Federal Register: November 16, 2009 (Volume 74, Number 219)
DOCID: fr16no09-8 FR Doc E9-27431
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
CFR Citation: 50 CFR Part 229
Docket ID: [Docket No. 090218194-91045-02]
RIN ID: RIN 0648-AX65
NOTICE: RULES
DOCID: fr16no09-8
DOCUMENT ACTION: Final rule.
SUBJECT CATEGORY:
List of Fisheries for 2010
DATES: This final rule is effective January 1, 2010.
DOCUMENT SUMMARY:
The National Marine Fisheries Service (NMFS) publishes its final List of Fisheries (LOF) for 2010, as required by the Marine Mammal Protection Act (MMPA). The final LOF for 2010 reflects new information on interactions between commercial fisheries and marine mammals. NMFS must categorize each commercial fishery on the LOF into one of three categories under the MMPA based upon the level of serious injury and mortality of marine mammals that occurs incidental to each fishery. The categorization of a fishery in the LOF determines whether participants in that fishery are subject to certain provisions of the MMPA, such as registration, observer coverage, and take reduction plan requirements.
SUMMARY:
2010 List of Fisheries
SUPPLEMENTAL INFORMATION
Availability of Published Materials
Information regarding the LOF and the Marine Mammal Authorization Program, including registration procedures and forms, current and past LOFs, observer requirements, and marine mammal injury/mortality reporting forms and submittal procedures, may be obtained at: http:// www.nmfs.noaa.gov/pr/interactions/lof/ or from any NMFS Regional Office at the addresses listed below:
NMFS, Northeast Region, 55 Great Republic Drive, Gloucester, MA 019302298, Attn: Marcia Hobbs;
NMFS, Southeast Region, 263 13th Avenue South, St. Petersburg, FL 33701, Attn: Anne Ney;
NMFS, Southwest Region, 501 W. Ocean Blvd., Suite 4200, Long Beach, CA 908024213, Attn: Lyle Enriquez;
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 [[Page 58860]]
9th Street, Juneau, AK 99802, Attn: Bridget Mansfield; or
NMFS, Pacific Islands Region, Protected Resources, 1601 Kapiolani Boulevard, Suite 1100, Honolulu, HI 968144700, Attn: Lisa Van Atta. What is the List of Fisheries?
Section 118 of the MMPA requires NMFS to place all U.S. commercial fisheries into one of three categories based on the level of incidental serious injury and mortality of marine mammals occurring in each fishery (16 U.S.C. 1387(c)(1)). The classification of a fishery on the LOF determines whether participants in that fishery may be required to comply with certain provisions of the MMPA, such as registration, observer coverage, and take reduction plan requirements. NMFS must reexamine the LOF annually, considering new information in the Marine Mammal Stock Assessment Reports (SAR) and other relevant sources, and publish in the Federal Register any necessary changes to the LOF after notice and opportunity for public comment (16 U.S.C. 1387 (c)(1)(C)). How Does NMFS Determine in which Category a Fishery is Placed?
The definitions for the fishery classification criteria can be found in the implementing regulations for section 118 of the MMPA (50 CFR 229.2). The criteria are also summarized here.
Fishery Classification Criteria
The fishery classification criteria consist of a twotiered, stock specific approach that first addresses the total impact of all fisheries on each marine mammal stock, and then addresses the impact of individual fisheries on each stock. This approach is based on consideration of the rate, in numbers of animals per year, of incidental mortalities and serious injuries of marine mammals due to commercial fishing operations relative to the potential biological removal (PBR) level for each marine mammal stock. The MMPA (16 U.S.C. 1362 (20)) defines the PBR level as the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its Optimum Sustainable Population. This definition can also be found in the implementing regulations for section 118 of the MMPA (50 CFR 229.2).
Tier 1: If the total annual mortality and serious injury of a marine mammal stock, across all fisheries, is less than or equal to 10 percent of the PBR level of the stock, all fisheries interacting with the stock would be placed in Category III (unless those fisheries interact with other stock(s) in which total annual mortality and serious injury is greater than 10 percent of PBR). Otherwise, these fisheries are subject to the next tier (Tier 2) of analysis to determine their classification.
Tier 2, Category I: Annual mortality and serious injury of a stock in a given fishery is greater than or equal to 50 percent of the PBR level.
Tier 2, Category II: Annual mortality and serious injury of a stock in a given fishery is greater than 1 percent and less than 50 percent of the PBR level.
Tier 2, Category III: Annual mortality and serious injury of a stock in a given fishery is less than or equal to 1 percent of the PBR level.
While Tier 1 considers the cumulative fishery mortality and serious injury for a particular stock, Tier 2 considers fisheryspecific mortality and serious injury for a particular stock. Additional details regarding how the categories were determined are provided in the preamble to the proposed rule implementing section 118 of the MMPA (60 FR 45086, August 30, 1995).
Because fisheries are categorized on a perstock basis, a fishery may qualify as one Category for one marine mammal stock and another Category for a different marine mammal stock. A fishery is typically categorized on the LOF at its highest level of classification (e.g., a fishery qualifying for Category III for one marine mammal stock and for Category II for another marine mammal stock will be listed under Category II).
Other Criteria That May Be Considered
In the absence of reliable information indicating the frequency of incidental mortality and serious injury of marine mammals by a commercial fishery, NMFS will determine whether the incidental serious injury of 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 for Fisheries (50 CFR 229.2). Further, eligible commercial fisheries not specifically identified on the LOF are deemed to be Category II fisheries until the next LOF is published. How Does NMFS Determine which Species and Stocks are Included as Incidentally Killed or Injured in a Fishery?
The LOF includes a list of marine mammal species and stocks incidentally killed or injured in each commercial fishery. To determine which species and stocks are included as incidentally killed or injured in a fishery, NMFS annually reviews the information presented in the current SARs. The SARs are based upon the best available scientific information and provide the most current and inclusive information on each stock's PBR level and level of interaction with commercial fishing operations. NMFS also reviews other sources of new information, including observer data, stranding data, and fisher selfreports.
When reliable information and sufficient levels of observer
coverage are available, the most recent five years of data are used to
determine whether a species or stock should be added to, or deleted
from, the list of species and stocks incidentally killed or injured in
each commercial fishery. 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 fishery
management plan (FMP) or a take reduction plan (TRP)). NMFS will
provide casespecific justification in the LOF for changes to the list of species and stocks incidentally killed or injured.
How Does NMFS Determine the Level of Observer Coverage in a Fishery?
