[Federal Register Volume 59, Number 43 (Friday, March 4, 1994)]
[Unknown Section]
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From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-4923]


[[Page Unknown]]

[Federal Register: March 4, 1994]


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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[Docket No. 940250-4050; I.D. 122893D]

 

Regulations Governing the Taking of Marine Mammals Incidental to 
Commercial Fishing Operations; Interim Exemption for Commercial 
Fisheries

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

ACTION: Proposed List of Fisheries for calendar year 1994; request for 
comments.

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SUMMARY: NMFS requests comments and further information on the proposed 
List of Fisheries for calendar year 1994 as well as several other 
actions associated with the Interim Exemption for Commercial Fishing 
under the Marine Mammal Protection Act (MMPA).

DATES: Comments must be received on or before April 4, 1994.

ADDRESSES: Send comments to Dr. William W. Fox, Jr., Director, Office 
of Protected Resources, F/PR, National Marine Fisheries Service, 1315 
East-West Highway, Silver Spring, MD 20910 (Attn: Comments on Proposed 
List of Fisheries).

FOR FURTHER INFORMATION CONTACT: Victoria R. Credle, 301-713-2322.

SUPPLEMENTARY INFORMATION: Section 114 of the MMPA establishes an 
interim exemption for the taking of marine mammals incidental to 
commercial fishing operations and requires NMFS to publish and annually 
update a List of Fisheries, along with a list of the marine mammals and 
the number of vessels or persons involved in each such fishery, in 
three categories, as follows:
    (I) A frequent incidental taking of marine mammals;
    (II) An occasional incidental taking of marine mammals; or
    (III) A remote likelihood of, or no known, incidental taking of 
marine mammals.
    Based on Congressional guidance, NMFS interpretation of the 1988 
Amendments, public comment, and meetings and consultations with state 
and Federal agencies, Regional Fishery Management Councils, and other 
interested parties, NMFS published the original List of Fisheries on 
April 20, 1989 (54 FR 16072). NMFS also published an interim rule 
governing the taking of marine mammals incidental to commercial fishing 
operations on May 19, 1989 (54 FR 21910), and a final rule governing 
reporting of the take of marine mammals incidental to commercial 
fishing operations on December 15, 1989 (54 FR 51718).
    On June 14, 1993 (58 FR 32905), NMFS published the interim final 
List of Fisheries for 1993 and requested comments and information on 
the changes contained therein. All comments received were in support of 
the changes to the interim final List of Fisheries. A summary of the 
comments received are provided in the following section. Proposed 
revised changes for the 1994 List of Fisheries are based on the 
classification of fisheries as published in the 1993 interim final List 
of Fisheries.
    The following criteria were used in classifying fisheries in the 
List of Fisheries:
    Category I. There is documented information indicating a 
``frequent'' incidental taking of marine mammals in the fishery. 
``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.
    Category II. (1) There is documented information indicating an 
``occasional'' incidental taking of marine mammals in the fishery, or 
(2) in the absence of information indicating the frequency of 
incidental taking of marine mammals, other factors such as fishing 
techniques, gear used, methods used to deter marine mammals, target 
species, seasons and areas fished, and species and distribution of 
marine mammals in the area suggest there is a likelihood of at least an 
``occasional'' incidental taking in the fishery. ``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, but that there is little likelihood that more than one 
marine mammal will be incidentally taken.
    Category III. (1) There is information indicating no more than a 
``remote likelihood'' of an incidental taking of a marine mammal in the 
fishery, or (2) in the absence of information indicating the frequency 
of incidental taking of marine mammals, other factors such as fishing 
techniques, gear used, methods used to deter marine mammals, target 
species, seasons and areas fished, and species and distribution of 
marine mammals in the area suggest there is no more than a remote 
likelihood of an incidental take in the fishery. ``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.
    Section 114(b)(1)(C) of the MMPA, requires the Assistant 
Administrator for Fisheries, NOAA, to annually publish and request 
comments on proposed revisions to the List of Fisheries to be effective 
for the next calendar year.

Comments Received on the 1993 Interim Final List of Fisheries

    Thirteen comments were received in response to the request for 
comments on the interim final List of Fisheries for 1993. All of the 
comments received were in support of the changes published in the 
interim final List of Fisheries, and are summarized below.
    Alaska Prince William Sound (Eshamy, Coghill, and Unakwik 
districts) Drift Gill Net Fishery and the Alaska Copper River and 
Bering River (adjacent to Prince William Sound) Drift Gill Net Fishery
    Twelve comments were received supporting the split of the former 
Alaska Prince William Sound drift gill net fishery into two separate 
fisheries, based on the difference in take rates in the two areas. All 
comments received also supported the reclassification of the Alaska 
Prince William Sound (Coghill, Eshamy, and Unakwik districts) drift 
gill net fishery from Category I to Category II.

