[Federal Register Volume 59, Number 202 (Thursday, October 20, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-25997]


[[Page Unknown]]

[Federal Register: October 20, 1994]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 216

[Docket No. 941088-4288; I.D. 092394B]
RIN 0648-AG33

 

Taking and Importing of Marine Mammals

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

ACTION: Final rule.

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SUMMARY: NMFS issues this final rule to codify Federal District Court 
orders prohibiting the deployment of any purse-seine net on or the 
encirclement with any purse seine net of any school of dolphins within 
a defined area of the eastern tropical Pacific Ocean (ETP) when any 
offshore spotted dolphin (Stenella attenuata) is observed prior to the 
release of the net skiff. This prohibition will result in reduced 
mortality of offshore spotted dolphins as a result of purse seine 
fishing in the ETP. This rule also makes a technical correction to 
scientific names inadvertently transposed in a previous rule.

EFFECTIVE DATE: This final rule is effective October 17, 1994.

FOR FURTHER INFORMATION CONTACT:     LT Dana S. Wilkes, 310-980-4015.

SUPPLEMENTARY INFORMATION: On November 1, 1993, NMFS published a final 
rule declaring the northeastern stock of offshore spotted dolphin 
(Stenella attenuata) to be depleted (58 FR 58285; November 1, 1993), 
under section 3(1) of the Marine Mammal Protection Act (16 U.S.C. 
1362(1)). On January 27, 1994, the U.S. District Court for the Northern 
District of California in the case of Earth Island Institute v. Brown, 
No. C 88-1380 TEH, enjoined NMFS, effective immediately, from 
permitting any incidental taking of any northeastern offshore spotted 
dolphin in the ETP. The Court further ordered NMFS to issue regulations 
to prohibit the encirclement of any school of dolphins where an 
official U.S. or Inter-American Tropical Tuna Commission (IATTC) 
observer observes any northeastern offshore spotted dolphin in the 
school prior to the release of the net skiff. In compliance with the 
order, NMFS notified the U.S. tuna fleet on January 31, 1994, that sets 
on schools of dolphins containing any offshore spotted dolphins were 
prohibited, effective immediately, in the area north of 5 deg. N. lat., 
and east of 120 deg. W. long. In further compliance with provisions in 
the Court order to minimize the taking of northeastern offshore spotted 
dolphins, on February 4, 1994, NMFS extended the prohibition to 
prohibit the taking of all offshore spotted dolphins in the ETP (59 FR 
8417).
    The Court ordered the parties to devise a means to minimize the 
taking of dolphins belonging to the northeastern stock along the 
geographical boundary separating them from other stocks. Because the 
parties were unable to agree on the size of the geographic area that 
would be needed to minimize the taking, they resubmitted this issue to 
the Court and asked that it determine the geographic range where the 
prohibition would apply. NMFS also requested that the Court provide 
time for it to publish the regulations implementing the order after 
resolution of this issue.
    On August 24, 1994, with a subsequent technical correction on 
September 19, 1994, the Court amended its order of January 27, and 
specified that the prohibition applied only in the area from 40 deg. N. 
lat. to 5 deg. N. lat., and from 120 deg. W. long. to the coastline of 
Central and South America. This area had been described by experts in 
documents filed with the Court as the primary region for the 
northeastern stock of offshore spotted dolphins. The Court also ordered 
NMFS to issue final regulations within 30 days of the September 19 
order, prohibiting the encirclement of any school of dolphins within 
the boundary region where an official U.S. or IATTC observer observes 
any offshore spotted dolphin in the school prior to the release of the 
net skiff.
    NMFS issues this final rule to codify the Court orders. The orders 
and rule make it unlawful for any person or vessel subject to the 
jurisdiction of the United States intentionally to deploy a purse seine 
net on, or to encircle with a purse seine net, any school of dolphins 
in the area from 40 deg. N. lat. to 5 deg. N. lat., and from 120 deg. 
W. long. to the coastline of Central and South America in which any 
offshore spotted dolphin (Stenella attenuata) are observed in the 
school prior to the release of the net skiff. Consistent with the 
existing regulatory language prohibiting sets on eastern spinner and 
coastal spotted dolphins, the rule provides that any observation of any 
offshore spotted dolphin in a school of dolphins establishes the 
obligation not to deploy a net on, or to encircle with a net, the 
school. NMFS considers this prohibition on encircling northeastern 
offshore spotted dolphins as a U.S. marine mammal program element which 
a foreign nation must include in its marine mammal protection program 
in order for that program to be comparable to the U.S. program, as 
required by section 101(a)(2)(B) of the MMPA.
    This rule also makes a technical correction to 50 CFR 
216.24(d)(2)(i)(A)(2), where the scientific names for coastal spotted 
dolphin (Stenella attenuata) and northern tropical striped dolphin 
(Stenella coeruleoalba) were inadvertently transposed.

Classification

    This rule implements a Court order and does not involve the 
exercise of agency discretion and, therefore, under 5 U.S.C. 553(b)(B) 
good cause exists to waive the notice and comment requirements of the 
Administrative Procedure Act, as such procedures are unnecessary. 
Further, in that this rule implements a Court order already in effect, 
good cause exists under 5 U.S.C. 553(d)(3) to waive the 30-day delay in 
effective date. Because the revision of 216.24(d)(2)(i)(A)(2) only 
makes a technical correction, it is unnecessary to provide notice and 
public comment, or to delay for 30 days the effective date.
    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 recordkeeping requirements, 
Transportation.

    Dated: October 14, 1994.
Gary C. Matlock,
Program Management Officer, National Marine Fisheries Service.

    For reasons set out in the preamble, 50 CFR Part 216 is 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. Section 216.24 is amended by revising paragraphs (d)(2)(i)(A) 
(2) and (3) to read as follows:


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

* * * * *
    (d) * * *
    (2) * * *
    (i) * * *
    (A) * * *
    (2) The total number of mortalities of coastal spotted dolphin 
(Stenella attenuata) shall not exceed 250, and the total number of 
mortalities of northern tropical striped dolphin (Stenella 
coeruleoalba) shall not exceed 429, during any year; and
    (3) No purse seine net may be deployed on or used to encircle any 
school of dolphins in which any eastern spinner dolphin (Stenella 
longirostris), coastal spotted dolphin (Stenella attenuata), or, in the 
area from 40 deg. N. lat. to 5 deg. N. lat. and from 120 deg. W. long. 
to the coastline of Central and South America, any offshore spotted 
dolphin (Stenella attenuata), are observed in the school prior to the 
release of the net skiff.
* * * * *
[FR Doc. 94-25997 Filed 10-17-94; 3:41 pm]
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