Data obtained from observers and the level of observer coverage are
important tools in estimating the level of marine mammal mortality and
serious injury in commercial fishing operations. The best available
information on the level of observer coverage, and the spatial and
temporal distribution of observed marine mammal interactions, is
presented in the SARs. Starting with the 2005 SARs, each SAR includes
an appendix with detailed descriptions of each Category I and II
fishery in the LOF, including observer coverage. The SARs generally do
not provide detailed information on observer coverage in Category III fisheries because, under the
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MMPA, Category III fisheries are not required to accommodate observers
aboard vessels due to the remote likelihood of mortality and serious
injury of marine mammals. Information presented in the SARs' appendices
includes: level of observer coverage, target species, levels of fishing
effort, spatial and temporal distribution of fishing effort,
characteristics of fishing gear and operations, management and
regulations, and interactions with marine mammals. Copies of the SARs
are available on the NMFS Office of Protected Resource's website at:
http://www.nmfs.noaa.gov/pr/sars/. Additional information on observer
programs in commercial fisheries can be found on the NMFS National
Observer Program's website: http://www.st.nmfs.gov/st4/nop/.
How Do I Find Out if a Specific Fishery is in Category I, II, or III?
This final rule includes three tables that list all U.S. commercial fisheries by LOF Category. Table 1 lists all of the fisheries in the Pacific Ocean (including Alaska); Table 2 lists all of the fisheries in the Atlantic Ocean, Gulf of Mexico, and Caribbean; Table 3 lists all U.S.authorized fisheries on the high seas. A fourth table, Table 4, lists all fisheries managed under applicable take reduction plans or teams.
Are High Seas Fisheries Included on the LOF?
Beginning with the 2009 LOF, NMFS includes high seas fisheries in Table 3 of the LOF, along with the number of valid High Sea Fishing Compliance Act (HSFCA) permits in each fishery. As of 2004, NMFS issues HSFCA permits only for high seas fisheries analyzed in accordance with the National Environmental Policy Act (NEPA) and the Endangered Species Act (ESA). The authorized high seas fisheries are broad in scope and encompass multiple specific fisheries identified by gear type. For the purposes of the LOF, the high seas fisheries are subdivided based on gear type (e.g., trawl, longline, purse seine, gillnet, troll, etc.) to provide more detail on composition of effort within these fisheries. Many fisheries operate in both U.S. waters and on the high seas, creating some overlap between the fisheries listed in Tables 1 and 2 and those in Table 3. In these cases, the high seas component of the fishery is not considered a separate fishery, but an extension of the fishery operating within U.S. waters (listed in Table 1 or 2). In these fisheries, a single vessel may set both within the U.S. Exclusive Economic Zone (EEZ) and on the high seas during a single fishing trip. NMFS designates those fisheries in Tables 1, 2, and 3 by an ``*'' 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 do not necessarily represent additional fishers that are not accounted for in Tables 1 and 2. Many fishers holding these permits also fish within U.S. waters and are included in the number of vessels and participants operating within those fisheries in Table 1 and 2.
HSFCA permits are valid for five years, during which time FMPs can change. Therefore, some fishers 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).
Are Treaty Tribal Fisheries Included on the LOF?
In the final rule implementing section 118 of the MMPA (60 FR 45086, August 30, 1995) NMFS concluded that treaty tribal fisheries are conducted under the authority of the Indian treaties; the MMPA's requirements in section 118 do not apply to treaty Indian tribal fisheries. NMFS explained this decision in the final rule stating (the remaining text in this paragraph is quoted direction from the final rule at 60 FR 45086, August 30, 1995), `` the rights to fish and hunt are already secured separately for Northwest tribes pursuant to their treaties with the United States. NMFS reviewed the relationship of the Northwest Indian treaties to the MMPA and did not find clear evidence that Congress intended to abrogate treaty Indian rights. Section 14 of the Amendments to the MMPA (Public Law No. 103238) states 'Nothing in this Act, including any amendments to the Marine Mammal Protection Act of 1972 made by this Act alters or is intended to alter any treaty between the United States and one or more Indian tribes.' This provision clarifies that existing treaty Indian fishing rights are not affected by the amendments to the MMPA. Therefore, tribal fisheries are conducted under the authority of the Indian treaties rather than the MMPA, and the MMPA's mandatory registration systems do not apply to treaty Indian fishers operating in their usual and accustomed fishing areas. Since inclusion of the treaty Indian fisheries in the LOF would also establish an obligation to obtain an MMPA registration under section 118, NMFS has deleted reference to tribal fisheries in the LOF. The registration requirements for Category I or II fisheries will not apply to treaty Indian tribes.'' (60 FR 45086, August 30, 1995.)
NMFS considered, among other things, the public comments received on the proposed 2010 LOF and the 1994 amendments to the MMPA and accompanying legislative history to reevaluate its 1995 conclusion to exempt tribal fisheries from the LOF (60 FR 45086, August 30, 1995) should be changed due to Anderson v. Evans. NMFS determined that Anderson v. Evans did not alter NMFS' original analysis in the final rule implementing section 118 of the MMPA (60 FR 45086, August 30, 1995); therefore, the inclusion of tribal fisheries on the LOF at this time is not warranted. NMFS will continue to work on a governmentto government basis with the affected treaty tribal governments to gather data on injuries and mortalities of marine mammals incidental to tribal fisheries. Additional information on NMFS' decision to continue to exclude tribal fisheries from the LOF is provided below in the response to comments 15 in the section ``Comments and Responses.''
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 be registered with NMFS and obtain a marine mammal authorization to lawfully take a nonendangered and nonthreatened marine mammal incidental to commercial fishing. Owners of vessels or gear engaged in a Category III fishery are not required to be registered with NMFS or obtain a marine mammal authorization. What is the Registration Process?
NMFS has integrated the MMPA registration process, known as the
Marine Mammal Authorization Program (MMAP), with existing state and
Federal fishery license, registration, or permit systems for Category I
and II fisheries on the LOF. Participants in these fisheries are
automatically registered under the MMAP and are not required to submit
registration or renewal materials directly under the MMAP. In the
Pacific Islands, Southwest, Northwest, and Alaska regions, NMFS will
issue vessel or gear owners an authorization certificate; in the
Northeast and Southeast Regions, NMFS will issue vessel or gear owners notification of
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registry and directions on obtaining an authorization certificate. The
authorization certificate, or a copy, must be on board the vessel while
it is operating in a Category I or II fishery, or for nonvessel
fisheries, in the possession of the person in charge of the fishing
operation (50 CFR 229.4(e)). Although efforts are made to limit the
issuance of authorization certificates to only those vessel or gear
owners that participate in Category I or II fisheries, not all state
and Federal permit systems distinguish between fisheries as classified
by the LOF. Therefore, some vessel or gear owners in Category III
fisheries may receive authorization certificates even though they are
not required for Category III fisheries. Individuals fishing in
Category I and II fisheries for which no state or Federal permit is
required must register with NMFS by contacting their appropriate Regional Office (see ADDRESSES).
