List of Fisheries for 2004

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

The National Marine Fisheries Service (NMFS) is publishing its final List of Fisheries (LOF) for 2004, as required by the Marine Mammal Protection Act (MMPA). The final LOF for 2004 reflects new information on interactions between commercial fisheries and marine mammals. NMFS must categorize each commercial fishery on the LOF into one of three categories under the MMPA based upon the level of serious injury and mortality of marine mammals that occurs incidental to each fishery. The categorization of a fishery in the LOF determines whether participants in that fishery are subject to certain provisions of the MMPA, such as registration, observer coverage, and take reduction plan requirements.

DATES:

This final rule is effective September 9, 2004. However, compliance with the requirement to register with NMFS and to obtain an authorization certificate is not required until January 1, 2005, for fisheries added or elevated to Category I in this final rule. For fisheries affected by the delay, see SUPPLEMENTARY INFORMATION.

Compliance Date for Registration Under the MMPA

Compliance with the requirement to register with NMFS and to obtain an authorization certificate is not required until January 1, 2005, for the Hawaii Swordfish, Tuna, Billfish, Mahi Mahi, Wahoo, Oceanic Sharks Longline/Set Line Fishery (Hawaii longline fishery), which is elevated to Category I for the 2004 LOF. The abovementioned fishery is considered to be a Category I fishery on September 9, 2004, and is required to comply with all requirements of Category I fisheries (i.e., complying with applicable take reduction plan requirements and carrying observers, if requested), other than the registration requirement on that date.

ADDRESSES:

Registration information, materials, and marine mammal reporting forms may be obtained from several regional offices. Registration information, materials, and marine mammal reporting forms may be obtained from the following regional offices:

NMFS, Northeast Region, One Blackburn Drive, Gloucester, MA 01930-2298, 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: Don Peterson;

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 9th Street, Juneau, AK 99802.

FOR FURTHER INFORMATION CONTACT:

For additional information or general questions on the LOF, please contact the following NMFS staff:

Kristy Long, Office of Protected Resources, 301-713-1401;

David Gouveia, Northeast Region, 978-281-9328;

Juan Levesque, Southeast Region, 727-570-5312;

Cathy Campbell, Southwest Region, 562-980-4060;

Brent Norberg, Northwest Region, 206-526-6733;

Tamra Faris, Pacific Islands Region, 808-973-2937;

Bridget Mansfield, Alaska Region, 907-586-7642.

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 serious injury and mortality of marine mammals occurring in each fishery (16 U.S.C. 1387 (c)(1)). The categorization of a fishery in 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 Stock Assessment Reports 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 at 50 CFR 229.2.

Tier 1: If the total annual mortality and serious injury of a marine mammal stock, across all fisheries, is less than or equal to 10 percent of the PBR level of the stock, all fisheries interacting with the stock would be placed in Category III. Otherwise, these fisheries are subject to the next tier (Tier 2) of analysis to determine their classification.

Tier 2, Category I: Annual mortality and serious injury of a stock in a given fishery is greater than or equal to 50 percent of the PBR level.

Tier 2, Category II: Annual mortality and serious injury of a stock in a given fishery is greater than 1 percent and less than 50 percent of the PBR level.

Tier 2, Category III: Annual mortality and serious injury of a stock in a given fishery is less than or equal to 1 percent of the PBR level.

While Tier 1 considers the cumulative fishery mortality and serious injury for a particular stock, Tier 2 considers fishery-specific mortality and serious injury for a particular stock. Additional details regarding how the categories were determined are provided in the preamble to the final rule implementing section 118 of the MMPA (60 FR 45086, August 30, 1995).

Since fisheries are categorized 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 categorized on the LOF at its highest level of classification (e.g., a fishery qualifying for Category III for one marine mammal stock and for Category II for another marine mammal stock will be listed under Category II).

Other Criteria That May Be Considered

In the absence of reliable information indicating the frequency of incidental mortality and serious injury of marine mammals by a commercial fishery, NMFS will determine whether the incidental serious injury or mortality qualifies for Category II 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).

How Do I Find Out if a Specific Fishery Is in Category I, II, or III?

This final rule includes two tables that list all U.S. commercial fisheries by LOF Category. Table 1 lists all of the fisheries in the Pacific Ocean (including Alaska). Table 2 lists all of the fisheries in the Atlantic Ocean, Gulf of Mexico, and Caribbean.

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 from NMFS in order to lawfully incidentally take a marine mammal in a commercial fishery. 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?

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 an integrated registration program (described below). Upon receipt of a completed registration, NMFS will issue vessel or gear owners physical evidence of a current and valid registration that must be displayed or in the possession of the master of each vessel while fishing in accordance with 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 process with existing State and Federal fishery license, registration, or permit systems and related programs. Participants in these fisheries are automatically registered under the MMPA and are not required to submit registration or renewal materials or pay the $25 registration fee. Following is a list of integrated fisheries and a summary of the integration process for each Region. Fishers who operate in an integrated fishery and have not received registration materials should contact their NMFS Regional Office (see ADDRESSES).

Which Fisheries Have Integrated Registration Programs?

The following fisheries have integrated registration programs under the MMPA:

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 is required.

Individuals fishing in fisheries for which no state or Federal permit is required must register with NMFS by contacting the Northeast Regional Office (see ADDRESSES); and

4. All North Carolina, South Carolina, Georgia, and Florida Category I and 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 send renewal packets to previously registered participants in Category I or II fisheries. However, it is the responsibility of the fisher to ensure that registration or renewal forms are completed and submitted to NMFS at least 30 days in advance of fishing. Individuals who have not received a renewal packet by January 1 or are registering for the first time should request a registration form from the appropriate Regional Office (see ADDRESSES).

