List of Fisheries for 2016

AGENCY:

National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

ACTION:

Final rule.

SUMMARY:

The National Marine Fisheries Service (NMFS) publishes its final List of Fisheries (LOF) for 2016, as required by the Marine Mammal Protection Act (MMPA). The final LOF for 2016 reflects new information on interactions between commercial fisheries and marine mammals. NMFS must classify each commercial fishery on the LOF into one of three categories under the MMPA based upon the level of mortality and serious injury of marine mammals that occurs incidental to each fishery. The classification of a fishery on the LOF determines whether participants in that fishery are subject to certain provisions of the MMPA, such as registration, observer coverage, and take reduction plan (TRP) requirements. In addition, NMFS begins publishing online fact sheets for Category III fisheries on a rolling basis.

DATES:

The effective date of this final rule is May 9, 2016.

ADDRESSES:

Chief, Marine Mammal and Sea Turtle Conservation Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Silver Spring, MD 20910.

FOR FURTHER INFORMATION CONTACT:

Lisa White, Office of Protected Resources, 301-427-8494; Allison Rosner, Greater Atlantic Region, 978-281-9328; Jessica Powell, Southeast Region, 727-824-5312; Elizabeth Petras, West Coast Region, 206-526-6155; Bridget Mansfield, Alaska Region, 907-586-7642; Dawn Golden, Pacific Islands Region, 808-725-5000. Individuals who use a telecommunications device for the hearing impaired may call the Federal Information Relay Service at 1-800-877-8339 between 8 a.m. and 4 p.m. Eastern time, Monday through Friday, excluding Federal holidays.

SUPPLEMENTARY INFORMATION:

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 mortality and serious injury 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 (SARs) and other relevant sources, and publish in the Federal Register any necessary changes to the LOF after notice and opportunity for public comment (16 U.S.C. 1387 (c)(1)(C)).

How does NMFS determine in which category a fishery is placed?

The definitions for the fishery classification criteria can be found in the implementing regulations for section 118 of the MMPA (50 CFR 229.2). The criteria are also summarized here.

Fishery Classification Criteria

The fishery classification criteria consist of a two-tiered, stock-specific approach that first addresses the total impact of all fisheries on each marine mammal stock and then addresses the impact of individual fisheries on each stock. This approach is based on consideration of the rate, in numbers of animals per year, of incidental mortalities and serious injuries of marine mammals due to commercial fishing operations relative to the potential biological removal (PBR) level for each marine mammal stock. The MMPA (16 U.S.C. 1362 (20)) defines the PBR level as the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population. This definition can also be found in the implementing regulations for section 118 of the MMPA (50 CFR 229.2).

Tier 1: Tier 1 considers the cumulative fishery mortality and serious injury for a particular stock. 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 will 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: Tier 2 considers fishery-specific mortality and serious injury for a particular stock.

Category I: Annual mortality and serious injury of a stock in a given fishery is greater than or equal to 50 percent of the PBR level (i.e., frequent incidental mortality and serious injury of marine mammals).

Category II: Annual mortality and serious injury of a stock in a given fishery is greater than 1 percent and less than 50 percent of the PBR level (i.e., occasional incidental mortality and serious injury of marine mammals).

Category III: Annual mortality and serious injury of a stock in a given fishery is less than or equal to 1 percent of the PBR level (i.e., a remote likelihood of or no known incidental mortality and serious injury of marine mammals).

Additional details regarding how the categories were determined are provided in the preamble to the final rule implementing section 118 of the MMPA (60 FR 45086, August 30, 1995).

Because fisheries are classified on a per-stock basis, a fishery may qualify as one Category for one marine mammal stock and another Category for a different marine mammal stock. A fishery is typically classified on the LOF at its highest level of classification (e.g., a fishery qualifying for Category III for one marine mammal stock and for Category II for another marine mammal stock will be listed under Category II). Stocks driving a fishery's classification are denoted with a superscript “1” in Tables 1 and 2.

Other Criteria That May Be Considered

The tier analysis requires a minimum amount of data, and NMFS does not have sufficient data to perform a tier analysis on certain fisheries. Therefore, NMFS has classified certain fisheries by analogy to other Category I or II fisheries that use similar fishing techniques or gear that are known to cause mortality or serious injury of marine mammals, or according to factors discussed in the final LOF for 1996 (60 FR 67063, December 28, 1995) and listed in the regulatory definition of a Category II fishery: “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 mortality or serious injury is `frequent,' `occasional,' or `remote' by evaluating other factors such as fishing techniques, gear used, methods used to deter marine mammals, target species, seasons and areas fished, qualitative data from logbooks or fisher reports, stranding data, and the species and distribution of marine mammals in the area, or at the discretion of the Assistant Administrator for Fisheries” (50 CFR 229.2).

Further, eligible commercial fisheries not specifically identified on the LOF are deemed to be Category II fisheries until the next LOF is published (50 CFR 229.2).

How does NMFS determine which species or stocks are included as incidentally killed or injured in a fishery?

The LOF includes a list of marine mammal species and/or stocks incidentally killed or injured in each commercial fishery. The list of species and/or stocks incidentally killed or injured includes “serious” and “non-serious” documented injuries as described later in the List of Species and/or Stocks Incidentally Killed or Injured in the Pacific Ocean and the Atlantic Ocean, Gulf of Mexico, and Caribbean sections. To determine which species or stocks are included as incidentally killed or injured in a fishery, NMFS annually reviews the information presented in the current SARs and injury determination reports. 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. The best available scientific information used in the SARs reviewed for the 2016 LOF generally summarizes data from 2008-2012. NMFS also reviews other sources of new information, including injury determination reports, bycatch estimation reports, observer data, logbook data, stranding data, disentanglement network data, fisher self-reports (i.e., MMPA reports), and anecdotal reports from that time period. In some cases, more recent information may be available and used in the LOF, but in an effort to be consistent with the most recent SARs and across the LOF, NMFS typically restricts the analysis to data within the five-year time period summarized in the current SAR.

For fisheries with observer coverage, species or stocks are generally removed from the list of marine mammal species and/or stocks incidentally killed or injured if no interactions are documented in the five-year timeframe summarized in that year's LOF. For fisheries with no observer coverage and for observed fisheries with evidence indicating that undocumented interactions may be occurring (e.g., fishery has low observer coverage and stranding network data include evidence of fisheries interaction that cannot be attributed to a specific fishery) species and stocks may be retained for longer than five years. For these fisheries, NMFS will review the other sources of information listed above and use its discretion to decide when it is appropriate to remove a species or stock.

Where does NMFS obtain information on the level of observer coverage in a fishery on the LOF?

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. Data obtained from the observer program and observer coverage levels are important tools in estimating the level of marine mammal mortality and serious injury in commercial fishing operations. Starting with the 2005 SARs, each SAR includes an appendix with detailed descriptions of each Category I and II fishery on the LOF, including the observer coverage in those fisheries. The SARs generally do not provide detailed information on observer coverage in Category III fisheries because, under the MMPA, Category III fisheries are generally not required to accommodate observers aboard vessels due to the remote likelihood of mortality and serious injury of marine mammals. Fishery information presented in the SARs' appendices and other resources referenced during the tier analysis may include: Level of observer coverage, target species, levels of fishing effort, spatial and temporal distribution of fishing effort, characteristics of fishing gear and operations, management and regulations, and interactions with marine mammals. Copies of the SARs are available on the NMFS Office of Protected Resources Web site at: http://www.nmfs.noaa.gov/pr/sars/. Information on observer coverage levels in Category I, II, and III fisheries can be found in the fishery fact sheets on the NMFS Office of Protected Resources' Web site: http://www.nmfs.noaa.gov/pr/interactions/fisheries/lof.html. Additional information on observer programs in commercial fisheries can be found on the NMFS National Observer Program's Web site: http://www.st.nmfs.gov/observer-home/.

How do I find out if a specific fishery is in Category I, II, or III?

