[Federal Register Volume 59, Number 169 (Thursday, September 1, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-21645]


[[Page Unknown]]

[Federal Register: September 1, 1994]


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DEPARTMENT OF COMMERCE
[Docket No. 940832-4232; I.D. 080394B]
RIN 0648-AG77

 

Taking of Marine Mammals Incidental to Commercial Fishing 
Operations; Changes to the List of Fisheries Under Section 118 of the 
Marine Mammal Protection Act

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

ACTION: Proposed changes to the List of Fisheries.

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SUMMARY: On April 30, 1994, the Marine Mammal Protection Act (MMPA) was 
amended and a new section 118 was created to govern the taking of 
marine mammals incidental to commercial fishing operations. As required 
by section 118, this notice proposes changes to the list of fisheries, 
classified by frequency of incidental serious injury or mortality of 
marine mammals, and requests comments on the proposed list. Some 
suggestions for revising the criteria under which fisheries are 
classified are also included, with a request for further comments on 
other criteria which should be considered. NMFS intends to publish 
revised classification criteria, based on comments received, and to 
publish another proposed list of fisheries, using the revised criteria.

DATES: Comments on the proposed changes to the list of fisheries and 
suggested revisions to the classification criteria must be received by 
November 30, 1994.

ADDRESSES: Send comments to Patricia Montanio, Chief, Marine Mammal 
Division, Office of Protected Resources, F/PR2, National Marine 
Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910 
(Attn: Comments on Proposed Changes to the List of Fisheries).

FOR FURTHER INFORMATION CONTACT: Victoria R. Credle, Office of 
Protected Resources, 301-713-2322; Steven Zimmerman, Alaska Region, 
907-586-7233; Joe Scordino, Northwest Region, 206-526-6143; James 
Lecky, Southwest Region, 310-980-4020; Doug Beach, Northeast Region, 
508-281-9254; or Jeff Brown, Southeast Region, 813-893-3366.

SUPPLEMENTARY INFORMATION:
    On April 30, 1994, the MMPA was amended and a new section 118 was 
created to govern the taking of marine mammals incidental to commercial 
fishing operations. The provisions of this section will replace the 
current interim exemption system (section 114), when regulations are 
put into effect no later than September 1, 1995.
    The interim exemption system currently requires the owners/
operators of vessels in Category I and II fisheries to register their 
vessels and maintain daily logs of their fishing activities, including 
interactions with marine mammals. Vessels in Category I fisheries are 
also required to carry an observer if requested by NMFS. Owners/
operators of vessels in Category III fisheries are required to report 
all lethal takes of marine mammals within 10 days of return from the 
fishing trip during which the take occurred.
    Category I fisheries, under section 114, are those fisheries that 
have a ``frequent'' take of marine mammals, defined as ``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'' (50 
CFR 229.3(b)(1)). Category II fisheries are those fisheries that have 
an ``occasional'' take of marine mammals, defined as ``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'' (50 CFR 229.3(b)(2)). Category III fisheries are 
those fisheries that have no more than a ``remote'' likelihood of a 
take of marine mammals, defined as ``highly unlikely that any marine 
mammal will be incidentally taken by a randomly selected vessel in the 
fishery in a 20-day period'' (50 CFR 229.3(b)(3)).
    Section 118(c)(1) of the MMPA requires that the Secretary of 
Commerce publish within 90 days of the enactment of the amendments, any 
necessary changes to the list of commercial fisheries that were 
published under section 114 and which was in existence on March 31, 
1994. These proposed changes must be published in the Federal Register 
for public comment for a period of not less than 90 days. On March 31, 
1994, a proposed list of fisheries for 1994 had just been published (59 
FR 10372, March 4, 1994) and there was a 30-day public comment period 
in effect. The final list of fisheries for 1994 has subsequently been 
published (59 FR 43818, August 25, 1994), and will remain in effect 
until it is replaced by a revised list developed under the provisions 
of section 118, which is to occur no later than September 1, 1995.
    Under section 118(c)(1), fisheries will be categorized with respect 
to a fishery's frequency of incidental marine mammal mortalities or 
serious injuries due to commercial fishing operations. This differs 
from section 114 in that non-injurious takes, such as entanglements and 
harassments, will not be included in the revised classification 
criteria.
    For the purpose of meeting the statutory deadline specified by the 
amendments to the MMPA, NMFS is using the current list of fisheries, 
developed under section 114 of the MMPA, as the basis for proposed 
changes to the list of fisheries under section 118. Realizing, however, 
that certain elements of the existing criteria may be inconsistent with 
section 118, these criteria are being considered for revision in the 
Criteria section of this document. Revisions to the criteria suggested 
by this document should not be considered final or exhaustive, as NMFS 
is using this opportunity to solicit alternative classification schemes 
through the public comment process. NMFS expects to publish proposed 
changes to the classification criteria along with a proposed list of 
fisheries based on those revised criteria, and request for comments by 
early 1995.

