69 FR 71 pgs. 19365-19386 - List of Fisheries for 2004
Type: PRORULEVolume: 69Number: 71Pages: 19365 - 19386
Docket number: [Docket No. 040407106-4106-01, I.D. 040104A]
FR document: [FR Doc. 04-8383 Filed 4-12-04; 8:45 am]
Agency: Commerce Department
Sub Agency: National Oceanic and Atmospheric Administration
Official PDF Version: PDF Version
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 229
[Docket No. 040407106-4106-01, I.D. 040104A]
RIN 0648-AS04
List of Fisheries for 2004
AGENCY:
National Marine Fisheries Service (NMFS),National Oceanic and Atmospheric Administration (NOAA), Department ofCommerce.
ACTION:
Proposed rule.
SUMMARY:
The National Marine Fisheries Service (NMFS) ispublishing the proposed List of Fisheries (LOF) for 2004, as required bythe Marine Mammal Protection Act (MMPA). The proposed LOF for 2004reflects new information on interactions between commercial fisheries andmarine mammals. NMFS must categorize each commercial fishery on the LOFinto one of three categories under the MMPA based upon the level of seriousinjury and mortality of marine mammals that occurs incidental to eachfishery. The categorization of a fishery in the LOF determines whetherparticipants in that fishery are subject to certain provisions of the MMPA,such as registration, observer coverage, and take reduction planrequirements.
DATES:
Comments must be received by May 13, 2004.
ADDRESSES:
Send comments to Chief, Marine MammalConservation Division, Attn: List of Fisheries, Office of ProtectedResources, NMFS, 1315 East-West Highway, Silver Spring, MD 20910.Comments may also be sent via email to 2004LOF.comments@noaa.gov or to the Federal eRulemakingportal: http://www.regulations.gov (follow instructions forsubmitting comments).
Comments regarding the burden-hour estimates,or any other aspect of the collection of information requirements containedin this proposed rule, should be submitted in writing to the Chief, MarineMammal Conservation Division, Office of Protected Resources, NMFS, 1315East-West Highway, Silver Spring, MD 20910 and to David Rostker, OMB, bye-mail at David_Rostker@omb.eop.gov or by fax to202-395-7285.
See SUPPLEMENTARY INFORMATION for information on how to obtain registration information, materials, andmarine mammal reporting forms.
FOR FURTHER INFORMATION CONTACT:
Kristy Long, Officeof Protected Resources, 301-713-1401; Kim Thounhurst, NortheastRegion, 978-281-9328; Juan Levesque, Southeast Region,727-570-5312; Cathy Campbell, Southwest Region,562-980-4060; Brent Norberg, Northwest Region,206-526-6733; Bridget Mansfield, Alaska Region,907-586-7642. Individuals who use a telecommunications devicefor the hearing impaired may call the Federal Information Relay Service at1-800-877-8339 between 8 a.m. and 4 p.m. Eastern time,Monday through Friday, excluding Federal holidays.
SUPPLEMENTARY INFORMATION:
Registration information,materials, and marine mammal reporting forms may be obtained from thefollowing regional offices:
NMFS, Northeast Region, One Blackburn Drive, Gloucester, MA01930-2298, Attn: Marcia Hobbs;
NMFS, Southeast Region, 9721 Executive Center Drive North, St.Petersburg, FL 33702, Attn: Teletha Griffin;
NMFS, Southwest Region, Protected Species Management Division, 501 W.Ocean Blvd., Suite 4200, Long Beach, CA 90802-4213, Attn: DonPeterson;
NMFS, Northwest Region, 7600 Sand Point Way NE, Seattle, WA 98115, Attn:Permits Office; or
NMFS, Alaska Region, Protected Resources, P.O. Box 22668, 709 West 9thStreet, Juneau, AK 99802.
What is the List of Fisheries?
Section 118 of the MMPA requires that NMFS place all U.S. commercialfisheries into one of three categories based on the level of incidentalserious injury and mortality of marine mammals that occurs in each fishery(16 U.S.C. 1387 (c)(1)). The categorization of a fishery in the LOFdetermines whether participants in that fishery may be required to complywith certain provisions of the MMPA, such as registration, observercoverage, and take reduction plan requirements. NMFS must reexamine theLOF annually, considering new information in the Stock Assessment Reports,other relevant sources, and the LOF, and publish in the FederalRegister any necessary changes to the LOF after notice and opportunityfor public comment (16 U.S.C. 1387 (c)(3)).
How Does NMFS Determine in which Category a Fishery is Placed?
