SUPPLEMENTARY INFORMATION:

What is the List of Fisheries?

Section 118 of the MMPA requires NMFS to place all U.S. commercial fisheries into one of 3 categories based on the level of incidental mortality and serious injury of marine mammals occurring in each fishery (16 U.S.C. 1387(c)(1)). The classification of a fishery on the LOF determines whether participants in that fishery may be required to comply with certain provisions of the MMPA, such as registration, observer coverage, and take reduction plan requirements. NMFS must reexamine the LOF annually, considering new information in the Marine Mammal Stock Assessment Reports (SARs) and other relevant sources, and publish in the Federal Register any necessary changes to the LOF after notice and opportunity for public comment (16 U.S.C. 1387 (c)(1)(C)).

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

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

Fishery Classification Criteria

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

Tier 1: Tier 1 considers the cumulative fishery mortality and serious injury for a particular stock. If the total annual mortality and serious injury of a marine mammal stock, across all fisheries, is less than or equal to 10 percent of the PBR level of the stock, all fisheries interacting with the stock will be placed in Category III (unless those fisheries interact with other stock(s) for which total annual mortality and serious injury is greater than 10 percent of PBR). Otherwise, these fisheries are subject to the next tier (Tier 2) of analysis to determine their classification.

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

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

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

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

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

Because fisheries are classified on a per-stock basis, a fishery may qualify as one category for one marine mammal stock and another category for a different marine mammal stock. A fishery is typically classified on the LOF at its highest level of classification ( e.g., ( printed page 16900) a fishery qualifying for Category III for one marine mammal stock and for Category II for another marine mammal stock will be listed under Category II). Stocks driving a fishery's classification are denoted with a superscript “1” in Tables 1 and 2.

Other Criteria That May Be Considered

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

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

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

The LOF includes a list of marine mammal species and/or stocks incidentally killed or injured in each commercial fishery. The list of species and/or stocks incidentally killed or injured includes “serious” and “non-serious” documented injuries as described later in the List of Species and/or Stocks Incidentally Killed or Injured in the Pacific Ocean and List of Species and/or Stocks Incidentally Killed or Injured in the Atlantic Ocean, Gulf of Mexico, and Caribbean sections. To determine which species or stocks are included as incidentally killed or injured in a fishery, NMFS annually reviews the information presented in the current SARs and injury determination reports. SARs are brief reports summarizing the status of each stock of marine mammals occurring in waters under U.S. jurisdiction, including information on the identity and geographic range of the stock, population statistics related to abundance, trend, and annual productivity, notable habitat concerns, and estimates of human-caused mortality and serious injury (M/SI) by source. The SARs are based upon the best available scientific information and provide the most current and inclusive information on each stock's PBR level and level of interaction with commercial fishing operations. The best available scientific information used in the SARs and reviewed for the 2023 LOF generally summarizes data from 2015-2019. NMFS also reviews other sources of new information, including injury determination reports, bycatch estimation reports, observer data, logbook data, stranding data, disentanglement network data, fishermen self-reports ( i.e., MMPA mortality/injury reports), and anecdotal reports from that time period. In some cases, more recent information may be available and used in the LOF.

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

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

The best available information on the level of observer coverage and the spatial and temporal distribution of observed marine mammal interactions is presented in the SARs. Data obtained from the observer program and observer coverage levels are important tools in estimating the level of marine mammal mortality and serious injury in commercial fishing operations. Starting with the 2005 SARs, each Pacific and Alaska SAR includes an appendix with detailed descriptions of each Category I and II fishery on the LOF, including the observer coverage in those fisheries. For Atlantic fisheries, this information can be found in the LOF Fishery Fact Sheets. The SARs do not provide detailed information on observer coverage in Category III fisheries because, under the MMPA, Category III fisheries are not required to accommodate observers aboard vessels due to the remote likelihood of mortality and serious injury of marine mammals. Fishery information presented in the SARs' appendices and other resources referenced during the tier analysis may include: level of observer coverage; target species; levels of fishing effort; spatial and temporal distribution of fishing effort; characteristics of fishing gear and operations; management and regulations; and interactions with marine mammals. Copies of the SARs are available on the NMFS Office of Protected Resources website at: https://www.fisheries.noaa.gov/​national/​marine-mammal-protection/​marine-mammal-stock-assessment-reports-region. Information on observer coverage levels in Category I, II, and III fisheries can be found in the fishery fact sheets on the NMFS Office of Protected Resources' website: https://www.fisheries.noaa.gov/​national/​marine-mammal-protection/​list-fisheries-summary-tables. Additional information on observer programs in commercial fisheries can be found on the NMFS National Observer Program's website: https://www.fisheries.noaa.gov/​national/​fisheries-observers/​national-observer-program.

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

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

Are high seas fisheries included on the LOF?

Beginning with the 2009 LOF, NMFS includes high seas fisheries in Table 3 of the LOF, along with the number of valid High Seas Fishing Compliance Act (HSFCA) permits in each fishery. As of 2004, NMFS issues HSFCA permits only for high seas fisheries analyzed in accordance with the National Environmental Policy Act (NEPA) and ( printed page 16901) the Endangered Species Act (ESA). The authorized high seas fisheries are broad in scope and encompass multiple specific fisheries identified by gear type. For the purposes of the LOF, the high seas fisheries are subdivided based on gear type ( e.g., trawl, longline, purse seine, gillnet, troll, etc.) to provide more detail on composition of effort within these fisheries. Many fisheries operate in both U.S. waters and on the high seas, creating some overlap between the fisheries listed in Tables 1 and 2 and those in Table 3. In these cases, the high seas component of the fishery is not considered a separate fishery, but an extension of a fishery operating within U.S. waters (listed in Table 1 or 2). NMFS designates those fisheries in Tables 1, 2, and 3 with an asterisk (*) after the fishery's name. The number of HSFCA permits listed in Table 3 for the high seas components of these fisheries operating in U.S. waters does not necessarily represent additional effort that is not accounted for in Tables 1 and 2. Many vessels/participants holding HSFCA permits also fish within U.S. waters and are included in the number of vessels and participants operating within those fisheries in Tables 1 and 2.

HSFCA permits are valid for 5 years, during which time Fishery Management Plans (FMPs) can change. Therefore, some vessels/participants may possess valid HSFCA permits without the ability to fish under the permit because it was issued for a gear type that is no longer authorized under the most current FMP. For this reason, the number of HSFCA permits displayed in Table 3 is likely higher than the actual U.S. fishing effort on the high seas. For more information on how NMFS classifies high seas fisheries on the LOF, see the preamble text in the final 2009 LOF (73 FR 73032; December 1, 2008). Additional information about HSFCA permits can be found at https://www.fisheries.noaa.gov/​permit/​high-seas-fishing-permits.