Am I Required To Submit Reports When I Injure or Kill a Marine Mammal During the Course of Commercial Fishing Operations?

In accordance with the MMPA (16 U.S.C. 1387(e)) and 50 CFR 229.6, any vessel owner or operator, or fisher (in the case of non-vessel fisheries), participating in a Category I, II, or III fishery must report to NMFS all incidental injuries and mortalities of marine mammals that occur during commercial fishing operations. “Injury” is defined in 50 CFR 229.2 as a wound or other physical harm. In addition, any 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. Instructions on how to submit reports can be found in 50 CFR 229.6.

Am I Required To Take an Observer Aboard My Vessel?

Fishers participating in a Category I or II fishery are required to accommodate an observer aboard vessel(s) upon request. Observer requirements can be found in 50 CFR 229.7.

Am I Required To Comply With Any Take Reduction Plan Regulations?

Fishers participating in a Category I or II fishery are required to comply with any applicable take reduction plans.

Sources of Information Reviewed for the Proposed 2004 LOF

NMFS reviewed the marine mammal incidental serious injury and mortality information presented in the Stock Assessment Reports (SARs) for all observed fisheries to determine whether changes in fishery classification were warranted. NMFS SARs are based on the best scientific information available, including information on the level of serious injury and mortality of marine mammals that occurs incidental to commercial fisheries and the PBR levels of marine mammal stocks. NMFS also reviewed other sources of new, relevant information, including marine mammal stranding data, observer program data, fisher self-reports, and other information that is not included in the SARs. Additionally, NMFS took into account information presented at a workshop from June 2-3, 2004, to review data used in the proposed categorization of the Hawaii longline fishery.

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 the Caribbean. The SRGs were created by the MMPA to review the science that goes into the SARs, and to advise NMFS on population status and trends, stock structure, uncertainties in the science, research needs, and other issues.

The LOF for 2004 was based, among other things, on information provided in the final SARs for 1996 (63 FR 60, January 2, 1998), the final SARs for 2001 (67 FR 10671, March 8, 2002), the final SARs for 2002 (68 FR 17920, April 14, 2003), and the draft SARs for 2003 (68 FR 51561, August 27, 2003).

Comments and Responses

NMFS received 10 comment letters on the proposed 2004 LOF (69 FR 19365, April 13, 2004) from environmental, commercial fishing, and Federal and State interests. Issues outside the scope of the LOF are not responded to in this final rule. Any comments received after the public comment period closed on June 14, 2004, are not responded to in this final rule.

General Comments

Comment 1: One commenter disapproved of the fishery classification criteria used for the LOF, but did not offer an alternative suggestion for the criteria.

Response: The current fishery classification system is based on a two-tiered, stock-specific approach that first addresses the total impacts of all fisheries on each marine mammal stock and then addresses the impacts of individual fisheries on each stock (60 FR 31666, June 16, 1995). Tier 1 considers the additive fishery mortality and serious injury for a particular stock, while Tier 2 considers fishery-specific mortality for a particular stock. This approach is based on the rate, in numbers of animals per year, of serious injuries and mortalities due to commercial fishing relative to a stock's PBR level. Under the Tier 1 analysis, if the total annual mortality and serious injury across all fisheries that interact with a stock is less than or equal to 10 percent of the PBR level of such a stock, then all fisheries interacting with this stock would be placed in Category III. Otherwise, these fisheries are subject to the next tier to determine their classification. Under the Tier 2 analysis, those fisheries in which annual mortality and serious injury of a stock in a given fishery is greater than or equal to 50 percent of the stock's PBR level are placed in Category I, while those fisheries in which annual mortality and serious injury is greater than 1 percent and less than 50 percent of the stock's PBR level are placed in Category II. Individual fisheries in which annual mortality and serious injury is less than or equal to 1 percent of the PBR level would be placed in Category III. The threshold between Tier 1 and Tier 2 was set at 10 percent of the PBR level based on recommendations that arose from a PBR Workshop held in La Jolla, California in June 1994. The Workshop Report indicated if the total annual incidental serious injury and mortality level for a particular stock did not exceed 10 percent of the PBR level, the amount of time necessary for that population to achieve the optimum sustainable population level would only increase by 10 percent. Thus, 10 percent of the PBR level for a particular stock was equated to “biological insignificance.” This approach ensures that fisheries are categorized based on their impacts on stocks and allows NMFS to focus resources on those fisheries that have a significant impact on marine mammals.

This approach is based on the fact that the MMPA established both a short-term and a long-term goal with respect to take reduction plans for reducing marine mammal mortality and serious injury incidental to commercial fishing operations. MMPA section 118(f)(2) provides: “The immediate goal of a take reduction plan for a strategic stock shall be to reduce, within 6 months of its implementation, the incidental mortality or serious injury of marine mammals incidentally taken in the course of commercial fishing operations to levels less than the potential biological removal established for that stock under section 117. The long-term goal of the plan shall be to reduce, within 5 years of its implementation, the incidental mortality or serious injury of marine mammals incidentally taken in the course of commercial fishing operations to insignificant levels approaching a zero mortality and serious injury rate, taking into account the economics of the fishery, the availability of existing technology, and existing State or regional fishery management plans.” NMFS established the tier-based fishery classification system with each goal in mind and to ensure that fisheries progressively move toward the long-term goal of the MMPA.

Comment 2: One commenter called into question NMFS' execution of the LOF, particularly that all fisheries should be listed as Category I.