How Do I Receive My Authorization Certificate and Injury/Mortality Reporting Forms?
All vessel or gear owners that participate in Pacific Islands, Southwest, Northwest, or Alaska regional fisheries will receive their authorization certificates and/or injury/mortality reporting forms via U.S. mail, or with their state or Federal license at the time of renewal. Vessel or gear owners participating in the Northeast and Southeast Regional Integrated Registration Program will receive their authorization certificates as follows:
1. Northeast Region vessel or gear owners participating in Category I or II fisheries for which a state or Federal permit is required may receive their authorization certificate and/or injury/mortality reporting form by contacting the Northeast Regional Office at 978281 9328 or by visiting the Northeast Regional Office Web site (http:// www.nero.noaa.gov/prot_res/mmap/certificate.html) and following instructions for printing the necessary documents.
2. Southeast Region vessel or gear owners participating in Category
I or II fisheries for which a state or Federal permit is required will
receive notice of registry and may receive their authorization
certificate and/or injury/mortality reporting form by contacting the
Southeast Regional Office at 7275515758 or by visiting the Southeast
Regional Office Web site (http://sero.nmfs.noaa.gov/pr/pr.htm) and
following instructions for printing the necessary documents. How Do I Renew My Registration Under the MMPA?
Vessel or gear owners that participate in Pacific Islands,
Southwest, or Alaska regional fisheries are automatically renewed and
should receive an authorization certificate by January 1 of each new
year. Vessel or gear owners in Washington and Oregon fisheries receive
authorization with each renewed state fishing license, the timing of
which varies based on target species. Vessel or gear owners who
participate in these regions and have not received authorization
certificates by January 1 or with renewed fishing licenses must contact the appropriate NMFS Regional Office (see ADDRESSES).
Vessel or gear owners participating in Southeast or Northeast
regional fisheries may receive an authorization certificate by calling
the relevant NMFS Regional Office or visiting the relevant NMFS
Regional Office Web site (see ``How Do I Receive My Authorization Certificate and Injury/Mortality Reporting Forms'').
Am I Required to Submit Reports When I Injure or Kill a Marine Mammal During the Course of Commercial Fishing Operations?
In accordance with the MMPA (16 U.S.C. 1387(e)) and 50 CFR 229.6, any vessel owner or operator, or gear owner or operator (in the case of nonvessel fisheries), participating in a Category I, II, or III fishery must report to NMFS all incidental injuries and mortalities of marine mammals that occur during commercial fishing operations. ``Injury'' is defined in 50 CFR 229.2 as a wound or other physical harm. In addition, any marine mammal that ingests fishing gear or any marine mammal that is released with fishing gear entangling, trailing, or perforating any part of the body is considered injured, regardless of the presence of any wound or other evidence of injury, and must be reported. Injury/mortality reporting forms and instructions for submitting forms to NMFS can be downloaded from: http:// www.nmfs.noaa.gov/pr/pdfs/interactions/mmap_reporting_form.pdf. Reporting requirements and procedures can be found in 50 CFR 229.6. Am I Required to Take an Observer Aboard My Vessel?
Fishers participating in a Category I or II fishery are required to accommodate an observer aboard vessel(s) upon request. MMPA Section 118 states that an observer will not be placed on a vessel if the facilities for quartering an observer or performing observer functions are inadequate or unsafe, thereby exempting vessels too small to accommodate an observer from this requirement. However, observer requirements will not be exempted 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)) or vessels operating in North Carolina fisheries observed under the Alternative Platform Program. Observer requirements can be found in 50 CFR 229.7. Am I Required to Comply With Any Take Reduction Plan Regulations?
Fishers participating in a Category I or II fishery are required to comply with any applicable TRP regulations. Table 4 in this final rule provides a list of fisheries affected by take reduction teams and plans. Take reduction plan regulations can be found at 50 CFR 229.30 through 229.36.
Sources of Information Reviewed for the Final 2010 LOF
NMFS reviewed the marine mammal incidental serious injury and mortality information presented in the SARs for all observed fisheries to determine whether changes in fishery classification were warranted. The SARs are based on the best scientific information available at the time of preparation, including the level of serious injury and mortality of marine mammals that occurs incidental to commercial fisheries and the PBR levels of marine mammal stocks. The information contained in the SARs is reviewed by three 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, fishery management plans, and ESA documents.
The final LOF for 2010 was based, among other things, on
information provided in the NEPA and ESA documents analyzing authorized
high seas fisheries, and the final SARs for 1996 (63 FR 60, January 2,
1998), 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
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26340, May 4, 2006), 2006 (72 FR 12774, March 19, 2007), 2007 (73 FR
21111, April 18, 2008), and 2008 (74 FR 19530, April 29, 2009). 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 fisheries on the 2010 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, or through state agencies. Additional details for Category I and II fisheries operating on the high seas are included in various FMPs, NEPA, or ESA documents.
American Samoa Longline Fishery
The Category II ``American Samoa longline'' fishery operates in waters around American Samoa targeting tuna (mainly albacore, also skipjack, yellowfin and bigeye). Wahoo, sharks, billfish, and other miscellaneous pelagic species are also caught, with most of the sharks and billfish released. In 2000, the ``American Samoa longline'' fishery began to expand rapidly with the influx of large (more than 50 ft (15.2 m) overall length) conventional monohull vessels, similar to the type used in the Hawaiibased longline fisheries. Vessels over 50 ft (15.2 m) may set 1,500 2,500 hooks and have a greater fishing range and capacity for storing fish (8 40 metric tons). The fleet reached a peak of 66 vessels in 2001, and set a peak of almost 7,000 sets in 2002.
The rapid expansion of longline fishing effort within the EEZ waters around American Samoa prompted the Western Pacific Fishery Management Council (WPFMC) to develop a limited entry system for the fishery, implemented by NMFS in 2005. Under the limited access program, NMFS issued a total of 60 initial longline limited entry permits in 2005 to qualified candidates, spread among 4 vessel size classes (72 FR 10711, March 9, 2007): 22 permits issued in Class A (less than or equal to 40 ft (12.2 m) length); 5 in Class B (4050 ft (12.215.2 m)); 12 in Class C (5070 ft (15.221.3 m)); and 21 in Class D (more than 70 ft (21.3 m)). The limited entry program regulations cap the maximum number of permits to the 60 initial permits issued. Permits may be transferred, upgraded, and renewed. In 2008, the American Samoa longline fishery had 28 active vessels. Observers were first placed on American Samoa longline vessels in April 2006 to monitor protected species interactions, with observer coverage averaging approximately 6 8 percent each year.