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

Starting with the 2010 LOF, NMFS developed summary documents, or fishery fact sheets, for each Category I and II fishery on the LOF. These fishery fact sheets provide the full history of each Category I and II fishery, including: (1) when the fishery was added to the LOF; (2) the basis for the fishery's initial classification; (3) classification changes to the fishery; (4) changes to the list of species and/or stocks incidentally killed or injured in the fishery; (5) fishery gear and methods used; (6) observer coverage levels; (7) fishery management and regulation; and (8) applicable TRPs or TRTs, if any. These fishery fact sheets are updated after each final LOF and can be found under “How Do I Find Out if a Specific Fishery is in Category I, II, or III?” on the NMFS Office of Protected Resources' website: https://www.fisheries.noaa.gov/​national/​marine-mammal-protection/​marine-mammal-protection-act-list-fisheries, linked to the “List of Fisheries Summary” table. NMFS is developing similar fishery fact sheets for each Category III fishery on the LOF. However, due to the large number of Category III fisheries on the LOF and the lack of accessible and detailed information on many of these fisheries, the development of these fishery fact sheets is taking significant time to complete. NMFS began posting Category III fishery fact sheets online with the LOF for 2016.

Am I required to register under the MMPA?

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

How do I register, renew and receive my Marine Mammal Authorization Program authorization certificate?

NMFS has integrated the MMPA registration process, implemented through the Marine Mammal Authorization Program (MMAP), with existing state and Federal fishery license, registration, or permit systems for Category I and II fisheries on the LOF. Participants in these fisheries are automatically registered under the MMAP and are not required to submit registration or renewal materials.

In the Pacific Islands, West Coast, and Alaska regions, NMFS will issue vessel or gear owners an authorization certificate via U.S. mail or with their state or Federal license or permit at the time of issuance or renewal. In the Southeast Region, NMFS will issue vessel or gear owners an authorization certificate via U.S. mail automatically at the beginning of each calendar year. In the Greater Atlantic Region, NMFS will issue vessel or gear owners an authorization certificate electronically. The certificate can be downloaded and printed at: https://www.fisheries.noaa.gov/​national/​marine-mammal-protection/​marine-mammal-authorization-program#obtaining-a-marine-mammal-authorization-certificate.

Vessel or gear owners who participate in fisheries in these regions and have not received authorization certificates by the beginning of the calendar year, or with renewed fishing licenses, must contact the appropriate NMFS Regional Office (see FOR FURTHER INFORMATION CONTACT ). Authorization certificates may also be obtained by visiting the MMAP website https://www.fisheries.noaa.gov/​national/​marine-mammal-protection/​marine-mammal-authorization-program#obtaining-a-marine-mammal-authorization-certificate.

The authorization certificate, or a copy, must be on board the vessel while it is operating in a Category I or II fishery, or for non-vessel fisheries, in the possession of the person in charge of the fishing operation (50 CFR 229.4(e)). Although efforts are made to limit the issuance of authorization certificates to only those vessel or gear owners that participate in Category I or II fisheries, not all state and Federal license or permit systems distinguish between fisheries as classified by the LOF. Therefore, some vessel or gear owners in Category III fisheries may receive authorization certificates even though they are not required for Category III fisheries.

Individuals fishing in Category I and II fisheries for which no state or Federal license or permit is required must register with NMFS by contacting their appropriate Regional Office (see ADDRESSES ).

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

In accordance with the MMPA (16 U.S.C. 1387(e)) and 50 CFR 229.6, any vessel owner or operator, or gear owner or operator (in the case of non-vessel fisheries), participating in a fishery listed on the LOF must report to NMFS all incidental mortalities and injuries of marine mammals that occur during commercial fishing operations, regardless of the category in which the fishery is placed (I, II, or III) within 48 hours of the end of the fishing trip or, in the case of non-vessel fisheries, fishing activity. “Injury” is defined in 50 CFR 229.2 as a wound or other physical harm. In addition, any animal that ingests fishing gear or any animal that is released with fishing gear entangling, trailing, or perforating any part of the body is considered injured, ( printed page 16902) regardless of the presence of any wound or other evidence of injury, and must be reported.

Mortality/injury reporting forms and instructions for submitting forms to NMFS can be found at: https://www.fisheries.noaa.gov/​national/​marine-mammal-protection/​marine-mammal-authorization-program#reporting-a-death-or-injury-of-a-marine-mammal-during-commercial-fishing-operations or by contacting the appropriate regional office (see FOR FURTHER INFORMATION CONTACT ). Forms may be submitted via any of the following means: (1) online using the electronic form; (2) emailed as an attachment to nmfs.mireport@noaa.gov; (3) faxed to the NMFS Office of Protected Resources at 301-713-0376; or (4) mailed to the NMFS Office of Protected Resources (mailing address is provided on the postage-paid form that can be printed from the web address listed above). Reporting requirements and procedures are found in 50 CFR 229.6.

Am I required to take an observer aboard my vessel?

Individuals participating in a Category I or II fishery are required to accommodate an observer aboard their vessel(s) upon request from NMFS. MMPA section 118 states that the Secretary is not required to place an observer on a vessel if the facilities for quartering an observer or performing observer functions are so inadequate or unsafe that the health or safety of the observer or the safe operation of the vessel would be jeopardized; thereby authorizing the exemption of vessels too small to safely accommodate an observer from this requirement. However, U.S. Atlantic Ocean, Caribbean, or Gulf of Mexico large pelagic longline vessels operating in special areas designated by the Pelagic Longline Take Reduction Plan implementing regulations (50 CFR 229.36(d)) will not be exempted from observer requirements, regardless of their size. Observer requirements are found in 50 CFR 229.7.

Am I required to comply with any marine mammal TRP regulations?

Table 4 provides a list of fisheries affected by TRPs and TRTs. TRP regulations are found at 50 CFR 229.30 through 229.37. A description of each TRT and copies of each TRP can be found at: https://www.fisheries.noaa.gov/​national/​marine-mammal-protection/​marine-mammal-take-reduction-plans-and-teams. It is the responsibility of fishery participants to comply with applicable take reduction regulations.

