservation Division, Office of 

Protected Resources, NMFS, 1315 EastWest Highway, Silver Spring, MD 

20910, or to Nathan Frey, OMB, by fax 

to 202–395–7285 or by e-mail to 

Nathan_Frey@omb.eop.gov. 

FOR FURTHER INFORMATION CONTACT: 

Melissa Andersen, Office of Protected 

Resources, 301–713–2322; David 

Gouveia, Northeast Region, 978–281– 

9280; Laura Engleby, Southeast Region, 

727–551–5791; Elizabeth Petras, 

Southwest Region, 562–980–3238; Brent 

Norberg, Northwest Region, 206–526– 

6733; Bridget Mansfield, Alaska Region, 

907–586–7642; Lisa Van Atta, Pacific 

Islands Region, 808–944–2257. 

Individuals who use a 

telecommunications device for the 

hearing impaired may call the Federal 

Information Relay Service at 1–800– 


jlentini on DSKJ8SOYB1PROD with RULES
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877–8339 between 8 a.m. and 4 p.m. 

Eastern time, Monday through Friday, 

excluding Federal holidays. 

SUPPLEMENTARY INFORMATION: 

Availability of Published Materials 

Information regarding the LOF and 

the Marine Mammal Authorization 

Program, including registration 

procedures and forms, current and past 

LOFs, information on each Category I 

and II fishery, observer requirements, 

and marine mammal injury/mortality 

reporting forms and submittal 

procedures, may be obtained at: 

http://www.nmfs.noaa.gov/pr/ 

interactions/lof/, or from any NMFS 

Regional Office at the addresses listed 

below: 

NMFS, Northeast Region, 55 Great 

Republic Drive, Gloucester, MA 

01930–2298, Attn: Marcia Hobbs; 

NMFS, Southeast Region, 263 13th 

Avenue South, St. Petersburg, FL 

33701, Attn: Laura Engleby; 

NMFS, Southwest Region, 501 W. 

Ocean Blvd., Suite 4200, Long Beach, 

CA 90802–4213, Attn: Charles 

Villafana; 

NMFS, Northwest Region, 7600 Sand 

Point Way NE, Seattle, WA 98115, 

Attn: Protected Resources Division; 

NMFS, Alaska Region, Protected 

Resources, P.O. Box 22668, 709 West 

9th Street, Juneau, AK 99802, Attn: 

Bridget Mansfield; or 

NMFS, Pacific Islands Region, Protected 

Resources, 1601 Kapiolani Boulevard, 

Suite 1100, Honolulu, HI 96814–4700, 

Attn: Lisa Van Atta. 

What is the list of fisheries? 

Section 118 of the MMPA requires 

NMFS to place all U.S. commercial 

fisheries into one of three categories 

based on the level of incidental serious 

injury and mortality of marine mammals 

occurring in each fishery (16 U.S.C. 

1387(c)(1)). The classification of a 

fishery on the LOF determines whether 

participants in that fishery may be 

required to comply with certain 

provisions of the MMPA, such as 

registration, observer coverage, and take 

reduction plan requirements. NMFS 

must reexamine the LOF annually, 

considering new information in the 

Marine Mammal Stock Assessment 

Reports (SAR) and other relevant 

sources, and publish in the Federal 

Register any necessary changes to the 

LOF after notice and opportunity for 

public comment (16 U.S.C. 1387 

(c)(1)(C)). 

How does NMFS determine in which 

category a fishery is placed? 

The definitions for the fishery 

classification criteria can be found in 

the implementing regulations for section 

118 of the MMPA (50 CFR 229.2). The 

criteria are also summarized here. 

Fishery Classification Criteria 

The fishery classification criteria 

consist of a two-tiered, stock-specific 

approach that first addresses the total 

impact of all fisheries on each marine 

mammal stock, and then addresses the 

impact of individual fisheries on each 

stock. This approach is based on 

consideration of the rate, in numbers of 

animals per year, of incidental 

mortalities and serious injuries of 

marine mammals due to commercial 

fishing operations relative to the 

potential biological removal (PBR) level 

for each marine mammal stock. The 

MMPA (16 U.S.C. 1362 (20)) defines the 

PBR level as the maximum number of 

animals, not including natural 

mortalities, that may be removed from a 

marine mammal stock while allowing 

that stock to reach or maintain its 

optimum sustainable population. This 

definition can also be found in the 

implementing regulations for section 

118 of the MMPA (50 CFR 229.2). 

Tier 1: If the total annual mortality 

and serious injury of a marine mammal 

stock, across all fisheries, is less than or 

equal to 10 percent of the PBR level of 

the stock, all fisheries interacting with 

the stock would be placed in Category 

III (unless those fisheries interact with 

other stock(s) in which total annual 

mortality and serious injury is greater 

than 10 percent of PBR). Otherwise, 

these fisheries are subject to the next 

tier (Tier 2) of analysis to determine 

their classification. 

Tier 2, Category I: Annual mortality 

and serious injury of a stock in a given 

fishery is greater than or equal to 50 

percent of the PBR level (i.e., frequent 

incidental mortality and serious injuries 

of marine mammals). 

Tier 2, Category II: Annual mortality 

and serious injury of a stock in a given 

fishery is greater than 1 percent and less 

than 50 percent of the PBR level (i.e., 

occasional incidental mortality and 

serious injuries of marine mammals). 

Tier 2, Category III: Annual mortality 

and serious injury of a stock in a given 

fishery is less than or equal to 1 percent 

of the PBR level (i.e., a remote 

likelihood or no known incidental 

mortality and serious injuries of marine 

mammals). 

While Tier 1 considers the cumulative 

fishery mortality and serious injury for 

a particular stock, Tier 2 considers 

fishery-specific mortality and serious 

injury for a particular stock. Additional 

details regarding how the categories 

were determined are provided in the 

preamble to the final rule implementing 

section 118 of the MMPA (60 FR 45086, 

August 30, 1995). 

Because fisheries are classified on a 

per-stock basis, a fishery may qualify as 

one Category for one marine mammal 

stock and another Category for a 

different marine mammal stock. A 

fishery is typically classified on the LOF 

at its highest level of classification (e.g., 

a fishery qualifying for Category III for 

one marine mammal stock and for 

Category II for another marine mammal 

stock will be listed under Category II). 

Other Criteria That May Be Considered 

In the absence of reliable information 

indicating the frequency of incidental 

mortality and serious injury of marine 

mammals by a commercial fishery, 

NMFS will determine whether the 

incidental serious injury or mortality is 

‘‘frequent,’’ ‘‘occasional,’’ or ‘‘remote’’ by 

evaluating other factors such as fishing 

techniques, gear used, methods used to 

deter marine mammals, target species, 

seasons and areas fished, qualitative 

data from logbooks or fisher reports, 

stranding data, and the species and 

distribution of marine mammals in the 

area, or at the discretion of the Assistant 

Administrator for Fisheries (50 CFR 

229.2). Further, eligible commercial 

fisheries not specifically identified on 

the LOF are deemed to be Category II 

fisheries until the next LOF is published 

(50 CFR 229.2). 

How does NMFS determine which 

species or stocks are included as 

incidentally killed or injured in a 

fishery? 

The LOF includes a list of marine 

mammal species or stocks incidentally 

killed or injured in each commercial 

fishery. To determine which species or 

stocks are included as incidentally 

killed or injured in a fishery, NMFS 

annually reviews the information 

presented in the current SARs. The 

SARs are based upon the best available 

scientific information and provide the 

most current and inclusive information 

on each stock’s PBR level and level of 

interaction with commercial fishing 

operations. NMFS also reviews other 

sources of new information, including 

observer data, stranding data, and fisher 

self-reports. 

In the absence of reliable information 

on the level of mortality or injury of a 

marine mammal stock, or insufficient 

observer data, NMFS will determine 

whether a species or stock should be 

added to, or deleted from, the list by 

considering other factors such as: 

changes in gear used, increases or 

decreases in fishing effort, increases or 

decreases in the level of observer 

coverage, and/or changes in fishery 


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68470 Federal Register / Vol. 75, No. 215 / Monday, November 8, 2010 / Rules and Regulations 

management that are expected to lead to 

decreases in interactions with a given 

marine mammal stock (such as a fishery 

management plan (FMP) or a take 

reduction plan (TRP)). NMFS will 

provide case-specific justification in the 

LOF for changes to the list of species or 

stocks incidentally killed or injured. 

How does NMFS determine the levels of 

observer coverage in a fishery on the 

LOF? 

Data obtained from the observer 

program and observer coverage levels 

are important tools in estimating the 

level of marine mammal mortality and 

serious injury in commercial fishing 

operations. The best available 

information on the level of observer 

coverage, and the spatial and temporal 

distribution of observed marine 

mammal interactions, is presented in 

the SARs. Starting with the 2005 SARs, 

each SAR includes an appendix with 

detailed descriptions of each Category I 

and II fishery on the LOF, including 

observer coverage in those fisheries. The 

SARs generally do not provide detailed 

information on observer coverage in 

Category III fisheries because, under the 

MMPA, Category III fisheries are not 

required to accommodate observers 

aboard vessels due to the remote 

likelihood of mortality and serious 

injury of marine mammals. Fishery 

information presented in the SARs’ 

appendices includes: Level of observer 

coverage, target species, levels of fishing 

effort, spatial and temporal distribution 

of fishing effort, characteristics of 

fishing gear and operations, 

management and regulations, and 

interactions with marine mammals. 

Copies of the SARs are available on the 

NMFS Office of Protected Resources’ 

Web site at: http://www.nmfs.noaa.gov/ 

pr/sars/. Information on observer 

coverage levels in Category I and II 

fisheries can also be found in the 

Category I and II fishery summary 

documents on the NMFS Office of 

Protected Resources Web site: http:// 

www.nmfs.noaa.gov/pr/interactions/lof/ 

. Additional information on observer 

programs in commercial fisheries can be 

found on the NMFS National Observer 

Program’s Web site: http:// 

www.st.nmfs.gov/st4/nop/. 

How do I find out if a specific fishery 

is in category I, II, or III? 

This final rule includes three tables 

that list all U.S. commercial fisheries by 

LOF Category. Table 1 lists all of the 

commercial fisheries in the Pacific 

Ocean (including Alaska); Table 2 lists 

all of the commercial fisheries in the 

Atlantic Ocean, Gulf of Mexico, and 

Caribbean; and Table 3 lists all U.S.- 

authorized commercial fisheries on the 

high seas. A fourth table, Table 4, lists 

all commercial fisheries managed under 

applicable take reduction plans or 

teams. 

Are high seas fisheries included on the 

LOF? 

Beginning with the 2009 LOF, NMFS 

includes high seas fisheries in Table 3 

of the LOF, along with the number of 

valid High Sea Fishing Compliance Act 

(HSFCA) permits in each fishery. As of 

2004, NMFS issues HSFCA permits only 

for high seas fisheries analyzed in 

accordance with the National 

Environmental Policy Act (NEPA) and 

the Endangered Species Act (ESA). The 

authorized high seas fisheries are broad 

in scope and encompass multiple 

specific fisheries identified by gear type. 

For the purposes of the LOF, the high 

seas fisheries are subdivided based on 

gear type (e.g., trawl, longline, purse 

seine, gillnet, troll, etc.) to provide more 

detail on composition of effort within 

these fisheries. Many fisheries operate 

in both U.S. waters and on the high 

seas, creating some overlap between the 

fisheries listed in Tables 1 and 2 and 

those in Table 3. In these cases, the high 

seas component of the fishery is not 

considered a separate fishery, but an 

extension of a fishery operating within 

U.S. waters (listed in Table 1 or 2). 

NMFS designates those fisheries in 

Tables 1, 2, and 3 by a ‘‘*’’ after the 

fishery’s name. The number of HSFCA 

permits listed in Table 3 for the high 

seas components of these fisheries 

operating in U.S. waters does not 

necessarily represent additional effort 

that is not accounted for in Tables 1 and 

2. Many vessels/participants holding 

HSFCA permits also fish within U.S. 

waters and are included in the number 

of vessels and participants operating 

within those fisheries in Tables 1 and 2. 

HSFCA permits are valid for five 

years, during which time FMPs can 

change. Therefore, some vessels/ 

participants may possess valid HSFCA 

permits without the ability to fish under 

the permit because it was issued for a 

gear type that is no longer authorized 

under the most current FMP. For this 

reason, the number of HSFCA permits 

displayed in Table 3 is likely higher 

than the actual U.S. fishing effort on the 

high seas. For more information on how 

NMFS classifies high seas fisheries on 

the LOF, see the preamble text in the 

final 2009 LOF (73 FR 73032; December 

1, 2008). 

Where can I find specific information 

on fisheries listed on the LOF? 

NMFS developed summary 

documents for each Category I and II 

fishery on the LOF. These summaries 

provide the full history of each Category 

I and II fishery, including: When the 

fishery was added to the LOF, the basis 

for the fishery’s initial classification, 

classification changes to the fishery, 

changes to the list of species or stocks 

incidentally killed or injured in the 

fishery, fishery gear and methods used, 

observer coverage levels, fishery 

management and regulation, and 

applicable take reduction plans or 

teams, if any. These summaries are 

updated after each final LOF. The 

summaries can be found under ‘‘How Do 

I Find Out if a Specific Fishery is in 

Category I, II, or III?’’ on the NMFS 

Office of Protected Resources’ Web site: 

http://www.nmfs.noaa.gov/pr/ 

interactions/lof/. 

Am I required to register under the 

MMPA? 

Owners of vessels or gear engaging in 

a Category I or II fishery are required 

under the MMPA (16 U.S.C. 1387(c)(2)), 

as described in 50 CFR 229.4, to register 

with NMFS and obtain a marine 

mammal authorization to lawfully take 

non-endangered and non-threatened 

marine mammals incidental to 

commercial fishing operations. Owners 

of vessels or gear engaged in a Category 

III fishery are not required to register 

with NMFS or obtain a marine mammal 

authorization. 