This rule includes three tables that list all U.S. commercial fisheries by LOF Category. Table 1 lists all of the commercial fisheries in the Pacific Ocean (including Alaska); Table 2 lists all of the commercial fisheries in the Atlantic Ocean, Gulf of Mexico, and Caribbean; and Table 3 lists all U.S.-authorized commercial fisheries on the high seas. A fourth table, Table 4, lists all commercial fisheries managed under applicable take reduction plans (TRPs) or take reduction teams (TRTs).

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 Seas Fishing Compliance Act (HSFCA) permits in each fishery. As of 2004, NMFS issues HSFCA permits only for high seas fisheries analyzed in accordance with the National Environmental Policy Act (NEPA) and the Endangered Species Act (ESA). The authorized high seas fisheries are broad in scope and encompass multiple specific fisheries identified by gear type. For the purposes of the LOF, the high seas fisheries are subdivided based on gear type (e.g., trawl, longline, purse seine, gillnet, troll, etc.) to provide more detail on composition of effort within these fisheries. Many fisheries operate in both U.S. waters and on the high seas, creating some overlap between the fisheries listed in Tables 1 and 2 and those in Table 3. In these cases, the high seas component of the fishery is not considered a separate fishery, but an extension of a fishery operating within U.S. waters (listed in Table 1 or 2). NMFS designates these fisheries in Tables 1, 2, and 3 by a “*” after the fishery's name. The number of HSFCA permits listed in Table 3 for the high seas components of these fisheries operating in U.S. waters does not necessarily represent additional effort that is not accounted for in Tables 1 and 2. Many vessels/participants holding HSFCA permits also fish within U.S. waters and are included in the number of vessels and participants operating within those fisheries listed in Tables 1 and 2.

HSFCA permits are valid for five years, during which time Fishery Management Plans (FMPs) can change. Therefore, some vessels/participants may possess valid HSFCA permits without the ability to fish under the permit because it was issued for a gear type that is no longer authorized under the most current FMP. For this reason, the number of HSFCA permits displayed in Table 3 is likely higher than the actual U.S. fishing effort on the high seas. For more information on how NMFS classifies high seas fisheries on the LOF, see the preamble text in the final 2009 LOF (73 FR 73032; December 1, 2008). Additional information about HSFCA permits can be found at: http://www.nmfs.noaa.gov/ia/permits/highseas.html.

Where can I find specific information on fisheries listed on the LOF?

Starting with the 2010 LOF, NMFS developed summary documents, or fishery fact sheets, for each Category I and II fishery on the LOF. These fishery fact sheets provide the full history of each Category I and II fishery, including: When the fishery was added to the LOF, the basis for the fishery's initial classification, classification changes to the fishery, changes to the list of species and/or stocks incidentally killed or injured in the fishery, fishery gear and methods used, observer coverage levels, fishery management and regulation, and applicable TRPs or TRTs, if any. These fishery fact sheets are updated after each final LOF and can be found under “How Do I Find Out if a Specific Fishery is in Category I, II, or III?” on the NMFS Office of Protected Resources' Web site: http://www.nmfs.noaa.gov/pr/interactions/fisheries/lof.html,, linked to the “List of Fisheries by Year” table. NMFS is developing similar fishery fact sheets for each Category III fishery on the LOF. However, due to the large number of Category III fisheries on the LOF and the lack of accessible and detailed information on many of these fisheries, the development of these fishery fact sheets is taking significant time to complete. As it completes work on each one, NMFS began posting Category III fishery fact sheets online on a rolling basis with the 2016 LOF.

Am I required to register under the MMPA?

Owners of vessels or gear engaging in a Category I or II fishery are required under the MMPA (16 U.S.C. 1387(c)(2)), as described in 50 CFR 229.4, to register with NMFS and obtain a marine mammal authorization to lawfully take non-endangered and non-threatened marine mammals incidental to commercial fishing operations. Owners of vessels or gear engaged in a Category III fishery are not required to register with NMFS or obtain a marine mammal authorization.

How do I register and receive my MMAP authorization certificate?

NMFS has integrated the MMPA registration process, implemented through the Marine Mammal Authorization Program (MMAP), with existing state and Federal fishery license, registration, or permit systems for Category I and II fisheries on the LOF. Participants in these fisheries are automatically registered under the MMAP and are not required to submit registration or renewal materials. In the Pacific Islands, West Coast, and Alaska regions, NMFS will issue vessel or gear owners an authorization certificate via U.S. mail or with their state or Federal license or permit at the time of issuance or renewal. In the Greater Atlantic Region, NMFS will issue vessel or gear owners an authorization certificate via U.S. mail automatically at the beginning of each calendar year. Certificates may also be obtained by visiting the Greater Atlantic Regional Office Web site ( http://www.greateratlantic.fisheries.noaa.gov/Protected/mmp/mmap/ ). In the Southeast Region, NMFS will issue vessel or gear owners notification of registry and vessel or gear owners may receive their authorization certificate by contacting the Southeast Regional Office at 727-209-5952 or by visiting the Southeast Regional Office Web site ( http://sero.nmfs.noaa.gov/protected_resources/marine_mammal_authorization_program/ ) and following the instructions for printing the certificate.

The authorization certificate, or a copy, must be on board the vessel while it is operating in a Category I or II fishery, or for non-vessel fisheries, in the possession of the person in charge of the fishing operation (50 CFR 229.4(e)). Although efforts are made to limit the issuance of authorization certificates to only those vessel or gear owners that participate in Category I or II fisheries, not all state and Federal license or 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 license or permit is required must register with NMFS by contacting their appropriate Regional Office (see ADDRESSES).

How do I renew my registration under the MMAP?

In Alaska regional and Greater Atlantic regional fisheries, registrations of vessel or gear owners are automatically renewed and participants should receive an authorization certificate by January 1 of each new year. In Pacific Islands regional fisheries, vessel or gear owners receive an authorization certificate by January 1 for state fisheries and with their permit renewal for federal fisheries. In West Coast regional fisheries, vessel or gear owners receive authorization with each renewed state fishing license, the timing of which varies based on target species. Vessel or gear owners who participate in fisheries 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 FOR FURTHER INFORMATION CONTACT).

In Southeast regional fisheries, vessel or gear owners' registrations are automatically renewed and participants will receive a letter in the mail by January 1 instructing them to contact the Southeast Regional Office to have an authorization certificate mailed to them or to visit the Southeast Regional Office Web site ( http://sero.nmfs.noaa.gov/protected_resources/marine_mammal_authorization_program/ ) to print their own certificate.

Am I required to submit reports when I kill or injure a marine mammal during the course of commercial fishing operations?

In accordance with the MMPA (16 U.S.C. 1387(e)) and 50 CFR 229.6, any vessel owner or operator, or gear owner or operator (in the case of non-vessel fisheries), participating in a fishery listed on the LOF must report to NMFS all incidental mortalities and injuries of marine mammals that occur during commercial fishing operations, regardless of the category in which the fishery is placed (I, II, or III) within 48 hours of the end of the fishing trip or, in the case of non-vessel fisheries, fishing activity. “Injury” is defined in 50 CFR 229.2 as a wound or other physical harm. In addition, any animal that ingests fishing gear or any animal that is released with fishing gear entangling, trailing, or perforating any part of the body is considered injured, regardless of the presence of any wound or other evidence of injury, and must be reported.

Mortality/injury reporting forms and instructions for submitting forms to NMFS can be found at: http://www.nmfs.noaa.gov/pr/interactions/mmap/#form or by contacting the appropriate Regional office (see FOR FURTHER INFORMATION CONTACT). Forms may be submitted via any of the following means: (1) Online using the electronic form, (2) emailed as an attachment to nmfs.mireport@noaa.gov, (3) faxed to the NMFS Office of Protected Resources at 301-713-0376, or (4) mailed to the NMFS Office of Protected Resources (mailing address is provided on the postage-paid form that can be printed from the web address listed above). Reporting requirements and procedures can be found in 50 CFR 229.6.

Am I required to take an observer aboard my vessel?