The definitions for the fishery classification criteria can be found inthe 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 allfisheries on each marine mammal stock, and then addresses the impact ofindividual fisheries on each stock. This approach is based onconsideration of the rate, in numbers of animals per year, of incidentalmortalities and serious injuries of marine mammals due to commercialfishing operations relative to the Potential Biological Removal (PBR) levelfor each marine mammal stock. The MMPA (16 U.S.C. 1362 (20)) defines thePBR level as the maximum number of animals, not including naturalmortalities, that may be removed from a marine mammal stock while allowingthat stock to reach or maintain its optimum sustainable population. Thisdefinition can also be found in the implementing regulations for section118 at 50 CFR 229.2
Tier 1: If the total annual mortality and serious injuryacross all fisheries that interact with a stock is less than or equal to 10percent of the PBR level of the stock, all fisheries interacting with thestock would be placed in Category III. Otherwise, these fisheries aresubject to the next tier (Tier 2) of analysis to determine theirclassification.
Tier 2, Category I: Annual mortality and serious injuryof a stock in a given fishery is greater than or equal to 50 percent of thePBR level.
Tier 2, Category II: Annual mortality and serious injuryof a stock in a given fishery is greater than 1 percent and less than 50percent of the PBR level.
Tier 2, Category III: Annual mortality and seriousinjury of a stock in a given fishery is less than or equal to 1 percent ofthe PBR level.
While Tier 1 considers the cumulative fishery mortality and seriousinjury for a particular stock, Tier 2 considers fishery-specific mortalityand serious injury for a particular stock. Additional details regardinghow the categories were determined are provided in the preamble to thefinal rule implementing section 118 of the MMPA (60 FR 45086, August 30,1995).
Since fisheries are categorized on a per-stock basis, a fishery mayqualify as one Category for one marine mammal stock and another Categoryfor a different marine mammal stock. A fishery is typically categorized onthe LOF at its highest level of classification (e.g., a fishery thatqualifies for Category III for one marine mammal stock and for Category IIfor 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 ofincidental mortality and serious injury of marine mammals by a commercialfishery, NMFS will determine whether the incidental serious injury ormortality qualifies for Category II by evaluating other factors such asfishing techniques, gear used, methods used to deter marine mammals, targetspecies, seasons and areas fished, qualitative data from logbooks or fisherreports, stranding data, and the species and distribution of marine mammalsin the area, or at the discretion of the Assistant Administrator forFisheries (50 CFR 229.2).
How Do I Find Out if a Specific Fishery is in Category I, II, orIII?
This proposed rule includes two tables that list all U.S. commercialfisheries by LOF Category. Table 1 lists all of the fisheries in thePacific Ocean (including Alaska). Table 2 lists all of the fisheries inthe Alantic Ocean, Gulf of Mexico, and Caribbean.
Am I Required to Register Under the MMPA?
Owners of vessels or gear engaging in a Category I or II fishery arerequired under the MMPA (16 U.S.C. 1387(c)(2)), as described in 50 CFR229.4, to register with NMFS and obtain a marine mammal authorization fromNMFS in order to lawfully incidentally take a marine mammal in a commercialfishery. Owners of vessels or gear engaged in a Category III fishery arenot required to register with NMFS or obtain a marine mammalauthorization.
How Do I Register?
Fishers must register with the Marine Mammal Authorization Program(MMAP) by contacting the relevant NMFS Regional Office (see ADDRESSES ) unless they participate in a fishery that has anintegrated registration program (described below). Upon receipt of a completed registration, NMFS will issue vessel or gear owners physicalevidence of a current and valid registration that must be displayed or inthe possession of the master of each vessel while fishing in accordancewith section 118 of the MMPA (16 U.S.C. 1387(c)(3)(A)).
What is the Process for Registering in an Integrated Fishery?
For some fisheries, NMFS has integrated the MMPA registration processwith existing state and Federal fishery license, registration, or permitsystems and related programs. Participants in these fisheries areautomatically registered under the MMPA and are not required to submitregistration or renewal materials or pay the $25 registration fee.Following is a list of integrated fisheries and a summary of theintegration process for each Region. Fishers who operate in an integratedfishery and have not received registration materials should contact theirNMFS Regional Office listed in the first paragraph of SUPPLEMENTARYINFORMATION.
Which Fisheries Have Integrated Registration Programs?
The following fisheries have integrated registration programs under theMMPA:
1. All Alaska Category II fisheries;
2. All Washington and Oregon Category II fisheries;
3. Northeast Regional fisheries for which a state or Federal permit isrequired. Individuals fishing in fisheries for which no state or Federalpermit is required must register with NMFS by contacting the NortheastRegional Office (see ADDRESSES); and
4. All North Carolina, South Carolina, Georgia, and Florida Category Iand II fisheries for which a state permit is required.
How Do I Renew My Registration Under the MMPA?