How do I register? 

NMFS has integrated the MMPA 

registration process, the Marine 

Mammal Authorization Program 

(MMAP), with existing state and Federal 

fishery license, registration, or permit 

systems for Category I and II fisheries on 

the LOF. Participants in these fisheries 

are automatically registered under the 

MMAP and are not required to submit 

registration or renewal materials 

directly under the MMAP. In the Pacific 

Islands, Southwest, Northwest, and 

Alaska regions, NMFS will issue vessel 

or gear owners an authorization 

certificate; in the Northeast and 

Southeast Regions, NMFS will issue 

vessel or gear owners notification of 

registry and directions on obtaining an 

authorization certificate. The 

authorization certificate, or a copy, must 

be on board the vessel while it is 

operating in a Category I or II fishery, or 

for non-vessel fisheries, in the 

possession of the person in charge of the 

fishing operation (50 CFR 229.4(e)). 

Although efforts are made to limit the 

issuance of authorization certificates to 

only those vessel or gear owners that 

participate in Category I or II fisheries, 

not all state and Federal permit systems 

distinguish between fisheries as 


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Federal Register / Vol. 75, No. 215 / Monday, November 8, 2010 / Rules and Regulations 68471 

classified by the LOF. Therefore, some 

vessel or gear owners in Category III 

fisheries may receive authorization 

certificates even though they are not 

required for Category III fisheries. 

Individuals fishing in Category I and II 

fisheries for which no state or Federal 

permit is required must register with 

NMFS by contacting their appropriate 

Regional Office (see ADDRESSES). 

How do I receive my authorization 

certificate and injury/mortality 

reporting forms? 

All vessel or gear owners that 

participate in Pacific Islands, 

Southwest, Northwest, or Alaska 

regional fisheries will receive their 

authorization certificates and/or injury/ 

mortality reporting forms via U.S. mail 

or with their State or Federal license at 

the time of renewal. Vessel or gear 

owners participating in the Northeast 

and Southeast Regional Integrated 

Registration Programs will receive their 

authorization certificates and/or injury/ 

mortality reporting forms as follows: 

1. Northeast Region vessel or gear 

owners participating in Category I or II 

fisheries for which a State or Federal 

permit is required may receive their 

authorization certificate and/or injury/ 

mortality reporting form by contacting 

the Northeast Regional Office at 978– 

281–9328 or by visiting the Northeast 

Regional Office Web site (http:// 

www.nero.noaa.gov/prot_res/mmap/ 

certificate.html) and following the 

instructions for printing the necessary 

documents. 

2. Southeast Region vessel or gear 

owners participating in Category I or II 

fisheries for which a Federal permit is 

required, as well as fisheries permitted 

by the states of North Carolina, South 

Carolina, Georgia, Florida, Alabama, 

Mississippi, Louisiana, and Texas will 

receive notice of registry and may 

receive their authorization certificate 

and/or injury/mortality reporting form 

by contacting the Southeast Regional 

Office at 727–551–5758 or by visiting 

the Southeast Regional Office Web site 

(http://sero.nmfs.noaa.gov/pr/pr.htm) 

and following the instructions for 

printing the necessary documents. 

How do I renew my registration under 

the MMPA? 

In Pacific Islands, Southwest, or 

Alaska regional fisheries, registrations of 

vessel or gear owners are automatically 

renewed and participants should 

receive an authorization certificate by 

January 1 of each new year. In 

Northwest regional fisheries, vessel or 

gear owners receive authorization with 

each renewed state fishing license, the 

timing of which varies based on target 

species. In Northeast regional fisheries, 

authorization certificates will be mailed 

directly to all applicable State and 

Federal permit holders who have 

registered their permits during the 

previous calendar year. Vessel or gear 

owners who participate in these regions 

and have not received authorization 

certificates by January 1 or with 

renewed fishing licenses must contact 

the appropriate NMFS Regional Office 

(see ADDRESSES). 

In Southeast regional fisheries, vessel 

or gear owners may receive an 

authorization certificate by contacting 

the Southeast Regional Office or visiting 

the Southeast Regional Office Web site 

(http://sero.nmfs.noaa.gov/pr/pr.htm) 

and following the instructions for 

printing the necessary documents. 

Am I required to submit reports when 

I injure or kill a marine mammal 

during the course of commercial fishing 

operations? 

In accordance with the MMPA (16 

U.S.C. 1387(e)) and 50 CFR 229.6, any 

vessel owner or operator, or gear owner 

or operator (in the case of non-vessel 

fisheries), participating in a fishery 

listed on the LOF must report to NMFS 

all incidental injuries and mortalities of 

marine mammals that occur during 

commercial fishing operations, 

regardless of the category in which the 

fishery is placed (I, II or III) within 48 

hours of the end of the fishing trip. 

‘‘Injury’’ is defined in 50 CFR 229.2 as 

a wound or other physical harm. In 

addition, any animal that ingests fishing 

gear or any animal that is released with 

fishing gear entangling, trailing, or 

perforating any part of the body is 

considered injured, regardless of the 

presence of any wound or other 

evidence of injury, and must be 

reported. Injury/mortality reporting 

forms and instructions for submitting 

forms to NMFS can be downloaded 

from: http://www.nmfs.noaa.gov/pr/ 

pdfs/interactions/mmap_

reporting_form.pdf or by contacting the 

appropriate Regional office (see 

ADDRESSES). Reporting requirements 

and procedures can be found in 50 CFR 

229.6. 

Am I required to take an observer 

aboard my vessel? 

Individuals participating in a 

Category I or II fishery are required to 

accommodate an observer aboard their 

vessel(s) upon request from NMFS. 

MMPA section 118 states that an 

observer will not be placed on a vessel 

if the facilities for quartering an 

observer or performing observer 

functions are inadequate or unsafe; 

thereby, exempting vessels too small to 

accommodate an observer from this 

requirement. However, observer 

requirements will not be exempted, 

regardless of vessel size, for U.S. 

Atlantic Ocean, Caribbean, Gulf of 

Mexico large pelagics longline vessels 

operating in special areas designated by 

the Pelagic Longline Take Reduction 

Plan implementing regulations (50 CFR 

229.36(d)). Observer requirements can 

be found in 50 CFR 229.7. 

Am I required to comply with any take 

reduction plan regulations? 

Table 4 in this final rule provides a 

list of fisheries affected by take 

reduction plans and teams. Take 

reduction plan regulations can be found 

at 50 CFR 229.30 through 229.36. 

Sources of Information Reviewed for 

the Final 2011 LOF 

NMFS reviewed the marine mammal 

incidental serious injury and mortality 

information presented in the SARs for 

all observed fisheries to determine 

whether changes in fishery 

classification were warranted. The SARs 

are based on the best scientific 

information available at the time of 

preparation, including the level of 

serious injury and mortality of marine 

mammals that occurs incidental to 

commercial fishery operations and the 

PBR levels of marine mammal stocks. 

The information contained in the SARs 

is reviewed by regional Scientific 

Review Groups (SRGs) representing 

Alaska, the Pacific (including Hawaii), 

and the U.S. Atlantic, Gulf of Mexico, 

and Caribbean. The SRGs were created 

by the MMPA to review the science that 

informs the SARs, and to advise NMFS 

on marine mammal population status, 

trends, and stock structure, 

uncertainties in the science, research 

needs, and other issues. 

NMFS also reviewed other sources of 

new information, including marine 

mammal stranding data, observer 

program data, fisher self-reports, FMPs, 

and ESA documents. 

The final LOF for 2011 was based, 

among other things, on information 

provided in the NEPA and ESA 

documents analyzing authorized high 

seas fisheries, the final SARs for 1996 

(63 FR 60, January 2, 1998), 2001 (67 FR 

10671, March 8, 2002), 2002 (68 FR 

17920, April 14, 2003), 2003 (69 FR 

54262, September 8, 2004), 2004 (70 FR 

35397, June 20, 2005), 2005 (71 FR 

26340, May 4, 2006), 2006 (72 FR 12774, 

March 19, 2007), 2007 (73 FR 21111, 

April 18, 2008), 2008 (74 FR 19530, 

April 29, 2009), 2009 (75 FR 12498, 

March 16, 2010), and the draft SARs for 

2010 (75 FR 46912, August 4, 2010). The 

SARs are available at: http:// 


jlentini on DSKJ8SOYB1PROD with RULES
68472 Federal Register / Vol. 75, No. 215 / Monday, November 8, 2010 / Rules and Regulations 

www.nmfs.noaa.gov/pr/sars/. State and 

regional abbreviations used in the 

following sections include: CA 

(California), FL (Florida), GA (Georgia), 

GMX (Gulf of Mexico), HI (Hawaii), NC 

(North Carolina), OR (Oregon), SC 

(South Carolina), VA (Virginia), WA 

(Washington), and WNA (Western North 

Atlantic). 

Fishery Descriptions 

Beginning with the final 2008 LOF (72 

FR 66048, November 27, 2007), NMFS 

describes each Category I and II fishery 

on the LOF. Below, NMFS describes the 

fisheries classified as Category I or II on 

the 2011 LOF that were not classified as 

such on a previous LOF (and therefore 

have not yet been defined on the LOF). 

Additional details for Category I and II 

fisheries operating in U.S. waters are 

included in the SARs, FMPs, and TRPs, 

through state agencies, or through the 

fishery summary documents available 

on the NMFS Office of Protected 

Resources Web site 

(http://www.nmfs.noaa.gov/pr/ 

interactions/lof/.) Additional details for 

Category I and II fisheries operating on 

the high seas are included in various 

FMPs, NEPA, or ESA documents. 

WA Coastal Dungeness Crab Pot/Trap 

Fishery 

Washington’s coastal commercial crab 

grounds extend from the Columbia 

River estuary to Cape Flattery, including 

Grays Harbor and Willapa Bay. The 

coastal crab fishery is a limited entry 

fishery with 228 license holders, of 

which approximately 200 are active 

annually. Each coastal crab license is 

assigned a maximum pot limit of either 

300 or 500 pots. Pots are fished 

individually and must be marked with 

an identification number. Surface 

marker buoys must also be tagged for 

identification. The fishery opens on or 

about December 1 when the majority of 

male crabs have recovered from the fall 

molt and shell condition has hardened. 

The season runs through September 15. 

In 1997 Congress granted Washington, 

Oregon and California jurisdiction to 

manage Dungeness Crab fisheries 

outside of state waters to the 200 mile 

limit of the U.S. EEZ. Under 

Washington state regulations, pots can 

be no larger than 13 cubic feet and must 

be equipped with specified escape rings 

for undersize crab and a biodegradable 

release mechanism to allow crabs to 

escape from pots that become separated 

from the buoy or have otherwise become 

lost. There is a summer FMP, which is 

part of the larger Washington Coastal 

Dungeness Crab FMP, in place to protect 

crabs that enter the molt prior to the 

September 15 season ending date. This 

summer FMP allows for in-season 

closures of the fishery if the percentage 

of early molting crab reaches a certain 

level. 

Southeastern U.S. Atlantic, Gulf of 

Mexico Shrimp Trawl Fishery 

The ‘‘Southeastern U.S. Atlantic, Gulf 

of Mexico shrimp trawl’’ fishery is a 

pelagic or bottom trawl fishery 

operating virtually year-round in the 

Atlantic Ocean from North Carolina 

through Florida, and in the Gulf of 

Mexico from Florida through Texas. 

Effort occurs in estuarine, near shore 

coastal waters, and along the 

continental slope of the Atlantic and 

estuarine, near shore coastal, and 

offshore continental shelf and slope 

waters in the Gulf of Mexico. The 

fishery targets brown, pink and white 

shrimp within estuaries, and near 

coastal and offshore regions; and targets 

Royal Red shrimp along the deep 

continental slope. Commercial shrimp 

vessels most commonly employ a 

double-rig otter trawl, which normally 

includes a lazy line attached to each 

bag’s codend. The lazy line floats free 

during active trawling, and as the net is 

hauled back, it is retrieved with a boator grappling-hook to assist in guiding 

and emptying the trawl nets. Shrimp 

trawl soak time is about three hours; the 

fishery typically operates from sunset to 

sunrise when shrimp are most likely to 

swim higher in the water column. 

Although shrimp trawlers are required 

under ESA regulations to use turtle 

excluder devices to reduce sea turtle 

bycatch (50 CFR 223.206), the fishery 

currently does not use any method or 

gear modification to deter, or reduce 

bycatch of, marine mammals. 2009 data 

indicate there are approximately 4,950 

shrimp trawl vessels operating in the 

Southeast Atlantic and Gulf of Mexico 

with an estimated 76,884 vessel trips. 

Comments and Responses 

NMFS received 9 comment letters on 

the proposed 2011 LOF (75 FR 36318, 

June 25, 2010). Comments were received 

from the California Wetfish Producers 

Association, Hawaii Longline 

Association, Marine Mammal 

Commission, Natural Resources Defense 

Council, Oregon Department of Fish and 

Wildlife, United States Department of 

Interior, Washington Department of Fish 

and Wildlife, Western Pacific Fishery 

Management Council, and one private 

individual. Comments on issues outside 

the scope of the LOF were noted, but are 

not responded to in this final rule. 

General Comments 

Comment 1: Since 2005, the Marine 

Mammal Commission (Commission) has 

recommended NMFS include observer 

coverage for each fishery on the LOF for 

use in evaluating the amount of 

confidence to place on reports of 

mortality or serious injury (or lack 

thereof) for marine mammals stocks. 

The Commission appreciated NMFS’ 

efforts to provide additional information 

for Category I and II fisheries on the 

NMFS Web site. However, the 

Commission further recommended 

NMFS describe in the LOF the basis for 

confirming that a fishery warrants a 

Category III classification. The 

Commission also stated it would be 

useful to also have information on 

observer coverage in Category III 

fisheries to determine whether reliable 

information was collected to justify a 

Category III listing or if a fishery is 

Category III based on a lack of 

information. 