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

Information regarding the LOF and the MMAP, including registration procedures and forms; current and past LOFs; descriptions of each Category I and II fishery and some Category III fisheries; observer requirements; and marine mammal mortality/injury reporting forms and submittal procedures; may be obtained at: https://www.fisheries.noaa.gov/​national/​marine-mammal-protection/​marine-mammal-protection-act-list-fisheries, or from any NMFS Regional Office at the addresses listed below:

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

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

NMFS, West Coast Region, Long Beach Office, 501 W Ocean Blvd., Suite 4200, Long Beach, CA 90802-4213, Attn: Dan Lawson;

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

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

Sources of Information Reviewed for the 2023 LOF

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

NMFS also reviewed other sources of new information, including marine mammal stranding and entanglement data, observer program data, fishermen self-reports, reports to the SRGs, conference papers, FMPs, and ESA documents.

The LOF for 2023 was based on, among other things, stranding data; fishermen self-reports; and SARs, primarily the final 2021 SARs, which are based on data from 2015-2019. The SARs referenced in this LOF include: 2020 (86 FR 38991; July 23, 2021) and 2021 (87 FR 47385; August 3, 2022). The SARs are available at: https://www.fisheries.noaa.gov/​national/​marine-mammal-protection/​marine-mammal-stock-assessment-reports-region.

Comments and Responses

NMFS received five comment letters on the proposed LOF for 2023 (87 FR 55348; September 9, 2022). Comments were received from Hawaii Longline Association (HLA), Maine Department of Marine Resources (ME DMR), Maine Lobstermen's Association (MLA), Washington Department of Fish and Wildlife (WDFW) and a member of the public. Responses to substantive comments are below. Comments on actions not related to the LOF are not included. One commenter expressed general support for the rule.

Comments on Commercial Fisheries in the Pacific Ocean

Comment 1: HLA reiterates a previous comment recommending NMFS remove the Main Hawaiian Islands (MHI) insular and Northwestern Hawaiian Islands (NWHI) stocks of false killer whales from the list of species and/or stocks incidentally killed or injured in the Category I Hawaii deep-set longline fishery. HLA notes that (a) the False Killer Whale Take Reduction Plan (FKWTRP) closed the deep-set longline fishery for almost the entire range of the MHI insular stock, (b) since this change was made in 2013 there have been no false killer whale interactions in the fishery, and (c) there has never been a deep-set longline fishery M/SI in the very small area of the stocks' range where the fishery operates. They also state that no information has been presented to the False Killer Whale Take Reduction Team or the Pacific Scientific Review Group suggesting any false killer whale M/SI in the deep-set fishery can reliably be attributed to the MHI insular or NWHI stocks of false killer whales. HLA requests that NMFS remove the MHI insular and NWHI stocks of false killer whales from the list of species and/or stocks incidentally killed or injured in the Category I Hawaii deep-set longline fishery.

Response: This comment has been addressed previously (see 84 FR 22051, May 16, 2019; 85 FR 21079, April 16, 2020; 86 FR 3028, January 14, 2021). The MHI insular stock of false killer ( printed page 16903) whales have been documented via telemetry to move far enough offshore to reach longline fishing areas (Bradford et al., 2015). The MHI insular, Hawaii pelagic, and NWHI stocks have partially overlapping ranges. MHI insular false killer whales have been satellite tracked as far as 115 kilometers (km) from the MHI, while pelagic stock animals have been tracked to within 11 km of the MHI and throughout the NWHI. Thus, M/SI of false killer whales of unknown stock within the stock overlap zones must be prorated to MHI insular, pelagic, or NWHI stocks. Annual bycatch estimates are prorated using a process outlined in detail in the SARs, which account for M/SI that occur within the MHI-pelagic or NWHI-pelagic overlap zones.

For observed fisheries with evidence indicating that undocumented interactions may be occurring ( e.g., fishery has evidence of fisheries interactions that cannot be attributed to a specific fishery, and stranding network data include evidence of fisheries interactions that cannot be attributed to a specific fishery), stocks may be retained on the LOF for longer than five years. For these fisheries, NMFS will review the other sources of relevant information to determine when it is appropriate to remove a species or stock from the LOF. As described in the 2019 LOF (84 FR 22051, May 16, 2019), 6 false killer whale M/SI incidental to the deep-set longline fishery were observed inside the exclusive economic zone (EEZ) around Hawaii, including three that occurred close to the outer boundary of the MHI Longline Fishing Prohibited Area, in close proximity to the outer boundary of the MHI Insular false killer whale stocks' range, which overlaps with areas that are open to deep-set longline fishing. MHI Insular false killer whales have been documented with injuries consistent with fisheries interactions that have not been attributed to a specific fishery (Baird et al., 2014). Additionally, in August 2020, NMFS reopened the Southern Exclusion Zone to Hawaii deep-set longline fishing (85 FR 50959, August 19, 2020).

In addition to the SARs, NMFS also reviews other sources of new information for the LOF, including injury determination reports, bycatch estimation reports, and observer data. In some cases, more recent information may be available and used in the LOF. In January 2019, there was an observed mortality of a false killer whale incidental to the Hawaii deep-set longline fishery that occurred within the range of the NWHI stock. Therefore, NMFS retains both the MHI insular and NWHI false killer whale stocks on the list of species and/or stocks incidentally killed or injured in the Category I Hawaii deep-set longline fishery.

Comment 2: HLA reiterates a previous comment recommending NMFS remove the Central North Pacific stock of humpback whale from the list of species and/or stocks incidentally killed or injured in the Category II Hawaii shallow-set longline fishery. They state that the most recent Central North Pacific humpback whale SAR does not include any M/SI in the HI shallow-set longline fishery in the last 5 years, and the fishery has 100 percent observer coverage.

Response: This comment has been addressed previously (see 86 FR 3028, January 14, 2021). In addition to the M/SI included in the SARs, the LOF references data from injury determination reports, bycatch estimation reports, observer data, logbook data, stranding data, disentanglement network data, fishermen self-reports, and anecdotal reports. In March 2015, there was an observed humpback whale, Central North Pacific stock injury in the Category II Hawaii shallow-set longline fishery. The injury was determined to be non-serious. Due to the observed injury, the Central North Pacific stock of humpback whale is retained on the list of species and/or stocks incidentally killed or injured in the Category II Hawaii shallow-set longline fishery.

Comment 3: WDFW comments that the 2023 LOF proposed rule provides a fishery description for the Category III WA/OR sardine purse seine fishery, but the rule did not include a fishery description for the Category III WA/OR anchovy purse seine fishery. WDFW provided a description for the Category III WA/OR anchovy purse seine fishery.