Proposed Changes to the 1994/1995 List of Fisheries

    One change to the current criteria required by section 118 of the 
MMPA is the type of interaction used to calculate the take rate of 
marine mammals. Under section 114, takes included harassments, 
entanglements, injuries, and mortalities. Under the new section 118, 
only incidental serious injuries and mortalities are considered, and 
intentional serious injuries and mortalities are prohibited. The 
proposed changes to the current list are based on the assumption that 
the prohibition on intentional serious injuries or mortalities will 
result in a reduced take rate.
    Other changes to the current criteria being considered by NMFS, as 
outlined in the next section, may affect the future reclassification of 
fisheries. Therefore, changes proposed here should be considered 
preliminary and subject to further revision.
    1. Reclassify the Alaska Prince William Sound (NMFS Statistical 
Area 649) sablefish longline/set line fishery from Category II (Table 
2) to Category III (Table 3).
    Dahlheim (1988) and Matkin (1986, 1987) indicate losses of three 
killer whales from the AB pod during 1985, three in 1986, and one each 
in 1987 and 1988. Hall and Cornell (1986) documented that several 
killer whales in the AB pod in Prince William Sound showed evidence of 
bullet wounds. Missing animals were presumed dead and the mortalities 
were believed to have been the result of intentional takes by certain 
participants in the sablefish longline fishery, as this fishery lost an 
estimated 25 percent of its potential blackcod catch due to killer 
whale predation.
    The exclusion of intentional serious injuries and mortalities under 
section 118 will result in only a remote likelihood of an incidental 
serious injury or mortality in this fishery (i.e., it is highly 
unlikely that any marine mammal will be taken by incidental serious 
injury or mortality by a randomly selected vessel in the fishery during 
a 20-day period). Therefore NMFS proposes to reclassify this fishery 
from Category II to Category III, based on the assumption that the 
intentional use of firearms in this fishery will be halted.
    2. Reclassify the Alaska Southern Bering Sea, Aleutian Islands 
(NMFS Statistical Reporting Areas 517, 518, 519, 540), and Western Gulf 
of Alaska (NMFS Statistical Reporting Area 610 West of 165 deg. W. 
sablefish longline/set line fishery from Category II (Table 2) to 
Category III (Table 3).
    Dahlheim (1988) indicated fishery interactions with killer whales 
in 20 percent of sablefish sets in 1988 in the area of Unimak Pass west 
to Seguam Pass and north to the Pribilof Islands. Some mortalities were 
believed to occur as a result of intentional takes by participants in 
the sablefish longline fishery.
    The exclusion of intentional serious injuries and mortalities under 
section 118 will result in only a remote likelihood of an incidental 
serious injury or mortality in this fishery (i.e., it is highly 
unlikely that any marine mammal will be taken by incidental serious 
injury or mortality by a randomly selected vessel in the fishery during 
a 20-day period). Therefore NMFS proposes to reclassify this fishery 
from Category II to Category III, based on the assumption that the 
intentional use of firearms in this fishery will be halted.
    3. Reclassify the Oregon and California south of 45 deg.46'00'' 
(Cape Falcon, OR) salmon troll fishery from Category II (Table 2) to 
Category III (Table 3).
    Previous take rate estimates included serious injuries and 
mortalities resulting from intentional deterrence actions using 
firearms. Intentional serious injuries and mortalities will be 
prohibited under section 118. The only estimates of current intentional 
take levels available for this fishery are from fishers' logbooks. 
Logbook reports indicate that there were 14,897 harassments, 275 
injuries, and 182 mortalities due to deterrence actions in 1990, and 
9,134 harassments, 74 injuries, and 83 mortalities due to deterrence 
actions in 1991. The prohibition on intentional serious injuries and 
mortalities under section 118 will result in a remote likelihood of an 
incidental serious injury or mortality in this fishery (i.e., it is 
highly unlikely that any marine mammal will be taken by incidental 
serious injury or mortality by a randomly selected vessel in the 
fishery during a 20-day period). Therefore, NMFS proposes to reclassify 
this fishery from Category II to Category III, based on the assumption 
that the intentional use of firearms in this fishery will be halted.
    4. Reclassify the Gulf of Maine salmon aquaculture (net pen) 
fishery from Category II (Table 5) to Category III (Table 6).
    Previous take rate estimates included serious injuries and 
mortalities resulting from intentional deterrence actions using 
firearms. Intentional serious injuries and mortalities will be 
prohibited under section 118. The prohibition on intentional serious 
injuries and mortalities under section 118 will result in a remote 
likelihood of an incidental serious injury or mortality in this fishery 
(i.e., it is highly unlikely that any marine mammal will be taken by 
incidental serious injury or mortality by a randomly selected vessel in 
the fishery during a 20-day period). Therefore, NMFS proposes to 
reclassify this fishery from Category II to Category III, based on the 
assumption that the intentional use of firearms in this fishery will be 
halted.