Individuals participating in a Category I or II fishery are required to accommodate an observer aboard their vessel(s) upon request from NMFS. MMPA section 118 states that the Secretary is not required to place an observer on a vessel if the facilities for quartering an observer or performing observer functions are so inadequate or unsafe that the health or safety of the observer or the safe operation of the vessel would be jeopardized; thereby authorizing the exemption of vessels too small to accommodate an observer from this requirement. However, U.S. Atlantic Ocean, Caribbean, or 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)) will not be exempted from observer requirements, regardless of their size. Observer requirements can be found in 50 CFR 229.7.

Am I required to comply with any marine mammal take reduction plan regulations?

Table 4 in this rule provides a list of fisheries affected by TRPs and TRTs. TRP regulations can be found at 50 CFR 229.30 through 229.37. A description of each TRT and copies of each TRP can be found at: http://www.nmfs.noaa.gov/pr/interactions/trt/teams.html. It is the responsibility of fishery participants to comply with applicable take reduction regulations.

Where can I find more information about the LOF and the MMAP?

Information regarding the LOF and the Marine Mammal Authorization Program, including: Registration procedures and forms; current and past LOFs; descriptions of each Category I and II fishery, and some Category III fisheries; observer requirements; and marine mammal mortality/injury reporting forms and submittal procedures, may be obtained at: http://www.nmfs.noaa.gov/pr/interactions/fisheries/lof.html,, or from any NMFS Regional Office at the addresses listed below:

NMFS, Greater Atlantic Regional Fisheries Office, 55 Great Republic Drive, Gloucester, MA 01930-2298, Attn: Allison Rosner;

NMFS, Southeast Region, 263 13th Avenue South, St. Petersburg, FL 33701, Attn: Jessica Powell;

NMFS, West Coast Region, Seattle Office, 7600 Sand Point Way NE., Seattle, WA 98115, Attn: Elizabeth Petras, Protected Resources Division;

NMFS, Alaska Region, Protected Resources, P.O. Box 22668, 709 West 9th Street, Juneau, AK 99802, Attn: Bridget Mansfield; or

NMFS, Pacific Islands Regional Office, Protected Resources Division, 1845 Wasp Blvd., Building 176, Honolulu, HI 96818, Attn: Dawn Golden.

Sources of Information Reviewed for the 2016 LOF

NMFS reviewed the marine mammal incidental mortality and serious injury information presented in the SARs for all fisheries to determine whether changes in fishery classification are warranted. The SARs are based on the best scientific information available at the time of preparation, including the level of mortality and serious injury of marine mammals that occurs incidental to commercial fishery operations and the PBR levels of marine mammal stocks. The information contained in the SARs is reviewed by regional Scientific Review Groups (SRGs) representing Alaska, the Pacific (including Hawaii), and the U.S. Atlantic, Gulf of Mexico, and Caribbean. The SRGs were created by the MMPA to review the science that informs the SARs, and to advise NMFS on marine mammal population status, trends, and stock structure, uncertainties in the science, research needs, and other issues.

NMFS also reviewed other sources of new information, including marine mammal stranding data, observer program data, fisher self-reports through the Marine Mammal Authorization Program, reports to the SRGs, conference papers, FMPs, and ESA documents.

The LOF for 2016 was based on, among other things, stranding data; fisher self-reports; and SARs, primarily the 2014 SARs, which are generally based on data from 2008-2012. The final SARs referenced in this LOF include: 2013 (79 FR 49053, August 19, 2014) and 2014 (80 FR 50599, August 20, 2015). The SARs are available at: http://www.nmfs.noaa.gov/pr/sars/.

Comments and Responses

NMFS received four comment letters on the proposed LOF for 2016 (80 FR 58427, September 29, 2015). Comments were received from the Marine Mammal Commission (Commission), Hawaii Longline Association (HLA), West Coast Seafood Processors Association (WCSPA), and a joint letter from Center for Biological Diversity (CBD) and Humane Society of the United States (HSUS).

General Comments

Comment 1: The Commission recommends that NMFS consider alternative methods for the classification of fisheries that rarely interact with marine mammals that would average data over longer periods.

Response: NMFS is currently evaluating the potential for analyzing data over longer periods for rare events and its application to the SARs through the GAMMS process. The method will be considered for its application to the LOF in the future once more discussion has taken place regarding the expanded use of such methods in the SARs.

Comment 2: The Commission urges NMFS to complete the development of the fact sheets for all Category III fisheries.

Response: NMFS acknowledges the importance of having these fact sheets completed and will continue working on completing the remaining Category III fact sheets. Given the limited information for many Category III fisheries, fact sheets are being developed as new information becomes available.

Comment 3: The Commission recommends that NMFS consistently summarize information across regions, as necessary, to evaluate proposed changes to the LOF in 2016 and subsequent LOF reports.

Response: NMFS agrees and will continue to provide a consistent level of detail across regions, where available. Some flexibility will be maintained for cases unique to a region's geography, ecology, management structure, or culture.

Comments on Commercial Fisheries in the Pacific Ocean

Comment 4: The Commission recommends that NMFS assess the potential for interactions between main Hawaiian Islands (MHI) insular false killer whales and hook-and-line fisheries that overlap with the range and habitats used by this stock and reclassify by analogy those fisheries with which MHI insular false killer whales are likely to interact. At a minimum, the Commission recommends that NMFS reclassify the Hawaii troll fishery from Category III to Category II based on analogy to longline fisheries.

Response: NMFS acknowledges the potential for interactions between MHI insular false killer whales and hook-and-line fisheries other than longline. There are a variety of commercial, recreational, and subsistence hook-and-line fisheries in Hawaii that use a mix of gear types and methods. These fisheries are not currently observed, and NMFS has not received any fisher's self-reports of marine mammal hookings or entanglements. Currently available information on MHI insular false killer whale injuries, such as dorsal fin scarring and various hooks within a stranded animal's stomach, indicate interactions are occurring, but they have not been linked to mortalities or serious injuries, nor to any specific commercial fishery.

We do not consider the various Hawaii commercial hook-and-line fisheries on the LOF to be analogous to the Category I or II Hawaii longline fisheries, given, for example, dissimilarities in fishing gear, technique, the number of hooks deployed, and areas fished. Additionally, there are no other hook-and-line fisheries listed as Category I or II on the LOF. At this time, the available information does not support reclassification by analogy of Hawaii hook-and-line fisheries, including the Hawaii troll fishery.

However, given the potential for MHI insular false killer whales to interact with hook-and-line fisheries, we are committed to working with the State of Hawaii and others to assess the frequency and severity of marine mammal interactions in state-managed fisheries and reduce impacts as appropriate. For example, NMFS researchers worked with the Hawaii Department of Land and Natural Resources (DLNR) to analyze marine mammal depredation data on State of Hawaii commercial catch reports (Boggs et al., 2015), which may assist in accurately identifying fisheries that are more likely to have false killer whale interactions. NMFS also recently awarded a 2015 Endangered Species Act Section 6 Grant to the Hawaii DLNR for nearly $1.2 million over three years to strengthen efforts to minimize and mitigate incidental take of MHI insular false killer whales, including spatial and temporal analysis of the overlap between fisheries and false killer whale habitat. We will continue to work with our partners to evaluate the risk the various hook-and-line fisheries may pose to MHI insular false killer whales and whether these fisheries are appropriately classified on the annual LOF.

Comment 5: The Hawaii Longline Association (HLA) contends the Hawaii-based deep-set longline fishery does not interact with the MHI insular or Northwestern Hawaiian Islands (NWHI) stocks of false killer whales. HLA states that (a) there has never been a documented interaction between the fishery and an animal from either stock, (b) the False Killer Whale Take Reduction Plan essentially eliminates any overlap between the longline fisheries and the assumed ranges of the MHI insular and NWHI stocks, and (c) the revised stock boundaries presented in the draft 2015 SAR indicate that there is only a very small area in which longline fishing may overlap with either stock, and no false killer whale interaction has ever occurred in these areas. HLA opposes including the stocks on the list of marine mammals injured or killed in the deep-set fishery. If NMFS retains these species on the list (which HLA opposes), HLA requests that NMFS state in the LOF that there are no confirmed interactions with either stock and no interactions with either stock have ever occurred in the very limited area where longline effort might overlap with either stock's assumed range.

