95-14828. Taking of Marine Mammals Incidental to Commercial Fishing Operations; Authorization for Commercial Fisheries; Proposed List of Fisheries

[Federal Register Volume 60, Number 116 (Friday, June 16, 1995)]
[Proposed Rules]
[Pages 31666-31696]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-14828]



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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 216 and 229

[Docket No. 950605147-5147-01; I.D. 052395C]
RIN 0648-AH33


Taking of Marine Mammals Incidental to Commercial Fishing 
Operations; Authorization for Commercial Fisheries; Proposed List of 
Fisheries

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS issues this proposed rule to implement the new management 
regime for the taking of marine mammals incidental to commercial 
fishing operations established by certain provisions of the Marine 
Mammal Protection Act of 1972 (MMPA) as added to that Act by certain 
amendments in 1994. The regulations would implement requirements to 
authorize vessels engaged in commercial fishing to incidentally, but 
not intentionally, take species and stocks of marine mammals upon the 
receipt of specified information and that require commercial fishers to 
report to NMFS the incidental mortality and injury of marine mammals in 
the course of commercial fishing and comply with certain other 
requirements. The intended effect of this rule is to provide for a 
limited exemption of commercial fisheries from the MMPA's moratorium on 
the taking of marine mammals incidental to commercial fishing 
activities. NMFS issues a proposed list of fisheries (LOF), categorized 
according to frequency of incidental serious injury and mortality of 
marine mammals. Comments are invited on the proposed rule and the 
proposed LOF.

DATES: Comments on this proposed rule must be received by July 31, 
1995. Comments on the proposed LOF must be received by September 14, 
1995.

ADDRESSES: Send comments to Chief, Marine Mammal Division, Office of 
Protected Resources, National Marine Fisheries Service, 1315 East-West 
Highway, Silver Spring, MD 20910. A copy of the Environmental 
Assessment (EA) may be obtained by writing to this address, by 
telephoning one of the contacts listed below, or by accessing the NMFS 
``Home Page'' on the World Wide Web at http://kingfish.ssp.nmfs.gov:80/
home-page.html which will be available by June 19, 1995. Comments 
regarding the burden-hour estimate or any other aspects of the 
collection of information requirements contained in this rule should be 
sent to the above individual and to the Office of Information and 
Regulatory Affairs, Office of Management and Budget (OMB); Attention: 
NOAA Desk Officer, Washington, D.C. 20503.

FOR FURTHER INFORMATION CONTACT: Dr. Thomas Eagle or 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; Dr. Steve Zimmerman, Alaska Region, 907-586-7235.

SUPPLEMENTARY INFORMATION:

Legislative and Regulatory History

    Prior to passage of the 1988 amendments to the MMPA (Public Law 92-
522), commercial fishers could receive an exemption from the MMPA's 
general moratorium on the taking of marine mammals by applying for a 
general permit and certificates of inclusion. The 1988 amendments to 
the MMPA (Public Law 100-711), added a section 114 to the MMPA that 
exempts, on an interim basis, commercial fishers who comply with 
certain registration 

[[Page 31667]]
and reporting requirements from the general prohibition on taking 
marine mammals (Interim Exemption for Commercial Fisheries). The 
purpose of this exemption was to allow NMFS to collect data to be used 
in setting up a comprehensive management regime governing fisheries 
interactions with marine mammals. The 1988 amendments did not allow for 
the taking of California sea otters or the intentional lethal taking of 
Steller sea lions, cetaceans, or marine mammals from a population stock 
designated as depleted.
    Section 11 of the MMPA Amendments of 1994 (Public Law 103-278) 
added a new section 118 to the MMPA establishing a new management 
regime for the taking of marine mammals incidental to commercial 
fishing operations. In order to provide time for development and 
implementation, section 15 of the MMPA Amendments of 1994 amended 
section 114, the interim exemption, to extend it until September 1, 
1995, or until superseded by regulations prescribed under section 118, 
whichever is earlier.
    Since it was first passed in 1972, one of the underlying goals of 
the MMPA has been that the incidental kill or incidental serious injury 
of marine mammals permitted in the course of commercial fishing 
operations be reduced to insignificant levels approaching a zero 
mortality and serious injury rate (section 101(a)(2) of the MMPA). 
Section 11 of the 1994 amendments to the MMPA reaffirmed this Zero 
Mortality Rate Goal (ZMRG)(new section 118(b)(1)) and requires NMFS to 
begin review of each fishery's progress toward the ZMRG within 3 years 
of enactment (April 30, 1997), and report the results of this review to 
Congress within 4 years of enactment (April 30, 1998)(new section 
118(b)(3)). The amendments specify that all fisheries must attain this 
goal within 7 years of enactment (April 30, 2001)(new section 
118(b)(2)).
    Section 10 of the 1994 Amendments adds a new section 117 to the 
MMPA that requires NMFS to complete stock assessments for every 
population or stock of marine mammals that occur in the waters under 
U.S. jurisdiction and to designate strategic stocks based on the level 
of human-caused mortality likely to reduce or keep the stock below its 
optimum sustainable population level. Strategic stocks are also those 
that are listed as endangered or threatened species under the 
Endangered Species Act (ESA), depleted under the MMPA, or that are 
declining and likely to be listed as a threatened species under the 
ESA. Stock assessments must include an analysis of whether the 
incidental mortality and serious injury of marine mammals from 
commercial fishing operations is insignificant and is approaching a 
zero mortality and serious injury rate (e.g., ZMRG). Draft stock 
assessment reports (SARs) were published in August, 1994 (59 FR 40527). 
Final SARs are in preparation.
    Section 118 of the MMPA requires NMFS to authorize commercial 
fishers to incidentally, but not intentionally, take marine mammals 
during the course of commercial fishing operations upon the receipt of 
specified information and provided certain conditions are met. The 
regulations being proposed by this notice would implement section 118.
    Section 118(a)(5) of the MMPA prohibits the intentional lethal take 
of any marine mammal in the course of commercial fishing operations 
except as provided by section 101(c) which authorizes takings, 
including intentional lethal takings if imminently necessary in self-
defense or to save the life of a person in immediate danger and as long 
as such taking is reported to NMFS within 48 hours (see 60 FR 6036). 
The 1994 amendments to the MMPA amended section 101(a)(4) of the MMPA 
to authorize fishers to deter marine mammals from damaging fishing 
gear, catch or other private property or from endangering personal 
safety provided such measures do not result in the serious injury or 
mortality of a marine mammal. Section 101(a)(4) directs NMFS to develop 
and publish guidelines for use in safely deterring marine mammals and 
to prohibit the use of deterrence measures determined to have a 
significant adverse effect on marine mammals. On May 5, 1995, NMFS 
published proposed guidelines and prohibited measures (60 FR 22345).
    Section 4 of the MMPA Amendments of 1994 amended section 101(a)(5) 
of the MMPA to authorize NMFS to issue permits for the take of marine 
mammals listed as a threatened species or endangered species under the 
ESA incidental to commercial fishing operations.
    The 1994 Amendments retained the concept of categorizing commercial 
fisheries into three groups based on the frequency of incidental 
mortality and serious injury of marine mammals from section 114--the 
Interim Exemption for Commercial Fisheries. On September 1, 1994, NMFS 
published a notice of proposed changes to the LOF (59 FR 45263). As 
required by section 118, that notice classified commercial fisheries by 
frequency of incidental serious injury and mortality of marine mammals. 
This classification differed from the classifications under the Interim 
Exemption in that non-injurious takes, incidental or intentional, such 
as harassment, were not included in the revised classification 
criteria. Only incidental serious injuries and mortalities were 
considered. Also, since intentional lethal takes are prohibited by 
section 118(a)(5), those fisheries previously classified based only on 
intentional takes were proposed for reclassification.
    Additional information on the regulatory and legislative history of 
the MMPA prior to the 1994 Amendments appears in the Environmental 
Assessment prepared for this rule.

Comments and Responses to the Notice of Proposed Changes to the List of 
Fisheries

    Ten comments were received in response to the September 1, 1994, 
notice of proposed changes to the LOF (59 FR 45263). Comments and 
information were received from State agencies, commercial fishing 
organizations, Indian tribes, conservation groups, and other interested 
parties. Comments on the proposed reclassification of fisheries, 
classification criteria, treaty Indian fisheries, and related topics 
are summarized below along with NMFS' responses. These comments were 
considered in developing this proposed rule.

Comments on the Proposed Changes to the Criteria

    Two commenters agreed with the proposed reclassifications, because 
of the assumption that the prohibition on intentional serious injuries 
and mortalities would result in a reduced taking of marine mammals. 
However, three commenters believed that it was inappropriate to 
reclassify any fisheries based on this assumption until the prohibition 
was implemented by regulations. One commenter suggested that any 
attempt to factor unknown levels of illegal activities when classifying 
fisheries was inappropriate and would be unfair to law-abiding fishers. 
On March 3, 1995, the prohibition in section 118(a)(5) on intentionally 
seriously injuring or killing a marine mammal during commercial fishing 
operations became effective by regulation (60 FR 6036). Previously, 
under regulations implementing section 114, lethal deterrence measures 
could be used to protect fishing gear or catch during commercial 
fishing operations. NMFS has informed owners of vessels currently 
registered in a Category I or II fishery (respectively, frequent or 

[[Page 31668]]
occasional incidental mortality and serious injury of marine mammals) 
of this prohibition by mail. Furthermore, NMFS conducted a public 
outreach campaign to inform other affected parties (e.g., vessel owners 
participating in a Category III fishery (a remote likelihood of 
incidental mortality and serious injury of marine mammals)) through 
tradepapers, newsletters, and other media. For these reasons, the 
proposed classification of fisheries in this proposed rule (see List of 
Fisheries) is based on the assumption that the prohibition on 
intentional serious injury and mortality will result in a reduced 
taking of marine mammals. The proposed LOF is also based on the new 
proposed definitions of ``frequent,'' ``occasional,'' and ``remote'' 
incidental mortality and serious injury of marine mammals (proposed 
Sec. 229.2).

Comments on the Definition of a Fishery

    For purposes of section 114, NMFS defined fisheries by gear type, 
geographical area, and target species, in accordance with existing 
state or Federal management designations. However, for some fisheries 
this information is unavailable or only partially available. In the 
notice of proposed changes to the LOF, NMFS suggested that fisheries 
could be partitioned as necessary to reflect concentrations of marine 
mammals in certain areas within a fishery, or at certain times of the 
year in order to address management actions on fishery hot spots, or 
seasons. Gear type (e.g., mesh size) could also be used to help define 
a fishery to allow flexibility. Three commenters supported these 
approaches.
    The proposed LOF in this notice would define fisheries based on 
state or Federal management designations where these designations exist 
and where practicable. When this information was not available, 
fisheries are defined based on the 1994 LOF. The 1994 LOF based fishery 
definitions on the location of the fishery, the gear type used, and 
sometimes the fish species that are targeted by the fishery. A fishery 
may be proposed to be grouped with other fisheries if the general 
location and gear type are similar and if the rates of incidental 
marine mammal mortality and serious injury are known or suspected to be 
similar. For instance, the U.S. mid-Atlantic coastal gillnet fishery in 
the 1994 LOF is composed of many small fisheries that target different 
fish species seasonally but use the same general type of gear, fish in 
the same general location, and have a marine mammal take that is 
suspected to be similar. When additional information on either marine 
mammal incidental mortality and serious injury or on the fishery are 
available, fisheries in the proposed LOF may be grouped together or 
split apart in order to better manage the incidental mortality and 
serious injury of marine mammals in those fisheries.
    New fisheries or fisheries that were new to the proposed LOF were 
defined based on general location, gear type, and, when applicable, 
target species.

Comments on Take Estimates
    The classification criteria developed to implement the Interim 
Exemption (expiring section 114) were based on an interaction rate of 
marine mammals with a randomly selected vessel in a fishery during a 
20-day period. In the September 1, 1994 notice of proposed changes to 
the LOF, NMFS solicited comments and/or suggestions on classification 
criteria based on the relative impact of a fishery on marine mammal 
stocks (e.g., percentage of a stock's potential biological removal 
level (PBR)) or other alternative criteria. Four commenters supported 
classifying fisheries based on the impact of the annual incidental take 
of marine mammals from a marine mammal stock relative to the stock's 
PBR. Two of these commenters suggested that a fishery should be 
considered to have a frequent taking of marine mammals if the 
incidental take is 30 percent of a stock's PBR per year, instead of 50 
percent of a stock's PBR as was suggested in the notice. They believed 
that this would be a more conservative approach. One of these 
commenters suggested that a Category III fishery should be considered 
to have a remote likelihood of taking if the incidental take from a 
marine mammal stock is less than or equal to 10 percent of a stock's 
PBR, instead of the one percent of a stock's PBR as was suggested in 
the notice. Two commenters supported an approach that categorizes 
fisheries based on either the number of takes per 20 days or impact of 
an annual take relative to the stock's PBR.
    Commercial fisheries were classified in this proposed LOF based on 
new definitions of ``frequent,'' ``occasional'', and ``remote'' 
incidental mortality and serious injury of marine mammals (proposed 
Sec. 229.2). These new definitions would take into account the relative 
impact of incidental serious injury and mortality by commercial 
fisheries on marine mammal stocks. The development and justification 
for these proposed new definitions are discussed in the ``Comments and 
Responses to Draft Regulations to Implement Section 118 from Working 
Sessions and Written Comments'' section of this preamble.

Comments on Treaty Indian Fisheries

    In the notice of proposed changes to the LOF, NMFS considered 
whether the Pacific Northwest treaty Indian tribal fisheries should be 
excluded from the LOF. Seven commenters objected to the omission of 
Pacific Northwest Indian tribal fisheries from the LOF. Commenters 
believed that the requirement to register Treaty Indian Fisheries and 
categorize them in the LOF provided NMFS with a mechanism to evaluate 
the impact of these fisheries on marine mammals. Some of the commenters 
believed that while traditional hunting and fishing rights are covered 
by native treaty agreement, commercial enterprises are not covered and 
should be regulated under the MMPA. One commenter believed that the 
exclusion of the Pacific Northwest treaty Indian tribal fisheries from 
the LOF was appropriate and also objected to the solicitation of public 
opinion on this topic.
    In a September, 1994 letter to the Northwest Indian Fish 
Commission, NMFS stated that it had reviewed the relationship of 
Northwest Indian treaties to the MMPA, and did not find clear evidence 
that Congress intended to abrogate Indian treaty rights with respect to 
marine mammals. The letter concluded that proposed tribal harvests of 
seals and sea lions did not violate the MMPA, noting that neither 
species was subject to the ESA, and that the healthy status of the 
stocks would not be affected. The letter urged the tribes to continue 
to consult with NMFS, and to observe adequate conservation measures.
    With respect to the LOF and in keeping with its September, 1994 
letter, NMFS has determined that Category I and II treaty Indian tribal 
fisheries are conducted pursuant to the tribes' treaty rights. For the 
reasons discussed above, NMFS proposes to not require treaty tribes to 
register, report or comply with take reduction plans under section 118 
of the MMPA. In addition, NMFS has removed treaty fisheries from the 
LOF proposed in this notice.

Comments on Applicability to Zero Mortality Rate Goal

    In the Federal Register notice of proposed changes to the LOF, NMFS 
solicited comments on the development of criteria that could be used in 
the assessment of a fishery's progress in achieving the ZMRG, and 
whether the criteria used to classify fisheries may be used to make 
that assessment. In the June 1994 workshop to develop 

[[Page 31669]]
standards for SARs, workshop participants suggested that a marine 
mammal stock that experienced a removal level equal to or less than 10 
percent of its PBR could be considered to have an insignificant level 
of incidental mortality and serious injury approaching zero mortality 
and serious injury rate because the biological impacts would be 
negligible (see PBR Workshop Report). Several comments were received on 
the proposed definition set forth in the workshop report. One commenter 
agreed that a fishery would have achieved the ZMRG if it took 10 
percent or less of a stock's PBR. However, three commenters did not 
agree because for stocks with a large population size, 10 percent 
removal could still be a very large number of marine mammals. Even if a 
fishery achieved this 10 percent goal, these commenters believed the 
fishery should still try to reduce marine mammal bycatch when possible, 
regardless of whether the reduction would be necessary to mitigate a 
biological impact on the stock.
    NMFS believes that the ZMRG would be met for a marine mammal stock 
when the incidental mortality and serious injury from commercial 
fishing operations are at levels significantly below such stock's PBR 
so that the incidental mortality and serious injury has a negligible 
effect on the status of the affected stock. In other words, when the 
total incidental mortality and serious injury from fisheries has no 
biological impact, the ZMRG will have been met. NMFS believes that 
fishers should make every reasonable effort to reduce incidental take 
below this level. Nevertheless, for the purposes of the MMPA, NMFS is 
proposing to consider a fishery as having achieved the ZMRG if, 
collectively with other fisheries, it is responsible for the annual 
removal of 10 percent or less of any marine mammal stock's PBR level 
(proposed Sec. 229.2).

Comments and Responses to Draft Regulations To Implement Section 118 
From Working Sessions and Written Comments

    Informal working sessions to discuss the draft proposed regulations 
to implement section 118 of the MMPA were held in Silver Spring, MD, on 
November 30, 1994, and Seattle, WA, on December 2, 1994. Attendees at 
both sessions included Congressional staff (Silver Spring session 
only), representatives of conservation groups, members of the fishing 
community, representatives of state governments, a representative of 
the Alaska subsistence community (Seattle session only) and NMFS staff. 
Written comments were also received on the draft proposed regulations 
to implement section 118. Comments on fishery classification criteria, 
options for classifying fisheries, and related topics are summarized 
below along with NMFS' responses. These comments were considered in 
developing this proposed rule.

Comments on Logbook Data

    Some commenters believed that logbook data should be used to 
classify fisheries. Although logbook information is not and probably 
will not be reliable enough to determine reliable mortality estimates, 
the information can be used to determine the minimum mortality of 
marine mammals in a particular fishery. In addition, qualitative 
information provided in reports by fishers, such as areas of operation, 
number of fishers, and relative number of incidental takes, is useful 
in determining which fisheries need more intensive monitoring programs. 
When no other information is available for a particular fishery, NMFS 
will continue to use logbook information collected during the Interim 
Exemption program to supplement information from the monitoring program 
(e.g., observer program), and to better understand interactions in 
those commercial fisheries that are not being observed. Under the 
proposed rule, fishers will no longer be required to submit logbooks; 
thus, reports of incidental takes made by fishers will be used to 
classify fisheries when other information is lacking.

Comments on Criteria When Stock Status or Fishery Take Information Are 
Lacking

    Some commenters believed that fishery classification criteria 
should not be based on annual takes relative to PBR because in the 
draft SARs many PBRs were zero (no potential removal level estimated) 
due to a lack of information on the marine mammal stock in question 
(e.g., stock size) and this would subject certain fisheries to be 
classified arbitrarily. Some commenters believed that guidelines must 
be developed to allow categorization of new fisheries, or fisheries 
about which little is known. Most commenters supported defaulting new 
fisheries into Category II.
    1. In contrast to the number of zero PBRs in the draft SARs, there 
are relatively few zero PBRs in the final SARs. Furthermore, fisheries 
that have annual takes of marine mammals from such stocks generally 
take more than one species of marine mammal; thus, the fishery can be 
classified based on a stock with a known PBR.
    2. New fisheries for which no information is available on its level 
of interaction with marine mammals, and where the frequency of 
interaction can not be determined by analogy (e.g., gear used), would 
be deemed to be a Category II fishery until the next annual LOF is 
published which may recategorize them based on new information. NMFS 
believes that this would provide for the necessary safeguards to ensure 
that potentially high levels of incidental mortality and serious injury 
of marine mammals in new fisheries is appropriately monitored.