Regional Offices, except for the Northeast Region, annually sendrenewal packets to participants in Category I or II fisheries that havepreviously registered; however, it is the responsibility of the fisher toensure that registration or renewal forms are completed and submitted toNMFS at least 30 days in advance of fishing. Individuals who have notreceived a renewal packet by January 1 or are registering for the firsttime should request a registration form from the appropriate RegionalOffice (see ADDRESSES ).
Am I Required to Submit Reports When I Injure or Kill a Marine MammalDuring the Course of Commercial Fishing Operations?
In accordance with the MMPA (16 U.S.C. 1387(e)) and 50 CFR 229.6, anyvessel owner or operator, or fisher (in the case of non-vessel fisheries),participating in a Category I, II, or III fishery must report allincidental injuries or mortalities of marine mammals that occur duringcommercial fishing operations to NMFS. "Injury" is defined in50 CFR 229.2 as a wound or other physical harm. In addition, any animalthat ingests fishing gear or any animal that is released with fishing gearentangling, trailing, or perforating any part of the body is consideredinjured, regardless of the absence of any wound or other evidence of aninjury, and must be reported. Instructions on how to submit reports can befound 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 toaccommodate an observer aboard vessel(s) upon request. Observerrequirements can be found in 50 CFR 229.7.
Am I Required to Comply With Any Take Reduction PlanRegulations?
Fishers participating in a Category I or II fishery are required tocomply with any applicable take reduction plans.
Sources of Information Reviewed for the Proposed 2004 LOF
NMFS reviewed the marine mammal incidental serious injury and mortalityinformation presented in the Stock Assessment Reports (SARs) for allobserved fisheries to determine whether changes in fishery classificationwere warranted. NMFS SARs are based on the best scientific informationavailable at the time of preparation for the information presented in theSARs, including the level of serious injury and mortality of marine mammalsthat occurs incidental to commercial fisheries and the potential biologicalremoval (PBR) levels of marine mammal stocks. NMFS also reviewed othersources of new information, including marine mammal stranding data,observer program data, fisher self-reports, and other information that isnot included in the SARs. NMFS also took into account the discretion ofthe Assistant Administrator for Fisheries in developing the 2004 proposedLOF.
The information contained in the SARs is reviewed by regional scientificreview groups (SRGs) representing Alaska, the Pacific (including Hawaii),and the U.S. Atlantic, Gulf of Mexico, and the Caribbean. The SRGs werecreated by the MMPA to review the science that goes into the stockassessment reports, and to advise NMFS on population status and trends,stock structure, uncertainties in the science, research needs, and otherissues.
The proposed LOF for 2004 was based, among other things, on informationprovided in the final SARs for 1996 (63 FR 60, January 2, 1998), the finalSARs for 2001 (67 FR 10671, March 8, 2002), the final SARs for 2002 (68 FR17920, April 14, 2003), and the draft SARs for 2003 (68 FR 51561, August27, 2003).
Summary of Changes to the Proposed LOF for 2004
The following summarizes changes in fishery classification includingfisheries listed on the LOF, the number of participants in a particularfishery, and the species and/or stocks that are incidentally killed orseriously injured in a particular fishery, that are proposed for the 2004LOF. The placement and definitions of U.S. commercial fisheries proposedfor 2004 are identical to those provided in the LOF for 2003 with thefollowing exceptions.
Commercial Fisheries in the Pacific Ocean: FisheryClassification
Hawaii Swordfish, Tuna, Billfish, Mahi Mahi, Wahoo, Oceanic SharksLongline/Set Line Fishery
NMFS proposes to reclassify the Hawaii Swordfish, Tuna, Billfish, MahiMahi, Wahoo, Oceanic Sharks Longline/Set Line Fishery (Hawaii longlinefishery) as Category I under the MMPA primarily because of the level ofincidental mortality and serious injury that occurs between this fisheryand the Hawaiian stock of false killer whales ( Pseudorcacrassidens ). However, NMFS also has information regarding incidentalmortality and serious injury that occurs between this fishery and theHawaiian stock of Risso's dolphins ( Grampus griseus ),Hawaiian stock of bottlenose dolphins ( Tursiops truncatus ),Hawaiian stock of spinner dolphins ( Stenella longirostris ),Hawaiian stock of pantropical spotted dolphins ( Stenellaattenuata ), Hawaiian stock of short-finned pilot whales ( Globicephala macrorhynchus ), Hawaiian stock of Blainville'sbeaked whales ( Mesoplodon densirostris ), Hawaiian stock ofsperm whales ( Physeter macrocephalus ) and the Central NorthPacific stock of humpback whales ( Megapteranovaeangliae ).