Under the limited entry program, vessel operators must submit Federal longline logbooks, vessels over 40 ft (12.2 m) must carry observers if requested by NMFS, and vessels over 50 ft (15.2 m) must have an operational vessel monitoring system. In addition, vessel owners and operators of vessels registered to an American Samoa longline limited entry permit must attend a protected species workshop annually, carry and use dip nets, line clippers, and bolt cutters, and follow handling, resuscitation, and release requirements for incidentally hooked or entangled sea turtles (70 FR 69282, November 15, 2005). There are existing regulations intended to mitigate sea turtle incidental hookings, and in 2009 the WPFMC recommended additional measures be implemented to minimize interactions with green sea turtles, including modifications to gear to place hooks below 100 m (328 ft) depth and to increase observer coverage (WPFMC 144th Meeting, March 2326, 2009). Current regulations include a prohibition on U.S. vessels greater than 50 ft (15.2 m) in length from using longline gear within 50 nmi around the islands of American Samoa. American Samoa longline fishery regulations can be found at 50 CFR 665.3638. HI Shortline Fishery
The Category II ``HI shortline'' fishery is a smallscale system operating off the State of HI, and targeting bigeye tuna (Thunnus obesus) or the lustrous pomfret (Eumigistes illustris). This fishery was developed to target these fish species when they concentrate over the summit of Cross Seamount (290 km (180 mi) south of the State of HI). The gear style is designed specifically to target the aggregating fish species over seamount structures. The primary gear type used is a horizontal main line (monofilament) less than 1 nmi long, and includes two baskets of approximately 50 hooks each. The gear is set before dawn and has a short soak time, with the gear retrieved about two hours after it is set. This fishery has no seasonal component and may operate yearround. There are no specific fishing permits issued for this fishery. However, all persons with a State of Hawaii Commercial Marine License (CML) may participate in any fishery, including the ``HI shortline'' fishery. Of those persons possessing CMLs, shortline participation has changed from 5 to 11 vessels during 20032008. From 20032008, there was an average of 135,757 pounds (lbs) of fish landed each year. In 2008 alone, 104,152 lbs of fish were landed. Currently, there is no reporting system in place to document potential marine mammal interactions in this fishery. However, there are anecdotal reports of interactions off the north side of the island of Maui, but the species and extent of interactions are unknown.
Comments and Responses
NMFS received 11 comment letters on the proposed 2010 LOF (74 FR 27739, June 11, 2009). Comments were received from the California Department of Fish and Game, California Wetfish Producers Association, Center for Biological Diversity, Columbia River InterTribal Fish Commission, Eighteen Western Washington Indian Tribes, Garden State Seafood Association, Hawaii Longline Association, Makah Tribal Council, Makah Tribe's marine mammal biologist, Marine Conservation Alliance, and Marine Mammal Commission. Comments on issues outside the scope of the LOF were noted, but are not responded to in this final rule. Comments on Tribal Treaty Fisheries Inclusion on the 2010 LOF
During the public comment phase for the thenproposed 2009 LOF, NMFS received a comment requesting the 2009 LOF be amended to include tribal fisheries. The commenter stated that ``in light of the subsequent holding of the Ninth Circuit in Anderson v. Evans...finding that the MMPA applies to the Makah application to the gray whale hunt NMFS' 1995 conclusion exempting tribal fisheries from the LOF and the Section 118 authorization process is no longer valid'' (73 FR 73039, December 1, 2008; comment/response 4). In response to this 2009 LOF comment, NMFS included a request for public comment in the proposed 2010 LOF (74 FR 27739, June 11, 2009) on whether or not to include treaty tribal fisheries on future LOFs. Below, NMFS summarizes each comment received on the 2010 proposed LOF related to tribal fisheries and issues one response following the collective tribal fisheries comments.
Comment 1: The Center for Biological Diversity (CBD) reiterated a
comment on the 2009 LOF (73 FR 73039, December 1, 2008; comment/
response 4), noting that in an earlier decision the Ninth Circuit Court
of Appeals determined that MMPA requirements applied to the Makah
application to hunt gray whales (Anderson v. Evans, 371 F.3d 475 (9th
Cir. 2004)). The CBD stated that the decision demonstrated that MMPA requirements can be harmonized with
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treaty rights. Therefore, the CBD encouraged NMFS to move forward with
determining how best to harmonize tribal fishing and treaty rights with
MMPA requirements such that all fisheries operating in US waters are
included in the LOF and categorized as I, II or III, as appropriate.
Comment 2: The Marine Mammal Commission (MMC) recommended NMFS (1) include tribal fisheries on the LOF, (2) revise its regulations implementing section 118 (e.g., 50 C.F.R. Sec. 229.1 (d)) to clarify that treaty tribal fisheries are subject to the requirements of the MMPA, including section 118, and (3) begin working with the affected tribes to integrate the registration process with existing licensing or permitting systems if it appears that some tribal fisheries will be listed as category I or category II fisheries.
Comment 3: The Makah Tribe presented data indicating that tribal incidental takes of marine mammals do not present any conservation issues notwithstanding NMFS' 1995 decision to exclude treaty tribal fisheries from the LOF. The Makah Tribe compiled data regarding incidental take in its treaty fisheries and requires that all mortality or injury resulting from an incidental take, required in Makah Tribal regulations to be reported to the Tribe, and submits an annual report to NMFS. Records of these reports have been kept since the Tribe hired a marine mammal biologist in 2003. In general the rate of incidental take of marine mammals during fishing operations is low. From 2003 2009, the Makah Tribal fisheries incidentally killed 12 harbor seals (1 in 2003, 6 in 2004, 4 in 2008, 1 in 2009), 1 Dall's porpoise (in 2004), 5 harbor porpoise (2 in 2004, 3 in 2008), 6 unknown small odontocetes (in 2005), 1 Steller sea lion (in 2008), 1 unidentified sea lion (in 2008), and 2 sea otters (in 2004). One unidentified whale and one gray whale were successfully released after entanglement (in 2005 and 2009, respectively).
The Makah tribe noted that, despite a long history of interactions between Makah Tribal fishers and marine mammals, these animals remain abundant, as indicated by NMFS' SARs. Observed take of marine mammals by the Makah Tribe's treaty fisheries is well below PBR for each stock. In addition, populations of marine mammal stocks which are most likely to interact with Makah tribal fisheries have either increased or remained stable since the MMPA was amended in 1994 and NMFS determined that treaty tribal fisheries would not be included in the LOF: CA sea lions have increased 5.6 percent/year since the 1970s; WA/OR stock of harbor seals has been stable since 1996; Inland WA stock of harbor seals has been stable at carrying capacity since 1994; Outer coast stock of harbor porpoises has been stable; Inland WA stock of harbor porpoise 2002 population estimate is three times more than the 1996 estimate; Eastern stock of Steller sea lions increased 3.1 percent/year (with regional variances); and WA stock of sea otters increased at 8 percent/year.
