[Federal Register Volume 62, Number 1 (Thursday, January 2, 1997)]
[Rules and Regulations]
[Pages 33-47]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-33370]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 229
[Docket No. 950605147-6368-05; I.D. 040996D]
RIN 0648-AH33
Final List of Fisheries for 1997
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: In accordance with the Marine Mammal Protection Act of 1972,
as amended (MMPA), NMFS updates its final List of Fisheries (LOF) for
1997. The LOF classifies fisheries as Category I, II, or III, based on
their level of incidental mortalities and serious injuries of marine
mammals. The LOF informs the public of the level of interactions with
marine mammals in various U.S. commercial fisheries and which fisheries
are subject to certain provisions of the MMPA, such as the requirement
to register for Authorization Certificates. The registration of several
fisheries under this program, referred to as the Marine Mammal
Assessment Program (MMAP), has been successfully integrated with other
existing registration or permitting systems. NMFS also amends the
instructions for registration in part 229.
EFFECTIVE DATES: The amendments to part 229 are effective December 27,
1996. As of December 27, 1996, the effective period of the List of
Fisheries for 1996 (60 FR 67063, Dec. 28, 1995) is extended to February
28, 1997. The changes to the List of Fisheries for 1997 are effective
March 1, 1997.
ADDRESSES: Information and registration material for the region in
which a fishery occurs, and reporting forms, may be obtained from the
following addresses: NMFS, Northeast Region, One Blackburn Drive,
Gloucester, MA 01930-2298, Attn: Sandra Arvilla; NMFS, Southeast
Region, 9721 Executive Center Drive North, St. Petersburg, FL 33702;
NMFS, MMAP, Protected Species Management Division, 501 W. Ocean Blvd.,
Suite 4200, Long Beach, CA 90802-4213; NMFS Northwest Region, 7600 Sand
Point Way NE, Seattle, WA 98115, Attn: Permits office; NMFS-PMRD, P.O.
Box 22668, 709 West 9th Street, Juneau, AK 99082.
Comments regarding burden-hour estimates for collection-of-
information requirements contained in this final rule should be sent to
Chief, Marine Mammal Division, Office of Protected Resouces, 1315 East-
West Hwy, Silver Spring, MD 20910 and Office of Management and Budget
(OMB), Washington, D.C. 20502 (Attention: NOAA Desk Officer).
FOR FURTHER INFORMATION CONTACT: Robyn Angliss, Office of Protected
Resources, 301-713-2322; Douglas Beach, Northeast Region, 508-281-9254;
Charles Oravetz, Southeast Region, 813-570-5301; James Lecky, Southwest
Region, 310-980-4015; Brent Norberg, Northwest Region, 206-526-6140;
Steven Zimmerman, Alaska Region, 907-586-7235.
[[Page 34]]
SUPPLEMENTARY INFORMATION: Publication of the LOF, which places all
U.S. commercial fisheries into three categories based on their levels
of incidental mortality and serious injury of marine mammals, is
required by section 118 of the MMPA. Background information on the
history of the LOF and a discussion of the fishery classification
criteria are provided in the proposed LOF for 1997 (61 FR 37035, July
16, 1996). The fishery classification criteria are specified in the
implementing regulations for section 118 of the MMPA (50 CFR part 229).
Registration Requirements for Vessels Participating in Category I
and II Fisheries
Vessel or gear owners participating in Category I or II fisheries
must register under the MMPA, as required by 50 CFR 229.4. Registration
under the MMPA is administered by NMFS regional offices. Thus, the
procedures and fees associated with registration differs between
Regions. Under 50 CFR 229.4, the granting and administration of
Authorization Certificates is to be integrated and coordinated with
existing state and Federal fishery license, registration, or permit
systems and related programs, whenever possible. Alternative
registration programs have been or are being implemented in the Alaska
Region, Northwest Region, and Northeast Region. Special procedures and
instructions for registration in these Regions are provided in the next
section (see Region-Specific Registration Requirements).
If the granting and administration of authorizations has not been
integrated with state licensing, registration, or permitting systems,
owners of vessels or gear must obtain registration packets from the
NMFS Region in which their fishery operates. NMFS Regional Offices will
endeavor to send these packets to known participants in Category I or
II fisheries; however, it is the responsibility of fishers to ensure
that these packets are obtained and submitted to NMFS at least 30 days
in advance of fishing. The registration packet will typically include
an MMAP registration form, a list of those fisheries in each region
that require authorization in order to incidentally kill or injure
marine mammals (Category I and II fisheries), and an explanation of the
management regime, including instructions on reporting requirements.
The registration packet may also include an explanation of the changes
in the fishery classification criteria, guidance on deterring marine
mammals, and a reminder that intentional lethal takes of marine mammals
are no longer permitted except under certain specific conditions.
Vessel owners must submit the registration form and a $25 fee to
the NMFS Regional Office in which their fishery operates. NMFS will
send the vessel owner an Authorization Certificate, program decals, and
reporting forms within 60 days of receiving the registration form and
application fee.
If the granting and administration of authorizations under 50 CFR
229.4 is not integrated or coordinated with existing fishery licenses,
registrations, or related programs, requests for registration forms and
completed registration forms should be sent to the NMFS Regional
Offices listed in this notice under ADDRESSES.
Procedures for registering in each NMFS region are outlined in the
following section.
Region-Specific Registration Requirements for Category I and II
Fisheries
Alaska Region MMAP Registration for 1997
In 1997, registration in the MMAP for fishing vessels or set net
permit holders participating in Alaska Category II fisheries will be
integrated with the Alaska Department of Fish and Game (ADF&G) system
for registering commercial vessels and permitting set net fishing. The
information required for MMAP registration will be obtained by NMFS
directly from ADF&G and will be automatically incorporated into the
NMFS MMAP database. Vessel owners must indicate on their ADF&G vessel
registration form which Category II fishery they intend to participate
in during 1997. If a fishery is not indicated, the vessel will not be
registered in the MMAP. Registered vessel owners and set net operators
will then be sent an MMAP certificate for 1997, an MMAP decal, a
program information sheet, marine mammal injury and mortality reporting
forms, and a written statement to be signed and returned to NMFS
indicating whether any marine mammals had been injured or killed during
the vessel's commercial fishing operations in 1996. The vessel or set
net MMAP certificate will not be considered valid until the statement
indicating any injuries or mortalities to marine mammals during 1996
fishing operations is returned to NMFS. There will be no fee charged
for MMAP registration for 1997.
Northwest Region (NWR) MMAP Registration for 1997
In the Northwest Region, the States of Washington and Oregon have
agreed to continue their assistance in issuing Authorization
Certificates for Category I and II fishers as part of the fishing
license renewal process. There will be no additional charge to the
fishers for this service, and the registration instructions will remain
the same for 1997 as they were in 1996.
Southwest Region (SWR) MMAP Registration for 1997
SWR is in the process of integrating MMAP registration for Category
I and II fisheries that occur in California with the California
Department of Fish and Game's commercial fishery permit registration
program. However, this integration will not be completed before 1998.
For this reason, Category I and II vessel owners in California will
continue to register with SWR. In December 1996, vessel owners who
engaged in a Category I or II fishery in 1996 will receive a
registration packet in the mail. Any Category I or II vessel owner who
has not received an application package by December 1, 1996, may
request one from NMFS SWR (see ADDRESSES).
Southeast Region (SER) MMAP Registration for 1997
SER is in the process of integrating MMAP registration for Category
I and II fisheries that occur in the southeast U.S. Atlantic Ocean with
existing fishery registration programs. However, this integration will
not be completed before 1998.
The only state fisheries in Category I or II that are under SER
jurisdiction occur in North Carolina. State fishers in North Carolina
should expect to receive a registration packet in the mail. If a fisher
plans to participate in any state or Federal fishery in Category I or
II and a registration packet is not received, fishers should contact
SER (see ADDRESSES).
Northeast Region (NER) MMAP Registration for 1997
NER is integrating MMAP registration with state and Federal
permitting processes for the following fisheries: Gulf of Maine, U.S.
mid-Atlantic lobster fishery, Atlantic squid, mackerel, butterfish
trawl, and the New England multispecies sink gillnet fishery (including
but not limited to species as defined in the Northeast Multispecies
Fishery Management Plan, dogfish, and monkfish). The Category I sink
gillnet fishery includes regulated and non-regulated fisheries.
Participants in the
[[Page 35]]
federally regulated segment, the multispecies sink gillnet fishery,
will be registered in the MMAP automatically through integration with
the Federal permit process. Fishers who do not hold a Federal
multispecies sink gillnet permit and who fish with sink gillnet for
non-regulated species (dogfish and monkfish) are required to submit an
MMAP registration form and processing fee to NMFS.
Federally permitted participants in the squid, mackerel, butterfish
trawl fishery will be registered in the MMAP automatically through
integration with the Federal permit process. Fishers who do not hold a
Federal squid, mackerel, butterfish trawl permit and who trawl for
those species are required to submit an MMAP registration form and
processing fee to NMFS.
State and Federally permitted participants in the lobster trap/pot
fishery will be registered in the MMAP automatically through
integration with other permitting processes. The integrated
registration process is expected to be completed prior to the effective
date of this final rule. NMFS expects to issue information packages to
permitted fishers by March 1, 1997.
For all participants in fisheries for which NMFS has integrated
registration with permitting processes, the requirements to submit a
registration form and fee and to post an MMAP decal on the vessel will
be waived in 1997. A general certificate will be issued and will only
be valid if presented with a valid state or Federal fishing permit.
All fishers who plan to participate in any other Category I and II
fisheries in the NER must register under the MMAP by submitting a
registration or renewal form and the processing fee to NMFS.
Reporting: Vessel owners or operators, or fishers (in the case of
non-vessel fisheries), in Category I, II, or III, fisheries must comply
with 50 CFR 229.6 and report all incidental mortality and injury of
marine mammals during the course of commercial fishing operations to
NMFS Headquarters or appropriate NMFS Regional Office. ``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 and must be reported. Instructions for
submission of reports are found at 50 CFR 229.6(a).