In 2002, NMFS surveyed cetacean abundance, including the Hawaiian stockof false killer whales, in waters where the Hawaii longline fisheryoperated, a survey that would allow for a better estimate of abundance anda more reliable PBR level and better estimates of mortality and seriousinjury in marine mammal stocks taken by this fishery. This surveyaddressed the limitations of the earlier survey data, discussed in the 2001and 2003 LOFs (66 FR 42780, August 15, 2001; 68 FR 41725, July 15, 2003)and the need for these data was emphasized in the 2001 LOF. The 2002Pacific and Alaska SARs provided data about these stocks of marine mammalsand calculated a rate of interaction between the Hawaii longline fisheryand each stock based on observer data. As a result, false killer whales(Hawaiian stock) were determined to be a strategic stock in 2002. However,the surveys were not completed prior to the 2002 LOF and these data werenot completely analyzed prior to the completion of the 2003 LOF. Further,the abundance estimate on which the PBR was based was considered anunderestimate because it was based on 1993-98 aerial surveysconducted only within approximately 25 nautical miles of the main HawaiianIslands, not throughout the entire range of the false killer whale stock.For these reasons, NMFS left in place the fishery's classification as aCategory III fishery in 2002 and 2003 based on the limitations of availableinformation, and the need to review other relevant sources in 2004.
Information Available for the 2004 LOF That was Not Available for the2003 LOF
Abundance information: The results of the 2002 surveysin the Hawaiian EEZ are now available (Barlow, 2003. Cetacean Abundance inHawaiian Waters during Summer/Fall of 2002, referenced as PSRG-7),and these have been combined with the earlier aerial surveys within 25 nmiof the main Hawaiian Islands (Mobley et al. 2000) to producean estimate of the abundance of false killer whales in the Hawaiian EEZ.The methods used in the surveys followed standard survey techniques and aredescribed in the scientific papers cited above. The method for combiningthe results of the two surveys followed standard statistical procedures.The 2002 survey of the entire Hawaiian Islands Exclusive Economic Zone(EEZ) resulted in an abundance estimate for false killer whales (Hawaiianstock) of 268 individuals (based on the lower 85-percent confidenceinterval), a slight increase from the previous estimate.
Mortality information: The results of an expandedobserver program in the Hawaiian longline fishery are now available (Forney2003. Estimates of Cetacean Mortality and Injury in the Hawaii BasedLongline Fishery, 1994-2002. 11/4/2003). These mortality and seriousinjury estimates were based upon a long-term data set, with expandedobserver coverage between 2000 and 2002 primarily in tuna-style fishing.These data allowed an evaluation of the suggestion that tuna-style fishingresulted in little to no (remote likelihood) injury or mortality of marinemammals. Since 1998, only one false killer whale has been observed killedin the Hawaiian EEZ.
As a result of these data, updated abundance and mortality estimateshave been included in the 2004 draft stock assessment report for theHawaiian stock of false killer whales (False Killer Whale ( Pseudorca crassidens ): Hawaiian stock, dated 11/15/2003).This report describes abundance, mortality and status of false killerwhales and partitions serious injury and mortality of the stock within andoutside the US EEZ. All of the above reports have been subjected toscientific review within NMFS and are the best scientific informationavailable related to abundance and mortality of false killer whales in thearea.
New Management Regime and Effort Reduction for theFishery: NMFS approved a regulatory amendment under the FisheryManagement Plan for the Pelagic Fisheries of the Western Pacific Region(FMP) submitted by the Western Pacific Fishery Management Council(Council), published a proposed rule on January 28, 2004, and issued afinal rule on April 2, 2004 (69 FR 17329) to establish a number ofconservation and management measures for the fisheries managed under theFMP in order to provide adequate protections for sea turtles. On February23, 2004, NMFS concluded consultation and issued a biological opinion undersection 7 of the Endangered Species Act on the pelagic fisheries of thewestern Pacific region as they would be managed under the measuresimplemented through this final rule. The biological opinion found that thefisheries are not likely to jeopardize the continued existence of anyESA-listed species under the jurisdiction of NMFS.
That final rule reopened the swordfish-directed component of theHawaii-based longline fishery with annual fleet-wide limits on fisheryinteractions with leatherback and loggerhead sea turtles, and an annualfleet-wide limit on fishing effort. The final rule also requires thatoperators of general longline vessels annually complete a protected speciesworkshop and have on board a valid protected species workshop certificate.
To implement the regulatory amendment proposed by the Council, the finalrule: (1) Establishes an annual effort limit on the amount of shallow-setlongline fishing effort north of the equator that may be collectivelyexerted by Hawaii-based longline vessels (2,120 shallow-sets per year) and(2) divides and distributes this shallow-set annual effort limit eachcalendar year in equal portions to all holders of Hawaii longline-limitedaccess permits. The interaction limits for leatherback and loggerhead seaturtles may also limit, albeit indirectly, interactions with otherprotected species, such as false killer whales, in the shallow-setcomponent of the Hawaii-based longline fishery. Furthermore, under theESA, when any of the incidental take limits is exceeded, NMFS reinitiatesconsultation under section 7 of the ESA, at which point the need for morerestrictive measures would be considered. The terms and conditions of theincidental take statement in the 2004 biological opinion also mandate100-percent observer coverage in the shallow-set component of theHawaii-based longline fishery and at least 20-percent coverage in thedeep-set component. NMFS intends to implement these levels of coverage.Given the relatively long history of the deep-set component and ourunderstanding of patterns of fishing, catches, and interactions withprotected species, NMFS has determined 20 percent to be a sufficient levelof coverage in the deep-set component of the fishery.