Response: NMFS thanks WDFW for their review of the fishery descriptions provided in the proposed LOF for 2023 (87 FR 55348; September 9, 2022). The anchovy purse seine fishery in Washington and Oregon is currently associated with the Category III WA/OR herring, anchovy, smelt, squid purse seine or lampara fishery. The fishery description for the WA/OR herring, anchovy, smelt, squid purse seine or lampara fishery was published in the 2022 LOF (86 FR 43491; August 9, 2021). The anchovy purse seine fishery in Washington and Oregon is currently covered and sufficiently described on the LOF.

Comment 4: WDFW recommends NMFS revise the fishery description for the Category III WA/OR mainstem Columbia River eulachon gillnet fishery that was published in the proposed LOF (87 FR 55348; September 9, 2022) as follows.

Distribution: Eulachon (candlefish), which is a member of the typical smelts, are targeted in the Lower Columbia River downstream from Bonneville Dam. The fishery historically occurred throughout the winter and spring, from December 1 to March 31, to supply both the bait demand for sport sturgeon anglers and the fresh food market. In recent years, the fishery has been limited to a total of 8-15 days (primarily in February) by conservative fishery management decisions responding to declining returns and the 2010 ESA-listing.

Gear Description: The fishery is primarily conducted using 2-inch stretched bobber gill nets that are set during the turn of the tide and during the flood tide when the fish are present at intermediate depths. Most nets are suspended below the surface by dropper lines which are adjusted as needed.

Management: Oregon and Washington jointly decide management actions for Columbia River fish and fisheries in the trans-boundary mainstem reaches of the lower basin. Both states manage the fishery under the congressionally approved Columbia River Compact (Compact). The Compact States can open a commercial fishery only with the mutual consent and approbation of both states. The Compact does not restrict the right of either state to adopt regulations that are more conservative than that of the other, though such regulations can be enforced only in the adopting state's waters. Washington commercial fishers are required to have a Columbia River smelt commercial license when targeting eulachon for either human consumption or bait-fishing. Oregon does not require a separate smelt license; however, fishers do have to possess a commercial fishing license and a commercial fishing boat license. If eulachon are targeted only for bait sales, fishers may purchase a bait-fishing license only instead of a commercial fishing license and a commercial fishing boat license.

Response: NMFS thanks WDFW for the careful review of the draft fishery description for the Category III WA/OR mainstem Columbia River eulachon gillnet fishery. Based on the information provided by WDFW, we will incorporate the revised fishery description accordingly.

Comment 5: WDFW recommends NMFS revise the name of the Category III “WA/OR Lower Columbia River (includes tributaries) gillnet” fishery to the “WA/OR Lower Columbia River (includes tributaries) drift net” fishery. They also recommend revising the ( printed page 16904) fishery description published in the proposed LOF (87 FR 55348; September 9, 2022) as follows.

Distribution: The mainstem Columbia River non-treaty commercial drift net fishery historically occurred during multiple seasons (winter, spring, summer, and fall), primarily targeting Chinook (spring, summer, and fall stocks) and coho salmon from the mouth of the Columbia River upstream to Beacon Rock, Washington (approximately 140 river miles). The fishing area is divided into zones of which some, or all, may be open during a specific season. Closed areas exist at many tributary mouths. A depiction of each of the zones can be found at: https://www.dfw.state.or.us/​fish/​OSCRP/​CRM/​docs/​2013/​Columbia%20River%20Commercial%20Zone%201-6%20Map.pdf.

Due to changes in state policies, mainstem winter, spring and summer non-treaty tribal commercial fisheries have effectively not occurred since 2016. The fall fishery is comprised of both Chinook and coho-directed fisheries, with the Chinook-directed fishery currently constrained to Zones 4-5 (described above), and the coho-directed fishery occurring in Zones 1-3. Non-treaty tribal gillnet fisheries occur throughout the year in Select Area fisheries located in-off-channel areas of the Lower Columbia River. Three sites exist on the Oregon side (Youngs Bay, Tongue Point/South Channel, and Knappa/Blind Sloughs) and one in Washington (Deep River). A map of the Select Area fishing sites is available here: https://www.dfw.state.or.us/​fish/​commercial/​docs/​Select%20Area%20Commercial%20Fishing%20Zones%20Map.pdf.

Gear Description: The fall Zone 4-5 fishery is non-mark selective for Chinook and coho. Gear is limited to drift gillnets with a maximum length of 250 fathoms, and a maximum mesh size of 9 3/4 inches. Minimum mesh size varies in the fall with a 9-inch minimum mesh size commonly used in August and 8-inch commonly used in September. Recently, the fall coho-directed fishery has been under mark-selective regulations for coho utilizing live-capture techniques (small-mesh sizes, short net soak time, recovery boxes, live-capture training, etc.). Gear is limited to drift tangle nets with a maximum length of 150 fathoms, a maximum mesh size of 3 3/4 inches, and a maximum soak time of 30 minutes. Fishers are required to complete live-capture training before participating in this fishery. Typically, only hatchery coho and Chinook may be retained.

Management: This is a limited entry fishery, but permits are transferable if certain requirements are met. The fishery is managed by the states of Oregon and Washington within the Columbia River Compact process. Harvest limits are based on annual run sizes, ESA-take limits, hatchery escapement needs, and State policies directing sport-commercial sharing of the resource. Therefore, management occurs in coordination with the Pacific Fisheries Management Council process and take limits are set by NMFS. Chinook and coho salmon are the primary species harvested but shad and white sturgeon (when authorized) may also be harvested and sold. The harvest of steelhead, chum, and green sturgeon is prohibited.

Response: NMFS thanks WDFW for their review of the draft fishery description for the Category III WA/OR Lower Columbia River (includes tributaries) drift gillnet fishery. Based on the information provided by WDFW, NMFS revises the name of this fishery to the “WA/OR Lower Columbia River (includes tributaries) drift net fishery” and incorporates the revised fishery description proposed by WDFW.

Comment 6: WDFW recommends NMFS revise the name of the Category III “WA/OR Lower Columbia River salmon seine” fishery to the “WA/OR Lower Columbia River emerging commercial” fishery. They also recommend revising the fishery description published in the proposed LOF (87 FR 55348; September 9, 2022) as follows.