Response: NMFS determines which species or stocks are included as incidentally killed or injured in a fishery by annually reviewing the information presented in the current SARs, among other relevant sources. The SARs are based on the best available scientific information and provide the most current and inclusive information on each stock, including range, abundance, PBR, and level of interaction with commercial fishing operations. Determinations in the LOF are based on the data and calculations contained within the SARs.

The 2016 LOF is based on the 2014 SARs, which report fishery interactions from 2008-2012. NMFS deems this to be the best scientific and commercial information available for the time period examined. During that time period, NMFS estimates a five-year average mortality and serious injury level of 0.9 MHI insular and 0.4 NWHI false killer whales per year incidental to the Hawaii-based deep-set longline fishery from 2008-2012 (Carretta et al., 2015).

NMFS is retaining the stocks on the list of marine mammal stocks incidentally killed or injured in the Hawaii deep-set longline fishery. We disagree with HLA's recommended text and are not including it because false killer whale interactions have been observed in the deep-set longline fishery within the area of overlap between the pelagic, MHI insular, and NWHI stocks of false killer whales as defined in the 2014 SAR. While no genetic samples are available to establish stock identity for these takes, all stocks are considered at risk of interacting with longline gear. For a more complete analysis of the methodology for determining mortality and serious injury of MHI insular false killer whales, NMFS refers the commenter to the 2014 SAR.

Comment 6: HLA restates its comment from the proposed 2015 LOF regarding its opposition to including short-finned pilot whales on the list of species injured or killed in the Hawaii-based shallow-set longline fishery (see Comment 3 in the 2015 LOF final rule, 79 FR 77919, December 29, 2014). HLA commented that NMFS included the species because of a single interaction on the high seas involving an unidentified cetacean that “may have” been a short-finned pilot whale. HLA states that there have been no confirmed short-finned pilot whale interactions in the shallow-set fishery. In the absence of data confirming that the fishery is interacting with short-finned pilot whales, HLA contends NMFS may not add the species to the list of species and/or stocks that are incidentally killed or injured by the fishery.

Response: The estimated average annual mortality and serious injury of short-finned pilot whales in the fishery on the high seas from 2008-2012 is 0.1 (McCracken, 2014). NMFS is retaining short-finned pilot whales on the list of species or stocks that are incidentally killed or injured by the fishery based on the mortality and serious injury estimate presented in McCracken, 2014.

Comment 7: HLA restates its comment from the proposed 2015 LOF regarding its opposition to including pygmy or dwarf sperm whales on the list of species injured or killed in the Hawaii-based shallow-set longline fishery (see Comment 4 in the 2015 LOF final rule, 79 FR 77919, December 29, 2014). HLA maintains that the MMPA requires NMFS to list the species in the LOF that are seriously injured or killed by a fishery. HLA cites the 2013 SAR, which reports a single interaction with a pygmy or dwarf sperm whale in 2008 that was classified as a non-serious injury.

Response: As described in the preamble to this final rule and in the MMPA implementing regulations (50 CFR 229.8(b)(2)), the LOF lists the marine mammals that have been incidentally injured or killed in each commercial fishery. Separately, MMPA implementing regulations at 50 CFR 229.2 specify a tier analysis process for classifying fisheries on the LOF based on their levels of incidental serious injury and mortality of marine mammals. Therefore, while only mortalities and serious injuries are considered in the tier analysis, all species that are injured (seriously or non-seriously) or killed in the fishery are included in the list. Finally, the Kogia species whale (pygmy or dwarf sperm whale) was included in the list for the Hawaii shallow-set longline fishery because a Kogia species whale was non-seriously injured in the fishery in 2008 (McCracken, 2014; Carretta et al., 2015).

Comment 8: HLA restates its comment from the proposed 2015 LOF regarding how marine mammal takes should be listed in transboundary fisheries (see Comment 5 in the 2015 LOF final rule, 79 FR 77919, December 29, 2014). HLA is concerned that fisheries operating in the U.S. EEZ and on the high seas have marine mammals, for which an interaction has occurred in either the EEZ or the high seas, included on the lists of species killed or injured in both the EEZ and the high seas (i.e., on both Tables 1 or 2 and Table 3). HLA is concerned this redundant listing results in a mistaken implication that a given fishery may interact with a certain species in one geographic area (e.g., within the EEZ) when that fishery has only been observed to interact with the species in another geographic area (e.g., on the high seas). HLA requests that NMFS revise the LOF to attribute species interactions in transboundary fisheries to only those geographic regions where interactions are actually observed. HLA contends this change would adequately report species injured or killed, but would avoid the arbitrary result of takes being attributed to fisheries in areas in which no take has ever been observed. HLA requests that if NMFS does not attribute interactions for transboundary fisheries to the geographic regions in which they occurred, then NMFS should include a footnote in the LOF to clarify, for certain stocks and fisheries, that interactions have only been observed on the high seas or in the U.S. EEZ, as appropriate, to more accurately convey the best available information to the public.

Response: As described in the preamble, NMFS has included high seas fisheries in Table 3 of the LOF since 2009. Several fisheries operate in both U.S. waters and on the high seas, creating some overlap between the fisheries listed in Tables 1 and 2 and those in Table 3. In these cases, the high seas component of the fishery is not considered a separate fishery but an extension of a fishery operating within U.S. waters. For these fisheries, the lists of species or stocks injured or killed in Table 3 are identical to their Table 1 or 2 counterparts, except for those species or stocks with distributions known to occur on only one side of the EEZ boundary. Because the fisheries and the marine mammal lists are the same, takes of these animals are not being attributed to one geographic area or the other, even when that information may be available. This parallel list structure is explained in the footnotes for each table. We are not including additional footnotes to individual stocks and fisheries to indicate whether interactions have only been observed on the high seas or in the U.S. EEZ, but that information may be available in previous LOF rules when species and stocks are added or deleted.

Comment 9: The Commission concurs with NMFS that the Alaska Bering Sea/Aleutian Islands Pacific cod longline fishery should be elevated to a Category II fishery.

Response: NMFS acknowledges this comment and finalizes the re-classification of the Alaska Bering Sea/Aleutian Islands Pacific Cod Longline Fishery from Category III to Category II.

Comment 10: The Commission recommends NMFS retain the Alaska Kodiak salmon purse seine and Cook Inlet salmon purse seine fisheries as Category II fisheries because they are unobserved.

Response: The Alaska Kodiak salmon purse seine and Cook Inlet salmon purse seine fisheries were added to the LOF as Category II in the 2007 LOF (72 FR 14466, March 28, 2007) based on one mortality of a humpback whale in each of those fisheries in 2005. Both mortalities occurred in an area of geographic overlap of the Central and Western North Pacific humpback whales stocks. The 2005 mortalities were reported to NMFS through the Stranding/Entanglement program, as the fisheries are not observed. Samples were not obtained from the takes for genetic analysis, resulting in uncertain stock identification for either mortality.

The 2005 mortalities were each included in the standard five-year data sets (resulting in an average 0.4 mortalities/year) used in LOF Tier I and II analyses for the 2007-2011 LOFs. Because of the uncertainty regarding the whales' stock identity, NMFS used the standard precautionary measure of using the lower PBR of the Western North Pacific stock in each year's LOF analysis, which resulted in both fisheries remaining in Category II for the 2007-2011 LOFs. Once they “aged” out of the standard five-year data set, those mortalities continued to be included in the LOF analyses four additional years (2012-2015) as a precautionary measure due to the rarity of documented humpback takes in purse seine fisheries (only two other humpback whale mortalities were previously documented in purse seine fisheries in Alaska in the mid-1990s, a mother and calf taken in one event) and because the fisheries were unobserved. Although the five-year data set used in the 2016 LOF is 2008-2012, no additional humpback whale mortalities were reported in Alaska Kodiak salmon purse seine and Cook Inlet salmon purse seine fisheries from 2013 through 2015. Further, the PBRs for each the Central and Western North Pacific humpback whale stocks have increased substantially since the initial 2005 mortalities. The PBR for the Central North Pacific humpback whales has increased from 12.9 in the 2006 SAR to 82.8 in the 2014 SAR used for the 2007 and 2016 LOFs, respectively. The PBR for the Western North Pacific humpback whales has likewise increased from 1.3 to 3.0 for those same years. Given the absence of other evidence to the contrary, ten years with no additional mortalities or serious injuries reported (since 2005 via the Stranding Network or fisherman self-reports) and a substantial increase in PBR for both North Pacific humpback whale stocks, NMFS is reclassifying the fisheries as Category III fisheries. NMFS will continue to review the most recent data and changes in these fisheries and will update the LOF, as appropriate.