Tier Evaluation
Tier 1 Evaluation: The Hawaii longline fishery is theonly fishery known to interact with the Hawaiian stock of false killerwhales. Based on the currently available data, total annual incidentalmortality and serious injury across all fisheries (in this case, just theHawaii longline fishery) is greater than or equal to 10 percent of the PBRlevel for the Hawaiian stock of false killer whales. Therefore, the Hawaiilongline fishery is subject to Tier 2 analysis.
Tier 2 Evaluation: Based on extrapolations from thecurrently available data, total annual mortality and serious injury (4.4animals) of the Hawaiian stock of false killer whales exceeds 50 percent ofthe PBR level (PBR=1.2). The continued take of false killer whales andother cetaceans, including endangered humpback and sperm whales, warrantrecategorization of the fishery. Therefore, NMFS recommends elevating thisfishery to Category I in the 2004 LOF.
Justification for Category I Classification
A mathematical application of the regulations based on the currentlyavailable data indicates that the total annual mortality and serious injury(4.4 animals) of the Hawaiian stock of false killer whales exceeds 50percent of the PBR level (PBR=1.2). Therefore, NMFS is proposing torecategorize this fishery to a Category I under the MMPA. However, asexplained below, NMFS is concerned that such a categorization may notadequately reflect the impact of this fishery on false killer whales.Accordingly, during the public comment period for this proposed rule, theNMFS Pacific Island Region will convene a workshop to evaluate theinformation used in this proposed categorization. The workshop willconsist of NMFS scientists and managers as well as other individualsknowledgeable in marine mammal population assessments and interactions withfishing gear. The workshop will provide guidance on the reliability andadequacy of available information, including information on mortality andserious injury, used in the tier analysis and subsequent categorizationdecision. NMFS will consider the results of the workshop and publiccomments received on this proposed rule in its decision to classify thisfishery in the final LOF for 2004.
In the case of the Hawaii longline fishery, the classification isaffected most by incidental mortality and serious injury of false killerwhales. The mortality estimate is considered reliable in recent yearsbecause it is based upon a relatively high level of observer coverage inthe fishery. The single mortality of a false killer whale in 1998 withinthe EEZ is the basis for the expanded mortality estimate. The averagemortality used in the LOF comparisons to abundance are based on a5-year average. So if no further mortalities occur in 2004, thissingle event will no longer be considered in the 5-year average in2005.
The abundance estimate of 268 animals is currently the best availablefor this stock and represents a much better estimate for this stock insidethe Hawaiian EEZ than estimates in previous years. However, the extent towhich the abundance estimate may be lower than the actual abundance offalse killer whales is unknown. As a result, the extent to which the PBRof 1.2 may also be considered an underestimate is unknown for this stock offalse killer whales. The uncertainty in the abundance and PBR estimateslikely overemphasizes the ratio between mortality and significant injury inthis fishery to PBR; therefore, the impact of this fishery on false killerwhales may be overemphasized.
As noted above, the interaction limits for sea turtles may also limit,albeit indirectly, interactions with other protected species, includingfalse killer whales, that occur in the shallow-set component of theHawaii-based longline fishery. The extent to which these measures reduceinteractions with marine mammal stocks is not known at this time.
In summary, the abundance (and subsequently, the PBR) of false killerwhales in the North Pacific Ocean is currently considered the bestavailable estimate. However, it remains a minimum estimate because thesurveys upon which the abundance estimate are based were limited in scopeto a portion of the range, the Hawaiian EEZ, of the false killer whalestock. It does indicate that the stock abundance is low within theHawaiian Island EEZ. Mortality records indicate that false killer whalesoccupy international waters and the EEZ around Palmyra, areas outside the2002 survey area. Clearly, the number of false killer whales in the NorthPacific Ocean subject to injury and mortality by the longline fisheryexceeds the minimum population estimate included in Barlow, 2003 but it isnot known by how much it is an underestimate. Such a conclusion can bebased simply upon the presence of false killer whales in internationalwaters and in the EEZ surrounding Palmyra that were hooked and killed orseriously injured incidental to the longline fishery.