Distribution: Because the primary purpose of this Emerging Commercial Fishery would be to reduce the abundance of hatchery-origin fall Chinook and coho, the primary fishing area would be in commercial Zones 1-3 of the Lower Columbia River (mouth upstream to river mile 80). The season would likely occur from late-August into October, coinciding with Chinook and coho run timing.

Gear Description: Specifics pertaining to gear configuration of beach seines, purse seines, and pound nets in the Lower Columbia River Emerging Commercial Fishery is one area that requires experimentation as the fishery takes place to address issues related to bycatch, release mortality rates, and economics that complicate implementation. All three gears are legal for commercial use in Oregon and can be used in an Emerging Commercial Fishery in Washington.

Management: WDFW and Oregon Department of Fish and Wildlife are jointly managing this limited-entry fishery via the Columbia River Compact process. An Emerging Fishery license and Experimental Fishery Permit from Washington or an Experimental Gear Permit from Oregon will be needed to participate. To date, these gears have been primarily utilized in a research or limited commercial setting with an Emerging Commercial Fishery limited to 4 to 10 fishers using beach and purse seines in the fall of 2014-2016. An agency observer will be required while fishing is conducted.

Response: NMFS thanks WDFW for their review of the fishery descriptions provided as part of the proposed 2023 LOF. We note that the fishery name and description revisions proposed by WDFW include reference to pound nets, which is a gear type that has not been previously associated with any West Coast commercial fishery on the LOF. As a result, NMFS would like to collect additional information about the use of pound nets in the Lower Columbia River before revising the name and/or fishery description of salmon fisheries in the Lower Columbia River. After collecting additional information, NMFS will reconsider the comments provided by WDFW in a future proposed LOF. In the interim, NMFS notes that an eligible commercial fishery not specifically identified on the LOF, including commercial fisheries permitted by the States of Washington and/or Oregon that may include use of pound nets in the Lower Columbia River, is deemed to be a Category II fishery until the next LOF is published (50 CFR 229.2).

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

Comment 7: ME DMR and MLA reiterate previous comments that the Maine state waters trap/pot fishery should be separated out from the broader Category I Northeast/Mid-Atlantic American lobster trap/pot fishery and classified as a separate and independent Category II fishery. Both ME DMR and MLA cite the rarity of North Atlantic right whales in Maine state waters, lack of attributed right whale entanglements in the Maine lobster fishery in over 15 years, the implementation of additional risk reduction measures via the recent final rule amending the Atlantic Large Whale Take Reduction Plan (ALWTRP), and the ability to differentiate itself from other trap/pot fisheries with gear modifications and monitoring unique to the state of Maine.

ME DMR and MLA note that weak point requirements do not vary by zone in Maine state waters. In May 2022, ME state regulations began requiring that all ( printed page 16905) buoy lines in exempt waters and the sliver area (area between the exemption line and the 3-mile line) have a 1700 pounds (lb) weak insertion 50 percent of the way down the vertical line, or approved 1700 lb breaking strength line in the top 50 percent of the vertical line. They also state that the state of Massachusetts requires additional weak points in vertical lines longer than 120 feet (ft), the same weak point configuration that Maine requires is also required in Massachusetts state waters.

Both commenters also state that since September 2020, a purple state specific gear marking is required to differentiate Maine trap/pot gear from the rest of the fishery. In addition, the ALWTRP requires a Federal green mark. These Maine state marking requirements differentiated the state fishery from the rest of the Category I Northeast/Mid-Atlantic American lobster trap/pot fishery.

They state that the final rule for the 2022 LOF asserted the Maine state lobster trap/pot fishery could not be reclassified as a Category II fishery because it cannot be ruled out as the cause for recent right whale entanglements where gear had been recovered, as that recovered gear was found with red tracers indicating the gear came from the ALWTRP Northern Inshore Trap/Pot fishery that overlaps Maine, New Hampshire, and Massachusetts state waters. ME DMR and MLA note that prior to 2020 there were no gear marking requirements in the Maine exempted waters. Therefore, recent entanglements were not a result of gear set in Maine exempt waters, which is a significant portion of Maine state waters.

Lastly, ME DMR and MLA states that part of NMFS' justification for reclassifying the MA mixed species trap/pot fishery as a Category II fishery was due to the extensive North Atlantic right whale monitoring in MA. In 2020, NMFS Northeast Fisheries Science Center, deployed 8 passive acoustic recorders in Maine state waters. The commenters state that from January 2020 through June 2021 right whales were only detected on 6 days at three locations. They also note that the passive acoustic monitors will remain in their locations for at least the next three years. Maine is also undertaking additional efforts to detect right whales in Maine waters: including acoustic glider projects and broad scale aerial surveys. Therefore, the Maine state waters lobster trap/pot fishery meets the requirements for extensive monitoring and should be reclassified as a Category II fishery.

Response: This comment has been addressed previously (see 87 FR 23122; April 19, 2022). As stated in the final LOF for 2022 (87 FR 23122; April 19, 2022), the state of Massachusetts has made significant changes to their trap/pot regulations, including seasonal closures and gear modifications. These changes differentiate the Massachusetts state waters' trap/pot fishery from the Category I Northeast/Mid-Atlantic American lobster trap/pot and Category II Atlantic mixed species trap/pot fisheries.

On the 2022 LOF, NMFS classified Category II MA mixed species trap/pot fishery based on the regulatory definition (50 CFR 229.2) of a Category II fishery. The classification of the Category II Massachusetts mixed species trap/pot fishery was based on the consideration of several state regulations, which were implemented prior to the 2022 fishing season. Massachusetts implemented extensive seasonal time-area closures that spatially and temporally expanded the Massachusetts Restricted Area to significantly reduce the co-occurrence of the fishery with North Atlantic right whales. Additionally, in Massachusetts state waters, gear requirements include the following: (1) all commercial trap fishermen to fish buoy lines that break when exposed to 1,700 lbs (771 kilograms (kg)) of tension, which can be accomplished through the use of weak rope or weak insertions at 60 ft (18 meters (m)) intervals along the top 75 percent of the buoy line; (2) All commercial trap fishermen to fish buoy lines with a maximum diameter of 3/8 inch (9.5 millimeters (mm)); and (3) state-specific gear marks on all vertical lines. Marks must be red in color, at least 2 ft in length, and spaced no more than 60 ft (18 m) apart. These gear markings are distinct from those used in other states that are different colors, shorter in length, fewer in number and more widely-spaced. As noted in the 2022 LOF final rule (87 FR 23122; April 19, 2022), these combined management measures are supported by extensive monitoring of North Atlantic right whale populations through state and Federal aerial survey effort over Massachusetts' waters. This survey effort is enhanced by additional sighting and entanglement reporting that is gathered from a widespread network of visual observers. These collective measures set this fishery apart from the broader Category I Northeast/Mid-Atlantic American lobster trap/pot, and reduce its risk to North Atlantic right whales.