Response: NMFS generally agrees 

with the Commission that it is 

important for NMFS to provide its basis 

for classifying a fishery on the LOF. 

However, including observer coverage 

information in each LOF on its own will 

not fully explain why a fishery is 

classified as Category I, II, or III. As 

described in the preamble of each 

proposed and final LOF, including this 

final rule, NMFS classifies fisheries on 

the LOF based on an assessment of 

several factors. One of these factors 

includes information collected through 

observer programs. However, in many 

cases observer data for various fisheries 

are either inadequate or non-existent; 

therefore, quantitative data on the 

frequency of incidental mortality and 

serious injury is unavailable. Per the 

requirements in the MMPA’s 

implementing regulations, in the 

absence of reliable information 

indicating the frequency of incidental 

mortality and serious injury of marine 

mammals by a commercial fishery, 

NMFS determines whether the 

incidental serious injury or mortality is 

‘‘occasional’’ or ‘‘remote’’ by ‘‘evaluating 

other factors such as fishing techniques, 

gear used, methods used to deter marine 

mammals, target species, seasons and 

areas fished, qualitative data from 

logbooks or fisher reports, stranding 

data, the species and distribution of 

marine mammals in the area, and at the 

discretion of the Assistant 

Administrator for Fisheries’’ (50 CFR 

229.2). Therefore, including the level of 

observer coverage for each fishery in the 

LOF will not provide the reader with a 

complete picture of why a fishery is 

classified on the LOF as Category I, II, 

or III. 

NMFS includes the information used 

as the basis to classify a fishery as 

Category I, II, or III, on the LOF for the 


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year in which the fishery was added to 

the LOF and/or reclassified on the LOF. 

If there is no change to the fishery in 

subsequent LOFs, the information 

outlining why a fishery is classified as 

Category I, II, or III, is not then repeated 

in each subsequent LOF. Considering 

that the LOF is an annual rule that 

presents changes to previous LOFs, 

repeating this information in each LOF 

would create a Federal Register notice 

that would be overly lengthy and 

cumbersome for the readers to consider 

on an annual basis. For this reason, 

NMFS provides this information on 

Category I and II fisheries via the fishery 

summaries to be considered at the 

readers’ discretion and included these 

on the NMFS Office of Protected 

Resources’ Web site: 

http://www.nmfs.noaa.gov/pr/ 

interactions/lof/. 

While NMFS has included, and will 

continue to include, the information 

used as the basis to classify a fishery as 

Category III in the appropriate LOF for 

the year in which each Category III 

fishery was added to, or reclassified on, 

the LOF, NMFS agrees that summarizing 

this information in one location could 

be useful for the reader. Therefore, 

NMFS will consider how to best provide 

this information for the readers, without 

creating an annual LOF rule that is 

overly lengthy and cumbersome, during 

the development of the 2012 LOF. 

Comment 2: Ms. Monasevitch noted 

that Tables 1–3 do not list the number 

of marine mammal species/stocks 

incidentally killed or injured, only the 

species/stock name. Can the counts be 

provided? 

Response: The number of marine 

mammal species/stocks incidentally 

killed or injured in each fishery on the 

LOF is included in tabular format in 

each Stock Assessment Report (SAR) 

and are therefore not repeated in each 

LOF. Please visit the NMFS Office of 

Protected Resources Web site to review 

the SARs by region or by stock: 

http://www.nmfs.noaa.gov/pr/sars/. 

Comment 3: The Department of the 

Interior (DOI) requested NMFS continue 

to coordinate with the Fish and Wildlife 

Service (FWS) on issues involving 

marine mammals under FWS 

management jurisdiction, including 

providing any reports of southern sea 

otters (which are excluded from the 

MMPA’s section 118 provisions for 

authorizing incidental take) killed or 

injured in a commercial fishery. 

Response: NMFS will continue to 

coordinate with the FWS on all issues 

involving marine mammals under FWS 

jurisdiction, including sea otters, 

walrus, manatees, and polar bears. 

NMFS will also continue to provide 

FWS with all reports of interactions 

between commercial fisheries and all 

marine mammal species under FWS 

jurisdiction, including southern sea 

otters, that the Agency receives. 

Comment 4: The Hawaii Longline 

Association (HLA) asserted that NMFS 

cannot make final determinations in the 

LOF based on information that appears 

in draft SARs and has not been 

subjected to the public review and 

comment process. The HLA stated that 

the draft 2010 SAR is based, in 

significant part, on information 

contained in unpublished reports, 

‘‘working’’ papers, and reports 

containing ‘‘preliminary estimates.’’ The 

HLA asserted that this information is 

not sufficient to meet the MMPA’s best 

available scientific information standard 

and that decisions based on this 

information is contrary to the MMPA, 

the Administrative Procedure Act 

(APA), and general principles of 

administrative transparency and 

scientific rigor. 

Response: NMFS responded to a 

similar comment on the final 2001 LOF 

(see comment/response 61; 66 FR 42780 

August 15, 2001). NMFS agrees that the 

annual LOF must be based on the best 

available scientific information. For this 

reason, NMFS proposes changes to the 

annual LOF on the most current, peerreviewed version of the SARs. The draft 

2010 SARs used as the basis for the 

proposed and final 2011 LOFs were 

reviewed by the authors’ peers within 

NMFS Fisheries Science Centers and by 

the Regional SRGs, which were 

established by the MMPA 117(d) to 

advise NMFS on the status of marine 

mammal stocks and to provide input on 

the draft SARs before they are released 

for public input. Basing the LOF on best 

available scientific information includes 

basing the LOF on the most current 

analyzed data. The data presented in the 

annual SARs have an average of a twoyear time delay because of the time 

needed to properly analyze the data and 

complete the peer-review process. For 

that reason, the SRG-reviewed draft SAR 

presents the most current analyzed data 

and is considered the best available 

scientific information. When a peerreviewed draft SAR is available, the 

final SAR from the previous year is no 

longer the best available information on 

which to base changes to the annual 

LOF. Therefore, by basing LOF changes 

on the most recent peer-reviewed SAR, 

whether draft or final, NMFS satisfies 

the requirements of the MMPA. 

NMFS ensures transparency in the 

LOF rulemaking process by making the 

draft SARs available for public review 

prior to or during the public comment 

period for each proposed LOF. The 

proposed 2011 LOF opened for a 60-day 

public review period on June 25, 2010 

(closing August 24, 2010). The draft 

2010 SARs opened for a 90-day public 

review period on August 4, 2010. This 

allowed 20 days for review of the draft 

2010 SARs before the close of the 

proposed 2011 LOF’s public comment 

period. The overlapping availability of 

the public comment periods on the 

proposed LOF and the draft SARs 

allows the public to review the 

information upon which the LOF is 

based. 

Comments on Commercial Fisheries in 

the Pacific Ocean 

Comment 5: The DOI supported the 

continued inclusion of southwest AK 

northern sea otters, south central AK 

northern sea otters, and Pacific walrus 

on the list of species/stocks incidentally 

killed or injured in the ‘‘AK Kodiak 

salmon set gillnet,’’ ‘‘AK Prince William 

Sound salmon drift gillnet,’’ and ‘‘AK 

BSAI flatfish trawl’’ fisheries, 

respectively. 

Response: NMFS has retained 

southwest AK northern sea otters, south 

central AK northern sea otters, and 

Pacific walrus on the list of species/ 

stocks incidentally killed or injured in 

the ‘‘AK Kodiak salmon set gillnet,’’ ‘‘AK 

Prince William Sound salmon drift 

gillnet,’’ and ‘‘AK BSAI flatfish trawl’’ 

fisheries in this final rule. 

Comment 6: The Washington 

Department of Fish and Wildlife 

(WDFW) strongly supported splitting 

the Washington Dungeness crab pot/trap 

fishery into two distinct fisheries by 

separating the inland ‘‘Puget Sound 

Dungeness crab pot/trap’’ fishery from 

the ‘‘WA coastal Dungeness crab pot/ 

trap’’ fishery. The Puget Sound and 

coastal Dungeness crab pot/trap 

fisheries are both managed by WDFW 

but are managed under separate 

licensing programs and different 

management regimes. With no known 

incidental mortalities or serious injuries 

to marine mammals in the ‘‘Puget Sound 

Dungeness crab pot/trap’’ fishery, 

WDFW supported the proposal to 

classify the ‘‘Puget Sound Dungeness 

crab pot/trap’’ fishery under Category III 

in the LOF. 

Response: The WA Dungeness crab 

trap/pot fishery is split into two 

fisheries in this final rule, with the ‘‘WA 

coastal Dungeness crab trap/pot’’ fishery 

classified as Category II and the ‘‘WA 

Puget Sound Dungeness crab trap/pot’’ 

fishery is classified as Category III. 

Comment 7: As stated in comment 6 

above, the WDFW supported elevating 

the ‘‘WA coastal Dungeness crab pot/ 

trap’’ fishery from Category III to 

Category II. With the elevation of this 


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fishery to Category II, WDFW further 

requested NMFS’ advice and assistance 

in meeting the requirements under the 

MMPA. WDFW staff is available to work 

with NMFS to create an implementation 

plan that minimizes the disruption to 

the fishery while ensuring that MMPA 

requirements are met. 

Response: NMFS is currently working 

with WDFW and will continue to do so 

to ensure that the MMPA requirements 

are met, while minimizing the 

disruption to the fishery. The NMFS 

Northwest Regional Office has agreed to 

work with the WDFW on developing the 

MMAP Certificates for coastal crabbers. 

WDFW is currently reviewing NMFS’ 

proposed text for these Certificates. 

Comment 8: The Commission 

recommended NMFS provide additional 

justification for splitting the ‘‘WA 

Dungeness crab pot/trap’’ fishery into 

two fisheries, including pointing out 

arguments that the risks to marine 

mammals from the two proposed 

fisheries are different. The Commission 

noted that, while the two proposed 

fisheries do differ based on geography, 

the decision to split the fisheries should 

be based on meaningful evidence that 

the risks posed to marine mammal 

species are different and that the Puget 

Sound fishery is not likely to take any 

marine mammals and does not require 

an observer program. Additional 

evidence might include a difference in 

fishing practices or gear on the coast 

versus those in Puget Sound, or 

evidence of different movement patterns 

of humpback whales and other marine 

mammals, such as sea otters. 

Response: As described in the 

proposed 2011 LOF and further 

explained in the comments supplied by 

WDFW (comment 6) the coastal and 

Puget Sound Dungeness crab trap/pot 

fisheries are managed under separate 

licensing programs and different 

management regimes. The State of WA 

already considers these as separate 

fisheries. More importantly, the 

migratory routes of humpback whales 

pass though the coastal waters off of the 

State of WA, but the migratory routes do 

not pass through Puget Sound. 

Individual humpback whales have been 

reported to occasionally enter Puget 

Sound, but NMFS has received no 

reports of these individuals interacting 

with or becoming entangled in Puget 

Sound Dungeness crab trap/pot gear. 

Trap/pot gear for both the coastal and 

Puget Sound Dungeness crab trap/pot 

fisheries are uniquely marked for 

identification and, therefore, NMFS is 

able to ascertain with which fishery a 

humpback whale has interacted. 

Individual sea otters occasionally enter 

Puget Sound but they have not been 

reported interacting with crab gear. 

There was one sighting of a gray whale 

trailing crab trap/pot gear in Puget 

Sound in 2003. However, this animal 

was successfully disentangled and 

released uninjured. There have been no 

reported interactions since that time. 

The Puget Sound region has heavily 

populated coastlines and is a major 

recreational boating area. There are also 

several active marine mammal sighting 

hotlines in the region. Should 

entanglements of marine mammals 

occur in the inland waters, the potential 

for observation and reporting by boaters 

or the public on the shore is high. 

Comment 9: The Commission 

recommended NMFS consult with the 

FWS, tribal authorities, and other 

relevant groups on the need for observer 

coverage of the WA Dungeness crab pot/ 

trap fisheries both along the outer coast 

and in Puget Sound to assess bycatch 

risks for sea otters in WA state. 

Response: As recommended, NMFS 

consulted with state and tribal crab 

managers. The states of WA and OR, 

and the Northwest Indian Fisheries 

Commission reported that they have 

received no information indicating 

interactions between sea otters and crab 

fisheries are occurring. WDFW has 

received complaints in some areas of 

harbor seals or sea lions raiding pots for 

bait, but not sea otters. The WA 

population of sea otters is at the 

population’s Optimum Sustainable 

Population (OSP) level and continues to 

grow (FWS 2009 SAR). According to 

FWS’ 2009 SAR there has been only one 

stranding incident of a northern sea 

otter, in 2003, where human interaction 

may have been implicated based on 

necropsy findings. In this case, the 

animal died from trauma, possibly a 

boat strike. 

Comment 10: The CA Wetfish 

Producers Association agreed with 

multiple proposed changes to the LOF, 

including reclassifying the ‘‘CA 

anchovy, mackerel, sardine purse seine’’ 

and ‘‘CA squid purse seine’’ fisheries 

from Category II to Category III; 

updating the number of vessels 

participating in the ‘‘CA anchovy, 

mackerel, sardine purse seine fishery;’’ 

and removing bottlenose dolphins (CA/ 

OR/WA offshore stock) from the list of 

species/stocks incidentally killed or 

injured in the ‘‘CA anchovy, mackerel, 

sardine purse seine’’ fishery. 

Response: NMFS has finalized each of 

the proposed changes referenced in 

Comment 10 in this final rule. 

Comment 11: The CA Wetfish 

Producers Association noted the 

number of vessels participating in the 

‘‘CA squid purse seine’’ fishery is 

proposed to be increased from 64 to 65 

vessels. However, according to CA 

Department of Fish and Game 

authorities, the number of squid vessel 

permits sold in 2010 is 71 transferable 

vessel permits and 9 non-transferable 

vessel permits, for a total of 80 vessels 

eligible to participate in the squid 

fishery. 