The proposed reclassisfication of the Hawaii Longline Fishery to aCategory I is warranted based on the current information. However, NMFSintends to address the scientific bases for this conclusion at a workshopwhich will be held during the public comment period. As previouslyprovided, NMFS will consider the results of this workshop and publiccomments received on this proposed rule in its decision to classify thisfishery in the final LOF for 2004.
Delineation of Alaska Fisheries
The List of Fisheries has included the Alaska groundfish fisheries aslarge combinations of fisheries since 1990. In the 2003 final LOF (68 FR41725, July 15, 2003), NMFS indicated that it would review the existingfishery delineations in the LOF for Federal and state fisheries in Alaska.The decision to review Alaska fisheries was based, in part, on NMFS'recognition that the Bering Sea and Aleutian Islands (BSAI) groundfishtrawl fishery is not a homogenous fishery, but rather, a diverse group offisheries that target different groundfish species over distinct geographicareas within the Bering Sea and during different seasons. Marine mammalinteractions likely vary among BSAI groundfish trawl fisheries, based ongear type, time and area of operations, and target groundfish species.
NMFS also reviewed the Gulf of Alaska (GOA) Groundfish Trawl, Bering Seaand GOA Finfish Pot, AK Crustacean Pot, BSAI Groundfish Longline/Set Line(federally regulated waters, including miscellaneous finfish andsablefish), and GOA Groundfish Longline/Set Line (federally regulatedwaters, including miscellaneous finfish and sablefish) fisheries. Based onthis review, NMFS proposes to delineate these fisheries by target speciesand gear type.
NMFS seeks to collect and analyze data in a manner that providesinformation that allows for the most effective management of living marineresources, including marine mammals. Marine mammal interactions vary amongAlaska groundfish fisheries, based on time and area of operation, method ofgear deployment, and target groundfish species. Therefore, this proposeddelineation of fisheries operations is expected to allow for improvedresolution of factors affecting incidental mortality and serious injury ofmarine mammals in these fisheries. The proposed newly delineated fisheriesare currently listed within fisheries classified as Category III fisherieson the LOF. NMFS is completing an analysis of past incidental mortalityand serious injury for each of the proposed newly delineated fisheries inaccordance with the fishery classification criteria set forth in theimplementing regulations of section 118 of the MMPA (50 CFR part 229).NMFS proposes these newly delineated fisheries be added to the LOF asCategory III fisheries until completion of the analysis of serious injuryand mortality for these new fisheries.
Delineation of AK Bering Sea and Aleutian Islands Groundfish TrawlFishery
NMFS proposes separating the BSAI groundfish trawl fishery into fourfisheries based on target species. These four fisheries are: AKBering Sea and Aleutian Islands Atka Mackerel Trawl Fishery, AK Bering Seaand Aleutian Islands Flatfish Trawl Fishery, AK Bering Sea and AleutianIslands Pacific Cod Trawl Fishery, and AK Bering Sea and Aleutian IslandsPollock Trawl Fishery. These fisheries operate in generally differentgeographic areas and seasons, although some overlap may occur. Whereoverlap occurs, NMFS is able to differentiate in which fishery a vessel isoperating when incidental mortality and serious injury of a marine mammaloccurs through a combination of catch data, vessel monitoring systems (VMS)information, and observer data, even when a vessel participates in morethan one fishery on a given trip. These fisheries likewise are managedseparately by NMFS and the North Pacific Fishery Management Council.
Delineation of GOA Groundfish Trawl Fishery
NMFS proposes separating the GOA groundfish trawl fishery into fourfisheries based on target species. These four fisheries are: AKGulf of Alaska Flatfish Trawl Fishery, AK Gulf of Alaska Pacific Cod TrawlFishery, AK Gulf of Alaska Pollock Trawl Fishery, and AK Gulf of AlaskaRockfish Trawl Fishery.
Delineation of Bering Sea and GOA Finfish Pot Fishery
NMFS proposes separating the Bering Sea and GOA finfish pot fishery intofour fisheries based on target species. These four fisheries are: AK Aleutian Islands Sablefish Pot Fishery, AK Bering Sea SablefishPot Fishery, AK Bering Sea and Aleutian Islands Pacific Cod Pot Fishery,and AK Gulf of Alaska Pacific Cod Pot Fishery.
Delineation of Alaska Crustacean Pot Fishery
NMFS proposes separating the Alaska crustacean pot fishery into fourfisheries based on target species. These four fisheries are: AKSoutheast Alaska Shrimp Pot Fishery, AK Southeast Alaska Crab Pot Fishery,AK Gulf of Alaska Crab Pot Fishery, and AK Bering Sea and Aleutian IslandsCrab Pot Fishery.
