[Federal Register Volume 76, Number 229 (Tuesday, November 29, 2011)]
[Rules and Regulations]
[Pages 73912-73953]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-30607]
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Vol. 76
Tuesday,
No. 229
November 29, 2011
Part V
Department of Commerce
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National Oceanic and Atmospheric Administration
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50 CFR Part 229
List of Fisheries for 2012; Final Rule
Federal Register / Vol. 76, No. 229 / Tuesday, November 29, 2011 /
Rules and Regulations
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 229
[Docket No. 110207104-1536-02]
RIN 0648-BA76
List of Fisheries for 2012
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 2012, as required by the Marine
Mammal Protection Act (MMPA). The final LOF for 2012 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 in the LOF determines whether
participants in that fishery are subject to certain provisions of the
MMPA, such as registration, observer coverage, and take reduction plan
(TRP) requirements.
DATES: This final rule is effective January 1, 2012.
ADDRESSES: 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 email to [email protected].
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) 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: Allison Rosner;
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 1110, 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 TRP 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).
[[Page 73913]]
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
There are several fisheries on the LOF classified as 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 based on
known interactions. NMFS has classified these fisheries as Category II
by analogy to other Category I or II fisheries (NMFS does not classify
fisheries as Category I based on analogy) that are sufficiently
analogous to the fishery in question (e.g., use similar fishing
techniques or gear that are known to cause mortality or serious injury
of marine mammals), or according to factors discussed in the final LOF
for 1996 (60 FR 67063, December 28, 1995) and listed in the regulatory
definition of a Category II fishery. The regulations at 50 CFR 229.2
state that 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 ``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.'' 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).
Information That May Be Considered When Classifying Fisheries
Under regulations pursuant to section 118 of the MMPA, observer
data, logbook data, stranding data, fishers' reports, anecdotal
reports, and information on incidental serious injury or mortality to
marine mammals reported in SARs are used to classify fisheries (60 FR
45086, August 30, 1995; 60 FR 67063, December 28, 1995). Further, the
factors for consideration laid out in 50 CFR 229.2 (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), generally termed ``analogy'' in the LOF,
are used to classify fisheries in the absence of reliable data on the
frequency of interactions.
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, fisher self-reports, and
anecdotal 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
management that are expected to lead to decreases in interactions with
a given marine mammal stock (such as a TRP or a fishery management plan
(FMP)). 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 the observer coverage
levels in a particular fishery are important tools in estimating the
level of annual 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 fact sheets 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 TRPs or take reduction teams (TRT).
Are high seas fisheries included on the LOF?
NMFS includes high seas fisheries in Table 3 of the LOF, along with
the number of valid High Seas 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
[[Page 73914]]
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 maintains summary documents, or fishery fact sheets, for each
Category I and II fishery on the LOF. These fishery fact sheets 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 TRPs or TRTs, if any.
These fishery fact sheets are updated after each final LOF and 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/, linked to the ``List of
Fisheries by Year'' table. NMFS is developing similar fishery fact
sheets for each Category III fishery on the LOF. However, due to the
large number of Category III fisheries on the LOF and the lack of
accessible and detailed information on many of these fisheries, the
development of these fishery fact sheets will take significant time to
complete. NMFS anticipates posting the Category III fishery fact sheets
along with the final 2013 LOF, although this timeline may be revised as
this exercise progresses.
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 and receive my authorization certificate and injury/
mortality reporting forms?
NMFS has integrated the MMPA registration process, implemented
through 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 Southwest, Northwest, and Alaska regions, NMFS will issue
vessel or gear owners an authorization certificate and/or injury/
mortality reporting forms via U.S. mail or with their state or Federal
license at the time of renewal.
In the Pacific Islands region, NMFS will issue vessel or gear
owners who hold a Federal permit an authorization certificate and/or
injury/mortality reporting forms via U.S. mail or with their Federal
permit at the time of renewal; for vessel or gear owners holding state
licenses only, NMFS will issue an authorization certificate via U.S.
mail automatically at the beginning of each calendar year. Individuals
participating in Category I or II fisheries who obtain state commercial
marine licenses after the beginning of the calendar year may request an
authorization certificate and/or injury/mortality reporting forms by
contacting the NMFS Pacific Islands Regional Office at (808) 944-2200.
In the Northeast region, NMFS will issue vessel or gear owners an
authorization certificate via U.S. mail automatically at the beginning
of each calendar year; but vessel or gear owners must request or print
injury/mortality reporting forms by contacting the NMFS Northeast
Regional Office at (978) 281-9328 or by visiting the Northeast Regional
Office Web site (http://www.nero.noaa.gov/).
In the Southeast region, NMFS will issue vessel or gear owners
notification of registry and vessel or gear owners may receive their
authorization certificate and/or injury/mortality reporting form by
contacting the Southeast Regional Office at (727) 209-5952 or by
visiting the Southeast Regional Office Web site (http://sero.nmfs.noaa.gov/pr/mm/mmap.htm) and following the instructions for
printing the necessary documents.
The authorization certificate, or a copy, must be on board the
vessel while it is operating in a Category I or II fishery, or for non-
vessel fisheries, in the possession of the person in charge of the
fishing operation (50 CFR 229.4(e)). Although efforts are made to limit
the issuance of authorization certificates to only those vessel or gear
owners that participate in Category I or II fisheries, not all state
and Federal permit systems distinguish between fisheries as classified
by the LOF. Therefore, some vessel or gear owners in Category III
fisheries may receive authorization certificates even though they are
not required for Category III fisheries. Individuals fishing in
Category I and II fisheries for which no state or Federal permit is
required must register with NMFS by contacting their appropriate
Regional Office (see ADDRESSES).
How do I renew my registration under the MMPA?
In Pacific Islands, Southwest, Alaska or Northeast 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. 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).
[[Page 73915]]
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/mm/mmap.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. 50 CFR 229.2 defines an injury as
``a wound or other physical harm,'' and includes examples of signs of
injury. 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 (16 U.S.C. 1387) 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 marine mammal take reduction plan
regulations?
Table 4 in this final rule provides a list of fisheries affected by
TRPs and TRTs. TRP regulations can be found at 50 CFR 229.30 through
229.36. A description of each TRT and copies of each TRP can be found
at: http://www.nmfs.noaa.gov/pr/interactions/trt/.
Sources of Information Reviewed for the Final 2012 LOF
NMFS reviewed the marine mammal incidental injury, serious injury
and mortality information presented in the SARs for all fisheries. 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, reports to the SRGs, conference papers, anecdotal reports,
FMPs, and ESA documents.
The final LOF for 2012 was based on information provided in the
NEPA and ESA documents analyzing authorized high seas fisheries;
stranding data; fishermen self-reports through the MMAP; observer
program reports; anecdotal reports; and 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 2010
(76 FR 34054, June 10, 2011). The SARs are available at: http://www.nmfs.noaa.gov/pr/sars/.
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 2012 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 fact sheets
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.
State and regional abbreviations used in the following text
include: AK (Alaska), BSAI (Bering Sea, Aleutian Islands), CA
(California), DE (Delaware), FL (Florida), GMX (Gulf of Mexico), HI
(Hawaii), MA (Massachusetts), ME (Maine), MHI (Main Hawaiian Islands),
NC (North Carolina), NY (New York), OR (Oregon), RI (Rhode Island), SC
(South Carolina), VA (Virginia), WA (Washington), and WNA (Western
North Atlantic).
Southeastern U.S. Atlantic, Gulf of Mexico Stone Crab Trap/Pot Fishery
The ``Southeastern U.S. Atlantic, Gulf of Mexico stone crab trap/
pot'' fishery operates primarily nearshore in the State of FL. Stone
crab fishing outside of this area is likely very minimal. In 2010, the
State of FL issued 1,282 commercial stone crab licenses and 1,190,285
stone crab trap tags. FL state regulations limit recreational stone
crab trap/pot numbers to five per person (FL Administrative Code
(F.A.C.) Chapter 68B-13). The season for commercial and recreational
stone crab harvest is from October 15 to May 15. Traps are the most
typical gear type used for the commercial and recreational stone crab
fishery. Commercial traps must be designed to conform to the
specifications established under U.S. 50 CFR 654.22, as well as F.A.C.
Chapter 68B-13. Baited traps are frequently set in waters of 65 ft
(19.8 m) depth or less in a double line formation, generally 100-300 ft
(30.5-91.4 m) apart, running parallel to a bottom contour. The margins
of seagrass flats and bottoms with low rocky relief are also favored
areas for trap placement. Buoys are attached to the trap/pot via float
line. In FL, commercial trap/pot buoys are required to be marked with
the letter ``X,'' the trap owner's stone crab endorsement number (in
characters at
[[Page 73916]]
least 2 inches high), and a tag that corresponds to a valid FWC-issued
trap certificate. Recreational trap/pot buoys, except those fished from
a dock, must have a permanently affixed and legible ``R'' at least 2
inches high and the harvester's name and address (Ch. 68B-13.009(3),
F.A.C).
Comments and Responses
NMFS received 19 comment letters on the proposed 2012 LOF (76 FR
37716, June 28, 2011). Comments were received from the Blue Water
Fishermen's Association, Center for Biological Diversity, Florida Fish
and Wildlife Conservation Commission, Florida Keys Commercial
Fishermen's Association, Freezer Longline Coalition, Garden State
Seafood Association, Hawaii Longline Association, Humane Society of the
United States, Marine Mammal Commission, Natural Resources Defense
Council, State of Hawaii, U.S. Fish and Wildlife Service, Western
Pacific Regional Fishery Management Council, and 6 individuals.
Comments on issues outside the scope of the LOF were noted, but are
generally not responded to in this final rule.
General Comments
Comment 1: An individual commenter recommends NMFS inform the U.S.
Department of Defense (DOD) of the LOF, NMFS, and MMPA. The commenter
further wondered whether the Navy is also a contributor of injury or
death of animals listed on the LOF, if the process is complying with
Advisory Council on Historic Preservation Section 106, and, if so,
which Native Hawaiian Organizations are involved.
Response: Certain military readiness activities are subject to
sections 101(a)(5)(A) and (D) of the MMPA, which authorizes the
Secretary of Commerce to allow, upon request, the incidental, but not
intentional taking of marine mammals subject to required notifications
and determinations. However, the Navy is not subject to section 118 of
the MMPA, which applies to commercial fisheries. National Historic
Preservation Act (NHPA) section 106 generally requires federal agencies
to consult the appropriate State Historic Preservation Office (SHPO)
and/or Tribal or Native Hawaiian groups on undertakings, including
projects, activities, and programs that may affect qualifying historic
properties. The LOF only involves classification determinations for
commercial fisheries based upon marine mammal interactions, and is not
a federal undertaking under the NHPA.
Comment 2: The Marine Mammal Commission (Commission) acknowledges
NMFS' efforts for summarizing and providing information about observer
coverage and other characteristics of listed fisheries, and commends
NMFS for its efforts to centralize information used to classify
Category III fisheries and looks forward to seeing this effort come to
fruition. The Commission appreciates that NMFS has considered their
concerns and is exploring ways to fully and effectively convey the
reasons for listing fisheries, which must be based on the best
available information and may or may not include observer-derived data.
Response: NMFS agrees that summarizing the information used as the
basis to classify each fishery on the LOF in one location could be
useful for interested readers. NMFS has posted information on each
Category I and II fishery on the LOF on the NMFS Office of Protected
Resources Web site, where it can be considered at the readers'
discretion, and is pleased the Commission finds the information useful
while reviewing the LOF. NMFS is developing similar fishery fact sheets
for each Category III fishery and anticipates posting those fishery
fact sheets along with the final 2013 LOF. However, due to the large
number of Category III fisheries on the LOF and the lack of accessible
and detailed information on many of these fisheries, this timeline may
be revised as this exercise progresses.
Comment 3: The Center for Biological Diversity (CBD) notes that the
proposed 2012 LOF once again includes aquaculture operations as
Category III fisheries and reiterates comments on past LOFs that
aquaculture facilities are not ``commercial fishing operations''
eligible for the take authorization contained in Section 118 of the
MMPA. The CBD states that these operations consistently compete with
marine mammals for habitat and resources due to their stationary
nature; therefore, aquaculture facilities and activities are more
appropriately subject to the take prohibitions and permitting regimes
contained in Section 101 of the MMPA.
Response: NMFS received similar comments on the 2009 and 2010 LOFs.