Comment 4A: The Makah Indian Tribe outlined three arguments (comments 4A, 4B, and 4C in this final rule) for the continued exclusion of treaty tribal fisheries from the LOF, based on its experience with the MMPA and as a party to Anderson v. Evans. The Makah Indian Tribe also joined and fully incorporated the comments in the joint tribal letter submitted by eighteen other Western Washington treaty tribes (see comments 5A, 5B, and 5C in this final rule) asserting that NMFS' 1995 rule interpreting the relationship between the Tribe's treatyreserved right to take fish and Section 118 of the MMPA has not been affected by Anderson v. Evans and continues to be valid. Therefore, the Makah Tribe recommends that NMFS reaffirm its 1995 decision that treaty tribal fisheries are not subject to the MMPA's mandatory registration and that treaty tribal fisheries will not be included in the LOF.
The Makah Tribe's first argument for the continued exclusion of treaty tribal fisheries from the LOF was that the proper reading of the 1994 MMPA Amendments' treaty savings clause (section 14) protects incidental take of marine mammals by tribal fishers because the treaty fishing right, as understood by the Indian signatories, includes the right to take marine mammals incidental to tribal fisheries.
Comment 4B: The Makah Tribe's second argument for the continued exclusion of treaty Tribal fisheries from the LOF was that Anderson v. Evans was wrongly decided (a position which the United States has also repeatedly expressed) and, therefore, should not be extended to the LOF. The Makah Tribe asserted that although Anderson v. Evans addressed direct take of marine mammals such as the Makah gray whale hunt, by its own terms it does not apply to the question of incidental take in treaty tribal fisheries. Therefore, the Makah Tribe believed NMFS need not and should not extend the decision to the issues of mandatory registration and inclusion in the LOF.
During the Anderson v. Evans case, the United States took the position that the panel opinion was incorrectly based on numerous fundamental errors in reaching its conclusion. In the Makah Tribe's opinion, if NMFS were to extend Anderson v. Evans to the LOF issue, it would further reinforce the panel's numerous incorrect applications of settled precedent and directly contradict the United States' ongoing disagreement with the case. Moreover, the Makah Tribe concluded that it would substantially undermine the Makah's and other western Washington Tribes' treaty rights notwithstanding their express protection by the 1994 Amendments. The Makah Tribe believed such a decision would contravene Congress's express intent.
Comment 4C: The Makah Tribe's third argument for the continued exclusion of treaty Tribal fisheries from the LOF was that the Makah Tribe does and will continue to work with NMFS to protect marine mammals. The Makah Tribe noted that NMFS' 1995 rule excluding treaty tribal fisheries from the LOF was based in part on the extensive cooperation between the tribes and NMFS in managing tribal fisheries, including their interactions with marine mammals (See 60 FR at 45096, Aug. 30, 1995). The Makah Tribe noted that in the 1995 final rule, NMFS found that tribal selfregulation and cooperation with NMFS were instrumental to the agency achieving its responsibilities to protect marine mammals.
Comment 5A: NMFS received two separate letters, each representing multiple Washington Indian tribes that were similar to each other in the arguments presented. Therefore, the two comments presented in the two letters are summarized together below. The first letter represented the comments of the Columbia River InterTribal Fish Commission (Nez Perce, Umatilla, Warm Springs and Yakama Tribes), the second letter represented the joint comments of eighteen Indian Tribes of western Washington State (Lummi Nation, Quinault Indian Nation, Swinomish Indian Tribal Community, and Nooksack, Tulalip, Suquamish, Squaxin Island, Nisqually, Puyallup, SaukSuiattle, Skokomish, Muckleshoot, Port Gamble, Jamestown, Lower Elwha, Upper Skagit, Quileute, and Stillaguamish Indian Tribes), collectively, the ``Tribes.'' The Tribes outlined three arguments (comments 5A, 5B, and 5C in this final rule) asserting that NMFS' 1995 conclusion that treaty fisheries are properly excluded from the LOF (60 FR 45086, August 30, 2009; at 45096) was correct, and remains correct.
The Tribes' first argument was that NMFS' 1995 conclusion remains correct
[[Page 58865]]
because the Tribes' rights are reserved by various treaties and the U.S. has broad trust responsibility to the Tribes.
Comment 5B: The Tribes' second argument was that NMFS' 1995 conclusion regarding Tribal fisheries remains correct because it is not affected by the rulings of the Ninth Circuit in Anderson v. Evans. The Tribes asserted that Anderson v. Evans involved the Makah Tribe's exercise of its express whaling rights in the Treaty of Neah Bay, and was wholly unrelated to the Makah Tribe's or any other Tribes' treaty right to take fish. The Tribes argued that the Anderson v. Evans court did not address the applicability of the 1994 MMPA amendments to treaty fisheries or the exercise of any other treaty rights, but instead focused solely on the applicability of the MMPA's general take prohibition, which has no Indian treaty savings clause, to the Makah Tribe's gray whale hunt. The Tribes asserted that as a result of the narrow scope of the case, the court did not address nor did it have any reason to address the MMPA's provisions governing incidental take of marine mammals in commercial fisheries, much less treaty tribal fisheries. In the Tribes' opinion, because Anderson v. Evans did not address Section 118 of the Act, the 1994 amendments (including the treaty savings clause) or the 1995 rule, it is inapplicable to the 2010 LOF rulemaking. The Tribes also asserted that the incidental take of marine mammals in treaty fisheries is well within the treaty rights protected by the 1994 treaty savings clause, a statute which must be construed liberally in favor of the Indians.
Comment 5C: The Tribes' third argument was that NMFS' 1995 conclusion regarding Tribal fisheries remains accurate because the Tribes' regulate their fisheries (including interactions with marine mammals) and NMFS retains authority to regulate tribal fisheries should the principle of conservation necessity deem it necessary. In the Tribes' opinion, NMFS need not take the radical step of reversing its 1995 rule with respect to treaty tribal fisheries and the LOF because, as a practical and legal matter, the agency is fully capable of protecting marine mammals under the existing rule. Finally, the Tribes noted that, just as in 1995 when NMFS asserted its authority to regulate tribal fisheries under the treaty rights principle of conservation necessity, NMFS retains that option should the impact of treaty tribal fisheries on certain marine mammal species reach the threshold to apply the conservation necessity principle. Thus, NMFS retains the authority to regulate treaty fisheries under appropriate circumstances.