Response: NMFS appreciates the 

information and has updated Table 1 to 

reflect that the estimated number of 

vessels/persons participating in the 

Category III ‘‘CA squid purse seine’’ 

fishery is 80. 

Comment 12: The Oregon Department 

of Fish and Wildlife (ODFW) requested 

that OR be removed from the name of 

the ‘‘CA/OR thresher shark/swordfish 

drift gillnet’’ fishery. ODFW noted that 

the OR commercial drift gillnet fishery 

historically existed as an extension of 

the CA fishery, targeting swordfish as 

allowed under ODFW’s Developmental 

Fisheries Program. For the last few years 

this fishery has been inactive and OR 

has not issued permits for such a fishery 

in state waters. Also, swordfish were 

removed from the program in 2009. OR 

no longer issues state permits for drift 

gillnet gear. 

Response: NMFS appreciates the 

information provided by ODFW and has 

changed the name of the fishery to the 

Category III ‘‘CA thresher shark/ 

swordfish drift gillnet (≥ 14 in mesh)’’ 

fishery in this final rule. 

Comment 13: The DOI recommended 

NMFS continue to include CA sea otters 

on the list of species/stocks incidentally 

killed or injured in the ‘‘CA halibut/ 

white seabass and other species set 

gillnet’’ fishery and add CA sea otters to 

the list of species/stocks incidentally 

killed or injured in the ‘‘CA coonstripe 

shrimp, rock crab, tanner crab pot or 

trap’’ and ‘‘CA spiny lobster trap’’ 

fisheries. Due to lack of observer 

coverage, the FWS does not have recent 

data to confirm that sea otters are 

injured or killed in these fisheries; 

however, experiments have shown that 

sea otters can enter these traps and 

drown. 

Response: NMFS removed southern 

sea otters from the list of species/stocks 

incidentally killed or injured in the 

Category III ‘‘CA coonstripe shrimp, rock 

crab, tanner crab pot or trap’’ and ‘‘CA 

spiny lobster trap’’ fisheries in the 2009 

LOF. As detailed in the proposed 2009 

LOF (73 FR 33760, June 13, 2008), 

NMFS extensively reviewed each of the 

CA pot and trap fisheries, including 

available information on marine 

mammal species that interact with these 

fisheries. At that time, NMFS had 

records of one southern sea otter being 

taken in the ‘‘CA targeting spiny lobster, 

coonstripe shrimp, finfish, rock crab, or 


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tanner crab trap/pot’’ fishery in 

November 1987 and one southern sea 

otter interacting with the ‘‘CA spot 

prawn trap’’ fishery in 1991. NMFS has 

received no new or additional 

information since the 2009 LOF to 

suggest that sea otters are being 

incidentally killed or injured by these 

gear types. Therefore, NMFS has not 

included sea otters on the list of 

species/stocks incidentally killed or 

injured in these two fisheries. If 

additional information becomes 

available to indicate that southern sea 

otters have been injured or killed in CA 

trap/pot fisheries in recent years, NMFS 

will consider including this species on 

the LOF at that time. 

Comment 14: The Commission 

supported retaining the ‘‘HI shallow-set 

(swordfish target) longline/set line’’ 

fishery as Category II based on the 

mortality and serious injury rate of 

bottlenose dolphins (HI pelagic stock) 

and the additional information 

documenting takes of marine mammals 

from other stocks. 

Response: The ‘‘HI shallow-set 

(swordfish target) longline/set line’’ 

fishery is classified as Category II in this 

final rule. 

Comment 15: The HLA noted that the 

proposed LOF classifies the ‘‘HI 

shallow-set (swordfish target) longline/ 

set line’’ fishery as Category II by the 

fishery’s serious injury and mortality 

rate for bottlenose dolphin, which is 

only 1.1 percent of the stock’s PBR, and 

because of documented mortalities and 

serious injuries of other stocks on the 

high seas for which PBRs are unknown. 

The HLA disagreed with this 

justification and argued that NMFS 

must make the LOF determinations 

based on the best available science, not 

speculation that takes may exceed 

1 percent of a stock’s PBR. The HLA 

further stated that in the absence of 

knowledge about the identity or 

abundance of stocks with which a 

fishery may have interactions, NMFS 

cannot assume that any interactions 

may exceed 1 percent of the stock’s 

PBR. 

Response: As noted in the draft 2010 

SAR, the HI Pelagic stock of bottlenose 

dolphins includes animals found both 

within the U.S. EEZ around the 

Hawaiian Islands and in adjacent 

international waters, but because data 

on abundance, distribution, and humancaused impacts are largely lacking for 

international waters, the status of the 

stock is evaluated based on data from 

U.S. EEZ waters. In the SAR, the stock’s 

PBR is calculated only for the portion of 

the stock within the U.S. EEZ around 

the Hawaiian Islands. 

The average annual level of 

mortalities and serious injuries of the HI 

pelagic stock of bottlenose dolphins that 

occurs incidental to the HI shallow-set 

longline fishery inside the U.S. EEZ 

around the Hawaiian Islands is greater 

than 1 percent and less than 50 percent 

of the stock’s PBR level. This level of 

mortality and serious injury is close to, 

but exceeds, the threshold between 

Categories II and III (e.g., mortality and 

serious injury greater than 1 percent of 

PBR), and thus a Category II 

classification is warranted (50 CFR 

229.2). Details regarding how the 

threshold percentages between the 

categories were determined are 

provided in the preamble to the final 

rule implementing section 118 of the 

MMPA (60 FR 45086, August 30, 1995). 

In NMFS’ proposal to classify this 

fishery in the proposed 2011 LOF, 

NMFS noted that there are documented 

injuries and mortalities of numerous 

other species and stocks of marine 

mammals on the high seas, which are 

listed in Table 3 for the high seas 

component of the shallow-set longline 

fishery (‘‘Western Pacific Pelagic 

(Shallow-set component)’’). There are no 

abundance estimates or PBRs currently 

available for most of these marine 

mammals on the high seas, and 

quantitative comparison of mortality 

and serious injury against PBR is 

therefore not possible. NMFS is not 

assuming that interactions on the high 

seas exceed 1 percent of any stock’s 

PBR. Rather, these interactions provide 

a qualitative indication that the shallowset fishery’s interactions with marine 

mammals on the high seas are 

‘‘occasional.’’ 50 CFR 229.2 provides that 

in the absence of reliable information 

indicating the frequency of incidental 

mortality and serious injury of marine 

mammals by a commercial fishery, the 

Assistant Administrator will determine 

whether the incidental serious injury or 

mortality is ‘‘occasional’’ by evaluating 

other factors such as fishing techniques, 

gear used, methods used to deter marine 

mammals, target species, seasons and 

areas fished, qualitative data from 

logbooks or fisher reports, stranding 

data, and the species and distribution of 

marine mammals in the area, or at the 

discretion of the Assistant 

Administrator. 

As noted in the preamble of the 

proposed 2011 LOF and the response to 

a similar comment in the final 2010 LOF 

(74 FR 58859, November 16, 2009; 

comment/response 17) regarding high 

seas fisheries classification, the high 

seas portion of the shallow-set longline 

fishery is an extension of the fishery 

operating within U.S. waters, and not a 

separate fishery. A fishery is classified 

on the LOF as its highest level of 

classification (e.g., a fishery qualifying 

for Category II for one marine mammal 

stock and Category III for another 

marine mammal stock will be listed as 

Category II). Since the ‘‘Western Pacific 

Pelagic (Shallow-set component)’’ and 

‘‘HI shallow-set (swordfish target) 

longline/set line’’ are two components of 

the same fishery, targeting the same 

species and employing the same gear, 

fishing techniques, and methods to 

deter marine mammals, distinguished 

from each other only by which side of 

the 200 nmi EEZ boundary they operate, 

and the component of the fishery 

operating in U.S. waters is classified as 

Category II, the high seas component of 

the fishery is also classified as Category 

II. 

Comment 16: The Commission 

recommended NMFS list the ‘‘HI kaka 

line’’ and the ‘‘HI vertical longline’’ 

fisheries as Category II fisheries and 

work with the State of HI to create an 

effective observer program for each 

fishery. NMFS noted in the proposed 

2011 LOF, and the Commission 

concurred, that the ‘‘HI kaka line’’ 

fishery may be analogous to the 

Category II Hawaii shortline fishery. The 

Commission also considered the vertical 

longline fishery to be analogous because 

the gear is similar and presents similar 

risks to marine mammals. The 

Commission believed that an 

appropriate approach would be to 

establish an observer program to better 

characterize the nature and level of the 

interactions of these fisheries with 

marine mammals, before assuming that 

such interactions do not or only rarely 

occur. 

Response: At this time, there is no 

information to support a Category II 

classification for either of these two 

fisheries. NMFS did note in the 

proposed 2011 LOF that the kaka line 

fishery may be analogous to the 

shortline fishery because the gear used 

is similar in one respect, specifically a 

mainline less than 1 nautical mile in 

length to which multiple branchlines 

with baited hooks are attached. 

However, NMFS further stated in the 

proposed LOF that the gear in the ‘‘HI 

kaka line’’ fishery is oriented differently 

in the water than the gear in the ‘‘HI 

shortline’’ fishery, with ‘‘HI kaka line’’ 

fishery gear being fixed on or near the 

bottom or in shallow midwater. 

50 CFR 229.2 states that in absence of 

reliable information indicating the 

frequency of incidental mortality and 

serious injury of marine mammals by a 

commercial fishery, NMFS will 

determine whether the incidental 

serious injury or mortality is ‘‘frequent,’’ 

‘‘occasional,’’ or ‘‘remote’’ by evaluating 


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other factors. Therefore, NMFS also 

examined other factors and considers 

the ‘‘HI kaka line’’ and ‘‘HI vertical line’’ 

fisheries to be sufficiently different from 

the HI-based longline fisheries and the 

HI shortline fishery in terms of the fish 

species targeted, methods of setting 

gear, and location and orientation of the 

gear in the water column, to pose a 

lower risk to marine mammals such that 

the likelihood of incidental interactions 

is remote. Additionally, while there are 

anecdotal reports of interactions 

between the shortline fishery and 

marine mammals, there is no such 

information regarding the kaka line or 

vertical longline fisheries. If additional 

information becomes available that 

would indicate an elevation in 

classification is necessary, NMFS will 

consider reclassification of one or both 

of these fisheries at that time. 

Comment 17: The Natural Resources 

Defense Council (NRDC) urged NMFS to 

reconsider the proposed classification of 

the ‘‘HI trolling, rod and reel’’ and ‘‘HI 

charter vessel’’ fisheries as Category III 

given their bycatch of pantropical 

spotted dolphins. The NRDC provided 

multiple literature citations 

documenting dolphins taking lures and 

being hooked when HI troll fishermen 

‘‘fish’’ on the dolphins, including 

spotted dolphins, to catch associated 

tuna. The NRDC stated that one serious 

injury or mortality a year for pantropical 

spotted dolphins would exceed the 

regulatory ceiling of 1 percent of the 

PBR of 61 (2010 SAR, which also states 

that future assessments may divide the 

HI population into smaller islandassociated stocks). The NRDC asserts 

that where the frequency of bycatch is 

unknown, NMFS is required to 

determine whether serious injury or 

mortality is ‘‘remote’’ by taking into 

account other factors, including target 

species and fishing techniques (50 CFR 

229.2). 

Response: NMFS will review the 

information provided by the commenter 

and consider adding this species to the 

list of species or stocks incidentally 

killed or injured in one or both of these 

fisheries in the next proposed LOF. 

NMFS will also consider reclassification 

of one or both of these fisheries at that 

time, if circumstances warrant. 

Comment 18: The HLA reiterated past 

comments that NMFS inaccurately 

delineates the pelagic false killer whale 

stock, therefore underestimating the 

false killer whale population with 

which the ‘‘HI deep-set (tuna target) 

longline/set line’’ fishery interacts and 

exaggerating the importance of those 

rare interactions. 

Response: NMFS responded to similar 

comments on the 2010 LOF (74 FR 

58859; November 16, 2009; comments/ 

responses 17 and 24), which are 

incorporated in this response by 

reference. This comment does not 

specifically address the classification of 

fisheries or the marine mammal species 

and stock incidentally killed or injured 

in a fishery, but rather disputes the 

delineation of those stocks and stock 

population estimates. Classifications on 

the LOF are based on the information 

provided in the annual SARs. The SARs 

report marine mammal stock 

delineations and include discussions of 

the uncertainties in the data used to 

base stock delineations. NMFS urges the 

commenter to submit these comments 

during the public comment period for 

the draft SARs. 

Comment 19: The HLA restated an 

ongoing comment that there are 

significant uncertainties and errors 

perpetuated in NMFS’ SARs, which are 

then used to generate inaccurate LOFs. 

The HLA disagreed that it would be 

prudent for NMFS to make LOF 

determinations for 2011 based on data 

that NMFS knows will become stale (as 

defined by NMFS guidelines) in 2010. 

The HLA recommended that NMFS, at 

the least, expressly recognize the 

uncertainty underlying its estimates and 

decisions. 