Section 118 of the MMPA governs the ``taking of marine mammals
incidental to commercial fishing operations.'' The MMPA does not
provide a definition of a commercial fishing operation; therefore, NMFS
defined ``commercial fishing operation'' in regulations at 50 CFR
229.2. The definition was presented in the proposed and final rules
implementing the regulations for section 118 of the MMPA (60 FR 31666,
June 16, 1995; 60 FR 65086, August 30, 1995). As noted in those
proposed and final rules, and in the responses to comments on the 2009
and 2010 LOFs (73 FR 73032, December 1, 2008, comment/response 5; 74 FR
58859, November 16, 2009, comment/response 11), the definition of a
``commercial fishing operation'' includes aquaculture. The regulations
in 50 CFR 229.2 define a ``commercial fishing operation'' as ``the
catching, taking, or harvesting of fish from the marine environment * *
*. The term includes * * * aquaculture activities.'' Further, ``fishing
or to fish'' is defined as ``any commercial fishing operation.''
Therefore, aquaculture fisheries are considered commercial fisheries
that are managed under section 118 of the MMPA and are therefore
included on the annual LOF.
Comment 4: The CBD urges NMFS not to reclassify fisheries to a less
serious category when information on the fishery and its interactions
with marine mammals is scant. In these cases, the CBD urges NMFS to
instead rely more heavily upon the known impacts of the fishery's gear
and the marine mammals known to inhabit the area being fished, rather
than relying, for example, on the lack of reported interactions in
fisheries with little or no observer coverage. The CBD states that
every Federal FMP by law must include ``a standardized reporting
methodology to assess the amount and type of bycatch,'' and that the
ESA and MMPA make no exceptions to protection on the basis of state
versus Federal fisheries. The CBD asserts that failure to assess marine
mammal bycatch is an unacceptable justification for denying marine
mammals protection via the LOF.
Response: NMFS considers a broad range of information when
proposing or making fishery classification decisions on the LOF, and
does not classify fisheries based solely on the presence or absence of
serious injuries or mortalities obtained through observer programs.
Under regulations pursuant to section 118, NMFS uses observer data,
logbook data, stranding data, fishers' reports, anecdotal reports,
qualitative factors outlined in 50 CFR 229.2 (i.e., 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), information on incidental serious injury or
mortality to marine mammals reported in SARs (50 CFR 229.2; 60 FR
45086, August 30, 1995; 60 FR 67063, December 28, 1995), and input
received during the public comment periods.
[[Page 73917]]
NMFS considers all of the information to determine whether the fishery
can be classified on the LOF based on quantitative information analyzed
through the Tier 1 and 2 analyses; or whether the fishery can be
classified on the LOF based on the qualitative information outlined in
NMFS regulations at 50 CFR 229.2 (and presented above).
Comments on Commercial Fisheries in the Pacific Ocean
Comment 5: The Freezer Longline Coalition (FLC) recommends the
``BSAI Pacific cod longline'' fishery be reclassified as Category III
because the annual serious injury and mortality for all stocks listed
as killed or injured in this fishery is less than 1 percent of PBR for
the most recent five-year period (2004-2008). The FLC states that the
2010 SAR shows that there are no serious injuries or mortalities of
killer whales (AK resident stock) or ribbon seals from 2004-2008, and
the mean annual serious injury and mortality of Steller sea lions
(Western distinct population segment) is 0.488 percent of PBR; however,
the fishery continues to be classified as Category II based on serious
injury and mortality of resident killers whales from 2002-2006. The FLC
asserts that the fishery should not continue to be classified based on
outdated data simply because NMFS has been unable to ``finalize'' data
for 2007 and 2008, which is inconsistent with the MMPA's best available
science mandate, the Information Quality Act, and NMFS' associated
guidelines.
Response: The classification of fisheries for the proposed 2012 LOF
was based on the best available scientific information at the time the
fishery classifications were made. In this case, the most current
available information on serious injury and mortality of marine mammals
was presented in the final 2010 SAR, which included an analysis data
from 2002-2006. More recent data from a new analysis for the 2007-2010
period will be available for use in classifying fisheries on the 2013
LOF. At that time, NMFS will consider the information available from
the new analysis and consider a reclassification for the BSAI Pacific
cod longline fishery, if appropriate.
Comment 6: The FLC asserts that the estimated mortality reported in
the SARs for AK longline fisheries uses incorrect observer coverage
percentages, resulting in significant overestimation of mortality. The
FLC further asserts that the default recovery factors used for multiple
AK marine mammal stocks need to be re-evaluated for populations that
are increasing, have a large population, or whose population status is
known.
Response: NMFS does not calculate observer percentages or recovery
factors in the annual LOF, instead this information is provided in the
SARs after NMFS and the Alaska SRG have evaluated the information
during their annual review. Therefore, NMFS suggests the FLC submit
this comment during the public comment period for the draft 2011 SARs.
Further, NMFS responded to similar comments on the 2009 SARs and
therefore refers the FLC to that Federal Register notice for additional
information (75 FR 12498, March 16, 2010; comment/response 13 and 16).
Comment 7: The Commission concurs that the ``CA thresher shark/
swordfish drift gillnet'' fishery meets the criteria for Category II
and concurs with the designation of the CA/OR/WA stock of humpback
whales as the basis for that classification.
Response: NMFS acknowledges this comment. The ``CA thresher shark/
swordfish drift gillnet'' fishery is classified as Category II in this
final rule.
Comment 8: The Humane Society of the United States (HSUS) supports
the elevation of the ``CA thresher shark/swordfish drift gillnet''
fishery to Category II. The HSUS notes that there is a long-standing
record of interactions between drift gillnet fisheries and protected
species worldwide and feels it is appropriate for NMFS to develop a
better understanding of this driftnet fishery and the extent to which
it interacts with marine mammals through use of observer coverage,
which is more likely for a fishery placed in Category II.
Response: NMFS acknowledges this comment and notes that this
fishery is subject to requirements under the Pacific Offshore Cetacean
Take Reduction Plan and is regulated under the Fishery Management Plan
for U.S. West Coast Fisheries for Highly Migratory Species, which
authorizes NOAA to place observers on fishing vessels in west coast
highly migratory species fisheries (such as drift gillnet), regardless
of the LOF category.
Comment 9: The U.S. Fish and Wildlife Service (USFWS) reiterated a
recommendation made on the 2011 LOF to include southern sea otters on
the list of species/stocks killed or injured in the Category III ``CA
spiny lobster trap'' or the ``CA coonstripe shrimp, rock crab, tanner
crab pot or trap'' fisheries because experiments have shown that sea
otters can enter these traps and drown. The USFWS provided a
publication by Hatfield et al. (2011) to support this recommendation.
Response: NMFS responded to a similar comment on the 2011 LOF (75
FR 68475, November 8, 2010, comment/response 13) and provided detailed
information on an extensive review of marine mammal interactions with
West Coast trap and pot gear in the proposed 2009 LOF (73 FR 33760,
June 13, 2008). In 2008, NMFS Southwest Regional Office (SWRO)
consulted with experts on marine mammals and pot/trap fisheries
including the NMFS Southwest Fisheries Science Center, NMFS Northwest
Fisheries Science Center, NMFS Northwest Regional Office, and CA
Department of Fish and Game (CDFG) to evaluate which fisheries may be
affecting marine mammals. The primary intent of the analysis was to
review interactions between trap/pot gear and humpback whales, but all
marine mammals were addressed in the review. During the 2008 review,
the only information available on southern sea otter interactions with
trap/pot gear were stranding records of from 1987 and 1991 (2008 SAR;
pers. comm. with staff from CDFG). At that time, NMFS determined that
sea otters should be removed from the list of species killed or injured
in the ``CA spiny lobster trap'' and the ``CA coonstripe shrimp, rock
crab, tanner crab pot or trap'' fisheries because the information was
approximately 20 years old and there had been no indications of
interactions since that time. NMFS SWRO continues to consult with NMFS
and CDFG specialists regarding marine mammal interactions with trap/pot
gear. NMFS has not received additional information since 2008 to
suggest that southern sea otters are currently being incidentally
killed or injured in pot and trap gear.
As part of their public comment, the USFWS submitted a paper by
Hatfield et al. (2011), detailing experiments that indicate sea otters
can enter and become entrapped in traps with openings of certain sizes.
However, this paper presented no evidence of such takes occurring
during commercial fishing activities off CA. The possibility of an
interaction is insufficient justification to include southern sea
otters on the list of species incidentally injured or killed in the
``CA spiny lobster trap'' or the ``CA coonstripe shrimp, rock crab,
tanner crab pot or trap'' fisheries. Instead, NMFS needs some
indication that takes are occurring or have occurred in these fisheries
in recent years (e.g., fisher self reports, observer data, stranding
data). 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
[[Page 73918]]
will consider including this species on the LOF at that time.
Comment 10: The Hawaii Longline Association (HLA) believes that the
abundance estimate for the false killer whale (pelagic stock) is not
scientifically sound and, because the survey data used for that
abundance estimate was collected in 2002, that NMFS is using data it
knows to be stale to make LOF determinations for the 2012 LOF (as
defined by NMFS guidelines). The HLA views these errors to be
particularly acute because NMFS completed a new marine mammal survey in
the Hawaiian EEZ in 2010; however, this current, available data are not
the data upon which the proposed 2012 LOF is based. Therefore, the HLA
asserts that if the 2012 LOF is issued as proposed (i.e., not based on
the 2010 data), it would violate the MMPA's ``best available science''
mandate.
Response: NMFS used the best available science in preparing the
2012 LOF. Proposed changes to the 2012 LOF were developed in spring and
summer 2011, and were largely based on the draft and final 2010 SARs,
which were the most recent SARs available. NMFS conducted a new
cetacean assessment survey in the U.S. EEZ around the Hawaiian Islands
(HICEAS II) in August-December 2010, with the goal of updating
abundance estimates for all Hawaiian cetaceans. The survey data are
currently being analyzed, and abundance estimates and PBR calculations
based on the data are not yet available. Preliminary estimates of
abundance based on the visual sightings data will be included in the
draft 2012 SAR, which is expected to be published and available for
public review and comment in spring 2013. The acoustic and other data
collected during the survey will take longer to analyze, and abundance
estimates will likely be revised in future SARs to incorporate the new
analysis. The currently available data and estimates still constitute
the best available information within existing NMFS parameters and
therefore are appropriately included in the final 2010 SARs, draft 2011
SARs, and the 2012 LOF.
Comment 11: The Western Pacific Fishery Management Council
(Council) and the HLA both recommend that the ``HI shallow-set
(swordfish target) longline/set line'' fishery be classified as a
Category III. The Council and the HLA note that this fishery is
classified as Category II based on one serious injury of a bottlenose
dolphin (HI stock) within the HI EEZ. The commenters note that the only
other fishery to have incidental serious injury or mortality of this
stock is the ``HI deep-set (tuna target) longline/set line'' fishery,
and the combined serious injury and mortality rate for these two
fisheries is less than 10 percent of PBR. The Council and HLA further
note that the analysis for fishery classification places all fisheries
interacting with a stock in Category III if the total interaction rate
is equal to or less than 10 percent of the PBR unless a fishery
qualifies for another Category for a different stock; however, no other
marine mammal stock qualifies the HI shallow-set fishery for Category I
or II.
Response: NMFS concurs that, based on the marine mammal
interactions within the U.S. EEZ reported in the final 2010 SAR, the
shallow-set longline fishery would meet the definition of a Category
III fishery. There are no marine mammal stocks within the EEZ that have
mortality and serious injury that exceed 10 percent of PBR across all
fisheries and that individually exceed 1 percent of PBR in the shallow-
set fishery. However, there are documented injuries and mortalities of
numerous species and stocks of marine mammals by the shallow-set
longline fishery on the high seas, which are listed in Table 3 for the
high seas component of the shallow-set longline fishery (``Western
Pacific Pelagic (HI Shallow-set component)''). Because there currently
are no abundance estimates or PBRs available for most of these marine
mammal stocks on the high seas, quantitative comparison of mortality
and serious injury against PBR is currently not possible.