Comments on Options for Fishery Classification Criteria

    Under section 118 of the MMPA, commercial fisheries must be 
classified in one of the following three categories:
    Category I: Frequent incidental mortality and serious injury of 
marine mammals;
    Category II: Occasional incidental mortality and serious injury of 
marine mammals;
    Category III: A remote likelihood of or no known incidental 
mortality or serious injury of marine mammals.
    Because the 1994 amendments to the MMPA did not define 
``frequent'', ``occasional'' or ``remote likelihood'', definitions for 
these terms must be developed in order to classify fisheries. Several 
options for criteria to classify fisheries were considered and 
discussed during the working sessions, and are summarized below.
    Option 1: Status Quo. This option would retain the definitions of 
``frequent'', ``occasional'', and ``remote likelihood'' contained in 
the regulations to implementing section 114 (54 CFR 219.3). Under this 
option, ``frequent'' means that it is highly likely that more than one 
marine mammal will be incidentally taken by a randomly selected vessel 
in the fishery during a 20-day period. ``Occasional'' means that there 
is some likelihood that one marine mammal will be incidentally taken by 
a randomly selected vessel in the fishery during a 20-day period. 
``Remote likelihood'' means that it is highly unlikely that any marine 
mammal will be incidentally taken by a randomly selected vessel in the 
fishery during a 20-day period.
    Comments on Option 1. Some commenters stated that the criteria for 
classifying fisheries under section 118 of the MMPA should be identical 
to the criteria under section 114. They argued that changing the 
criteria was not the intent of Congress and might place additional 
regulatory burden on commercial fishers by increasing the number of 
fisheries placed in Categories I and II. Furthermore, they were 

[[Page 31670]]
concerned about what process would be followed for classifying 
fisheries under a new set of criteria when little or no data exists 
from which to estimate fishing mortality or PBR. The majority of the 
commenters however, supported modification of fishery classification 
criteria to better reflect the effect of commercial fisheries on 
individual marine mammal stocks. This approach would allow NMFS to 
place management emphasis on stocks of particular concern. Attendees at 
the Seattle session constructed a new set of criteria, which is 
discussed below under Option 2.
    Assumptions of Option 1. This approach assumes that NMFS has fairly 
reliable estimates of rates of serious injuries and mortalities for 
vessels per 20 days of fishing in each fishery. For fisheries in which 
NMFS has placed observers, these rates may vary in accuracy, depending 
on the level of observer coverage applied. For other fisheries, only 
information submitted in fishers' logbooks are available. Take rates 
obtained from fishers' logbooks have been found to vary from those 
reported by observers for the same fishery, with the general tendency 
to have observed take rates higher than fisher-reported take rates.
    Strengths of Option 1. This criteria scheme is useful in 
identifying fisheries that have relatively high rates of incidental 
serious injuries and mortalities across a number of marine mammal 
stocks, regardless of the status of the stocks involved. These 
fisheries would be classified as Category I or II fisheries.
    Weaknesses of Option 1. This approach is problematic in that it 
does not account for the size of the fishery as a whole (i.e., the 
number of vessels participating in the fishery), as it relates to 
impacts on stocks. For instance, two fisheries may have the same 
serious injury and mortality rate per 20 days of fishing, yet one 
fishery may have 20 vessels participating and the other may have 3,000 
vessels participating. These two fisheries would have significantly 
different impacts on a particular stock or stocks of marine mammals.
    Also, reporting requirements under section 118 require that fishers 
report only incidents of serious injury and mortality, and not 
information on fishing effort. This significantly reduces the 
information available to calculate takes rates per 20 days of fishing. 
This information would only be accurate for fisheries in which there 
are observers.
    Option 1 could unnecessarily focus management and resources on 
fisheries (e.g., monitoring programs, take reduction plans, etc.) that 
do not have a significant impact on marine mammal stocks. It may 
subject more vessel owners to registration, fees, and observer 
coverage. Finally, NMFS is concerned that option 1 may be inconsistent 
with the new section 118 because it does not consider the status of or 
impact to the marine mammal stocks.
    Option 2: Base Criteria on Proportions of the Stock Size and PBR. 
Under this option, proportions of the best estimated stock size and the 
PBR for a particular marine mammal stock would be used to classify 
fisheries in the following manner:
    Category I: Annual mortality and serious injury exceeds 0.005 of 
the best population estimate for cetaceans or 0.01 of the best 
population estimate for pinnipeds.
    Category II: Annual mortality and serious injury is greater than 
0.005 of the best population estimate but is greater than 0.01 of the 
PBR for cetaceans or is less than 0.01 of the best population estimate 
but greater than 0.1 of the PBR for pinnipeds.
    Category III: Annual mortality and serious injury is less than 0.1 
of PBR.
    Comments on Option 2. There was no support for this option.
    Option 3: Proportions of PBR. Under Option 3, a proportion of the 
PBR for a particular marine mammal would be used to classify fisheries 
in the following manner:
    Category I: Annual mortality and serious injury of a stock in a 
given fishery is less than or equal to 50 percent of PBR.
    Category II: Annual mortality and serious injury is greater than 1 
percent and less than 50 percent of PBR.
    Category III: Annual mortality and serious injury is less than 1 
percent of PBR.
    Comments on Option 3. Although there was general support for this 
type of approach, working session participants were concerned that 
Option 3 did not account for the collective impacts of all fisheries 
that interact with a marine mammal stock. Working session attendees 
also recognized that Option 3 did not account for marine mammal stocks 
that are subjected to a low level of incidental mortality and injury 
across a number of fisheries.
    Option 4: Proportions of PBR--Two-tiered Approach. This approach is 
a two-tiered scheme that first addresses the total impacts of all 
fisheries on each marine mammal stock and then addresses the impacts of 
individual fisheries on each stock. This approach is based on the 
annual number of serious injuries and mortalities due to commercial 
fishing relative to a stock's PBR.
    Tier 1: If the annual mortality and serious injury across all 
fisheries that interact with a stock is less than or equal to 10 
percent of the PBR of such a stock, then all fisheries interacting with 
this stock (and no other stocks that do not fit this criteria) would be 
placed in Category III. Otherwise, these fisheries are subject to the 
next tier to determine their classification.
    Tier 2--Category I: Annual mortality and serious injury of a stock 
in a given fishery is greater than some percentage of PBR.
    Category II: Annual mortality and serious injury is between some 
percentage and some percentage of PBR.
    Category III: Annual mortality and serious injury is less than or 
equal to some percentage of PBR.
    This approach is modeled after the recommendations from the NMFS 
PBR Workshop held in June 1994 and the working sessions on the draft 
proposed regulations. The most critical classification threshold is the 
one between Category II and Category III fisheries because Category III 
fisheries only have a ``remote likelihood'' of incidental serious 
injury or mortality of a marine mammal and would not be subject to the 
more stringent requirements of Category I or II fisheries. The PBR 
Workshop participants agreed that serious injury and mortality 
incidental to commercial fishing operations would be insignificant to a 
stock if such removals were only a small portion (i.e., 10 percent of 
the PBR) of the stock. Using this rationale, all fisheries which impact 
a stock would be considered in the determination of whether impacts to 
that stock are significant (Tier 1). If the total removals from a stock 
across all fisheries were greater than 10 percent of the PBR for that 
stock, the fishery would then be categorized according to the criteria 
in Tier 2.
    The term ``some percentage'' under Tier 2 is used, because NMFS 
considered a number of different percentage options under Option 4 (see 
EA). The threshold between Category I and II fisheries was set at 50 
percent of PBR in this proposed rule. NMFS believes that this is a 
conservative approach, and in its analysis there were few additional 
fisheries added to Category I as a result of lowering the dividing line 
from exceeding PBR to 50 percent of PBR (see EA).
    Comments on Option 4. Attendees at the Seattle working session 
supported the concept of basing fishery classification on takes 
relative to PBR, and the two-tier system that is presented 

[[Page 31671]]
here as Option 4 resulted from that session. At the Silver Spring 
working session, there was also some support for this approach, but 
others believed that the criteria should remain as they were under 
section 114.
    Assumptions of Option 4. This two-tiered approach assumes that NMFS 
has fairly accurate information on both the abundance of a stock (in 
order to calculate PBR) and the current level of incidental serious 
injury and mortality due to commercial fishing per year. For some 
cases, both the estimated fishing mortality and the PBRs of marine 
mammal stocks incidentally taken in that fishery are known with some 
degree of confidence. In these cases, fishing mortalities and serious 
injuries were calculated using data collected by observers. If observer 
data were not available, fishers' logbooks were used to estimate 
removal levels. However, it is assumed that logbooks provide only a 
minimum indication of total removal levels. In cases where the PBR for 
a stock is unknown, any known or inferred level of removal from that 
stock by a fishery usually warranted placement of that fishery in 
Category II so that better information could be collected.
    For some fisheries, NMFS must use its best estimate of fishing 
mortality and serious injury based on inferences from similar fishing 
techniques, gear used, target species, seasons and areas fished, and 
species and distribution of marine mammals in the area. This method of 
inferring levels of removals was also used under regulations to 
implement section 114. In most of the Category III fisheries for which 
NMFS has no updated information to support a change in classification, 
the Category III designation was maintained.
    Strengths of Option 4. This approach categorizes fisheries based on 
their impacts on stocks, thereby prompting take reduction teams to be 
formed first for those stocks of greatest concern. Option 4 would 
alleviate the burden of the management program for those fisheries that 
do not significantly interact with marine mammal stocks (Category III), 
because Category III vessel owners would not be required to register, 
pay fees, or take aboard an observer. Option 4 would focus management 
resources on those commercial fisheries that have impacts to marine 
mammals that are more than negligible. Furthermore, this approach would 
allow for the classification of fisheries that have only rare 
occurrences of serious injuries and mortalities as Category II, if the 
stock subject to removal has a very low PBR level and could be greatly 
impacted by even a low level of taking.
    Weaknesses of Option 4. This approach does not specifically address 
fisheries that have a high frequency of marine mammal serious injuries 
and mortalities across several stocks. These could be classified as 
either Category I, II, or III depending on the stocks with which they 
interact. This may affect the prioritization of take reduction team 
formation, although, eventually, take reduction teams must be formed 
for marine mammal stocks that have significant incidental interactions 
with Category I or II fisheries.

Criteria for Categorizing Fisheries

    NMFS believes that the 1994 amendments to the MMPA emphasized 
management of the interaction between commercial fisheries and marine 
mammals on a stock-specific basis. For this reason, NMFS proposes to 
use Option 4 (discussed above) and the proposed definitions of 
frequent, occasional, and remote (proposed Sec. 229.2) were used to 
classify commercial fisheries. This requires the previous proposed 
changes to the LOF to be revised and to be reproposed by this notice.

Zero Mortality Rate Goal

    NMFS proposes to consider a fishery as having reached the ZMRG when 
collectively with other fisheries, it is responsible for the annual 
removal of (1) 10 percent or less of any marine mammal stock's PBR, or 
(2) more than 10 percent of any marine mammal stock's PBR, yet the 
fishery by itself is responsible for the annual removal of one percent 
or less of that stock's PBR (proposed Sec. 229.2).
    It is not possible to determine whether a level of mortality to a 
declining stock of marine mammals is insignificant simply by applying a 
mechanistic definition such as the one set forth above. Therefore, 
fisheries that kill or seriously injure declining, depleted, 
threatened, or endangered stocks of marine mammals would have to be 
examined separately to determine whether the incidental take is 
insignificant.
    Another option for defining the ZMRG draws from the 1981 amendments 
to the MMPA that addressed reducing mortality of small cetaceans in the 
yellow-fin tuna fishery in the Eastern Tropical Pacific Ocean (ETP). In 
1981, Congress expressed it was not its intent to shut down the tuna 
fishery via the MMPA and that the ZMRG could be achieved in that 
fishery by requiring the use of the best marine mammal safety 
techniques and equipment that are economically and technologically 
practicable (H.R. Rep. 228, 97th Cong., 1st Sess. 13 (Sept. 16, 1981)). 
If a similar rationale were adopted for other fisheries, the following 
might be an option for defining the ZMRG: ``Zero Mortality Rate Goal 
means the reduction of the annual number of incidental mortalities and 
serious injuries in each fishery to insignificant levels approaching a 
zero mortality and serious injury rate; at a minimum, this requires 
that the rate of incidental mortality and serious injury is at the 
lowest level that is technologically and economically practicable.''
    A problem with such an adopting such an approach when implementing 
section 118 of the MMPA, however, is that, while Congress adopted a 
``technologically and economically practicable'' approach for the ETP 
yellowfin tuna fishery in 1981, it effectively abandoned that approach 
in 1984 when it established an annual statutory quota of 20,500 for 
that fishery. Congress reduced the quota again in 1992 when through the 
International Dolphin Conservation Act; there, it added a new section 
306 to the MMPA in which the quota was reduced to 1000 for 1992, and 
800 from January 1, 1993 to March 1, 1994. It also required that, for 
each year after 1992, dolphin mortality must decrease by a 
``statistically significant amount.'' Under these new requirements, the 
ETP yellowfin tuna fishery was forced to stop fishing in February of 
1994 because it was approaching a take of 114 dolphins, which was 
statistically significantly less than the 115 it took in 1993. These 
statutory limits on dolphin mortality clearly indicate that, even for 
the ETP yellowfin tuna fishery, the 1981 approach using 
``technologically and economically practicable'' methods a questionable 
method of achieving the ZMRG.
    Some commenters proposed a definition where ``zero equals zero'' 
and believed that fisheries should be required to reduce their 
incidental mortality and serious injury of marine mammals to zero. 
There are two main problems with this approach: (1) It does not 
consider a ``rate'' of take as required by the ZMRG, and (2) this 
option could result in severe curtailment or complete cessation of 
fishing operations, even for fisheries that had only a remote 
likelihood of marine mammal incidental take.
    In the proposed rule, the definition of ZMRG is proposed to be 
based on 10 percent of PBR. Comments on the preferred definition and 
the options presented are specifically encouraged. 

[[Page 31672]]


Commercial Fishing Authorization

    As required by the provisions of section 118(c) of the MMPA, under 
the proposed rule, in order for persons to lawfully take a marine 
mammal while engaged in a Category I or II fishery, the owner of a 
vessel or an authorized representative thereof would have to register 
with NMFS for and obtain an Authorization Certificate and decal, 
display the decal on the vessel, possess physical evidence of the 
authorization on the vessel, and report all incidental mortality and 
injury of marine mammals to NMFS. Vessels engaged in a Category I or II 
fishery would be required to carry aboard an observer if requested by 
NMFS. In the case of a nonvessel fishery, the owner of the fishing 
gear, or an authorized representative thereof, would have to register 
with NMFS for and obtain an Authorization Certificate and decal and 
attach the decal to the Authorization Certificate and the Certificate 
or a copy thereof would have to be in the possession of the person in 
charge of the fishing operations.
    Owners of vessels engaged only in Category III fisheries would not 
be required to register with NMFS for or obtain an Authorization 
Certificate or decal to incidentally take marine mammals as a result of 
their fishing operations; however, they would be required to report all 
marine mammals incidentally killed or injured. Owners of vessels in 
Category I or II fisheries would be required to comply with any general 
regulations, conditions of Authorization Certificates issued to the 
vessel owner, and emergency or take reduction plan regulations 
published under the authority of section 118; owners of vessels in 
Category III fisheries would be required to comply with emergency or 
take reduction plan regulations and reporting requirements.
    As specified in section 118(c)(2)(B) of the MMPA, the authorization 
for commercial fisheries applies only to U.S. commercial fishing 
vessels including licensed commercial passenger fishing vessels (e.g., 
charter and party boats) or to those foreign vessels with valid fishing 
permits issued under section 204(b) of the Magnuson Fishery 
Conservation and Management Act (16 U.S.C. 1801 et seq.) (Magnuson 
Act). As specified in section 118(a)(3), authorizations under section 
118 are not applicable to vessels fishing in the yellowfin tuna purse 
seine fishery in the eastern tropical Pacific. Although registration of 
vessels in Category I and II fisheries under the MMPA is necessary to 
lawfully incidentally take a marine mammal, not registering under the 
MMPA would not prevent a fisher from fishing. Fishing is governed by a 
variety of mechanisms such as Federal or state laws and their 
respective implementing regulations (including regulations implementing 
regional fishery management plans).
    The authorization for commercial fisheries does not apply to 
Northwest Treaty Tribal fishers exercising treaty rights.
    Section 118 of the MMPA does not include authority to incidentally 
take southern (California) sea otters (Enhydra lutris nereis). This 
subspecies historically ranged along the west coast of the United 
States, but currently is found only along the central California coast 
and San Nicolas Island, CA. Section 118 of the MMPA does not supersede 
or otherwise affect the provisions of Public Law 99-625, governing the 
translocation of southern sea otters to San Nicolas Island for research 
and recovery purposes. Within special zones established for this 
experimental population, certain restrictions on incidental taking 
under the MMPA do not apply. (See 50 CFR 17.84(d) for a description of 
these special zones and activities that can be lawfully conducted 
within these zones.) Issuance of Authorization Certificates for 
Category I and II Fisheries

Registration Process

    As required by section 118(c) of the MMPA, under the proposed 
regulations, a vessel owner (or authorized representative) would have 
to register to obtain an Authorization Certificate and decal for each 
vessel that will engage in a Category I or II fishery. The initial 
registration would cover 1996. After that, registrations to renew 
certificates would be required each calendar year. Those owners of 
vessels holding valid Exemption Certificates under section 114 would be 
deemed to have registered under section 118 through December 31, 1995.
    Registration forms, outlining the required information, would be 
available from NMFS (proposed Sec. 229.4(c)). However, if the granting 
and administration of authorizations is integrated and coordinated with 
an existing fishery license, registration, or related program operated 
by an entity other than NMFS, registrations forms will be available 
from those program offices. A notice will be published in the Federal 
Register indicating where to register and other means will also be used 
to notify fishers of the change (e.g., MMPA Bulletin, mailings to 
previously registered fishers, etc).
    One registration per vessel would be required and would cover all 
Category I and II fisheries in which the vessel participates during the 
calendar year. The registrant would be requested to send the first page 
of the registration form to one of the NMFS offices listed in proposed 
section Sec. 229.4; the second page should be retained by the 
registrant and would serve as an indication of registration until an 
Authorization Certificate is issued.
    For annual renewals, registration forms, containing the information 
on file with NMFS, would be sent to existing Authorization Certificate 
holders prior to the beginning of the year. Vessel owners would be 
required to make any necessary corrections or updates and sign and 
return the form to NMFS. A signed registration renewal form would have 
to be submitted to NMFS prior to any incidental taking of a marine 
mammal by that vessel owner in a Category I or II fishery.
    The term ``vessel owners'' (proposed Sec. 229.2), in addition to 
owners of commercial fishing vessels, would be defined to include 
owners of fixed or other fishing gear that is used in a ``nonvessel 
fishery.'' A ``nonvessel fishery'' would mean a commercial fishing 
operation that uses fixed or other fishing gear without a vessel, such 
as gear used in set gillnet, trap, beach seine, weir, ranch and pen 
fisheries. Owners of such gear would be subject to the same 
requirements and restrictions as owners of fishing vessels or fish 
processing vessels operating in a commercial fishery.
    A registration fee may be required to accompany each registration 
or request for renewal if NMFS is issuing the Authorization 
Certificates.
    Under the legislation, NMFS is authorized to establish a fee to 
cover the administrative cost of granting Authorization Certificates 
and renewals, however, the amount that would be required has not been 
determined at this time. ``Vessel owners'' in ``nonvessel fisheries'' 
may be required to submit one fee to register all gear owned. The fees 
collected in connection with the authorization system would be 
available to NMFS to cover the administrative costs and will be 
determined annually and published in the LOF.

Issuing Procedures

    After submission of a completed registration form and the required 
fee, an Authorization Certificate and a vessel decal or other physical 
evidence would be issued to the vessel owner for each vessel intending 
to engage in a Category I or II fishery. The initial Certificate and 
decal would be valid for calendar year 1996. After that, Certificate 
renewals and decals would be issued each year after receipt of an 
updated registration, 

[[Page 31673]]
required fee, and statement (yes/no) regarding whether any marine 
mammals were incidentally killed or injured during the previous 
calendar year covering all registered Category I or II fisheries.
    Decals or other physical evidence would be required to be displayed 
as proof of current registration. In those instances where NMFS is 
successful in incorporating the registration process with existing 
licensing systems, fishers will be notified of the accepted ``physical 
evidence'' requirements.
    A replacement decal would be issued, if requested, to replace a 
lost or damaged decal. In nonvessel fisheries, the decal would have to 
be affixed to the Certificate. Annual decals would be issued along with 
the Certificates in subsequent years.
    The Authorization Certificate or a copy thereof would have to be on 
board the vessel while it is operating in a Category I or II fishery, 
or, in the case of a nonvessel fishery, a copy of the Certificate would 
have to be in the possession of the person in charge of the fishing 
operations. A copy of the Certificate would have to be made available 
upon request to any state or Federal government official authorized to 
enforce the provisions of the MMPA or to any designated agent of NMFS.

Suspension or Revocation of Authorization Certificates

    Under the proposed regulations, NMFS could suspend or revoke a 
Certificate or deny a Certificate renewal for any vessel if the 
Certificate holder (1) fails to report as required under proposed 
Sec. 229.6, or (2) fails to take aboard an observer in a Category I or 
II fishery as required under proposed Sec. 229.7, if requested. In 
addition, NMFS could revoke or suspend a Certificate for any vessel 
that fails to comply with other terms and conditions of the 
Authorization Certificate or the regulations governing the incidental 
taking of marine mammals during commercial operations under this 
section. NMFS could suspend or revoke a Certificate or could deny a 
Certificate renewal for any vessel which fails to comply with a take 
reduction plan or emergency regulations under this section. The 
suspension, revocation or denial could occur without notice or 
opportunity for hearing in the case of failure to submit required 
reports. Other actions would be subject to NOAA's civil procedures 
contained in subpart D of 15 CFR part 904. Previous failure to comply 
with the requirements of section 114 of the MMPA would not bar 
authorization under this section for an owner who complies with the 
requirements of this section.

Requirements for Category III Fisheries
    Under section 118(c) of the MMPA and these proposed regulations, 
owners of vessels engaged only in Category III fisheries are not 
required to register with NMFS or to obtain an Authorization 
Certificate to legally incidentally take marine mammals during 
commercial fishing operations. However, they would be required to 
report all incidental mortality and injury and make all reasonable 
efforts to release animals unharmed. Where necessary to address 
immediate and adverse impacts to marine mammal stocks, NMFS could place 
observers aboard Category III vessels if there is reason to believe 
that such vessels may be causing the incidental mortality and serious 
injury to such a stock.

Reporting Requirements

    As required by section 118(e) of the MMPA and the proposed 
regulations, vessel owners or operators engaged in Category I, II, or 
III fisheries would have to report all incidental mortality and injury 
of marine mammals during the course of commercial fishing operations to 
NMFS Headquarters or appropriate NMFS Regional Office. NMFS proposes to 
define an ``injury'' (proposed Sec. 229.2) as a wound or other physical 
harm. Any animal that requires assistance to escape from entanglement 
in fishing gear would also be considered injured and would have to be 
reported.
    Reports would have to be submitted by mail or other means such as 
FAX within 48 hours after the end of each fishing trip during which the 
incidental mortality or injury occurred. The ``end of a fishing trip'' 
(proposed Sec. 229.2) would mean the time of a vessels' return to port 
after a fishing trip. NMFS would provide a standard postage-paid form 
and instructions for recording information for this purpose. If a 
fisher participates in more than one fishery during a single fishing 
trip, a separate report would be required to be submitted for each such 
fishery. Report forms would require information on: The fishery, gear 
type and fish species involved; the marine mammal species (or 
description of the animal(s) if species is not known), number, date, 
and location of marine mammal incidental takes and whether an injury or 
mortality occurred. Failure to report incidental mortality or injury of 
marine mammals during the course of commercial fishing operations would 
result in suspension or revocation of the Authorization Certificate and 
denial of Authorization Certificate renewal requests until the vessel 
owner complies with reporting requirements of proposed Sec. 229.6 of 
this part.

Monitoring Program

    As required by section 118(d) of the MMPA, NMFS would establish a 
program to monitor incidental mortality and serious injury of marine 
mammals during the course of commercial fishing operations. A ``serious 
injury'' (proposed Sec. 229.2) would be defined as any injury of a 
marine mammal during a commercial fishing operation that will likely 
result in mortality of that marine mammal. The purposes of the 
monitoring program as specified in section 118(d)(1) of the MMPA are 
to: (1) Obtain statistically reliable estimates of incidental mortality 
and serious injury of marine mammals; (2) determine the reliability of 
reports of incidental mortality and injury of marine mammals obtained 
from fishers' reports; and (3) identify changes in fishing methods or 
technology that may increase or decrease incidental mortality or 
serious injury of marine mammals. The monitoring program would use 
information from observer programs, fishers' reports, and marine mammal 
stranding reports.