Response: Section 118 of the MMPA (16 U.S.C. 1387(c)(1)) and the regulations implementing that section (50 CFR part 229) specify how NMFS executes the annual LOF. NMFS reexamines commercial fisheries each year to determine whether changes are needed. Proposed and final LOFs must categorize each commercial fishery based on the definitions of Category I, II, and III fisheries (50 CFR 229.2), list the marine mammals that have been incidentally injured or killed by commercial fishing operations, and estimate the number of vessels or persons involved in each commercial fishery. See Response to Comment 1.

Comment 3: One commenter stated that all high seas fisheries conducted by U.S. flagged vessels should be listed on the LOF. In particular, the commenter suggested adding the U.S. Patagonian toothfish longline fishery and the U.S. trawl fishery for krill as Category II fisheries until further information is available. The commenter noted several other fisheries, including the Cobb Seamount, Pacific pelagic squid jig, and South Pacific tuna purse seine, that should be analyzed for interactions with marine mammals and appropriately classified on the LOF.

Response: NMFS must publish any proposed changes to the LOF in the Federal Register to allow for notice and opportunity for public comment. Therefore, NMFS cannot add these new fisheries to the 2004 final LOF because it is beyond the scope of what was included in the proposed 2004 LOF. NMFS will consider this comment and whether the LOF applies to high seas fisheries during development of future proposed LOFs.

Comments on Fisheries in the Pacific Ocean

Comment 4: One commenter stated that gillnet fisheries in Alaska may require more observer coverage than current fishery classifications allow.

Response: NMFS works annually through the National Observer Program to obtain resources necessary to monitor Alaska gillnet fisheries. Funds are limited; therefore NMFS rotates observer coverage among gillnet fisheries based on statutory priorities (16 U.S.C. 1387(d)) and specific time cycles. The Alaska gillnet fisheries on the LOF (nearshore salmon drift and set gillnet fisheries) are managed by the State of Alaska's Department of Fish and Game. These fisheries were originally placed into Category II as unobserved fisheries. The Category II designation was made for these fisheries, where little or no information on marine mammal takes for the specific fisheries was available, because gillnet fisheries worldwide have been demonstrated as having the capability of causing significant numbers of mortalities and serious injuries to marine mammals. The only Alaska gillnet fisheries currently in Category III are those fisheries that have been observed and subsequent analyses of observer data indicate these fisheries meet the threshold for a Category III designation. The remainder of the unobserved Alaska gillnet fisheries continue to remain in Category II until such time that they can be observed and data are obtained that indicate a change in fishery classification is warranted. Several Alaska gillnet fisheries that have been observed remain in Category II due to analyses of observer data that indicate a Category II threshold has been met for each of those fisheries.

Comment 5: NMFS received several comments supporting the delineation of Alaska fisheries. One commenter stated that NMFS should reclassify fisheries appropriately after analyses on the new fisheries are completed. Another commenter was concerned that subdividing Alaska fisheries creates the appearance of fewer impacts on marine mammals, when a larger fishery as previously delineated may have met the threshold for classification as a Category I or II fishery.

Response: NMFS plans to complete the analyses on all Alaska fisheries and appropriately propose reclassification of those fisheries that meet the criteria for Category I and II fisheries in the 2005 proposed LOF. The analysis for fishery classification is designed to take into effect the cumulative impacts of multiple fisheries on marine mammal stocks. NMFS continues to work toward supporting increased observer coverage in all Category I and II fisheries across the country, including fisheries in Alaska, to improve the accuracy of marine mammal bycatch estimates.

The Alaska fisheries delineated in the 2004 proposed LOF as individual fisheries were separated to more accurately reflect the actual management and operational practices of those fisheries and to keep better track of marine mammal serious injuries and mortalities occurring in different sectors of the fishery. This is being implemented as a two-step process, the delineation of the fisheries in 2004 followed by analyses to reclassify the fisheries as appropriate in the 2005 proposed LOF. The analyses will be performed according to the existing protocol used to categorize fisheries. Documented mortalities and serious injuries used in previous analyses to categorize the fisheries will be assigned to one of the newly delineated fisheries. Any additional documented serious injuries or mortalities will likewise be assigned to the appropriate fishery. These changes will also be made in the SARs for each of the relevant marine mammal stocks. These changes will provide a more accurate understanding of the interactions between marine mammals and various Alaska fisheries. Prior to these changes, large groups of diverse fisheries were artificially lumped together based only on gear type over vast geographic areas of the Bering Sea and the Gulf of Alaska.

Comment 6: One commenter suggested that NMFS update relevant SARs with the new Alaska fishery delineations, determine which trawl and pot fisheries interact with the central and western North Pacific stocks of humpback whales, and recategorize the fisheries accordingly.

Response: Delineating the Alaska trawl and pot fisheries by area and target species will allow NMFS to better evaluate interactions between the central and western North Pacific humpback whale stocks and specific fisheries. NMFS will analyze relevant data and propose fishery classifications accordingly. See Response to Comment 5.

Comment 7: One commenter suggested separating out the yellowfin sole fishery from the Bering Sea and Aleutian Islands (BSAI) flatfish trawl fishery because the fishery has its own total allowable catch (TAC) and prohibited species catch (PSC). The commenter also noted that some vessels that target yellowfin sole do not target other flatfish species. Additionally, the yellowfin sole fishery operates in the relatively shallow waters along the sand bottom shelf areas of the central and northern portions of the Bering Sea where interactions with marine mammals seems unlikely.