MMPA regulations (50 CFR 229.2) provide that 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
``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. HI-based shallow-set fishing vessels operating within
the U.S. EEZ and on the high seas employ the same vessels, the same
fishing methods and gear, target the same fish stocks, and employ the
same marine mammal mitigation and deterrence measures. A review of NMFS
observer data indicates that approximately 7 percent of shallow-set
trips from 2004-2008 had marine mammal interactions, including
interactions with Bryde's whale, Risso's dolphin, humpback whale,
striped dolphin, bottlenose dolphin, and Kogia sp. whale (pygmy or
dwarf sperm whale). The number and rate of marine mammal interactions
increased each year in that 5-year timeframe. Of the 22 total marine
mammal interactions observed on 325 shallow-set trips from 2004-2008,
19 were taken on the high seas. Seventeen of the total 22 observed
interactions resulted in mortality or serious injury, 16 of which
occurred on the high seas (Forney, 2010; NMFS Pacific Islands Regional
Observer Program, 2004-2008). Although NMFS is currently unable to
quantitatively establish the impact of these interactions on high seas
marine mammal stocks because of the lack of population information,
these interactions do provide qualitative evidence that the shallow-set
fishery continues to have ``occasional'' interactions with marine
mammals and should remain a Category II commercial fishery.
As noted in the preamble of the proposed 2012 LOF and the response
to a 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 is 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). Because the ``Western Pacific Pelagic
(HI Shallow-set component)'' and ``HI shallow-set (swordfish target)
longline/set line'' are two components of the same fishery, both
components are classified as Category II.
The Category II classification is further supported by data in the
draft 2011 SAR, which was not available when the proposed 2012 LOF was
drafted. The draft 2011 SAR reports an observed serious injury to a
false killer whale in the shallow-set fishery within the U.S. EEZ in
2009. Based on one observed non-serious injury in 2008 and one observed
serious injury in 2009, the shallow-set fishery has an average annual
mortality and serious injury rate of 0.2 HI pelagic false killer whales
per year within the EEZ. This represents approximately 8 percent of the
stock's PBR level, which also qualifies it as a Category II fishery.
Comment 12: The HLA disagrees with the addition of the insular
stock of false killer whales to the list of stocks incidentally injured
or killed in the ``HI deep-set (tuna target) longline/set line''
fishery because the inclusion is based
[[Page 73919]]
on NMFS' proration of an isolated non-serious interaction between this
fishery's insular stock and pelagic stock interaction rate, which is
not based on the best available science. The HLA asserts that this
fishery has never been observed to interact with the insular stock and
that the interaction in question occurred in an area where no member of
the insular stock has ever been observed in or near, and that NMFS has
no genetic evidence showing that the deep-set fishery has ever
interacted with a member of the insular stock. The HLA also disagrees
with NMFS' extension of the 140 km insular stock ``range'' uniformly
around the MHI based on a single tagged animal over 100 km to the south
of the MHI.
Response: NMFS determines which species or stocks are included as
incidentally killed or injured in a fishery by annually reviewing the
information presented in the current SARs, among other relevant
sources. The SARs are based on the best available scientific
information and provide the most current and inclusive information on
each stock, including range, abundance, 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, NMFS encourages the commenter to submit this comment
during the public comment period for the draft SAR.
The draft 2011 SAR for false killer whales indicates an average of
0.6 mortalities or serious injuries of HI insular false killer whales
per year incidental to the HI-based deep-set longline fishery. One non-
serious injury to a false killer whale was observed within the overlap
zone between the HI insular and HI pelagic stocks of false killer
whales. In the SAR, all estimated takes, and observed takes for which
an injury severity determination could not be made, were prorated based
on the proportions of observed interactions that resulted in death or
serious injury, or non-serious injury between 2000-2009. Further, takes
of false killer whales of unknown stock origin within the insular/
pelagic stock overlap zone were prorated assuming that the density of
the insular stock declines and the density of the pelagic stock
increases with increasing distance from shore. 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 2011 SAR reports that from 2005-2009, eight
unidentified cetaceans, known to be either false killer whales or
short-finned pilot whales (together termed ``blackfish'') were
seriously injured in the deep-set longline fishery within U.S. EEZ
waters, two of which were taken within the insular stock range. The
draft 2011 SAR prorates blackfish to each species and stock based on
their distance from shore (see McCracken, 2010 for details on the
distance-from-shore model).
For these reasons, NMFS is not changing its proposal to add the HI
insular stock of false killer whales on the list of marine mammal
stocks incidentally killed or injured in the HI deep-set longline
fishery. For a more complete analysis of the methodology for
determining mortality and serious injury of insular and pelagic false
killer whales, the commenter is referred to the draft 2011 SAR.
Comment 13: The CBD recommends NMFS classify ``American Samoa
longline'' fishery as Category I based on analogy to the ``HI deep-set
(tuna target) longline/set line'' fishery, interactions with false
killer whales, and interactions with rough-toothed dolphins, citing
three arguments. First, CBD notes that NMFS has proposed to require
longline hooks in this fishery are set at depths of 100 meters or
deeper to reduce interactions with Pacific green sea turtles (76 FR
32929, June 7, 2011), which will make the gear and methods like the
Category I Hawaii deep-set longline fishery. Second, CBD asserts that
even though abundance estimates are unavailable for the American Samoa
false killer whale stocks, the human-caused mortality falls within the
range of likely PBRs for both of these marine mammal stocks and the
2010 SAR concludes that the false killer whales in American Samoa would
probably be strategic if abundance estimates were available. Lastly,
CBD notes that this fishery also interacts with the American Samoa
stock of rough-toothed dolphins, for which the 2010 SAR indicates the
estimated rate of fisheries-related mortality or serious injury (3.6
dolphins per year) is within the range of likely PBRs (3.4-22).
Response: Abundance estimates for the American Samoa stocks of
false killer whales and rough-toothed dolphins are unknown, and PBRs
cannot be calculated. The final 2010 SARs present a plausible range of
abundance estimates for each stock based on density estimates of the
species in other areas of the Pacific, and calculate a range of likely
PBRs using those ranges of abundance. The SARs further note that
estimated mortality and serious injury of false killer whales exceeds
the range of the stock's likely PBRs, and mortality and serious injury
of rough-toothed dolphin falls within the range of the stock's likely
PBRs. These estimates provide an indication that cetacean bycatch in
the fishery is not insignificant. However, without an actual
calculation of PBR, NMFS cannot accurately evaluate the effect of
mortality and serious injury on the stocks to determine whether the
fishery meets the definition of a Category I fishery. Under NMFS
regulations, a Category I is one that cause frequent mortality or
serious injury of marine mammals, which is defined as ``one that is by
itself responsible for the annual removal of 50 percent or more of any
stock's potential biological removal level'' (50 CFR 229.2). Only in
the absence of reliable information indicating the frequency of
incidental mortality and serious injury of marine mammals does NMFS
consider other factors that may be used to classify the fishery as
either Category II or III, including evaluation of 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 (50 CFR 229.2). Until quantitative information is
available to allow a calculation of PBR, NMFS will retain the American
Samoa longline fishery as Category II, by analogy to other longline
fisheries.
Comment 14: The CBD recommended NMFS classify the ``HI vertical
longline'' and ``HI kaka line'' fisheries as Category I based on
serious injury and mortality of false killer whales (HI insular stock),
which is proposed to be listed as endangered under the ESA (75 FR
70169, November 17, 2010). The CBD notes that the ESA scientific
Biological Review Team (BRT) for this stock found a high level of
current and future risk from interactions with troll, handline,
shortline, and kaka line fisheries (Id. at 70180), and the BRT stated
that although ``each of these fisheries is required by law under the
MMPA to report interactions with marine mammals, the low number of
reports strongly suggests that interactions are occurring and are not
being reported'' (Id. at 70179). Lastly, the CBD asserts that a high
level of anecdotal evidence, including fishermen that have reported
shooting at false killer whales and a high rate of dorsal fin
disfigurements consistent with injuries from unidentified fishing line,
and the fact that the State of HI does not monitor
[[Page 73920]]
bycatch of marine mammals in any of its state fisheries, also suggest
that the fisheries are having a greater impact than is reported.
Therefore, the CBD asserts that the scientific information and opinion
show that fisheries interactions present a high risk of extinction to
the insular false killer whale, compelling NMFS to list these fisheries
as Category I, especially in light of what appears to be deliberate
efforts to obscure fishery mortality in order to prevent further
protection for an endangered marine mammal.
Response: At this time, there is no quantitative information to
support a Category I classification for either of these fisheries. As
stated in the response to comment 13, a Category I fishery is one that
NMFS determines has frequent incidental mortality and serious injury of
marine mammals, defined as one that is, by itself, responsible for the
annual removal of 50 percent or more of any stock's PBR level (50 CFR
229.2). NMFS considers other factors when determining whether a fishery
meets the definition of a Category II or III fishery, including
evaluation of 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 (50 CFR 229.2). Currently, NMFS does not
have reliable information that either of these fisheries causes
frequent incidental mortality and serious injury of marine mammals,
such that would support classification of a Category I fishery, as that
term is defined. Based on the currently available information, NMFS
continues to believe that these two fisheries present a remote
likelihood of interactions with marine mammals. NMFS is retaining these
fisheries on the LOF as Category III fisheries but will consider any
information that supports a reevaluation of the fisheries'
classification in the future.
Comment 15: The CBD comments that the various fisheries that are
known or suspected of interacting with Hawaiian monk seals should be
classified as Category I because, given the critically endangered
status of the monk seal, any interaction is significant. The CBD notes
that fishery interactions are becoming more common (Baker et al.,
2011), yet all Hawaiian fisheries known or suspected of interactions
with monk seals, such as the Hawaii lobster trap and the Hawaii tuna
handline, are listed as Category III. Further, the CBD asserts that,
while a PBR is not calculated for this stock (final 2010 SAR), any
mortality from fisheries would qualify the fishery for Category I if a
PBR was calculated.
Response: The LOF lists the Hawaiian monk seal on the list of
species and stocks incidentally killed or injured in the Category III
``HI lobster trap'' and ``HI Main Hawaiian Islands (MHI) deep sea
bottomfish handline'' fisheries. In the 2009 LOF, NMFS removed the
Hawaiian monk seal from the list of species/stocks killed/injured in
the ``HI tuna handline fishery,'' under which the stock had been listed
since the 1996 LOF, because NMFS has never received a report of
interactions between monk seals and tuna handline gear. The available
information on Hawaiian monk seal interactions with the other two
fisheries is:
(1) ``HI lobster trap'' fishery: There have not been any reported
interactions since the mid-1980s, when one seal died in a trap; and
(2) ``HI Main Hawaiian Islands deep sea bottomfish handline
fishery:'' A Federal observer program of the Northwestern Hawaiian
Islands (NWHI) bottomfish handline fishery was conducted from the
fourth quarter of 2003 through 2005, and no monk seal interactions were
observed. The fishery has since been phased out as required under the
Proclamation establishing the Papahanaumokuakea Marine National
Monument. While fishing in the NWHI has been phased out, in previous
years when commercial bottomfish boats were fishing in this area, NMFS
received one self-reported incident (a hooking in 1994), and bottomfish
hooks were observed in two seals at the French Frigate Shoals (one in
1982 and one in 1993). NMFS also had reports from the mid-1990s of
seals stealing catch, seals being fed bait or non-target species by
fishermen to discourage seals from taking catch, and some seals
becoming hooked and cut free. The final 2010 SAR notes that no
mortality or serious injuries have been attributed to the MHI deep sea
bottomfish handline fishery.
While there have been no observed or reported interactions between
monk seals and the ``HI lobster trap'' and ``HI Main Hawaiian Islands
deep sea bottomfish handline'' fisheries in recent years, NMFS has
retained Hawaiian monk seals as a species or stock incidentally killed
or injured in these fisheries because monk seals in the MHIs are hooked
and entangled but at a rate that has not been reliably assessed (final
2010 SAR). NMFS cannot confirm whether seals have been hooked on
commercial or recreational gear, or a combination of both. However,
NMFS consultations completed under the ESA section 7 found the MHI
federal bottomfish fishery and the MHI federal lobster trap fishery
were not likely to adversely affect Hawaiian monk seals (NMFS 2008a,
2008b). Finally, the PBR level for monk seals is currently
``undetermined,'' and NMFS is unable to make a quantitative evaluation
of incidental mortality and serious injury compared to PBR. Due to the
fact that the PBR level for monk seals is undetermined and the hooking
and entanglement rate with commercial gear cannot be reliably assessed,
NMFS will retain the ``HI lobster trap'' and ``HI Main Hawaiian Islands
deep sea bottomfish handline'' fisheries as Category III fisheries on
the LOF until more information becomes available to determine whether
reclassification is warranted.