Observers: Fishers participating in Category I and II fisheries may
be required, upon request, to accommodate an observer aboard their
vessels. Observer requirements may be found at 50 CFR 229.7.
Responses to Comments
NMFS received 15 comments on the proposed LOF. Many comments were
lengthy and raised many points of concern. Key issues and concerns are
summarized and responded to as follows:
General Comments
Comment 1: Timely data flow from the regional Fishery Science
Centers is important. In some cases, incidental take data are 2 or more
years behind. In addition, NMFS should focus on developing updated
stock assessments along with revised Potential Biological Removal (PBR)
levels. Failure to provide timely information on mortality or abundance
can result in incorrect categorization of fisheries and unnecessary
risk to marine mammal populations.
Response: NMFS agrees that the LOF should strive to classify
commercial fisheries based on the best scientific data available and
that NMFS should provide, when possible, updated mortality and serious
injury estimates and updated PBR levels for each LOF.
Estimates of incidental mortality and serious injury that are based
on observer data and used in the LOF are typically 2 years old. For
instance, the proposed LOF for 1998, which will be developed in early
1997, will be based on mortality and serious injury estimates from
1996. This data lag is unavoidable because of the time required for
entry and analysis of observer data and the time required to propose
and finalize a new LOF. NMFS is aware that some estimates of mortality
and serious injury of marine mammals in observed fisheries are more
than 2 years old, will continue to work towards improving both the
estimates and the timeline in which they are provided.
New draft Stock Assessment Reports (SARs), which include revised
estimates of stock-specific and fishery-specific mortality and serious
injury, and revised abundance estimates and associated PBR levels, are
expected to be made available to the public in the near future. If
final SARs are not available when the proposed LOF for 1998 is
developed, NMFS will base the proposed LOF for 1998 on the information
provided in the draft SARs.
Comment 2: Several commenters believed that the reclassification of
a fishery from Category III to either Category II or I in the LOF would
automatically result in the implementation of an observer program for
that fishery.
Response: The final regulations implementing section 118 of the
MMPA require that vessels in fisheries classified in Category I or II
to provide accommodations for observers if requested by NMFS (50 CFR
229.7(b)). Neither the regulations nor the MMPA require that NMFS place
observers on all vessels participating in all fisheries classified in
Category I or II. While information collected by observers aboard
vessels usually provides the most accurate description of the level of
serious injury and mortality to marine mammals incidental to commercial
fishing operations, monitoring of commercial fishing operations may
also be accomplished via alternative monitoring programs.
Comment 3: Annual reporting requirements need to be more specific
about the condition of live marine mammal releases. NMFS needs to
gather detailed information on ``released unharmed,'' ``injury,''
``serious injury,'' or ``incidental mortality.'' A simple check box
with ``yes'' or ``no'' to the question of killed or injured will
continue to create problems with NMFS' assessment of the estimated
level of ``serious injury and/or incidental mortality'' with any
accuracy. NMFS has yet to determine what distinguishes an injury from a
serious injury and how it relates to survivability of released marine
mammals. Both NMFS and Congress acknowledge that encounters with marine
mammals do not always result in ``injury'', ``serious injury'', or
``incidental mortality''.
Response: As stated by the commenter, NMFS recognizes that not all
accidental encounters between commercial fishing vessels or gear and
marine mammals result in injuries, serious injuries, or mortalities.
NMFS has provided considerable guidance as to what constitutes an
injury, because fishers must be provided with criteria in order to
determine whether an incidental interaction with a marine mammal
constitutes an injury and whether a report of interaction needs to be
submitted to NMFS. An injury is defined in 50 CFR 229.2 as
* * * a wound or other physical harm. Signs of injury to a
marine mammal include, but are not limited to, visible blood flow,
loss of or damage to an appendage or jaw, inability to use one or
more appendages, asymmetry in the shape of the body or body
position, noticeable swelling or hemorrhage, laceration, puncture or
rupture of eyeball, listless appearance or inability to defend
itself, inability to swim or dive upon release from fishing gear, or
signs of equilibrium imbalance. Any animal that ingests fishing
gear, or any animal that is released with fishing gear entangling,
trailing or perforating any part of the body will be considered
injured regardless of the absence of any wound or other evidence of
an injury.
[[Page 36]]
The definition of serious injury is more general. It is recognized
that not all incidental injuries to marine mammals are serious or are
likely to result in a mortality. Serious injury is defined in 50 CFR
229.2 as ``any injury that will likely result in mortality.''
NMFS anticipates that the types of injuries that constitute serious
injuries may be species-specific and fishery-specific. Interim
guidelines were developed by the Northeast Region in order to address
the serious injury and mortality of large whales incidental to the
lobster pot fishery. The response to comment 19 describes these interim
guidelines. National guidelines for determining which injuries should
be considered serious and likely to result in mortality will be
developed by NMFS in 1997 and will be made available for public
comment.
Comment 4: Observers should be placed on vessels when NMFS has
questions about the level of serious injury and/or incidental mortality
in a particular fishery. Current fishery designations do not reflect
the realities of fishery interactions; they only reflect what fisheries
NMFS has chosen to concentrate on observing thus far.
Response: The classification of commercial fisheries in the LOF is
based on current information on the level of serious injury and
mortality of marine mammals incidental to commercial fisheries. NMFS
disagrees that current fishery designations only reflect what fisheries
NMFS has observed to date. There are several fisheries whose
classification in Category II has been justified by using something
other than observer data, such as the Southeast Alaska salmon purse
seine fishery, the North Carolina stop net fishery, and the mid-
Atlantic coastal gillnet fishery.
Comment 5: Time should be spent in the productive capacity of
research and development for a technological solution in the areas of
documented take.
Response: NMFS agrees. Each year, NMFS allocates funding to improve
gear technology in order to reduce serious injuries and mortalities of
protected species.
Comment 6: A Category I listing focuses considerable attention on
the fishery and gear types in question. This attention translates into
regulatory and legislative action to mandate nontrivial measures to
reduce or eliminate the risk to the endangered species in question.
Such attention and actions should be commensurate with the demonstrated
real risk, so that unwarranted costs and hardships are not imposed on
people and businesses that have no impact on the whales.
Response: Fisheries placed in Category I in the LOF are those that
have been determined to have frequent incidental serious injuries and
mortalities of marine mammals. Because the fishery classification
criteria are defined relative to a stock's PBR level and because the
PBR level for some marine mammal stocks, particularly endangered marine
mammal stocks, are very low, some commercial fisheries that incur a few
(i.e., 1 to 5) serious injuries or mortalities of these marine mammals,
will be classified in Category I.
The LOF itself does not impose changes in fishery management that
impact commercial fishers. Generally, reduction of serious injuries and
mortalities incidental to commercial fisheries will be addressed by the
Take Reduction Team (TRT) process. The MMPA requires that NMFS convene
TRTs that include representatives of all impacted constituents. These
Teams develop Take Reduction Plans (TRPs) which have the short-term
objective of reducing serious injury and mortality levels to the PBR
levels of the involved stocks, and the long-term objective of reducing
serious injury and mortality levels to the Zero Mortality Rate Goal.
Proposed regulations resulting from TRPs will be published in the
Federal Register, and comments on the methods that NMFS proposes to use
to reduce interactions between marine mammals and commercial fisheries
will be solicited at that time.
Comment 7: For practical purposes, Congress apparently intended
Category I to indicate a frequent incidence of serious injury and
mortality. However, in a sleight of language that makes citizens so
wary of their government, the definition of ``frequent'' makes it
possible to call something ``frequent'' that any practical person would
call remote.
Response: Pursuant to the MMPA, Category I, II, and III fisheries
are those that incur frequent, occasional, or have a remote likelihood
of incidental serious injuries and mortalities of marine mammals,
respectively. Congress did not provide a definition of ``frequent,''
``occasional,'' or ``remote likelihood'' in the MMPA. The final
regulations implementing section 118 defined Category I, II, and III
fisheries and thereby defined ``frequent,'' ``occasional,'' and
``remote likelihood'' based on the number of marine mammals seriously
injured or killed incidental to commercial fishing operations relative
to the marine mammal stock's PBR level.
NMFS' fishery classification criteria allow the agency to consider
the level of serious injury and mortality incidental to commercial
fishing on a stock-specific basis using a ``weakest stock'' approach.
The population level and status of each marine mammal stock is specific
to that stock. Thus, the level of impact each marine mammal population
can withstand while allowing the population to attain its optimum
sustainable population (OSP) level is also stock-specific. For
instance, because the estimated minimum population size of North
Atlantic right whales is 295 animals, the number of animals that can be
removed from the population by commercial fishing while allowing the
population to attain OSP is 0.4. In contrast, because the minimum
population size of the Oregon/Washington coastal stock of harbor seals
is 28,322, the number of animals that can be removed from this
population by commercial fishing while allowing the population to
attain OSP is 1,699. Thus, a small take of right whales (under 1 per
year) would have a significant negative effect on the population, while
a similar level of take of the Oregon/Washington stock of harbor seals
would not. NMFS' chosen approach to the classification criteria allows
it to focus management actions where fishery interactions have a
significant negative effect on a marine mammal population.
Comment 8: If the MMPA programs succeed in protecting marine
mammals, their numbers will increase, and logically, so will fishery
interactions with them. It is not only possible, but virtually
guaranteed, that no matter what commercial fishermen do to minimize
interactions, they will interact with more and more animals until an
active deterrent is in general use.
Response: The fishery classification criteria in the final
regulations implementing section 118 are defined relative to a marine
mammal stock's PBR level. Thus, if the population of a particular stock
of marine mammal increases, the PBR level would be expected to increase
as well. Consequently, commercial fisheries could anticipate that a
higher number of incidental serious injuries and mortalities could be
authorized, provided that the level relative to the PBR level remains
constant or decreases.
Comment 9: It appears that marine mammal takes by fishermen of
other countries fishing in proximity to the concerned stocks will be
considered as ``uncontrollable mortality'' and will come ``off the
top'' before NMFS sets the PBR level.