To separate a Category I fishery into a new fishery due to new regulatory measures, that new fishery should significantly reduce the risk of entanglement of the stock driving the Category I classification with sufficient gear marking to distinguish it from other fisheries. NMFS acknowledges that all lobster and Jonah crab trap/pot fisheries have implemented regulatory measures to reduce risk of entanglement to North Atlantic right whales under the new ALWTRP regulations finalized in 2021 (86 FR 51970; September 17, 2021).

NMFS also recognizes that the state of Maine has expanded acoustic monitoring and commenced visual surveys for marine mammals. However, cumulatively, these current efforts are not sufficient to designate the Maine state lobster fishery as a distinct fishery. Although the state of Maine has initiated monitoring efforts, data are limited in scope. Acoustic monitoring is valuable and indeed confirms that North Atlantic right whales are using Maine waters (NEFSC, 2022; PACM 2022). However, acoustic data cannot inform whale density or abundance estimates, and can only detect the presence of whales if they are vocally active while in the range of the monitoring devices (NEFSC 2022). Detection further varies by species and with physical oceanographic properties and ambient noise (Van Parijs et al., 2021). Detailed information on the distribution and habitat use of North Atlantic right whales is currently lacking, particularly in coastal Maine, and these complex patterns cannot be understood from limited acoustic data and only one month of recent visual surveys. Acoustic monitoring only indicates that North Atlantic right whales are present and vocalizing during the period of surveillance and cannot quantify the abundance of North Atlantic right whales. Ongoing acoustic monitoring plus other surveillance methods, such as long-term visual surveys, will help us better understand North Atlantic right whale distribution and habitat use in Maine waters. Fiscal Year 2023 Congressional appropriations included dedicated funding for improving monitoring in the Gulf of Maine.

Increased visual survey effort can additionally contribute to the collection of entanglement information. Although entanglements are the primary cause of M/SI of large whales, including North Atlantic right whales: (1) exact entanglement locations are infrequently identified (NMFS 2021); (2) the majority of mortalities incidental to gear entanglement are undetected (Pace et al., 2021); and (3) gear is rarely retrieved from an entanglement or attributed to a fishery or gear type (NMFS 2021). Confirmed large whale entanglements ( printed page 16906) have recently occurred in Maine waters, indicated by purple gear markings (4 minke and 3 humpback whales since 2020). It is not possible to determine the origin of prior North Atlantic right whale entanglement cases where no gear was collected or directly observed, or where the retrieved gear was not marked. Therefore, the lack of attributed North Atlantic right whale entanglement in particular areas does not necessarily mean entanglement did not occur there.

For the aforementioned reasons, at this time, NMFS retains the fishery as defined. As we continue to gather more data on whale occurrence and entanglements, NMFS will evaluate whether splitting out the Maine state waters trap/pot fishery from the broader Category I Northeast/Mid-Atlantic American lobster trap/pot fishery is appropriate.

Summary of Changes From the Proposed Rule

Based on public comment, NMFS renames the Category III WA/OR Lower Columbia River (includes tributaries) drift gillnet fishery to the Category III WA/OR Lower Columbia River (includes tributaries) drift net fishery.

Summary of Changes to the LOF for 2023

The following summarizes changes to the LOF for 2023, including the classification of fisheries, fisheries listed, the estimated number of vessels/persons in a particular fishery, and the species and/or stocks that are incidentally killed or injured in a particular fishery. NMFS reclassifies one fishery in the LOF for 2023. NMFS also makes changes to the estimated number of vessels/persons and list of species and/or stocks killed or injured in certain fisheries. The classifications and definitions of U.S. commercial fisheries for 2023 are identical to those provided in the LOF for 2022, with the changes discussed below. State and regional abbreviations used in the following paragraphs include: AK (Alaska), BBES (Barataria Bay Estuarine System), BSAI (Bering Sea, Aleutian Island), CA (California), FL (Florida), Gulf of Alaska (GOA), HI (Hawaii), OR (Oregon), and WA (Washington).

Commercial Fisheries in the Pacific Ocean

Classification of Fisheries

NMFS reclassifies the Category III Hawaii offshore pen culture fishery to Category II fishery.

Fishery Name and Organizational Changes and Clarification

NMFS renames the Category III CA set gillnet (mesh size <3.5 in) fishery to the CA herring set gillnet fishery.

NMFS renames the Category III CA pelagic longline fishery to the West Coast pelagic longline fishery.

Number of Vessels/Persons

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

Category I

• HI deep-set longline fishery from 143 to 150 vessels/persons;

Category II

• HI shallow-set longline fishery from 11 to 14 vessels/persons;
• American Samoa longline fishery from 13 to 18 vessels/persons;
• HI shortline fishery from 5 to 11 vessels/persons;

Category III

• HI inshore gillnet fishery from 29 to 27 vessels/persons;
• HI lift net fishery from 15 to 14 vessels/persons;
• HI throw net, cast net fishery from 15 to 16 vessels/persons;
• HI seine net fishery from 17 to 16 vessels/persons;
• American Samoa tuna troll from 13 to 3 vessels/persons;
• HI troll fishery from 1,380 to 1,293 vessels/persons;
• HI rod and reel fishery from 237 to 246 vessels/persons;
• Commonwealth of the Northern Mariana Islands tuna troll fishery from 40 to 9 vessels/persons;
• Guam tuna troll fishery from 398 to 465 vessels/persons;
• HI kaka line fishery from 5 to 6 vessels/persons;
• HI vertical line fishery from none recorded to 5 vessels/persons;
• HI crab trap fishery from 4 to 3 vessels/persons;
• HI lobster trap fishery from none recorded to less than 3 vessels/persons;
• HI crab net fishery from none recorded to 3 vessels/persons;
• HI kona crab loop net fishery from 20 to 24 vessels/persons;
• American Samoa bottomfish handline fishery from 9 to 6 vessels/persons;
• Commonwealth of the Northern Mariana Islands bottomfish fishery from 11 to 12 vessels/persons;
• Guam bottomfish fishery from 67 to 84 vessels/persons;
• HI bottomfish handline fishery from 385 to 404 vessels/persons;
• HI inshore handline fishery from 206 to 192 vessels/persons;
• HI pelagic handline fishery from 300 to 311 vessels/persons;
• HI bullpen trap fishery from none recorded to less than 3 vessels/persons;
• HI black coral diving fishery from none recorded to less than 3 vessels/persons;
• HI handpick fishery from 25 to 28 vessels/persons;
• HI lobster diving fishery from 12 to 10 vessels/persons;
• HI spearfishing fishery from 82 to 79 vessels/persons;
• CA nearshore finfish trap from 93 to 42 vessels/persons; and
• HI aquarium collecting fishery from 34 to 39 vessels/persons.