Comments on the Hawaii Troll and Charter Vessel Fisheries
NMFS received 10 comment letters addressing the proposed
reclassification of the Hawaii trolling and charter vessel fisheries,
four of which supported the proposal and six of which did not support
the proposal. Generally, the comments focused on the following issues:
(1) Concern regarding the use and quality of anecdotal reports of
marine mammal interactions in the fisheries; (2) NMFS' use of
quantitative versus qualitative information; (3) NMFS' estimation of
commercial fishing effort ``fishing on'' dolphins; (4) the frequency of
marine mammal interactions in the fisheries; (5) the severity of
injuries sustained by marine mammals; (6) the PBR level for Pantropical
spotted dolphins; (7) bait depredation by other dolphin species in
these fisheries; (8) support for better understanding fishery
interactions in HI and prioritization of a fishery observer program to
better inform management; (9) the burden to the State of HI for mailing
marine mammal Authorization Certificates to Category II fishery
participants; and (10) the potential for the fisheries' elevation to
lead to increased illegal fishing. Below, NMFS summarizes each comment
received on the 2012 proposed LOF related to the HI troll and charter
vessel fisheries and issues one response following the collective
comments.
Comment 16: Three individual commenters, the Council, and the State
of HI assert that NMFS should not use anecdotal reports of hookings as
evidence or support for management decisions, given their lack of
verification and details, nor should they be used to extrapolate
mortality and serious injury to the entire fleet. An individual
commenter notes that the use of such anecdotal reports does not
[[Page 73921]]
constitute objective and thorough science, and the Council suggests
that NMFS develop a standard in using anecdotal reports in rulemaking
to require verification and ensure decisions are based on the best
available science. Further, the author of the newspaper article NMFS
considered (Rizutto, 2007) commented that NMFS should not rely on his
newspaper article for purposes of elevating the fisheries, that the
instance described in the article was based on a third-hand account,
and that he reported on this one instance because he believed it to be
a rare event.
Comment 17: Four commenters address NMFS' use of quantitative
versus qualitative data in drawing conclusions regarding the frequency
of fishery interactions with spotted dolphins. The Council states that
NMFS did not provide an upper limit of estimated mortality and serious
injury, so there was not sufficient information to establish that
collective fishery impacts exceeds 10 percent of PBR (Tier 1 analysis).
Three commenters note the lack of quantitative data on the frequency of
marine mammal interactions in the fisheries, and pointed to MMPA
implementing regulations that instruct NMFS to evaluate other factors
to determine the level of interactions when quantitative information is
not available. The NRDC notes that the regulations also allow NMFS to
consider other evidence at its own discretion. These three commenters
concluded that the available qualitative data indicate a strong
likelihood of occasional interactions, and the Commission stated that,
until quantitative data are available on marine mammal takes from
observer or other programs, the fisheries should be Category II.
Comment 18: Six commenters provide information on patterns of
fishing effort in these fisheries. The Council, the State of HI, and
two individual commenters suggest that NMFS overestimated the level of
commercial fishing effort ``fishing on'' dolphins; i.e., where vessels
congregate on and deploy lines in close proximity to dolphins. The
Council and two individual commenters assert that the majority of
participants in these fisheries do not target tunas associated with, or
fish within spotted dolphin pods, and an individual commenter noted
that those who do, fish ``in front of'' not ``on'' dolphins, and that
fishing around dolphins is only known to occur in two locations off the
Big Island and Oahu. The State of HI noted that many commercial vessels
fish part-time, and much of the effort is seasonal when there is a run
of tuna. The State of HI also commented that many of those vessels
observed trolling around dolphins may be non-commercial. The Council
expresses concern that NMFS' account of Dr. Robin Baird's sightings
rate of vessels ``fishing on'' spotted dolphins is skewed to produce a
high result.
Dr. Baird asserts that his estimate of the percentage of spotted
dolphin groups that had fishing vessels present is negatively biased
(i.e., is likely more than the percentage NMFS cites in proposed rule).
He states that beginning in 2008, his research group began avoiding
clusters of fishing vessels in their surveys to reduce the likelihood
of encountering spotted dolphin groups at rates higher than would be
expected given their presence in the area. As such, he states that in
the last three years, he has been more likely to encounter groups that
do not have fishing vessels present. Dr. Baird commented that
observations of troll fishing vessels included up to eight vessels
actively targeting dolphin pods, with multiples lines trailing hooks
being trolled through the dolphins repeatedly. The Natural Resources
Defense Council (NRDC) notes that this often occurred for several
hours, at speeds up to 10 knots. The NRDC states that the degree of
targeted fishing effort alone suggests the likelihood of incidental
mortality or serious injury is not ``remote.''
Comment 19: The Council, the State of HI, the NRDC, and two
individual commenters address the frequency of incidental interactions
with Pantropical spotted dolphins in the HI troll and charter vessel
fisheries. The Council, the State of HI and two individuals suggest
that fishery interactions with Pantropical spotted dolphins are a rare
event, the frequency is lower than NMFS estimated, and these fishery
interactions are therefore not a conservation concern. One individual
commenter cites experience fishing with these methods and never having
hooked a dolphin, that they are not drawn to the lures or bait, and
having only heard of one hooked dolphin that was hooked in the tail and
released alive. The State of HI provides license and trip report data
that indicate infrequent (0.25 percent of trips annually) reporting of
catch lost to dolphin predation, and suggested the frequency at which
dolphins are seriously injured fall below these percentages. The State
of HI also states that NMFS applied assumptions that likely resulted in
an overestimate of projected take levels.
The NRDC and an individual commenter suggest that interactions or
the risk of interactions are likely higher than NMFS estimated, or at
least do not qualify as ``remote.'' Dr. Baird describes his
conversations with four HI fishermen, two of whom reported they had
hooked spotted dolphins, and noted that spotted dolphins feed on flying
fish near the surface during the day, increasing the potential for
interactions with fishers. Finally, the NRDC states that the degree of
targeted fishing effort alone suggests that the likelihood of
incidental mortality and serious injury is not ``remote,'' which is
required for a Category III fishery.
Comment 20: The Council and one individual commenter disagree with
NMFS' determination that dolphins interacting with the troll and
charter fisheries likely suffer serious injuries. One individual
commenter notes that the reported dolphin was hooked in the mouth, was
treated gently and cut loose without suffering the stress of being
brought close to the boat. The Council asserts that NMFS ignored
anecdotal information about dolphins surviving and recovering from
these interactions, and that not all hookings result in the removal of
the animal from the population. The Council also notes that the
dolphins' injuries described in the proposed rule cannot be attributed
to fishing vessels, and scarring shows that animals can survive and
recover from such incidents.
Comment 21: The NRDC, the HSUS, and two individual commenters
address the Pantropical spotted dolphin's PBR level. One individual
commenter states that the PBR for the affected Pantropical spotted
dolphin stock is underestimated. One individual commenter asserts that
the abundance survey, the basis for the abundance estimate, was not
designed to assess the dolphin population being impacted, evidenced by
the low number of spotted dolphin sightings and the high CV. However,
Dr. Baird says that the CV for the abundance estimate (upon which PBR
is based) is the fifth lowest of all 18 species for which abundance was
estimated from the 2002 survey, reflecting low density in Hawaiian
waters. Dr. Baird, the NRDC, and the HSUS state that NMFS' SAR
indicates the stock may be split into multiple island-associated stocks
in the future pursuant to new genetic studies, so PBR, especially for
the population around the Big Island where the largest share of charter
fishing occurs, is likely to be smaller than the current PBR for the
single defined stock.
Comment 22: The Council comments that NMFS ignored the information
in a newspaper article (Rizzuto, 2007) regarding other dolphin species
(rough-toothed and bottlenose) depredating on bait in these fisheries.
The Council claims that NMFS has made selective
[[Page 73922]]
and arbitrary use of anecdotal information.
Comment 23: The HSUS comments that they were pleased to see a
proposal for better understanding fishery interactions in Hawaii where
marine mammal stock structure, abundance, and fishery interactions have
long been ignored or accorded a lower priority than appropriate, and
notes that the reclassification allows for a targeted observer program,
which will provide data to better inform management.
Comment 24: The State of HI is concerned that since NMFS does not
possess a database of commercial fishermen in HI, the proposed
elevation of the ``HI charter vessel'' and ``HI trolling, rod and
reel'' fisheries would place a significant administrative burden on the
State for mailings of the MMAP authorization certificate to the more
than 2,000 state-registered fishers. Further, the State of HI notes
that it continually receives new applications for licenses during the
year; however, NMFS only issues MMAP certificates at the beginning of
the calendar year.
Comment 25: The State of HI states that NMFS must consider the
potential for fishermen who are now licensed in the ``HI charter
vessel'' and ``HI trolling, rod and reel'' fisheries to refuse to renew
their Commercial Marine Licenses because of the requirements associated
with participating in a Category II fishery, and if they continue to
fish, may market their catch illegally. The State of HI asserts that
this would reduce reportings to the State's licensing and reporting
system, which NMFS relies on to manage fisheries.
Comment 26: The Council is concerned that NMFS apparently applies
an arbitrary standard in determining fishery classifications and
requests NMFS standardize any inconsistent analysis and determinations
across regions. The Council observes that the proposed 2012 LOF
includes seven Category III troll fisheries in the Pacific and several
other Category III fisheries in the Atlantic that presumably include
troll fisheries; however, the only proposed elevation to Category II is
for the HI troll fishery. The Council argues that if gear type, fishing
techniques, and anecdotal reports are sufficient to elevate one fishery
to Category II, then all other troll fisheries in the Pacific and
Atlantic, by the method of analogy, should also be analyzed for similar
elevation. Further, the Council argues that where data and anecdotal
reports of interactions (e.g., depredation) are available for other
fisheries, those fisheries should also be evaluated to determine
whether they meet the criteria for Category II.
Response: NMFS proposed to elevate the ``HI trolling, rod and
reel'' and ``HI charter vessel'' fisheries based on a suite of
information, including NMFS reports, Western Pacific Regional Fishery
Management Council reports, input from staff in the Pacific Islands
Regional Office's Sustainable Fisheries Division, reports to the
Pacific SRG, the SARs, consideration of the fishing gear and techniques
of the fishery and the documented risk that they present to marine
mammals, anecdotal reports from researchers, including researcher
observations and researcher's discussions with fishermen, and
information from a newspaper article (Rizzuto, 2007) (see 76 FR at
37720-37721, June 28, 2011). NMFS clarifies that the Agency does not
rely exclusively on anecdotal reports of marine mammal interactions to
support reclassifications of fisheries, but rather considers anecdotal
information when it has been sufficiently corroborated by other sources
of information.
As a result of the proposal to elevate the ``HI trolling, rod and
reel'' and ``HI charter vessel'' fisheries from Category III to
Category II, NMFS received an abundance of information from the public.
This information, which is summarized in the comments 16-26 above,
provides NMFS with new information the Agency had not been aware of or
considered when proposing to elevate these fisheries to Category II. In
support of the proposed elevation, NMFS received evidence that may
further corroborate the anecdotal reports of hookings reported by
fishermen to researchers (comment 19), including direct observations
and a videotape of troll and charter vessel operations in close
proximity to spotted dolphins (information provided after the comment
period had closed). At the same time, NMFS received multiple comments
suggesting that elevation may not be warranted. First, multiple
commenters provided information to suggest NMFS may have overestimated
the distribution and level of commercial fishing effort ``fishing on''
dolphins (comment 16). Second, the State of HI provided license and
trip report data that indicate infrequent reporting of catch lost to
dolphin predation, which suggests the frequency at which dolphins are
seriously injured may fall below the projected take estimates provided
by NMFS in the proposed rule (comment 18). Third, the author of the
newspaper article NMFS considered (Rizutto, 2007) commented that NMFS
should not rely on his newspaper article for purposes of elevating the
fisheries, that the instance described in the article was based on a
third-hand account, and that he reported on this one instance because
he believed it to be a rare event (comment 16).
Based on the information described in comments 16-26 and summarized
in the previous paragraph, it is apparent that certain pieces of the
new information seem to indicate a Category II classification is not
warranted, while other pieces of new information seem to indicate a
Category II classification is warranted. Therefore, NMFS needs
additional time to consider and investigate the information provided by
the public commenters to better understand the nature and level of
interactions between these fisheries and Pantropical spotted dolphins.
For this reason, NMFS is not elevating the ``HI trolling, rod and
reel'' and ``HI charter vessel'' fisheries to Category II or adding
Pantropical spotted dolphins to the list of species or stocks killed or
injuries in these fisheries in this final rule. Instead, over the next
year NMFS will continue to review the information received from the
public, along with the information on which the initial proposed
fishery elevations were based (see 76 FR at37720-37721, June 28, 2011),
and will propose to elevate the ``HI trolling, rod and reel'' and ``HI
charter vessel'' fisheries to Category II on the 2013 LOF, if
warranted.