[[Page 37]]
Response: The calculation of a PBR level for transboundary marine
mammal stocks was considered on a case-by-case basis. General
guidelines for migratory and non-migratory stocks were developed but
were not applied in those instances where the guidelines were
inconsistent with what is known about the biology of the marine mammal
stock of concern. For migratory stocks, PBR level calculations are
generally based upon the portion of the stock found in waters under
U.S. jurisdiction or the proportion of the year that a migratory stock
spends in waters under U.S. jurisdiction, and mortalities from foreign
fisheries were generally included in the estimate of total mortality
but not in the estimate of mortality incidental to U.S. fishing
operations. For non-migratory stocks, the PBR level was calculated
based on the abundance estimate of the stock residing in U.S.
territorial waters and the Exclusive Economic Zone (EEZ). Restricting
PBR level calculations in such a manner was considered appropriate
because NMFS can only regulate incidental mortality and serious injury
with respect to fishing activities under U.S. jurisdiction. Mortality
and serious injury incidental to foreign fishing operations outside the
U.S. EEZ generally do not affect the status of the stock (strategic vs.
non-strategic) and are not included in the estimate of fishing
mortality; thus, incidental takes of marine mammals by foreign fishing
vessels should not affect the classification of U.S. commercial
fisheries and will not affect the ability of U.S. commercial fishers to
compete with foreign fishers.
Comments on Fisheries in the Northeast Region
Comments on the Gulf of Maine Mackerel Trawl Fishery
Comment 10: The commenter questioned NMFS' allegation that
significant effort is not expected in the Gulf of Maine mackerel trawl
fishery. As fisheries are coming under effort restrictions for
groundfish in the Gulf of Maine, more effort is likely in herring and
mackerel fisheries, as these stocks are more abundant. Although this
fishery may not merit a separate listing from the combined trawl
fishery for squid, mackerel, and butterfish, attention needs to be paid
to the likely increase in effort.
Response: Since a new listing for the Atlantic squid, mackerel, and
butterfish trawl was created in the 1996 LOF, the listing for the Gulf
of Maine mackerel trawl fishery is duplicative and has been deleted in
the 1997 LOF. The squid, mackerel, butterfish trawl fishery is retained
in Category II in the 1997 LOF. NMFS anticipates that additional
information on effort in this fishery will be available from fishing
vessel and dealer logbooks. NMFS agrees that there is potential for
expansion of the mackerel trawl fishery since the stock is currently
considered underexploited. However, because the economic viability of
this fishery is uncertain, effort may not increase appreciably in the
near future.
Fishers who hold a Federal permit for the squid, mackerel,
butterfish fishery will be registered automatically under the new
integrated registration system. Fishers who participate in the state
component of this fishery must obtain registration materials from NMFS
and must submit the completed registration and a $25 fee to be
authorized under the MMPA (see instructions under Registration).
Comments on the Finfish Aquaculture Fishery
Comment 11: Harbor seals should be added as interacting with the
Finfish Aquaculture Fishery.
Response: The addition of harbor seals as an interacting stock is
due to the entanglement of harbor seals in aquaculture pens. NMFS has
no further information to indicate any marine mammal stocks other than
harbor seals interacting with this fishery during the 1990-1994 period.
Offshore Monkfish Bottom Gillnet Fishery
Comment 12: The offshore monkfish bottom gillnet fishery should be
divided into components of the Northeast Multispecies sink gillnet
fishery and the U.S. Mid-Atlantic coastal gillnet fishery.
Response: NMFS agrees. This change will impact several vessels that
were using sink gillnet gear but were not required to be permitted
under the Multispecies Fishery Management Plan (FMP) because they were
targeting monkfish and/or dogfish, which are not currently included
under the Multispecies FMP. Monkfish was listed as a target species in
the 1996 LOF for the Northeast Multispecies sink gillnet fishery but
not for the Mid-Atlantic gillnet fishery. Fishers who hold a Federal
permit for the multispecies sink gillnet fishery will be registered
automatically under the new integrated registration system. Fishers who
target only monkfish and do not have a Federal multispecies permit must
obtain registration materials from NMFS and must submit the completed
registration and a $25 fee to be authorized under the MMPA (see
instructions under Registration).
Comment 13: It was not reflected in the proposed LOF that any
interactions between the offshore monkfish bottom gillnet fishery and
marine mammals were recorded in the course of observation from the
observer program, nor were anecdotal reports provided. Why is the
monkfish bottom gillnet fishery being subjected to the requirements of
the MMPA? If there have been reports of interactions with marine
mammals in the course of the fishing operations of the sink gillnet
dogfish and monkfish fisheries, then these reports should be presented
in the Federal Register as sufficient to classify them as the proposed
rule states. Without that documentation, this fishery is being
classified for unjust and unsound scientific reasoning until such fact
and proof come forward.
Response: NMFS recognizes that quantitative information was not
provided in the proposed LOF in support of the combination of the
offshore monkfish bottom gillnet fishery with the New England
multispecies sink gillnet fishery in Category I or with the U.S. mid-
Atlantic coastal gillnet fishery in Category II, depending on the
geographic location in which the fisher operates. As indicated in the
proposed LOF, the offshore monkfish bottom gillnet fishery should be
combined with the New England multispecies sink gillnet fishery or the
U.S. mid-Atlantic coastal gillnet fishery, primarily because the
offshore monkfish gillnet fishery uses tied-down sink gillnet gear,
which is similar to the gear type used for flounder in the multispecies
fishery, and thus, is an extension of current fisheries already in
existence and is not a separate fishery. Vessels occasionally set
strings of nets for monkfish in the same area and on the same trip as
strings of nets set for groundfish. Thus, because the gear is similar,
there is no practical distinction between the fisheries.
Comments on the Classification of the Lobster Pot Fishery
A. Comments regarding the data used to classify the fishery.
Comment 14: What is the definition of ``serious injury'' as it
pertains to the lobster pot fishery classification and who determines
whether the injury was serious?
Response: See response to comment 3 regarding the definitions of
``injury'' and ``serious injury'' under 50 CFR 229.2.
National guidelines for determining what constitutes a serious
injury have not been established. The Atlantic Scientific Review Group
(SRG), which
[[Page 38]]
advises the agency on the science used by NMFS to manage marine mammals
in the Atlantic Ocean, recommended that all instances where marine
mammals are released alive from fishing gear be considered serious
injuries until documentation to the contrary has been produced.
In the absence of national guidelines and because interim criteria
for serious injury were urgently needed to address the impact of the
lobster pot fishery to right and humpback whales, the Northeast Region
utilized interim criteria for determining what constitutes a serious
injury to large whales. The criteria developed by the Northeast Region
and used in the classification of the lobster fishery were not as
conservative as the Atlantic SRG has recommended.
According to the definition of injury, animals entangled in fishing
gear, or released with gear trailing, are considered injured. For the
analysis of the level of impact incidental to the lobster pot fishery,
an injury was considered serious if it met any of the following
criteria: (a) Entanglement did or could interfere with feeding (e.g.,
cinching loop around snout or gear through baleen); (b) entanglement
did or could interfere with mobility (e.g., whale anchored, flippers
pinned, flukes weighed down, gear apparently preventing whale from
getting to the surface to breathe); or (c) entanglement resulted in
substantial wounds (e.g., deep cuts, tendon/ligament or bone damage),
that may result in loss of appendages or debilitating infection. A
secondary consideration used in the analysis was whether the growth of
a juvenile animal could cause further injury by a cinching entanglement
on any part of its body as it increased in size.
In some cases, records of serious injury entanglements used for
this analysis described whales which were disentangled. In cases of
significant entanglements, the injuries were considered serious unless
NMFS could confirm with reliable information that the whale was
completely freed of gear, and that the whale did not incur residual
serious injuries.
If necessary, these guidelines will be changed to ensure
consistency with the national guidelines.
Comment 15: The lobster fishery was placed in Category I because of
one entanglement of a right whale in 26 years. Because this constitutes
a rare interaction, it is inappropriate to place this fishery in
Category I.
Response: NMFS disagrees that the interaction between northern
right whales and the lobster pot fishery should be considered rare. The
lobster fishery was placed in Category I in the proposed LOF based on 1
serious injury or mortality of a northern right whale in 5 years. This
animal was first seen entangled in lobster gear on December 21, 1993,
and stranded dead in July of 1995. In addition, since the publication
of the proposed LOF, NMFS identified a second record (July 9, 1993) as
a serious injury of a right whale in lobster pot gear. Thus, the
placement of the lobster pot fishery in Category I in this final LOF is
based on two mortalities or serious injuries of right whales, one that
was first seen on 12/21/93 and a second that was first seen on 7/9/93
(see Table 1).
NMFS considered only data from 1990 to 1994 in this analysis. NMFS
used 21 records of serious injury and mortality incidental to the
lobster fishery for this analysis (see Table 1). Of the records NMFS
considered suitable for this analysis, lobster pot gear was responsible
for the serious injury or mortality of two right whales, 9 humpback
whales, and 7 minke whales. In addition, NMFS has records of two
additional humpback whales and one minke whale that could be seriously
injured; these records are currently under evaluation. NMFS also has
records of 25 other whale entanglements collected between 1990 and 1994
that were excluded from this analysis due to insufficient information
on gear type, species identification, or degree of injury. It is likely
that some percentage of those entanglements represent serious injury
and/or mortality due to entanglement in lobster gear.
NMFS is using opportunistic data to classify the lobster pot
fishery. Opportunistic reports provided by sources such as NMFS, the
New England Aquarium, and private citizens cannot be extrapolated to
provide a total estimate of serious injury and mortality incidental to
this fishery. The true level of incidental serious injury and mortality
incidental to this fishery is unknown but may be higher than that
reported here.
The total observed serious injury or mortality of right whales
incidental to the lobster pot fishery for 1990 to 1994 is 0.4 animals
per year; the PBR level for the northern right whale stock is 0.4
animals. Thus, because the total fishery-related incidental mortality
and serious injury for all commercial fisheries is above 10 percent of
the PBR level for this stock, and because the average take for the past
5 years is greater than or equal to 50 percent of the PBR level (2
animals in 5 years equals 0.4 animals per year; this is equivalent to
the PBR level for this stock), placement in Category I is justified,
based on impact to northern right whales.