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

NMFS corrects an administrative error and adds the HI stock of fin whale and Guadalupe fur seal to the list of species/stocks incidentally killed or injured in the Category II HI shallow-set longline fishery.

NMFS adds the CA breeding stock of Northern elephant seal to the list of species/stocks incidentally killed or injured in the Category II CA Dungeness crab pot fishery.

NMFS adds the Western U.S. stock of Steller sea lion to the list of species/stocks incidentally killed or injured in the Category II AK Gulf of Alaska sablefish longline fishery.

NMFS adds the North Pacific stock of Pacific white-sided dolphin to the list of species/stocks incidentally killed or injured in the Category II AK Bering Sea Aleutian Islands pollock trawl fishery.

NMFS removes the Central North Pacific stock of humpback whale from the list of species/stocks incidentally killed or injured in the Category I HI deep-set longline fishery.

NMFS removes the unknown stock of short-finned pilot whale from the list of species/stocks incidentally killed or injured in the Category II American Samoa longline fishery.

NMFS revises marine mammal stock names on the list of species/stocks incidentally killed or injured for consistency with the current stock names in the SARs as follows:

Category II AK Bristol Bay Salmon Drift Gillnet Fishery

• Spotted seal, AK to spotted seal, Bering;

Category II AK Bristol Bay Salmon Set Gillnet Fishery

• Harbor seal, Bering Sea to harbor seal, Bristol Bay; and
• Spotted seal, AK to spotted seal, Bering. ( printed page 16907)

Following consultation with the U.S. Fish and Wildlife Service, NMFS also revises marine mammal stock names on the list of species/stocks incidentally killed or injured for consistency with the current stock names in the SARs as follows:

Category II CA Halibut/White Seabass and Other Species Set Gillnet (>3.5 in Mesh) Fishery

• Sea otter, CA to southern sea otter, CA; Category II AK Kodiak Salmon Set Gillnet Fishery
• Sea otter, Southwest AK to northern sea otter, Southwest AK;

Category II AK Cook Inlet Salmon Set Gillnet Fishery

• Sea otter, South central AK to northern sea otter, South Central AK;
• Category II AK Prince William Sound Salmon Drift Gillnet Fishery Sea otter, South Central AK to northern sea otter, South Central AK;

Category II CA Spiny Lobster Fishery

• Southern sea otter to southern sea otter, CA, and

Category III AK Prince William Sound Salmon Set Gillnet Fishery

• Sea otter, South central AK to northern sea otter, South Central AK.

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

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

NMFS adds the MS Sound, Lake Borgne, Bay Boudreau stock of bottlenose dolphin to the list of species/stocks incidentally killed or injured in the Category II Gulf of Mexico gillnet fishery.

NMFS adds the Barataria Bay Estuarine System (BBES) stock of bottlenose dolphin to the list of species/stocks incidentally killed or injured in the Category II Southeastern U.S. Atlantic, Gulf of Mexico shrimp trawl fishery.

NMFS adds both the Caloosahatchee River and Waccasassa Bay, Withlacoochee Bay, Crystal Bay stocks of bottlenose dolphin to the list of species/stocks incidentally killed or injured in the Category III Gulf of Mexico blue crab trap/pot fishery.

NMFS adds the Galveston Bay, East Bay, Trinity Bay stock of bottlenose dolphin to the list of species/stocks incidentally killed or injured in the Category III U.S. Atlantic, Gulf of Mexico trotline fishery.

NMFS corrects an administrative error and removes the Northern Gulf of Mexico coastal stock of bottlenose dolphin from the list of species/stocks incidentally killed or injured in the Category II Southeastern U.S. Atlantic, Gulf of Mexico stone crab fishery.

NMFS corrects an administrative error and removes the Eastern Gulf of Mexico coastal stock of bottlenose dolphin from the list of species/stocks incidentally killed or injured in the Category III FL West Coast sardine purse seine fishery.

Commercial Fisheries on the High Seas

Number of Vessels/Persons

NMFS updates the estimated number of HSFCA permits for high seas fisheries (Table 3) as follows:

Category I

• Atlantic highly migratory species longline fishery from 39 to 30 HSFCA permits;
• Western Pacific pelagic (HI deep-set component) longline fishery from 143 to 150 HSFCA permits;

Category II

• Pacific highly migratory species drift gillnet fishery from 5 to 3 HSFCA permits;
• Atlantic highly migratory species trawl fishery from 1 to 0 HSFCA permits;
• Western and Central Pacific Ocean tuna purse seine fishery from 20 to 34 HSFCA permits;
• Western Pacific pelagic purse seine fishery from 1 to 0 HSFCA permits;
• South Pacific albacore troll longline fishery from 6 to 8 HSFCA permits;
• Western Pacific pelagic (HI shallow-set component) longline fishery from 11 to 14 HSFCA permits;
• Atlantic highly migratory species handline/pole and line fishery from 1 to 0 HSFCA permits;
• Pacific highly migratory species handline/pole and line fishery from 44 to 45 HSFCA permits;
• South Pacific albacore troll handline/pole and line fishery from 9 to 7 HSFCA permits;
• Western Pacific pelagic handline/pole and line fishery from 5 to 1 HSFCA permits;
• South Pacific albacore troll fishery from 20 to 24 HSFCA permits;
• Western Pacific pelagic troll fishery from 6 to 7 HSFCA permits;

Category III

• Pacific highly migratory species longline fishery from 111 to 127 HSFCA permits;
• Pacific highly migratory species purse seine fishery from 5 to 2 HSFCA permits;
• Northwest Atlantic trawl fishery from 4 to 3 HSFCA permits; and
• Pacific highly migratory species troll fishery from 107 to 93 HSFCA permits.

List of Species and/or Stocks Incidentally Killed or Injured on the High Seas

NMFS corrects an administrative error and adds the HI stock of rough-toothed dolphin to the list of species/stocks incidentally killed or injured in the Category I Western Pacific Pelagic longline fishery (HI deep-set component).