Comment 11: The Commission recommends NMFS assess the potential for all unobserved Category III AK purse seine fisheries to take humpback whales or similar species and, if appropriate, reclassify them by analogy as Category II fisheries.

Response: NMFS believes that because takes are so rare and there are no Table 1 purse seine fisheries analogous to Alaska's fisheries, the fisheries should remain in Category III. NMFS will continue to review stranding and entanglement data as alternative sources of data for these unobserved fisheries.

Comment 12: The Commission recommends NMFS investigate the circumstances and details of the reported interactions with the five stocks of marine mammals proposed to be added to the list of stocks incidentally killed or injured in the Category III CA halibut bottom trawl fishery and consider elevating it to Category II, if warranted. NMFS does not provide information on the sources of information upon which this proposal is based, nor does it provide any information about the number of interactions, their outcomes, or their magnitudes relative to PBR. In the absence of such information, it is difficult to assess the importance of five stocks being added in one year, although the Commission suggests that the number of stocks alone is sufficient to indicate the fishery may pose a greater threat to marine mammals, although of uncertain magnitude, than was previously understood.

Response: NMFS compiled information on marine mammal, seabird, and sea turtle takes observed in the west coast groundfish fisheries for the 2011 report entitled “Estimated Bycatch of Marine Mammals, Seabirds, and Sea Turtles in the U.S. West Coast Commercial Groundfish Fishery, 2002-2009” available at http://www.nwfsc.noaa.gov/research/divisions/fram/observation/data_products/datareport/docs/mmsbt_report02-09.pdf. The report provides observed numbers and estimates of marine mammals, in table 7, that were observed incidentally taken in the groundfish fisheries, including the CA halibut bottom trawl fishery, between 2002 and 2009. The marine mammals reported as killed or seriously injured are California sea lion, Steller sea lion, harbor seal, elephant seal, and harbor porpoise. We reviewed the annual fishery mortality and serious injury estimates and PBRs for each of the five species/stocks. The Tier 1 analysis indicated that mortality and serious injury did not exceed 10 percent of PBR when added to other fishery mortality and serious injury for these stocks, therefore, the fishery remains in Category III.

Comment 13: CBD/HSUS recommend NMFS add bottlenose dolphin, CA/OR/WA offshore stock, humpback whale, CA/OR/WA stock, and sea otter, CA stock, to the list of species and/or stocks incidentally killed or injured by the CA spiny lobster fishery. In addition, CBD/HSUS recommend that NMFS list the CA spiny lobster fishery as Category II based on the interactions with bottlenose dolphin and humpback whale. The most current stock assessment report documents take of: Bottlenose dolphin (one serious injury in 2008) and humpback whale (one serious injury between 2007 and 2011). The list should include sea otters by analogy because the stock assessment report cited controlled experiments conducted by the U.S. Geological Survey and the Monterey Bay Aquarium that demonstrated that sea otters exposed to lobster traps in a captive setting would succeed in entering them (Carretta et al., 2015 (citing Hatfield et al., 2011)). The mean annual take of offshore bottlenose dolphins in the spiny lobster fishery is 0.2, which is 3.6 percent of the PBR of 5.5. The mean annual take of humpback whales in the spiny lobster fishery is 0.2, which is 1.8 percent of the PBR of 11 that is allocated to U.S. waters. The fishery should be classified as Category II because the take of both stocks are between one and fifty percent of PBR.

Response: NMFS notes this oversight and adds bottlenose dolphins and humpback whales to the list of species/stocks incidentally killed or injured in the CA spiny lobster fishery. NMFS will address the classification of this fishery in the proposed 2017 LOF. See Response to Comment 14 regarding the request to add sea otters to the list of species/stocks killed or injured.

Comment 14: CBD/HSUS recommend that NMFS list the CA/OR coonstripe shrimp pot, CA rock crab pot, and WA/OR/CA hagfish pot fisheries as Category II by analogy to other pot fisheries because of the number of entanglements due to unknown fishery interactions and the evidence that pots can attract sea otters (Carretta et al., 2015 (citing Hatfield et al., 2011)). CBD/HSUS noted that from 2000-2015, NMFS received 231 reports of entanglements, 156 of which were confirmed, 114 of which were assigned to a reported fishery and 69 of which were confirmed to a fishery.

Response: NMFS has received similar comments regarding pot/trap fishery classifications in the past. NMFS relies upon the most recently available complete information to evaluate categorizations of fisheries on the List of Fisheries. For the proposed 2016 LOF, the most recent available information is through 2012. NMFS will address reports of entanglements and strandings during 2014 as part of the development of the proposed 2017 LOF. NMFS received a similar comment regarding sea otters for the proposed 2012 LOF (76 FR 73912, November 29, 2011, comment/response 9) as well as 2011 LOF (75 FR 68475, November 8, 2010, comment/response 13) and 2010 LOF (74 FR 58859, November 16, 2009, comment/response 3). As described in the response to comments in the final 2012 LOF and described in detail in the proposed 2009 LOF (73 FR 33760, June 13, 2008), NMFS conducted an extensive review of all available information on marine mammal interactions with pot/trap gear in 2008 and found no evidence of sea otter bycatch at that time or since. The USFWS completed a stock assessment for southern sea otters in 2008, which has not been updated. The USFWS, as part of public comments for the 2012 LOF, submitted a paper by Hatfield et al., (2011), detailing experiments that indicate that sea otters can enter and become entrapped in pots or traps with openings of certain sizes. However, the paper presented no evidence of this occurring during commercial fishing activities off California. The possibility of an interaction is insufficient justification to include southern sea otters on the list of species incidentally killed or injured in particular fisheries. Instead, NMFS needs some indication that mortalities/injuries are occurring or have occurred in these fisheries in recent years (e.g., fisher's self-reports, observer data, stranding data). If additional information becomes available indicating that southern sea otters have been killed or injured in CA trap/pot fisheries in recent years, NMFS will consider including this species on the LOF at that time.

Comment 15: CBD/HSUS recommend that NMFS clarify the discrepancy between the number of vessels participating in the Table 3 “Pacific highly migratory species longline” fishery (estimated 126 vessels/persons) and the Table 1 “California pelagic longline” fishery (estimated one vessel/person) because the definition of the fishery and identification of vessels participating in the fishery drastically affects how to quantify marine mammal interactions and both fisheries operate only on the high seas.

Response: The commenter is correct that the use of longline gear to target HMS within the EEZ is prohibited under the West Coast HMS FMP and that the CA pelagic longline fishery (on Table 1) does occur exclusively on the high seas. We have edited the footnote associated with this fishery. The preamble of the final 2009 LOF describes the relationship between the High Seas Pacific Highly Migratory Species Fisheries (Table 3) and West Coast HMS fisheries on Tables 1 and 2. The CA pelagic longline fishery has been included on the LOF since 2001. The high seas Pacific Highly Migratory Species longline fishery was added to the LOF in Table 3 in 2008 when all high seas fisheries were added to the LOF.