Suggested Revisions to the Classification Criteria

    The provisions of section 118 of the MMPA differ in many respects 
from the Interim Exemption for Commercial Fisheries (section 114). 
Therefore, NMFS believes that the criteria used to determine whether a 
fishery has a ``frequent'', ``occasional'', or ``remote likelihood'' of 
an incidental serious injury or mortality due to commercial fishing 
operations should be reviewed and revised. The following is a 
discussion of possible areas that should be considered for revision, 
yet this is by no means an exhaustive list of possible changes. The 
rationale for suggesting changes to the criteria is based, in part, on 
the intent of Congress to improve efforts to identify and address the 
most significant problems involving incidental mortality and serious 
injury of marine mammals in commercial fishing operations.
    This document represents the first step in revising the current 
criteria used to classify fisheries in order to be consistent with 
section 118. Comments received on this document will be used to revise 
and refine criteria, which are expected to be published in early 1995. 
Final criteria for classifying fisheries will be published prior to the 
September 1, 1995 statutory deadline, in conjunction with regulations 
to implement other parts of section 118. For the purposes of beginning 
discussion on this matter, the following are provided for 
consideration:
    1. Definition of a ``Fishery''. Under section 114, NMFS defined 
fisheries by gear type, geographical area, and target species, in 
accordance with existing state or Federal management designations. 
However, for many fisheries, it is difficult to obtain information 
about the use of specific gear types, geographical areas, or seasons 
when fishery management plans or state fishery permits do not 
consistently identify fisheries using these parameters. Also, in order 
to concentrate management actions on fishery hot spots or hot seasons, 
criteria could be made flexible to address the significantly different 
take rates of marine mammals in certain areas or at certain seasons. 
NMFS is considering partitioning fisheries as necessary to reflect 
concentrations of marine mammals in certain areas within a fishery or 
at certain times of the year.
    Also, classifying fisheries according to the target species of the 
catch may not be appropriate in multi-species fisheries which use an 
opportunistic fishing method (i.e., fishers will adapt gear depending 
on the availability of different species at different times). 
Therefore, NMFS is also considering defining fisheries by the mesh size 
of the gear or some other gear characteristic which is not related to 
target species.
    2. Take Estimates. The classification criteria developed to 
implement section 114 were based on an interaction rate (frequent, 
occasional, or remote likelihood) of marine mammals with a randomly 
selected vessel in a fishery during a 20-day period. This ``by-vessel'' 
take rate criteria works well in fisheries that have well defined, 
consistent daily effort by all of the fishing vessels within a fishery. 
However, for many fisheries, fishing effort may vary daily and from 
vessel to vessel. In addition, it may be difficult to compare one 
vessel's fishing effort with another vessel in the same fishery. 
Therefore, NMFS is considering classifying fisheries using alternative 
methods.
    One possible method is to classify fisheries by the total number of 
serious injuries and mortalities in a fishery per year, in order to 
assess the impact of a fishery on a particular stock or stocks of 
marine mammals. For example, the annual incidental take of a stock 
could be considered in terms of its take relative to the Potential 
Biological Removal (PBR) of the stock. Fisheries that have a 
``frequent'' take of marine mammals could be defined as having an 
incidental serious injury and mortality of equal to or greater than 50 
percent of the PBR for the stock; fisheries that have an ``occasional'' 
take of marine mammals could be defined as having an incidental serious 
injury and mortality of between 1 and 49 percent of the PBR for the 
stock; fisheries that have only a ``remote likelihood'' of a take of 
marine mammals could be defined as having an incidental serious injury 