Observer Program

    Section 118(d)(2) authorizes NMFS to place observers aboard 
vessels, as necessary, to monitor incidental mortality and serious 
injury of marine mammals during commercial fishing operations for 
vessels engaged in Category I or II fisheries. Under the proposed 
regulations, the owner of a vessel engaged in a Category I or II 
fishery would be required to take aboard an observer if requested by 
NMFS or a contractor of NMFS, to do so. The extent of observer coverage 
would be based on the ability to obtain statistically reliable 
estimates of incidental mortality and serious injury in each individual 
fishery and could include up to 100 percent observer coverage of a 
fishery. The specific design of the observer program, including how 
long an observer would be placed on a particular vessel, would vary 
among fisheries.
    As required by section 118(d)(4), the highest priority for 
allocating observers among fisheries would be for those commercial 
fisheries that have incidental mortality or serious injury of marine 
mammals from stocks listed as endangered or threatened species under 
the ESA. To the extent practicable, the next highest priority for 
allocation would be for those commercial fisheries that have incidental 
mortality and serious injury of marine mammals from strategic stocks. A 
``strategic stock'' is a 

[[Page 31674]]
marine mammal stock (1) for which the level of human-caused mortality 
is greater than the potential biological removal, or (2) which is 
declining and is likely to be listed under the ESA, or (3) which is 
listed under the ESA, or (4) which is designated as depleted under the 
MMPA (proposed Sec. 229.2). The ``potential biological removal level'' 
(proposed Sec. 229.2) would mean the maximum number of animals, not 
including natural mortalities, that may be removed from a marine mammal 
stock while allowing that stock to reach or maintain its optimal 
sustainable population. To the extent practicable, the third highest 
priority for allocation would be for commercial fisheries that have 
incidental mortality or serious injury of marine mammals from stocks 
for which the level of incidental mortality and serious injury relative 
to the stock size is uncertain.
    As required by section 118(d)(3), when determining the distribution 
of observers among fisheries and vessels within a fishery, NMFS would 
be guided by the following standards: (1) The requirement to obtain 
statistically reliable information; (2) the requirement that the 
assignment of observers be fair and equitable among fisheries and among 
vessels within a fishery; (3) the requirement that no individual person 
or vessel, or group of persons or vessels, be subject to excessive or 
overly burdensome observer coverage; and (4) to the extent practicable, 
the need to minimize costs and avoid duplication.
    Under section 118(d)(6) of the MMPA, NMFS is not required to place 
an observer on a Category I or II vessel if (1) statistically reliable 
information can be obtained from observers on processing vessels to 
which Category I or II harvesting vessels deliver a catch that has not 
been taken on board the harvesting vessel, (2) the facilities for 
housing the observer or for carrying out observer functions are so 
inadequate or unsafe that the health or safety of the observer or the 
safe operation of the vessel would be jeopardized, or (3) an observer 
is not available.
    The first exception addresses the situation in which Category I or 
II vessel catcher/harvester boats do not bring the catch on board, but 
deliver the fish directly to a floating processor on which an observer 
is placed. For example, observers on foreign vessels in over-the-side 
joint ventures may satisfy the observer requirements, and observers 
would not be needed on the catcher/harvester boats.
    With respect to whether a vessel is adequate for taking an observer 
aboard, NMFS would make the necessary determinations on a case-by-case 
basis. Examples of situations in which observers would not be required 
or if a vessel is too small to carry (or house) an observer safely, if 
an observer would displace a crew member, or if fishing gear or the 
vessel could not be operated safely because of the presence of an 
observer.
    The exception for unavailability of observers would include 
situations where NMFS may have inadequate funds to cover a full 
observer program or may not be able to employ or contract for 
sufficient qualified personnel to fully staff an observer program. To 
minimize these situations, NMFS would use observers, to the maximum 
extent possible, placed under other authorities, such as the Magnuson 
Act, to collect marine mammal interaction information, in addition to 
their other duties, to fulfill the observer requirements under the 
MMPA.
    Vessel owners, operators, and crew members would be required to 
cooperate with observers and to provide information, such as vessel 
location, needed to meet the observers' responsibilities. If feasible 
and if required by the observer, marine mammals killed during the 
fishing operation which are readily accessible to crew members would 
have to be brought on board the vessel for biological processing and 
could be retained by NMFS. NMFS recognizes that for many smaller 
vessels, this will not be feasible and, therefore, would not be 
required. As authorized by section 118(d)(2), observers could, among 
other tasks (1) record incidental mortality and serious injury, or 
bycatch of other nontarget species; (2) record numbers of marine 
mammals sighted; and (3) perform other scientific investigations, 
including photographing incidental takes.
    Although the primary purpose of the observer program is to collect 
data on incidental take of marine mammals, observers would not be 
limited to this activity. Regional fishery management councils, states 
or other Federal agencies could request NMFS to collect other 
scientific or biological information needed in their resource 
conservation and management programs, such as fishery resource and sea 
bird data. NMFS would require the observer to collect the requested 
additional information unless NMFS found in writing, and after 
opportunity for public comment, that the collection of the requested 
information would interfere with the collection of information related 
to marine mammals.
    Pursuant to section 118(d)(7) of the MMPA, NMFS could place an 
observer aboard a vessel engaged in a Category III fishery with the 
consent with the vessel owner or pursuant to section 118(g)(1)(C), if 
NMFS believed that the incidental mortality or serious injury of marine 
mammals from such fishery may be contributing to the immediate and 
significant adverse impact of a species or stock listed under the ESA 
and has prescribed emergency regulations under proposed 
Sec. 229.9(a)(3). If an observer was placed on a vessel engaged in a 
Category III fishery, the vessel owner, operator, and crew members 
would have to comply with the requirements under Sec. 229.9(e).
    NMFS, in coordination with Federal and state scientists and 
personnel experienced in fishery observer programs, is designing its 
observer program to obtain statistically reliable information on the 
species and number of marine mammals incidentally killed or seriously 
injured in as many Category I and II fisheries as possible. The level 
of observer coverage and whether an alternative program would be used 
would be determined for each Category I and II fishery. These 
determinations would be based on the size and nature of each fishery 
and on the resources available for these programs. NMFS will try to 
make the best use of available resources by using existing research 
programs, programs operated by the states or other authorities, or 
alternative programs where statistically reliable information can be 
obtained at lower cost.

Alternative Observer Program

    As authorized by section 118(d)(5) of the MMPA, if observers could 
not be placed on Category I or II vessels at the necessary level, NMFS 
could establish an alternative observer program to provide 
statistically reliable information on the species and number of marine 
mammals incidentally killed or seriously injured in the course of 
commercial fishing operations. The alternative observer program could 
include, but would not be limited to, direct observation of fishing 
activities from vessels, airplanes, or points on shore. Provided 
sufficient resources were available, an alternative program could also 
be established in any fishery for which reliable information was not 
otherwise obtainable.

Stranding Information

    The NMFS may use marine mammal stranding data to monitor incidental 
mortality and serious injury of marine mammals from commercial fishing 
operations to supplement the information obtained from the observer 
program and fishers' reports. Intentional Taking of Marine Mammals 

[[Page 31675]]

    Section 118(a)(5) of the MMPA prohibits the intentional lethal take 
of any marine mammal in the course of commercial fishing operations in 
Category I, II, or III fisheries except as proved by section 101(c), 
which authorizes takings, including intentional lethal takings, if 
imminently necessary in self-defense or to save the life of a person in 
immediate danger and such taking is reported to NMFS within 48 hours. 
On February 1, 1995, NMFS published a final rule implementing this 
section of the MMPA (60 FR 6036). That rule, which became effective on 
March 3, 1995, requires that a report be made to the appropriate NMFS 
Regional Office within 48 hours if a marine mammal is killed by a 
fisher or a member of the general public in self-defense or in order to 
save the life of another person. If a report is not submitted, the 
person responsible for the take, whether a fisher or a member of the 
general public, will be subject to the penalties which have been 
authorized by the MMPA for illegal takes. This proposed rule 
incorporates the provisions of that final rule and would supersede it.
    When necessary to deter a marine mammal from damaging gear, catch, 
or private property, or from endangering personal safety, fishers in 
Category I, II, or III fisheries may do so provided they follow the 
guidelines for safely deterring marine mammals found at proposed 50 CFR 
Sec. 216.29(c) and do not use any measures prohibited under proposed 50 
CFR 216.29(d). These sections were proposed on May 5, 1995 (60 FR 
22345) and are subject to change based on the comments received.

Definitions of Incidental Taking and Incidental Mortality

    The proposed definition of incidental, but not intentional, take is 
the nonintentional or accidental taking of a marine mammal that results 
from, but is not the purpose of, carrying out an otherwise lawful 
action. The proposed definition of incidental mortality is the non-
intentional or accidental death of a marine mammal that results from, 
but is not the purpose of, carrying out an otherwise lawful action. The 
phrase ``incidental, but not intentional'' is intended to mean 
accidental taking. The words 'not intentional' should not be read to 
mean that persons who `know' that there is some possibility of taking 
marine mammals incidental to commercial fishing operations or other 
specified activities are precluded from doing so.

Prohibition on Discarding Fishing Gear

    Proposed section 229.3(f) would prohibit the discarding of fishing 
gear at sea. The ingestion of, or entanglement in, discarded fishing 
gear by marine mammals often causes them serious injury or mortality. 
It is not necessary for the conduct of fishing operations to discard 
fishing gear at sea. Gear can be stowed and safely discarded in port. 
Accordingly, it is proposed to prohibit the discard of fishing gear at 
sea, because such discards are not necessary to fishing operations and 
prohibiting such discards would decrease the number of serious injuries 
and mortalities to marine mammals caused by fishing operations 
consistent with the ZMRG.

Publication of List of Fisheries

    Section 118(c) of the MMPA requires NMFS to publish a LOF, along 
with the marine mammals and number of vessels or persons involved in 
each such fishery, for those fisheries that have:
    Category I: A frequent incidental mortality and serious injury of 
marine mammals;
    Category II: An occasional incidental mortality and serious injury 
of marine mammals; or
    Category III: A remote likelihood, or no known incidental mortality 
or serious injury of marine mammals.
    A notice proposing revisions to the last LOF would be published in 
the Federal Register on or about July 1 of each year for the purpose of 
receiving public comment. A final LOF would be published on or about 
October 1 of each year which would become effective January 1 of the 
next calendar year. The proposed and final LOF would be developed 
according to the definitions for Category I, II, and III fisheries 
under Sec. 229.2. Each LOF would list the marine mammals that interact 
with the fisheries, the approximate number of vessels or persons 
actively involved in each fishery, and would set forth the registration 
fee. A revised LOF may be published at any time after notice and 
opportunity for public comment.

Proposed List of Fisheries

    The proposed regulations would establish the following fishery 
classification criteria:
    Tier 1: If the annual mortality and serious injury across all 
fisheries that interact with a stock is less than or equal to 10 
percent of the PBR of such a stock, then all fisheries interacting with 
this stock (and no other stocks that do not fit this criteria) would be 
placed in Category III. Otherwise, these fisheries are subject to the 
next tier to determine their classification.
    Tier 2--Category I: Annual mortality and serious injury of a stock 
in a given fishery is greater than or equal to 50 percent of PBR.
    Category II: Annual mortality and serious injury is greater than 1 
percent and less than 50 percent of PBR.
    Category III: Annual mortality and serious injury is less than or 
equal to 1 percent of PBR.
    These criteria and information on commercial fisheries were used to 
develop the proposed LOF contained in this notice based on the 
following prioritization scheme:
    1. Observer data extrapolated to estimate a total annual kill for 
that fishery was used where available, after which the proposed 
classification criteria were applied for Category I, II and III 
fisheries in order to classify the fisheries. The source of the 
observer data is provided in the description of how the fishery was 
classified.
    2. Logbook data were used if observer data was unavailable. Only 
those animals recorded as ``injured in gear'' and ``killed in gear'' 
were included. Those animals harassed, injured, or killed by deterrence 
were not included in the data used to categorize the fisheries. Logbook 
data were summarized from the F/PR database. An estimated total annual 
kill is not calculated; fisheries are categorized based on the reported 
injuries and mortalities. When logbook data were questionable, the NMFS 
evaluated the reliability of the data.
    3. When neither observer data nor logbook data were available, 
fisher's reports of marine mammal takes were used to classify the 
fisheries.
    4. Evidence of fishery interactions can sometimes be gleaned by 
examination of stranded marine mammals. When the cause of death of a 
particular stranded marine mammal could be attributed to a specific 
fishery, this information was used to classify some fisheries.
    5. If no information was available on which to base the 
classification of a particular fishery, the fishery was classified 
based on analogy with other fisheries occurring in similar locations or 
having similar gear types or methods for which observer or logbook 
information exists. When classifying fisheries, analogies were not made 
to fisheries which were classified based on fisher's reports or 
stranding data.
    6. If available information is deemed by NMFS to be highly 
questionable, the fishery may be categorized based on the best 
information available, which includes but is not limited to historical 
patterns of marine mammal takes and expected magnitude of takes 
resulting from changes in fishery effort. 

[[Page 31676]]


Justification for Categorization of Commercial Fisheries

    The following are justifications for the proposed categorization of 
commercial fisheries into Category I, II, or III based on the proposed 
classification scheme. Justifications are presented for only those 
fisheries proposed to be placed in Category I or II and those fisheries 
in Category III for which observer, logbook, stranding or other 
information exist. Unless otherwise specified, fisheries classified 
into Category I or II have passed the Tier I criteria; thus, most 
justifications for placing fisheries detail only the information used 
to classify the fishery under the Tier 2 criteria. Tables 1 and 2 
presents the proposed LOF.

Commercial Fisheries in the Pacific Ocean

Category I

    California angel shark/halibut and other species large mesh 
(greater than 3.5 in) set gill net fishery. For the purpose of the 1994 
LOF, this fishery was included with the California drift gillnet 
fishery under the general fishery definition ``California set and drift 
gillnet fisheries that use a stretched mesh size of greater than 3.5 
inches''. This fishery was renamed in order to remain consistent with 
the name under which observer data is collected and because the name is 
more descriptive of the fishery.
    This fishery is proposed to be placed in Category I, because 
observer data averaged across the years 1991 to 1993 indicate that the 
annual take of the central Californian stock of harbor porpoise (31 
animals) is 91 percent of the PBR for this stock (34 animals).
    California, Oregon thresher shark/swordfish/blue shark (blue shark 
in Oregon only) drift gill net fishery. This fishery was included with 
the California angel shark/halibut set gillnet fishery in the 1994 LOF 
and was called the ``California set and drift gillnet fisheries that 
use a stretched mesh size of greater than 3.5 inches''. This fishery 
was renamed to be more specific and to include the northward expansion 
of the fishery into Oregon and a possible future expansion into 
Washington. Observer data collected in the fishery both in California 
and in Oregon indicates that the incidental take of marine mammals 
occurs throughout the fishery. In addition, observer data collected in 
the late 1980's during an experimental shark fishery in Oregon and 
Washington using comparable gear also showed incidental takes of marine 
mammals for the fishery at that time (Stick and Hreha, 1989).
    This fishery is proposed to be placed in Category I, because 
observer data provided by the NMFS Southwest Fisheries Science Center 
averaged across the years 1991 to 1993 indicate that the annual take of 
the Pacific sperm whale stock (15 animals) is greater than the PBR for 
this stock (1 animal).

Category II

    Alaska Prince William Sound salmon drift gillnet. Categorization of 
this fishery is based on observer data. The Prince William Sound drift 
gillnet (Eshamy, Coghill and Unawik districts) and Copper River and 
Bering River salmon drift gillnet are combined in this fishery. Because 
total known harbor porpoise mortality and serious injury levels across 
all fisheries exceed 10 percent of the stock's PBR, and the known 
harbor porpoise mortality and serious injury level for this fishery is 
20 animals per year (8.1 percent of PBR), this fishery is proposed to 
be placed in Category II.
    Alaska Peninsula/Aleutians salmon drift gillnet fishery. 
Categorization of this fishery is based on observer data. The South 
Unimak (including False Pass and Unimak Pass) drift gillnet and the 
Alaska Peninsula (other than South Unimak) drift gillnet fisheries are 
combined in this fishery. Although total known Dall's porpoise 
mortality and serious injury levels across all fisheries do not exceed 
10 percent of the stock's PBR with currently available information, low 
levels of observer coverage across all fisheries have been inadequate 
to determine mortality and serious injury levels across all fisheries 
for this stock, and available data suggest that levels of mortality and 
serious injury may exceed 10 percent of this stock's PBR if observer 
information were available. This, combined with the fact that known 
Dall's porpoise mortality and serious injury level of 28/year (1.8 
percent of PBR) suggests that this fishery should be placed in Category 
II.
    Southeast Alaska salmon drift gillnet fishery. Categorization of 
this fishery is based on observer and strandings data. Because total 
known humpback whale and harbor porpoise mortality and serious injury 
levels across all fisheries exceed 10 percent of each stock's PBR, and 
the known harbor porpoise mortality and serious injury level for this 
fishery is 3 animals per year (1.3 percent of PBR) and humpback 
mortality and serious injury level for this fishery is 0.13 animals per 
year (4.6 percent of PBR), this fishery is proposed to be placed in 
Category II.
    Alaska Cook Inlet salmon drift gillnet. Categorization of this 
fishery is based on logbook data. Although total known marine mammal 
mortality and serious injury levels across all fisheries do not exceed 
10 percent of each stock's PBR with currently available information for 
those species known to be taken in this fishery, low levels of observer 
coverage across all fisheries have been inadequate to determine 
mortality and serious injury levels across all fisheries for these 
stocks, and available data suggest that levels of mortality and serious 
injury may exceed 10 percent of each stock's PBR if observer 
information were available. Similarly, low levels of marine mammals 
have been documented for this fishery, and available data suggest that 
levels of marine mammal mortality and serious injury in this fishery 
are expected to be similar to levels of other drift gillnet fisheries 
which interact with similar marine mammals species if observer data 
were available. Therefore, this fishery is proposed to be placed in 
Category II.
    Alaska Yakutat salmon set gillnet fishery. Categorization of this 
fishery is based on logbook data. Although total known harbor porpoise 
mortality and serious injury levels across all fisheries do not exceed 
10 percent of this stock's PBR with currently available information, 
low levels of observer coverage across all fisheries have been 
inadequate to determine mortality and serious injury levels across all 
fisheries for this stock, and available data suggest that levels of 
mortality and serious injury may exceed 10 percent of this stock's PBR 
if observer information were available. This, combined with the fact 
that known harbor seal mortality and serious injury level of 30/year 
(1.5 percent of PBR) suggests that this fishery should be placed in 
Category II.
    Alaska Cook Inlet salmon set gillnet. Categorization of this 
fishery is based on logbook data. Although total known marine mammal 
mortality and serious injury levels across all fisheries do not exceed 
10 percent of each stock's PBR with currently available information for 
those species known to be taken in this fishery, low levels of observer 
coverage across all fisheries has not been at a level high enough to 
accurately determine mortality and serious injury levels across all 
fisheries for these stocks, and available data suggest that levels of 
mortality and serious injury may exceed 10 percent of each stock's PBR 
if observer information were available, especially for harbor porpoise. 
Similarly, low levels of marine mammals have been documented for this 
fishery, and available data suggest that levels of marine mammal 
mortality and serious injury in this fishery would be expected to be 
similar to levels of 

[[Page 31677]]
other set gillnet fisheries which interact with similar marine mammals 
species if observer data were available. Therefore, this fishery is 
proposed to be placed in Category II.
    Alaska Kodiak salmon set gillnet. Categorization of this fishery is 
based on logbook data. Because total known harbor porpoise mortality 
and serious injury levels across all fisheries exceed 10 percent of 
this stock's PBR, and the known harbor porpoise mortality and serious 
injury level for this fishery is 4 animals per year (1.6 percent of 
PBR), this fishery is proposed to be placed in Category II.
    Alaska Peninsula/Aleutians salmon set gillnet (includes Atka and 
Amlia Islands). Categorization of this fishery is based on logbook 
data. Although total known marine mammal mortality and serious injury 
levels across all fisheries do not exceed 10 percent of each stock's 
PBR with currently available information for those species known to be 
taken in this fishery, low levels of observer coverage across all 
fisheries have been inadequate to determine mortality and serious 
injury levels across all fisheries for these stocks, and available data 
suggest that levels of mortality and serious injury may exceed 10 
percent of each stock's PBR if observer information were available, 
especially for harbor porpoise. Similarly, though low levels of marine 
mammal mortalities and serious injuries have been documented for this 
fishery, available data suggest that levels of mortality and serious 
injury in this fishery would be expected to be similar to levels of 
other set gillnet fisheries which interact with similar marine mammals 
species if observer data were available. Therefore, this fishery is 
proposed to be placed in Category II.
    Alaska Bristol Bay salmon drift gillnet. Categorization of this 
fishery is based on logbook data. Although total known marine mammal 
mortality and serious injury levels across all fisheries do not exceed 
10 percent of each stock's PBR with currently available information for 
those species known to be taken in this fishery, low levels of observer 
coverage across all fisheries have been inadequate to determine 
mortality and serious injury levels across all fisheries for these 
stocks, and available data suggest that levels of mortality and serious 
injury may exceed 10 percent of each stock's PBR if observer 
information were available, especially for harbor porpoise, harbor 
seals and Steller sea lions. Similarly, though low levels of marine 
mammal mortalities and serious injuries have been documented for this 
fishery, available data suggest that levels of mortality and serious 
injury in this fishery would be expected to be similar to levels of 
other set gillnet fisheries which interact with similar marine mammals 
species if observer data were available. Therefore, this fishery is 
proposed to be placed in Category II.
    Alaska Bristol Bay salmon set gillnet. Categorization of this 
fishery is based on information from logbooks. This fishery is proposed 
to be placed in Category II based on an occasional take of marine 
mammals (0.5 Bristol Bay stock of beluga whales per year). Because the 
take relative to PBR is 2 percent, which is greater than 1 percent and 
less than 50 percent, this fishery is proposed to be placed in Category 
II.
    Alaska Metlakatla/Annette Island salmon drift gillnet. This fishery 
is separated from the Southeast drift gillnet fishery only for purposes 
of registration. It is a tribal fishery and is thus exempt from the 
registration fee. For categorization purposes, it is considered the 
same as the Southeast drift gillnet fishery and is thus proposed to be 
placed in Category II.
    Washington Puget Sound Region salmon drift gillnet fishery 
(includes inland waters south of U.S.-Canada border and eastward of the 
Bonilla-Tatoosh line--Treaty Indian fishing is excluded). The name of 
this fishery has been modified from the name in the 1994 LOF in order 
to exclude set gillnet gear and commercial steelhead fishing since 
these fisheries are conducted only by treaty Indian fishers. Also, the 
name change clarifies that the regulations governing incidental take of 
marine mammals in fisheries do not apply to tribal members exercising 
treaty Indian fishing rights.
    Categorization of this fishery is based on information from 
observer programs and logbooks. This fishery experiences an occasional 
take of marine mammals (50 harbor seals from the Washington inland 
waters stock were reported in logbooks each year). Because the take 
relative to PBR is 6 percent, which is greater than 1 percent and less 
than 50 percent, this fishery is proposed to be placed in Category II. 
The observer programs conducted in 1993 and 1994 documented a few 
incidental takes of harbor seals, harbor porpoise and Dall's porpoise; 
however, the extrapolated estimates of take for the non-Indian fishery 
are not yet available.
    California anchovy, mackerel, tuna purse seine. Categorization of 
this fishery is based on information from logbooks. This fishery 
experiences an occasional take of marine mammals (0.33 bottlenose 
dolphins per year). Because the take relative to PBR is 2 percent, 
which is greater than 1 percent and less than 50 percent, this fishery 
is proposed to be placed in Category II.
    Alaska Southeast salmon purse seine. This fishery was included 
under the general title ``Alaska salmon/herring beach and purse seine'' 
in the 1994 LOF. Categorization of this fishery is based on Category 
III reports. Because total known humpback whale mortality and serious 
injury levels across all fisheries exceed 10 percent of this stock's 
PBR, and the known humpback whale mortality and serious injury level 
for this fishery is 0.4 animals per year (14.3 percent of PBR), this 
fishery is proposed to be placed in Category II.
    Alaska Bering Sea and Aleutian Islands groundfish trawl. 
Categorization of this fishery is based on observer data. Because total 
known killer whale mortality and serious injury levels across all 
fisheries exceed 10 percent of this stock's PBR, and the known killer 
whale mortality and serious injury level for this fishery is 1 animal 
(0.8 animals) per year (8 percent of PBR), this fishery is proposed to 
be placed in Category II.
    Alaska pair trawl--new fishery. Because this is a new fishery to 
the region, no information is available to make a determination on 
expected levels of marine mammal mortalities and serious injuries in 
this fishery. Analogy cannot be drawn with the Atlantic tuna swordfish 
pair trawl, as target species and marine mammal species it might 
interact with are too dissimilar. However, because this is a new 
fishery for which no information is available, this fishery is proposed 
to be placed in Category II.
    Oregon swordfish/blue shark surface longline fishery--new fishery. 
Categorization of this fishery is based on analogy with observed 
pelagic longline fisheries in the Atlantic Ocean. Based on observer 
data, the Atlantic Ocean pelagic longline fishery for swordfish and 
tuna have at least an occasional incidental serious injury and 
mortality of marine mammals. Accordingly, this fishery is proposed to 
be placed in Category II.
    Alaska southern Bering Sea, Aleutian Islands, and Western Gulf of 
Alaska sablefish longline/set line (federally regulated waters). The 
name of this fishery has been modified from the 1994 LOF name to 
specify that this fishery occurs in Federal waters. Categorization of 
this fishery is based on observer data. Because total known killer 
whale mortality and serious injury levels across all fisheries exceed 
10 percent of this stock's PBR, and the known killer whale mortality 
and serious injury level for this fishery is 0.25 animals per year (2.5 
percent of PBR), this fishery is proposed to remain in Category II. 

