# 60 FR 31666: Taking of Marine Mammals Incidental to Commercial Fishing Operations; Authorization for Commercial Fisheries; Proposed List of Fisheries > Federal · Regulations · In force URL: https://www.frixlaw.com/law-library/statutes/FR_PRORULE_95-14828 ## Section - **Citation:** 60 FR 31666 - **Heading:** Taking of Marine Mammals Incidental to Commercial Fishing Operations; Authorization for Commercial Fisheries; Proposed List of Fisheries - **Jurisdiction:** Federal - **Kind:** Regulations - **Status:** In force - **Text as of:** August 14, 2026 - **Source:** Compiled text - **Location:** Federal Register / Vol. 60 / 60 FR 31666 ## Text 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. ----------------------------------------------------------------------- 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. cidental 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 ATION 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 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 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 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 iate 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 terim 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) ted 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 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 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 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 ntal 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 e 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 ended 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 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 le (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 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 e 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 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) or 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 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 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 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 tality 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 nual 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) ination 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 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 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 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 ec. 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)) 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 0 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. 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 d 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) 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 or 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 ld 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 r 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, 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 n 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 ificate 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 cidental 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 njury 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 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 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 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 bservers 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 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 formation 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 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 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) ng 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 ory 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 r 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 rding 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 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. Justification for Categorization of Commercial Fisheries 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. 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 scriptive 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 dental 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 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 een 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 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 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 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 ous 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) t 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 le 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 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. 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 4 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) raging 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 o 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 s 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 e 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 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 f 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 l [Text truncated at 120,000 characters. 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Check the current official text before relying on it. Not legal advice.