As described in the preamble of the final 2009 LOF (73 FR 73032, December 1, 2008), the number of participants in the high seas fisheries, Table 3, is drawn from the National Permitting System database and does not necessarily reflect actual fishing activity. As shown on Table 1, there is one vessel actively engaged in longline fishing with a West Coast HMS permit. This vessel also has an HSFCA permit. A number of individuals hold West Coast HMS permits endorsed to longline (and HSFCA permits) but are not actively fishing with this gear type. In addition, a number of vessels fish with a HI pelagics FMP permit, but make landings in the U.S. West Coast, which requires a West Coast HMS FMP permit (see the HMS SAFE for more details). There are over 40 vessels with a HSFCA permit that hold both a HI pelagics HMS permit and a West Coast HMS permit, which allows them to fish with longline on the high seas (under the HI pelagics permit) and land into the U.S. West Coast (under the West Coast HMS permit).

The number of HSFCA permits issued by NMFS changes frequently as new permits are added or renewed, or old permits expire, and does not necessarily reflect the effort or vessels in a fishery. NMFS has promulgated a regulation (80 FR 62488, October 16, 2015) to improve the administration and monitoring of the HSFCA, effective January 14, 2016, and requires vessel operators or owners identify the authorized fishery in which he or she intends to fish when applying for an HSFCA permit. There are eight fisheries authorized on the high seas, including the U.S. West Coast Fisheries for Highly Migratory Species, and this regulation should improve the accuracy of Table 3 in the LOF.

Comment 16: The WCSPA recommends that NMFS maintain the Category III designation and separate fishery names for the WA/OR sardine purse seine fishery and the CA anchovy, mackerel, sardine purse seine fishery. WCSPA notes the WA/OR fishery is spatially separate from the CA fishery, and while the quotas that all three fisheries access are set by the Pacific Fishery Management Council under its Coastal Pelagic Species Fishery Management Plan, the day-to-day management of each fishery is different. Each state has its own effort restriction plan and landing limits. There are some signs of a northern sub-population of sardine which forms part of the WA/OR fishery. In the remote occurrence of a marine mammal take that would change the categorization of either the WA/OR or the CA fishery. WCSPA believes it would be unfair to penalize the other spatially separate component.

Response: NMFS appreciates the information and withdraws this recommendation, and leaves the “WA/OR purse seine” and the “CA anchovy, mackerel, sardine purse seine” fisheries in place.

Comments on Commercial Fisheries in the Atlantic Ocean, Gulf of Mexico, and Caribbean

Comment 17: The Commission and CBD/HSUS recommend that NMFS not remove stocks from the list of stocks and/or species incidentally killed or injured in the Category I “Mid-Atlantic gillnet” and Category II “Mid-Atlantic mid-water trawl” fisheries because the fisheries have very low observer coverage.

Response: In general, NMFS lists species incidentally killed or injured in a particular fishery based on data observed from the last five years. The list contained in the LOF is not intended to serve as a historical overview of takes within a fishery as the data are available in individual species SARs as well as Appendix III. The agency does, however, maintain flexibility to analyze fisheries on a case-by-case basis in response to low observer coverage.

Mid-Atlantic gillnet fisheries have been observed at the following percent coverage from 2009-2013: 3%, 4%, 2%, 2% and 3%, respectively. For this fishery, we recommended the removal of Risso's and white-sided dolphins from the list of species incidentally taken in this fishery. The last observed takes of Risso's and white-sided dolphins occurred in 2007 and 1997 when observer coverage was 4% and 3%, respectively. While observer coverage averaged 2.8% over the last five years, Mid-Atlantic gillnet sampling levels are in the developing to mature stage (i.e., sampling 1-2% is recommended for pilot coverage, where coverage greater than 2% is considered developing to mature programs) according to the 2004 NMFS Report on Evaluating Bycatch ( http://www.nmfs.noaa.gov/by_catch/SPO_final_rev_12204.pdf ) (NMFS, 2004). Therefore, current estimated observer coverage for this fishery is considered adequate for bycatch estimation purposes. More importantly, given what we know about the overlap between species distribution and fishing effort, there is low probability that the Mid-Atlantic gillnet fishery will interact with Risso's and white-sided dolphins, and if they do occur, that they are rare occurrences. Thus, NMFS removes these species from the list of species and/or stocks incidentally killed or injured in the Mid-Atlantic gillnet fishery.

For the Mid-Atlantic mid-water trawl fishery, we proposed to remove short-beaked common dolphin, long-finned pilot whale, and short-finned pilot whale from this fishery. The last documented takes of these species in the Mid-Atlantic mid-water trawl fishery were in 2007. New genetic information on pilot whales (Waring et al., 2015b) and their distribution has also determined that the distribution of short-finned pilot whales does not overlap with the Mid-Atlantic mid-water trawl fishery effort; and, therefore, takes in this fishery are highly unlikely and that previous pilot whale takes should be considered long-finned pilot whales. During the period 2009-2013, analysis has shown that the percent observer sampling coverage for the Mid-Atlantic mid-water trawl fishery is also adequate for understanding marine mammal bycatch in this fishery (NMFS, 2004). NMFS removes these species from the list of species and/or stocks incidentally killed or injured in the Mid-Atlantic mid-water trawl fishery.

In the case of the Mid-Atlantic gillnet and Mid-Atlantic mid-water trawl fisheries, NMFS asserts observer coverage is adequate for determining if recent takes of certain species have occurred within these fisheries. The removal of these species from the list of species incidentally killed or injured from these respective fisheries does not impact the classification of the fisheries in question because other species taken are currently influencing the current classification. NMFS will continue to annually monitor bycatch of marine mammals in these fisheries and will make adjustments to Table 2 should incidental mortalities or injuries occur in the future.

Summary of Changes From the Proposed Rule

NMFS retains the Category III fisheries, WA/OR sardine purse seine and CA anchovy, mackerel, sardine purse seine, as separate and does not merge and re-name the two fisheries “CA/OR/WA anchovy, mackerel, sardine purse seine” fishery, as proposed.

NMFS adds bottlenose dolphin, CA/OR/WA offshore, and humpback whale, CA/OR/WA, to the list of species and/or stocks incidentally killed or injured in the Category III CA spiny lobster fishery.

Summary of Changes to the LOF for 2016

The following summarizes the changes to the LOF for 2016, including the fisheries listed in the LOF, the estimated number of vessels/persons in a particular fishery, and the species and/or stocks that are incidentally killed or injured in a particular fishery. In the LOF for 2016, NMFS re-classifies three fisheries. Additionally, NMFS adds two fisheries to the LOF and removes six fisheries from the LOF. NMFS makes changes to the list of species and/or stocks killed or injured in certain fisheries and the estimated number of vessels/persons in certain fisheries, as well as certain administrative changes. While detailed information describing each fishery in the LOF is included within the SARs, a Fishery Management Plan, or a TRP, or by state agencies, general descriptive information is important to include in the LOF for improved clarity; starting with the 2016 LOF, NMFS is releasing Category III fishery fact sheets as they are completed. The classifications and definitions of U.S. commercial fisheries for 2016 are identical to those provided in the LOF for 2015 with the changes discussed below. State and regional abbreviations used in the following paragraphs include: AK (Alaska), BSAI (Bering Sea and Aleutian Islands), CA (California), DE (Delaware), FL (Florida), GMX (Gulf of Mexico), HI (Hawaii), MA (Massachusetts), ME (Maine), NC (North Carolina), NY (New York), OR (Oregon), RI (Rhode Island), SC (South Carolina), VA (Virginia), WA (Washington), and WNA (Western North Atlantic).

Commercial Fisheries in the Pacific Ocean

Classification of Fisheries

NMFS reclassifies the Category III Alaska Bering Sea/Aleutian Island Pacific Cod Longline Fishery as Category II.

NMFS reclassifies the Category II Alaska Kodiak Salmon Purse Seine Fishery as Category III.

NMFS reclassifies the Category II Alaska Cook Inlet Salmon Purse Seine Fishery as Category III.

Addition of Fisheries

NMFS adds the CA sea cucumber trawl fishery to the LOF as Category III.

NMFS adds the WA/OR Mainstem Columbia River eulachon gillnet fishery to the LOF as Category III.