Response: The BSAI flatfish trawl fishery was designated as a single fishery in the proposed 2004 LOF based on information indicating an overlap in the prosecution of the flatfish trawl fisheries of the BSAI. As noted in the public comment, the yellowfin sole fishery has its own TAC and PSC quotas, as do other flatfish fisheries, and some separation exists in time and areas of prosecution of these fisheries. However, while the yellowfin sole fishery can be prosecuted at times with few interactions with marine mammals, significant overlap of the fishery occurs particularly with the rock sole, flathead sole, and Alaska plaice fisheries, with vessels catching these other species together with yellowfin sole in the same trip and haul. The overlap of these fisheries prevents listing the yellowfin sole fishery separately in the LOF.

Comment 8: One commenter stated that the reclassification of the CA/OR thresher shark/swordfish drift gillnet fishery (≥14 in. mesh) from Category I to Category II was premature and should be reversed. The commenter noted that the fishery still interacts with a wide range of stocks and the annual take of sperm whales is 47.8 percent of the stock's PBR level, just under the threshold for inclusion in Category I.

Response: The CA/OR thresher shark/swordfish drift gillnet fishery (≥14 in. mesh) was moved from Category I to Category II in the 2003 final LOF (68 FR 41725, July 15, 2003). This change in fishery classification was based on observer data from 1997-2001 that indicated the take of marine mammals incidental to this fishery was less than 50 percent of the PBR level for those stocks that interact with the fishery. One observed take of a sperm whale occurred in this fishery in 1998, but no takes have been observed in the most recent 5 years of data from 1999-2003. Therefore, NMFS does not believe a change in fishery classification is warranted at this time. In an effort to reduce marine mammal serious injury and mortality, the owners and operators of CA/OR drift gillnet vessels operating in this fishery have been complying with the requirements of the Pacific Offshore Cetacean Take Reduction Plan, including carrying observers, using acoustic deterrents (pingers) on the nets, and complying with other gear modification requirements. Observers will continue to monitor this fishery, and if sperm whales are observed taken, NMFS will reevaluate this fishery.

Comment 9: Several commenters requested NMFS to extend the public comment period on the proposed 2004 LOF to accommodate a workshop on false killer whale population abundance and fishery interactions in the central Pacific Ocean (Workshop).

Response: NMFS agreed and the public comment period was extended from May 13, 2004, to June 14, 2004 (69 FR 26539, May 13, 2004), to accommodate the Workshop, which was held June 2-3, 2004 in Honolulu, Hawaii, and public comment resulting from the Workshop. The purpose of the Workshop was to discuss MMPA fishery classification requirements, specifically concerning the abundance and fishery interactions for false killer whales (Pseudorca crassidens) within the U.S. Exclusive Economic Zone (EEZ) around the Hawaiian Islands. The workshop also covered background information and procedures used to categorize the Hawaii longline fishery in the LOF. For a summary of the Workshop, please contact the Pacific Islands Regional Office (see ADDRESSES).

Comment 10: One commenter requested that NMFS reopen the comment period on the 2004 proposed LOF once the results of the Workshop on the Hawaii longline fishery and false killer whales were made available for public review.

Response: NMFS convened the Workshop to review available information and the process to reclassify the Hawaii longline fishery based on that information. NMFS staff, scientific experts, fishery representatives, and other interested members of the public participated in this Workshop. NMFS considered all information presented and discussed at the Workshop and public comment resulting from the Workshop in the decision to reclassify this fishery. See Response to Comment 9.

Comment 11: NMFS received several comments supporting the proposed elevation of the Hawaii longline fishery from Category III to Category I.

Response: NMFS has reclassified and elevated the fishery from Category III to Category I in the 2004 LOF.

Comment 12: One commenter recommended elevating the Hawaii longline fishery from Category III to Category II, instead of Category I, based on uncertainties surrounding the population abundance and mortality data. The commenter maintains that the NMFS 2002 survey on cetacean abundance in Hawaiian waters is flawed for two reasons. First, it was conducted between August and November when false killer whales are generally less abundant in Hawaiian waters. Second, the survey covered the entire EEZ while false killer whales are known to occur around islands rather than in the open ocean.

Response: At the June 2004 Workshop, relevant information was presented indicating that there was no evidence of seasonality in abundance of false killer whales in waters surrounding Hawaii (Baird, Workshop presentation; Kobayashi, Workshop presentation). In addition, limited data that are available from year-round surveys may actually suggest lower encounter rates during the late spring/early summer than during November-December. The commenter cited a reference (Stacey et al, 1994) to indicate evidence of seasonality in false killer whale abundance. However, that study discussed seasonality in false killer whales in temperate waters around Japan and off the coast of the former Soviet Union, not in tropical waters surrounding the Hawaiian Islands. The marine ecosystems surrounding Japan and the Hawaiian Islands are very different and, therefore, NMFS does not believe that the information in this reference is relevant to false killer whales in Hawaiian waters.

Based on the data, NMFS concludes false killer whales are not more common around the Hawaiian Islands than in the open ocean. Relevant data indicate false killer whale occurrences on the open sea, and published literature indicates that “False killer whales are found most often offshore, although there are occasional records from inshore waters * * *” (Stacey and Baird, 1991). Furthermore, nearshore sightings data from studies conducted around the main Hawaiian Islands since 1993 (Baird, Workshop presentation; Mobley 2003) have demonstrated that sightings are not frequent around the main Hawaiian Islands. Particularly, during the two most recent spring aerial surveys, conducted in 2000 and 2003, no false killer whales were seen around the Hawaiian Islands. The NMFS 2002 survey was conducted in the area where the Hawaii longline fishery operates around the Hawaiian Islands and was compared to the mortality and serious injury of false killer whales in the same area for purposes of classifying the fishery.