Response: In the final rule implementing section 118 of the MMPA (60 FR 45086, August 30, 1995) NMFS concluded that treaty tribal fisheries are conducted under the authority of Indian treaties; therefore, the MMPA's requirements in section 118 do not apply to treaty Indian tribal fisheries. NMFS explained this decision in the 1995 final rule stating (the remaining text in this paragraph is quoted directly from the final rule at 60 FR 45086, August 30, 1995), `` the rights to fish and hunt are already secured separately for Northwest tribes pursuant to their treaties with the United States. NMFS reviewed the relationship of the Northwest Indian treaties to the MMPA and did not find clear evidence that Congress intended to abrogate treaty Indian rights. Section 14 of the Amendments to the MMPA (Public Law No. 103238) states ``Nothing in this Act, including any amendments to the Marine Mammal Protection Act of 1972 made by this Act alters or is intended to alter any treaty between the United States and one or more Indian tribes. '' This provision clarifies that existing treaty Indian fishing rights are not affected by the amendments to the MMPA. Therefore, tribal fisheries are conducted under the authority of the Indian treaties rather than the MMPA, and the MMPA's mandatory registration systems do not apply to treaty Indian fishers operating in their usual and accustomed fishing areas. Since inclusion of the treaty Indian fisheries in the LOF would also establish an obligation to obtain an MMPA registration under section 118, NMFS has deleted reference to tribal fisheries in the LOF. The registration requirements for Category I or II fisheries will not apply to treaty Indian tribes.'' (60 FR 45086, August 30, 1995.)
NMFS considered the public comments received on the proposed 2010 LOF, existing Indian treaties providing rights for tribal fisheries, the statutory provisions and context of the MMPA, and the legislative history of the 1994 amendments to the MMPA in evaluating whether the 1995 decision to exempt treaty tribal fisheries from the LOF should be changed due to Anderson v. Evans, 371 F.3d 475 (9th Cir. 2004). NMFS has determined that the facts and holding of Anderson v. Evans do not alter NMFS' original analysis in the final rule implementing section 118 of the MMPA (60 FR 45086, August 30, 1995). Anderson v. Evans applied to directed hunt of marine mammals and not incidental take of marine mammals by fishers. Section 118 of the MMPA specifically regulates incidental take of marine mammals by commercial fishers. The court in Anderson v. Evans did not address the treaty savings clause, which restricts the application of section 118 in the context of tribal treaty rights. In addition, NMFS continues to adhere to a policy of implementing the Federal trust responsibility by protecting treaty fishing rights of tribes. NMFS also will continue to work closely with the affected tribal governments on a governmenttogovernment basis to gather data on injuries and mortalities of marine mammals incidental to tribal fisheries. In light of the above, NMFS did not include in the 2010 LOF the treaty tribal fisheries where tribal fishers exercise their treatyprotected fishing rights.
Based on the information presented in the final 2008 SARs and provided in Indian Tribal selfreports, there is no indication that any marine mammal bycatch associated with tribal fisheries presents a biological concern for applicable stocks. In the event this becomes an issue, NMFS would consider invoking the treatyrights principle of ``conservation necessity'' to protect marine mammals.
The 2008 SARs show that nine species have been or are incidentally
seriously injured and killed in Pacific Northwest treaty tribe
fisheries, though many of these species have not been seriously injured
or killed in recent years. All of the takes by tribal fisheries listed
in the 2008 SARs are from nondepleted stocks of marine mammals. One
take occurring after publication of the 2008 SARs was from a depleted
stock. Below is a summary of the information provided in the 2008 SARs
as well as information available from tribal selfreporting since
publication of the 2008 SARs. Please see the 2008 SARs for more
detailed information on these stocks and/or their interactions with treaty tribal fisheries.
(1) California sea lions: Current estimates of annual serious
injury or mortality of this stock in tribal fisheries is zero to two animals/year. The stock's PBR level is 8,511.
(2) Harbor seal (OR/WA coast): The Northern WA marine set gillnet
(tribal fishery in coastal waters) fishery seriously injured or killed
3 harbor seals in 2000 and 6 in 2004. The PBR for this stock is 1,343
and the minimum total fishery mortality and serious injury is less than
10 percent of the PBR. Therefore, fishery mortality and serious injury
appears to be insignificant and approaching a zero mortality and serious injury rate.
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(3) Harbor seal (WA inland waters): The Puget Sound treaty and non
treaty sockeye salmon gillnet fishery seriously injured or killed one
harbor seal in 1994. The PBR for this stock is 771 and the minimum
estimated fishery mortality and serious injury for this stock appears
to be less than 10 percent of the PBR. Therefore, fishery mortality and
serious injury appears to be insignificant and a approaching zero mortality and serious injury rate.
(4) Harbor Porpoise (Northern CA/Southern OR): One harbor porpoise
mortality was documented for the Klamath River tribal salmon gillnet
fishery in 1995. The PBR for this stock is 259 and the minimum
estimated fishery mortality and serious injury for this stock appears
to be less than 10 percent of the PBR. Therefore, fishery mortality and
serious injury appears to be insignificant and approaching a zero mortality and serious injury rate.
(5) Harbor Porpoise (OR/WA coast): The Northern WA marine set
gillnet (tribal fishery in coastal waters) fishery seriously injured or
killed 3 harbor porpoise in 2000. In addition, 2 harbor porpoise (stock
unknown) were reported killed in 2004 in a Makah Tribal fishery (Makah
Tribe selfreports). Based on the range of the stock and the location
of the Makah fisheries, the animals were either part of the OR/WA coast
stock or the WA Inland Waters stock. The PBR for this stock is 277 and
the minimum estimated fishery mortality and serious injury for this
stock appears to be less than 10 percent of the PBR. Therefore, fishery
mortality and serious injury appears to be insignificant and approaching zero mortality and serious injury rate.
(6) Harbor Porpoise (WA inland waters): The Puget Sound treaty and
nontreaty sockeye salmon gillnet fishery seriously injured or killed
one harbor porpoise in 1994. As stated above, 2 harbor porpoise (stock
unknown) were reported killed in 2004 in a Makah Tribal fishery (Makah
Tribe selfreports). Based on the range of the stock and the location
of the Makah fisheries, the animals were either part of the OR/WA coast
stock or the WA Inland Waters stock. The PBR for this stock is 63.
While the status of the WA Inland Waters stock relative to its Optimum
Sustainable Population level and population trends is unknown, the
uncorrected estimate of abundance in Washington inland waters was significantly greater in 20022003 than in 1996.
(7) Dall's Porpoise (CA/OR/WA): The Puget Sound salmon drift
gillnet tribal fishery seriously injured or killed one Dall's porpoise
in the period from 2000 to 2004. The PBR for this stock is 318 and the
minimum estimated fishery mortality and serious injury for this stock
appears to be less than 10 percent of the PBR. Therefore, fishery
mortality and serious injury appears to be insignificant and approaching a zero mortality and serious injury rate.