and mortality of less than 1 percent of the PBR for the stock. This 
method should reference the total fishing effort in each fishery, so 
that the number of incidental serious injuries and mortalities can be 
considered relative to that total effort. The variation in fishing 
effort between vessels in a fishery must also be considered, as well as 
the variation between fisheries. This measure of effort should be based 
on common parameters that can be applied across a fishery, such as the 
duration of a trawl or set; the number of trawls or sets per day, 
season, or year; the size of the gear being deployed; the number of 
nets used per vessel; the number of net pens per owner and the size of 
each pen; etc. Separate classification criteria may have to be 
developed for fisheries with different gear types or fishing techniques 
if the most appropriate measures of effort cannot be applied to all 
fisheries.
    NMFS will also consider public comments which propose alternative 
methods of determining take rates based on the ``frequent'', 
``occasional'', and ``remote likelihood'' of incidental serious 
injuries and mortalities of marine mammals due to commercial fishing 
operations. These could address both the short term biological 
significance of fishery impacts on marine mammal stocks, and/or the 
applicability of a method towards assessing the long-term goal of 
reducing serious injuries and mortalities to levels approaching zero 
(Zero Mortality Rate Goal).
    3. Intentional Takes. Under section 118(a)(5), intentional serious 
injuries and mortalities of marine mammals in the course of commercial 
fishing operations are prohibited. Although certain intentional takes 
are currently authorized for some pinniped species under section 114 
(after other non-lethal methods have been tried and found to be 
ineffective), all intentional lethal takes will be illegal when the 
section 118 regime is implemented. Any such takes by fishers will be 
subject to the penalties of the MMPA. NMFS is launching a public 
outreach and education campaign to inform fishers of changes in the 
MMPA. The NMFS is requesting comments on how to factor in intentional 
serious injuries and mortalities if they continue to occur after the 
section 118 regime is implemented.
    4. Treaty Indian Fisheries. NMFS is considering exclusion of the 
Pacific Northwest treaty Indian tribal fisheries from the list of 
fisheries. The Category I and II fisheries that have treaty Indian 
tribe involvement are the northern Washington coastal (area 4 and 4A) 
salmon set-net fishery, the Washington Puget Sound Region and inland 
waters south of the U.S.-Canada border set-net and drift gillnet salmon 
fishery, and the Washington coastal river set-net salmon fishery. The 
1994 amendments to the MMPA state:

    Nothing in this Act, including any amendments to the Marine 
Mammal Protection Act of 1972 made by this Act--alters or is 
intended to alter any treaty between the United States and one or 
more Indian tribes.

    This provision suggests that existing treaty Indian fishing and 
hunting rights are not affected by the MMPA, and that tribal fisheries 
should be conducted under authority of the Indian treaties rather than 
the MMPA. Therefore, the MMPA's mandatory registration systems may not 
apply to treaty Indian fishers operating in their usual and accustomed 
fishing areas. Since inclusion of the treaty Indian fisheries in the 
list of fisheries establishes the obligation to obtain an MMPA 
registration under section 118, NMFS is considering the deletion of 
references to tribal fisheries in the list of fisheries, and the 
removal of the registration requirement for Category I or II treaty 
Indian tribe fisheries. The tribes have cooperated, and indicate that 
they will continue to cooperate, with NMFS in gathering and submitting 
data on interactions of their fisheries with marine mammals so that the 
health of the affected stocks can be monitored.
    5. Applicability to Zero Mortality Rate Goal. One of the objectives 
of the 1994 amendments to the MMPA was to ensure:

     ....that the procedures for authorizing the incidental taking 
of marine mammals in commercial fisheries is consistent with the 
long term objective of reducing incidental mortality and serious 
injury from commercial fishing operations to insignificant rates 
approaching zero.