Comment 13: One commenter disagreed with NMFS' abundance estimates of the Hawaiian stock of false killer whales for the following reasons. The commenter noted, first, that NMFS’ data indicate that the Hawaiian stock of false killer whales exhibit seasonal abundance, possibly peaking coincident to yellowfin tuna peak abundance. Second, the commenter maintained there is information indicating false killer whale distribution varies not only by season, but possibly over years, which may be linked to El Nino effects on prey species. Third, the commenter criticized NMFS’ extrapolation of one sighting during the 2002 shipboard survey to a group of 10 individuals. The commenter noted that it is well-accepted that false killer whales are a highly social species found in group sizes averaging from 20 to 50 individuals. Fourth, the commenter disapproved of NMFS’ diving correction factor, stating that it does not reflect false killer whale behavior.

Response: NMFS disagrees with this comment. The abundance estimates are based on established scientific methods and were reviewed and accepted by the Pacific Scientific Review Group. The issues raised by the commenter are not indicative of deficiencies in the abundance estimates. First, neither the cited NMFS data (Walsh and Kobayashi, Draft Report, May 21, 2004), nor the data presented by independent scientists (Baird, Mobley) at the June workshop, provide any evidence for seasonality in the abundance of false killer whales around Hawaii. The NMFS draft report states “False killer whales (Figure A3c) were the most frequently sighted species, present in every EEZ except Jarvis, with no apparent seasonality” [emphasis added]. Second, NMFS agrees that interannual variability in false killer whale distribution may occur, and that additional years of data will improve the precision of the abundance estimate. However, the marine mammal stock assessment process under the MMPA was specifically designed to allow for levels of uncertainty in abundance similar to those observed for Hawaiian false killer whales. Third, the references cited by the commenter do not indicate substantially greater mean group sizes for false killer whales in tropical waters, such as those surrounding Hawaii. In the eastern tropical Pacific, Stacey and Baird (1991) report a mean group size of 18.1 false killer whales, contrasting with a mean group size of 55 in temperate waters off Japan (Stacey et al., 1994). Extensive NMFS survey data for tropical Pacific waters yielded an average group size of 11.4 false killer whales (Wade and Gerrodette, 1993). Thus, published estimates for tropical waters are similar to the group size of 10 false killer whales observed during the 2002 survey. Finally, the dive correction factor used in the estimation of abundance (Barlow, 2003) reflects a combination of false killer whale diving behavior and the search behavior of the observer team aboard NMFS research vessels during marine mammal surveys. Observations of false killer whales from longline vessels are fundamentally different in nature, and the proportion of animals missed is expected to differ. See also Response to Comment 12.

Comment 14: Two commenters noted that false killer whale abundance around Hawaii may actually be overestimated, not underestimated, as stated in the proposed 2004 LOF. Several reasons were given: (1) The relative proportion of false killer whales to all delphinids is similar between the Hawaiian EEZ and the ETP; (2) false killer whales in Hawaiian waters do not appear to dive for particularly long periods ; (3) two independent research projects found false killer whales to be uncommon around Hawaii; and (4) the abundance estimate may be biased because it is based on a correction factor developed for a suite of similar-sized delphinids, which often occur in groups smaller than false killer whale groups and are, therefore, more difficult to observe.

Response: NMFS agrees that it is possible that the abundance estimate for the Hawaiian stock of false killer whales may be overestimated. NMFS recognizes that the correction factor used for animals missed on the trackline during a survey could possibly be overestimated if false killer whales are more active and visible around Hawaii than false killer whales and similar-sized cetaceans in the ETP, which is where the correction factor was developed. These potential sources of minor upward bias in the false killer whale abundance estimates do not affect the classification of the Hawaii-based longline fishery, because there would be no change in the classification of the fishery or the designation of the Hawaiian stock of false killer whales as a strategic stock if potential sources of upward bias were identified and removed. The total annual mortality and serious injury of the Hawaiian stock of false killer whales would still exceed the PBR level. Therefore, the available abundance estimates are considered reliable for purposes of the classification of the fishery as Category I.

Comment 15: One commenter noted that a revised aerial survey abundance estimate that includes data from 2000 and 2003 would be lower than that presented in Mobley (2000).

Response: If aerial survey data from 2000 and 2003 (Mobley) were revised and combined with the results of the offshore surveys (Barlow 2003), the abundance estimate would be equal to or less than the estimate presented in Barlow (2003). If an updated abundance estimate including the 2000 and 2003 aerial survey results were available, the Hawaiian stock of false killer whales would remain a strategic stock, and the Hawaii-based longline fishery would remain a category I fishery. See also the Response to Comment 14.

Comment 16: One commenter recommended that NMFS undertake a new population survey that accounts for the known seasonality of false killer whale abundance in the Hawaiian Islands EEZ before publishing the 2005 LOF.

Response: There is no known seasonality of false killer whales in the Hawaiian Islands EEZ. Neither NMFS observer data (Walsh and Kobayashi, Draft Report, May 21, 2004), nor data presented by independent scientists (Baird, Mobley) at the June 2004 workshop, provide any evidence for seasonality in the abundance of false killer whales around Hawaii.

Comment 17: One commenter noted that NMFS has defined the false killer whale stock in the Hawaiian EEZ as a strategic stock, based on genetic evidence suggesting false killer whales between the central North Pacific (Hawaii) are separate, reproductively isolated populations from false killer whales in the ETP. However, the commenter notes the degree of separation between these false killer whales is not known, and the geographic boundaries for the populations cannot yet be identified. False killer whales have been taken by the Hawaii longline fishery in an area ranging from north of the Hawaiian EEZ to the equator. Are all of these false killer whales from the same population or from separate isolated populations? If from the same population, then the designation of a strategic stock in the Hawaii EEZ would be questionable.