(8) Sea otter (WA): Sea otters (WA) are managed by the U.S. Fish
and Wildlife Service. According to the Service's 2008 SAR, the Makah
Northern Washington marine setgillnet fishery seriously injured or
killed 11 sea otters over a period of 13 years between 1988 and 2001
(2008 SAR) and 2 sea otters in 2004 (Makah Indian Tribe selfreport).
The stock has increased at a rate of 8 percent since 1989. The PBR for
this stock is 11 per year. The Service was unable to determine whether
the level of humancaused mortalities and serious injuries are
insignificant and approaching a zero mortality and serious injury rate,
based on a lack of information on the level of all sources of human
caused serious injury and mortality of this stock. However, the current
population estimate of 1,125 is above the lower end of the Optimum
Sustainable Population (60 percent of the maximum carrying capacity for the stock) (2008 SAR).
In addition to the information provided in the 2008 SARs, recent
selfreports from the Makah Indian Tribe show additional serious injury
and mortality of marine mammal stocks not yet represented in the SARs
(see comment 3 above). The Makah Indian Tribe's selfreported data
indicate that Makah fisheries interacted with three marine mammal stocks in 2008 and 2009.
(1) In 2009, a gray whale was entangled in a Makah fishery and
released alive. The Eastern North Pacific gray whales are currently
considered to be at the stock's Optimum Sustainable Population size (2008 SAR).
(2) In 2008, a Steller sea lion was killed in a Makah fishery.
Based on the geographical range of the species, this animal was most
likely from the Eastern stock of Steller sea lions, which is listed as
threatened under the ESA and therefore considered depleted under the
MMPA. Based on currently available data, the minimum estimated U. S.
commercial fisheryrelated mortality and serious injury for Eastern
Steller sea lions is less than that 10 percent of the stock's PBR of
200 per year; therefore, fishery mortality and serious injury appears
to be insignificant and approaching a zero mortality and serious injury
rate (2008 SAR). In addition, the Eastern Steller sea lion population
has been consistently increasing at an overall annual rate of 3.1
percent throughout most of the range (Oregon to southeastern Alaska),
which may indicate that this stock is reaching Optimum Sustainable Population size (2008 SAR).
(3) In 2008, 3 harbor porpoises were killed in a Makah fishery.
While the stock is unknown, based on the geographic range of the stock
and the location of the Makah fisheries, the animals were either part
of the OR/WA coast stock or the WA Inland Waters stock. As stated
above, the PBR for this OR/WA coast stock is 277 and the minimum
estimated fishery mortality and serious injury for this stock appears
to be less than 10 percent of the PBR. Therefore, fishery mortality and
serious injury appears to be insignificant and approaching zero
mortality and serious injury rate. Also stated above, while the status
of the WA Inland Waters stock relative to its Optimum Sustainable
Population level and population trends is unknown, the uncorrected
estimate of abundance in Washington inland waters was significantly greater in 20022003 than in 1996 (2008 SARs).
NMFS will continue to work closely with the affected tribal governments on a governmenttogovernment basis to gather data on injuries and mortalities of marine mammals incidental to tribal fisheries.
General Comments
Comment 6: The MMC recommended, based on their recommendation that
tribal fisheries be included on the LOF (comment/response 2 above),
that NMFS notify all treaty tribes believed to be engaged in hunting
that any directed taking of marine mammals requires authorization under
the MMPA. In reviewing the SARs prepared by NMFS under section 117 of
the MMPA, the MMC noted that tribal hunting of harbor seals and
California sea lions is included as a possible source of mortality. The
MMC asserted that if such hunting is in fact ongoing, it would be
subject to the same analysis as the proposed taking of gray whales at
issue in Anderson v. Evans and would presumably require authorization under the MMPA.
Response: NMFS acknowledges this comment; however, this comment is
not applicable to the LOF rulemaking at hand. The LOF categorizes
fisheries based solely on the incidental, not intentional, serious
injury and mortality to marine mammals. However, this comment is
relevant to the SARs rulemaking process; therefore, NMFS will address
this comment as part of the comments received during the comment period for the proposed 2009 SARs
[[Page 58867]]
(June 26, 2009September 24, 2009; overlapping with the comment period for the proposed 2010 LOF).
Comment 7: The MMC recommended NMFS incorporate into the applicable SARs language similar to that included in the SAR for the Washington stock of sea otters prepared by the U.S. Fish and Wildlife Service to clarify that, in accordance with the ruling in Anderson v. Evans, any such taking requires authorization under the MMPA.
Response: NMFS acknowledges this comment; however, this comment is not applicable to the LOF rulemaking at hand. This comment is relevant to the SARs rulemaking process; therefore, NMFS will address this comment as part of the comments received during the comment period for the proposed 2009 SARs (June 26, 2009September 24, 2009; overlapping with the comment period for the proposed 2010 LOF).
Comment 8: The Garden State Seafood Association (GSSA) requested that NMFS provide the number of vessels which reported landings for specific fisheries and gear types, along with estimated number of vessels or persons in individual fisheries currently reported on the LOF. The GSSA noted that this information would be specifically pertinent when considering the ``Mid Atlantic midwater trawl'' fishery and the ``Northeast midwater trawl'' fishery. The GSSA stated that recently the number of vessels who reported landings using a midwater trawl in the MidAtlantic was approximately 17 vessels.
Response: NMFS agrees that including information on the number of vessels landing catches to compare to the estimated number of permit holders could be helpful for providing an accurate description of effort in each fishery. However, while this information is readily available for some fisheries, gathering this information in other fisheries may be more complicated. It is unclear if the information would be readily available from state agencies. NMFS will consult with the responsible state agencies and consider incorporating this additional data for each fishery in future LOFs.
Comment 9: The CBD reiterated a comment made on the 2009 LOF that the LOF lists over 40 fisheries that are known to interact with ESA listed marine mammals. Only one fishery, the ``CA/OR thresher shark/ swordfish drift gillnet'' fishery, has authorization to take ESAlisted marine mammals. The CBD asserted that each of the other fisheries is therefore operating in violation of the both the ESA and MMPA. The CBD further asserted that NMFS must either issue permits for these fisheries authorizing take under these statutes, or take appropriate enforcement action, including, as necessary, closure of the fisheries, to ensure such illegal take does not continue to occur.