In addition to the serious injury and mortality of northern right
whales incidental to the lobster pot fishery, 11 humpback whales were
seriously injured or killed by lobster pot gear between 1990 and 1994.
This level of serious injury and mortality of humpback whales averages
to 1.8 animals per year, which represents 19 percent of the PBR level
for that stock (PBR level = 9.7). This level of incidental serious
injury and mortality would justify placement of the lobster pot fishery
in Category II. In addition to the records of serious injuries and
mortalities of large whales in lobster gear used in this analysis, NMFS
has data which show that large whale (right, humpback, minke)
entanglement in U.S. lobster gear has occurred historically and has
continued since 1994, which is the last year of data used in this
analysis.
Refer to the response to comment 7 for a discussion of the stock-
specific approach of the fishery classification criteria.
Table 1: NMFS Record of Serious Injury and/or Mortality of Large Whales Incidental to the Gulf of Maine, U.S.
Mid-Atlantic Lobster Trap/Pot Fishery for 1990-1994*
----------------------------------------------------------------------------------------------------------------
Date Description of gear and evidence
Sighted** Species Sighting Location of serious injury/mortality Outcome***
----------------------------------------------------------------------------------------------------------------
7/9/93..... North Atlantic Georges Bank...... Lobster buoy, warp, swivel plus Serious injury.
right whale. swordfish driftnet; tail of
juvenile cut 8'' on both sides
from lobster line; partially
healed and re-cut by net;
wrapped in net; partially
disentangled 7/9 by driftnet
fisher; remainder removed 8/7 by
disentanglement team ; re-
sighted 9/93 in NY in shallow
water; presumed dead from
entanglement injuries.
[[Page 39]]
12/21/93... North Atlantic Georgia........... Lobster trap trawl rig (line with Serious injury.
right whale. secondary lines spliced in
perpendicularly); mostly
floating poly line, also sinking
poly/dacron line w/wooden
toggle; green poly groundline
imbedded 3'' into bone at right
flipper insertion & through
baleen; 6-8 wraps around
flipper; dark warp on back;
juvenile; stranded dead 7/95 in
RI.
4/10/90.... Humpback whale.... Massachusetts..... Lobster gear; fisher observed Injury+.
free-swimming whale dragging
hundreds of yards of gear and
cut most off.
6/18/90.... Humpback whale.... Massachusetts..... Flipper of free-swimming whale Serious injury.
entangled in lobster warp;
trailing blue and orange float;
may have had line through mouth.
7/4/90..... Humpback whale.... New Hampshire..... Lobster line & orange buoy; whale Serious injury.
may have shaken some of the
pots; juvenile; last seen
trailing buoy.
8/1/91..... Humpback whale.... Massachusetts..... Gillnet, lobster (including pot) Serious injury.
& tuna gear, grappling hook;
trailing 50' of netting; gear
around mouth & tail; emaciated &
tired; could not swim with tail;
freed 8/11/91 by disentanglement
team; juvenile; in bad shape;
sighted over next week swimming
slowly.
8/24/91.... Humpback whale.... New York.......... Lobster trap trawl rig; at least Serious injury.
12 pots & 2 high-flyers; lobster
line over flipper and fluke,;
swimming impaired/atypical;
distressed/labored breathing;
mostly stayed just below
surface; heading toward land;
juvenile animal; disentangled.
10/3/91.... Humpback whale.... Massachusetts..... Lobster trap trawl w/2 buoys; Injury+.
line tight around tail; free-
swimming; not in immediate
danger but close to shore; cut
free by local lobsterman (not
his gear) & headed out to see;
unknown whether trailing gear;
juvenile.
4/22/93.... Humpback whale.... New Hampshire..... Lobster line around tail stock & Serious injury.
flukes; whale thin; unknown if
gear trailing; probably same
whale freed by disentanglement
team on 4/24/93; thin and weak;
some healing around line;
juvenile animal.
6/13/93.... Humpback whale.... New Hampshire..... Pot warp wrapped around flippers Serious injury.
& body; some bleeding on right;
line trailing; calf of the year;
fresh wounds.
8/11/93.... Humpback whale.... Maine............. Lobster & sink gillnet; reported Serious injury.
by lobsterman; gear over back &
through mouth; anchored;
partially disentangled by diver;
left gear through mouth at
hinge; whale swam away; juvenile
animal.
8/19/93.... Humpback whale.... Maine............. Lobster gear in mouth & around Serious injury.
tail stock; semi-anchored;
labored breathing/wheezing.
8/11/94.... Humpback whale.... Maine............. Probable single trap lobster gear Serious injury.
wrapped around or draped over
flipper; heavy density of pots
in area; at least partially
disentangled by lobsterman (not
his gear).
6/25/90.... Minke whale....... Maine............. Lobster gear around tail stock; Serious injury.
line around pectoral fins and in
mouth; stranded alive as a
result of entanglement injuries;
old entanglement; emaciated;
heavy barnacle load; lesions;
tail deformed; juvenile.
8/16/90.... Minke whale....... Massachusetts..... Trailing lobster gear; looked bad Injury+.
8/28/91.... Minke whale....... Maine............. Lobster trap lines through mouth Mortality.
and around tail; lobsterman
found dead whale in his gear;
juvenile animal.
10/23/91... Minke whale....... New Hampshire..... Juvenile whale held in place by Serious injury.
multiple lines leading to
lobster trap trawls; partially
disentangled.
8/22/92.... Minke whale....... Maine............. Juvenile whale found floating Mortality.
dead; wrapped in lobster gear.
9/21/92.... Minke whale....... Maine............. Line from lobster gear strapping Mortality.
mouth shut.
9/3/93..... Minke whale....... New Hampshire..... Net and lobster gear around tail Serious injury.
and trailing; labored/struggling.
7/2/94..... Minke whale....... Maine............. Lobster lines (3 pair traps Mortality.
involved); line through mouth;
one line around lower jaw;
chafing on tail; whale brought
up dead with traps.
----------------------------------------------------------------------------------------------------------------
* In addition to these 21 reports, NMFS also received 25 records of large whale entanglement for the 1990-1994
period that were excluded from this analysis due to insufficient information on degree of injury, gear type,
or species identification. It is likely that some percentage of these entanglement records represent serious
injury or mortality due to lobster gear. The 25 records that were excluded include right, humpback, minke,
fin, and unidentified whales.
** The date sighted and location provided in the table are not necessarily when or where the serious injury or
mortality occurred; rather, this information indicates when and where the whale was first seen entangled in
the gear that ultimately resulted in serious injury or death to the animal. Recent records indicate that the
difference between these two points can be substantial for both time and location.
*** See response to comment 19 for a description of the guidelines used to determine what constituted a serious
injury with respect to large whale takes in this fishery.
+ This injury may constitue a serious injury. NMFS is evaluating these records to determine the extent of the
injury and whether it should be considered a serious injury.
[[Page 40]]
Comment 16: The commenter included a list of entanglements and
indicated that it is inappropriate to propose to reclassify the lobster
pot fishery based on the one right whale entanglement because the gear
cannot be traced to the lobster fishery. The gear recovered from the
animal in question was identified as ``unidentified line''.
Response: The list to which the commenter refers was a draft list
that was not prepared by NMFS. Information provided to NMFS by public
commenters is very helpful but cannot be used to justify the placement
of a fishery in a specific category in the LOF until the information
has received scrutiny and approval by NMFS scientific, management, and
headquarters staff.
The whale that the commenter refers to was sighted on December 21,
1993, off Georgia. When the gear was first removed from the whale, it
was described as lobster gear, although it consisted only of line and a
wooden toggle. When the gear was transferred to and examined by NMFS,
this initial assessment was confirmed based on the type of line and
arrangement of knots and splices. Since the publication of the proposed
LOF, the gear has been examined and the assessment confirmed by a
lobster industry representative. Consequently, the final
reclassification of the lobster fishery into Category I is based on two
serious injuries or mortalities of northern right whales. As previously
stated, if no right whales had been seriously injured or killed, a
classification in Category II would be justified based on the 9 serious
injuries or mortalities of humpback whales and 6 serious injuries or
mortalities of minke whales.
Comment 17: The commenter questions the statistical validity of the
calculations by which the conclusion was reached that the lobster
fishery exceeded the threshold limits for Category I. Because of the
small numbers involved, a statistically valid analysis would indicate
that there is a very high probability that the lobster fishery does not
exceed the threshold for Category I.
Response: A statistical analysis of this data is not necessary,
because the reported serious injury and mortality of two right whales
in 5 years (1990-1994) results in a minimum average annual level of
serious injury and mortality of 0.4 per year (2/5 = 0.4). Fisheries
placed in Category I are those that have incidental serious injury and
mortality of a particular stock of marine mammals that is greater than
or equal to 50 percent of the PBR level for that stock. In the case of
right whales, PBR level = 0.4, so 50 percent of the right whale PBR
level = 0.2. Because two serious injuries or mortalities of right
whales were reported in this fishery during 5 years, the minimum
serious injury/mortality level of 0.4 right whales per year qualifies
the lobster fishery as a Category I fishery.
Comment 18: The commenter indicated that it was inappropriate to
classify the New England lobster pot fishery based on the recovery of
pot gear from a right whale in waters off Georgia.
Response: Although the entangled right whale was first sighted
swimming off Georgia, the initial location of entanglement cannot be
determined. The whale was identified as an individual that, in addition
to using the calving grounds off Georgia and Florida, has also been
seen in Cape Cod Bay and in the Bay of Fundy. Whales have been known to
swim great distances trailing gear.
Comment 19: NMFS was very conservative in its use of entanglement
reports and this may result in an underestimate of the entanglement
rate.
Response: NMFS agrees that the rate of annual serious injury and
mortality determined through stranding and other reports probably
underestimates the total level of serious injury and mortality that
occurs incidental to this fishery. NMFS uses stranding and other
reports to provide a minimum rate of serious injury and mortality
incidental to particular commercial fisheries. This minimum rate cannot
be extrapolated to a total estimate of annual serious injury and
mortality.