[[Page 31678]]


Category III

    Alaska Kuskokwim, Yukon, Norton Sound, Kotzebue salmon set/drift 
gillnet. The name of this fishery has been changed from the 1994 LOF 
designation ``Alaska Kuskokwim/Yukon/Norton Sound/Kotzebue salmon 
gillnets'' to specify that both set and drift gillnets are used in this 
fishery. Although this fishery is expected to have occasional 
interactions with marine mammals, interactions usually result in 
directed takes for subsistence purposes. Therefore, this fishery is 
proposed to remain in Category III.
    Alaska state waters sablefish longline/set line. This fishery is 
classified based on logbook data from the Alaska Prince William Sound 
longline/set line fishery. The fishery description has been expanded 
from the 1994 LOF to include all sablefish longline/set line fisheries 
in Alaska state waters. There were no records of incidental takes in 
logbook reports from this fishery. This fishery is proposed to be 
reclassified into Category III from Category II based on the 
prohibition of intentional lethal takes.
    Alaska Prince William Sound set gill net. Categorization of this 
fishery is based on observer data. Because marine mammal mortality and 
serious injury levels approaching 1 percent of any stocks' PBR are not 
expected, this fishery is proposed to be reclassified from Category II 
to Category III.
    Washington Willapa Bay salmon drift gillnet. This fishery is 
classified based on observer data extrapolated to estimate the total 
annual kill. There were no incidental serious injuries or mortalities 
in the Willapa Bay fishery in 1991 or 1992; thus, the fishery is 
proposed to remain in Category III.
    Washington Grays Harbor (includes rivers, estuaries, etc.) drift 
gillnet. This fishery is classified based on observer data extrapolated 
to estimate the total annual kill. There is a low level of incidental 
mortality and serious injury of harbor seals in this fishery (under 1 
percent of PBR). This fishery is proposed to be placed in Category III.
    Washington, Oregon lower Columbia River (includes tributaries) 
drift gillnet. Categorization of this fishery is based on data from 
observer programs and current and anticipated future low fishing effort 
in the winter fishing season. During 3 years of observations in this 
fishery with observer coverage averaging from 3.0 percent to 9.5 
percent each year, all but one of the observed harbor seal mortalities 
were documented in the winter season. The extrapolated annual mortality 
of harbor seals in this fishery from 1991 to 1993 was 233 seals in 1991 
(all during the winter season), 192 seals in 1992 (180 in the winter 
season and 12 in the fall), and 11 seals in 1993 (all during the winter 
season). Although the estimated annual takes of harbor seals in 1991 
and 1992 could justify placing this fishery in Category II, reduced 
fishing seasons in recent years and reduced fishing effort (due to 
restrictions on the fishery to minimize impacts on ESA listed Snake 
River chinook salmon) are unlikely to result in the levels of harbor 
seal mortality observed in 1991 and 1992. The winter season of 1993, 
when an estimated total of only 11 harbor seals were taken, was 
restricted due to ESA considerations and resulted in chinook landings 
of 446 fish in 1993 in contrast with landings of 2,692 fish in 1991 and 
1,537 landings in 1992. The winter season was closed in 1994. 
Therefore, this fishery is proposed to be placed in Category III.
    Alaska miscellaneous finfish set gillnet. This fishery description 
has been changed from the definition ``Alaska gillnet (except salmon, 
herring, and sunken gill nets for groundfish)'' used under the 1994 LOF 
to correlate with the State of Alaska name for this fishery. This 
fishery is categorized based on logbook data. This fishery is proposed 
to be moved from Category II to Category III based on an infrequent 
take of marine mammals (under two unidentified pinnipeds and 
unidentified species are taken per year).
    Alaska salmon purse seine. This fishery used to be called the 
``Alaska salmon/herring beach and purse seine'' fishery and the 
``Alaska South Unimak (False Pass and Unimak Pass) salmon purse seine'' 
fishery under the 1994 LOF. This proposed fishery description includes 
all salmon purse seine fisheries in Alaska except for the Alaska 
Southeast salmon purse seine fishery. Because mortality and serious 
injuries of marine mammals are not expected for this fishery, it is 
proposed to be placed in Category III.
    California/Oregon/Washington salmon troll. The name of this fishery 
has been changed from that used in the 1994 LOF, because it is managed 
as one fishery and the intentional lethal take prohibition will reduce 
the level of take to very low levels. The previous division of the 
fishery into the ``Washington, Oregon north of 45 deg.46' (Cape Falcon) 
salmon troll'' and the ``California, Oregon south of 45 deg.46' (Cape 
Falcon) salmon troll'' was based on differences in intentional lethal 
take rates between the northern and southern portions of the fishery. 
In this fishery, lethal deterrence, which is now prohibited, was the 
predominant source of mortality to marine mammals. As lethal deterrence 
is illegal and expected to no longer be a source of mortality for 
marine mammals, it is proposed to reclassify this fishery from Category 
II to Category III.
    Alaska salmon troll. Categorization of this fishery is based on 
logbook data from 1990. Known Steller sea lion mortalities and serious 
injuries for this fishery do not exceed 1 percent of the stock's PBR 
and current information does not indicate that this level is likely to 
exceed 1 percent. Thus, this fishery is proposed to be placed in 
Category III.
    California herring purse seine. This fishery is categorized based 
on logbook data. This fishery is proposed to be placed in Category III 
due to an infrequent take of marine mammals (all marine mammal takes 
are at a level less than 1 percent of PBR).
    California sardine purse seine. This fishery is categorized based 
on logbook data. This fishery is proposed to be placed in Category III 
due to an infrequent take of marine mammals (no marine mammal takes 
have been recorded in logbooks).
    California squid purse seine. This fishery is categorized based on 
logbook data. This fishery is proposed to be placed in Category III due 
to an infrequent take of marine mammals (California sea lion takes are 
at a level less than 1 percent of PBR).
    Alaska Metlakatla fish trap. No marine mammal mortalities or 
serious injuries have been recorded for this fishery. Therefore, this 
fishery is proposed to be placed in Category III. California squid dip 
net. This fishery is categorized based on logbook data. This fishery is 
proposed to be placed in Category III due to an infrequent take of 
marine mammals (no marine mammal takes have been recorded in logbooks).
    Washington, Oregon salmon net pens. This fishery is categorized 
based on logbook data. This fishery is proposed to be placed in 
Category III due to an infrequent take of marine mammals (California 
sea lion takes are at a level less than 1 percent of the PBR).
    Oregon salmon ranch. This fishery is categorized based on logbook 
data. This fishery is proposed to be placed in Category III due to an 
infrequent take of marine mammals (no marine mammal takes have been 
recorded in logbooks).
    Miscellaneous finfish/groundfish longline/set line. This fishery is 
renamed from the 1994 LOF designation ``Alaska groundfish long line/set 
line (except sablefish in the Bering Sea-Aleutian Islands/Gulf of 
Alaska)'' to correspond with the fishery name as specified in the State 
of Alaska records and to include both miscellaneous finfish and 
groundfish (rockfish). This 

[[Page 31679]]
fishery is classified based on observer data. This fishery is proposed 
to remain in Category III due to an infrequent take of marine mammals 
(all incidental takes are at a level less than 1 percent of the PBR).
    Hawaii swordfish, tuna, billfish, mahi mahi, wahoo, oceanic sharks 
longline/set line. Categorization of this fishery is based on observer 
data. Because there have been no records of incidental serious injury 
and mortality of marine mammals, this fishery is proposed to remain in 
Category III.
    Alaska Gulf of Alaska groundfish trawl. This fishery is classified 
based on extrapolations from observer data. This fishery is proposed to 
remain in Category III due to an infrequent take of marine mammals (all 
incidental takes are at a level less than 1 percent of the PBR).
    Alaska roe herring and food/bait herring gillnet. The name of this 
fishery has been modified from ``Alaska herring gill net'' in the 1994 
LOF to include two different fisheries on herring. Alaska roe herring 
and food/bait herring purse seine. This fishery is renamed from the 
1994 LOF designation of ``Alaska salmon/herring beach or purse seine'' 
to separate out the two target species and gear types.
    Alaska roe herring and food/bait herring beach seine. This fishery 
is renamed from the 1994 LOF designation of ``Alaska salmon/herring 
beach or purse seine'' to separate out the two target species and gear 
types.
    Washington, Oregon, California albacore, groundfish, bottom fish, 
California halibut nonsalmonid troll fisheries. This fishery is renamed 
from the 1994 LOF designation of ``Alaska North Pacific halibut, Alaska 
bottom fish, Washington, Oregon, California albacore, groundfish, 
bottom fish, California halibut nonsalmonid troll fisheries'' to 
separate the Alaska fisheries from the fisheries of other states.
    Alaska halibut longline/set line (state and Federal waters). This 
fishery is renamed from the 1994 LOF designation of ``Alaska, 
Washington, Oregon North Pacific halibut longline/set line'' to 
separate the Alaska fisheries from the fisheries of other states. 
Washington, Oregon North Pacific halibut longline/set line. This 
fishery is renamed from the 1994 LOF designation of ``Alaska, 
Washington, Oregon North Pacific halibut longline/set line'' to 
separate the Alaska fisheries from the fisheries of other states. 
Alaska miscellaneous finfish purse seine. This fishery is renamed from 
the 1994 LOF designation of ``Alaska other finfish beach or purse 
seine'' to separate the beach and purse seine fisheries.
    Alaska miscellaneous finfish beach seine. This fishery is renamed 
from the 1994 LOF designation of ``Alaska other finfish beach or purse 
seine'' to separate the beach and purse seine fisheries.
    Washington, Oregon, California shrimp trawl. This fishery is 
renamed from the 1994 LOF designation of ``Alaska, Washington, Oregon 
shrimp trawl'' to separate the Alaska fisheries from the fisheries of 
other states.
    Alaska shrimp otter trawl and beam trawl (statewide; includes Cook 
Inlet). This fishery is renamed from the 1994 LOF designation of 
``Alaska, Washington, Oregon shrimp trawl'' to separate the Alaska 
fisheries from the fisheries of other states.
    Alaska miscellaneous finfish otter and beam trawl--new fishery. 
This is proposed to be a new fishery to the LOF.
    Alaska crustacean/octopus/squid pot. This fishery is renamed from 
the 1994 LOF designation of ``Alaska shellfish pot'' to more accurately 
describe this fishery. This fishery includes the crab pot fisheries, 
the shrimp pot fisheries, and the octopus/squid pot fisheries.
    Oregon developmental fishery bottom longline/set line--new fishery. 
This fishery is classified based on analogy to other bottom longline/
setline fisheries such as the Alaska sablefish longline fishery. This 
fishery is considered separate from the Oregon developmental longline 
fishery for shark/swordfish, which is classified into Category II based 
on analogy with surface longline fisheries for similar species in the 
Atlantic Ocean. Oregon developmental fishery round haul (purse seine 
and lampara) beach seine and throw net. This fishery is proposed to be 
classified in Category III based on analogy with similar fisheries in 
the Pacific Ocean. This fishery may target any or all of the following: 
Pacific sardine or saury, whitebait, eulachon, night smelt, longfin 
smelt, surf smelt, sandfish, pomfret, and slender sole.
    Oregon developmental fishery trawl--new fishery. This fishery is 
proposed to be classified in Category III based on analogy with similar 
fisheries in the Pacific Ocean. This fishery may target any or all of 
the following: Pacific sardine or saury, whitebait, eulachon, night 
smelt, longfin smelt, surf smelt, sandfish, pomfret, and slender sole.
    Oregon developmental fishery pots, ring nets, and traps--new 
fishery. This fishery is proposed to be classified in Category III 
based on analogy with similar fisheries in the Pacific Ocean. This 
fishery may target any or all of the following: Pacific sardine or 
saury, whitebait, eulachon, night smelt, longfin smelt, surf smelt, 
sandfish, pomfret, and slender sole.
    Oregon developmental fishery handline and jig--new fishery. This 
fishery is proposed to be classified in Category III based on analogy 
with similar fisheries in the Pacific Ocean. This fishery may target 
any or all of the following: Pacific sardine or saury, whitebait, 
eulachon, night smelt, longfin smelt, surf smelt, sandfish, pomfret, 
and slender sole.
    Oregon developmental fishery dive, hand, mechanical collection--new 
fishery. This fishery is proposed to be classified in Category III 
based on analogy with similar fisheries in the Pacific Ocean. This 
fishery may target any or all of the following: Pacific sardine or 
saury, whitebait, eulachon, night smelt, longfin smelt, surf smelt, 
sandfish, pomfret, and slender sole.

New Pacific Fisheries

    The following fisheries are new Pacific fisheries proposed to be 
placed in Category III, because they are expected to have a remote 
likelihood of incidental serious injury or mortality of marine mammals:

California bait pen
California finfish and shellfish live trap/hook-and-line
Alaska spawn-on-kelp empoundment
California salmon enhancement rearing pen
Oregon shrimp trawl
Alaska octopus/squid purse seine
Alaska octopus/squid handline
Alaska octopus/squid longline
Alaska octopus/squid other gear

Fisheries Removed From the LOF

    The following fisheries have been removed from the proposed LOF:
    Northern Washington coastal (area 4 and 4A) salmon set gillnet. 
This fishery has been removed from the proposed LOF, because it is a 
fishery conducted by a Northwest Treaty Tribe. The provisions of 50 CFR 
part 229, including the LOF, do not apply to Northwest treaty Indian 
tribal members exercising treaty fishing rights.
    Washington coastal river set gillnet. This fishery has been removed 
from the proposed LOF, because it is a fishery conducted by a Northwest 
Treaty Tribe. The provisions of part 229, including the LOF, do not 
apply to Northwest treaty Indian tribal members exercising treaty 
fishing rights.
    Washington tribal ranch. This fishery has been removed from the 
proposed LOF, because it is a fishery conducted by a Northwest Treaty 
Tribe. The provisions of part 229, including the LOF, do not apply to 
Northwest treaty Indian tribal members exercising treaty fishing 
rights.

[[Page 31680]]

    Washington Puget Sound region and inland waters south of the U.S.-
Canada border, including the Strait of Juan de Fuca, Hood Canal and 
estuaries and lower river areas (subject to tidal action) set and drift 
gillnet. The name of this fishery has been modified from the name in 
the 1994 LOF in order to exclude set gillnet gear and commercial 
steelhead fishing since these fisheries are conducted only by treaty 
Indian fishers. The provisions of part 229, including the LOF, do not 
apply to Northwest treaty Indian tribal members exercising treaty 
fishing rights.
    California Klamath River gill net. This fishery is proposed for 
removal from the LOF, because no commercial fishing has been conducted 
in recent years.
    Washington, Oregon Upper Columbia River Basin (above Bonneville 
Dam) salmon and other finfish gillnet. This fishery is proposed to be 
removed from the LOF, because no marine mammals are expected to be 
encountered.
    Other fisheries. There are many fisheries in Category III that were 
not mentioned above. Because no additional information is available 
that warrants reclassification for these fisheries, they are proposed 
to remain in Category III. Commercial Fisheries in the Atlantic Ocean 
and the Gulf of Mexico

Category I

    Atlantic Ocean, Caribbean, Gulf of Mexico swordfish, tuna, shark 
pair trawl. This fishery was classified based on observer data. This 
fishery is proposed to be placed in Category I, because the annual 
estimated take of common dolphins (an average of 1992 and 1993 data was 
used) is equal to the PBR for this stock (PBR = 33). In addition, the 
annual estimated take of the offshore stock of bottlenose dolphin (79 
animals) is 95 percent of PBR (83).
    Atlantic Ocean, Caribbean, Gulf of Mexico swordfish, tuna, shark 
drift gill net. This fishery was classified based on observer data. 
This fishery was placed in Category I, because the annual estimated 
takes of common dolphins (424 animals), pilot whales (61 animals), 
spotted dolphins (23 animals), right whales (1 animal) and sperm whales 
(1 animal) exceed the PBRs for these stocks.
    New England multispecies sink gill net. This fishery is directed 
primarily towards species covered by the Multispecies Fishery 
Management Plan and spiny dogfish. It was classified based on observer 
data. This fishery is proposed to remain in Category I, because the 
annual estimated take of harbor porpoise (an average of 1,300 animals 
for 1992 and 1993; average of 1,875 animals for 1990-93) exceeds the 
PBR for this stock (403 animals).
    Gulf of Maine small pelagics. This fishery has been directed 
towards small pelagics including mackerel and herring, primarily for 
bait. Although there has been little or no effort in this fishery in 
recent years, this fishery is proposed to be retained in Category I, 
because there is no information currently available to place this 
fishery in a different category.
    Atlantic Ocean, Caribbean, Gulf of Mexico tuna, shark, swordfish 
longline. This fishery was classified based on observer data. In 1994, 
this fishery was classified in Category II based on the classification 
system in section 114. Based on the proposed fishery classification 
criteria, this fishery is proposed to be placed in Category I, because 
the annual estimated take of pilot whales (26 animals) is at least 93 
percent of the PBR (between 4 and 28 animals), an amount greater than 
the lower threshold for classification as a Category I fishery, this 
fishery is proposed to be placed in Category I.
    Category II 
    U.S. Mid-Atlantic coastal gillnet. This fishery was categorized 
based on stranding information curated by the NMFS Northeast and 
Southeast Regions. The NMFS Northeast Fisheries Science Center has been 
focusing observer effort on this fishery from 1993 to the present but 
has not recorded any interactions. Classification of this fishery is 
based on the necropsy results of the harbor porpoise stranded in the 
mid-Atlantic in 1993-94. Of the 68 animals examined, 41 (59 percent) 
were in good enough condition to be evaluated as to whether or not they 
had been involved in a human interaction. Twenty-one of the 41 (51 
percent) exhibited no signs of human interaction, and 19 (46 percent) 
were evaluated as having been involved in human interaction, based in 
each case on the presence of net marks. Therefore, approximately half 
of the stranded harbor porpoise in that area showed signs of having 
been involved in human interaction believed to be some kind of net 
gear. The average annual take of harbor porpoise in this fishery is 
then calculated at a minimum of ten animals, which is 2.5 percent of 
PBR. Because the annual take is between 1 percent and 50 percent of the 
PBR, this fishery is proposed to be placed in Category II.
    U.S. South Atlantic shark gillnet fishery. Categorization of this 
fishery is based on a Category III report from a limited observer 
program. In 1992, one bottlenose dolphin was captured in this fishery. 
No takes were observed in 1993. This fishery is proposed to be placed 
in Category II, because the annual take of the Western North Atlantic 
coastal bottlenose dolphin averaged over 1992 and 1993 is between 1 
percent and 50 percent of the PBR (25 animals).
    Atlantic mid-water trawl fishery. This fishery is directed towards 
species included in the Atlantic Mackerel, Squid and Butterfish Fishery 
Management Plan and other species. This fishery is proposed to be 
renamed and would include the 1994 LOF descriptions ``Mid-Atlantic 
squid trawl'' and ``Mid-Atlantic mackerel trawl''. The fishery is 
renamed, because the gear type and probability for interactions is 
similar for these mid-water trawl fisheries.
    Categorization of this fishery is based on logbook data. Observer 
data exist for this fishery but are not currently available. In 1994, 
this fishery was classified in Category III based on the section 114 
classification system. Based on the proposed fishery classification 
criteria, this fishery is proposed to be placed in Category II, because 
the annual take of pilot whales is between 1 percent and 50 percent of 
the PBR.
    North Carolina roe mullet stop net. Categorization of this fishery 
is based on stranding information and visual observations. This is a 
new fishery proposed to be added to the LOF; stop nets for other target 
species and in other locations are included under Category III. This 
fishery is proposed to be placed in Category II, because the take of 
bottlenose dolphins (3 animals per year since 1990) is between 1 
percent and 50 percent of the PBR for this stock (25 animals).
    North Carolina haul seine fishery--new fishery. This fishery has 
the potential to take harbor porpoise and U.S. western North Atlantic 
coastal bottlenose dolphins. Because it is a new fishery to the LOF, 
and because of the high probability of takes of the above two stocks, 
this fishery is proposed to be classified in Category II.
    Gulf of Maine, U.S. mid-Atlantic menhaden purse seine. This fishery 
is categorized based on Category III reports. This fishery is proposed 
to be placed in Category II due to mortality and serious injury of 
western North Atlantic coastal bottlenose dolphins (1.75 animals per 
year) that is 6 percent of the PBR for that stock. Because western 
North Atlantic coastal bottlenose dolphins do not occur in the Gulf of 
Maine, it may be appropriate to separate this fishery into northern and 
southern components.