Response: The Hawaiian stock of false killer whales is considered a strategic stock under the MMPA because fishery-related mortality and serious injury exceeds the PBR level for this stock (see 16 U.S.C. 1362(19)).

Genetic analysis of samples from false killer whales in the North Pacific Ocean indicates population structure, but geographic boundaries of the various populations cannot yet be identified. However, the evidence for reproductive isolation and strong genetic differentiation of individuals sampled around Hawaii from individuals sampled in the ETP is solid. Furthermore, NMFS” current mortality and serious injury estimates are based only on takes within the U.S. EEZ and compared to PBR levels derived from abundance estimates for waters within the U.S. EEZ. In addition, even if the actual boundaries of the Hawaiian stock of false killer whales extended beyond the EEZ, the strategic status of the stock would not be changed. NMFS” guidelines for preparing marine mammal stock assessment reports contain specific instructions for calculating PBR of trans-boundary stocks. (The guidelines are available in electronic form at http://nmml.afsc.noaa.gov/library/gammsrep/gammsrep.htm.) In cases such as false killer whales in the Hawaiian EEZ, where the stock could extend into international waters, the PBR would be based on the abundance of animals within the EEZ. This guideline was established to prevent underestimating the effects of mortality and serious injury incidental to U.S. fisheries in international waters where unknown levels of additional human-caused mortality and serious injury (e.g., incidental to foreign fisheries in the same waters) may also be affecting the stock. NMFS does, however, plan to try to obtain additional genetic samples from a broader geographic range to help define stock boundaries.

Comment 18: One commenter stated that estimated mortality of false killer whales in the Hawaii longline fishery may be underestimated for several reasons, including: (1) some hooked and thus seriously injured whales may break free of the gear before reaching the boat, (2) some false killer whales from the Hawaiian stock may be taken outside the U.S. EEZ; (3) false killer whales observed taken in Palmyra's EEZ may be part of the Hawaiian stock; and (4) several observed interactions with unidentified cetaceans are likely to have been false killer whales. If the number of unidentified cetaceans seriously injured or killed in the Hawaii longline fishery was pro-rated in proportion to the known mortality and serious injury of the potential species involved, the estimated takes of false killer whales within the Hawaiian EEZ would increase.

Response: Mortality of false killer whales in the Hawaii longline fishery may be underestimated. NMFS intends to obtain additional data to clarify the stock structure and genetic differentiation of animals found in waters surrounding Palmyra Island versus those in the Hawaiian EEZ and in international waters of the tropical Pacific . See Response to Comment 17.

Comment 19: One commenter noted that NMFS incorrectly states, “Since 1998, only one false killer whale has been observed killed in the Hawaiian EEZ” (69 FR 19368, May 13, 2004). The commenter stated that serious injury and mortality estimates should not have been based on this interaction because it is over five years old.

Response: The proposed 2004 LOF does contain an error; since 1998, only one false killer whale has been observed seriously injured in the Hawaiian EEZ. The individual was released with a hook in the mouth and trailing line. Based on NMFS” serious injury guidelines, any cetacean released with trailing gear is considered seriously injured. By definition, a serious injury is one that will likely result in mortality (50 CFR 229.2). Furthermore, section 118 of the MMPA treats mortality and serious injury equally.

NMFS mortality estimates are based on information presented in the most recent SAR. Based on NMFS” guidelines for preparing SARs, serious injury and mortality rates are generally based on the most recent 5-year averages of data available when the SAR is drafted (e.g., 1997-2001 for the 2003 SARs).

Comment 19a: One commenter stated re-opening the area closed to swordfish fishing will likely increase takes of false killer whales by the Hawaii longline fishery.

Response: Comment noted.

Comment 20: Two commenters expressed concerns regarding NMFS protocols for assessing serious injuries of false killer whales and requested NMFS to revisit its serious injury guidelines or develop a more refined assessment method. In particular, one commenter requested NMFS to convene a workshop to specifically address serious injury guidelines for false killer whales, since the commenter does not believe an individual hooked in the mouth is likely to die.

Response: NMFS convened a workshop of experts in marine mammal biology, marine mammal medicine, and fishing technologies in April 1997. The results of this workshop included guidelines for differentiating serious and non-serious injuries of marine mammals incidental to commercial fishing operations, which were published as a NOAA Technical Memorandum (NMFS-OPR-13 1998), and have been used to determine severity of injuries to false killer whales and other cetaceans in the Hawaii longline fishery. The publication process included scientific peer review. These guidelines represent a compilation of the best scientific information available at the time and have not been updated since 1997. Additional data, particularly on large whales, have been collected since the workshop was convened. When these additional data have been compiled and analyzed, NMFS will update the guidelines as needed.

Comment 21: One commenter urged NMFS to increase observer coverage to more accurately estimate serious injury and mortality of marine mammals incidental to the Hawaii longline fishery.

Response: There is 100-percent observer coverage in the shallow-set component and 20-percent observer coverage in the deep-set component of the Hawaii longline fishery beginning in 2004, as mandated by an Endangered Species Act section 7 biological opinion on sea turtle interactions with the fishery, and these observers are trained to collect information on interactions with all protected species. Given the relatively long history of the deep-set component and our understanding of fishing practices, catch, and interactions with protected species, 20 percent is a sufficient level of coverage in the deep-set component of the fishery.

Comment 22: One commenter stated that, under the National Environmental Policy Act (NEPA), NMFS should not rely on the Environmental Assessment (EA) prepared for regulations to implement section 118 of the MMPA (1995 EA) for the 2004 LOF.