Comment 20: Given the size of the lobster pot fishery and the very
few reports of any interaction with whales over a twenty-six year
period, logic would dictate that the lobster fishery is best described
as having a remote likelihood of interaction. In reality, given all the
lines that have always been present in the water for all these years,
and the total lack of any significant interaction with whales, we
believe the lobster fishery has been a very friendly neighbor to the
whales.
Response: See response to Comment 15.
Comment 21: Most experts on whales do not believe that the lobster
fishery merits a Category I designation. While some may voice concern
with regard to vertical buoy lines going to the surface, they admit
that the entanglement possibility is a rare occurrence. They also
cannot explain how a whale can get entangled in such line.
Response: See response to comment 15.
Comment 22: Whale watch boat captains report that they have seen
schools of whales ``feeding'' and ``frolicking'' among buoy lines and
have never seen one become entangled.
Response: NMFS appreciates the reports that are received from whale
watch boat captains, as they may provide information on relative
seasonal distribution of the animals. The observation provided by the
commenter documents that whales are known to use areas where lobster
gear is fished. However, few of the entanglements that eventually lead
to serious injury or mortality are observed at the time of initial
occurrence. Many of the sightings of entangled whales either anchored
in or trailing gear come from whale watch vessels, and these reports
are valuable to NMFS.
See response to Comment 15 for additional discussion.
Comment 23: The elevation of the lobster pot fishery to Category I
is supported by the information on large whale entanglements.
Response: NMFS agrees.
B. Comments Regarding the Combination of the Inshore and Offshore
Lobster Trap/Pot Fisheries, the Description of the Lobster Trap/Pot
Fishery and the Overlap with Documented Ranges of Marine Mammals.
Comment 24: The breadth and scope of the range of the lobster pot
fishery is neither documented nor described in sufficient detail so as
to distinguish the area of the fishery most likely to have interactions
with the marine mammals of concern. Without this distinction, there is
great assumption without sufficient scientific support to lump all
participants and areas involved in this fishery into Category I.
Response: In a future LOF, NMFS may investigate whether it is
possible to separate certain geographic segments of the lobster fishery
relative to potential for whale entanglement. Data are not currently
available to conduct this analysis. Most of the quantitative
distribution surveys concentrate on shelf-edge rather than nearshore
waters. Some qualitative sighting data are available in addition to
historic records from whaling stations. NMFS' strategy for separating
geographic segments of the lobster fishery would involve conducting an
analysis of information on whether marine mammals known to become
entangled in lobster gear occur in waters where and when the fishery
occurs and then attempting to determine whether the rate of occurrence
is sufficiently low to reduce the probability of entanglement. Many of
the whale entanglements in lobster gear involve juvenile animals.
Juvenile whales tend to explore inshore areas
[[Page 41]]
and have been known to swim up into rivers (e.g., Delaware,
Susquehanna, and Potomac Rivers). Humpback whales, in particular, have
often been sighted feeding very close to shore and inside harbors.
Comment 25: A tremendously large portion of the fishery operates in
near shore, shallow waters, inside the documented range of the marine
mammals mentioned in the Federal Register notice, making this an absurd
and unnecessary administrative burden on these fishermen with
registration requirements.
Response: See response to comment 24.
Comment 26: The inshore and offshore components should be combined
into a single fishery. The differences in gear that is used in the
inshore and offshore fishery for lobster is neither significant enough
to affect the potential to kill or seriously injure marine mammals, nor
is the marine mammal distribution such that either inshore or offshore
gear has a greater likelihood of entangling marine mammals.
Response: The relative potential for serious injury or mortality of
marine mammals in various types of lobster gear is unknown. Very little
information is available that describes the behavior of the whales
which resulted in entanglement, particularly for those entanglements
that occur at depth. It may be possible to separate out certain
fisheries that occur in bays or sounds if it can be determined that
marine mammal species that are known to become entangled in lobster
gear do not occur in those areas. However, that information is not
available at this time. See response to Comment 25 for additional
discussion.
Comment 27: The proposed LOF indicated that the decision to combine
the inshore and offshore lobster pot fisheries is based on ``new
information received about the prosecution of the lobster fishery.''
Contrary to the implication in the Federal Register notice, the
practical distinction between the offshore and inshore lobster pot
fisheries is not based on the distinction between state waters and the
EEZ. The proposed LOF is erroneous in stating that the number of pots
and number and size of associated lines and surface gear increase as
distance from shore increases.
Response: The description in the proposed LOF was intended to refer
to the number of traps fished in a string and the number of traps
fished per vessel, not to the total number of traps fished inshore
versus offshore. NMFS recognizes that the size of the fleet that fishes
a considerable distance from shore in the EEZ is much smaller than that
which fishes closer to shore in the EEZ and in state waters.
Comment 28: Although there are no sharp or practical distinctions
between the gear types and vessel sizes used in the inshore lobster pot
fishery and the offshore lobster pot fishery, there are sharp
geographic distinctions that can be made, particularly in coastal New
Hampshire and Maine. Because there has been only one right whale
sighting inside the 100m bathymetric contour (excluding Jeffreys
Ledge), the available data support a classification of Category III for
the lobster fishery that occurs in the State waters of New Hampshire
and Maine. In addition, although there are right whale aggregations at
the Great South Channel and Cape Cod Bay/Stellwagen Bank/Jeffreys Ledge
and in the lower Bay of Fundy and Browns Bank on the Scotian Shelf,
there are large areas of inshore lobster grounds in between where the
data suggest that the risk of serious injury/mortality from
entanglement in lobster gear is non-existent.
Response: NMFS disagrees with the commenter's interpretation of
right whale distribution. More than one right whale has been sighted
inside the 100m contour. Although concentrations of right whales
apparently only exist in certain areas of the Gulf of Maine, the whales
likely transit many of the other areas at some point while moving
between concentration areas. Information from satellite tracking
indicates whales may cover large distances over short periods of time.
See response to Comments 24 and 26 for discussion of geographical
separation of the lobster fishery. Absent the evidence of right whale
serious injury and mortality, the evidence of humpback and minke whale
mortality and serious injury from 1990-1994 in the areas of Maine and
New Hampshire to which the commenter refers would support a Category II
listing rather than Category III.
Comment 29: Due to its geographical location and fishing methods
employed, a practical operational distinction separates Long Island
Sound from other waters where the lobster fishery is prosecuted. To
remain consistent with plans for a separate fishery management area in
Long Island Sound, and because right whales, humpback whales, and minke
whales do not occur in Long Island sound, the lobster pot fishery in
Long Island Sound should be separated from the U.S. mid-Atlantic
Inshore Lobster Trap/Pot fishery and identified as a separate fishery
in Category III. It makes no sense to have inshore Long Island Sound
lobster pot fishermen from Connecticut or New York comply with the same
registration requirements as imposed on lobstermen who actually fish in
New England waters inhabited by endangered cetaceans. Specifically,
lobstermen fishing exclusively in the waters of Long Island Sound west
of a line running from Watch Hill, RI, to Orient Point, NY, should be
excluded from the Category I designation.
Response: See response to Comments 24, 25, and 26. NMFS does not
have good information on the extent to which whales use Long Island
Sound. However, humpback, minke, right, and fin whales have been
sighted inside the line mentioned by the commenter. Most sighting
surveys conducted in the western U.S. Atlantic Ocean did not cover
inshore waters such as Long Island Sound, Delaware Bay, and Chesapeake
Bay; rather, effort was concentrated on the continental shelf. NMFS may
consider a geographic separation of the lobster fishery in a future
LOF.
Comment 30: The lobster pot fishery should be restricted in areas
of New England where endangered whales feed and mate. Recategorizing
the territory that the whales inhabit from Category III to Category I
would be beneficial to the endangered types of whales. It is a tragedy
when any of these whales are entangled in trap lines, and enough have
died already.
Response: Reclassification of the lobster fishery will not result
directly in additional protection for marine mammals. Any such measures
will be developed utilizing other management measures such as the
promulgation of regulations in order to implementat the Large Whale
TRP.
C. Comments on the Use of Alternate Management Regimes and
Monitoring Programs.
Comment 31: Several commenters supported the use of monitoring
systems, such as enhanced stranding and disentanglement network
reporting, or additional gear marking requirements, in lieu of the
implementation of an observer program for the lobster pot fishery.
Other alternatives include the use of shipboard and aerial surveys to
monitor fishing activity and whale distributions, particularly in
critical habitat areas and known summer ranges in the northern Gulf of
Maine. In addition, observer programs are unlikely to result in an
increased understanding of interactions between marine mammals and
lobster gear, as many entanglements may occur when the vessel is not
present.
Response: NMFS agrees that alternatives to traditional observer
[[Page 42]]
programs are likely to be more effective in monitoring marine mammal
serious injuries or mortalities incidental to the lobster pot fishery.
Such an alternative observer program is likely to include some of the
components recommended, such as aerial surveillance, enhanced reporting
of entanglements, etc. Although NMFS may schedule some low level of
observer coverage in this fishery, the agency anticipates that several
suggestions for alternative monitoring programs may be recommended by
the Large Whale TRT. This Team, which consists of representatives of
the Federal government, affected state governments, environmental
groups, and the affected commercial fisheries, is charged with
developing the Large Whale TRP by early 1997.
Comment 32: NMFS should develop an approach for monitoring serious
injuries and mortalities of large whales in the lobster pot fishery
which allows fishermen to become partners in the effort to protect this
species, rather than victims in pursuit of what may be an unattainable
goal.
Response: NMFS agrees. Representatives of the commercial lobster
pot fishery currently participate in the Large Whale Take Reduction
Team, which is charged with developing a plan that will reduce
incidental serious injuries and mortalities of large whales. NMFS
anticipates that many thoughtful, productive methods for addressing
this issue will result from these meetings.
D. Comments on Coordinating Registration Under the MMAP with
Existing State or Federal Registration Systems.
Comment 33: All lobstermen required to register under the MMPA
(Category I and II) should be registered via an integration of state
lobster licensing lists with NMFS MMPA registration requirements. If we
allow our data processing systems managers to collaborate on this
issue, we can avoid an enormous redundancy in applications for, and
administration of, the required permits.