Response: Changes to the 2011 LOF 

are largely based on the 2009 SARs, as 

updated in the draft 2010 SARs. The 

draft 2010 SARs for many of the 

Hawaiian cetacean stocks present 

abundance estimates based on data from 

a 2002 NMFS shipboard line-transect 

survey of the U.S. EEZ around the 

Hawaiian Islands (Hawaiian Islands 

Cetacean and Ecosystem Assessment 

Survey, or HICEAS). The NMFS 

Guidelines for Assessing Marine 

Mammal Stocks (GAMMS) note that 

confidence in the reliability of 

abundance estimates declines with age, 

and recommend that minimum 

population estimates older than 8 years 

should be considered unknown, and 

therefore should not be used to calculate 

PBR (http://www.nmfs.noaa.gov/pr/ 

pdfs/sars/gamms2005.pdf). As of 2011, 

data derived from the 2002 survey will 

be considered too uncertain for stock 

assessment. NMFS is currently 

conducting a new cetacean assessment 

survey in the U.S. EEZ around the 

Hawaiian Islands (HICEAS II) in 

August-December 2010. It is anticipated 

that the HICEAS II survey will result in 

updated abundance estimates for all 

Hawaiian cetaceans. Preliminary 

estimates will likely be available by the 

end of 2011 or early 2012. However, the 

currently available data and estimates 

still constitute the best available 

information within existing NMFS 

parameters, and therefore are 

appropriately included in the 2010 

SARs and 2011 LOF. 

Comment 20: The HLA recommended 

NMFS not add false killer whales (HI 

insular stock) to the list of marine 

mammal stocks incidentally killed or 

injured in the ‘‘HI deep-set (tuna target) 

longline/set line’’ fishery. The HLA 

stated that the best available science 

does not demonstrate that the deep-set 

fishery has ever interacted with an 

animal from the insular stock. The HLA 

further stated that the one interaction 

that NMFS purports to assign to the 

deep-set fishery occurred well beyond 

the range in which the insular stock 

animals have been scientifically 

observed. 

Response: NMFS determines which 

species or stocks are included on the list 

of species/stocks incidentally killed or 

injured in a fishery by annually 

reviewing, in part, the information 

presented in the current SARs, which 

are based on the best available scientific 

information and provide the most 

current and inclusive information on 

each stock’s PBR level and level of 

interaction with commercial fishing 

operations. The LOF does not analyze or 

evaluate the SARs. The commenter 

questions the validity of the data and 

calculations contained within the SAR 

for false killer whales, and thus it would 

be more appropriate for this comment to 

be submitted during the public 

comment period for the draft SAR. 

The draft 2010 SAR for false killer 

whales indicates an average of 0.6 false 

killer whales (HI insular stock) are 

killed or seriously injured per year 

incidental to the Hawaii deep-set 

longline fishery. One non-serious injury 

was observed within the newly defined 

overlap zone between the HI insular and 

HI pelagic stocks of false killer whales. 

Total estimated takes were prorated 

based on the proportions of observed 

interactions that resulted in death, 

serious injury, or non-serious injury. 

Further, takes of false killer whales of 

unknown stock origin within the 

insular/pelagic stock overlap zone were 

prorated based on the density of each 

stock in that area. No genetic samples 

are available to establish stock identity 

for these takes, but both stocks are 

considered at risk of interacting with 

longline gear within this region. 

Additionally, the draft 2010 SAR reports 

that from 2004–2008, two unidentified 

cetaceans that may have been false killer 

whales were seriously injured in the 

deep-set longline fishery, within the 

insular stock range. Efforts are currently 

underway to develop methods of 

prorating the unidentified animals by 

species and stock, taking into account 


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geographic differences in their ranges 

and observed rates of documented 

interactions with each species. For these 

reasons, NMFS is adding the HI insular 

stock of false killer whales to the list of 

marine mammal stocks incidentally 

killed or injured in the HI deep-set 

longline fishery, as proposed in the 

proposed 2011 LOF. 

Comment 21: The HLA recommended 

NMFS not label the false killer whales 

on which the ‘‘HI deep-set (tuna target) 

longline/set line’’ fishery interacts on 

the high seas as ‘‘HI Pelagic.’’ The HLA 

asserted that such a designation ignores 

the fact that high seas false killer whale 

interactions may occur with animals 

from other international high seas 

stocks, a larger Eastern North Pacific 

stock, or the Palmyra stock. 

Response: The draft 2010 SAR 

clarifies that the HI pelagic stock of false 

killer whales includes animals found 

both within the U.S. EEZ around the 

Hawaiian Islands and adjacent 

international waters. The deep-set 

longline fishery has documented 

interactions with false killer whales just 

outside of the U.S. EEZ around the 

Hawaiian Islands, as reported in the 

draft 2010 SAR, and these are almost 

certainly from the HI pelagic stock. 

Therefore, NMFS is adding false killer 

whale (HI pelagic stock) to the list of 

species/stocks incidentally killed or 

injured in the ‘‘Western Pacific Pelagic 

(Deep-set component)’’ fishery on Table 

3, as proposed in the 2011 proposed 

LOF. 

The draft 2010 SAR also reports that 

while the range of the HI pelagic stock 

of false killer whales extends into 

international waters, the full offshore 

range of the stock beyond the EEZ is 

poorly known. NMFS agrees with HLA 

that the deep-set longline fishery may be 

interacting with false killer whales from 

other stocks on the high seas, beyond 

the (unknown) range of the HI pelagic 

stock. For this reason, NMFS will retain 

false killer whale (stock unknown) on 

the list of marine mammal species and 

stocks incidentally killed or injured in 

the ‘‘Western Pacific Pelagic (deep-set 

component)’’ fishery on Table 3. 

Similarly, marine mammals from 

other pelagic stocks are also killed or 

injured by both the deep-set and 

shallow-set longline fisheries on the 

high seas at varying distances beyond 

the U.S. EEZ around the Hawaiian 

Islands, and some of the interactions 

may be from unknown high seas stocks 

beyond the (unknown) range of the 

transboundary HI pelagic stocks. NMFS 

will examine the spatial patterns of 

observed mortality and injury of the 

other pelagic stocks and any 

information on the stock identity of 

these animals, and may propose the 

addition of unknown stocks for some or 

all of these marine mammal species in 

the proposed 2012 LOF, if warranted. 

The range of the Palmyra Atoll stock 

of false killer whales is currently 

defined in the draft 2010 SAR as the 

U.S. EEZ around Palmyra Atoll. 

Therefore, this stock is listed as 

incidentally killed or injured in the U.S. 

EEZ portion of the deep-set longline 

fishery, the ‘‘HI deep-set (tuna target) 

longline/set line’’ fishery, on Table 1, 

and not in Table 3 for the high seas 

component of the fishery. 

Comment 22: The Western Pacific 

Fishery Management Council (WPFMC) 

requested NMFS clarify the justification 

for proposing to classify the ‘‘HI 

shortline’’ fishery as Category II based 

on analogy to other fisheries and based 

on anecdotal reports of interactions. The 

WPFMC requested that NMFS explain 

what is meant by proposing to list this 

fishery by analogy, including how a 

fishery may be categorized at all when 

there are no reported or known 

interactions with marine mammals. In 

addition, the WPFMC questioned 

NMFS’ use of anecdotal reports of 

interactions with marine mammals and 

speculations that this fishery caused 

documented false killer whale dorsal fin 

disfigurements to support a proposed 

Category II classification. 

Response: Fisheries are classified on 

the annual LOF via NMFS’ welldocumented process of analyzing 

known or estimated levels of mortality 

and serious injury relative to a stock’s 

PBR level (as outlined in the preamble 

of each proposed and final LOF, 

including this final rule). In some cases, 

a fishery that has no recent documented 

injuries or mortalities of marine 

mammals may be classified in Category 

II by analogy to another Category I or II 

fishery or fisheries that use similar gear 

types, fishing methods, and/or fish in 

similar areas that are known to cause 

mortality and serious injury of marine 

mammals. In those instances, additional 

available information (such as 

qualitative data from stranding reports, 

fishermen self-reports, or anecdotal 

information) may also be used to 

indicate that serious injury or mortality 

of marine mammals may be occurring 

that is likely to exceed the Category III 

threshold (50 CFR 229.2). NMFS 

indicates those fisheries classified as 

Category II by analogy to another 

Category I or II fishery in Tables 1 and 

2 by placing a ‘‘2’’ after the fishery’s 

name. Only marine mammal mortality 

and serious injury that can be assigned 

to a specific fishery is included in the 

list of species/stocks incidentally killed 

or injured for that fishery. Marine 

mammal species and stocks are not 

added to the list of species/stocks 

incidentally killed or injured by 

analogy. 

The ‘‘HI shortline’’ fishery was 

originally added to the LOF in 2010. 

NMFS listed the fishery in Category II 

by analogy to the Category I ‘‘HI deepset (tuna target) longline’’ and Category 

II ‘‘HI shallow-set (swordfish target) 

longline’’ fisheries because of 

similarities between the three fisheries 

in the gear used, the areas fished, and 

species targeted that indicated the ‘‘HI 

shortline’’ fishery likely poses a similar 

risk of killing or seriously injuring 

marine mammals. Additionally, NMFS 

received anecdotal reports of marine 

mammal interactions in the ‘‘HI 

shortline’’ fishery, though the species 

involved and the extent of the 

interactions was unknown. While dorsal 

fin disfigurements documented in 

individuals from the insular stock of 

false killer whales (Baird and Gorgone 

2005) are consistent with injuries from 

unidentified fishing line, it is unknown 

at present whether these injuries might 

have been caused by longline gear, 

shortline gear, or other hook-and-line 

gear used around the main Hawaiian 

Islands. Because the species of marine 

mammals involved in the reported 

interactions was unknown, there are no 

species currently listed on the LOF as 

incidentally injured or killed in the ‘‘HI 

shortline’’ fishery. 

Classifying a fishery as Category II 

provides NMFS the authority to place 

observers on board the vessels to gain 

more information on the actual level of 

interactions with marine mammals 

occurring in the fishery. Funding is not 

currently available to establish such an 

observer program for the ‘‘HI shortline’’ 

fishery, but when and if funding 

becomes available in the future, NMFS 

will coordinate with the state of HI to 

consider developing and implementing 

an observer program for this fishery. 

Comments on Commercial Fisheries in 

the Atlantic Ocean, Gulf of Mexico and 

Caribbean 

Comment 23: The Commission 

supported the elevation of the 

‘‘Southeastern U.S. Atlantic, Gulf of 

Mexico shrimp trawl’’ fishery from 

Category III to Category II and the 

addition of Atlantic spotted dolphin 

(northern Gulf of Mexico stock) to the 

list of species/stocks incidentally killed 

or injured in this fishery. 

Response: The ‘‘Southeastern U.S. 

Atlantic, Gulf of Mexico shrimp trawl’’ 

fishery is classified as Category II in this 

final rule. 

Comment 24: The Commission 

recommended NMFS set the boundary 


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between the Northeast and Mid-Atlantic 

bottom trawl fisheries at the location 

that will result in the most reliable 

estimates of bycatch for the two 

fisheries. In the proposed LOF, NMFS 

proposed to change the boundary used 

to separate these fisheries from 72°30′ 

W. long. to 70° W. long. The latter is 

used by the Northeast Fisheries Science 

Center for estimating marine mammal 

bycatch. For the fisheries involved, this 

change may have a number of 

implications that the Commission is not 

able to evaluate based upon the 

information provided in the proposed 

rule. The key consideration for the 

Commission is that incidental taking of 

marine mammals is correctly attributed 

to the two fisheries. 

Response: NMFS agrees that 

maintaining consistency for estimating 

incidental marine mammal bycatch is 

essential; therefore, the proposed 

change will provide this consistency 

necessary to ensure appropriate 

incidental takes are attributed to the 

correct fishery. NMFS does not foresee 

any additional current or future 

management implications associated 

with this change. 

Comment 25: The Commission 

reiterated a past recommendation that 

NMFS develop new methods to produce 

accurate estimates of effort for several 

Mid-Atlantic and New England 

fisheries. The Commission suggested 

that the methods may need to change 

depending on the nature of the fisheries 

(e.g., how often vessels return to port, 

how large the vessels are, and whether 

they can carry observers). Although the 

Commission understood that actual 

effort levels may not be known, the new 

method of measuring effort reveals 

significant uncertainty in key fishery 

information that may confound other 

measures of the fishery and its effects. 

The Commission asserted that while 

these changes may not have a direct 

effect on fisheries policy or observer 

coverage, the broader and longer-term 

implications of the changes and the 

associated uncertainty are unknown but 

potentially significant for management 

of the marine environment. 

Response: Table 2 lists each Northeast 

and Mid-Atlantic fishery on the LOF, 

including the estimated number of 

persons/vessels active in the fishery. 

Currently, a clear measure of effort for 

all state fisheries in the Northeast and 

Mid-Atlantic has not been determined 

due to the manner in which many state 

permits allow for the use of multiple 

gear types. Therefore, NMFS has 

determined that this column in Table 2 

for Northeast and Mid-Atlantic fisheries 

will be representative of current permit 

holders, state and Federal, that have the 

potential to participate in a particular 

fishery. As stated in the proposed 2011 

LOF, NMFS recognizes there may be 

disparity between permit holders listed 

and actual fishery effort; however, the 

numbers provided in the LOF are used 

for descriptive purposes and will not be 

used in determining current or future 

management of fisheries or observer 

coverage designations. 

Comment 26: The DOI supported the 

continued inclusion of the Florida 

subspecies of the West Indian manatee 

on the list of species/stocks incidentally 

killed or injured in the ‘‘Atlantic blue 

crab trap/pot’’ and ‘‘Gulf of Mexico blue 

crab trap/pot’’ fisheries. 

Response: NMFS has retained the 

Florida subspecies of the West Indian 

manatee on the list of species/stocks 

incidentally killed or injured in the 

‘‘Atlantic blue crab trap/pot’’ and ‘‘Gulf 

of Mexico blue crab trap/pot’’ fisheries 

in this final rule. 

Comment 27: The DOI recommended 

NMFS remove the Antillean subspecies 

of the West Indian manatee from the list 

of species/stocks incidentally killed or 

injured in the ‘‘Caribbean gillnet’’ and 

‘‘Caribbean haul/beach seine’’ fisheries. 

The DOI is unaware of any manatees 

taken in either fishery. In addition, use 

of all haul/beach seine nets and the use 

of gill and trammel nets in river mouths, 

rivers, and lagoons in Puerto Rico has 

been prohibited since 2004. 