    (Senate section-by-section analysis of S. 1636, March 25, 1994). 
NMFS is considering the development of criteria that could be used in 
the assessment of a fishery's progress in achieving the zero mortality 
rate goal, and whether the criteria used to classify fisheries may be 
used to make that assessment.

Other Suggested Changes to Improve the Classification System

    The lack of availability of information on marine mammal takes and 
fishery effort in many fisheries continues to restrict efforts to 
calculate a take per unit effort, or take rate, in order to classify 
fisheries. Under the Interim Exemption for Commercial Fisheries 
(section 114), information was obtained on take rates using three 
methods. The first method involved the collection of information from 
vessel owners participating in Category I and II fisheries in the form 
of logbooks. The accuracy of this information varied from fishery to 
fishery and from vessel owner to vessel owner, and the time delay in 
receiving and processing this information limited its usefulness from a 
quantitative standpoint. The second method relied on the placement of 
observers on a sample of vessels in 15 different Category I fisheries, 
providing more accurate yet costly information on marine mammal take 
rates. The third method for collecting information was in the form of a 
handful of marine mammal mortality reports received from vessel owners 
in Category III fisheries. Unfortunately, no information was provided 
on fishing effort with these reports. Limitations associated with each 
of these methods have resulted in less than adequate information on 
take rates for a number of fisheries.
    Under section 118, the reporting of serious injuries and 
mortalities by commercial fishers will be required, yet there is no 
consistent means by which to obtain information on fishing effort. NMFS 
is considering methods to increase the accuracy and timeliness of 
information on marine mammal takes and fishery effort. One possible 
method may be the development of working groups composed of Federal and 
state resource managers, marine mammal stranding network members, 
commercial fishers, and others with a knowledge of marine mammal 
interaction rates with commercial fishing operations. The focus of 
these working groups would be the development of fishery profiles (gear 
used, seasons, etc.), identification and evaluation of existing sources 
of information (logbooks, landing receipts, stranding data, etc.), and 
the identification of fisheries for which little information exists, 
yet which are suspected of having occasional or frequent incidental 
serious injuries or mortalities of marine mammals. These fisheries will 
be given high priority when determining the placement of observers.
    NMFS is soliciting comments on other possible methods by which the 
accuracy and timeliness of information on marine mammal incidental 
serious injuries and mortalities, and fishing effort, might be 
improved.

References

    Dahlheim, M.E. 1988. Killer whale (Orcinus orca) depredation on 
longline catches of sablefish (Anoplopoma fimbria) in Alaskan waters. 
NWAFC Processed Report 88-14. Northwest and Alaska Fisheries Center, 
NMFS U.S. Dep. of Comm.
    Hall, J.D., and L.H. Cornell. 1986. Killer whales of Prince William 
Sound, Alaska; results of 1985 field research. Sea World Tech. Contrib. 
8611C, 15p.
    Matkin, C.O. 1986. Killer whale interactions with the sablefish 
longline fishery in Prince William Sound, Alaska, 1985, with comments 
on the Bering Sea. Unpubl. Rep. to the National Marine Fisheries 
Service, Juneau, AK, contract 40-HANF-6-00068, 10 p. Available from the 
National Marine Mammal Laboratory, 7600 Sand Point Way NE., Seattle, WA 
98115.
    Matkin, C.O., G. Ellis, O. von Ziegesar, and R. Steiner. 1987. 
Killer whales and longline fisheries in Prince William Sound, Alaska, 
1986. Unpubl. Rep. to the Northwest and Alaska Fisheries Center, 
contract 40ABNF6 2262, 19 p. Available from the National Marine Mammal 
Laboratory, 7600 Sand Point Way NE., Seattle, WA 98115.

    Dated: August 26, 1994.
Charles Karnella,
Acting Program Management Officer, National Marine Fisheries Service.
[FR Doc. 94-21645 Filed 8-31-94; 8:45 am]
BILLING CODE 3510-22-F