Comments on Commercial Fisheries in the Atlantic Ocean, Gulf of Mexico
and Caribbean
Comment 27: The Garden State Seafood Association submitted four
questions regarding the spatial boundary NMFS uses to separate
fisheries in the northeast from the mid-Atlantic, including: (1) What
is the Agency's justification for the spatial boundary of 70[deg] west
long. separating the northeast and mid-Atlantic?; (2) What purpose does
the clarification of the boundary serve?; (3) How does the spatial
boundary impact the bycatch analysis and the estimates?; (4) If bycatch
incidents are attributed to a directed fishery, what is the purpose of
the spatial boundary?
Response: NMFS' justification originates from the review of the
northeast Fishing Vessel Trip Report (VTR) data, as stated in the
language for the proposed change. Spatial data from fishing effort
reported on VTR's were used in conjunction with our current state of
knowledge regarding ecosystem, habitat, spatial, and temporal
characteristics associated with marine mammal stock distributions. This
information in aggregate was used to define the Northeast and Mid-
Atlantic regions for the purpose of estimating
[[Page 73923]]
bycatch of marine mammals in trawl gear. The clarification was made to
provide more detail on the spatial boundary and report to the public
that it is consistent with how scientists at the NEFSC define the
fishery. The clarification of the spatial boundary will have no impact
on the bycatch analyses as the NEFSC has been using the reported
spatial boundary since 2006 when the Atlantic Trawl Gear Take Reduction
Team was first convened. Bycatch incidents of marine mammals are not
attributed to a directed fishery. Marine mammal bycatch rates are
estimated by gear type operating within the defined spatial strata. The
Northeast and Mid-Atlantic regions essentially perform as spatial
strata that can be further stratified by temporal and/or environmental
parameters that show strong correlation with bycatch events (Rossman,
2010).
Comment 28: In addition to providing the estimated number of
vessels in a particular fishery in the annual LOF, which NMFS
acknowledges is ``inflated,'' the Garden State Seafood Association asks
why NMFS does not also provide the number of vessels reporting landings
in a particular fishery per year, because it would be informative for
the public to see the difference?
Response: After investigating the use of landings data as an
indicator of active fishery participants, NMFS has determined that
landings databases that include state fisheries do not always record
unique values or permit information that would result in
differentiating one fishery participant from another. This may have a
significant impact on estimating the number of active vessels or permit
holders, though it is not clear whether or not these numbers would
represent inflations or deflations of actual effort. While the numbers
provided in Table 2 may be inflated compared to actual effort, they do
represent potential effort. NMFS feels this use is appropriate for the
purposes of the List of Fisheries given that this information is used
solely for descriptive purposes and not used in determining current or
future management of fisheries, observer coverage designations, or
bycatch rates.
Comment 29: The Commission recommends that NMFS work on its own and
in collaboration with states to develop new, consistent methods for
estimating fishing effort for several Southeast Atlantic, Mid-Atlantic,
and New England fisheries because fisheries managers should have clear
measures of effort for the fisheries they manage. The Commission
understands, based on NMFS' responses to previous recommendations on
this issue, that the newly proposed numbers of estimated vessels/
participants in these fisheries are intended to reflect potential
effort (given that not all permitted fishermen fish), and that ``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'' (75 FR 68478,
June 28, 2011). However, although NMFS has tried to reassure the
Commission that these great fluctuations in vessel/person numbers have
no management or observer implications, the Commission remains
concerned about the uncertainty conveyed by these numbers.
Response: As stated in the Final 2011 LOF, Table 2 represents a
description of each fishery including the estimated number of persons/
vessels active in the fishery. Currently, a clear measure of effort for
all state fisheries has not been determined due to the way many state
permits allow for the use of multiple gear types. Therefore, NMFS has
determined that this portion of the table 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 LOF,
NMFS recognizes there may be disparity between permit holders listed
and actual fishery effort; however, the numbers provided in the LOF are
solely used for descriptive purposes and will not be used in
determining future management of fisheries, observer coverage
designations, or bycatch rates. Further, NMFS has communicated with the
states regarding the need for consistent fishing effort data collection
methods across states to better assess fisheries' effects on marine
mammal stocks that have interstate distributions. NMFS will continue to
communicate this need through TRT processes, LOF yearly inquiries, and
the MMAP's integrated registration process.
Comment 30: The Commission concurs with NMFS' proposal to add
Risso's dolphin (WNA stock) to the list of species or stocks
incidentally killed or seriously injured in the Category II ``Mid-
Atlantic bottom trawl'' fishery based on 15 Risso's dolphins observed
killed in this fishery in 2010. The Commission states that this level
of take is noteworthy, because although fishery-related mortality for
this stock between 2004 and 2008 averaged 20 deaths or serious injuries
in all fisheries per year, no deaths in this specific fishery were
reported during that 5-year period. Therefore, the Commission also
recommends NMFS further investigate any factors that may account for
the notable recent increase in takes of Risso's dolphins in this
fishery.
Response: NMFS agrees with the Commission's comment. There could be
several factors related to the increase in observed bycatch of Risso's
dolphins in the Mid-Atlantic region bottom trawl fishery. It is unclear
whether an increase in observer coverage may have contributed to number
of takes observed in 2010. The NEFSC intends to evaluate the Risso's
dolphin bycatch events from 2010 and will reports its findings in the
2012 SAR.
Comment 31: The CBD applauds NMFS' proposal to add Risso's dolphin
(WNA stock) to the list of species or stocks incidentally killed or
injured in the Category II ``Mid-Atlantic bottom trawl'' fishery
despite the 2010 SAR's failure to include any mortality after 2008 to
Risso's dolphins; however, the CBD asserts that this fishery should be
classified as Category I. The CBD notes that the fifteen dolphins
killed in 2010 were those observed and the actual mortality should be
estimated at several times that based on levels of observer coverage
ranging from 0 to 13.3 percent. Therefore, CBD asserts that it is very
likely that this multiplier causes mortality in this fishery to
represent more than 50 percent of the stock's PBR of 124 (i.e., if
observer coverage were 10 percent, observed mortality should be
multiplied by ten and actual mortality estimated at 150 dolphins,
exceeding the PBR).
Response: For the 2012 LOF, a reclassification of the ``Mid-
Atlantic bottom trawl'' fishery to a Category I is not warranted. NMFS
analyzes observer data and applies observed takes against calculated
PBR levels during the process of updating and publishing the annual
SARs. NMFS then classifies fisheries on the LOF based on the most
recent SARs (including observer documented interactions, stranding
data, and other data reported in the SARs). The current timing of the
LOF publication and availability of both fishery dependent and
independent data (both needed to estimate total mortality) to
scientists are not in sync making it difficult to fully evaluate total
bycatch mortality of a given stock for annual updates to the LOF. Using
the count of takes seen by fisheries observers is an approach that is
historically consistent with documenting relative levels of
interactions with commercial fisheries for the LOF. Total bycatch
mortality for Risso's dolphins due to commercial fishery interactions
is scheduled to be evaluated and reported in the 2012 SAR. NMFS will
revisit the classification of the ``Mid-Atlantic bottom trawl'' fishery
once the 2012 SAR is published.
[[Page 73924]]
Additionally, percent observer coverage is not an appropriate
metric to use as a multiplier for evaluating the risk a particular
fishery poses to a marine mammal stock. It is also not appropriate to
arbitrarily select 10 percent coverage from values ranging from 0 to
13.3 percent. Observer coverage has been increasing in small increments
in specific target fisheries within the ``Mid-Atlantic bottom trawl''
fishery in recent years. What is presently known is that all the
reports of observed bycatch of Risso's dolphins in 2010 originated from
the Mid-Atlantic region where observer coverage has averaged only three
percent during the last 5 years (2005-2009; draft 2011 SAR).
Comment 32: The USFWS provides NMFS with a report and photos from
the Puerto Rico Department of Natural and Environmental Resources
briefly describing the capture of a manatee by seine gear in July 2009.
Response: NMFS thanks USFWS for the report regarding the manatee
take. Based on Puerto Rico (PR) Fishing Regulations 6768 of February
11, 2004 Article 15, use of beach seines in Puerto Rican waters was
prohibited at the time of the take. Because this take was illegal and
the specifics of are unknown (e.g., gear design, soak time, location
specifics, etc.), NMFS is not including manatees on the list of species
or stocks killed or injured by the Caribbean haul/beach seine fishery
on the LOF, and the fishery will remain classified as Category III.
However, NMFS recommends that the USFWS add this take to the SAR for
the Antillean manatee. Furthermore, the PR Fishing Regulations 7949 of
November 29, 2010, now allows the use of beach seines. NMFS will work
with USFWS to ensure any future takes that occur in this fishery are
considered in the future LOFs and SAR.
Comment 33: The Commission concurs with NMFS' proposal to list
bottlenose dolphins (Northern NC estuarine system stock) as a stock
subject to incidental killing or serious injury in the ``VA pound net''
fishery. The Commission further recommends that NMFS work with the
State of VA to develop a formal, scientifically sound system for
observing or otherwise monitoring marine mammal interactions in this
fishery.
Response: NMFS agrees that developing and implementing a formal
observer program for the VA pound net fishery is important, and NMFS is
exploring mechanisms to accomplish this with the State of VA.
Meanwhile, NMFS monitors marine mammal interactions with this fishery
in two ways: (1) Monitoring through the NMFS Northeast Fishery Science
Center and (2) evaluating stranding data collected by the Stranding
Network since the late 1990s.
Comment 34: The Commission concurs with the addition of bottlenose
dolphins (Gulf of Mexico bay, sound, and estuarine stock) to the list
of species or stocks incidentally killed or injured by the ``Atlantic
Ocean, Gulf of Mexico, Caribbean commercial passenger fishing vessel''
fishery and recommends NMFS elevate this fishery to Category II based
on evidence of interactions from 38 dolphins between 2002-2009 in gear
consistent with recreational hook and line gear. The Commission
believes that even without a quantitative analysis of average annual
mortality and serious injury or comparisons with PBR levels, NMFS has
sufficient evidence to conclude that the fishery results in at least
occasional takes of bottlenose dolphins and warrants a Category II
listing.
Response: At this time, there are not sufficient data to elevate
this fishery. Hook and line fishing gear is used by both individual
recreational anglers and commercial passenger fishing vessels; thus, it
is difficult to discern how many animals are taken incidental to the
Atlantic Ocean, Gulf of Mexico, Caribbean commercial passenger fishing
vessel fishery and how many animals are taken by a similar recreational
fishery. NMFS will continue analyzing all stranding information for
future LOFs to determine appropriate classification for hook and line
fishery interactions.
Comment 35: The Commission reiterated past concerns about the lack
of information on many species and stocks of marine mammals in the Gulf
of Mexico and recommends that NMFS work with the Commission to develop
an effective long-term strategy for determining marine mammal stock
structure and abundance, potential biological removal levels, and
fisheries mortality and serious injury rates in the Gulf of Mexico. The
Commission notes that in responding to these past recommendations, NMFS
has consistently stated that collection of information about fishery
interactions is a high priority and will occur if resources become
available, also emphasizing the value of information gathered via
fishermen self-reports and stranding networks. In its response to the
Commission's letter on the proposed 2011 LOF, NMFS noted how, as a
result of the BP/Deepwater Horizon MC252 oil spill response and
restoration efforts, additional surveys and mark-recapture studies were
underway for some bay, sound, and estuarine stocks, and that this work
would provide updated abundance estimates and potential biological
removal levels for some stocks. The Commission appreciates NMFS'
expressed intention to expand its efforts and investments in these
areas; however, the Commission also believes that these efforts and
investments would benefit from a more comprehensive, aggressive, and
innovative strategy.
Response: NMFS agrees that determining marine mammal stock
structure and abundance, potential biological removal levels, and
fisheries mortality and serious injury rates in the Gulf of Mexico are
priorities. NMFS Southeast Fisheries Science Center (SEFSC) conducts
all marine mammal stock assessments for the Southeast, which are
provided annually in SARs and include information on stock structure
and abundance, potential biological removal levels, and fisheries
mortality and serious injury rates. While NMFS uses this and other
information to classify fisheries on the LOF, NMFS does not determine
this information on the annual LOF. Therefore, NMFS recommends the
Commission continue to provide comments regarding enhanced stock
assessments during the public comment period for the annual SARs.