Response: NMFS agrees. Integration of registration under the MMPA
with registration in existing Federal and state permitting systems
greatly reduces the amount of paperwork that must be completed by the
commercial fisher and handled by NMFS. Because of the reduced paperwork
burden on NMFS, an integrated system often results in a reduction or
elimination of the $25 fee otherwise required for registration under
the MMPA. The NER will endeavor to integrate the registration of the
commercial lobster pot fishers with state and Federal permitting
systems.
Comment 34: Integration of registration with the state fishery
registration system of Maine will be difficult, if not impossible,
because licensing issues are controlled by the Legislature and
coordination would require the passage of law, and because of the
expense of registering 7,000 commercial lobster fishers.
Response: Integration of state registration systems with
registration under the MMPA would not necessarily require that
individual states change their licensing practices. NMFS will work
closely with the states to develop an integrated registration program
that causes the least impact to the state fishery management programs
while ensuring that the legislative mandates of registration under the
MMPA are fulfilled.
Comments on Other Fisheries
Comment 35: There has been a recent increase in effort in fishing
for hagfish in the Gulf of Maine. This is a staked gear fishery that
may bear monitoring for potential interactions with marine mammals.
Response: NMFS agrees that effort in the hagfish pot fishery has
increased in New England waters and that the range of the fishery may
overlap that of marine mammals known to become entangled in pot gear.
Unlike the American eel fishery, the hagfish fishery in the Gulf of
Maine primarily occurs in waters too deep for staked gear. The hagfish
fishery uses gear that is rigged similar to lobster gear but uses
barrels instead of pots. NMFS currently has no records of serious
injuries or mortalities of marine mammals incidental to this fishery.
NMFS expects to examine the locations and manner in which this fishery
is prosecuted in order to determine whether the fishery should be
proposed for reclassification based on analogy with the lobster pot
fishery or other fisheries.
Comment 36: NMFS should pay additional attention to the
proliferation of aquaculture permits in the Gulf of Maine, as some gear
may pose an entanglement risk to marine mammals. For example, if top-
down systems of shellfish aquaculture are used, they may pose the same
types of entanglement risk that is posed by lobster gear. In addition,
blue fin tuna grow-out activities should be monitored, as serious
problems with entanglement of small cetaceans and pinnipeds have
occurred in the deeper waters of Australia, where this technology is
already in use.
Response: NMFS appreciates the information on the Australian tuna
project. Federal bluefin tuna regulations do not currently authorize
aquaculture or grow-out operations. Such activities may be conducted on
a limited scale with a specific letter of authorization consistent with
the Atlantic tuna regulations (50 CFR part 285) and the provisions of
50 CFR 600.745. U.S. Coast Guard and Army Corps of Engineers
requirements also would apply. Depending on the scale and duration of
the activity, an Environmental Assessment could be required, in which
case the impacts on protected species would be assessed and public
comment would be sought. The referenced pilot project is currently
being examined in this regard.
Comment 37: The Atlantic Ocean, Caribbean, and Gulf of Mexico
pelagic longline fisheries for swordfish, tuna, and sharks should be
separated into three separate fisheries in the LOF. This action has
been requested since 1991. Separation of the Atlantic longline
fisheries would be consistent with NMFS' proposed action to separate
the Oregon swordfish/blue shark surface longline fishery into the
Oregon swordfish floating longline fishery and the Oregon blue shark
floating longline fishery. In addition, separation of these fisheries
by fishing region would facilitate establishing a standardized process
for monitoring effort, estimating serious injury and incidental
mortality rates, and evaluating the effectiveness of reduction methods.
Response: The proposed LOF for 1997 clearly indicates that the
rationale for separating the two longline fisheries permitted by the
state of Oregon is to remain consistent with changing state
registration practices (see 61 FR 37035; especially 37038). This change
was not proposed based on a change in the level of serious injury or
mortality of marine mammals incidental to the fishery. NMFS will
consider making changes to the LOF to parallel current state or federal
fishery registration practices, as it greatly facilitates integration
of state or federal fishery registration with registration in the MMAP.
At this time, there is no scientific or management reason to
separate the Atlantic Ocean, Caribbean, and Gulf of Mexico pelagic
longline fishery into separate fisheries in the LOF. The fishery is
managed under the Atlantic Tunas Convention Act (ATCA) consistent with
the recommendations of the International Committee for the Conservation
of Atlantic Tunas (ICCAT), which has a very broad scope. This stems
from the wide distribution of the target species in the pelagic
longline
[[Page 43]]
fishery, which migrate seasonally between the Northern U.S. Atlantic
Ocean, the Caribbean, and the Gulf of Mexico. The marine mammals
incidentally seriously injured and killed in this fishery are also
found across all of these areas. Although some vessels operate on a
more regional basis, the fishery typically follows the target species
across these different regions. Because the fishery statistics are
already collected on a regional basis, dividing the pelagic longline
fishery into different segments would not alter the way in which effort
and take data are monitored. The TRP involving this fishery does not
affect the fishery in the Gulf or Caribbean, and observers are placed
onboard these fisheries to monitor target species catch for the
purposes of reporting to ICCAT, regardless of the fishery's
classification under the MMPA. Therefore, maintaining this as one
fishery does not place undue burden upon the fishery or undue ``blame''
for marine mammal takes in a regional area. Alternatively, if the
fishery was divided into three separate fisheries, many fishers would
have to register under two or three different fisheries.
Comment 38: The category designation of the Atlantic Ocean,
Caribbean, and Gulf of Mexico pelagic longline fishery should be
reassessed based on more accurate information. The current
classification is based on pilot whale interactions which occur when
the pilot whale preys upon dead tuna. If the reported number of hooks
was used for calculating this estimate, NMFS must consider that a hook
in the Gulf of Mexico and a similar hook at the Grand Banks have a very
different likelihood of interacting with a particular marine mammal
species.
Response: The estimated level of effort used in determining the
total estimated serious injury and mortality of marine mammals
incidental to this fishery is based on the number of sets (not hooks)
and is the same data set used for estimating levels of catch for target
species used by NMFS to report to ICCAT. Pilot whales and other species
known to interact with this fishery occur in all areas where the
fishery is prosecuted. For the purpose of the LOF, it is immaterial
whether the serious injury or mortality occurred as a result of
predation or attempted predation or if the serious injury or mortality
occurred as a result of some other action on the part of the marine
mammal. New information on the level of incidental serious injury and
mortality in this fishery was not provided in the draft SARs for 1996,
and thus information on the level of marine mammal serious injury and
mortality in the pelagic longline fishery is unlikely to be available
for the development of the proposed LOF for 1998. Constituents
interested in obtaining more recent information should provide public
comments on the draft SARs for 1996.
Comment 39: The category III designation for the Gulf of Maine,
U.S. Mid-Atlantic tuna, shark, and swordfish hook and line/harpoon
fishery should be reevaluated. As NMFS noted in the proposed LOF,
information may be available to confirm the type of gear that entangled
a humpback whale near Jeffrey's Ledge in 1995. These sources of
information should be investigated.
Response: NMFS may revisit the classification of this fishery in
the proposed LOF for 1998. At that time, NMFS hopes to have additional
documentation on several entanglement records and on which segments of
this fishery present an entanglement risk to marine mammals. The record
to which the commenter refers documents the entanglement of a humpback
whale in a bait gillnet set for live bait to be used in the tuna hand
line fishery. While this entanglement could be considered an injury,
NMFS determined that the entanglement did not constitute a serious
injury, as the buoy line was apparently draped over the whale's flipper
rather than wrapped around it.
Comment 40: Several of the gillnet and trap fisheries are proposed
to remain in Category III in the absence of data indicating
interactions, despite the fact that all of these fisheries are using
gear types known to interact with marine mammals in areas where the
fishing effort overlaps with marine mammal species that are known to
become entangled in those types of gear. Lack of observer coverage or
the extremely slow pace of data flowing from the Northeast Fisheries
Science Center should not become a bar to providing monitoring of these
fisheries.
Response: NMFS has no new information on the level of serious
injury and mortality of marine mammals incidental to the majority of
these fisheries at this time. New information on the level of serious
injuries and mortalities of marine mammals incidental to the U.S. mid-
Atlantic coastal gillnet fishery and the North Carolina inshore gillnet
fishery is likely to become available by June 1997. These data will be
evaluated and used, if appropriate, to propose changes to the LOF for
1998.
NMFS will reevaluate other fisheries in a future proposed LOF as
data become available.
Comments on the Definitions of Various U.S. North Atlantic Trawl
Fisheries
Comment 41: While the divisions and category designations of the
North Atlantic trawl fisheries are generally supported, because the
Gulf of Maine, South Atlantic, and Gulf of Mexico Herring Trawl fishery
may co-occur with pilot whales and may be interacting with harbor
porpoise, this fishery may need to be considered for designation as a
Category II fishery.
Response: The herring trawl fishery which is currently listed in
Category III is a coastal herring trawl fishery. At this time, NMFS has
no evidence indicating that marine mammals have been seriously injured
or killed incidental to this fishery.
Comment 42: The estimated number of five vessels in the Gulf of
Maine, South Atlantic, and Gulf of Mexico herring trawl fishery may not
be correct, as there have been reports of a larger number of vessels
fishing in the Jeffrey's Ledge area.
Response: No updates on the number of participants are available
for this final LOF. NMFS will update the tabular listing of number of
participants in each fishery and the list of marine mammal stocks
involved for the proposed LOF for 1998.
Comments on Fisheries in the Southwest Region
Comment 43: Reclassification of the California squid purse seine
fishery to Category II is supported based on the increase in fishing
effort, the presence of pilot whales in the area, and historical
evidence of serious injury and mortality in the fishery.
Response: NMFS agrees. The fishery has been placed in Category II.
Justification for the Categorization of Commercial Fisheries
The following are justifications for the final categorization of
commercial fisheries into Category I, II, or III based on the
classification scheme defined in the final rule implementing section
118 (60 FR 45086, August 30, 1995). Justifications are presented only
for those fisheries addressed in the proposed LOF for 1997 (61 FR
37035, July 16, 1996).