Response: NMFS agrees with the DOI 

recommendation to remove the 

Antillean subspecies of the West Indian 

manatee from the list of species/stocks 

incidentally killed or injured in the 

‘‘Caribbean gillnet’’ and ‘‘Caribbean haul/ 

beach seine’’ fisheries. Based on 

information provided in the FWS’ 2009 

SAR, lack of evidence from stranding 

events, and the implementation of 

Puerto Rico Regulation 678 of the 2004 

Fisheries Law, the Antillean subspecies 

of the West Indian manatee has been 

removed from the list of species/stocks 

incidentally killed or injured in these 

fisheries in this final rule. 

Comment 28: The DOI recommended 

NMFS remove the Florida subspecies of 

the West Indian manatee from the list of 

species/stocks incidentally killed or 

injured in the ‘‘Southeastern U.S. 

Atlantic, Gulf of Mexico shrimp trawl’’ 

fishery. The DOI is unaware of any 

manatees taken in this fishery since 

1987. 

Response: NMFS appreciates this 

comment. However, NMFS does not 

support removing the Florida 

subspecies of the West Indian manatee 

from the list of species/stocks 

incidentally killed or injured in the 

‘‘Southeastern U.S. Atlantic, Gulf of 

Mexico shrimp trawl’’ fishery at this 

time. There has been at least one 

confirmed take in this fishery since 

1987; a manatee that was killed by a 

commercial shrimp trawler, with an 

observer aboard, in Georgia in 1997. 

Also, according to the FWS’ 2009 SAR, 

the bait shrimp fishery was suggested to 

cause three unconfirmed manatee 

mortalities in 1990. Furthermore, 

observer coverage for the shrimp trawl 

fishery has been less than 1 percent 

since 1992. Due to extremely low 

observer coverage, confirmed and 

unconfirmed takes by the fishery, and 

the spatial and temporal co-occurrence 

of the shrimp trawl fishery and the 

Florida subspecies of the West Indian 

manatee, NMFS believes there is at least 

a remote likelihood of incidental 

mortality and serious injury for the 

Florida subspecies of the West Indian 

manatee. Therefore, NMFS is retaining 

this species on the list of species/stocks 

incidentally killed or injured in the 

‘‘Southeastern U.S. Atlantic, Gulf of 

Mexico shrimp trawl’’ fishery. 

Comment 29: The Commission 

recommended NMFS increase observer 

coverage in the ‘‘Southeastern U.S. 

Atlantic, Gulf of Mexico shrimp trawl’’ 

fishery and conduct the stock 

assessments necessary to estimate 

reliable potential biological removal 

levels for the affected marine mammal 

stocks. 

Response: As stated in response to 

similar comments on past LOFs, NMFS 

continues to agree about the importance 

of increasing observer coverage for the 

‘‘Southeastern U.S. Atlantic, Gulf of 

Mexico shrimp trawl’’ fishery, as well as 

investigating stock structure and 

abundance of bottlenose dolphins in the 

Gulf of Mexico. 

Increasing observer coverage for these 

fisheries remains a priority if resources 

become available. Meanwhile, NMFS 

will continue monitoring fishermen selfreports and stranding data, as well as 

fishery observer reports. NMFS remains 

focused on increasing the capacity of 

the stranding network especially in the 

Gulf of Mexico. NMFS provided human 

interaction trainings at the 2010 

National Marine Animal Health and 

Stranding Network Conference. As a 

result of the BP/Deepwater Horizon 

MC252 oil spill response and restoration 

efforts, NMFS is working to strengthen 

infrastructure and increase the capacity 

of the stranding network which are now 

critical in monitoring the health of 

marine mammal stocks in the Gulf of 

Mexico, and will also be useful for 

assessing the extent of fishery 

interactions. 

NMFS supports further investigation 

of stock structure and abundance of 

affected marine mammal stocks in the 


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Gulf of Mexico. PBR is undetermined 

for most stocks because the population 

estimates are greater than eight years old 

and/or resources were unavailable to 

conduct surveys where information is 

outdated. However, due to the BP/ 

Deepwater Horizon MC252 oil spill 

response and restoration efforts, 

additional surveys and mark-recapture 

studies are being conducted for some 

bay, sound, and estuarine stocks of 

marine mammals in the Gulf of Mexico. 

Results from these studies will provide 

updated abundance estimates and PBR 

for some stocks. Stock assessments for 

Gulf of Mexico cetaceans remain a 

priority if resources become available. 

These additional efforts will provide 

baseline data for stock structure and 

abundance estimates for some marine 

mammal stocks. 

Summary of Changes to the LOF for 

2011 

The following summarizes changes to 

the LOF for 2011 in fishery 

classification, fisheries listed in the 

LOF, the number of participants in a 

particular fishery, and the species and 

stocks that are incidentally killed or 

injured in a particular fishery. The 

classifications and definitions of U.S. 

commercial fisheries for 2011 are 

identical to those provided in the LOF 

for 2010 with the changes outlined 

below. 

Commercial Fisheries in the Pacific 

Ocean 

Fishery Classification 

The ‘‘WA coastal Dungeness crab pot/ 

trap’’ fishery (split from the Category III 

‘‘WA Dungeness crab pot’’ fishery and 

renamed the ‘‘WA coastal Dungeness 

crab pot/trap’’ fishery in this rule) is 

elevated from Category III to Category II. 

The ‘‘CA thresher shark/swordfish 

drift gillnet’’ fishery (renamed from the 

‘‘CA/OR thresher shark/swordfish drift 

gillnet’’ fishery in this rule) is 

reclassified from Category I to Category 

III. 

The ‘‘CA anchovy, mackerel, sardine 

purse seine’’ fishery is reclassified from 

Category II to Category III. 

The ‘‘CA squid purse seine’’ fishery is 

reclassified from Category II to Category 

III. 

The ‘‘CA tuna purse seine’’ fishery is 

reclassified from Category II to Category 

III. 

Addition of Fisheries 

The ‘‘HI kaka line’’ fishery is added to 

the LOF as Category III. 

The ‘‘HI vertical longline’’ fishery is 

added to the LOF as Category III. 

The ‘‘HI crab net’’ fishery is added to 

the LOF as Category III. 

The ‘‘HI hukilau net’’ fishery is added 

to the LOF as Category III. 

The ‘‘HI lobster tangle net’’ fishery is 

added to the LOF as Category III. 

The ‘‘HI bullpen trap’’ fishery is added 

to the LOF as Category III. 

The ‘‘WA Puget Sound Dungeness 

crab pot/trap’’ fishery (split from the 

Category III ‘‘WA Dungeness crab pot’’ 

fishery in this rule) is added as a 

separate Category III fishery on the LOF. 

Fishery Name and Organizational 

Changes and Clarifications 

The Category III ‘‘HI squiding, spear’’ 

fishery is renamed as the ‘‘HI 

spearfishing’’ fishery. 

The Category III ‘‘HI Main Hawaiian 

Islands, Northwestern Hawaiian Islands 

deep sea bottomfish’’ fishery is renamed 

as the ‘‘HI Main Hawaiian Islands deepsea bottomfish handline’’ fishery. 

The Category III ‘‘HI Kona crab loop 

net’’ fishery is moved from the ‘‘Purse 

Seine, Beach Seine, Round Haul, and 

Throw Net Fisheries’’ heading in Table 

1 to the ‘‘Pot, Ring Net, and Trap 

Fisheries’’ heading. 

‘‘Tangle Net’’ is added to the name of 

the Category III ‘‘Purse Seine, Beach 

Seine, Round Haul and Throw Net 

Fisheries’’ heading in Table 1. 

The Category III ‘‘CA/OR thresher 

shark/swordfish drift gillnet’’ fishery is 

renamed the ‘‘CA thresher shark/ 

swordfish drift gillnet’’ fishery. 

The Category III ‘‘WA Dungeness crab 

pot’’ fishery is split into two separate 

fisheries, the Category II ‘‘WA coastal 

Dungeness crab pot/trap’’ fishery and 

the Category III ‘‘WA Puget Sound 

Dungeness crab pot/trap’’ fishery. 

A superscript ‘‘2’’ is added after the 

Category II ‘‘CA yellowtail, barracuda, 

and white seabass drift gillnet (mesh 

≥ 3.5 in and < 14 in)’’ fishery in Table 1. 

Number of Vessels/Persons 

The estimated numbers of persons/ 

vessels participating in the following 

Category II CA/OR/WA fisheries are 

updated: ‘‘CA halibut/white seabass and 

other species set gillnet’’ fishery from 58 

to 50; ‘‘CA yellowtail, barracuda, and 

white seabass drift gillnet’’ fishery from 

24 to 30; ‘‘CA spot prawn pot’’ fishery 

from 29 to 27; ‘‘CA Dungeness crab pot’’ 

fishery from 625 to 534; and ‘‘CA/OR/ 

WA sablefish pot’’ fishery from 155 to 

309. 

The estimated numbers of persons/ 

vessels in the following Category III CA/ 

OR/WA fisheries are updated: ‘‘CA 

thresher shark/swordfish drift gillnet’’ 

fishery (renamed from ‘‘CA/OR thresher 

shark/swordfish drift gillnet’’ fishery in 

this rule) from 85 to 45; ‘‘CA squid purse 

seine’’ fishery from 64 to 80; and ‘‘CA 

anchovy, mackerel, sardine purse seine’’ 

fishery from 63 to 65. 

The estimated number of persons/ 

vessels in the Category I ‘‘HI deep-set 

(tuna target) longline/set line’’ fishery is 

updated from 129 to 127. 

The estimated number of persons/ 

vessels in the Category II ‘‘HI shortline’’ 

fishery is updated from 11 to 21. 

The estimated numbers of persons/ 

vessels in the following Category III HI 

fisheries are updated: ‘‘HI inshore 

gillnet’’ fishery from 5 to 39; ‘‘HI Kona 

crab loop net’’ fishery from 42 to 41; ‘‘HI 

opelu/akule net’’ fishery from 12 to 20; 

‘‘HI inshore purse seine’’ fishery from 23 

to 8; ‘‘HI throw net, cast net’’ fishery 

from 14 to 28; ‘‘HI trolling, rod and reel’’ 

fishery from 1,321 to 2,210; ‘‘HI crab 

trap’’ fishery from 22 to 9; ‘‘HI fish trap’’ 

fishery from 19 to 11; ‘‘HI lobster trap’’ 

fishery from 0 to 3; ‘‘HI shrimp trap’’ 

fishery from 5 to 1; ‘‘HI aku boat, pole, 

and line’’ fishery from 4 to 6; ‘‘HI inshore 

handline’’ fishery from 307 to 460; ‘‘HI 

tuna handline’’ fishery from 298 to 531; 

‘‘HI handpick’’ fishery from 37 to 53; ‘‘HI 

lobster diving’’ fishery from 19 to 36; ‘‘HI 

spearfishing’’ fishery from 91 to 163; and 

‘‘HI Main Hawaiian Islands deep-sea 

bottomfish handline’’ fishery from 300 

to 580. 

List of Species or Stocks Incidentally 

Killed or Injured 

Humpback whale (CA/OR/WA stock) 

is added to the list of species/stocks 

incidentally killed or injured in the 

Category II ‘‘WA coastal Dungeness crab 

pot/trap’’ fishery, followed by a 

superscript ‘‘1’’. 

Humpback whale (CA/OR/WA stock) 

is added to the list of species/stocks 

incidentally killed or injured in the 

Category II ‘‘CA halibut/white seabass 

and other species set gillnet (> 3.5 in 

mesh)’’ fishery, followed by a 

superscript ‘‘1’’. 

Short finned pilot whales (CA/OR/ 

WA stock) is removed from the list of 

species/stocks incidentally killed or 

injured in the Category II ‘‘CA thresher 

shark/swordfish drift gillnet’’ fishery 

(renamed from ‘‘CA/OR thresher shark/ 

swordfish drift gillnet’’ fishery in this 

rule). 

Bottlenose dolphin (CA/OR/WA 

offshore stock) is removed from the list 

of species/stocks incidentally killed or 

injured in the Category III ‘‘CA anchovy, 

mackerel, sardine purse seine’’ fishery. 

Risso’s dolphin (CA/OR/WA stock) is 

removed from the list of species/stocks 

incidentally killed or injured in the 

Category III ‘‘CA pelagic longline’’ 

fishery. 

The superscript ‘‘1’’ after CA sea lions 

(U.S. stock) and harbor seals (CA stock) 

is removed from the list of species/ 


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stocks incidentally killed or injured in 

the Category II ‘‘CA halibut/white 

seabass and other species set gillnet 

(> 3.5 in mesh)’’ fishery. 

The superscript ‘‘2’’ is removed after 

the Category II ‘‘CA Dungeness crab pot’’ 

fishery in Table 1 and a superscript ‘‘1’’ 

is added after humpback whale 

(CA/OR/WA stock) in the list of species/ 

stocks incidentally killed or injured in 

this fishery. 

False killer whale (Palmyra Atoll 

stock) is added to the list of species/ 

stocks incidentally injured or killed in 

the Category I ‘‘HI deep-set (tuna target) 

longline/set line’’ fishery. 

False killer whale (HI Insular stock) is 

added to the list of species/stocks 

incidentally injured or killed in the 

Category I ‘‘HI deep-set (tuna target) 

longline/set line’’ fishery, followed by a 

superscript ‘‘1’’. 

The stock of bottlenose dolphin 

incidentally killed or injured in the 

Category I ‘‘HI deep-set (tuna target) 

longline/set line’’ fishery is changed 

from ‘‘HI stock’’ to ‘‘HI Pelagic stock.’’ 

The stock of pantropical spotted 

dolphin incidentally killed or injured in 

the Category I ‘‘HI deep-set (tuna target) 

longline/set line’’ fishery is changed 

from ‘‘stock unknown’’ to ‘‘HI stock.’’ 