Category III

    North Atlantic bottom trawl. This fishery targets species included 
in, but 

[[Page 31681]]
not limited to, all species described in the Multispecies, Summer 
Flounder, and Scup and Sea Bass Fishery Management Plans. This fishery 
is renamed from the 1994 LOF designation ``Gulf of Maine, Mid-Atlantic 
groundfish trawl'' to include a specific list of species targeted. This 
fishery was classified based on observer data.
    Six takes of marine mammals incidental to this fishery have been 
observed from 1989 to 1992. Three of the takes were marine mammals 
known or suspected to have been dead prior to being caught in the 
bottom trawl gear. Two takes of striped dolphin were observed in 
December 1991 along the continental shelf edge off Rhode Island in 50 
fathoms of water. Extrapolation of these takes to the entire groundfish 
bottom trawl fishery generate an estimated mortality level of 45 
animals which is 62 percent of this species' PBR. However, several 
complicating factors exist:
     The observed coverage in the Category III groundfish 
bottom trawl fishery is small (under 1 percent) and was designed to 
monitor fishery management related issues. Therefore, the coefficient 
of variation of the mortality estimate is very high and is derived from 
nonrandom observer effort.
     The known distribution of the striped dolphin is along the 
shelf edge from Georges Bank to Cape Hatteras and extends further 
south.
     Since the species only exists in a small portion of the 
area fished by North Atlantic Bottom Trawl gear, extrapolation of the 
observed mortality to the entire fishery produces a substantial 
overestimate of the total mortality.
     Fishing effort in this fishery will be reduced by 50 
percent in 5 years under Amendment nos. 5 and 7 to the Fishery 
Management Plan for the Northeast Multispecies Fishery, which may be 
implemented as early as next year, may reduce effort by 80 percent in 
the first year of implementation.
    The mortality estimates derived from two takes of striped dolphin 
over 4 years of less than 10 percent observer effort are statistically 
weak and, due to the marginal overlap of the fishery with this species 
distribution, likely to be an overestimate. The fishery is facing 
severe cutbacks in effort under ongoing and proposed Magnuson Act 
actions, further reducing the likelihood of interactions. Therefore, 
the fishery is proposed to remain in Category III.
    U.S. Mid-Atlantic, U.S. South Atlantic, Gulf of Mexico shrimp 
trawl. Categorization of this fishery is based on observer data. There 
has been one observed serious injury or mortality in this fishery from 
1979 to 1993. Because this is a low level of mortality, this fishery is 
proposed to be placed in Category III.
    Finfish aquaculture. The name of this fishery is proposed to be 
changed from the 1994 LOF designation ``Gulf of Maine Atlantic salmon'' 
to broaden the definition to include other regions and species. 
Classification of this fishery is based on logbook data and the 
proposed reclassification due to the prohibition of intentional lethal 
takes. Incidental takes of harbor seals are less than 1 percent of the 
PBR. Thus, this fishery is proposed to be placed in Category III.
    Shellfish aquaculture. This is a new fishery that is proposed to be 
added to the LOF. This fishery is classified by analogy to other 
aquaculture fisheries that have a remote likelihood of serious injury 
and mortality of marine mammals.
    Gulf of Mexico inshore gillnet (black drum, sheepshead). This is a 
new fishery proposed to be added to the LOF. This fishery is classified 
by analogy to other inshore gillnet fisheries, specifically the inshore 
fisheries that occur in the U.S. mid-Atlantic.
    U.S. mid-Atlantic hand seine. This is a new fishery proposed to be 
added to the LOF. This fishery is placed in Category III by analogy 
with other hand seine fisheries.
    Offshore monkfish bottom gillnet. This is a new fishery that is 
proposed to be added to the LOF. This fishery involves a small number 
(under 50) of vessels operating along the shelf edge off Rhode Island. 
Because this fishery uses gear that is set very deep and a remote 
likelihood of serious injury and mortality of marine mammals is 
expected, it is proposed to be placed in Category III.
    Georgia, South Carolina, Maryland whelk trawl. This fishery is 
renamed from the 1994 LOF designation ``Georgia, South Carolina whelk 
trawl'' to include the extended range of the fishery.
    U.S. mid-Atlantic offshore surfclam and quahog dredge. This fishery 
is renamed from the 1994 LOF designation ``Mid-Atlantic offshore clam'' 
to include the dredge fishery for quahogs.
    U.S. mid-Atlantic/Gulf of Mexico oyster. This fishery is renamed 
from the 1994 LOF designation ``Mid-Atlantic oyster'' to include the 
Gulf of Mexico oyster fishery.
    U.S. mid-Atlantic mixed species stop/seine/weir (except the North 
Carolina roe mullet stop net). This fishery includes all fixed or 
staked net fisheries from Nantucket Sound to the Chesapeake Bay. One 
bottlenose dolphin was found entangled in a pound net lead during the 
five years of data collection under the Exemption Program. This 
occurred in a Chesapeake Bay fishery for which bycatch survey 
information has been available throughout the 5-year Exemption Program. 
Bycatch surveys are also carried out in other regions where this gear 
is used. Therefore, we believe that the remote possibility of marine 
mammal mortality and serious injury occurring in these fisheries is 
verifiable, and the fishery remain in Category III.
    Gulf of Mexico menhaden purse seine. This fishery is proposed to be 
defined as separate from the U.S. South Atlantic menhaden purse seine 
fishery. This fishery is proposed to be placed in Category III based on 
an expectation of low levels of interaction with marine mammals.
    U.S. South Atlantic menhaden purse seine. This fishery is proposed 
to be defined as separate from the Gulf of Mexico menhaden purse seine 
fishery. This fishery is proposed to be placed in Category III based on 
an expectation of low levels of interaction with marine mammals.
    Proposed List of Fisheries 
    The following two tables list the commercial fisheries of the 
United States in their proposed categories. The estimated number of 
vessels is expressed in terms of the number of active participants in 
the fishery, when possible, and,as the estimated number of vessels or 
persons when information on the number of active participants is not 
available, these values have been updated from the 1994 LOF when 
possible. The information on which marine mammal species/stocks are 
involved in interactions with the fishery is based on observer data, 
logbook data, stranding reports, fisher's reports, and the 1994 LOF. If 
there is no information indicating which stocks of marine mammals might 
be involved in fishery interactions, analogy is used to provide a list 
of stocks with which interactions may occur, if appropriate. An 
asterisk (*) indicates that the stock is a strategic stock; a plus (+) 
indicates that the stock is listed as threatened or endangered under 
the ESA.
    Pursuant to section 101(a)(5)(E), NMFS must determine which 
fisheries have a negligible impact on species or stocks of marine 
mammals that are listed under the ESA. NMFS is therefore specifically 
seeking public comments that address those fisheries in the proposed 
LOF (Tables 1 and 2) that interact with species or stocks of marine 
mammals listed under the ESA and the information on the magnitude of 
the 

[[Page 31682]]
takes of such species or stocks found in the EA that accompanies this 
proposed rule.

                  Table 1.--Proposed List of Fisheries                  
               [Commercial Fisheries in the Pacific Ocean]              
------------------------------------------------------------------------
                                  Estimated                             
                                    No. of      Marine mammal species/  
      Fishery description          vessels/         stocks involved     
                                   persons                              
------------------------------------------------------------------------
Category I:                                                             
  CA angel shark/halibut and             520  99, 109, 110, 138, 139,   
   other species large mesh                    142.                     
   (>3.5in) set gillnet fishery.                                        
  CA/OR/WA thresher shark/               150  2*+, 92*+, 103, 104, 105, 
   swordfish/blue shark (blue                  107, 109, 110, 111, 113*,
   shark OR only) drift gillnet                117*, 142.               
   fishery.                                                             
Category II:                                                            
  AK Prince William Sound                509  1*+, 5, 19.               
   salmon drift gillnet.                                                
  AK Peninsula/Aleutians salmon          107  3*, 5, 6, 7, 19, 20, 154. 
   drift gillnet fishery.                                               
  Southeast Alaska salmon drift          443  2*+, 4, 18, 19, 20.       
   gillnet fishery.                                                     
  AK Cook Inlet drift gillnet..          554  1*+, 5, 19, 20.           
  AK Yakutat salmon set gillnet          152  4, 7.                     
  AK Cook Inlet salmon set               633  1*+, 5, 19, 20.           
   gillnet.                                                             
  AK Peninsula/Aleutian Island           120  1*+, 19.                  
   salmon set gillnet.                                                  
  AK Kodiak salmon set gillnet.          162  5, 19.                    
  AK Bristol Bay drift gillnet.        1,741  1*+, 3*, 6, 7, 8, 14, 18, 
                                               25.                      
  AK Bristol Bay set gillnet...          888  6, 14.                    
  AK Metlakatla/Annette Island            60  4, 19.                    
   salmon drift gillnet.                                                
  WA Puget Sound Region salmon         1,044  2*+, 103, 102, 138, 141.  
   drift gillnet fishery                                                
   (includes all inland waters                                          
   south of US-Canada border                                            
   and eastward of the Bonilla-                                         
   Tatoosh line--Treaty Indian                                          
   fishing is excluded).                                                
  CA anchovy, mackerel, tuna             150  107, 138, 139.            
   purse seine.                                                         
  AK Southeast salmon purse              443  27*+, 19.                 
   seine.                                                               
  AK Bering Sea and Aleutian             490  1*+, 2*+, 3*, 17, 18, 19, 
   Islands groundfish trawl.                   6, 7, 8, 9, 10, 20, 142, 
                                               155.                     
  AK pair trawl................            2  5, 6, 18, 20.             
  AK southern Bering Sea,                226  16, 142.                  
   Aleutian Islands, and                                                
   Western Gulf of Alaska                                               
   sablefish longline/set line                                          
   (federally regulated waters).                                        
  OR swordfish/blue shark                 30  unknown.                  
   surface longline fishery.                                            
Category III:                                                           
  AK Prince William Sound set             29  1*+, 19.                  
   gillnet.                                                             
  AK Kuskokwim, Yukon, Norton          1,651  7, 12, 13, 14, 19.        
   Sound, Kotzebue salmon                                               
   gillnet.                                                             
  AK roe herring and food/bait           162  19, 4, 5, 6.              
   herring gillnet.                                                     
  WA, OR herring, smelt, shad,           913  138, 140, 141.            
   sturgeon, bottom fish,                                               
   mullet, perch, rockfish                                              
   gillnet.                                                             
  WA Willapa Bay drift gillnet.           82  2*+, 138, 141, 142.       
  WA Grays Harbor salmon drift            24  2*+, 138, 141.            
   gillnet (excluding treaty                                            
   Tribal fishing).                                                     
  WA, OR lower Columbia River             40  2*+, 138, 140, 141.       
   (includes tributaries) drift                                         
   gillnet.                                                             
  CA set and drift gillnet               341  2*+, 25, 99, 100, 103,    
   fisheries that use a                        109, 110, 138, 139.      
   stretched mesh size of 3.5                                           
   in or less.                                                          
  AK miscellaneous finfish set             9  1*+, 2*+, 19, 4, 5, 6.    
   gillnet.                                                             
  Hawaii gillnet...............          115  145*+.                    
  AK salmon purse seine (except        1,053  1*+, 2*+, 3, 19, 155.     
   Southeast Alaska, which is                                           
   in Category II).                                                     
  AK salmon beach seine........           34  1*+, 2*+, 4, 5, 6, 19.    
  AK roe herring and food/bait           866  1*+, 2*+, 4, 5, 6, 19.    
   herring purse seine.                                                 
  AK roe herring and food/bait            14  1*+, 2*+, 4, 5, 6, 19.    
   herring beach seine.                                                 
  AK octopus/squid purse seine.            3  1*+, 2*+, 4, 5, 6, 19.    
  CA herring purse seine.......          100  106, 138, 139.            
  CA sardine purse seine.......          120  138.                      
  CA squid purse seine.........          145  105, 113, 138.            
  CA squid dip net.............          115  113, 138.                 
  WA, OR salmon net pens.......           21  2*+, 138, 140, 141.       
  OR salmon ranch..............            1  138, 141.                 
  AK salmon troll..............        1,450  1*+, 2*+, 3*, 5, 6, 33*+. 
  CA/OR/WA salmon troll........        4,300  2*+, 138, 139, 141.       
  AK north Pacific halibut, AK         1,354  4, 5, 6, 139, 140, 141.   
   bottom fish, WA, OR, CA                                              
   albacore, groundfish, bottom                                         
   fish, CA halibut non-                                                
   salmonid troll fisheries.                                            
  HI trolling, rod and reel....        1,795  127, 131, 132.            
  Guam tuna troll..............           50  None documented.          
  Commonwealth of the Northern            50  None documented.          
   Mariana Islands tuna troll.                                          
  American Samoa tuna troll....          <50 none="" documented.="" ak="" miscellaneous="" finfish="" 6="" 1*+,="" 2*+,="" 4,="" 5,="" 6,="" 19.="" purse="" seine.="" [[page="" 31683]]="" ak="" miscellaneous="" finfish="" 4="" 1*+,="" 2*+,="" 4,="" 5,="" 6,="" 19.="" beach="" seine.="" wa="" salmon="" purse="" seine........="" 440="" 103,="" 140,="" 141.="" wa="" salmon="" reef="" net...........="" 53="" 140,="" 141.="" wa,="" or="" herring,="" smelt,="" squid="" 130="" 138,="" 140,="" 141.="" purse="" seine="" or="" lampara.="" wa="" (all="" species)="" beach="" seine="" 235="" none="" documented.="" or="" drag="" seine.="" hi="" purse="" seine...............="" 18="" none="" documented.="" hi="" opelu/akule="" net...........="" 16="" none="" documented.="" hi="" throw="" net,="" cast="" net.......="" 47="" none="" documented.="" hi="" net="" unclassified..........="" 106="" none="" documented.="" ak="" state="" waters="" sablefish="" 240="" 5,="" 6,="" 16,="" 142.="" long="" line/set="" line.="" miscellaneous="" finfish/="" 838="" 5,="" 6,="" 142.="" groundfish="" longline/set="" line.="" hi="" swordfish,="" tuna,="" billfish,="" 140="" 127,="" 131.="" mahi="" mahi,="" wahoo,="" oceanic="" sharks="" longline/set="" line.="" wa,="" or="" north="" pacific="" halibut="" 5,364="" 16,="" 21*+.="" longline/set="" line.="" ak="" halibut="" longline/set="" line="" 213="" 1*+,="" 2*+,="" 5,="" 6,="" 26,="" 27,="" (state="" and="" federal="" waters).="" 142.="" wa,="" or,="" ca="" groundfish,="" 367="" 2*+,="" 18,="" 138,="" 139,="" 141.="" bottomfish="" longline/set="" line.="" ak="" octopus/squid="" longline....="" 1="" none="" documented.="" ca="" shark/bonito="" longline/set="" 10="" 138.="" line.="" wa,="" or,="" ca="" shrimp="" trawl......="" 300="" none="" documented.="" ak="" shrimp="" otter="" trawl="" and="" 48="" none="" documented.="" beam="" trawl="" (statewide="" and="" cook="" inlet).="" ak="" gulf="" of="" alaska="" groundfish="" 490="" 1*+,="" 2*+,="" 3*,="" 5,="" 7,="" 8,="" 9,="" trawl.="" 10,="" 16,="" 17,="" 20,="" 142.="" ak="" state-managed="" waters="" of="" 8="" 20.="" cook="" inlet,="" kachemak="" bay,="" prince="" william="" sound,="" southeast="" ak="" groundfish="" trawl.="" ak="" miscellaneous="" finfish="" 324="" none="" documented.="" otter="" or="" beam="" trawl.="" ak="" food/bait="" herring="" trawl...="" 2="" none="" documented.="" wa,="" or,="" ca="" groundfish="" trawl..="" 585="" 1*+,="" 3*,="" 18,="" 103,="" 138,="" 139,="" 141.="" ak="" crustacean="" pot............="" 1,951="" none="" documented.="" ak="" bering="" sea,="" gulf="" of="" alaska="" 226="" 5,="" 6,="" 155.="" finfish="" pot.="" wa,="" or,="" ca="" sablefish="" pot.....="" 176="" 139,="" 140,="" 141.="" wa,="" or,="" ca="" crab="" pot..........="" 1,478="" 25,="" 28,="" 139,="" 140,="" 141.="" wa,="" or="" shrimp="" pot="" &="" trap.....="" 254="" none="" documented.="" ca="" lobster,="" prawn,="" shrimp,="" 608="" none="" documented.="" rock="" crab,="" fish="" pot.="" or,="" ca="" hagfish="" pot="" or="" trap...="" 25="" none="" documented.="" hi="" lobster="" trap..............="" 15="" 145*+.="" hi="" crab="" trap.................="" 22="" none="" documented.="" hi="" fish="" trap.................="" 19="" none="" documented.="" hi="" shrimp="" trap...............="" 5="" none="" documented.="" ak="" north="" pacific="" halibut="" 84="" none="" documented.="" handline="" and="" mechanical="" jig.="" ak="" other="" finfish="" handline="" and="" 474="" none="" documented.="" mechanical="" jig.="" ak="" octopus/squid="" handline....="" 2="" none="" documented.="" wa="" groundfish,="" bottomfish="" jig="" 679="" 2*+,="" 138,="" 140,="" 141.="" hi="" aku="" boat,="" pole="" and="" line...="" 54="" none="" documented.="" hi="" inshore="" handline..........="" 650="" 132.="" hi="" deep="" sea="" bottomfish.......="" 434="" 132,="" 145*+.="" hi="" tuna......................="" 144="" 131,="" 132,="" 145*+.="" guam="" bottomfish..............=""><50 none="" documented.="" commonwealth="" of="" the="" northern=""><50 none="" documented.="" mariana="" islands="" bottomfish.="" american="" samoa="" bottomfish....=""><50 none="" documented.="" wa,="" or="" smelt,="" herring="" dip="" net="" 119="" none="" documented.="" ca="" swordfish="" harpoon.........="" 228="" none="" documented.="" ak="" southeast="" alaska="" herring="" 7="" none="" documented.="" food/bait="" pound="" net.="" wa="" herring="" brush.............="" 1="" none="" documented.="" wa/or/ca="" bait="" pens...........="" 13="" 25,="" 141.="" coastwide="" scallop="" dredge.....="" 106="" none="" documented.="" ak="" abalone...................="" 177="" none="" documented.="" ak="" dungeness="" crab............="" 1="" none="" documented.="" ak="" herring="" spawn-on-kelp.....="" 306="" 2*+.="" ak="" urchin="" and="" other="" fish/="" 127="" none="" documented.="" shellfish.="" ak="" clam="" hand="" shovel..........="" 125="" none="" documented.="" ak="" clam="" mechanical/hydraulic="" 3="" none="" documented.="" fishery.="" wa="" herring="" spawn-on-kelp.....="" 4="" none="" documented.="" wa/or="" sea="" urchin,="" other="" clam,="" 637="" none="" documented.="" octopus,="" oyster,="" sea="" cucumber,="" scallop,="" ghost="" shrimp="" hand,="" dive,="" or="" mechanical="" collection.="" ca="" abalone...................="" 111="" none="" documented.="" [[page="" 31684]]="" ca="" sea="" urchin................="" 583="" none="" documented.="" hi="" squiding,="" spear...........="" 267="" none="" documented.="" hi="" lobster="" diving............="" 6="" none="" documented.="" hi="" coral="" diving..............="" 2="" none="" documented.="" hi="" handpick..................="" 135="" none="" documented.="" wa="" shellfish="" aquaculture.....="" 684="" none="" documented.="" wa,="" ca="" kelp..................="" 4="" none="" documented.="" hi="" fish="" pond.................="" 10="" none="" documented.="" ak,="" wa="" or,="" ca="" commercial="" 1,243="" 4,="" 5,="" 6,="" 138,="" 139,="" 140,="" passenger="" fishing="" vessel.="" 141.="" ak="" octopus/squid="" ``other''...="" 19="" none="" documented.="" hi="" ``other''.................="" 114="" none="" documented.="" ak="" metlakatla="" purse="" seine....="" 3="" 4,="" 19.="" ca="" finfish="" and="" shellfish="" live="" 93="" none="" documented.="" trap/hook-and-line.="" ca="" salmon="" enhancement="" rearing="">1  None documented.          
   pen.                                                                 
------------------------------------------------------------------------