Response: NMFS received a similar comment on the 2009 LOF. As noted in NMFS' response to comments in the final 2009 LOF (73 FR 73032, December 1, 2008; comment/response 2), the CBD's comment refers to how NMFS authorizes takes of ESA listed marine mammals incidental to commercial fishing. The MMPA requires fishermen to obtain a permit granted under section 101(a)(5)(E) of the MMPA if they participate in a fishery that takes ESAlisted marine mammals. A 101(a)(5)(E) permit does not authorize the operation of a fishery. Instead, a 101(a)(5)(E) permit authorizes the incidental take of ESAlisted marine mammals in commercial fisheries, if certain provisions are met. Any incidental take of an ESAlisted species in an otherwise legallyoperating fishery, without a 101(a)(5)(E) permit, is not authorized. If an ESA listed species is taken by a fishermen in a fishery that has not been granted a MMPA 101(a)(5)(E) permit, then the fisher may be subject to enforcement proceedings.
NMFS acknowledges that the LOF includes fisheries in which ESA listed species are listed as incidentally killed or injured, but for which NMFS has not issued a permit under section 101(a)(5)(E) of the MMPA. To issue a permit under section 101(a)(5)(E) of the MMPA, NMFS must determine that (1) the incidental mortality and serious injury from commercial fisheries will have a negligible impact on such species and stocks; (2) a recovery plan has been developed or is being developed for such species or stock pursuant to the ESA; and (3) where required under section 118 of the MMPA, a monitoring program is established, vessels engaged in such fisheries are registered, and a take reduction plan has been developed or is being developed for such species or stock. NMFS is continuing this process of making these determinations in various fisheries on the LOF. Since the publication of the final 2009 LOF, NMFS has been reviewing available bycatch data for ESAlisted species in fisheries on the LOF.
Comment 10: The CBD reiterated a comment made on the 2008 and 2009 LOFs that the proposed 2010 LOF includes a table of fisheries subject to take reduction teams. While CBD found this table is very useful, they noted that there are Category I and II fisheries not yet subject to take reduction teams that also meet the statutory criteria for the convening of such teams. The CBD asserted that Category I and II fisheries not yet subject to take reduction teams which interact with strategic stocks must have take reduction teams promptly convened. The CBD viewed the Hawaii pelagic longline fishery as the highest priority for such a team as take continues to exceed PBR for the false killer whale.
Response: NMFS received similar comments on the 2008 and 2009 LOFs. As noted in the responses to comments on the 2008 LOF (72 FR 66048, November 27, 2007; comment/response 6) and 2009 LOF (73 FR 73032, December 1, 2008; comment/response 3), at this time, NMFS' resources for TRTs are fully utilized and new TRTs will be initiated when additional resources become available. When NMFS lacks sufficient funding to convene a TRT for all stocks that interact with Category I and II fisheries, NMFS will give highest priority for developing and implementing new take reduction plans to species and stocks whose level of incidental mortality and serious injury exceeds PBR, has a small population size, and are declining most rapidly, pursuant to MMPA section 118(f)(3).
Comment 11: The CBD reiterated a comment made on the 2009 LOF that the LOF once again includes ``Marine Aquaculture Fisheries'' as Category III fisheries. As stated in the past, the CBD does not believe aquaculture facilities are properly considered ``commercial fishing operations'' eligible for the take authorization contained in Section 118 of the MMPA. The CBD asserted that these facilities and activities, to the degree they interact with marine mammals, should be subject to the take prohibitions and permitting regimes contained in Section 101 of the MMPA.
Response: NMFS received a similar comment on the 2009 LOF. As noted
in the responses to comments on the 2009 LOF (73 FR 73032, December 1,
2008; comment/response 5), eight aquaculture fisheries are listed on
the MMPA LOF, all as Category III fisheries. NMFS' regulations
implementing section 118 of the MMPA (50 CFR 229) specifically include
aquaculture as a commercial fishing operation. 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
[[Page 58868]]
MMPA, including inclusion on the annual LOF.
Comment 12: Consistent with its recommendations regarding the 2005 through 2009 LOFs, the MMC reiterated its previous recommendation that NMFS indicate the level of observer coverage for each fishery as part of the LOF.
Response: NMFS received similar comments on the 2005 through 2009 LOFs. As noted in the responses to comments on the 2005 LOF (71 FR 247, January 2, 2006; comment/response 6), 2006 LOF (71 FR 48802, August 22, 2006; comment response 4), 2007 LOF (72 FR 14466, March 28, 2007; comment/response 8), 2008 LOF (72 FR 66048, November 27, 2007; comment/ response 4), and 2009 LOF (73 FR 73032, December 1, 2008; comment/ response 1), NMFS continues to feel that the LOF is not the appropriate avenue for reporting this data because it will confuse rather than clarify if presented without all the associated information supplied in the SARs. Also, the LOF is not meant to be redundant to the SARs, but to base fishery classifications based on the information presented in the SARs.
NMFS continues to agree that observer coverage information would be useful for the reader to reference when determining whether a given fishery was adequately observed and no marine mammals were taken or the fishery was not adequately observed and mortality and serious injury may have occurred but were not documented. Therefore, NMFS is developing summaries for each Category I and II fishery on the LOF, which include a description of each fishery, the history of the fishery and it's interactions with marine mammals, and the level of observer coverage in recent years. When completed, these summaries will be placed on the NMFS Office of Protected Resources website for easy public access, the citation for which will be included in each LOF. NMFS hopes to have these summaries available for reference during the public comment period on the 2011 LOF.
NMFS also continues to refer readers to the SARs and the National Observer Program for information on observer coverage. The SARs can be accessed through the NMFS Office of Protected Resources' Web site at http://www.nmfs.noaa.gov/pr.sars/. Additional information can also be found on the National Observer Program Web site at http:// www.st.nmfs.gov/st4/nop/.
Comment 13: The Marine Conservation Alliance (MCA) stated that there is a significant legal and structural issue associated with the fishery categorization process which is completely ignored by NMFS. The MCA asserted that the formula NMFS has developed for placing fisheries into Category I, II, or III is arbitrary and capricious and may well violate the equal protection and due process clauses of the U.S. Constitution. The MCA asserted that if a fishery is the only one interacting with a strategic marine mammal stock and it is responsible for the serious injury or death of 1 percent of the PBR, the fishery is placed into Category III and subject to no further regulation under this section of the MMPA. However, the MCA stated that if a second and new fishery enters the scene and it is responsible for taking 10 percent or more of the PBR, then
FOR FURTHER INFORMATION CONTACT
Melissa Andersen, Office of Protected Resources, 3017132322; David Gouveia, Northeast Region, 9782819280; Anne Ney, Southeast Region, 7275515758; Elizabeth Petras, Southwest Region, 5629803238; Brent Norberg, Northwest Region, 2065266733; Bridget Mansfield, Alaska Region, 9075867642; Lisa Van Atta, Pacific Islands Region, 8089442257. Individuals who use a telecommunications device for the hearing impaired may call the Federal Information Relay Service at 18008778339 between 8 a.m. and 4 p.m. Eastern time, Monday through Friday, excluding Federal holidays.