Atlantic, Caribbean, and Gulf of Mexico Tuna, Shark, and Swordfish 
Pair Trawl Fishery

    One comment was received supporting the reclassification of the 
Atlantic, Caribbean, and Gulf of Mexico tuna, shark, and swordfish pair 
trawl fishery from Category II to Category I. The individual making the 
comment also suggested that all pair trawl fisheries be reclassified as 
Category I fisheries. NMFS is aware of only one other pair trawl 
fishery which operated for a short time in the Gulf of Maine, targeting 
groundfish. This fishery has been inactive following issuance of 
emergency regulations published on June 8, 1993 (58 FR 32062). 
Amendment 5 of the New England Groundfish Fishery Management Plan, 
approved on January 3, 1994, contains measures to continue the ban on 
the use of pair trawl gear in this fishery indefinitely. If new 
information is received regarding the use of pair trawl gear in other 
areas, further action will be taken on this recommendation.

Proposed Changes

    1. Recategorize the Alaska Copper River and Bering River (adjacent 
to Prince William Sound) salmon drift gill net fishery from Category I 
(Table 1) to Category II (Table 2).
    Many of the comments received on the 1993 interim final List of 
Fisheries indicated that the take rates given for the Alaska Copper 
River and Bering River (adjacent to Prince William Sound) drift gill 
net fishery were overestimated. Take rates were based on the total 
number of interactions, which included momentary interactions with the 
nets, e.g., animals brushing up against the net or swimming over it, as 
well as serious injuries, and mortalities. Many individuals submitting 
comments noted that if only those interactions resulting in serious 
injuries or mortalities were used to calculate take rates, the take 
rate would be much less than that reported in the interim final List. 
Therefore, NMFS has reviewed the observer data collected in this 
fishery and calculated a revised take rate of 0.56 marine mammal takes 
per 20 days of fishing, based on an estimated 252 serious injuries, and 
kills in 8,883 fishing vessel days. Based on the calculated take rate, 
NMFS proposes reclassification of the Alaska Copper River and Bering 
River (adjacent to Prince William Sound) drift gill net fishery from 
Category I to Category II.
    2. Recategorize the WA, OR Lower Columbia River salmon drift gill 
net fishery from Category I (Table 1) to Category III (Table 3).
    Marine mammal/fishery interaction and incidental take data have 
been collected in this fishery since 1991 under a marine mammal 
observer program that was completed at the end of calendar year 1993. 
Incidental take data have been collected by observers from the two 
major fishing seasons (winter and fall) with approximately 6 percent 
coverage of fishing effort in winter 1991, 4 percent in fall 1991, 10 
percent in winter 1992, 7 percent in fall 1992, and 7 percent in winter 
1993. Percent observer coverage for the fall 1993 fishery is currently 
being estimated, and will be completed after all landing data have been 
reviewed. Only one marine mammal mortality, a harbor seal, was observed 
in 3 years of observations in the fall fisheries (1991, 1992, and 
1993), while a total of 28 marine mammal serious injuries or 
mortalities (24 harbor seals and four California sea lions) were 
observed over the course of 3 years of observations in the winter 
fisheries (1991 through 1993). Based on the observer data from 1991-
winter 1993 (fall 1993 data analysis is underway), less than 0.5 marine 
mammals are taken per vessel per 20 days of fishing in this fishery. 
Based on this, NMFS proposes that the WA, OR Lower Columbia River 
salmon drift gill net fishery be recategorized from Category I to 
Category III.
    3. Recategorize the WA Willapa Bay salmon drift gill net fishery 
from Category I (Table 1) to Category III (Table 3).
    Marine mammal/fishery interaction and incidental take data have 
been collected in this fishery since 1991 under a marine mammal 
observer program that was completed at the end of calendar year 1993. 
Incidental take data have been collected by observers from about 2 to 
13 percent of the fishing effort since 1991. No marine mammal 
mortalities have been observed. Because the incidence of take is rare 
and does not meet the criteria for categorizing fisheries in Category I 
or II, NMFS proposes that the WA Willapa Bay salmon drift gill net 
fishery be recategorized from Category I to Category III.
    4. Recategorize the WA Grays Harbor salmon set and drift gill net 
fishery from Category I (Table 1) to Category III (Table 3).
    Marine mammal/fishery interaction and incidental take data have 
been collected in this fishery since 1991 under a marine mammal 
observer program that was completed at the end of calendar year 1993. 
Incidental take data have been collected by observers from about 4 to 
10 percent of the fishing effort since 1991. Only one marine mammal 
mortality, a harbor seal, has been observed. Because the incidence of 
take is rare and does not meet the one take per vessel per 20 days 
criteria for categorizing fisheries in Category I or II, NMFS proposes 
that the WA Grays Harbor salmon set and drift gill net fishery be 
recategorized from Category I to Category III.
    5. Recategorize all California gill net fisheries (except the CA 
Klamath River gill net fishery, Table 2), based on mesh size of net, by 
adding CA set and drift gill net fisheries that use a stretched mesh 
size of greater than 3.5 inches (8.9 cm) to Category I (Table 1), 
adding set and drift gill net fisheries that use a stretched mesh size 
of 3.5 inches (8.9 cm) or less to Category III (Table 3), dropping all 
other CA set and drift gill net fisheries, including: the CA thresher 
shark and swordfish drift gill net fishery (Table 1), the CA halibut 
set gill net fishery (Table 1), the CA soupfin shark, yellowtail, white 
sea bass set gill net fishery (Table 1), the CA white croaker, bonito, 
and flying fish gill net fishery (Table 2), and redefining the WA, OR, 
CA herring, smelt, shad, sturgeon, bottom fish, mullet, perch, rockfish 
gill net fishery (Table 3) to include only WA and OR.
    Since 1989, the categorization of gill net fisheries in California 
has been based on the species being targeted and the frequency of 
marine mammal mortality. Reviews of information on the rate of marine 
mammal mortality in a range of gill net mesh sizes indicate that larger 
mesh sizes (greater than 3.5 inches or 8.9 cm stretched mesh size) 
entangle marine mammals at a much higher rate than smaller mesh sizes 
(less than 3.5 inches or 8.9 cm stretched mesh size) (Miller 1983, 
Vojkovich 1987, 1988, 1989, Barlow et al. 1992). Observer placement in 
Category I fisheries, as required by the MMPA, could be achieved more 
effectively by evaluating the type of gear that will be used instead of 
the intended target species. Therefore, NMFS proposes that all 
California gill net fisheries (except the CA Klamath River fishery) be 
reclassified based on stretch mesh size, rather than by target species. 
Set or drift gill net vessels that use mesh sizes greater that 3.5 
inches (8.9 cm), such as the CA thresher shark and swordfish drift gill 
net fishery (Table 1), the CA halibut set gill net fishery (Table 1), 
the CA soupfin shark, yellowtail, white sea bass set gill net fishery 
(Table 1) would remain in Table 1 and be subject to the requirements of 
a Category I fishery. Set or drift gill net vessels that use mesh sizes 
less than or equal to 3.5 inches (8.9 cm), such as the CA white 
croaker, bonito, and flying fish gill net fishery (Table 2), and the 
WA, OR, CA herring, smelt, shad, sturgeon, bottom fish, mullet, perch, 
rockfish gill net fishery (Table 3) would be subject to the 
requirements for a Category III fishery.
    6. Recategorize the GME Atlantic salmon aquaculture (net pen) 
fishery from Category III (Table 6) to Category II (Table 5).
    Harbor seals and gray seals are known to interact with salmon net 
pens in the Gulf of Maine (GME), yet the rate at which interactions 
occur may be increasing based on stranding reports and communication 
with net pen owners and their representatives. Recently, the Maine 
Aquaculture Association appealed to NMFS to provide net pen owners with 
a means for limited intentional lethal taking of seals, indicating a 10 
percent loss of salmon due to predation by seals. In their appeal, they 
noted that a ``Predator Control Seminar'' was held in Eastport, Maine, 
in April 1993 to discuss the effectiveness of non-lethal means of 
deterring seals. The group determined that although non-lethal 
deterrence efforts are being employed, ``periodic intentional lethal 
take of individual seals is a necessary tool for the continued success 
of this industry.''
    Owners of salmon net pens have been subject to the reporting 
requirements of a Category III fishery, which require that all lethal 
takes of marine mammals be reported to NMFS within 10 days. However, 
only limited reports of seal mortalities due to salmon net pen 
operations have been received by NMFS since 1989. NMFS is concerned 
that the take rate of marine mammals in salmon net pen operations may 
be greater than previously estimated, and therefore proposes that the 
Gulf of Maine salmon net pen fishery be reclassified from Category III 
to Category II.