                  Table 2.--Proposed List of Fisheries                  
    [Commercial Fisheries in the Atlantic Ocean, Gulf of Mexico, and    
                               Caribbean]                               
------------------------------------------------------------------------
                               Estimated No.                            
     Fishery description        of vessels/     Marine mammal species/  
                                  persons           stocks involved     
------------------------------------------------------------------------
Category I:                                                             
  Atlantic Ocean, Caribbean,   7............  49, 50*, 51*, 54*, 59*.   
   Gulf of Mexico swordfish,                                            
   tuna, shark pair trawl.                                              
  Atlantic Ocean, Caribbean,   75...........  33*+, 37, 38*, 49, 50*,   
   Gulf of Mexico swordfish,                   51*, 52, 54*, 57, 58,    
   tuna, shark drift gillnet.                  59*.                     
  New England multispecies     341..........  32*, 33*+, 36, 50*, 51*,  
   sink gillnet.                               52, 61, 62.              
  Gulf of Maine small          133..........  33*+, 36, 52, 61*, 62, 63.
   pelagics surface gillnet.                                            
  Atlantic Ocean, Caribbean,   830..........  33*+, 36, 50, 51, 54*.    
   Gulf of Mexico tuna,                                                 
   shark, swordfish longline.                                           
Category II:                                                            
  U.S. mid-Atlantic coastal    >655.........  33*+, 36, 60*, 61*.       
   gillnet fishery.                                                     
  U.S. South Atlantic shark    10...........  60*.                      
   gillnet fishery.                                                     
  Gulf of Maine, Mid-Atlantic  10...........  36, 60*.                  
   menhaden purse seine.                                                
  Atlantic mid-water trawl...  620..........  49, 50*, 51*, 52, 54*.    
  North Carolina haul seine..  unknown......  60*, 61*.                 
  North Carolina roe mullet    13...........  60*.                      
   stop net.                                                            
Category III:                                                           
  North Atlantic bottom trawl  1,052........  50*, 51*, 52, 57, 60*.    
  Mid-Atlantic, U.S. South     >18,000......  71, 72, 73, 74, 75, 76.   
   Atlantic, Gulf of Mexico                                             
   shrimp trawl.                                                        
  Finfish aquaculture........  48...........  62, 63.                   
  Shellfish aquaculture......  unknown......  None documented.          
  Rhode Island, southern       32...........  33*+, 36, 60*, 61*.       
   Massachusetts (to Monomoy                                            
   Island), and New York                                                
   Bight (Raritan and Lower                                             
   New York Bays) inshore                                               
   gillnet.                                                             
  Long Island Sound inshore    20...........  33*+, 36, 60*, 61*.       
   gillnet.                                                             
  Delaware Bay inshore         60...........  33*+, 36, 60*, 61*.       
   gillnet.                                                             
  North Carolina inshore       94...........  33*+, 36, 60*, 61*.       
   gillnet.                                                             
  Gulf of Mexico inshore       unknown......  None documented.          
   gillnet (black drum,                                                 
   sheepshead).                                                         
  Offshore monkfish bottom     <50.......... none="" documented.="" gillnet.="" gulf="" of="" maine="" northern="" 320..........="" none="" documented.="" shrimp="" trawl.="" gulf="" of="" maine="" mackerel="" 30...........="" none="" documented.="" trawl.="" gulf="" of="" maine,="" mid-atlantic="" 215..........="" none="" documented.="" sea="" scallop="" trawl.="" gulf="" of="" maine,="" southern="" 5............="" 55,="" 56.="" north="" atlantic,="" gulf="" of="" mexico="" coastal="" herring="" trawl.="" mid-atlantic="" mixed="" species="">1,000.......  None documented.          
   trawl.                                                               
  Gulf of Mexico butterfish    2............  55, 56.                   
   trawl.                                                               
  Georgia, South Carolina,     25...........  None documented.          
   Maryland whelk trawl.                                                
  Calico scallops trawl......  200..........  None documented.          
  Bluefish, croaker, flounder  550..........  None documented.          
   trawl.                                                               
  Crab trawl.................  400..........  None documented.          
  Gulf of Maine Atlantic       30...........  61*, 62, 63.              
   herring purse seine.                                                 
  Gulf of Mexico menhaden      51...........  73, 74, 75, 76.           
   purse seine.                                                         
  U.S. South Atlantic          51...........  60*.                      
   menhaden purse seine.                                                
  Florida west coast sardine   16...........  73.                       
   purse seine.                                                         

[[Page 31685]]
                                                                        
  U.S. mid-Atlantic hand       > 250........  None documented.          
   seine.                                                               
  Gulf of Maine tub trawl      46...........  62, 63.                   
   groundfish bottom longline/                                          
   hook-and-line.                                                       
  U.S. South Atlantic, Gulf    1,944........  None documented.          
   of Mexico snapper-grouper                                            
   and other reef fish bottom                                           
   longline/hook-and-line.                                              
  U.S. South Atlantic, Gulf    124..........  None documented.          
   of Mexico shark bottom                                               
   longline/hook-and-line.                                              
  Gulf of Maine, U.S. mid-     26,223.......  None documented.          
   Atlantic tuna, shark                                                 
   swordfish hook-and-line/                                             
   harpoon.                                                             
  U.S. South Atlantic, Gulf    1,446........  None documented.          
   of Mexico & U.S. mid-                                                
   Atlantic pelagic hook-and-                                           
   line/harpoon.                                                        
  Gulf of Maine, U.S. South    1,285........  36, 61*.                  
   Atlantic coastal shad,                                               
   sturgeon gillnet.                                                    
  U.S. South Atlantic, Gulf    4,000........  73, 74, 75.               
   of Mexico coastal gillnet.                                           
  Florida east coast, Gulf of  271..........  71, 72, 73, 74, 75.       
   Mexico pelagics king and                                             
   Spanish mackerel gillnet.                                            
  Florida mullet gillnet.....  unknown......  None documented.          
  Gulf of Maine, U.S. mid-     100..........  33*+, 36, 61*, 62, 63.    
   Atlantic mixed species                                               
   trap/pot.                                                            
  U.S. mid-Atlantic black sea  30...........  None documented.          
   bass trap/pot.                                                       
  U.S. mid-Atlantic eel trap/  >700.........  None documented.          
   pot.                                                                 
  Gulf of Maine, U.S. mid-     10,613.......  32*, 33*+, 36, 52, 62.    
   Atlantic inshore lobster                                             
   trap/pot.                                                            
  Gulf of Maine, U.S. mid-     2,902........  None documented.          
   Atlantic offshore lobster                                            
   trap/pot.                                                            
  Atlantic Ocean, Gulf of      20,500.......  73, 74, 75, 153+.         
   Mexico blue crab trap/pot.                                           
  U.S. South Atlantic, Gulf    736..........  73, 74, 75, 153+.         
   of Mexico, Caribbean spiny                                           
   lobster trap/pot.                                                    
  Gulf of Maine herring and    50...........  32*, 33*+, 36, 61*, 62,   
   Atlantic mackerel stop                      63.                      
   seine/weir.                                                          
U.S. mid-Atlantic mixed        500..........  None documented.          
 species stop/seine/weir                                                
 (except the North Carolina                                             
 roe mullet stop net).                                                  
  U.S. mid-Atlantic crab stop  2,600........  None documented.          
   seine/weir.                                                          
  Gulf of Maine, U.S. mid-     233..........  33*+.                     
   Atlantic sea scallop                                                 
   dredge.                                                              
  U.S. mid-Atlantic offshore   100..........  None documented.          
   surfclam and quahog dredge.                                          
  Gulf of Maine mussel.......  > 50.........  None documented.          
  U.S. mid-Atlantic/Gulf of    7,000........  None documented.          
   Mexico oyster.                                                       
  U.S. South Atlantic,         150..........  None documented.          
   Caribbean haul seine.                                                
  Caribbean beach seine......  15...........  153+.                     
  Gulf of Maine urchin dive,   > 50.........  None documented.          
   hand/mechanical collection.                                          
  Atlantic Ocean, Gulf of      20,000.......  None documented.          
   Mexico, Caribbean                                                    
   shellfish dive, hand/                                                
   mechanical collection.                                               
------------------------------------------------------------------------



   Species and Stock Codes for Marine Mammals Occurring in U.S. Waters  
 [Some, but not all stocks listed are taken in the course of commercial 
                           fishing operations]                          
------------------------------------------------------------------------
    Code               Common name                Stock designation     
------------------------------------------------------------------------
1...........  Steller sea lion............  Western U.S.*               
2...........  Steller sea lion............  Eastern U.S.*               
3...........  Northern fur seal...........  North Pacific*              
4...........  Harbor seal.................  Southeast Alaska.           
5...........  Harbor seal.................  Gulf of Alaska.             
6...........  Harbor seal.................  Bering Sea.                 
7...........  Spotted seal................  Alaska.                     
8...........  Bearded seal................  Alaska.                     
9...........  Ringed seal.................  Alaska.                     
10..........  Ribbon seal.................  Alaska.                     
11..........  Beluga......................  Beaufort Sea.               
12..........  Beluga......................  Eastern Chukchi Sea.        
13..........  Beluga......................  Norton Sound.               
14..........  Beluga......................  Bristol Bay.                
15..........  Beluga......................  Cook Inlet.                 
16..........  Killer whale................  Alaska and Washington Inland
                                             Waters--Resident.          
17..........  Killer whale................  Alaska and Washington Inland
                                             Waters--Transient.         
18..........  Pacific white-sided dolphin.  North Pacific.              
19..........  Harbor porpoise.............  Alaska.                     
20..........  Dall's porpoise.............  Alaska.                     
21..........  Sperm whale.................  Alaska*.                    
22..........  Baird's beaked whale........  Alaska.                     
23..........  Cuvier's beaked whale.......  Alaska.                     
24..........  Stejnerger's beaked whale...  Alaska.                     
25..........  Gray whale..................  Eastern North Pacific.      
26..........  Humpback whale..............  Western North Pacific*.     
27..........  Humpback whale..............  Central North Pacific*.     
28..........  Fin whale...................  N. Pacific*.                
28..........  Minke whale.................  Alaska.                     
29..........  Northern right whale........  North Pacific*.             
31..........  Bowhead whale...............  Western Arctic Stock*.      
32..........  North Atlantic right whale..  Western North Atlantic*.    
33..........  Humpback whale..............  Western North Atlantic*.    
34..........  Fin whale...................  Western North Atlantic*.    
35..........  Sei whale...................  Western North Atlantic*.    
36..........  Minke whale.................  Canadian east coast.        
37..........  Blue whale..................  Western North Atlantic*.    
38..........  Sperm whale.................  Western North Atlantic*.    
39..........  Dwarf sperm whale...........  Western North Atlantic*.    
40..........  Pygmy sperm whale...........  Western North Atlantic*.    
41..........  Killer whale................  Western North Atlantic.     
42..........  Pygmy killer whale..........  Northern Gulf of Mexico.    

[[Page 31686]]
                                                                        
43..........  Northern bottlenose whale...  Western North Atlantic.     
44..........  Cuvier's beaked whale.......  Western North Atlantic*.    
45..........  True's beaked whale.........  Western North Atlantic*.    
46..........  Gervais' beaked whale.......  Western North Atlantic*.    
47..........  Blainville's beaked whale...  Western North Atlantic*.    
48..........  Sowerby's beaked whale......  Western North Atlantic*.    
49..........  Risso's dolphin.............  Western North Atlantic.     
50..........  Pilot whale, long-finned....  Western North Atlantic*.    
51..........  Pilot whale, short-finned...  Western North Atlantic*.    
52..........  Atlantic white-sided dolphin  Western North Atlantic.     
53..........  White-beaked dolphin........  Western North Atlantic.     
54..........  Common dolphin..............  Western North Atlantic*.    
55..........  Atlantic spotted dolphin....  Western North Atlantic*.    
56..........  Pantropical spotted dolphin.  Western North Atlantic*.    
57..........  Striped dolphin.............  Western North Atlantic.     
58..........  Spinner dolphin.............  Western North Atlantic.     
59..........  Bottlenose dolphin..........  Mid-Atlantic offshore*.     
60..........  Bottlenose dolphin..........  Western North Atlantic      
                                             Coastal*.                  
61..........  Harbor porpoise.............  Gulf of Maine/Bay of Fundy*.
62..........  Harbor seal.................  Western North Atlantic.     
63..........  Gray seal...................  Northwest North Atlantic.   
64..........  Harp seal...................  Northwestern North Atlantic.
65..........  Hooded seal northwestern....  North Atlantic.             
66..........  Sperm whale.................  Northern Gulf of Mexico*.   
67..........  Bryde's whale...............  Northern Gulf of Mexico.    
68..........  Cuvier's beaked whale.......  Northern Gulf of Mexico.    
69..........  Blainville's beaked whale...  Northern Gulf of Mexico.    
70..........  Gervais' beaked whale.......  Northern Gulf of Mexico.    
71..........  Bottlenose dolphin..........  Gulf of Mexico Outer        
                                             Continental Shelf.         
72..........  Bottlenose dolphin..........  Gulf of Mexico Continental  
                                             Shelf Edge and Slope.      
73..........  Bottlenose dolphin..........  Western Gulf of Mexico      
                                             Coastal.                   
74..........  Bottlenose dolphin..........  Northern Gulf of Mexico     
                                             Coastal.                   
75..........  Bottlenose dolphin..........  Eastern Gulf of Mexico      
                                             Coastal.                   
76..........  Bottlenose dolphin..........  Gulf of Mexico Bay & Sound*.
77..........  Atlantic spotted dolphin....  Northern Gulf of Mexico.    
78..........  Pantropical spotted dolphin.  Northern Gulf of Mexico.    
79..........  Striped dolphin.............  Northern Gulf of Mexico.    
80..........  Spinner dolphin.............  Northern Gulf of Mexico.    
81..........  Rough-toothed dolphin.......  Northern Gulf of Mexico.    
82..........  Clymene dolphin.............  Northern Gulf of Mexico.    
83..........  Fraser's dolphin............  Northern Gulf of Mexico.    
84..........  Killer whale................  Northern Gulf of Mexico.    
85..........  False Killer whale..........  Northern Gulf of Mexico.    
86..........  Pygmy killer whale..........  Atlantic EEZ.               
87..........  Dwarf sperm whale...........  Northern Gulf of Mexico*.   
88..........  Pygmy sperm whale...........  Northern Gulf of Mexico*.   
89..........  Melon-headed whale..........  Northern Gulf of Mexico.    
90..........  Risso's dolphin.............  Northern Gulf of Mexico.    
91..........  Pilot whale, short-finned...  Northern Gulf of Mexico*.   
92..........  Sperm whale.................  California to Washington*.  
93..........  Humpback whale..............  California/Mexico*.         
94..........  Blue whale..................  California/Mexico*.         
95..........  Fin whale...................  California to Washington*.  
96..........  Brydes whale................  Eastern Tropical Pacific.   
97..........  Sei whale...................  Eastern North Pacific*.     
98..........  Minke whale.................  California/Oregon/          
                                             Washington.                
99..........  Harbor porpoise.............  Central California*.        
100.........  Harbor porpoise.............  Northern California.        
101.........  Harbor porpoise.............  Oregon/Washington coast.    
102.........  Harbor porpoise.............  Inland Washington.          
103.........  Dall's porpoise.............  California/Oregon/          
                                             Washington.                
104.........  Pacific white sided dolphin.  California/Oregon/          
                                             Washington.                
105.........  Risso's dolphin.............  California/Oregon/          
                                             Washington.                
106.........  Bottlenose dolphin..........  California coastal.         
107.........  Bottlenose dolphin..........  California/Oregon/Washington
                                             Offshore.                  
108.........  Striped dolphin.............  California.                 
109.........  Common dolphin, short-beaked  California/Oregon/          
                                             Washington.                
110.........  Common dolphin, long-beaked.  California.                 
111.........  Northern right whale dolphin  California/Oregon/          
                                             Washington.                
112.........  Killer whale................  California/Oregon/          
                                             Washington.                
113.........  Pilot whale--short-finned...  California/Oregon/          
                                             Washington*.               
114.........  Baird's beaked whale........  California to Washington*.  
115.........  Mesoplodont beaked whales...  California to Washington*.  
116.........  Cuvier's beaked whale.......  California/Oregon/          
                                             Washington*.               
117.........  Pygmy sperm whale...........  California/Oregon/          
                                             Washington*.               
118.........  Dwarf sperm whale...........  California/Oregon/          
                                             Washington.                
119.........  Brydes whale................  Hawaii.                     
120.........  Blue whale..................  Hawaii*.                    
121.........  Fin whale...................  Hawaii*.                    
122.........  Pygmy killer whale..........  Hawaii.                     
123.........  Pilot whale--short-finned...  Hawaii.                     
124.........  Risso's dolphin.............  Hawaii.                     
125.........  Killer whale................  Hawaii.                     

[[Page 31687]]
                                                                        
126.........  Melon-headed whale..........  Hawaii.                     
127.........  False killer whale..........  Hawaii.                     
128.........  Pantropical spotted dolphin.  Hawaii.                     
129.........  Striped dolphin.............  Hawaii.                     
130.........  Spinner dolphin.............  Hawaii.                     
131.........  Rough-Toothed dolphin.......  Hawaii.                     
132.........  Bottlenose dolphin..........  Hawaii.                     
133.........  Pygmy sperm whale...........  Hawaii.                     
134.........  Dwarf sperm whale...........  Hawaii.                     
135.........  Sperm whale.................  Hawaii*.                    
136.........  Cuvier's beaked whale.......  Hawaii.                     
137.........  Blainville's beaked whale...  Hawaii.                     
138.........  California sea lion.........  U.S.                        
139.........  Harbor seal.................  California.                 
140.........  Harbor seal.................  Washington Inland waters.   
141.........  Harbor seal.................  Oregon/Washington coast.    
142.........  Northern elephant seal......  California breeding.        
143.........  Guadalupe fur seal..........  Mexico to California*.      
144.........  Northern fur seal...........  San Miguel Island.          
145.........  Hawaiian monk seal..........  Hawaii*.                    
146.........  Beaked whale, all stocks....  Pacific.                    
147.........  Harbor seal, all stocks.....  Pacific.                    
148.........  Beaked whale, all stocks....  Atlantic.                   
149.........  Spotted dolphin, all stocks.  Atlantic.                   
150.........  Pilot whale, all stocks.....  Atlantic.                   
151.........  Bottlenose dolphin, all       Gulf of Mexico.             
               stocks.                                                  
152.........  Southern (Calif.) sea otter.  California*.                
153.........  Florida manatee.............  Florida*.                   
154.........  Walrus......................  Pacific.                    
155.........  Northern (Alaska) sea otter.  Pacific.                    
------------------------------------------------------------------------


Take Reduction Plans

    New section 118(f) of the MMPA requires NMFS to develop and 
implement take reduction plans designed to assist in the recovery or 
prevent the depletion of each strategic stock that interacts with a 
Category I or II fishery. NMFS may also develop and implement a take 
reduction plan for any other marine mammal stock that interacts with a 
Category I fishery that NMFS determines, after notice and opportunity 
for public comment, has a high level of mortality and serious injury 
across a number of such marine mammal stocks. Under these proposed 
regulations, a Category I fishery would be considered to have a high 
level of mortality and serious injury across a number of marine mammal 
stocks, if its annual incidental mortality and serious injury exceeds 
or equals 50 percent of two or more marine mammal stocks' PBRs.
    As required by section 118(f)(2), the immediate goal of a take 
reduction plan is to reduce, within 6 months of its implementation, the 
incidental mortality or serious injury of marine mammals from 
commercial fishing operations to levels less than the PBR established 
for a stock under the SAR developed pursuant to section 117, and the 
long-term goal is to reduce, within 5 years of its implementation, the 
incidental mortality or serious injury of marine mammals from 
commercial fishing operations to insignificant levels approaching a 
zero mortality and serious injury rate, taking into account the 
economics of the fishery, the availability of existing technology, and 
existing state or regional fishery management plans. Failure of a plan 
to meet these goals may result in a revision of the plan and 
implementation of regulations necessary to achieve these goals. 
Priority for development and implementation of these plans will be 
accorded to stocks whose level of incidental mortality and serious 
injury exceeds the PBR, those that have a small population size, and 
those that are declining rapidly.
    Each take reduction plan is required by section 118(f)(4) of the 
MMPA to include a review of information in the final SAR and any 
substantial new information. In addition, each plan is required to 
include recommended regulatory or voluntary measures for the reduction 
of incidental mortality and serious injury and recommended dates for 
achieving the specific objectives of the plan. Regulations implementing 
take reduction plans may: (1) Establish fishery-specific limits on 
incidental mortality and serious injury of marine mammals in commercial 
fisheries or restrict commercial fisheries by time or area; (2) require 
the use of alternative fishing gear or techniques and new technologies, 
encourage the development of such gear or technology, or convene 
skipper's panels; and (3) provide for monitoring of the effectiveness 
of measures taken to reduce the level of incidental mortality and 
serious injury of marine mammals. Plans would not necessarily include 
each of these types of measures, rather they would be flexible and 
designed to address specific problems.
    Section 118(f)(6) requires NMFS to establish a take reduction team 
to develop a draft take reduction plan within 30 days after the 
publication of a final SAR for a strategic stock. These teams will 
consist of a balance of representatives of the fishing industry and 
non-resource user interests. Section 118(f)(6) of the MMPA requires 
that members represent a diversity of interests including those of 
Federal agencies, appropriate states and regional fishery management 
councils, interstate fishery commissions, academic and scientific 
organizations, environmental groups, all commercial and recreational 
fisheries groups and gear types which take the species or stock, Alaska 
Native organizations or Indian tribal organizations, and others as NMFS 
deems appropriate. By including all interested parties on take 
reduction teams, a fair and reasonable plan designed to reduce 
incidental takes of marine mammals during commercial fishing operations 
should be developed. Take reduction team meetings will be open to the 
public.
    Within 6 months after establishment of the take reduction teams for 
strategic stocks that interact with Category I or II fisheries and 
where mortality exceeds PBR, the team must submit a draft take 
reduction plan for such stock to NMFS. NMFS must take the draft plan 
into consideration and must publish in the Federal Register, for public 
review and comment, the plan proposed by the team, any changes proposed 
by NMFS, the rationale for such changes, and proposed regulations to 
implement such a plan. NMFS must issue a final take reduction plan and 
implementing regulations within 60 days after the close of the comment 
period.

Emergency Regulations
    New section 118(g) of the MMPA provides NMFS with authority to 
issue emergency regulations to reduce incidental mortality and serious 
injury of marine mammals if the incidental mortality and serious injury 
of marine mammals from commercial fisheries is having, or is likely to 
have, an immediate and significant adverse impact on a stock or 
species. Emergency regulations can apply to Category I, II, 

[[Page 31688]]
or III fisheries. This emergency authority will be used only when no 
alternative is available to prevent an immediate and significant 
adverse impact. In the case of a marine mammal population for which a 
take reduction plan, developed under subpart B, is in effect, section 
118(g)(1)(A) requires that the emergency regulations be to reduce 
incidental mortality and serious injury consistent with the plan, to 
the maximum extent practicable and that, NMFS, concurrently, approve 
and implement, on an expedited basis, any amendments to such plan that 
are recommended by the take reduction team to address such adverse 
impact.
    In the case of a marine mammal population for which a take 
reduction plan is being prepared, section 118(g)(1)(B) requires NMFS to 
approve and implement the plan on an expedited basis, which would 
provide methods to address such adverse impact if still necessary.
    In the case of a marine mammal population for which a take 
reduction plan does not exist, or is not being developed, or in the 
case of a Category III fishery that NMFS believes may be contributing 
to such adverse impact, section 118(g)(1)(C) requires NMFS to 
immediately review the SAR for such population and the classification 
of such commercial fishery to determine if a take reduction team should 
be established.
    As required by section 118(g)(2) of the MMPA, NMFS must consult 
with the regional fishery management councils, state fishery agencies, 
and treaty Indian tribal governments, where appropriate, before taking 
any emergency action. Emergency actions must, to the maximum extent 
practicable, avoid interfering with existing regional, state, or tribal 
fishery management or conservation programs, and must be as brief in 
duration and nonintrusive as possible. Emergency actions could include, 
but would not necessarily be limited to: Quotas on the number of marine 
mammals that may be taken; restrictions on the time, manner and 
location where the fishery may operate; and prohibitions on the use of 
fishing techniques or gear which are found to cause excessive marine 
mammal injuries or mortalities. Emergency regulations would expire at 
the end of the applicable commercial fishing season or at the end of 
180 days, whichever is earlier. However, they could be extended for an 
additional 90-day period, if needed to address a continuing threat. If 
NMFS finds that the incidental morality and serious injury is not 
having an immediate and significant adverse impact over a period of 
time longer than 1 year, NMFS would develop and implement a take 
reduction plan under proposed Sec. 229.14 instead of prescribing 
emergency regulations.