Comment 36: The Blue Water Fishermen's Association (BWFA)
recommends NMFS standardize methods for analyzing data and observer
coverage in the Atlantic pelagic longline fishery. BWFA states that the
Atlantic and Gulf of Mexico SARs maintain the use of data that result
in a gross distortion of the impacts of the shrinking longline fleet,
including estimates of total annual serious injury and mortality
extrapolated from an imprecise ``pooling'' method, the problems with
which are compounded by attempts to assess serious injury by studying
observer comments and applying a percentage to all extrapolated
estimates. Further, BWFA asserts that NMFS continues to use disparate
methods and different values to calculate percentages of observer
coverage for the pelagic longline fishery versus other fisheries, which
presents a skewed picture of the true rate of observer coverage of
fishing effort.
Response: NMFS responded to a similar comment on the 2006 LOF (71
FR 48802, August 22, 2006, comment/response 18). NMFS' SEFSC develops
fishery observer programs and methods for analyzing related data, and
reports this information in the annual SARs. While NMFS uses this and
other information to classify fisheries on the
[[Page 73925]]
LOF, NMFS does not determine this information on the annual LOF.
Therefore, NMFS recommends the BWFA provide comments regarding these
methods during the public comment period for the annual SARs.
Comment 37: The BWFA hopes that NMFS will provide financial support
through the establishment of specific grants to help continue research
efforts for practical solutions to the problem of marine mammal
depredation on hooked catches. The BWFA notes that with the current
requirements to use corrodible circle hooks and to carry and use safe
handling and release tools and techniques, along with BWFA's support
for research efforts of the Consortium for Wildlife Bycatch Reduction
in helping to expand the understanding of the nature of pilot whale
interactions, this fishery is already leading the way toward
alleviating its interactions with protected species.
Response: NMFS thanks BWFA for their support of research efforts to
reduce marine mammal bycatch. While the LOF does not include any
funding mechanisms to support research efforts, NMFS provides funding
for such research via other sources. For example, NMFS provides funding
through NC Sea Grant for cooperative research between academics and
fishermen to better understand pilot whale interactions with the
pelagic longline fishery as described in the Pelagic Longline Take
Reduction Plan.
Comment 38: The BWFA reiterated past recommendations for NMFS to
subdivide the Atlantic Ocean, Caribbean and Gulf of Mexico pelagic
longline fisheries for swordfish, tuna and sharks into three regional
fisheries, the Atlantic (north), Caribbean (south), and Gulf of Mexico,
citing four arguments. First, BWFA states that subdividing the fishery
would more accurately reflect the geographical differences in target
species, scientific data on the stocks of marine mammals listed as
interacting with the U.S. Atlantic pelagic longline gear, and would
take into account NMFS's regulations that have permanently closed
specific areas of the southeast Atlantic coast. Second, BWFA notes that
the catch and effort information for U.S. pelagic longline gear is
recorded in distinct geographical regions and NMFS takes effort by area
into account when calculating estimates of interactions; therefore,
separating these fisheries by fishing region would facilitate
establishing a standardized process for monitoring effort, estimating
serious injury and incidental mortality rates, and evaluating the
effectiveness of reduction methods. Third, BWFA disagrees with past
statements from NMFS that nearly all of the fishery participants move
across the proposed boundaries, noting that the recent available effort
data shows a very high percentage of the Gulf of Mexico vessels fish
nowhere else, most of the vessels that fish north or south of the
Georgia/Florida border (within the EEZ) do not travel north or south of
their region, and a small number (<12) of Atlantic distant-water
vessels customarily travel north and south in international waters
beyond the U.S. EEZ. Lastly, BWFA asserts that when compared to NMFS's
division of various Pacific and Alaska fisheries, including the AK
gillnet fisheries, the pelagic longline fisheries in the Atlantic and
the Gulf of Mexico are being unjustly and incorrectly grouped into one
single fishery.
Response: NMFS responded to similar comments in the 2001, 2003, and
2006 LOFs (66 FR 42780, August 15, 2001, comment/response 16; 68 FR
41725, July 15, 2003, comment/response 29; 71 FR 48802, August 22,
2006, comment/response 16). NMFS designates fishery descriptions on the
LOF so as to be consistent with the current management structure for
the fishery under the Atlantic Highly Migratory Species (HMS) FMP. The
pelagic longline fishery in the Atlantic is managed by NMFS as one
fishery under the Atlantic HMSFMP encompassing all longline fishing
effort targeting highly migratory species that may occur throughout the
Atlantic Ocean, Caribbean, and Gulf of Mexico. The development of
management measures to reduce serious injuries and mortalities of
marine mammals in the longline fishery has focused primarily on those
areas where interactions pose particular risk to marine mammals.
However, as long as interactions continue to occur throughout the
fishery, NMFS will maintain the current fishery designation on the LOF.
Comment 39: The Florida Fish and Wildlife Conservation Commission
(FWC) agrees that the proposed LOF 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. However, the FWC
recommends that, should any changes be made to the proposed LOF before
it is finalized, the decision by NMFS not to provide a consistency
determination for this activity should be revisited. Further, the FWC
would appreciate consultation prior to NMFS making a decision not to
provide a consistency determination for future LOFs.
Response: In the future NMFS will consult with the State of FL when
determining consistency determinations under CZMA for any LOF actions
that may impact fisheries managed by the State.
Comment 40: The HSUS is supportive of the inclusion of bottlenose
dolphins in the list of species or stocks that are killed or injured
with a number of Atlantic gillnet, trawl and trap/pot fisheries
utilizing gear types known to interact with bottlenose dolphins, whose
evolving changes in stock structure may result in impacts from these
fisheries occurring at levels that are greater than previously thought.
Response: NMFS acknowledges this comment. The proposed additions of
bottlenose dolphins to the list of species or stocks that are killed or
injured to a number of Atlantic gillnet, trawl and trap/pot fisheries
are finalized in this final rule.
Comment 41: The FWC identifies some mischaracterizations in the
description of the ``Southeastern U.S. Atlantic, Gulf of Mexico stone
crab trap/pot fishery,'' including: (1) The proposed rule is
essentially correct that traps are the only gear used in the commercial
portion of this fishery, but stone crab claws are also lawfully
harvested by hand recreationally; (2) Trap specifications for stone
crab traps may be found in FWC rule, Chapter 68B-13, FL Administrative
Code (F.A.C), not FL statutes; (3) In addition to the requirement for
buoys attached to commercial traps to be marked with an ``X,'' the trap
owner's stone crab endorsement number must be marked in characters at
least 2 inches high on each buoy and harvester's must attach a tag that
corresponds to a valid FWC-issued trap certificate; and (4) Ch. 68B-
13.009(3), F.A.C. includes trap marking requirements for recreational
harvest, stating the buoy attached to each trap, except those fished
from a dock, shall have a permanently affixed and legible ``R'' at
least 2 inches high, and the harvester's name and address.
Response: NMFS thanks the FWC for providing this information. Based
on information provided by FWC, NMFS has clarified the language
characterizing the ``Southeastern U.S. Atlantic, Gulf of Mexico stone
crab trap/pot'' in this final LOF.
Comment 42: The Florida Keys Commercial Fishermen's Association
(FKCFA) requests NMFS continue to classify the ``South Atlantic, Gulf
of Mexico stone crab trap/pot'' fishery as Category III based on the
real differences between this fishery and the ``Atlantic blue crab
trap/pot'' fishery, questionable data, a substantial law enforcement
presence in the areas fished, and the extremely low number of
interactions in the past decade. First, the FKCFA notes
[[Page 73926]]
that the stone crab trap/pot fishery differs significantly from the
blue crab trap/pot fishery in the methods the gear is fished, the
location the gear is deployed, and how the gear may interact with
marine mammals. Second, the FKCFA requests additional details about the
stranding data used to propose the classification change. Third, the
FKCFA notes that nearly 50 percent of stone crab trap/pot fishing takes
place in the waters of the FL Keys and Monroe County where there have
been no recorded deaths to dolphins associated with the stone crab
trap/pot fishery, and where there is a tremendous presence from law
enforcement, marine scientists, and charter/for-hire and recreational
boaters who are likely to observe and report interactions.
Response: From 2002-2010 stranding data, NMFS confirmed that three
bottlenose dolphin serious injuries and mortalities were a result of
interactions with the stone crab fishery. The NMFS Southeast Regional
Office gear analysis team analyzed the gear recovered on the stranded
dolphins and confirmed the gear was from the stone crab fishery. Seven
additional bottlenose dolphin serious injuries or mortalities were
confirmed to result from interactions with trap/pot gear from a
southeast trap/pot fishery. Although specific fishery attribution was
not possible for the gear found on these seven dolphins, NMFS conducted
a spatial and temporal analysis of the fishery and interactions and
determined it is likely these dolphins were also entangled in stone
crab gear. The three confirmed stone crab takes and seven additional
possible takes by stone crab gear since 2002 provide reasonable
evidence that the stone crab fishery by itself is responsible for the
annual removal of between 1 and 50 percent of any stock's PBR and
should be classified as a Category II fishery. Two of the three
confirmed takes incidental to the stone crab fishery occurred in
Biscayne Bay, Florida, within the range of the Biscayne Bay bottlenose
dolphin stock, representing at least 4.4 percent of the Biscayne Bay
bottlenose dolphin stock's total. NMFS classifies each fishery on the
LOF based on the serious injury or mortality level in the entire
fishery; therefore, regardless of the three serious injuries to
dolphins from trap/pot gear reported in the FL Keys and Monroe County
waters between 2002-2010 (gear was not analyzed by gear analysis team,
but based on spatial temporal analysis stone crab gear is a possibility
for all three cases), the stranding data from Biscayne Bay and by
analogy to the ``Atlantic blue crab trap/pot'' fishery indicate a
Category II classification of the fishery is warranted. Based on this
information, NMFS has classified this fishery as Category II in this
final rule.
Comment 43: The HSUS and the CBD support the elevation of the
``Southeastern U.S. Atlantic, Gulf of Mexico stone crab trap/pot''
fishery to a Category II fishery. However, the CBD asserts that given
the small size and complex stock structure of Gulf of Mexico bottlenose
dolphin stocks, the stone crab fishery should be categorized as a
Category I fishery. The HSUS is also concerned that the growing
understanding of the existence of resident populations of bottlenose
dolphins in individual bays, sounds, and estuaries underscores the need
to better inform management of fishery interactions with dolphins. Both
the CBD and HSUS recommend that observer coverage is necessary to
better monitor fisheries interaction effects on these small, distinct
dolphin stocks.
Response: The stranding data analyses described in the proposed
2012 LOF indicates that the ``Southeastern U.S. Atlantic, Gulf of
Mexico stone crab trap/pot'' fishery is not responsible for a PBR
removal level of greater than 50 percent for any stock. The removal
calculation of the two takes by stone crab gear was estimated to be at
least 4.4 percent of the Biscayne Bay bottlenose dolphin stock's total.
Therefore, based on the best available information and according to the
definition of a Category I fishery (``annual mortality and serious
injury of a stock in a given fishery is greater than or equal to 50
percent of the PBR level''), a Category I classification for the
``Southeastern U.S. Atlantic, Gulf of Mexico stone crab trap/pot'' is
not warranted. The fishery is classified as Category II in this final
rule. NMFS will continue to monitor interactions with this fishery each
year to determine if reclassification is warranted. Furthermore, NMFS
agrees that a greater understanding of the operations of fishery
interactions with dolphins is important to inform management. Observer
coverage for fisheries in which historical data, anecdotal accounts, or
stranding data indicate a high probability for serious injury or lethal
interactions to marine mammal populations are a priority if funding
becomes available. For example, in 2011 NMFS was able to support
observer coverage for the Gulf of Mexico Menhaden fishery in order to
help better understand the nature and scope of marine mammal
interactions with this fishery.
Comment 44: The Commission concurs with NMFS' proposal to elevate
the ``Southeastern Atlantic, Gulf of Mexico stone crab trap/pot''
fishery to Category II because it utilizes gear and techniques common
with other fisheries that are known to entangle bottlenose dolphins.
The Commission recognizes that while quantitative information on
mortality and serious injury rates and PBR levels for 5 of the 7 stocks
confirmed or plausibly seriously injured by this fishery are not
available, the many similarities with the Category II ``Atlantic blue
crab trap/pot'' fishery and information on dolphin stranding events
warrant a Category II classification.