Response: The 1995 EA concluded that implementation of these regulations would not have a significant impact on the human environment. This final rule would not make any significant change in the management of reclassified fisheries, and therefore, this final rule is not expected to change the analysis or conclusion of the 1995 EA. If NMFS takes a management action, for example, through the development of a TRP, NMFS will first prepare the appropriate environmental analysis as required under NEPA specific to that action.

Comment 23: One commenter stated that NMFS did not comply with the Regulatory Flexibility Act (RFA) in preparing the 2004 LOF.

Response: NMFS complied with the RFA. The Chief Counsel for Regulation of the Commerce Department certified to the Chief Counsel for Advocacy of the Small Business Administration that the rule would not have a significant economic impact on a substantial number of small entities. (See 5 U.S.C. 605 and the Classification section of the proposed rule, 69 FR 19365, April 13, 2004.) As a result, no initial or final regulatory flexibility analysis was required. For convenience, the factual basis leading to the certification is repeated below.

Under existing regulations, all fishers participating in Category I or II fisheries must register under the MMPA, obtain an Authorization Certificate, and pay a fee of $25. Additionally, fishers may be subject to a take reduction plan and requested to carry an observer. The Authorization Certificate authorizes the taking of marine mammals incidental to commercial fishing operations. NMFS has estimated that approximately 41,600 fishing vessels, most of which are small entities, operate in Category I or II fisheries, and therefore, are required to register. However, registration has been integrated with existing State or Federal registration programs for the majority of these fisheries so that the majority of fishers do not need to register separately under the MMPA. Currently, approximately 5,800 fishers register directly with NMFS under the MMPA authorization program.

This rule proposes to elevate the Hawaii Swordfish, Tuna, Billfish, Mahi Mahi, Wahoo, Oceanic Sharks Longline/Set Line Fishery to Category I in the LOF. Therefore participants in this fishery (140 participants) would be required 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 not considered a significant economic impact. If a vessel is requested to carry an observer, fishers will not incur any economic costs associated with carrying that observer. As a result of this certification, an initial regulatory flexibility analysis was not prepared. In the event that reclassification of a fishery to Category I or II results in a take reduction plan, economic analyses of the effects of that plan will be summarized in subsequent rulemaking actions.

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

Comment 24: Several commenters recommended elevating the Gulf of Mexico blue crab trap/pot fishery from Category III to Category II due to interactions with bottlenose dolphins. One commenter also recommended that NMFS institute an observer program in this fishery to obtain more reliable information.

Response: As stated in the 2004 proposed LOF (69 FR 19365, 19370, April 13, 2004), NMFS believes it is necessary to investigate stock structure of bottlenose dolphins in the Gulf of Mexico and intends to reevaluate this fishery as relevant information becomes available. The vast majority of NMFS resources for bottlenose dolphin research is being expended in the Atlantic Ocean to satisfy the needs of the Atlantic Bottlenose Dolphin Take Reduction Team (TRT). As the needs of this existing TRT are met, NMFS plans to shift resources to the Gulf of Mexico to better define bottlenose dolphin stock structure and interactions with fisheries in this area. However, NMFS does not have adequate information at this time to change the classification of this fishery.

Comment 25: One commenter recommended NMFS reclassify the Gulf of Mexico menhaden purse seine fishery as a Category I fishery and direct more observer effort to determining the level of fishery interactions with bottlenose dolphins.

Response: NMFS believes it is necessary to investigate the stock structure of bottlenose dolphins in the Gulf of Mexico and monitor interactions between bottlenose dolphins and the Gulf of Mexico menhaden purse seine fishery and Gulf of Mexico gillnet fishery. NMFS intends to reevaluate this fishery as relevant information becomes available. However, NMFS does not have adequate information at this time to change the classification of this fishery. See Response to Comment 24. See also the 2003 LOF, for the response to a similar comment (68 FR 41725, 41730; July 15, 2003).

Comment 26: One commenter recommended NMFS reclassify the Gulf of Mexico gillnet fishery as a Category I fishery given that bottlenose dolphin population structure in the Gulf of Mexico is composed of numerous stocks with low PBR levels.

Response: See Response to Comment 25.

Comment 27: One commenter strongly urged NMFS to promptly respond to, and necropsy, strandings in the southeast U.S. to assess patterns and levels of marine mammal interactions with the Gulf of Mexico blue crab trap/pot fishery.

Response: The marine mammal stranding network has established protocols in place for responding to and investigating stranding events. The Level A data form that responders are required to use has a specific field to note any evidence of a fishery interaction. In the event that a fishery interaction is suspected, the network and the appropriate NMFS Regional Office and/or Science Center have protocols in place to investigate further and identify the fishery.

Comment 28: One commenter noted the expansion of open ocean aquaculture operations may warrant further consideration related to the LOF. The commenter stated that a proposal to expand aquaculture operations to old oil platforms in the Gulf of Mexico may cause interactions with bottlenose dolphins if the operation uses high intensity acoustic harassment devices. The commenter noted that the finfish or shellfish aquaculture fisheries currently listed on the LOF would not include this new operation.

Response: NMFS is aware of the expansion of aquaculture and growing concerns with aquaculture operations particularly as they relate to harassment of marine mammals. On January 12-13, 1999, NMFS held a marine aquaculture workshop to evaluate the potential effects of aquaculture operations on marine mammals and sea turtles. NMFS is considering additional workshops to further evaluate these operations for cases involving serious injuries and mortalities of marine mammals. NMFS believes the fishery classification criteria sufficiently address fishery-related interactions with aquaculture operations. NMFS is not aware of any proposals for the use of oil platforms as aquaculture facilities. The current marine aquaculture fisheries listed on the LOF, “Finfish aquaculture” and “Shellfish aquaculture,” apply to all aquaculture operations conducted in the Atlantic Ocean, Gulf of Mexico, and Caribbean.