Removal of Fisheries

NMFS removes the Category III WA/OR herring, smelt, shad, sturgeon, bottom fish, mullet, perch, rockfish gillnet fishery from the LOF.

NMFS removes the Category III WA/OR smelt, herring dip net fishery from the LOF.

Fishery Name and Organizational Changes and Clarification

NMFS renames the Category III “WA (all species) beach seine or drag seine” as the “WA/OR Lower Columbia River salmon seine” fishery.

NMFS divides out three fisheries from the Category III “AK North Pacific halibut, AK bottom fish, WA/OR/CA albacore, groundfish, bottom fish, CA halibut non-salmonid troll” fishery and renames them as: “WA/OR/CA albacore surface hook and line/troll” fishery, “CA halibut hook and line/handline” fishery, and “CA White seabass hook and line/handline” fishery and removes the remaining fisheries in the group.

NMFS renames the Category III “WA/OR salmon net pens” fishery as the “WA salmon net pen” fishery.

NMFS renames (by revising, separating, and combining) the Category III “WA/OR sea urchin, other clam, octopus, oyster, sea cucumber, scallop, ghost shrimp, dive, hand/mechanical collection” and “CA sea urchin” fisheries to become the “WA/OR bait shrimp, clam hand, dive or mechanical collection” and “OR/CA sea urchin, sea cucumber dive, hand/mechanical collection” fisheries.

NMFS renames the Category III “WA shellfish aquaculture” fishery as the “WA/OR shellfish aquaculture” fishery.

Number of Vessels/Persons

NMFS updates the estimated number of vessels/persons in the Pacific Ocean (Table 1) as follows:

List of Species and/or Stocks Incidentally Killed or Injured in the Pacific Ocean

NMFS adds the southwest Alaska stock of northern sea otters to the list of species and/or stocks killed or injured in the Category II Alaska Peninsula/Aleutian Islands salmon set gillnet fishery.

NMFS adds the U.S. stock of California sea lions, unknown stock of harbor porpoise, unknown stock of harbor seals, California breeding stock of northern elephant seals, unknown stock of Steller sea lions to the species and/or stocks incidentally killed or injured by the Category III CA halibut bottom trawl fishery.

NMFS adds bottlenose dolphin, CA/OR/WA offshore, and humpback whale, CA/OR/WA, to the list of species and/or stocks killed or injured in the Category III CA spiny lobster fishery.

NMFS adds the Northwestern Hawaiian Islands stock of false killer whales to the list of species and/or stocks killed or injured in the Category I Hawaii deep-set longline fishery.

NMFS removes the Palmyra Atoll stock of false killer whales from the list of species and/or stocks killed or injured in the Category I Hawaii deep-set longline fishery.

NMFS adds notation “¹” to indicate that the Main Hawaiian Islands (MHI) insular stock of false killer whales, along with the HI pelagic stock of false killer whales, is also driving the Hawaii deep-set longline fishery's Category I classification.

NMFS adds the Gulf of Alaska, BSAI transient stock of killer whales to the list of species and/or stocks killed or injured in the Category II Alaska BSAI Pacific cod longline fishery.

NMFS removes notation “¹” from the Central North Pacific stock of humpback whales under the Category III fisheries: Alaska Cook Inlet salmon purse seine and Alaska Kodiak salmon purse seine.

Commercial Fisheries in the Atlantic Ocean, Gulf of Mexico, and Caribbean

Fishery Name and Organizational Changes and Clarification

NMFS renames and changes the geographic scope of the Category III “U.S. Mid-Atlantic offshore surf clam/quahog dredge” fishery.

Number of Vessels/Persons

NMFS updates the estimated number of vessels/persons in the Atlantic Ocean, Gulf of Mexico, and Caribbean (Table 2) as follows:

List of Species and/or Stocks Incidentally Killed or Injured in the Atlantic Ocean, Gulf of Mexico, and Caribbean

NMFS adds the Gulf of Maine/Bay of Fundy stock of harbor porpoise and the Gulf of Mexico stock of pygmy sperm whale to the list of marine mammal species and/or stocks incidentally killed or injured in the Category I Atlantic Ocean, Caribbean, Gulf of Mexico large pelagics longline fishery.

NMFS adds the Western North Atlantic stock of Risso's dolphin to the list of marine mammal species and/or stocks incidentally killed or injured in the Category II Northeast bottom trawl fishery.

NMFS adds the central Georgia estuarine system stock of bottlenose dolphin to the list of marine mammal species and/or stocks incidentally killed or injured in the Category II Atlantic blue crab trap/pot fishery.

NMFS removes the Western North Atlantic stocks of Risso's dolphin and white-sided dolphin from the list of marine mammal species and/or stocks incidentally killed or injured in the Category I Mid-Atlantic gillnet fishery.

NMFS removes the Western North Atlantic stocks of common dolphin, long-finned pilot whale, and short-finned pilot whale from the list of marine mammal species and/or stocks incidentally killed or injured in the Category II Mid-Atlantic mid-water trawl fishery.

NMFS removes the Western North Atlantic stocks of white-sided dolphin, long-finned pilot whale, and short-finned pilot whale from the list of marine mammal species and/or stocks incidentally killed or injured in the Category II Mid-Atlantic bottom trawl fishery.

NMFS removes the Western North Atlantic stocks of white-sided dolphin and short-finned pilot whale from the list of marine mammal species and/or stocks incidentally killed or injured in the Category II Northeast mid-water trawl fishery.

NMFS removes the Western North Atlantic stock of short-finned pilot whale from the list of marine mammal species and/or stock incidentally killed or injured in the Category II Northeast bottom trawl fishery.

Commercial Fisheries on the High Seas

Removal of Fisheries

NMFS removes the following Category II high seas fisheries from the List of Fisheries: (1) Western Pacific Pelagic Trawl, (2) Pacific Highly Migratory Species Liners, not elsewhere included (NEI), (3) South Pacific Albacore Troll Liners (NEI), and (4) Western Pacific Pelagic Liners (NEI).

Number of Vessels/Persons

NMFS updates the estimated number of HSFCA permits (Table 3) as follows:

List of Fisheries

The following tables set forth the list of U.S. commercial fisheries according to their classification under section 118 of the MMPA. Table 1 lists commercial fisheries in the Pacific Ocean (including Alaska); Table 2 lists commercial fisheries in the Atlantic Ocean, Gulf of Mexico, and Caribbean; Table 3 lists commercial fisheries on the high seas; and Table 4 lists fisheries affected by TRPs or TRTs.

In Tables 1 and 2, the estimated number of vessels or persons participating in fisheries operating within U.S. waters is expressed in terms of the number of active participants in the fishery, when possible. If this information is not available, the estimated number of vessels or persons licensed for a particular fishery is provided. If no recent information is available on the number of participants, vessels, or persons licensed in a fishery, then the number from the most recent LOF is used for the estimated number of vessels or persons in the fishery. NMFS acknowledges that, in some cases, these estimates may be inflations of actual effort. For example, the State of Hawaii does not issue fishery-specific licenses, and the number of participants reported in the LOF represents the number of commercial marine license holders who reported using a particular fishing gear type/method at least once in a given year, without considering how many times the gear was used. For these fisheries, effort by a single participant is counted the same whether the fisher used the gear only once or every day. In the Mid-Atlantic and New England fisheries, the numbers represent the potential effort for each fishery, given the multiple gear types for which several state permits may allow. Changes made to Mid-Atlantic and New England fishery participants will not affect observer coverage or bycatch estimates, as observer coverage and bycatch estimates are based on vessel trip reports and landings data. Tables 1 and 2 serve to provide a description of the fishery's potential effort (state and Federal). If NMFS is able to extract more accurate information on the gear types used by state permit holders in the future, the numbers will be updated to reflect this change. For additional information on fishing effort in fisheries found on Table 1 or 2, contact the relevant regional office (contact information included above in SUPPLEMENTARY INFORMATION).