Response: NMFS acknowledges this comment. The ``Southeastern
Atlantic, Gulf of Mexico stone crab trap/pot'' fishery is classified as
Category II in this final rule.
Comments on Commercial Fisheries on the High Seas
Comment 45: The HLA disagrees with NMFS' proposal to add a number
of ``unknown'' stocks to the list of species or stocks injured or
killed in the ``HI deep-set (tuna target)'' and ``HI shallow-set
(swordfish target)'' longline/set line fisheries, despite NMFS'
acknowledging that the ``proposed addition of these unknown stocks is
not due to additional observed takes[hellip]'' (76 FR 37716, June 28,
2011). The HLA asserts that the inclusion of species or stocks for
which there has never been an observed interaction is arbitrary and
capricious and violates the plain language of the MMPA, which states
that NMFS include in the LOF ``a statement describing the marine mammal
stocks interacting with'' a given fishery (MMPA section 118(c)). The
HLA states that there is no room in this language for the inclusion of
``unknown'' marine mammal species or stocks that NMFS speculates may,
but have not been observed to, interact with the fishery.
Response: The proposed additions of unknown stocks are for species
that have been observed to have been taken by the HI-based deep-set and
shallow-set longline fisheries on the high seas, but for which the
stock identity could not be determined. For this fishery, the unknown
stocks include stocks for Blainville's beaked whale, bottlenose
dolphin, Pantropical spotted dolphin, Risso's dolphin, short-finned
pilot whale, striped dolphin, Bryde's whale, and Kogia spp. whale.
(Please refer to the proposed rule at 76 FR 37716, June 28, 2011, for
more information.) NMFS' SARs for HI pelagic cetacean stocks note that
the stocks' ranges extend into the high seas, but the full offshore
ranges are unknown. For those animals taken by the longline fisheries
on the high seas, it is unknown in most cases
[[Page 73927]]
whether the animals belong to the HI pelagic stocks, or whether the
animals are from stocks beyond the (unknown) range of the HI pelagic
stocks. This is particularly true for takes that occur far outside the
U.S. EEZ. At this point, NMFS cannot assume that all takes are from HI
pelagic stocks. Therefore, NMFS' inclusion of ``unknown'' stocks that
are known to interact with the longline fisheries on the high seas
merely acknowledges the uncertainty in stock identification.
Comment 46: The Commission concurs with NMFS' proposal to add
several marine mammal stocks, absent information on stock identity and
fisheries interactions, to the list of those subject to incidental
killing or serious injury in the Category I ``Western Pacific pelagic
fishery, I deep-set component'' and the Category II ``Western Pacific
pelagic fishery, HI shallow-set component'' because such additions
better reflect the state of information and need for caution in
managing interactions between marine mammals and these high seas
fisheries. Further, the Commission notes that these additions point to
the need to work with industry and increase investment and initiatives
to gather more information about high seas marine mammal stocks,
including their boundaries and interactions with fisheries. Therefore,
the Commission recommends that NMFS work with its international and
industry partners to compile and analyze information about marine
mammals on the high seas and their interactions with fisheries, so that
the list of species incidentally killed or seriously injured in high
seas fisheries can be refined in the near future.
Response: NMFS agrees that the addition of these ``unknown'' stocks
reflects the lack of information on stock structure and stock identity
for marine mammals on the high seas that interact with the U.S.
longline fisheries. NMFS has and will continue to work with
international and industry partners to gather information on marine
mammal stocks and high seas fishery interactions to better understand
the stocks and U.S. fisheries' impacts on them.
Comment 47: The Council argues that while additions of ``unknown
stocks'' are made for the high seas ``Western Pacific pelagic''
fisheries, additions of ``unknown stocks'' are not made for other high
seas fisheries, including the high seas ``Atlantic highly migratory
species'' fishery that has ten different stocks of marine mammals known
to be incidentally injured or killed.
Response: There is not significant evidence that ``unknown stocks''
are currently incidentally killed or injured in the ``Atlantic highly
migratory species longline'' fishery; therefore, ``unknown'' stocks are
not listed under this fishery in Table 3. For detailed information on
why NMFS includes ``unknown'' stocks in on the list of species or
stocks killed or injured in the high seas ``Pacific highly migratory
species longline'' fisheries (HI deep-set and HI shallow-set), please
see the response to comment 45 above.
For the majority of high seas fisheries, NMFS does not have data to
create a list of which marine mammal species or stocks are killed or
injured on the high seas. For fisheries that occur only on the high
seas and are not extensions of fisheries operating in U.S. waters, the
marine mammals species killed or injured in those fisheries are listed
as ``undetermined'' in Table 3. For high seas fisheries that are
extensions of a fishery operating in U.S. waters, but for which there
are no data on takes on the high seas, NMFS includes an identical list
of marine mammal species as are listed as killed or injured in the
portion of the fishery operating in U.S. waters (minus exclusively
coastal stocks). These fisheries are identified in Table 3 by a ``-''
after their names. For high seas fisheries that are extensions of a
fishery operating in U.S. waters for which NMFS does have observed
mortalities or injuries on the high seas, the species or stocked
observed as killed or injured on the high seas are listed. These
fisheries are identified in Table 3 by a ``+'' after their names.
Summary of Changes From the Proposed Rule
In this final rule, NMFS is not elevating the ``HI trolling, rod
and reel'' or the ``HI charter vessel'' fisheries to Category II as
proposed, instead these fisheries are retained as Category III. For
additional information, see comments 16-26, and the associated comment
response, under ``Comments on the Hawaii Troll and Charter Vessel
Fisheries'' above.
In this final rule, NMFS is not adding Pantropical spotted dolphins
(HI stock) to the list of species or stocks incidentally killed or
injured in the ``HI trolling, rod and reel'' or ``HI charter vessel''
fisheries. For additional information, see comments 16-26, and the
associated comment response, under ``Comments on the Hawaii Troll and
Charter Vessel Fisheries'' above.
In this final rule, NMFS updates the fishery description for the
``Southeastern U.S. Atlantic, Gulf of Mexico stone crab trap/pot''
fishery to clarify the State of Florida's regulations for this fishery,
based on comments received from the FL Fish and Wildlife Commission
(see comment/response 41). The final fishery description is provided
above under the section ``Fishery Descriptions.''
NMFS corrects a typographical error in the proposed rule, which
stated the ``CA pelagic longline'' fishery occurs within the EEZ, when
in fact this fishery has always occurred on the high seas, seaward of
the EEZ. The ``CA pelagic longline'' fishery targets highly migratory
species (HMS) and the use of longline gear to target HMS within the EEZ
off of CA is prohibited by NOAA regulations under the Magnuson-Stevens
Fishery Conservation and Management Act, as well as by State of CA.
Summary of Changes to the LOF for 2012
The following summarizes changes to the LOF for 2012 in fishery
classification, fisheries listed in the LOF, the estimated number of
vessels/participants in a particular fishery, and the species or stocks
that are incidentally killed or injured in a particular fishery. The
classifications and definitions of U.S. commercial fisheries for 2012
are identical to those provided in the LOF for 2011 with the changes
discussed below.
Commercial Fisheries in the Pacific Ocean
Fishery Classification
The ``CA thresher shark/swordfish drift gillnet'' fishery is
elevated from Category III to Category II.
Fishery Name and Organizational Changes and Clarifications
NMFS corrects a typographical error that appeared in the proposed
2012 LOF, which stated the ``CA pelagic longline'' fishery occurs
within the EEZ, when in fact this fishery has always occurred on the
high seas, seaward of the EEZ. The ``CA pelagic longline'' fishery
targets highly migratory species (HMS) and the use of longline gear to
target HMS within the EEZ off of CA is prohibited by NOAA regulations
under the Magnuson-Stevens Fishery Conservation and Management Act, as
well as by State of CA. This fishery is the same as the ``Pacific
Highly Migratory Species'' longline fishery listed in Table 3. The
error in the proposed 2012 LOF occurred when NMFS provided a correction
to the 2011 LOF to ensure that this one fishery, although listed
separately on Table 1 and Table 3 (the reasons for which are explained
in the preamble under ``Are High Seas Fisheries Included on the
LOF?''), was classified as Category III on
[[Page 73928]]
both tables and that marine mammal species injured or killed is the
same on both tables.
Number of Vessels/Persons
The estimated numbers of persons/vessels participating in several
HI fisheries are updated based on the most recent numbers of federal
permits or state licenses for each fishery, as outlined below.
Category I: ``HI deep-set (tuna target) longline/set line'' from
127 to 124.
Category II: ``American Samoa longline'' from 60 to 26; ``HI
shortline'' from 21 to 13; and ``HI trolling, rod and reel'' from 2,210
to 2,191.
Category III: ``HI inshore gillnet'' from 39 to 44; ``HI crab net''
from 8 to 5; ``HI Kona crab loop net'' from 41 to 46; ``HI opelu/akule
net'' from 20 to 16; ``HI hukilau net'' from 36 to 27; ``HI lobster
tangle net'' from 2 to 1; ``HI inshore purse seine'' from 8 to 5; ``HI
throw net, cast net'' from 28 to 22; ``HI crab trap'' from 9 to 5; ``HI
fish trap'' from 11 to 13; ``HI lobster trap'' from 3 to 1; ``HI shrimp
trap'' from 1 to 2; ``HI kaka line'' 28 to 24; ``HI vertical longline''
from 18 to 10; ``HI aku boat, pole, and line'' from 6 to 2; ``HI
inshore handline'' from 460 to 416; ``HI tuna handline'' from 531 to
445; ``HI handpick'' from 53 to 61; ``HI lobster diving'' from 36 to
39; ``HI spearfishing'' from 163 to 144; ``HI fish pond'' from N/A to
16; and ``HI Main Hawaiian Islands deep-sea bottomfish handline from
580 to 569.
List of Species or Stocks Incidentally Killed or Injured
Humpback whale (CA/OR/WA stock) is added to the list of species or
stocks incidentally killed or injured in the ``CA thresher shark/
swordfish drift gillnet'' fishery followed by the notation ``\1\.''
Commercial Fisheries in the Atlantic Ocean, Gulf of Mexico, and
Caribbean
Fishery Classification
The ``Southeastern U.S. Atlantic, Gulf of Mexico stone crab trap/
pot'' fishery is elevated from Category III to Category II followed by
the notation ``\2\.''
Addition of Fisheries
The ``RI floating trap'' fishery is added to the LOF as Category
III.
Fishery Name and Organizational Changes and Clarifications
The spatial boundaries for the Category II ``Northeast bottom
trawl,'' ``Northeast mid-water trawl,'' ``Mid-Atlantic bottom trawl,''
and ``Mid-Atlantic mid-water trawl'' fisheries are updated and the
fishery definitions are updated to reflect this change.
Number of Vessels/Persons
The estimated number of vessels/persons participating in several
New England, Mid-Atlantic, and South Atlantic fisheries are updated
based on the most recent numbers of federal permits or state licenses
for each fishery, as outlined below.
Category I: ``Mid-Atlantic gillnet'' from 5,495 to 6,402;
``Northeast sink gillnet'' from 7,712 to 3,828; and ``Northeast/Mid-
Atlantic American lobster trap/pot'' from 12,489 to 11,767.
Category II: ``Southeastern U.S. Atlantic, Gulf of Mexico stone
crab trap/pot'' from 4,453 to 1,282; ``Chesapeake Bay inshore gillnet''
from 1,167 to 3,328; ``Northeast anchored float gillnet'' from 662 to
414; ``Northeast drift gillnet'' from 608 to 414; ``Mid-Atlantic mid-
water trawl'' from 546 to 669; ``Mid-Atlantic bottom trawl'' from 1,182
to 1,388; ``Northeast mid-water trawl (including pair trawl)'' from 953
to 887; ``Northeast bottom trawl'' from 1,635 to 2,584; Atlantic blue
crab trap/pot from 6,479 to 10,008; ``Atlantic mixed species trap/pot''
from 1,912 to 3,526; ``Mid-Atlantic menhaden purse seine'' from 54 to
56; ``Mid-Atlantic haul/beach seine'' from 666 to 874; and ``VA pound
net'' from 52 to 231.
