[Federal Register Volume 59, Number 196 (Wednesday, October 12, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-25150]


[[Page Unknown]]

[Federal Register: October 12, 1994]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 216

[Docket No. 940971-4271; I.D. 082594C] RIN 0648-AH04

 

Taking and Importing of Marine Mammals

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

ACTION: Proposed rule.

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SUMMARY: NMFS issues this proposed rule to clarify that the provisions 
of the Marine Mammal Protection Act (MMPA) that make it unlawful for 
any person or vessel subject to the jurisdiction of the United States, 
intentionally to set a purse seine net on or to encircle any marine 
mammal during any tuna fishing operation, apply to all U.S. citizens 
regardless of the flag of the vessel. This rule also clarifies the 
geographic scope of the prohibition. This action is intended to clarify 
statutory language to further the goals and objectives of the MMPA.

DATES: Comments must be submitted on or before November 14, 1994.

ADDRESSES: All comments concerning this proposed rule should be 
addressed to the Director, Southwest Region, NMFS, 501 W. Ocean Blvd., 
Suite 4200, Long Beach, CA 90802, 310-980-4001.

FOR FURTHER INFORMATION CONTACT: Lt. Dana Wilkes, 310-980-4019.

SUPPLEMENTARY INFORMATION: In 1992, the International Dolphin 
Conservation Act (IDCA) amended the MMPA in several respects, including 
making it unlawful, after February 28, 1994, for any person or vessel 
that is subject to the jurisdiction of the United States, intentionally 
to set a purse seine net on or to encircle any marine mammal during any 
tuna fishing operation. The IDCA provides two relevant exceptions to 
these prohibitions: (1) As necessary for scientific research; and (2) 
as authorized by the general permit that was issued to the American 
Tunaboat Association on December 1, 1980.
    The taking of marine mammals by U.S. purse seine vessels fishing 
for yellowfin tuna in the eastern tropical Pacific Ocean (ETP) is 
regulated by NMFS, pursuant to the MMPA, because purse seine fishing 
for yellowfin tuna in the ETP has frequently involved the setting on, 
encircling, and capturing of dolphins as part of the fishing operation. 
Earlier this year, NMFS determined that the dolphin mortality quota 
prescribed under the MMPA for vessels under the American Tunaboat 
Association general permit (which covers only U.S.-flag vessels) had 
been reached and, on February 8, 1994, closed the tuna fishery in the 
ETP involving the intentional setting on or encirclement of marine 
mammals to U.S.-flag vessels (59 FR 8417, February 27, 1994).
    As a result of a written inquiry and a subsequent lawsuit by U.S. 
citizens working aboard foreign-flag purse seine vessels, NMFS learned 
earlier this year that U.S. citizens are involved in the ETP purse 
seine yellowfin tuna fishery involving the intentional setting on and 
encirclement of marine mammals as captains and crew members on foreign-
flag vessels. For the purposes of the prohibitions that were added to 
the MMPA by the IDCA, NMFS considers ``any person subject to the 
jurisdiction of the United States'' to include any U.S. citizen aboard 
a fishing vessel, regardless of the flag of the vessel, located within 
the territorial sea of the United States, the U.S. exclusive economic 
zone (EEZ), on the high seas, or seaward of the territorial seas of 
foreign nations. Therefore, U.S. citizens in other nations' EEZs, but 
seaward of the territorial seas of any nation, are subject to the 
prohibitions of the MMPA. The highest priority in enforcing these 
prohibitions will be against those U.S. citizens, such as captains or 
fish captains, who are in charge of or actually control fishing 
operations involving the setting on and encirclement of marine mammals. 
A lower priority in enforcing these prohibitions will be against crew 
members who are not in a position of authority involving the conduct of 
fishing operations.
    NMFS will continue to enforce all other prohibitions governing the 
taking of marine mammals incidental to tuna purse seine fishing 
operations, as well as all other prohibitions under the MMPA, within 
waters subject to the jurisdiction of the United States, on the high 
seas, and seaward of the territorial seas of foreign nations. This area 
includes all of the ETP seaward of foreign nations' territorial seas. 
The MMPA and NMFS regulations define ``taking'' to include the 
harassment, hunting, capturing, or killing of any marine mammal, or the 
attempt to do so. Violators of the MMPA and the implementing 
regulations are subject to criminal and civil penalties.
    This rule proposes to amend 50 CFR 216.24(a) to make clear that the 
MMPA prohibitions on intentionally setting on and encircling marine 
mammals during tuna purse seine vessel fishing operations apply to all 
U.S. citizens regardless of the flag of the vessel. In addition, the 
notice proposes to revise the language describing ``prohibited taking'' 
found at Sec. 216.11 to make clear that the prohibition does not apply 
to the territorial seas of foreign nations, but applies seaward of 
them.

Classification

    This rule proposes to revise MMPA regulations to conform to an 
existing statutory prohibition that became effective pursuant to the 
IDCA on March 1, 1994. The proposed rule would not establish any new 
prohibitions or requirements. The Assistant General Counsel for 
Legislation and Regulation of the Department of Commerce has certified 
to the Chief Counsel for Advocacy of the Small Business Administration 
that the proposed modifications to the regulations, if adopted, would 
not have a significant impact on a substantial number of small 
entities.
    This rule has been determined to be not significant for purposes of 
E.O. 12866.

List of Subjects in 50 CFR Part 216

    Administrative practice and procedure, Imports, Indians, Marine 
mammals, Penalties, Reporting and record keeping requirements, 
Transportation.

    Dated: October 5, 1994.
Gary C. Matlock,
Program Management Officer, National Marine Fisheries Service.
    For the reasons set out in the preamble, part 216 is proposed to be 
amended as follows:

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

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

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

    2. In Sec. 216.11, paragraphs (b) and (c) are redesignated as 
paragraphs (c) and (d) respectively; the introductory text is revised 
and a new paragraph (b) is added to read as follows:


Sec. 216.11  Prohibited taking.

    Except as otherwise provided in subparts C, D, and I of this part 
216, or in part 228 or 229, it is unlawful for:
* * * * *
    (b) Any person, vessel, or conveyance subject to the jurisdiction 
of the United States to take any marine mammal seaward of the 
territorial sea of any foreign nation, or
* * * * *
    3. In Sec. 216.24, paragraphs (a)(2) and (a)(3) are redesignated as 
paragraphs (a)(3) and (a)(4), respectively, and a new paragraph (a)(2) 
is added to read as follows:


Sec. 216.24  Taking and related acts incidental to commercial fishing 
operations.

    (a) * * *
    (2) It is unlawful for any person or vessel that is subject to the 
jurisdiction of the United States, including any citizen of the United 
States who is aboard a vessel operating under a foreign flag or under 
no flag, intentionally to set a purse seine net on or to encircle any 
marine mammal during any tuna fishing operation in waters under the 
jurisdiction of the United States, or on the high seas, or seaward of 
the territorial sea of any foreign nation, except:
    (i) As necessary for scientific research approved by the Inter-
American Tropical Tuna Commission; or
    (ii) As authorized by the general permit issued to the American 
Tunaboat Association on December 1, 1980, including any restrictions 
imposed by law.
* * * * *
[FR Doc. 94-25150 Filed 10-11-94; 8:45 am]
BILLING CODE 3510-22-W