[Federal Register Volume 75, Number 215 (Monday, November 8, 2010)]
[Rules and Regulations]
[Pages 68468-68504]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-28073]


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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.

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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 East-West 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-

[[Page 68469]]

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

[[Page 68470]]

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

[[Page 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://

[[Page 68472]]

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 boat- or 
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

[[Page 68473]]

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, peer-reviewed 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 two-year 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 peer-reviewed 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

[[Page 68474]]

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

[[Page 68475]]

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 human-caused 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 shallow-set 
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

[[Page 68476]]

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 island-associated 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

[[Page 68477]]

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' 
well-documented 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 deep-set (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

[[Page 68478]]

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[deg]30' W. long. to 
70[deg] 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 self-reports 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

[[Page 68479]]

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 deep-sea 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/

[[Page 68480]]

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 ``[sup1]'' 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 ``[sup1]'' 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 ``Mid-Atlantic 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 mid-water 
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. Mid-Atlantic 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

[[Page 68481]]

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. Mid-Atlantic 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 
``[sup2]'' 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 ``[sup1]'' 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 ``[sup1]'' 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

[[Page 68482]]

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.
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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.

[[Page 68504]]

    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 non-endangered 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-of-information 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]
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