Category III: ``FL spiny lobster trap/pot'' fishery from 2,145 to
1,268; ``Gulf of Maine, U.S. Mid-Atlantic sea scallop dredge'' from 258
to > 230; ``Northeast, Mid-Atlantic bottom longline/hook & line'' from
1,183 to > 1,281; ``DE River inshore gillnet'' from 60 to unknown;
``Long Island Sound inshore gillnet'' from 20 to unknown; ``RI,
southern MA (to Monomy Island), and NY Bight (Raritan and Lower NY
Bays) inshore gillnet'' from 32 to unknown; ``Gulf of Maine Atlantic
herring purse seine'' from > 7 to > 6; ``U.S. Mid-Atlantic eel trap/
pot'' from > 700 to unknown; and ``Atlantic shellfish bottom trawl''
from > 67 to > 86.
List of Species or Stocks Incidentally Killed or Injured
Killer whale (GMX oceanic stock), sperm whale (GMX oceanic stock),
and Gervais beaked whale (GMX oceanic stock) are added to the list of
species or stocks incidentally killed or injured in the Category I
``Atlantic Ocean, Caribbean, Gulf of Mexico large pelagic longline''
fishery.
Atlantic spotted dolphin (Northern GMX stock) stock name is updated
to Atlantic spotted dolphin (GMX continental and oceanic) on the list
as species or stocks incidentally killed or injured in the Category I
``Atlantic Ocean, Caribbean, Gulf of Mexico large pelagic longline''
fishery.
Bottlenose dolphin (GA coastal stock) and bottlenose dolphin (SC
coastal stock) are combined on the list as species or stocks
incidentally killed or injured in the Category II ``Southeast Atlantic
gillnet'' fishery and renamed bottlenose dolphin (SC/GA coastal stock).
Bottlenose dolphin (Northern FL coastal stock) is added to the list
of species or stocks incidentally killed or injured in the Category II
``Southeastern U.S. Atlantic shark gillnet'' fishery.
Bottlenose dolphin (Northern GMX coastal stock) and bottlenose
dolphin (GMX continental shelf stock) are added to the list of species
or stocks incidentally killed or injured in the Category II
``Southeastern U.S. Atlantic, Gulf of Mexico shrimp trawl'' fishery.
Atlantic spotted dolphin (Northern GMX) is updated to Atlantic
spotted dolphin (GMX continental and oceanic) on the list of species or
stocks incidentally killed or injured in the Category II ``Southeastern
U.S. Atlantic, Gulf of Mexico shrimp trawl'' fishery.
Bottlenose dolphin (GA coastal stock) and bottlenose dolphin (SC
coastal stock) are combined on the list of species or stocks
incidentally killed or injured in the Category II ``Southeastern U.S.
Atlantic, Gulf of Mexico shrimp trawl'' fishery and renamed bottlenose
dolphin (SC/GA coastal stock).
Bottlenose dolphin (GA coastal stock) and bottlenose dolphin (SC
coastal stock) are combined on the list of species or stocks
incidentally killed or injured in the Category II ``Atlantic blue crab
trap/pot'' fishery and renamed the stock bottlenose dolphin (SC/GA
coastal stock).
Bottlenose dolphin (Southern NC estuarine system stock) is added to
the list of species or stocks incidentally killed or injured in the
Category II ``NC long haul seine'' fishery.
Bottlenose dolphin (Northern NC estuarine system stock) is added to
the list of species or stocks incidentally killed or injured in the
Category II ``VA pound net'' fishery.
Bottlenose dolphin (Central FL coastal stock) is added to the list
of species or stocks incidentally killed or injured in the Category III
``FL spiny lobster trap/pot'' fishery.
Bottlenose dolphin (Central FL coastal stock), bottlenose dolphin
(Eastern GMX coastal stock), bottlenose dolphin (FL Bay stock),
bottlenose dolphin (GMX bay, sound, estuarine stock, FL west coast
portion), bottlenose dolphin (Indian River Lagoon estuarine system
stock), bottlenose dolphin (Jacksonville estuarine system stock), and
bottlenose dolphin (Northern GMX coastal stock) are added to the list
of species or stocks
[[Page 73929]]
incidentally killed or injured in the Category II ``Southeastern U.S.
Atlantic, Gulf of Mexico stone crab trap/pot'' fishery.
Bottlenose dolphin (GMX continental shelf stock) is added to the
list of species or stocks incidentally killed or injured in the
Category III ``Southeastern U.S. Atlantic, Gulf of Mexico, and
Caribbean snapper-grouper and other reef fish bottom longline/hook-and-
line'' fishery.
Bottlenose dolphin (GMX bay, sound, and estuarine stock) is added
to the list of species or stocks incidentally killed or injured in the
Category III ``Atlantic Ocean, Gulf of Mexico, Caribbean commercial
passenger fishing vessel'' fishery.
Risso's dolphin (WNA stock) is added to the list of species or
stocks incidentally killed or injured in the Category II ``Mid-Atlantic
bottom trawl'' fishery.
Harbor seal (WNA stock) is added to the list of species or stocks
incidentally killed or injured in the Category II ``Mid-Atlantic bottom
trawl'' fishery.
Bottlenose dolphin (WNA offshore stock) is added to the list of
species or stocks incidentally killed or injured in the Category II
``Northeast bottom trawl'' fishery.
Gray seal (WNA stock) is added to the list of species or stocks
incidentally killed or injured in the Category II ``Northeast bottom
trawl'' fishery.
Commercial Fisheries on the High Seas
Fishery Classification
The high seas ``Pacific highly migratory species drift gillnet''
fishery is elevated from Category III to Category II because the
component of the fishery operating in U.S. waters is elevated in this
final rule.
To correct an error in the 2011 LOF, the high seas ``Pacific highly
migratory species longline'' fishery from is reclassified from Category
II to Category III.
Removal of Fisheries
The Category II high seas ``Pacific highly migratory species
trawl'' ``South Pacific albacore troll trawl'' fisheries are removed
from the LOF.
Fishery Name and Organizational Changes and Clarifications
The name of the Category I high seas ``Western Pacific pelagic
(deep-set component) longline'' fishery is changed to the ``Western
Pacific pelagic (HI deep-set component) longline'' fishery.
The name of the Category II high seas ``Western Pacific pelagic
(shallow-set component) longline'' fishery is changed to the ``Western
Pacific pelagic (HI shallow-set component) longline'' fishery.
Number of Vessels/Persons
The estimated number of HSFCA permits is updated for several high
seas fisheries for multiple gear types, as outlined below.
High seas ``Atlantic highly migratory species'' fishery for the
following gear types: longline from 77 to 81; and handline/pole and
line from 2 to 3.
High seas ``Pacific highly migratory species'' fishery for the
following gear types: Pot from 7 to 3; longline from 75 to 85;
handline/pole and line from 25 to 30; multipurpose from 7 to 5; purse
seine from 8 to 7; and troll from 271 to 258.
High seas ``South Pacific albacore troll'' fishery for the
following gear types: Pot from 5 to 3; and troll from 59 to 51.
High seas ``South Pacific tuna'' fishery for the following gear
types: Longline from 8 to 11; and purse seine from 35 to 33.
High seas ``Western Pacific pelagic'' fishery for the following
gear types: Deep-set longline from 127 to 124; pot from 7 to 3;
handline/pole and line from 10 to 8; multipurpose from 5 to 4; trawl
from 3 to 1; and troll from 40 to 32.
List of Species or Stocks Incidentally Killed or Injured
Humpback whale (CA/OR/WA stock) is added to the list of marine
mammal stocks incidentally killed or injured in the high seas ``Pacific
highly migratory species gillnet'' fishery.
Risso's dolphin (CA/OR/WA stock) is removed from the list of marine
mammal stocks incidentally killed or injured in the high seas ``Pacific
highly migratory species longline'' fishery.
Blainville's beaked whale (unknown stock), bottlenose dolphin
(unknown stock), Pantropical spotted dolphin (unknown stock), Risso's
dolphin (unknown stock), short-finned pilot whale (unknown stock), and
striped dolphin (unknown stock) are added to the list of species or
stocks killed or injured in the Category I high seas ``Western Pacific
pelagic (HI deep-set component)'' fishery.
Bottlenose dolphin (unknown stock), Byrde's whale (unknown stock),
Kogia spp. whale (unknown stock), Risso's dolphin (unknown stock), and
striped dolphin (unknown stock) are added to the list of species or
stocks killed or injured in the Category II high seas ``Western Pacific
pelagic (HI shallow-set component)'' fishery.
List of Fisheries
The following tables set forth the 2012 list of U.S. commercial
fisheries according to their classification under section 118 of the
MMPA. 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
TRPs or TRTs.
In Tables 1 and 2, the estimated number of vessels/persons
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, such as for many of the Mid-Atlantic and
New England fisheries. However, in these cases, the numbers represent
the potential effort for each fishery, given the multiple gear types
several state permits may allow for. Changes made to Mid-Atlantic and
New England fishery participants 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). 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 updated 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 in high
seas fisheries at this time.
Tables 1, 2, and 3 also list the marine mammal species or 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
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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,
stranding data, or fishermen self-reports (i.e., MMAP reports) 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 as
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 based on
known interactions. NMFS has classified these fisheries by analogy to
other Category I or II fisheries that use similar fishing techniques or
gear 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 (i.e., 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). 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. These fisheries,
though listed separately between Table 1 or 2 and Table 3, are
considered the same fishery on either side of the EEZ boundary. NMFS
has designated those fisheries in each table by a ``*'' after the
fishery's name.
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Classification
The Chief Counsel for Regulation of the Department of Commerce
certified to the Chief Counsel for Advocacy of the Small Business
Administration that this rule would not have a significant economic
impact on a substantial number of small entities. The factual basis for
this certification was published with the proposed rule and is not
repeated here. No comments were received regarding the economic impact
of this rule. As a result, a final regulatory flexibility analysis is
not required, and none was prepared.
This final rule contains collection-of-information requirements
subject to the Paperwork Reduction Act. The collection of information
for the
[[Page 73953]]
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 was no need to update the 2005 EA at that
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. NMFS will
next review the EA to determine if updates are necessary in 2014.
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
Andersen, M.S., K.A. Forney, T.V.N. Cole, T. Eagle, R. Angliss, K.
Long, L. Barre, L. Van Atta, D. Borggaard, T. Rowles, B. Norberg, J.
Whaley, and L. Engleby. 2008. Differentiating Serious and Non-
Serious Injury of Marine Mammals: Report of the Serious Injury
Technical Workshop, 10-13 September 2007, Seattle, Washington. NOAA
Technical Memorandum NMFS-OPR-39, 94p.
Baker, J.D., A.L. Harting, T.A. Wurth, and T.C. Johanos. 2011.
Dramatic shifts in Hawaiian monk seal distribution predicted from
divergent regional trends. Marine Mammal Science, 27: 78-93.
Forney, K.A. 2010. Serious injury determinations for cetaceans
caught Hawaii longline fisheries during 1994-2008. NOAA Technical
Memorandum NOAA-TM-NMFS-SWFSC-462. 24 p.
Hatfield, B.B, J.A. Ames, J.A. Estes, M.T. Tinker, A.B. Johnson,
M.M. Staedler, M.D. Harris. 2011. Sea otter mortality in fish and
shellfish traps: estimating potential impacts and exploring possible
solutions. Endang. Species Res., 13:219-229.
McCracken, M.L. 2010. Adjustments to False Killer Whale and Short-
finned Pilot Whale Bycatch Estimates. NMFS Pacific Islands Fisheries
Science Center Working Paper WP-10-007. Issued 7 December 2010. 23
p.
NMFS 2008a. Endangered Species Act--Section 7 Consultation
Biological Opinion and Incidental Take Statement on the
Implementation of Bottomfish Fishing Regulations within Federal
Waters of the Main Hawaiian Islands. Issued March 18, 2008. 37 p.
NMFS 2008b. Endangered Species Act--Section 7 informal consultation
on the continued authorization of crustacean fisheries in the
Hawaiian Archipelago. April 4, 2008. 10 p.
NMFS Pacific Islands Regional Observer Program. 2004-2008. Pacific
Islands Regional Observer Program annual status reports. Available
online: http://www.fpir.noaa.gov/OBS/obs_qrtrly_annual_rprts.html
Rizzuto, J. 2007. Big fish await HIBT teams. West Hawaii Today
39(218): 1B, 4B.
Rossman, M. C. 2010. Estimated bycatch of small cetaceans in
northeast U.S. bottom trawl fishing gear during 2000-2005. J.
Northw. Atl. Fish. Sci., 42: 77-101. doi:10.2960/J.v42. m650.
Dated: November 21, 2011.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
[FR Doc. 2011-30607 Filed 11-28-11; 8:45 am]
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