For high seas fisheries, Table 3 lists the number of valid HSFCA permits currently held. Although this likely overestimates the number of active participants in many of these fisheries, the number of valid HSFCA permits is the most reliable data on the potential effort in high seas fisheries at this time. As noted previously in this rule, the number of HSFCA permits listed in Table 3 for the high seas components of fisheries that also operate within U.S. waters does not necessarily represent additional effort that is not accounted for in Tables 1 and 2. Many vessels holding HSFCA permits also fish within U.S. waters and are included in the number of vessels and participants operating within those fisheries in Tables 1 and 2.

Tables 1, 2, and 3 also list the marine mammal species and/or stocks incidentally killed or injured (seriously or non-seriously) in each fishery based on SARs, injury determination reports, bycatch estimation reports, observer data, logbook data, stranding data, disentanglement network data, fisher self-reports (i.e., MMPA reports), and anecdotal reports. The best available scientific information included in these reports is based on data through 2012. This list includes all species and/or stocks known to be killed or injured in a given fishery but also includes species and/or stocks for which there are anecdotal records of a mortality or injury. Additionally, species identified by logbook entries, stranding data, or fishermen self-reports (i.e., MMPA reports) may not be verified. In Tables 1 and 2, NMFS has designated those species/stocks driving a fishery's classification (i.e., the fishery is classified based on mortalities and serious injuries of a marine mammal stock that are greater than or equal to 50 percent [Category I], or greater than 1 percent and less than 50 percent [Category II], of a stock's PBR) by a “¹” after the stock's name.

In Tables 1 and 2, there are several fisheries classified as Category II that have no recent documented mortalities or serious injuries of marine mammals, or fisheries that did not result in a mortality or serious injury rate greater than 1 percent of a stock's PBR level based on known interactions. NMFS has classified these fisheries by analogy to other Category I or II fisheries that use similar fishing techniques or gear that are known to cause mortality or serious injury of marine mammals, as discussed in the final LOF for 1996 (60 FR 67063, December 28, 1995), and according to factors listed in the definition of a “Category II fishery” in 50 CFR 229.2 (i.e., fishing techniques, gear types, 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). NMFS has designated those fisheries listed by analogy in Tables 1 and 2 by a “²” after the fishery's name.

There are several fisheries in Tables 1, 2, and 3 in which a portion of the fishing vessels cross the exclusive economic zone (EEZ) boundary and therefore operate both within U.S. waters and on the high seas. These fisheries, though listed separately between Table 1 or 2 and Table 3, are considered the same fisheries on either side of the EEZ boundary. NMFS has designated those fisheries in each table by a “*” after the fishery's name.

Classification

The Chief Counsel for Regulation of the Department of Commerce has certified to the Chief Counsel for Advocacy of the Small Business Administration (SBA) at the proposed rule stage that this rule would not have a significant economic impact on a substantial number of small entities. No comments were received on that certification, and no new information has been discovered to change that conclusion. Accordingly, no regulatory flexibility analysis is required, and none has been prepared.

This rule contains collection-of-information requirements subject to the Paperwork Reduction Act. The collection of information for the registration of individuals under the MMPA has been approved by the Office of Management and Budget (OMB) under OMB control number 0648-0293 (0.15 hours per report for new registrants and 0.09 hours per report for renewals). The requirement for reporting marine mammal mortalities or injuries has been approved by OMB under OMB control number 0648-0292 (0.15 hours per report). These estimates include the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding these reporting burden estimates or any other aspect of the collections of information, including suggestions for reducing burden, to NMFS and OMB (see ADDRESSES and SUPPLEMENTARY INFORMATION).

Notwithstanding any other provision of law, no person is required to respond to nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a currently valid OMB control number.

This rule has been determined to be not significant for the purposes of Executive Order 12866.

An environmental assessment (EA) was prepared under the National Environmental Policy Act (NEPA) in 1995 and 2005. The 1995 EA examined the effects of regulations implementing section 118 of the 1994 Amendments of the MMPA on the affected environment. The 2005 EA analyzed the environmental impacts of continuing the existing scheme (as described in the 1995 EA) for classifying fisheries on the LOF. The 1995 EA and the 2005 EA concluded that implementation of MMPA section 118 regulations would not have a significant impact on the human environment. NMFS reviewed the 2005 EA in 2009. NMFS concluded that because there were no changes to the process used to develop the LOF and implement section 118 of the MMPA, there was no need to update the 2005 EA. This rule would not change NMFS's current process for classifying fisheries on the LOF; therefore, this rule is not expected to change the analysis or conclusion of the 2005 EA and FONSI, and no update is needed. If NMFS takes a management action, for example, through the development of a TRP, NMFS would first prepare an environmental document, as required under NEPA, specific to that action.

This rule would not affect species listed as threatened or endangered under the Endangered Species Act (ESA) or their associated critical habitat. The impacts of numerous fisheries have been analyzed in various biological opinions, and this rule will not affect the conclusions of those opinions. The classification of fisheries on the LOF is not considered to be a management action that would adversely affect threatened or endangered species. If NMFS takes a management action, for example, through the development of a TRP, NMFS would consult under ESA section 7 on that action.

This rule would have no adverse impacts on marine mammals and may have a positive impact on marine mammals by improving knowledge of marine mammals and the fisheries interacting with marine mammals through information collected from observer programs, stranding and sighting data, or take reduction teams.

This rule would not affect the land or water uses or natural resources of the coastal zone, as specified under section 307 of the Coastal Zone Management Act.

References

Allen, B.M. and R.P. Angliss, editors. 2015. Alaska Marine Mammal Stock Assessments, 2014. NOAA Tech. Memo. NMFS-AFSC-301. 270 p.

Boggs, C.H., D.P. Gonzales, and R.M. Kokubun. 2015. Marine mammals reported under catch lost to predators on fishermen's commercial catch reports to the State of Hawaii, 2003-2014. NMFS Pacific Islands Fisheries Science Center Data Report DR-15-006. 14 p.

Carretta, J.V., E. Oleson, D.W. Weller, A.R. Lang, K.A. Forney, J. Baker, B. Hanson, K Martien, M.M. Muto, M.S. Lowry, J. Barlow, D. Lynch, L. Carswell, R.L. Brownell Jr., D.K. Mattila, and M.C. Hill. 2015. U.S. Pacific Marine Mammal Stock Assessments: 2014. NOAA Technical Memorandum NOAA-TM-NMFS-SWFSC-549. 78 p.

Hatfield, B.B., J.A. Ames, J.A. Estes, M.T. Tinker, A.B. Johnson, M.M. Staedler, and M.D. Harris. 2011. Sea otter mortality in fish and shellfish traps: estimating potential impacts and exploring possible solutions. Endangered Species Research 13:219-229.

McCracken, M.L. 2010. Adjustments to false killer whale and short-finned pilot whale bycatch estimates. NMFS Pacific Islands Fisheries Science Center Working Paper WP-10-007. 23 p.

McCracken, M.L. 2014. Assessment of Incidental Interactions with Marine Mammals in the Hawaii Deep and Shallow Set Fisheries from 2008 through 2012. NMFS Pacific Islands Fisheries Science Center, PIFSC Internal Report IR-14-006. 1 p. + Excel spreadsheet.

NMFS (National Marine Fisheries Service). 2004. Evaluating bycatch: a national approach to standardized bycatch monitoring programs. U.S. Dep. Commer., NOAA Tech. Memo. NMFSF/SPO-66, 108 p. On-line version, http://spo.nmfs.noaa.gov/tm.

Waring, G.T., E. Josephson, K. Maze-Foley, and P.E. Rosel, editors. 2015a. U.S. Atlantic and Gulf of Mexico Marine Mammal Stocks Assessments, 2014. NOAA Technical Memorandum NOAA-NE-231. 355 p.

Waring, G.T., E. Josephson, K. Maze-Foley, and P.E. Rosel, editors. 2015b. Draft U.S. Atlantic and Gulf of Mexico Marine Mammal Stocks Assessments, 2015. NOAA Technical Memorandum NOAA-NE-xxx. 524 p. Available at: http://www.nmfs.noaa.gov/pr/sars/pdf/atl2015_draft.pdf.