Delineation of BSAI Groundfish Longline/Set Line Fishery (FederallyRegulated Waters, Including Miscellaneous Finfish and Sablefish)
NMFS proposes separating the BSAI groundfish longline/set line fisheryinto four fisheries based on target species. These four fisheries are: AK Bering Sea and Aleutian Islands Greenland Turbot LonglineFishery, AK Bering Sea and Aleutian Islands Pacific Cod Longline Fishery,AK Bering Sea and Aleutian Islands Rockfish Longline, and AK Bering Sea andAleutian Islands Sablefish Longline Fishery.
Delineation of GOA Groundfish Longline/Set Line Fishery (FederallyRegulated Waters, Including Miscellaneous Finfish and Sablefish)
NMFS proposes separating the GOA groundfish longline/set line fisheryinto four fisheries based on target species. These four fisheries are: AK Gulf of Alaska Sablefish Longline Fishery, AK Gulf of AlaskaPacific Cod Longline Fishery, AK Gulf of Alaska Flatfish Longline Fishery,and AK Gulf of Alaska Rockfish Longline.
Removal of Fisheries from the LOF
NMFS proposes removing the AK Bering Sea and Gulf of AlaskaFinfish Pot Fishery, AK Crustacean Pot Fishery, AK Bering Sea and AleutianIslands Groundfish Longline/Set Line Fishery (federally regulated waters,including miscellaneous finfish and sablefish), AK Gulf of AlaskaGroundfish Longline/Set Line Fishery (federally regulated waters, includingmiscellaneous finfish and sablefish), AK Bering Sea and Aleutian IslandsGroundfish Trawl Fishery, and AK Gulf of Alaska Groundfish TrawlFishery from the LOF. After reviewing these fisheries, NMFS isproposing to differentiate each fishery by target species and gear type,which more accurately reflect existing fishery management regimes inAlaska. Therefore, removing these fisheries will not negatively affectNMFS' ability to analyze and assess serious injury and mortality of marinemammals captured incidental to these fisheries. A description of theproposed delineation of these fisheries can be found above in the FisheryClassification section for the Pacific Ocean.
Number of Vessels/Persons
The estimated number of participants in the "OR Swordfish FloatingLongline Fishery" is updated to 1 based on 2003 permit data.
The estimated number of participants in the "WA Puget Sound RegionSalmon Drift Gillnet Fishery" is updated to 210 based on 2003 permitdata.
Commercial Fisheries in the Atlantic Ocean, Gulf of Mexico, andCaribbean: Fishery Classification
Gulf of Mexico Blue Crab Trap/Pot Fishery
In the 2003 LOF (68 FR 41725, July 15, 2003), NMFS provided that itwould work with the Gulf States Marine Fisheries Commission (GSMFC) and theSea Grant program to better monitor bottlenose dolphin takes in the"Gulf of Mexico Blue Crab Trap/Pot Fishery," to educate fishersabout marine mammal interaction issues and ways to reduce takes in thefishery, and to continue working on the derelict trap/pot removal program.The NMFS Southeast Regional Office has been working closely with the GSMFCand Sea Grant to develop outreach materials throughout the past year andanticipates distributing these materials in the near future. NMFS willcontinue to monitor strandings and communicate with fishers to determinethe effectiveness of outreach efforts.
NMFS has been unable to conduct abundance surveys or analyze Gulfbottlenose dolphin stock structure due to budgetary constraints.Therefore, the bottlenose dolphin stock structure in the Gulf of Mexico isstill not well defined at this time. Currently, the vast majority of NMFS'resources for bottlenose dolphin research is being expended in the AtlanticOcean to satisfy needs of the Atlantic Bottlenose Dolphin Take ReductionTeam. As the needs of this existing TRT are met, NMFS hopes to shiftresources to the Gulf of Mexico to better define bottlenose dolphin stockstructure in this area. NMFS will reevaluate classification of thisfishery as relevant information becomes available. However, NMFS does notpropose any change to the classification of this fishery because NMFS lacksadequate information at this time.
List of Fisheries
The following two tables list U.S. commercial fisheries according totheir assigned categories under section 118 of the MMPA. The estimatednumber of vessels/participants is expressed in terms of the number ofactive participants in the fishery, when possible. If this information isnot available, the estimated number of vessels or persons licensed for aparticular fishery is provided. If no recent information is available onthe number of participants in a fishery, the number from the most recentLOF is used.
The tables also list the marine mammal species and stocks that areincidentally killed or injured in each fishery based on observer data,logbook data, stranding reports, and fisher reports. This list includesall species or stocks known to experience injury or mortality in a givenfishery, but also includes species or stocks for which there are anecdotalor historical, but not necessarily current, records of interaction.Additionally, species identified by logbook entries may not be verified.Not all species or stocks identified are the reason for a fishery'splacement in a given category. There are a few fisheries that are inCategory II that have no recently documented interactions with marinemammals. Justifications for placement of these fisheries are by analogy toother gear types that are known to cause mortality or serious injury ofmarine mammals, as discussed in the final LOF for 1996 (60 FR 67063,December 28, 1995), and according to factors listed in the definition of"Category II fishery" in 50 CFR 229.2.