Literature Cited

Barlow, J., P. Perkins, and M. Beeson. 1992. Report on pinniped and 
cetacean mortality in California gillnet fisheries: 1990-1991. NMFS 
SWFC Admin. Rep. LJ-92-14.
Miller, D., M. Herder, and J. Scholl. 1983. California marine 
mammal-fishery interaction study, 1979-1981. NMFS SWFC Admin. Rep. 
LJ-83-13C.
Vojkovich, M., R. Reed, and K. Hieb. 1987. Progress report: Southern 
California nearshore gill and trammel net study, 1986. State of 
California, Resources Agency, Dept. of Fish and Game. Marine 
Resources Branch, Long Beach, CA.
Vojkovich, M., K. Miller, and R. Reed. 1988. Progress report: 
Southern California nearshore gill and trammel net study, 1987. 
State of California, Resources Agency, Dept. of Fish and Game. 
Marine Resources Branch, Long Beach, CA.
Vojkovich, M., K. Miller, and D. Aseltine. 1989. Summary of 
nearshore gill net observation data for 1988 and 1989. State of 
California, Resources Agency, Dept. of Fish and Game. Marine 
Resources Branch, Long Beach, CA.

    Dated: February 25, 1994.
Rolland A. Schmitten,
Assistant Administrator for Fisheries.
[FR Doc. 94-4923 Filed 3-3-94; 8:45 am]
BILLING CODE 3510-22-P