Commercial Fisheries in the Atlantic Ocean
U.S. Atlantic Tuna Purse Seine Fishery
As discussed in the proposed LOF for 1996, humpback and minke
whales have been encircled by tuna purse seines. However, the whales
were released and did not incur injury or mortality. Thus, no changes
in the
[[Page 44]]
classification of this fishery were proposed. In 1996, NMFS observers
recorded that eight marine mammals were encircled incidental to this
fishery. All animals incidentally encircled were released alive and
uninjured. Since NMFS observers have recorded the encirclement of
marine mammals, NMFS will carefully monitor this fishery to determine
why marine mammals are being encircled, and will propose that the
fishery be reclassified if serious injuries or mortalities become a
concern.
This listing replaces a listing for the bluefin tuna purse seine
fishery, which had been inadvertently omitted, and is made more general
to include additional target species such as yellowfin tuna.
Gulf of Maine Mackerel Trawl Fishery
This fishery is a Category III state fishery that uses similar gear
to target the same species as targeted in the Atlantic squid, mackerel,
and butterfish trawl fishery. A separate listing of the Gulf of Maine
mackerel trawl fishery is duplicative of the Atlantic squid, mackerel,
butterfish trawl listing and is hereby deleted from the LOF. Commercial
fishers participating in the state fishery for mackerel should,
therefore, register under the MMPA as a Category II fishery (see
information under Registration).
Finfish Aquaculture Fishery
NMFS has received four reports of harbor seal serious injury and
mortality incidental to this fishery between 1990-1994. These data
result in an average of 0.8 mortalities of harbor seals per year.
Although the actual level of serious injury and mortality in this
fishery is unknown, the reported serious injury and mortality level is
less than 1 percent of the PBR level for the harbor seal. Therefore,
this fishery is retained in Category III. The harbor seal (Western
North Atlantic stock) is hereby added as a species which incurs injury
and/or mortality incidental to the finfish aquaculture fishery.
U.S. North Atlantic Coastal Gillnet Fisheries
The southernmost boundary of the Northeast multispecies sink
gillnet fishery and the northernmost boundary of the Mid-Atlantic
gillnet fishery are modified to be consistent with the Multispecies
Fishery Management Plan (FMP). This boundary extends south from the
southern shoreline of Long Island along 72 deg. 30' W. Long. This
change eliminates an overlap in the vicinity of Rhode Island and
Martha's Vineyard.
Offshore Monkfish Bottom Gillnet
This fishery is divided geographically and placed with two other
gillnet fisheries. The northern portion of the fishery is absorbed into
the New England multispecies sink gillnet fishery in Category I and the
southern portion with the Mid-Atlantic gillnet fishery in Category II.
The monkfish fishery uses bottom gillnet gear that has been observed to
cause mortality of marine mammals. In addition, several of the areas
where bottom gillnet gear is used to target monkfish are known to be
high-use areas for marine mammals.
Gulf of Maine, U.S. Mid-Atlantic Lobster Trap/Pot Fishery
Two records of serious injury or mortality of northern right
whales, 7 records of serious injury and/or mortality of minke whales,
and 10 records of serious injury and mortality of humpback whales were
reported in this fishery from 1990-1994. These data represent a serious
injury and mortality rate of 0.4 (100 percent of PBR level) per year
for right whales, 1.8 (19 percent of PBR level) per year for humpback
whales, and 1.4 (7 percent of PBR level) per year for minke whales. The
above rates are greater than 1 percent but less than 50 percent of the
PBR level for humpback and minke whales, but greater than 50 percent of
the PBR level for right whales. Therefore, this fishery is placed in
Category I in the 1997 LOF.
Opportunistic reports of free-swimming or stranded animals
entangled in lobster pot gear were used to justify the placement of
this fishery in Category I. However, it should be noted that
opportunistic reports of this type provide a minimum estimate of
mortality due to a particular source. These data cannot be extrapolated
to provide a total estimated level of serious injury or mortality.
Northern right whale, humpback whale, and minke whale are added as
marine mammal stocks that incur injury and/or mortality incidental to
the lobster trap/pot fishery.
Trawl Fisheries
In the proposed LOF for 1997, NMFS requested public comments on
alternative definitions of the trawl fisheries in the Northeast to
better reflect current fishing practices. No public comments providing
additional information on the fisheries were received. In a future LOF,
NMFS may propose to redefine several of the trawl fisheries according
to gear type rather than target species to parallel current fishery
management practices and to facilitate more efficient data analysis.
U.S. Atlantic Large Pelagics Pair Trawl Fishery
A petition to consider pair trawl gear as an authorized gear type
in the Atlantic tuna fishery was denied in 1996 because the tuna stocks
the fishery targets are either fully- or over-utilized at this time (61
FR 48661, September 16, 1996). Because this fishery has not been
authorized under ATCA (16 U.S.C. 971 et seq.), it has been removed from
the LOF. Should the fishery be authorized in the future, NMFS will
review the level of serious injury and mortality that occurred
incidental to this fishery between 1992 and 1996 to determine the
appropriate classification in the LOF.
Commercial Fisheries in the Pacific Ocean
Oregon Swordfish Floating Longline Fishery
The swordfish longline fishery is being separated from the Oregon
blue shark longline fishery to ensure that registration under the MMPA
remains consistent with the existing state licensing systems. This
fishery will be retained in Category II.
Oregon Blue Shark Floating Longline Fishery
The blue shark longline fishery is being separated from the Oregon
swordfish longline fishery to ensure that registration under the MMPA
remains consistent with the existing state licensing systems. This
fishery will be retained in Category II.
California Squid Purse Seine Fishery
No observer data are available for consideration in classification
of this fishery. Between 1989 and 1995, California squid purse seine
fishers reported short-finned pilot whale harassment during deterrence
attempts, but there were no accounts of pilot whales being injured or
killed either by deterrence or gear. The California squid purse seine
fishery is currently classified as a Category III fishery. However, the
Pacific Scientific Review Group, established under section 117 of the
MMPA, recommended that the squid purse seine fishery be monitored with
an observer program because of documentation of previous interactions
between this fishery and short-finned pilot whales and a lack of
current information about marine mammal mortalities and serious
injuries incidental to this fishery.
Short-finned pilot whales were once common off Southern California,
especially near Santa Catalina Island (Barlow et al. 1995). In early
spring, short-finned pilot whales occurred in
[[Page 45]]
inshore waters of California, coincident with the arrival of spawning
squid, their main prey source. Dohl et al. (1980) estimated that a
resident population of 400 short-finned pilot whales with a seasonal
increase of up to 2000 individuals occurred in California waters.
Short-finned pilot whales essentially disappeared from the area after
the strong 1982-83 El Nino event and few sightings were made between
1984-92 (Barlow et al. 1995). However, short-finned pilot whales appear
to have returned to California waters as indicated by recent sighting
events and incidental mortality in the drift gillnet fishery for
thresher shark and swordfish (average annual mortality = 20). Results
from ship surveys in 1993 off California indicate that the estimated
abundance of short-finned pilot whales in California/Oregon/Washington
is approximately 1,000 animals (NMFS unpublished data). Barlow et al.
(1995) concluded that the California/Oregon/Washington short-finned
pilot whale population was a ``strategic'' stock under the MMPA.
Historically, incidental mortality of pilot whales occurred in the
squid purse seine fishery in southern California. Twelve pilot whales
were observed and reported entangled incidental to this fishery during
the 1980 season (Miller et al. 1983). Miller et al. (1983) also
reported that pilot whales were occasionally shot in the squid purse
fishery when lethal deterrence was legal. Heyning and Woodhouse (1994)
analyzed stranding data between 1975-90 and documented that 14 short-
finned pilot whales stranded or were found floating dead (most during
the late 1970s). They concluded that these pilot whales were probably
incidentally killed in the squid purse seine fishery. All animals that
were examined had stomachs full of market squid: none of those stranded
had evidence of bullet holes, and commercial squid boats were reported
to have been working those areas at the time.
Currently, the majority of the purse seine vessels that purse seine
offshore California for mackerel, tuna, and anchovy (a Category II
fishery) use the same gear to fish for squid in the winter off southern
California (California Department of Fish and Game, unpublished data).
Although the number of purse seine vessels has remained relatively
stable in southern California with approximately 65 squid purse seine
vessels in operation, over the last few years, squid purse seine effort
and landings have increased.
The regulations implementing section 118 classify all fisheries
based on the best available information on incidental mortality and
serious injury of marine mammals. In the absence of reliable
information indicating the frequency of incidental mortality and
serious injury of marine mammals in commercial fisheries, the Assistant
Administrator will determine whether taking is ``occasional'' (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 areas.
Due to the possible increase of short-finned pilot whales in
California waters, coincidence of the fishery and short-finned pilot
whales in southern California waters, historic incidental taking in the
California purse seine fishery, and impacts to the short-finned pilot
whale stock from other fisheries, NMFS is categorizing the California
squid purse seine fishery in Category II.
Other Changes to the List of Fisheries
Southeastern U.S. Coastal Gillnet
The Southeast U.S. Atlantic coastal gillnet fishery is deleted from
this final LOF. With the exception of certain gillnet fisheries already
included separately on the LOF (e.g., Gulf of Maine, Southeast U.S.
Atlantic coastal shad, sturgeon gillnet fishery, Gulf of Mexico coastal
gillnet fishery, Florida east coast, Gulf of Mexico pelagics king and
Spanish mackerel gillnet fishery, Southeastern U.S. Atlantic shark
gillnet fishery), coastal Atlantic gillnet fisheries no longer exist
south of North Carolina, due to state gillnet bans. Coastal gillnet
fisheries in North Carolina are either included in the U.S. mid-
Atlantic coastal gillnet fishery, or the North Carolina inshore gillnet
fishery.
Gulf of Maine, Southern North Atlantic, Gulf of Mexico Coastal Herring
Trawl Fishery
The Gulf of Maine, Southern North Atlantic, Gulf of Mexico coastal
herring trawl fishery is revised as the Gulf of Maine, U.S. mid-
Atlantic coastal herring trawl fishery. Although purse seine fisheries
for ``herring-like'' fish such as menhaden and sardine exist in the
southeastern U.S., there are no southeastern trawl fisheries targeting
these species. In addition, true herring are not found in southeastern
U.S. waters.