Takes of Listed Marine Mammals

    Section 101(a)(5)(E) was added to the MMPA in 1994 to authorize 
NMFS to issue permits to commercial fishing vessels of the United 
States allowing for up to 3 years, incidental takes of marine mammals 
listed as threatened species or endangered species under the ESA. A 
permit may be issued only if NMFS determines that the total incidental 
mortality and serious injury from commercial fisheries would have a 
negligible impact on the species or stock (proposed Sec. 229.2), and 
that a recovery plan has been, or is in the process of being, developed 
for that stock under the ESA. Furthermore, any applicable requirements 
of section 118 (e.g., registration, monitoring, and take reduction 
plans) must also be met before NMFS could authorize the incidental 
taking of listed marine mammals by any Category I or II fishery. NMFS 
will publish a list identifying the Category I, II and III fisheries 
for which such determinations were made. However, only Category I and 
II vessels require permits under section 101(a)(5)(E); vessels fishing 
in either a Category I or II fishery must receive authorizations under 
both section 118 and section 101(a)(5)(E) in order to legally engage in 
the incidental taking of listed marine mammals.
    Vessels in Category III fisheries that are not required to register 
under section 118 but which are included in the list published pursuant 
to section 101(a)(5)(E) will not be subject to the penalties of the 
MMPA for the incidental taking of marine mammals that are listed as 
endangered or threatened species under the ESA, as long as the vessel 
owner or operator of such vessel, in accordance with the requirements 
of proposed Sec. 229.6, reports any incidental mortality or injury 
within 48 hours of the end of the fishing trip where the incidental 
taking occurred.
    The MMPA states that after opportunity for public comment, NMFS 
must determine which fisheries that have interaction with ESA-listed 
marine mammals have a negligible impact on those stocks. NMFS must then 
publish a list of those fisheries for which such a determination has 
been made. Because the proposed LOF (Tables 1 and 2 in this rule) 
specifies which fisheries have interactions with species or stocks 
listed under the ESA, and because the associated Environmental 
Assessment provides the data on which a negligible determination will 
be made, NMFS is now requesting public comment specifically regarding 
this issue; such comments will be considered and a final list of those 
fisheries for which takes have been determined to be negligible will be 
published in the Federal Register.
    The section 101(a)(5)(E) authorization in the MMPA to incidentally 
take marine mammals listed under the ESA will include appropriate terms 
and conditions made necessary by the associated ESA section 7 
consultation. These conditions and restrictions may include actions to 
reduce the incidental taking or may prohibit any taking of an 
endangered or threatened species.
    NMFS may issue permits under section 101(a)(5)(E) of the MMPA to an 
identifiable group of vessels, rather than to individuals when 
possible. Whenever possible, NMFS will issue permits issued under 
section 101(a)(5)(E) of the MMPA simultaneously with authorizations 
under section 118 in order not to delay fishing activities. Thus, 
fishers will not have to apply for a permit under section 101(a)(5)(E). 
When the level of incidental taking is more than negligible, NMFS may 
modify, suspend, or revoke such permits. In cases where an individual 
fisher has a record of excessive incidental takes, NMFS may revoke the 
permit from that fisher and not from the entire group of vessels in the 
fishery. For fisheries that have incidental takes of more than one ESA-
listed stock, a permit under section 101(a)(5)(E) may be issued to 
authorize the takes of one stock but not necessarily other stocks.
Penalties

    Except as otherwise provided, violations of section 118, the 
implementing regulations, Authorization Certificates, or permits issued 
to fishers authorizing the incidental taking of listed marine mammals 
during commercial fishing operations would subject vessel owners and 
fishers to the penalties provided in the MMPA and in NOAA regulations 
governing administrative procedures for the assessment of penalties (15 
CFR part 904).
    In addition, as noted above, Certificates may be revoked, 
suspended, or denied for violations of the MMPA, the regulations, take 
reduction plans, permits issued to fishers to authorize the incidental 
taking of listed marine mammals during commercial fishing operations, 
or emergency regulations issued under this part 229. For fishers 
operating in Category I or II fisheries, failure to report all 
incidental injuries and mortalities within 48 hours of the 

[[Page 31689]]
end of the fishing trip during which such taking occurred, will result 
in suspension or revocation of an Authorization Certificate until such 
requirements have been fulfilled. For fisheries operating in Category 
III fisheries, failure to report all incidental injuries and 
mortalities within 48 hours of the end of the fishing trip during which 
such taking occurred, will subject such persons to the full penalties 
of the Act.
    An owner of a vessel engaged in a Category I or II fishery who 
fails to obtain from the NMFS an authorization for such vessel under 
this section, or fails to maintain a current and valid authorization 
for such vessel will be deemed to have violated this part and will be 
subject to the penalties of sections 105, 106, and 107 of the MMPA. An 
owner of a vessel engaged in a Category I or II fishery who fails to 
ensure that a decal or other physical evidence of such authorization 
issued by NMFS is displayed on or is in possession of the operator of 
the vessel, will be deemed to have violated this part and will be 
subject to a fine of not more than $100 for each offense.
    Owners or operators of vessels or nonvessel fisheries that fail to 
comply with a take reduction plan or implementing regulations issued 
under subpart C of this part will be subject to the penalties in 
sections 105 and 107 of the Act, and may be subject to the penalties of 
section 106 of the Act.

Classification

    This action has been determined to be not significant for purposes 
of E.O. 12866.
    The Assistant General Counsel for Legislation and Regulation of the 
Department of Commerce certified to the Small Business Administration 
that this proposed rule, if adopted, would not have a significant 
economic impact on a substantial number of small entities since it 
would establish a process for issuance of authorizations for the 
incidental taking of marine mammals while conducting commercial fishing 
in waters of the U.S. exclusive economic zone. Without these 
authorizations, the taking of marine mammals would be prohibited and 
fishers could be subject to fines when takings occur in the course of 
commercial fishing operations. The payment of a fee set to recover the 
costs of certificate issuance would be required to obtain an 
Authorization Certificate. While the amount of such fee has not yet 
been determined, it would cost no more than approximately $30. 
Approximately 20,000 fishers are currently required to register under 
the old interim exemption regime and pay a similar fee. This number is 
not expected to increase under the new regime.
    This proposed rule does not contain policies with federalism 
implications sufficient to warrant preparation of a federalism 
assessment under E.O. 12612.
    This proposed rule contains collection-of-information requirements 
subject to the provisions of the Paperwork Reduction Act. Although 
these collections have been approved previously by OMB under OMB 
control numbers 0648-0224 and 0648-0225, because of new collection 
requirements for commercial fishing in Sec. 229.6 and slightly modified 
registration requirements under Sec. 229.4, these collection 
requirements are being resubmitted to OMB for review and approval.
    The average reporting burden for these collections is estimated to 
be approximately 0.25 hours for each of approximately 13,000 fishers to 
register each year and 0.17 hours for each report of marine mammal 
injury or mortality. Because fishers would be required to submit a 
report for each occurrence of marine mammal injury or mortality, there 
may be multiple reports required per fisher.
    Send comments regarding these burden estimates or any other aspect 
of these collection of information requirements, including suggestions 
for reducing the burden, to the Chief, Marine Mammals Division, Office 
of Protected Resources, and to the Office of Information and Regulatory 
Affairs, OMB (see ADDRESSES).

National Environmental Policy Act

    The Assistant Administrator for Fisheries, NOAA (AA) has 
determined, based upon an EA prepared under the National Environmental 
Policy Act, that implementation of these regulations would not have a 
significant impact on the human environment. As a result of this 
determination, an environmental impact statement is not required. A 
copy of the EA is available upon request (see ADDRESSES).

List of Subjects

50 CFR Part 216
    Administrative practice and procedure, Imports, Indians, Marine 
Mammals, Penalties, Reporting and recordkeeping requirements, 
Transportation

50 CFR Part 229

    Administrative practice and procedure, Confidential business 
information, Fisheries, Marine mammals, Reporting and recordkeeping 
requirements.

    Dated: June 13, 1995.
Gary Matlock,
Acting Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
    For reasons set out in the preamble, 50 CFR parts 216 and 229 are 
proposed to be amended as follows:

PART 216--REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE 
MAMMALS

    1. The authority citation for part 216 continues to read as 
follows:

    Authority: 16 U.S.C. 1361 et seq., unless otherwise noted.

    2. Section 216.24 is amended by removing the phrase, under the Note 
to Sec. 216.24: ``for the period from June 17, 1994, through September 
1, 1995''.
    3. Part 229 is revised to read as follows:

PART 229--AUTHORIZATION FOR COMMERCIAL FISHERIES UNDER THE MARINE 
MAMMAL PROTECTION ACT OF 1972

Subpart A--General Provisions

Sec.
229.1  Purpose and scope.
229.2  Definitions.
229.3  Prohibitions.
229.4  Requirements for Category I and II fisheries.
229.5  Requirements for Category III fisheries.
229.6  Reporting requirements.
229.7  Monitoring of incidental mortalities and serious injuries.
229.8  Publication of list of fisheries.
229.9  Emergency regulations.
229.10  Penalties.
229.11  Confidential fisheries data.
229.12  Consultation with the Secretary of the Interior.

Subpart B--Takes of Endangered and Threatened Marine Mammals

229.20  Issuance of permits.

Subpart C--Take Reduction Plan Regulations and Emergency Regulations 
[Reserved]

    Authority: 16 U.S.C. 1361 et seq., unless otherwise noted.

Subpart A--General Provisions


Sec. 229.1  Purpose and scope.

    (a) The regulations in this part implement sections 101(a)(5)(E) 
and 118 of the Marine Mammal Protection Act of 1972, as amended (16 
U.S.C. 1371(a)(5)(E) and 1387) that provide exceptions from the Act's 
moratorium on the taking of marine mammals incidental to certain 
commercial fishing operations. 

[[Page 31690]]

    (b) Section 118 of the Act, rather than sections 103 and 104, 
governs the incidental taking of marine mammals in the course of 
commercial fishing operations by persons using vessels of the United 
States, other than vessels fishing for yellowfin tuna in the eastern 
tropical Pacific Ocean purse seine fishery, and vessels that have valid 
fishing permits issued in accordance with section 204(b) of the 
Magnuson Fishery Conservation and Management Act (16 U.S.C. 1824(b)).
    (c) The regulations of this part also govern the incidental taking 
by commercial fishers of marine mammals from species or stocks 
designated under the Act as depleted on the basis of their listing as 
threatened species or endangered species under the Endangered Species 
Act of 1973 (16 U.S.C. 1531 et seq.).
    (d) The regulations of this part do not apply to the incidental 
taking of California sea otters or to Northwest treaty Indian tribal 
members exercising treaty fishing rights.
    (e) Authorizations under subpart A of this part are exemptions only 
from the taking prohibitions under the Act and not those under the 
Endangered Species Act of 1973. To be exempt from the taking 
prohibitions under the Endangered Species Act, specific authorization 
under subpart B of this part is required.
    (f) Authorizations under this part do not apply to the intentional 
lethal taking of marine mammals in the course of commercial fishing 
operations.
    (g) The purpose of the regulations in this part is to reduce the 
incidental mortality or serious injury of marine mammals occurring in 
the course of commercial fishing operations to insignificant levels 
approaching a zero mortality and serious injury rate by the statutory 
deadline of April 30, 2001.


Sec. 229.2  Definitions.

    In addition to the definitions contained in the Act and Sec. 216.3 
of this chapter, and unless the context otherwise requires, in this 
part 229:
    Act or MMPA means the Marine Mammal Protection Act of 1972, as 
amended (16 U.S.C. 1361 et seq.).
    Authorization Certificate means a document issued by the Assistant 
Administrator, or designee, under the authority of section 118 of the 
Act that authorizes the incidental, but not intentional, taking of 
marine mammals in Category I or II fisheries.
    Category I fishery means a commercial fishery determined by the 
Assistant Administrator to have frequent incidental mortality and 
serious injury of marine mammals. A commercial fishery that frequently 
causes mortality or serious injury of marine mammals is one that is by 
itself responsible for the annual removal of 50 percent or more of any 
stock's potential biological removal level.
    Category II fishery means a commercial fishery determined by the 
Assistant Administrator to have occasional incidental mortality and 
serious injury of marine mammals. A commercial fishery that 
occasionally causes mortality or serious injury of marine mammals is 
one that, collectively with other fisheries, is responsible for the 
annual removal of more than 10 percent of any marine mammal stock's 
potential biological removal level and that is by itself responsible 
for the annual removal of between 1 and 50 percent, exclusive, of any 
stock's potential biological removal level. In the absence of 
information indicating the frequency of incidental mortality and 
serious injury of marine mammals by a commercial fishery, the Assistant 
Administrator will determine whether the taking is ``occasional'' by 
analogy or, if an analogy is not possible, the Assistant Administrator 
may, after public notice and opportunity for public comment regarding a 
fishery's incidental mortality and serious injury on a stock of marine 
mammals, place that fishery in Category II. Eligible commercial 
fisheries not specifically identified in the list of fisheries are 
deemed to be Category II fisheries until the next annual list of 
fisheries is published.
    Category III fishery means a commercial fishery determined by the 
Assistant Administrator to have a remote likelihood of, or no known 
incidental mortality and serious injury of marine mammals. A commercial 
fishery that has a remote likelihood of causing incidental mortality 
and serious injury of marine mammals is one that collectively with 
other fisheries is responsible for the annual removal of:
    (1) 10 percent or less of any marine mammal stock's potential 
biological removal level, or
    (2) More than 10 percent of any marine mammal stock's potential 
biological removal level, yet that fishery by itself is responsible for 
the annual removal of 1 percent or less of that stock's potential 
biological removal level. In the absence of information indicating the 
frequency of incidental mortality and serious injury of marine mammals 
by a commercial fishery, the Assistant Administrator will determine 
whether the taking is ``remote'' by analogy or, if an analogy is not 
possible, the Assistant Administrator may, after public notice and 
opportunity for public comment regarding a fishery's incidental 
mortality and serious injury on a stock of marine mammals, place that 
fishery in Category III.
    Commercial fishing operation means the catching, taking, or 
harvesting of fish from the marine environment (or other areas where 
marine mammals occur) that results in the sale or barter of all or part 
of the fish harvested. The term includes licensed commercial passenger 
fishing vessel (as defined in Sec. 216.3 of this chapter) activities 
and aquaculture activities.
    Depleted species means any species or population that has been 
designated as depleted under the Act and is listed in Sec.  216.15 of 
this chapter or part 18, subpart E of this title, or any endangered or 
threatened species of marine mammal.
    Fishery has the same meaning it does in section 3 of the Magnuson 
Fishery Conservation and Management Act (16 U.S.C. 1802).
    Fishing trip means any time spent away from port actively engaged 
in commercial fishing operations. The end of a fishing trip will be the 
time of a fishing vessel's return to port.
    Fishing vessel or vessel means any vessel, boat, ship, or other 
craft that is used for, equipped to be used for, or of a type normally 
used for, fishing.
    Incidental, but not intentional, take means the non-intentional or 
accidental taking of a marine mammal that results from, but is not the 
purpose of, carrying out an otherwise lawful action.
    Incidental mortality means the non-intentional or accidental death 
of a marine mammal that results from, but is not the purpose of, 
carrying out an otherwise lawful action.
    Injury means 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 requires assistance 
to escape from entanglement in fishing gear will be considered injured 
regardless of the absence of any wound or other evidence of an injury.
    Interaction means coming in contact with. An interaction may be 
characterized by a marine mammal entangled, hooked, or otherwise 
trapped in fishing gear, regardless of whether injury or mortality 
occur, or situations 

[[Page 31691]]
where marine mammals are preying on catch. Catch means fish or 
shellfish that has been hooked, entangled, snagged, trapped or 
otherwise captured by commercial fishing gear.
    List of Fisheries means the most recent final list of commercial 
fisheries published in the Federal Register by the Assistant 
Administrator, categorized according to the likelihood of incidental 
mortality and serious injury of marine mammals during commercial 
fishing operations.
    Minimum population estimate means an estimate of the number of 
animals in a stock that:
    (1) Is based on the best available scientific information on 
abundance, incorporating the precision and variability associated with 
such information; and
    (2) Provides reasonable assurance that the stock size is equal to 
or greater than the estimate.
    NMFS means the National Marine Fisheries Service.
    Negligible impact has the same meaning as in Sec. 228.3 of this 
chapter.
    Net productivity rate means the annual per capita rate of increase 
in a stock resulting from additions due to reproduction, less losses 
due to mortality.
    Nonvessel fishery means a commercial fishing operation that uses 
fixed or other gear without a vessel, such as gear used in set gillnet, 
trap, beach seine, weir, ranch, and pen fisheries.
    Observer means an individual authorized by NMFS, or a designated 
contractor, to record information on marine mammal interactions, 
fishing operations, marine mammal life history information, and other 
scientific data, and collect biological specimens during commercial 
fishing activities.
    Potential biological removal level means the maximum number of 
animals, not including natural mortalities, that may be removed from a 
marine mammal stock while allowing that stock to reach or maintain its 
optimum sustainable population. The potential biological removal level 
is the product of the following factors:
    (1) The minimum population estimate of the stock;
    (2) One-half the maximum theoretical or estimated net productivity 
rate of the stock at a small population size; and
    (3) A recovery factor of between 0.1 and 1.0.
    Regional Fishery Management Council means a regional fishery 
management council established under section 302 of the Magnuson 
Fishery Conservation and Management Act.
    Serious injury means any injury that will likely result in 
mortality.
    Strategic stock means a marine mammal stock:
    (1) For which the level of direct human-caused mortality exceeds 
the potential biological removal level;
    (2) Which, based on the best available scientific information, is 
declining and is likely to be listed as a threatened species under the 
Endangered Species Act of 1973 within the foreseeable future;
    (3) Which is listed as a threatened species or endangered species 
under the Endangered Species Act of 1973; or
    (4) Which is designated as depleted under the Marine Mammal 
Protection Act of 1972, as amended.
    Take Reduction Plan means a plan developed to reduce the incidental 
mortality and serious injury of marine mammals during commercial 
fishing operations in accordance with section 118 of the Marine Mammal 
Protection Act of 1972, as amended.
    Take Reduction Team means a team established to review methods of 
reducing the incidental mortality and serious injury of marine mammals 
due to commercial fishing operations, in accordance with section 118 of 
the Marine Mammal Protection Act of 1972, as amended.
    Vessel owner or operator means the owner or operator of:
    (1) A fishing vessel that engages in a commercial fishing 
operation; or
    (2) Fixed or other commercial fishing gear that is used in a 
nonvessel fishery.
    Vessel of the United States has the same meaning it does in section 
3 of the Magnuson Fishery Conservation and Management Act (16 U.S.C. 
1802).
    Zero mortality rate goal is the reduction of the annual number of 
incidental mortalities and serious injuries in each fishery to 
insignificant levels approaching a zero mortality and serious injury 
rate. A fishery will have reached this goal when it is responsible for, 
collectively with other fisheries, the annual removal of:
    (1) 10 percent or less of any marine mammal stock's potential 
biological removal level, or
    (2) more than 10 percent of any marine mammal stock's potential 
biological removal level, but that fishery by itself is responsible for 
the annual removal of 1 percent or less of that stock's potential 
biological removal level and does not seriously injure or kill species 
listed as endangered or threatened under the Endangered Species Act or 
depleted under the MMPA. In addition, those fisheries that kill or 
seriously injure declining, depleted, threatened, or endangered stocks 
of marine mammals would have to be examined separately to determine 
that the incidental take is insignificant.


Sec. 229.3  Prohibitions.

    (a) It is prohibited to take any marine mammal incidental to 
commercial fishing operations except as otherwise provided in part 216 
of this chapter or in this part 229.
    (b) It is prohibited to assault, harm, harass (including sexually 
harass), oppose, impede, intimidate, impair, or in any way influence or 
interfere with an observer. This prohibition includes, but is not 
limited to, any action that interferes with an observer's 
responsibilities, or that creates an intimidating, hostile, or 
offensive environment.
    (c) It is prohibited to provide false information when registering 
for an Authorization Certificate, applying for renewal of the 
Authorization Certificate, reporting the taking of any marine mammal, 
or providing information to any observer.
    (d) It is prohibited to tamper with or destroy observer equipment 
in any way.
    (e) It is prohibited to intentionally lethally take any marine 
mammal in the course of commercial fishing operations unless imminently 
necessary in self-defense or to save the life of a person in immediate 
danger, and such taking is reported in accordance with the requirements 
of Sec. 229.6.
    (f) It is prohibited to willfully discard any fishing gear at sea, 
in whole or in part.
    (g) It is prohibited to violate any regulation in this part.


Sec. 229.4  Requirements for Category I and II fisheries.

    (a) General. For a vessel owner or crew members to lawfully 
incidentally take marine mammals in the course of commercial fishing 
operations in a Category I or II fishery, the owner or authorized 
representative of a fishing vessel or non vessel fishing gear must 
annually register for and receive an Authorization Certificate. The 
granting and administration of authorizations under this part 229 may 
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 
authorizations is integrated into an existing program, NMFS will 
publish a notice in the Federal Register of where to register and 
efforts will be made to contact affected fishers via other appropriate 
means of notification. 