Table 1 lists commercial fisheries in the Pacific Ocean (includingAlaska); Table 2 lists commercial fisheries in the Atlantic Ocean, Gulf ofMexico, and Caribbean.
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Classification
The Chief Counsel for Regulation of the Department of Commerce certifiedto the Chief Counsel for Advocacy of the Small Business Administration thatthis proposed rule would not have a significant economic impact on asubstantial number of small entities. For convenience, the factual basisleading to the certification is repeated below.
Under existing regulations, all fishers participating inCategory I or II fisheries must register under the MMPA, obtain anAuthorization Certificate, and pay a fee of $25. Additionally, fishers maybe subject to a take reduction plan and requested to carry an observer.The Authorization Certificate authorizes the taking of marine mammalsincidental to commercial fishing operations. NMFS has estimated thatapproximately 41,600 fishing vessels, most of which are small entities,operate in Category I or II fisheries, and therefore, are required toregister. However, registration has been integrated with existing state orFederal registration programs for the majority of these fisheries so thatthe majority of fishers do not need to register separately under the MMPA.Currently, approximately 5,800 fishers register directly with NMFS underthe MMPA authorization program.
This rule proposes to elevate the Hawaii Swordfish, Tuna, Billfish, MahiMahi, Wahoo, Oceanic Sharks Longline/Set Line Fishery to Category I in theLOF. Therefore participants in this fishery (140 participants) would berequired to register under the MMPA.
Though this proposed rule would affect a number of small entities, the$25 registration fee, with respect to anticipated revenues, is notconsidered a significant economic impact. If a vessel is requested tocarry an observer, fishers will not incur any economic costs associatedwith carrying that observer. As a result of this certification, an initialregulatory flexibility analysis was not prepared. In the event thatreclassification of a fishery to Category I or II results in a takereduction plan, economic analyses of the effects of that plan will besummarized in subsequent rulemaking actions. Further, if a vessel isrequested to carry an observer, fishers will not incur any economic costsassociated with carrying that observer.
This proposed rule contains collection-of-information requirementssubject to the Paperwork Reduction Act. The collection of information forthe registration of fishers under the MMPA has been approved by the Officeof Management and Budget (OMB) under OMB control number 0648-0293(0.25 hours per report for new registrants and 0.15 hours per report forrenewals). The requirement for reporting marine mammal injuries ormoralities has been approved by OMB under OMB control number0648-0292 (0.15 hours per report). These estimates include the timefor reviewing instructions, searching existing data sources, gathering andmaintaining the data needed, and completing and reviewing the collection ofinformation. Send comments regarding these reporting burden estimates orany other aspect of the collections of information, including suggestionsfor reducing burden, to NMFS and OMB (see ADDRESSES ).
Notwithstanding any other provision of law, no person is required torespond to nor shall a person be subject to a penalty for failure to complywith a collection of information subject to the requirements of thePaperwork Reduction Act unless that collection of information displays acurrently valid OMB control number.
This proposed rule has been determined to be not significant for thepurposes of Executive Order 12866.
An environmental assessment (EA) was prepared under the NationalEnvironmental Policy Act (NEPA) for regulations to implement section 118 ofthe MMPA (1995 EA). The 1995 EA concluded that implementation of thoseregulations would not have a significant impact on the human environment.This proposed rule would not make any significant change in the managementof reclassified fisheries, and therefore, this proposed rule is notexpected to change the analysis or conclusion of the 1995 EA. If NMFStakes a management action, for example, through the development of a TakeReduction Plan (TRP), NMFS will first prepare an environmental document asrequired under NEPA specific to that action.
This proposed rule would not affect species listed as threatened orendangered under the Endangered Species Act (ESA) or their associatedcritical habitat. The impacts of numerous fisheries have been analyzed invarious biological opinions, and this proposed rule will not affect theconclusions of those opinions. The classification of fisheries on the LOFis not considered to be a management action that would adversely affectthreatened or endangered species. If NMFS takes a management action, forexample, through the development of a TRP, NMFS would conduct consultationunder section 7 of the ESA for that action.
This proposed rule would have no adverse impacts on marine mammals andmay have a positive impact on marine mammals by improving knowledge ofmarine mammals and the fisheries interacting with marine mammals throughinformation collected from observer programs or take reduction teams.
This proposed rule would not affect the land or water uses or naturalresources of the coastal zone, as specified under section 307 of theCoastal Zone Management Act.
Dated: April 8, 2004.
William T.Hogarth,
Assistant Administrator for Fisheries, NationalMarine Fisheries Service.
[FR Doc. 04-8383 Filed 4-12-04; 8:45 am]
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