Summary of Changes to the LOF for 2004

The following summarizes changes to the LOF in 2004 in fishery classification, fisheries listed on the LOF, the number of participants in a particular fishery, and the species and/or stocks that are incidentally killed or seriously injured in a particular fishery. The LOF for 2004 is identical to the LOF for 2003 with the following exceptions.

Fishery Classification

The “Hawaii Swordfish, Tuna, Billfish, Mahi Mahi, Wahoo, Oceanic Sharks Longline/Set Line Fishery” is elevated from Category III to Category I.

Addition of Fisheries to the LOF

The following fisheries are added to the LOF as Category III fisheries:

“AK Bering Sea and Aleutian Islands Atka Mackerel Trawl Fishery,” “AK Bering Sea and Aleutian Islands Flatfish Trawl Fishery,” “AK Bering Sea and Aleutian Islands Pacific Cod Trawl Fishery,” “AK Bering Sea and Aleutian Islands Pollock Trawl Fishery”, “AK Gulf of Alaska Flatfish Trawl Fishery,” “AK Gulf of Alaska Pacific Cod Trawl Fishery,” “AK Gulf of Alaska Pollock Trawl Fishery,” “AK Gulf of Alaska Rockfish Trawl Fishery,” “AK Aleutian Islands Sablefish Pot Fishery,” “AK Bering Sea Sablefish Pot Fishery,” “AK Bering Sea and Aleutian Islands Pacific Cod Pot Fishery,” “AK Gulf of Alaska Pacific Cod Pot Fishery,” “AK Southeast Alaska Shrimp Pot Fishery,” “AK Southeast Alaska Crab Pot Fishery,” “AK Gulf of Alaska Crab Pot Fishery,” “AK Bering Sea and Aleutian Islands Crab Pot Fishery,” “AK Bering Sea and Aleutian Islands Greenland Turbot Longline Fishery,” “AK Bering Sea and Aleutian Islands Pacific Cod Longline Fishery,” “AK Bering Sea and Aleutian Islands Rockfish Longline,” “AK Bering Sea and Aleutian Islands Sablefish Longline Fishery,” “AK Gulf of Alaska Sablefish Longline Fishery,” “AK Gulf of Alaska Pacific Cod Longline Fishery,” “AK Gulf of Alaska Flatfish Longline Fishery,” and “AK Gulf of Alaska Rockfish Longline.”

Removal of Fisheries From the LOF

The following fisheries are removed from the 2004 LOF: The “AK Bering Sea and Gulf of Alaska Finfish Pot Fishery,” “AK Crustacean Pot Fishery,” “AK Bering Sea and Aleutian Islands Groundfish Longline/Set Line Fishery (federally regulated waters, including miscellaneous finfish and sablefish),” “AK Gulf of Alaska Groundfish Longline/Set Line Fishery (federally regulated waters, including miscellaneous finfish and sablefish),” “AK Bering Sea and Aleutian Islands Groundfish Trawl Fishery,” and “AK Gulf of Alaska Groundfish Trawl Fishery.”

Number of Vessels/Persons

The estimated number of participants in the “OR Swordfish Floating Longline Fishery” is updated to 1.

The estimated number of participants in the “WA Puget Sound Region Salmon Drift Gillnet Fishery” is updated to 210 based on 2003 permit data.

List of Fisheries

The following two tables list U.S. commercial fisheries according to their assigned categories under section 118 of the MMPA. The estimated number of vessels/participants 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 in a fishery, the number from the most recent LOF is used.

The tables also list the marine mammal species or stocks incidentally killed or injured in each fishery based on observer data, logbook data, stranding reports, and fisher reports. This list includes all species or stocks known to experience serious injury or mortality in a given fishery, but also includes species or stocks for which there are anecdotal or 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's placement in a given category. There are a few fisheries that are in Category II that have no recently documented interactions with marine mammals. Justifications for placement of these fisheries are by analogy to other gear types that are known to cause mortality or serious injury of marine mammals, as discussed in the final LOF for 1996 (60 FR 67063, December 28, 1995), and according to factors listed in the definition of “Category II fishery” in 50 CFR 229.2.

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.

Classification

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this rule will not have a significant economic impact on a substantial number of small entities. The factual basis for the certification appears elsewhere in the preamble to this rule and is not repeated here. As a result, no regulatory flexibility analysis was prepared. One comment was received regarding compliance with the RFA (Comment 23) and is responded to above. That comment did not cause a change in the certification previously made.

This final rule contains collection-of-information requirements subject to the Paperwork Reduction Act. The collection of information for the registration of fishers under the MMPA has been approved by the Office of Management and Budget (OMB) under OMB control number 0648-0293 (0.25 hours per report for new registrants and 0.15 hours per report for renewals). The requirement for reporting marine mammal injuries or moralities 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 collection of information, including suggestions for reducing burden, to NMFS and OMB (see ADDRESSES).

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

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

An environmental assessment (EA) was prepared under the National Environmental Policy Act (NEPA) for regulations to implement section 118 of the MMPA (1995 EA). The 1995 EA concluded that implementation of those regulations would not have a significant impact on the human environment. This final rule would not make any significant change in the management of reclassified fisheries, and therefore, this final rule is not expected to change the analysis or conclusion of the 1995 EA. If NMFS takes a management action, for example, through the development of a Take Reduction Plan (TRP), NMFS will first prepare an environmental document as required under NEPA specific to that action.

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

This final rule will 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 or take reduction teams.

This final rule will 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.