[[Page 31692]]

    (b) Required information. Owners of vessels or, for nonvessel 
fisheries, gear, must submit the following information when registering 
for an Authorization Certificate:
    (1) Name, address, and phone number of owner;
    (2) Name, address, and phone number of operator, if different from 
owner and if known, unless the name of the operator is not known or has 
not been established at the time the registration is submitted;
    (3) Vessel name, length and home port; U.S. Coast Guard 
documentation number, or state registration number, state commercial 
vessel license number, and/or Tribal Permit number (as applicable);
    (4) A list of all Category I and II fisheries in which the fisher 
will actively engage in during the calendar year;
    (5) 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; and
    (6) A certification, signed and dated by the vessel owner or 
authorized representative, 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.''
    (c) Fee. A check or money order made payable to NMFS in the amount 
specified in the notice of the final List of Fisheries must accompany 
each registration submitted to NMFS. The amount of this fee will be 
based on recovering the administrative costs incurred in granting an 
authorization. The Assistant Administrator may waive the fee 
requirement for good cause upon the recommendation of the Regional 
Director.
    (d) Address. Unless the granting and administration of 
authorizations under part 229 is integrated and coordinated with 
existing fishery licenses, registrations, or related programs pursuant 
to (a) of this section, requests for registration forms and completed 
registration forms should be sent to one of the following NMFS Regional 
Offices:
    (1) Alaska Region, NMFS, P.O. Box 21668, 709 West 9th Street, 
Juneau, AK 99802; telephone: [phone];
    (2) Northwest Region, NMFS, 7600 Sand Point Way NE., Seattle, WA 
98115-0070; telephone: [phone];
    (3) Southwest Region, NMFS, 501 West Ocean Blvd., Suite 4200, Long 
Beach, CA 90802-4213; telephone: [phone];
    (4) Northeast Region, NMFS, 1 Blackburn Drive, Gloucester, MA 
01930; telephone: [phone]; or
    (5) Southeast Region, NMFS, 9721 Executive Center Drive North, St. 
Petersburg, FL 33702; telephone: [phone].
    (e) Issuance. After receipt of a completed initial registration 
form and the required fee, NMFS will issue an Authorization Certificate 
and annual decal to the vessel owner. The Authorization Certificate 
will be renewed annually, and an annual decal issued, after receipt of 
an updated registration form, required fee, and statement (yes/no) 
regarding whether any marine mammals were incidentally killed or 
injured during the previous calendar year.
    (f) Authorization Certificate and decal requirements. (1) The 
annual decal must be attached to the vessel on the port side of the 
cabin or, in the absence of a cabin, on the forward port side of the 
hull, and must be free of obstruction and in good condition. The decal 
must be attached to the Authorization Certificate for nonvessel 
fisheries.
    (2) The Authorization Certificate, or a copy, must be on board the 
vessel while it is operating in a Category I or II fishery, or, in the 
case of nonvessel fisheries, the Authorization Certificate with decal 
attached, or copy must be in the possession of the person in charge of 
the fishing operation. The Authorization Certificate, or copy, must be 
made available upon request to any state or Federal enforcement agent 
authorized to enforce the Act, any designated agent of NMFS, or any 
contractor providing observer services to NMFS.
    (3) Authorization Certificates and annual decals are not 
transferable. In the event of the sale or change in ownership of the 
vessel, the Authorization Certificate is void and the new owner must 
register for an Authorization Certificate and decal.
    (4) An Authorization Certificate holder must notify the issuing 
office in writing:
    (i) If the vessel or nonvessel fishing gear will engage in any 
Category I or II fishery not listed on the initial registration form at 
least 30 days prior to engaging in that fishery; and,
    (ii) If there are any changes in the mailing address or vessel 
ownership within 30 days of such change.
    (g) Reporting. Any Authorization Certificate holders must comply 
with the reporting requirements specified under Sec. 229.6.
    (h) Disposition of marine mammals. Any marine mammal incidentally 
taken must be immediately returned to the sea with a minimum of further 
injury, unless directed otherwise by NMFS personnel, a designated 
contractor or an official onboard observer, or by a scientific research 
permit that is in the possession of the operator.
    (i) Monitoring. Authorization Certificate holders must comply with 
the observer or other monitoring requirements specified under 
Sec. 229.7.
    (j) Deterrence. When necessary to deter a marine mammal from 
damaging fishing gear, catch, or other private property, or from 
endangering personal safety, vessel owners and crew members engaged in 
a Category I or II fishery must comply with the guidelines for use in 
safely deterring marine mammals proposed at 60 FR 22345, May 5, 1995, 
Sec. 216.29(c) of this chapter and are prohibited from using any 
deterrence measure proposed at FR 22345, May 5, 1995, Sec. 216.29(d) of 
this chapter.
    (k) Self defense. When imminently necessary in self-defense or to 
save the life of a person in immediate danger, a marine mammal may be 
lethally taken if such taking is reported to NMFS in accordance with 
the requirements of Sec. 229.6.
    (l) Take reduction plans and emergency regulations. Authorization 
Certificate holders must comply with any applicable take reduction 
plans and emergency regulations.
    (m) Expiration. Authorization Certificates and annual decals expire 
at the end of each calendar year.


Sec. 229.5  Requirements for Category III fisheries.

    (a) General. Vessel owners and crew members of such vessels engaged 
only in Category III fisheries may incidentally take marine mammals 
without registering for or receiving an Authorization Certificate.
    (b) Reporting. Vessel owners engaged in a Category III fishery must 
comply with the reporting requirements specified in Sec. 229.6.
    (c) Disposition of marine mammals. Any marine mammal incidentally 
taken must be immediately returned to the sea with a minimum of further 
injury unless directed otherwise by NMFS personnel, a designated 
contractor, or an official onboard observer, or by a scientific 
research permit in the possession of the operator.
    (d) Monitoring. Vessel owners engaged in a Category III fishery 
must comply with the observer requirements specified under 
Sec. 229.7(f).
    (e) Deterrence. When necessary to deter a marine mammal from 
damaging fishing gear, catch or other private property, or from 
endangering personal safety, vessel owners engaged in a 

[[Page 31693]]
Category III fishery must comply with the guidelines for use in safely 
deterring marine mammals proposed at Sec. 216.29(c) of this chapter and 
are prohibited from using any deterrence measure proposed at 
Sec. 216.29(d) of this part.
    (f) Self-defense. When imminently necessary in self-defense or to 
save the life of a person in immediate danger, a marine mammal may be 
lethally taken if such taking is reported to NMFS in accordance with 
the requirements of Sec. 229.6.
    (g) Emergency regulations. Vessel owners engaged in a Category III 
fishery must comply with any applicable emergency regulations.


Sec. 229.6  Reporting requirements.

    (a) Vessel owners or operators engaged in any Category I, II, or 
III fishery must report all incidental mortality and injury of marine 
mammals in the course of commercial fishing operations to the Assistant 
Administrator, or appropriate Regional Office, by mail or other means, 
such as FAX or overnight mail specified by the Assistant Administrator. 
Reports must be sent within 48 hours after the end of each fishing trip 
during which the incidental mortality or injury occurred, or, for 
nonvessel fisheries, within 48 hours of an occurrence of an incidental 
mortality or serious injury. Reports must be submitted on a standard 
postage-paid form as provided by the Assistant Administrator. The 
vessel owner or operator must provide the following information on this 
form:
    (1) The vessel name, and Federal, state, or tribal registration 
numbers of the registered vessel;
    (2) The name and address of the vessel owner or operator;
    (3) The name and description of the fishery, including gear type 
and target species; and
    (4) The species and number of each marine mammal incidentally 
killed or injured, and the date, time, and approximate geographic 
location of such occurrence. A description of the animal(s) killed or 
injured must be provided if the species is unknown.
    (b) Participants in nonvessel fisheries must include all of the 
information in paragraphs (a)(1) through (a)(4) of this section with 
the exception of the vessel name and registration number.


Sec. 229.7  Monitoring of incidental mortalities and serious injuries.

    (a) Purpose. The Assistant Administrator will establish a program 
to monitor incidental mortality and serious injury of marine mammals 
during the course of commercial fishing operations in order to:
    (1) Obtain statistically reliable estimates of incidental mortality 
and serious injury;
    (2) Determine the reliability of reports of incidental mortality 
and injury under Sec. 229.6; and
    (3) Identify changes in fishing methods or technology that may 
increase or decrease incidental mortality and serious injury.
    (b) Observer program. Pursuant to paragraph (a) of this section, 
the Assistant Administrator may place observers aboard Category I and 
II vessels as necessary. Observers may, among other tasks:
    (1) Record incidental mortality and injury, or bycatch of other 
target species;
    (2) Record numbers of marine mammals sighted; and
    (3) Perform other scientific investigations, which may include, but 
are not limited to, sampling and photographing incidental mortalities 
and serious injuries.
    (c) Observer requirements for Authorization Certificate holders. 
(1) If requested by NMFS or a designated contractor providing observer 
services to NMFS, an Authorization Certificate holder engaged in a 
Category I or II fishery must take aboard an observer to accompany the 
vessel on fishing trips.
    (2) After being notified by NMFS, or by a designated contractor 
providing observer services to NMFS, that the vessel is required to 
carry an observer, the Authorization Certificate holder must comply 
with the notification by providing information requested within the 
specified time on scheduled or anticipated fishing trips.
    (3) NMFS, or a designated contractor providing observer services to 
NMFS, may waive the observer requirement based on a finding that the 
facilities for housing the observer or for carrying out observer 
functions are so inadequate or unsafe that the health or safety of the 
observer or the safe operation of the vessel would be jeopardized.
    (4) The Authorization Certificate holder and crew must cooperate 
with the observer in the performance of the observer's duties 
including:
    (i) Providing adequate accommodations;
    (ii) Allowing for the embarking and debarking of the observer as 
specified by NMFS personnel or designated contractors. The operator of 
a vessel must ensure that transfers of observers at sea are 
accomplished in a safe manner, via small boat or raft, during daylight 
hours if feasible as weather and sea conditions allow, and with the 
agreement of the observer involved;
    (iii) Allowing the observer access to all areas of the vessel 
necessary to conduct observer duties;
    (iv) Allowing the observer access to communications equipment and 
navigation equipment, when available on the vessel, as necessary to 
perform observer duties;
    (v) Providing true vessel locations by latitude and longitude, 
accurate to the minute, or by loran coordinates, upon request by the 
observer;
    (vi) Sampling marine mammal specimens, upon request by NMFS 
personnel;
    (vii) Sampling, retaining and storing mammal specimens, upon 
request by NMFS personnel, designated contractors, or the onboard 
observer if adequate facilities are available and if feasible;
    (viii) Notifying the observer in a timely fashion of when all 
commercial fishing operations are to begin and end;
    (ix) Not impairing or in any way interfering with the research or 
observations being carried out; and
    (x) Complying with other guidelines or regulations that NMFS may 
develop to ensure the effective deployment and use of observers.
    (5) Marine mammals incidentally killed during fishing operations 
that are readily accessible to crew members must be brought aboard the 
vessel as biological specimens and retained for the purposes of 
scientific research if feasible and requested by NMFS personnel, 
designated contractors, or the aboard observer. Marine mammals so 
collected and retained as biological specimens must, upon request by 
NMFS personnel, designated contractors, or the aboard observer, be 
retained in cold storage aboard the vessel, if feasible, until removed 
at the request of NMFS personnel, designated contractors, or the aboard 
observer, retrieved by authorized personnel of NMFS, or released by the 
observer for return to the ocean. Such biological specimens may be 
transported on board the vessel during the fishing trip and back to 
port under this authorization.
    (6) Any marine mammal incidentally taken may be retained only if 
authorized by NMFS personnel, designated contractors or an official 
onboard observer, or by a scientific research permit that is in the 
possession of the operator.
    (d) Observer requirements for Category III fisheries. (1) The 
Assistant Administrator may place observers on Category III vessels if 
the Assistant Administrator:
    (i) Believes that the incidental mortality and serious injury of 
marine mammals from such fishery may be 

[[Page 31694]]
contributing to the immediate and significant adverse impact on a 
species or stock listed as a threatened species or endangered species 
under the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.); and
    (ii) Has complied with Sec. 229.9(a)(3)(i) and (ii); or
    (iii) Has the consent of the vessel owner.
    (2) If an observer is placed on a Category III vessel, the vessel 
owner must comply with the requirements of Sec. 229.7(c).
    (e) Alternative observer program. The Assistant Administrator may 
establish an alternative observer program to provide statistically 
reliable information on the species and number of marine mammals 
incidentally taken in the course of commercial fishing operations. The 
alternative observer program may include direct observation of fishing 
activities from vessels, airplanes, or points on shore.


Sec. 229.8  Publication of list of fisheries.

    (a) The Assistant Administrator will publish in the Federal 
Register notice of a proposed revised List of Fisheries on or about 
July 1 of each year for the purpose of receiving public comment. Each 
year, on or about October 1, the Assistant Administrator will publish a 
final revised List of Fisheries, which will become effective January 1 
of the next calendar year.
    (b) The proposed and final revised List of Fisheries will:
    (1) Categorize each commercial fishery based on the definitions for 
Category I, II, and III fisheries set forth in Sec. 229.2; and
    (2) List the marine mammals that interact with commercial fishing 
operations and the estimated number of vessels or persons involved in 
each commercial fishery.
    (c) The Assistant Administrator may publish a revised List of 
Fisheries at other times, after notice and opportunity for public 
comment. The revised final List of Fisheries will become effective no 
sooner than 30 days after publication in the Federal Register.


Sec. 229.9  Emergency regulations.

    (a) If the Assistant Administrator finds that the incidental 
mortality or serious injury of marine mammals from commercial fisheries 
is having, or is likely to have, an immediate and significant adverse 
impact on a stock or species, the Assistant Administrator will:
    (1) In the case of a stock or species for which a take reduction 
plan is in effect,
    (i) Prescribe emergency regulations that, consistent with such plan 
to the maximum extent practicable, reduce incidental mortality and 
serious injury in that fishery; and
    (ii) Approve and implement on an expedited basis, any amendments to 
such plan that are recommended by the Take Reduction Team to address 
such adverse impact;
    (2) In the case of a stock or species for which a take reduction 
plan is being developed,
    (i) Prescribe emergency regulations to reduce such incidental 
mortality and serious injury in that fishery; and
    (ii) Approve and implement, on an expedited basis, such plan, which 
will provide methods to address such adverse impact if still necessary;
    (3) In the case of a stock or species for which a take reduction 
plan does not exist and is not being developed, or in the case of a 
Category III fishery that the Assistant Administrator believes may be 
contributing to such adverse impact,
    (i) Prescribe emergency regulations to reduce such incidental 
mortality and serious injury in that fishery, to the extent necessary 
to mitigate such adverse impact;
    (ii) Immediately review the stock assessment for such stock or 
species and the classification of such commercial fishery under this 
section to determine if a take reduction team should be established; 
and
    (iii) Where necessary to address such adverse impact on a species 
or stock listed as a threatened species or endangered species under the 
Endangered Species Act (16 U.S.C. 1531 et seq.), place observers on 
vessels in a Category III fishery if the Assistant Administrator has 
reason to believe such vessels may be causing the incidental mortality 
and serious injury to marine mammals from such stock.
    (b) Prior to taking any action under Sec. 229.9(a)(1) through (3), 
the Assistant Administrator will consult with the Marine Mammal 
Commission, all appropriate Regional Fishery Management Councils, state 
fishery managers, and the appropriate take reduction team, if 
established.
    (c) Any emergency regulations issued under this section:
    (1) Will take effect immediately upon publication in the Federal 
Register and will remain in effect for no more than 180 days or until 
the end of the applicable commercial fishing season, whichever is 
earlier, except as provided in subsection (d); and
    (2) May be terminated by notice in the Federal Register at an 
earlier date if the Assistant Administrator determines that the reasons 
for the emergency regulations no longer exist.
    (d) If the Assistant Administrator finds that incidental mortality 
and serious injury of marine mammals in a commercial fishery is 
continuing to have an immediate and significant adverse impact on a 
stock or species, the Assistant Administrator may extend the emergency 
regulations for an additional period of not more than 90 days or until 
reasons for the emergency regulations no longer exist, whichever is 
earlier.


Sec. 229.10  Penalties.

    (a) Except as provided for in paragraphs (b) and (c) of this 
section, any person who violates any regulation under this Part shall 
be subject to all penalties set forth in the Act.
    (b) The owner or master of a vessel that fails to comply with a 
take reduction plan shall be subject to the penalties of sections 105 
and 107 of the Act, and may be subject to the penalties of section 106 
of the Act.
    (c) The owner of a vessel engaged in a Category I or II fishery who 
fails to ensure that a decal, or other physical evidence of such 
authorization issued by NMFS, is displayed on, or is in possession of 
the operator of the vessel shall be subject to a penalty of not more 
than $100.
    (d) Failure to comply with take reduction plans or emergency 
regulations issued under part 229 may result in suspension or 
revocation of an Authorization Certificate, and failure to comply with 
a take reduction plan is also subject to penalties of 105 and 107 of 
the Act, and may be subject to the penalties of section 106 of the Act.
    (e) For fishers operating in Category I or II fisheries, failure to 
report all incidental injuries and mortalities within 48 hours of the 
end of each fishing trip, or to comply with requirements to carry an 
observer, will result in suspension, revocation, or denial of an 
Authorization Certificate until such requirements have been fulfilled.
    (f) For fishers operating in Category III fisheries, failure to 
report all incidental injuries and mortalities within 48 hours of the 
end of each fishing trip will subject such persons to the full 
penalties of the Act.
    (g) Suspension, revocation or denial of Authorization Certificates. 
(1) Until the Authorization Certificate holder complies with the 
regulations under this part, the Assistant Administrator shall suspend 
or revoke an Authorization Certificate or deny an annual renewal of an 
Authorization Certificate in accordance with the provisions in 15 CFR 
part 904 if the Authorization Certificate holder: 

[[Page 31695]]

    (i) Fails to report all incidental mortality and serious injury of 
marine mammals as required under Sec. 229.6;
    (ii) Fails to take aboard an observer, if requested by NMFS or its 
designated contractors.
    (2) The Assistant Administrator may suspend or revoke an 
Authorization Certificate or deny an annual renewal of an Authorization 
Certificate in accordance with the provisions in 15 CFR part 904 if the 
Authorization Certificate holder fails to comply with any applicable 
take reduction plan, take reduction regulations, or emergency 
regulations developed under this subpart or subparts B and C of this 
part or if the Authorization Certificate holder fails to comply with 
other requirements of these regulations;
    (3) A suspended Authorization Certificate may be reinstated at any 
time at the discretion of the Assistant Administrator provided the 
Assistant Administrator has determined that the reasons for the 
suspension no longer apply or corrective actions have been taken.


Sec. 229.11  Confidential fisheries data.

    (a) Proprietary information collected under this part is 
confidential and includes information, the unauthorized disclosure of 
which could be prejudicial or harmful, such as information or data that 
are identifiable with an individual fisher. Proprietary information 
obtained under part 229 will not be disclosed, in accordance with NOAA 
Administrative Order 216-100, except:
    (1) To Federal employees whose duties require access to such 
information;
    (2) To state employees under an agreement with NMFS that prevents 
public disclosure of the identity or business of any person;
    (3) When required by court order; or
    (4) In the case of scientific information involving fisheries, to 
employees of Regional Fishery Management Councils who are responsible 
for fishery management plan development and monitoring.
    (5) To other individuals or organizations authorized by the 
Assistant Administrator to analyze this information, so long as the 
confidentiality of individual fishers is not revealed.
    (b) Information will be made available to the public in aggregate, 
summary, or other such form that does not disclose the identity or 
business of any person in accordance with NOAA Administrative Order 
216-100. Aggregate or summary form means data structured so that the 
identity of the submitter cannot be determined either from the present 
release of the data or in combination with other releases.


Sec. 229.12  Consultation with the Secretary of the Interior.

    The Assistant Administrator will consult with the Secretary of the 
Interior prior to taking actions or making determinations under this 
part that affect or relate to species or population stocks of marine 
mammals for which the Secretary of the Interior is responsible under 
the Act.

Subpart B--Takes of Endangered and Threatened Marine Mammals


Sec. 229.20  Issuance of Permits.

    (a) Determinations. During a period of up to 3 consecutive years, 
NMFS will allow the incidental, but not the intentional, taking by 
persons using vessels of the United States or foreign vessels which 
have valid fishing permits issued by the Assistant Administrator in 
accordance with section 204(b) of the Magnuson Fishery Conservation and 
Management Act (16 U.S.C. 1824(b)), while engaging in commercial 
fishing operations, of marine mammals from a species or stock 
designated as depleted because of its listing as an endangered species 
or threatened species under the Endangered Species Act of 1973 if the 
Assistant Administrator determines that:
    (1) The incidental mortality and serious injury from commercial 
fisheries will have a negligible impact on such species or stock;
    (2) A recovery plan has been developed or is being developed for 
such species or stock pursuant to the Endangered Species Act of 1973; 
and
    (3) Where required under regulations in subpart A of this part:
    (i) A monitoring program has been established under Sec. 229.7;
    (ii) Vessels engaged in such fisheries are registered in accordance 
with Sec. 229.4; and
    (iii) A take reduction plan has been developed or is being 
developed for such species or stock in accordance with regulations at 
subpart C of this part.
    (b) Procedures for making determinations. In making any of the 
determinations listed in paragraph (a) of this section, the Assistant 
Administrator will publish a notice in the Federal Register of 
fisheries having takes of marine mammals listed under the Endangered 
Species Act, including a summary of available information regarding the 
fisheries interactions with listed species. Any interested party may, 
within 45 days of such publication, submit to the Assistant 
Administrator written data or views with respect to the listed 
fisheries. As soon as practicable after the end of the 45 days 
following publication, NMFS will publish in the Federal Register a list 
of the fisheries for which the determinations listed in paragraph (a) 
of this section have been made. This publication will set forth a 
summary of the information used to make the determinations.
    (c) Issuance of authorization. The Assistant Administrator will 
issue appropriate permits for vessels in fisheries that are required to 
register under Sec. 229.4 for which determinations under the procedures 
of paragraph (b) of this section.
    (d) Category III fisheries. Vessel owners engaged only in Category 
III fisheries for which determinations are made under the procedures of 
paragraph (b) of this section will not be subject to the penalties of 
this Act for the incidental taking of marine mammals to which this 
subpart applies, as long as the vessel owner or operator of such vessel 
reports any incidental mortality or injury of such marine mammals in 
accordance with the requirements of Sec. 229.6.
    (e) Emergency authority. During the course of the commercial 
fishing season, if the Assistant Administrator determines that the 
level of incidental mortality or serious injury from commercial 
fisheries for which such a determination was made under this section 
has resulted or is likely to result in an impact that is more than 
negligible on the endangered or threatened species or stock, the 
Assistant Administrator will use the emergency authority under 
Sec. 229.9 to protect such species or stock, and may modify any permit 
granted under this paragraph as necessary.
    (f) Suspension, revocation, modification and amendment. The 
Assistant Administrator may temporarily suspend or revoke a permit 
granted under this section if the Assistant Administrator determines 
that the conditions or limitations set forth in such permit are not 
being complied with. The Assistant Administrator may amend or modify, 
after notice and opportunity for public comment, the list of fisheries 
published in accordance with Sec. 229.21(b) whenever the Assistant 
Administrator determines there has been a significant change in the 
information or conditions used to determine such a list.
    (g) Southern sea otters. This subpart does not apply to the taking 
of Southern (California) sea otters. 

[[Page 31696]]


Subpart C--Take Reduction Plan Regulations and Emergency 
Regulations [Reserved]

[FR Doc. 95-14828 Filed 6-15-95; 8:45 am]
BILLING CODE 3510-22-W