NMFS removes the Central North Pacific stock of humpback whale from the list of species/stocks incidentally killed or injured in the Category I Western Pacific Pelagic longline fishery (HI deep-set component).

NMFS removes three stocks from the list of species/stocks incidentally killed or injured in the Category II Western Pacific Pelagic longline fishery (HI shallow-set component). The three stocks are: (1) Ginkgo-toothed beaked whale, (2) CA breeding stock of Northern elephant seal and (3) CA/OR/WA stock of short-beaked common dolphin.

NMFS removes the unknown stock of humpback whale from the list of species/stocks incidentally killed or injured in the Category II Western and Central Pacific Ocean tuna purse seine fishery.

NMFS revises the following marine mammal stock names to “unknown” stock on the list of species/stocks incidentally killed or injured in the Category II Western and Central Pacific Ocean tuna purse seine fishery based on more recent observer data:

• Bottlenose dolphin, HI pelagic
• Bryde's whale, HI
• False killer whale, HI pelagic
• Fin whale, HI
• Long-beaked common dolphin, CA
• Minke whale, HI
• Pygmy killer whale, HI
• Sei whale, HI, and
• Sperm whale, HI

List of Fisheries

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

In Tables 1 and 2, the estimated number of vessels or persons participating in fisheries operating within U.S. waters is expressed in terms ( printed page 16908) of the number of active participants in the fishery, when possible. If this information is not available, the estimated number of vessels or persons licensed for a particular fishery is provided. If no recent information is available on the number of participants, vessels, or persons licensed in a fishery, then the number from the most recent LOF is used for the estimated number of vessels or persons in the fishery. NMFS acknowledges that, in some cases, these estimates may be inflations of actual effort. For example, the State of Hawaii does not issue fishery-specific licenses, and the number of participants reported in the LOF represents the number of commercial marine license holders who reported using a particular fishing gear type/method at least once in a given year, without considering how many times the gear was used. For these fisheries, effort by a single participant is counted the same whether the fisherman used the gear only once or every day. In the Mid-Atlantic and New England fisheries, the numbers represent the potential effort for each fishery, given the multiple gear types for which several state permits may allow. Changes made to Mid-Atlantic and New England fishery participants will not affect observer coverage or bycatch estimates, as observer coverage and bycatch estimates are based on vessel trip reports and landings data. Tables 1 and 2 serve to provide a description of the fishery's potential effort (state and Federal). If NMFS is able to gather more accurate information on the gear types used by state permit holders in the future, the numbers will be updated to reflect this change. For additional information on fishing effort in fisheries found on Table 1 or 2, contact the relevant regional office (contact information included above in the section: Where can I find more information about the LOF and the MMAP?).

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

Tables 1, 2, and 3 also list the marine mammal species and/or stocks incidentally killed or injured (seriously or non-seriously) in each fishery based on SARs, injury determination reports, bycatch estimation reports, observer data, logbook data, stranding data, disentanglement network data, fishermen self-reports ( i.e., MMAP reports), and anecdotal reports. The best available scientific information included in these reports is based on data through 2019. This list includes all species and/or stocks known to be killed or injured in a given fishery, but also includes species and/or stocks for which there are anecdotal records of a mortality or injury. Additionally, species identified by logbook entries, stranding data, or fishermen self-reports ( i.e., MMAP reports) may not be verified. In Tables 1 and 2, NMFS has designated those species/stocks driving a fishery's classification ( i.e., the fishery is classified based on mortalities and serious injuries of a marine mammal stock that are greater than or equal to 50 percent (Category I), or greater than 1 percent and less than 50 percent (Category II), of a stock's PBR) by a “1” after the stock's name.

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

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

Classification

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

This rule contains existing collection-of-information (COI) requirements subject to the Paperwork Reduction Act and would not impose additional or new COI requirements. The COI for the registration of individuals under the MMPA has been approved by the OMB under OMB Control Number 0648-0293 (0.15 hours per report for new registrants). The requirement for reporting marine mammal mortalities or injuries has been approved by OMB under OMB Control Number 0648-0292 (0.15 hours per report). These estimates include the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the COI. Send comments regarding these reporting burden estimates or any other aspect of the COI, including suggestions for reducing burden, to NMFS (see ADDRESSES ). You may also submit comments on these or any other aspects of the collection of information at https://www.reginfo.gov/​public/​do/​PRAMain.

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

This rule has been determined to be not significant for the purposes of Executive Orders 12866 and 13563.

In accordance with the Companion Manual for NOAA Administrative Order (NAO) 216-6A, NMFS determined that publishing this LOF qualifies to be categorically excluded from further NEPA review, consistent with categories of activities identified in Categorical Exclusion G7 (“Preparation of policy directives, rules, regulations, and guidelines of an administrative, financial, legal, technical, or procedural nature, or for which the environmental effects are too broad, speculative or conjectural to lend themselves to meaningful analysis and will be subject later to the NEPA process, either collectively or on a case-by-case basis”) of the Companion Manual and we have not identified any extraordinary circumstances listed in Chapter 4 of the Companion Manual for NAO 216-6A that would preclude application of this categorical exclusion. If NMFS takes a management action, for example, through the development of a TRP, NMFS would first prepare an Environmental Impact Statement or Environmental Assessment, as required under NEPA, specific to that action.

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

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

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

References

Baird, R.W., S.D. Mahaffy, A.M. Gorgone, T. Cullins, D.J. McSweeney, E.M. Oelson, A.L. Bradford, J. Barlow, D.L. Webster. 2014. False Killer Whales and Fisheries Interaction in Hawaiian Waters: Evidence for Sex Bias and Variation Among Populations and Social Groups. Marine Mammal Science 31(2): 579-590.

Bradford, A.L., E.M. Oleson, R.W. Baird, C.H. Boggs, K.A. Forney, and N.C. Young. 2015. Revised stock boundaries for false killer whales ( Pseudorca crassidens) in Hawaiian waters. U.S. Department. Commerce, NOAA Technical Memorandum. NOAA-NMFS-PIFSC-47, 29p.

National Marine Fisheries Service (NMFS). 2021. Final Environmental Impact Statement, Regulatory Impact Review, and Final Regulatory Flexibility Analysis for Amending the Atlantic Large Whale Take Reduction Plan: Risk Reduction Rule.

Northeast Fisheries Science Center (NEFSC). 2022. North Atlantic Right Whale Passive Acoustic Detections Report: January-June 2021.

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88 FR 16899