The superscript ‘‘1’’ is removed after 

humpback whale (Central North Pacific 

stock) in the list of species/stocks 

incidentally killed or injured in the 

Category II ‘‘HI shallow-set (swordfish 

target) longline/set line’’ fishery. 

The stock of bottlenose dolphin 

incidentally killed or injured in the 

Category II ‘‘HI shallow-set (swordfish 

target) longline/set line’’ fishery is 

changed from ‘‘stock unknown’’ to 

‘‘HI Pelagic stock.’’ 

A superscript ‘‘1’’ is added after 

bottlenose dolphin (HI Pelagic stock) in 

the list of species/stocks incidentally 

killed or injured in the Category II ‘‘HI 

shallow-set (swordfish target) longline/ 

set line’’ fishery. 

Striped dolphin (HI stock) is added to 

the list of species/stocks incidentally 

injured or killed in the Category II ‘‘HI 

shallow-set (swordfish target) longline/ 

set line’’ fishery. 

False killer whale (HI Pelagic stock) if 

added to the list of species/stocks 

incidentally killed or injured in the 

Category II ‘‘HI shallow-set (swordfish 

target) longline/set line’’ fishery. 

Kogia spp. whale (HI stock) is added 

to the list of species/stocks incidentally 

killed or injured in the Category II ‘‘HI 

shallow-set (swordfish target) longline/ 

set line’’ fishery. 

The stock of Bryde’s whale 

incidentally killed or injured in the 

Category II ‘‘HI shallow-set (swordfish 

target) longline/set line’’ fishery is 

changed from ‘‘stock unknown’’ to ‘‘HI 

stock.’’ 

The stock of Risso’s dolphin 

incidentally killed or injured in the 

Category II ‘‘HI shallow-set (swordfish 

target) longline/set line’’ fishery is 

changed from ‘‘stock unknown’’ to ‘‘HI 

stock.’’ 

Sperm whale (stock unknown) is 

removed from the list of species/stocks 

incidentally killed or injured in the 

Category II ‘‘HI shallow-set (swordfish 

target) longline/set line’’ fishery. 

The stock of false killer whale 

incidentally killed or injured in the 

Category II ‘‘American Samoa longline’’ 

fishery is changed from ‘‘stock 

unknown’’ to ‘‘American Samoa.’’ 

Rough-toothed dolphin (American 

Samoa stock) is added to the list of 

species/stocks incidentally killed or 

injured in the Category II ‘‘American 

Samoa longline’’ fishery. 

Commercial Fisheries in the Atlantic 

Ocean, Gulf of Mexico, and Caribbean 

Fishery Classification 

The ‘‘Southeastern U.S. Atlantic, Gulf 

of Mexico shrimp trawl’’ fishery is 

elevated from Category III to Category II. 

Removal of Fisheries 

The separate listing for the Category II 

‘‘Mid-Atlantic flynet’’ fishery is removed 

from the LOF. 

Fishery Name and Organizational 

Changes and Clarifications 

The Category II ‘‘Mid-Atlantic flynet’’ 

fishery is incorporated into the Category 

II ‘‘Mid-Atlantic bottom trawl’’ fishery 

and the fishery definition for the ‘‘MidAtlantic bottom trawl’’ fishery is 

updated to reflect this change. 

American eel is removed as a species 

targeted in Category II ‘‘Atlantic mixed 

species trap/pot’’ fishery and the fishery 

definition is updated to reflect this 

change. 

The list of target species for the 

Category II ‘‘Northeast drift gillnet’’ 

fishery is updated and the fishery 

definition is updated to reflect this 

change. 

The list of bodies governing the 

Category II ‘‘Northeast mid-water trawl’’ 

fishery is updated and the fishery 

definition is updated to reflect this 

change. 

The list of FMPs applicable to the 

Category II ‘‘Northeast bottom trawl’’ and 

the Category I ‘‘Northeast sink gillnet’’ 

fisheries are updated and the fishery 

definitions are updated to reflect this 

change. 

The spatial boundaries for the 

Category II ‘‘Northeast bottom trawl’’ and 

‘‘Mid-Atlantic bottom trawl’’ fisheries 

are updated and the fishery definitions 

are updated to reflect this change. 

Number of Vessels/Persons 

The estimated numbers of persons/ 

vessels in the following Category I 

fisheries are updated: ‘‘Mid-Atlantic 

gillnet’’ fishery from > 670 to 5,495; 

‘‘Northeast sink gillnet’’ fishery from 341 

to 7,712; and ‘‘Northeast/Mid-Atlantic 

American lobster trap/pot’’ fishery from 

13,000 to 12,489. 

The estimated numbers of persons/ 

vessels in the following Category II 

fisheries are updated: ‘‘Southeastern 

U.S. Atlantic, Gulf of Mexico shrimp 

trawl’’ fishery from > 18,000 to 4,950; 

‘‘Chesapeake Bay inshore gillnet’’ fishery 

from 45 to 1,167; ‘‘NC inshore gillnet’’ 

fishery from 94 to 2,250; ‘‘Northeast 

anchored float gillnet’’ fishery from 133 

to 662; ‘‘Northeast drift gillnet’’ fishery 

from unknown to 608; ‘‘Mid-Atlantic 

mid-water trawl’’ fishery from 620 to 

546; ‘‘Mid-Atlantic bottom trawl’’ fishery 

from > 1,000 to 1,182; ‘‘Northeast midwater trawl (including pair trawl) ’’ 

fishery from 17 to 953; ‘‘Northeast 

bottom trawl’’ fishery from 1,052 to 

1,635; ‘‘Atlantic blue crab trap/pot’’ 

fishery from > 16,000 to 6,479; ‘‘Atlantic 

mixed species trap/pot’’ fishery from 

unknown to 1,912; ‘‘Mid-Atlantic 

menhaden purse seine’’ fishery from 22 

to 54; ’’ fishery Mid-Atlantic haul/beach 

seine’’ fishery from 25 to 666; ‘‘NC long 

haul seine’’ fishery from 33 to 372; and 

‘‘VA pound net’’ fishery from 41 to 52. 

The estimated numbers of persons/ 

vessels in the following Category III 

fisheries are updated: ‘‘U.S. MidAtlantic offshore surf clam and quahog 

dredge’’ fishery from 100 to unknown; 

‘‘Gulf of Maine urchin dive, hand/ 

mechanical collection’’ fishery from 

< 50 to unknown; ‘‘Gulf of Maine, U.S. 

Mid-Atlantic sea scallop dredge’’ fishery 

from 233 to 258; ‘‘Gulf of Maine mussel 

dredge’’ fishery from > 50 to unknown; 

‘‘Gulf of Maine, U.S. Mid-Atlantic tuna/ 

shark/swordfish hook & line/harpoon’’ 

fishery from 26,223 to > 403; ‘‘Northeast, 

Mid-Atlantic bottom longline/hook & 

line’’ fishery from 46 to 1,183; ‘‘U.S. 

Mid-Atlantic mixed species stop seine/ 

weir/pound net’’ fishery from 751 to 

unknown; ‘‘Gulf of Maine herring and 

Atlantic mackerel stop seine/weir’’ 

fishery from 50 to unknown; ‘‘Gulf of 

Maine Atlantic herring purse seine’’ 

fishery from 30 to > 7; ‘‘Gulf of Maine 

menhaden purse seine’’ fishery from 50 

to > 2; and ‘‘Atlantic shellfish bottom 

trawl’’ fishery from 972 to > 67. 

List of Species or Stocks Incidentally 

Killed or Injured 

West Indian manatee (Antillean 

subspecies) is removed from the list of 

species/stocks incidentally killed or 


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injured in the Category III ‘‘Caribbean 

gillnet’’ and ‘‘Caribbean haul/beach 

seine’’ fisheries. 

Bottlenose dolphin (WNA offshore 

stock) is added to the list of species/ 

stocks incidentally killed or injured in 

the Category II ‘‘Mid-Atlantic bottom 

trawl’’ fishery. 

Atlantic spotted dolphin (Northern 

GMX stock) is added to the list of 

species/stocks incidentally killed or 

injured in the Category II ‘‘Southeastern 

U.S. Atlantic, Gulf of Mexico shrimp 

trawl’’ fishery. 

Bottlenose dolphin (Northern NC 

estuarine system stock) is added to the 

list of species/stocks incidentally killed 

or injured in the Category III ‘‘U.S. MidAtlantic mixed species stop seine/weir/ 

pound net (except the NC roe mullet 

stop net)’’ fishery. 

The stock names for bottlenose 

dolphins incidentally killed or injured 

in all Category I, II, and III fisheries in 

the Atlantic are updated from ‘‘WNA 

coastal’’ to: 

1. ‘‘Mid-Atlantic gillnet’’ fishery 

(Category I): Bottlenose dolphin, 

Northern Migratory coastal; bottlenose 

dolphin, Southern Migratory coastal; 

bottlenose dolphin, Northern NC 

estuarine system; bottlenose dolphin, 

Southern NC estuarine system. A 

superscript ‘‘1’’ is retained after each of 

these stocks in Table 2. 

2. ‘‘NC inshore gillnet’’ fishery 

(Category II): Bottlenose dolphin, 

Northern NC estuarine system; 

bottlenose dolphin, Southern NC 

estuarine system. A superscript ‘‘1’’ is 

retained after each of these stocks in 

Table 2. 

3. ‘‘Southeast Atlantic gillnet’’ fishery 

(Category II): Bottlenose dolphin, 

Southern Migratory coastal; bottlenose 

dolphin, SC coastal; bottlenose dolphin, 

GA coastal; bottlenose dolphin, 

Northern FL coastal; bottlenose dolphin, 

Central FL coastal. The superscript ‘‘2’’ is 

retained after the fishery in Table 2. 

4. ‘‘Southeastern U.S. Atlantic shark 

gillnet’’ fishery (Category II): Bottlenose 

dolphin, Central FL coastal. A 

superscript ‘‘1’’ is retained after this 

stock in Table 2. 

5. ‘‘Atlantic blue crab trap/pot’’ fishery 

(Category II): Bottlenose dolphin, 

Northern NC estuarine system; 

bottlenose dolphin, Southern NC 

estuarine system; bottlenose dolphin, 

Charleston estuarine system; bottlenose 

dolphin, Northern GA/Southern SC 

estuarine system; bottlenose dolphin, 

Southern GA estuarine system; 

bottlenose dolphin, Jacksonville 

estuarine system; bottlenose dolphin, 

Indian River Lagoon estuarine system; 

bottlenose dolphin, Northern Migratory 

coastal; bottlenose dolphin, Southern 

Migratory coastal; bottlenose dolphin, 

Northern FL coastal; bottlenose dolphin, 

Central FL coastal; bottlenose dolphin, 

SC coastal; bottlenose dolphin, GA 

coastal. A superscript ‘‘1’’ is retained 

after each of these stocks in Table 2. 

6. ‘‘Mid-Atlantic menhaden purse 

seine’’ fishery (Category II): Bottlenose 

dolphin, Northern Migratory coastal; 

bottlenose dolphin, Southern Migratory 

coastal. The superscript ‘‘2’’ is retained 

after the fishery in Table 2. 

7. ‘‘Mid-Atlantic haul/beach seine’’ 

fishery (Category II): Bottlenose dolphin, 

Northern NC estuarine system; 

bottlenose dolphin, Northern Migratory 

coastal; bottlenose dolphin, Southern 

Migratory coastal. A superscript ‘‘1’’ is 

retained after each of these stocks in 

Table 2. 

8. ‘‘NC long haul seine’’ fishery 

(Category II): Bottlenose dolphin, 

Northern NC estuarine system. A 

superscript ‘‘1’’ is retained after this 

stock in Table 2. 

9. ‘‘NC roe mullet stop net’’ fishery 

(Category II): Bottlenose dolphin, 

Southern NC estuarine system. A 

superscript ‘‘1’’ is retained after this 

stock in Table 2. 

10. ‘‘VA pound net’’ fishery (Category 

II): Bottlenose dolphin, Northern 

Migratory coastal; Bottlenose dolphin, 

Southern Migratory coastal. A 

superscript ‘‘1’’ is retained after each of 

these stocks in Table 2. 

11. ‘‘Southeastern U.S. Atlantic, Gulf 

of Mexico shrimp trawl’’ fishery 

(proposed to be elevated to Category II 

in this proposed rule): Bottlenose 

dolphin, SC coastal; bottlenose dolphin, 

GA coastal. A superscript ‘‘1’’ is retained 

after each of these stocks in Table 2. 

12. ‘‘FL spiny lobster trap/pot’’ fishery 

(Category III): Bottlenose dolphin, 

Biscayne Bay estuarine; bottlenose 

dolphin, FL Bay estuarine. 

13. ‘‘Southeastern U.S. Atlantic, Gulf 

of Mexico stone crab trap/pot’’ fishery 

(Category III): Bottlenose dolphin, 

Biscayne Bay estuarine. 

14. ‘‘Atlantic Ocean, Gulf of Mexico, 

Caribbean commercial passenger fishing 

vessel’’ fishery (Category III): Bottlenose 

dolphin, Southern NC estuarine system; 

bottlenose dolphin, Indian River Lagoon 

estuarine system; bottlenose dolphin, 

Biscayne Bay estuarine. 

Commercial Fisheries on the High Seas 

Fishery Classifications 

The High Seas ‘‘Pacific highly 

migratory species drift gillnet’’ fishery is 

reclassified from Category I to Category 

III. 

The High Seas ‘‘Pacific highly 

migratory species purse seine’’ fishery is 

reclassified from Category II and III. 

This fishery is an extension of the ‘‘CA 

tuna purse seine’’ fishery operation in 

U.S. waters (reclassified as Category III 

in this rule). NMFS inadvertently 

retained the high seas portion of this 

fishery as Category II in the proposed 

2011 LOF. However, since the High Seas 

‘‘Pacific highly migratory species purse 

seine’’ fishery is an extension of the 

fishery operating in U.S. waters, and not 

a separate fishery, it is classified on the 

LOF the same as the component of the 

fishery operating in the U.S. waters. In 

this case Category III. 