Summary of Changes to the LOF for 1997
With the following exceptions, the placement and definitions of
U.S. commercial fisheries are identical to that provided in the LOF for
1996 and thus, the majority of the LOF for 1996 remains valid in 1997.
The following summarizes the changes in fishery classification, fishery
definition, elimination of fisheries, and species that incur incidental
injury or mortality that are made final by this LOF for 1997. For a
compiled list of the categorization of all U.S. commercial fisheries,
contact the Office of Protected Resources (see ADDRESSES).
Commercial Fisheries in the Pacific Ocean
Category III to Category II:
The ``California squid purse seine fishery'' is moved from Category
III to Category II.
Fishery definitions:
The ``Oregon swordfish/blue shark surface longline fishery'' is
separated into the ``Oregon swordfish floating longline fishery'' and
the ``Oregon blue shark floating longline fishery''. Both fisheries are
retained in Category II.
Removals of fisheries from the LOF:
The ``Oregon swordfish/blue shark surface longline fishery'' is
removed from the LOF.
Additions to the list of species that incur incidental injury or
mortality to a particular fishery:
Short-finned pilot whales are added to the list of species that
incurs injury or mortality incidental to the California squid purse
seine fishery.
Commercial Fisheries in the Atlantic Ocean, Gulf of Mexico, and
Caribbean
Category III to Category I and fishery definition:
The ``Gulf of Maine, U.S. mid-Atlantic inshore lobster trap/pot
fishery'' and the ``Gulf of Maine, U.S. mid-Atlantic offshore lobster
trap/pot fishery'' are combined and referred to as the ``Gulf of Maine,
U.S. mid-Atlantic Lobster trap/pot fishery.'' This fishery is moved
from Category III to Category I.
Fishery definition:
The ``Gulf of Maine mackerel trawl'' fishery, which is a Category
III fishery, is combined with the ``Atlantic squid, mackerel,
butterfish trawl fishery'' in Category II.
The geographic separation between the ``New England multispecies
sink gillnet (including species as defined in the Multispecies
Fisheries Management Plan and spiny dogfish and monkfish)'' and the
``U.S. mid-Atlantic coastal gillnet'' is changed from 70 deg.40' W.
long to 72 deg.30' W. long.
The offshore monkfish gillnet fishery, which was in Category III,
is combined with either the ``New England multispecies sink gillnet
(including species as defined in the Multispecies Fisheries Management
Plan and spiny
[[Page 46]]
dogfish and monkfish)'', which is in Category I, or the ``U.S. mid-
Atlantic coastal gillnet fishery'', which is in Category II, depending
on where the monkfish is targeted.
Additions of Fisheries to the LOF:
The ``U.S. Atlantic tuna purse seine'' is added to Category III in
the LOF.
Removals of Fisheries in the LOF:
The ``Gulf of Maine, U.S. mid-Atlantic inshore lobster trap/pot
fishery'' and the ``Gulf of Maine, U.S. mid-Atlantic offshroe lobster
trap/pot fishery'' are removed from the LOF.
The U.S. Atlantic large pelagics pair trawl is deleted from the
LOF.
The ``Gulf of Maine mackerel trawl'' fishery is deleted from
Category III in the LOF.
The ``Offshore monkfish gillnet fishery'' is deleted from Category
III in the LOF.
Additions to the list of species that incur incidental injury or
mortality to a particular fishery:
The North Atlantic stock of harbor seals is added as a stock that
incurs injury or mortality incidental to the ``Finfish aquaculture''
fishery.
Other Changes to the LOF
Participants in Category I or II fisheries are required to register
under the MMAP. In order to provide additional flexibility for
integrated registration systems so that, if key MMPA Authorization
Certificate registration information is supplied through integration
with state systems, interjurisdictional fisheries programs, and
federally managed fisheries, individual fishers would not be required
to fill out forms or submit registration information but automatically
would be issued registrations and Authorization Certificates.
The benefits of integrating MMPA registration with existing fishery
registration or permit programs are clear. Integration results in a
reduction in paperwork that must be completed by the fisher, a
reduction in paperwork that must be completed by NMFS, and reduced
staff burdens for NMFS. In some cases, integration has resulted in the
elimination of the MMPA registration fee of $25.
Classification
This action has been determined to be not significant for the
purposes of E.O. 12866.
When this LOF for 1997 was proposed, the Assistant General Counsel
for Legislation and Regulation of the Department of Commerce certified
to the Chief Counsel for Advocacy of the Small Business Administration
certified that the proposed rule, if adopted, would not have a
significant economic impact on a substantial number of small entities.
As a result, a regulatory flexibility analysis was not prepared.
This final rule does not contain policies with federalism
implications sufficient to warrant preparation of a federalism
assessment under E.O. 12612.
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 LOF determines which vessel owners must register under
the MMPA, and which commercial fishers must report marine mammal
mortalities and injuries within 48 hours of returning to port, as
required by the section 118 implementing regulations. These collection
of information requirements have been approved by OMB, and the OMB
control numbers and public reporting burdens are as follows: reports of
marine mammal injury or mortality (0.15 hours per report) under 0648-
0292, and registration requirements (0.25 hours per registration) under
0648-0293.
The estimated response times include the time needed for reviewing
instructions, searching the existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collections-of-information. Send comments regarding these burden
estimates, or any other aspects of these collections-of-information to
NMFS and OMB (see ADDRESSES).
List of Subjects in 50 CFR Part 229
Administrative practice and procedure, Confidential business
information, Fisheries, Marine mammals, Reporting and recordkeeping
requirements.
Dated: December 26, 1996.
Gary Matlock,
Acting Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For the reasons set out in the preamble, 50 CFR part 229 is amended
as follows:
PART 229--AUTHORIZATION FOR COMMERCIAL FISHERIES UNDER THE MARINE
MAMMAL PROTECTION ACT OF 1972
1. The authority citation for part 229 continues to read as
follows:
Authority: 16 U.S.C. 1361 et seq.
2. In Sec. 229.4, paragraphs (a),(b), and (e) are revised to read
as follows:
Sec. 229.4 Requirements for Category I and II fisheries.
(a) General. (1) For a vessel owner or crew members to lawfully
incidentally take marine mammals in the course of a commercial fishing
operation in a Category I or II fishery, the owner or authorized
representative of a fishing vessel or nonvessel fishing gear must have
in possession a valid Certificate of Authorization. The owner of a
fishing vessel or nonvessel fishing gear is responsible for obtaining a
Certificate of Authorization.
(2) The granting and administration of Authorization Certificates
under this part will be integrated and coordinated with existing
fishery license, registration, or permit systems and related programs
wherever possible. These programs may include, but are not limited to,
state or interjurisdictional fisheries programs. If the administration
of Authorization Certificates is integrated into a program, NMFS will
publish a notice in the Federal Register announcing the integrated
program and summarizing how an owner or authorized representative of a
fishing vessel or non-fishing gear may register under that program or
how registration will be achieved if no action is required on the part
of the affected fisher. NMFS will make additional efforts to contact
participants in the affected fishery via other appropriate means of
notification.
(b) Registration. (1) The owner of a vessel, or for nonvessel gear
fisheries, the owner of gear, who participates in a Category I or II
fishery is required to be registered for a Certificate of
Authorization.
(2) Unless a notice is published in the Federal Register announcing
an integrated registration program, the owner of a vessel, or for
nonvessel fishery, the owner of the gear must register for and receive
an Authorization Certificate. To register, owners must submit the
following information using the format specified by NMFS:
(i) Name, address, and phone number of owner.
(ii) Name, address, and phone number of operator, if different from
owner, unless the name of the operator is not known or has not been
established at the time the registration is submitted.
(iii) For a vessel fishery, vessel name, length, home port; U.S.
Coast Guard documentation number or state registration number, and if
applicable; state commercial vessel license number and for a nonvessel
fishery, a description of the gear and state
[[Page 47]]
commercial license number, if applicable.
(iv) A list of all Category I and II fisheries in which the fisher
may actively engage during the calendar year.
(v) The approximate time, duration, and location of each such
fishery operation, and the general type and nature of use of the
fishing gear and techniques used.
(vi) A certification signed and dated by the owner of an authorized
representative of the owner as follows: ``I hereby certify that I am
the owner of the vessel, that I have reviewed all information contained
on this document, and that it is true and complete to the best of my
knowledge.''
(3) If a notice is published in the Federal Register announcing an
integrated registration program, the owner of a vessel, or for
nonvessel fishery, the owner of the gear may register by following the
directions provided in that notice. If a person receives a registration
to which he or she is not entitled or if the registration contains
incorrect, inaccurate or incomplete information, the person shall
notify NMFS within 10 days following receipt. If a fisher participating
in a Category I or II fishery who expects to receive automatic
registration does not receive that registration within the time
specified in the notice announcing the integrated registration program,
the person shall notify NMFS as directed in the notice or may apply for
registration by submitting the information required under paragraph
(b)(1)(i) through (b)(1)(vi) of this section.
* * * * *
(e) Issuance. (1) Unless an integrated registration program is in
place, NMFS will issue an Authorization Certificate and, if necessary,
a decal to an owner or authorized representative who:
(i) Submits a completed registration form and the required fee.
(ii) Has complied with the requirements of this section and
Secs. 229.6 and 229.7.
(iii) Has submitted updated registration or renewal registration
which includes a statement (yes/no) whether any marine mammals were
killed or injuried during the current or previous calendar year.
(2) If an integrated registration program has been established, an
Authorization Certificate or other proof of registration will be issued
annually to each fisher registered for that fishery.
(3) If a person receives a renewed Authorization Certificate or a
decal to which he or she is not entitled, the person shall notify NMFS
within 10 days following receipt. In order for a Authorization
Certificate to be valid, the certification must be signed and dated by
the owner or an authorized representative of the owner.
* * * * *
[FR Doc. 96-33370 Filed 12-27-96; 4:05 pm]
BILLING CODE 3510-22-W