Number of Vessels/Persons 

The estimated number of HSFCA 

permits in the Category I High Seas 

Atlantic highly migratory species 

fishery is updated for the following gear 

types: Longline from 72 to 77. 

The estimated number of HSFCA 

permits in the Category II High Seas 

Atlantic highly migratory species is 

updated for the following gear types: 

Handline/pole and line from 1 to 2; and 

trawl from 2 to 3. 

The estimated number of HSFCA 

permits in the Category II High Seas 

Pacific highly migratory species fishery 

is updated for the following gear types: 

Drift gillnet from 4 to 3; longline from 

62 to 75; handline/pole and line from 22 

to 25; trawl from 3 to 2; and troll from 

249 to 271. 

The estimated number of HSFCA 

permits in the Category II High Seas 

South Pacific Albacore Troll fishery is 

updated for the following gear types: 

Troll from 53 to 59. 

The estimated number of HSFCA 

permits in the Category II High Seas 

South Pacific Tuna fishery is updated 

for the following gear types: Longline 

from 3 to 8; and purse seine from 36 to 

35. 

The estimated number of HSFCA 

permits in the Category I High Seas 

Western Pacific Pelagic fishery for the 

following gear types: Deep-set longline 

from 129 to 127. 

The estimated number of HSFCA 

permits in the Category II High Seas 

Western Pacific pelagic fishery for the 

following gear types: Handline/pole and 

line from 9 to 10; trawl from 4 to 3; and 

troll from 44 to 40. 

List of Species or Stocks Incidentally 

Killed or Injured 

False killer whale (HI pelagic stock) is 

added to the list of species/stocks 

incidentally killed or injured in the 

Category I ‘‘Western Pacific pelagic 

longline (Deep-set component)’’ fishery. 

The stock of pantropical spotted 

dolphin incidentally killed or injured in 

the Category I ‘‘Western Pacific pelagic 

longline (Deep-set component)’’ fishery 


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is changed from ‘‘stock unknown’’ to ‘‘HI 

stock.’’ 

The stock of bottlenose dolphin 

incidentally killed or injured in the 

Category I ‘‘Western Pacific pelagic 

longline (Deep-set component)’’ fishery 

is changed from ‘‘HI’’ to ‘‘HI Pelagic 

stock.’’ 

Striped dolphin (HI stock) and Kogia 

spp. whale (HI stock) are added to the 

list of species/stocks incidentally killed 

or injured in the Category II ‘‘Western 

Pacific pelagic longline (Shallow-set 

component)’’ fishery. 

The stock of bottlenose dolphin 

incidentally killed or injured in the 

Category II ‘‘Western Pacific pelagic 

longline (Shallow-set component)’’ 

fishery is changed from ‘‘stock 

unknown’’ to ‘‘HI Pelagic stock.’’ 

The stock of Bryde’s whale 

incidentally killed or injured in the 

Category II ‘‘Western Pacific pelagic 

longline (Shallow-set component)’’ 

fishery is changed from ‘‘stock 

unknown’’ to ‘‘HI stock.’’ 

The stock of Risso’s dolphin 

incidentally killed or injured in the 

Category II ‘‘Western Pacific pelagic 

longline (Shallow-set component)’’ 

fishery is changed from ‘‘stock 

unknown’’ to ‘‘HI stock.’’ 

Sperm whale (stock unknown) is 

removed from the list of species/stocks 

incidentally killed or injured in the 

Category II High Seas ‘‘Western Pacific 

pelagic longline (Shallow-set 

component)’’ fishery. 

Short-finned pilot whale (CA/OR/ 

WA) is removed from the list of species/ 

stocks incidentally killed or injured in 

the Category III ‘‘Pacific highly 

migratory species drift gillnet’’ fishery. 

List of Fisheries 

The following tables set forth the final 

list of U.S. commercial fisheries 

according to their classification under 

section 118 of the MMPA. In Tables 1 

and 2, the estimated number of vessels/ 

participants participating in fisheries 

operating within U.S. waters is 

expressed in terms of the number of 

active participants in the fishery, when 

possible. If this information is not 

available, the estimated number of 

vessels or persons licensed for a 

particular fishery is provided. If no 

recent information is available on the 

number of participants, vessels, or 

persons licensed in a fishery, then the 

number from the most recent LOF is 

used for the estimated number of 

vessels/persons in the fishery. NMFS 

acknowledges that, in some cases, these 

estimations may be inflations of actual 

effort; however, they represent the 

potential effort for each fishery, given 

the multiple gear types several state 

permits may allow for. Changes made to 

New England and Mid-Atlantic fishery 

participants listed in Table 2 in this 

final rule will not affect observer 

coverage or bycatch estimates as 

observer coverage and bycatch estimates 

are based on vessel trip reports and 

landings data. Table 1 and 2 serve to 

provide a description of the fishery’s 

potential effort (state and Federal) in the 

LOF. If NMFS is able to extract more 

accurate information on the gear types 

used by state permit holders in the 

future, the numbers will be corrected to 

reflect this change. For additional 

information on fishing effort in fisheries 

found on Table 1 or 2, NMFS refers the 

reader to contact the relevant regional 

office (contact information included 

above in SUPPLEMENTARY INFORMATION). 

For high seas fisheries, Table 3 lists 

the number of currently valid HSFCA 

permits held. Although this likely 

overestimates the number of active 

participants in many of these fisheries, 

the number of valid HSFCA permits is 

the most reliable data on the potential 

effort at this time. 

Tables 1, 2, and 3 also list the marine 

mammal species/stocks incidentally 

killed or injured in each fishery based 

on observer data, logbook data, 

stranding reports, disentanglement 

network data, and MMAP reports. This 

list includes all species or stocks known 

to be injured or killed in a given fishery, 

but also includes species or stocks for 

which there are anecdotal records of an 

injury or mortality. Additionally, 

species identified by logbook entries 

may not be verified. In Tables 1 and 2, 

NMFS has designated those stocks 

driving a fishery’s classification (i.e., the 

fishery is classified based on serious 

injuries and mortalities of a marine 

mammal stock that are greater than 50 

percent [Category I], or greater than 1 

percent and less than 50 percent 

[Category II], of a stock’s PBR) by a 

‘‘1’’after the stock’s name. 

In Tables 1 and 2, there are several 

fisheries classified in Category II that 

have no recent documented injuries or 

mortalities of marine mammals, or 

fisheries that did not result in a serious 

injury or mortality rate greater than 1 

percent of a stock’s PBR level. NMFS 

has classified these fisheries by analogy 

to other Category I or II fisheries that 

operate similar gear types that are 

known to cause mortality or serious 

injury of marine mammals, as discussed 

in the final LOF for 1996 (60 FR 67063, 

December 28, 1995), and according to 

factors listed in the definition of a 

‘‘Category II fishery’’ in 50 CFR 229.2. 

NMFS has designated those fisheries 

listed by analogy in Tables 1 and 2 by 

a ‘‘2’’ after the fishery’s name. 

There are several fisheries in Tables 1, 

2, and 3 in which a portion of the 

fishing vessels cross the EEZ boundary, 

and therefore operate both within U.S. 

waters and on the high seas. NMFS has 

designated those fisheries in each Table 

by a ‘‘*’’ after the fishery’s name. 

Table 1 lists commercial fisheries in 

the Pacific Ocean (including Alaska); 

Table 2 lists commercial fisheries in the 

Atlantic Ocean, Gulf of Mexico, and 

Caribbean; Table 3 lists commercial 

fisheries on the High Seas; and Table 4 

lists fisheries affected by Take 

Reduction Plans or Teams. 

BILLING CODE 3510–22–P 


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BILLING CODE 3510–22–C 

Classification 

At the proposed rule stage for this 

action, the Chief Counsel for Regulation 

of the Department of Commerce 

certified to the Chief Counsel for 

Advocacy of the Small Business 

Administration that this rule would not 

have a significant economic impact on 

a substantial number of small entities. 

Therefore a Final Regulatory Flexibility 

Analysis was not required and none has 

been prepared. The factual basis leading 

to the certification is set forth below. 


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Under existing regulations, all 

individuals participating in Category I 

or II fisheries must register under the 

MMPA and obtain an Authorization 

Certificate. The Authorization 

Certificate authorizes the taking of nonendangered and non-threatened marine 

mammals incidental to commercial 

fishing operations. Additionally, 

individuals may be subject to a Take 

Reduction Plan (TRP) and requested to 

carry an observer. NMFS has estimated 

that approximately 72,000 fishing 

vessels, most of which are small 

entities, may operate in Category I or II 

fisheries, and therefore, are required to 

register with NMFS. The MMPA 

registration process is integrated with 

existing state and Federal licensing, 

permitting, and registration programs. 

Therefore, individuals who have a state 

or Federal fishing permit or landing 

license, or who are authorized through 

another related state or Federal fishery 

registration program, are currently not 

required to register separately under the 

MMPA or pay the $25 registration fee. 

Therefore, there are no direct costs to 

small entities under this final rule. 

If a vessel is requested to carry an 

observer, individuals will not incur any 

direct economic costs associated with 

carrying that observer. Potential indirect 

costs to individuals required to take 

observers may include: Lost space on 

deck for catch, lost bunk space, and lost 

fishing time due to time needed to 

process bycatch data. For effective 

monitoring, however, observers will 

rotate among a limited number of 

vessels in a fishery at any given time 

and each vessel within an observed 

fishery has an equal probability of being 

requested to accommodate an observer. 

Therefore, the potential indirect costs to 

individuals are expected to be minimal 

because observer coverage would only 

be required for a small percentage of an 

individual’s total annual fishing time. In 

addition, section 118 of the MMPA 

states that an observer will not be 

placed on a vessel if the facilities for 

quartering an observer or performing 

observer functions are inadequate or 

unsafe, thereby exempting vessels too 

small to accommodate an observer from 

this requirement. As a result of this 

certification, an initial regulatory 

flexibility analysis is not required and 

was not prepared. In the event that 

reclassification of a fishery to Category 

I or II results in a TRP, economic 

analyses of the effects of that plan 

would be summarized in subsequent 

rulemaking actions. 

This final rule contains collection-ofinformation requirements subject to the 

Paperwork Reduction Act. The 

collection of information for the 

registration of individuals under the 

MMPA has been approved by the Office 

of Management and Budget (OMB) 

under OMB control number 0648–0293 

(0.15 hours per report for new 

registrants and 0.09 hours per report for 

renewals). The requirement for 

reporting marine mammal injuries or 

mortalities has been approved by OMB 

under OMB control number 0648–0292 

(0.15 hours per report). These estimates 

include the time for reviewing 

instructions, searching existing data 

sources, gathering and maintaining the 

data needed, and completing and 

reviewing the collection of information. 

Send comments regarding these 

reporting burden estimates or any other 

aspect of the collections of information, 

including suggestions for reducing 

burden, to NMFS and OMB (see 

ADDRESSES and SUPPLEMENTARY

INFORMATION). 

Notwithstanding any other provision 

of law, no person is required to respond 

to nor shall a person be subject to a 

penalty for failure to comply with a 

collection of information subject to the 

requirements of the Paperwork 

Reduction Act unless that collection of 

information displays a currently valid 

OMB control number. 

This final rule has been determined to 

be not significant for the purposes of 

Executive Order 12866. 

An environmental assessment (EA) 

was prepared under the National 

Environmental Policy Act (NEPA) for 

regulations to implement section 118 of 

the MMPA in June 1995. NMFS revised 

that EA relative to classifying U.S. 

commercial fisheries on the LOF in 

December 2005. Both the 1995 EA and 

the 2005 EA concluded that 

implementation of MMPA section 118 

regulations would not have a significant 

impact on the human environment. This 

final rule would not make any 

significant change in the management of 

reclassified fisheries, and therefore, this 

final rule is not expected to change the 

analysis or conclusion of the 2005 EA. 

The Council of Environmental Quality 

(CEQ) recommends agencies review EAs 

every five years; therefore, NMFS 

reviewed the 2005 EA in 2009. NMFS 

concluded that, because there have been 

no changes to the process used to 

develop the LOF and implement section 

118 of the MMPA (including no new 

alternatives and no additional or new 

impacts on the human environment), 

there is no need to update the 2005 EA 

at this time. If NMFS takes a 

management action, for example, 

through the development of a TRP, 

NMFS would first prepare an 

environmental document, as required 

under NEPA, specific to that action. 

This final rule would not affect 

species listed as threatened or 

endangered under the Endangered 

Species Act (ESA) or their associated 

critical habitat. The impacts of 

numerous fisheries have been analyzed 

in various biological opinions, and this 

final rule will not affect the conclusions 

of those opinions. The classification of 

fisheries on the LOF is not considered 

to be a management action that would 

adversely affect threatened or 

endangered species. If NMFS takes a 

management action, for example, 

through the development of a TRP, 

NMFS would conduct consultation 

under ESA section 7 for that action. 

This final rule would have no adverse 

impacts on marine mammals and may 

have a positive impact on marine 

mammals by improving knowledge of 

marine mammals and the fisheries 

interacting with marine mammals 

through information collected from 

observer programs, stranding and 

sighting data, or take reduction teams. 

This final rule would not affect the 

land or water uses or natural resources 

of the coastal zone, as specified under 

section 307 of the Coastal Zone 

Management Act. 

References 

Baird, R.W., and A.M. Gorgone. 2005. 

False killer whale dorsal fin 

disfigurements as a possible indicator of 

long-line fishery interactions in 

Hawaiian waters. Pacific Science 59: 

593–601. 

Dated: November 1, 2010. 

Samuel D. Rauch III, 

Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service. 

[FR Doc. 2010–28073 Filed 11–5–10; 8:45 am] 

BILLING CODE 3510–22–P 


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