[Federal Register Volume 59, Number 235 (Thursday, December 8, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-30309]


[[Page Unknown]]

[Federal Register: December 8, 1994]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 229

[Docket No. 941109-4309; I.D. 103194B]

 

Prohibition on the Intentional Lethal Take of Marine Mammals in 
Commercial Fishing Operations

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

ACTION: Proposed rule; request for comments.

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SUMMARY: The Marine Mammal Protection Act (MMPA) Amendments of 1994 
established in section 118 a new management regime for the taking of 
marine mammals incidental to commercial fishing operations. Among other 
things, section 118 prohibits the intentional lethal taking of marine 
mammals in the course of commercial fishing operations. In partial 
implementation of section 118, NMFS proposes to amend the interim 
exemption currently in effect under section 114 to make the prohibition 
on intentional lethal takings fully applicable to all commercial 
fishing vessels, effective January 1, 1995. All other provisions of the 
interim exemption would remain in effect until superseded by further 
regulations.

DATES: Comments must be received on or before December 23, 1994.

ADDRESSES: Send comments to Chief, Marine Mammal Division, Office of 
Protected Resources, F/PR, National Marine Fisheries Service (NMFS), 
1315 East-West Highway, Silver Spring, MD 20910. (Attn: Comments on 
Proposed Prohibition on Intentional Lethal Taking.)

FOR FURTHER INFORMATION CONTACT: Dean Wilkinson, Office of Protected 
Resources, 301-713-2322.

SUPPLEMENTARY INFORMATION:

Background

    Prior to the passage of 1988 amendments to the MMPA (Pub. L. 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. Such permits generally 
allowed the intentional lethal take of marine mammals from nondepleted 
stocks in order to protect catch and gear or to protect a human from 
personal injury, provided nonlethal means of deterring marine mammals 
were attempted and were unsuccessful.
    The 1988 amendments to the MMPA (Pub. L. 100-711) exempted, on an 
interim basis, commercial fishers who comply with certain registration 
and reporting requirements from the general prohibition on taking 
marine mammals. The purpose of this exemption was to have NMFS 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 established in section 
118 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(a)(1) of the MMPA to extend the interim 
exemption until September 1, 1995, or until superseded by regulations 
prescribed under section 118, whichever is earlier.
    Section 118(a)(5) of the amended MMPA, effective April 30, 1994, 
provides: [e]xcept as provided in section 101(c) [of the MMPA, as 
amended], the intentional lethal take of any marine mammal in the 
course of commercial fishing operations is prohibited.
    The section 101(c) exception specifies that a taking of a marine 
mammal is not a violation of the MMPA, if such taking is imminently 
necessary in self-defense or to save the life of another person in 
immediate danger.
    This rule would amend 50 CFR part 229 to revise the prohibited take 
language of the regulations implementing and governing the interim 
exemption to include all intentional lethal takes, except when such 
taking is imminently necessary in self-defense or to save the life of a 
person in immediate danger. It would require that a report be made to 
the appropriate NMFS Regional Office within 48 hours, if a marine 
mammal is killed in self-defense or in order to save the life of 
another person. Reflecting this change, the rule also would remove 
language setting forth conditions under which a marine mammal could be 
lethally taken and changes applicable reporting requirements to reflect 
this change.
    NMFS has reason to believe that most commercial fishers do not 
intentionally kill marine mammals. Nevertheless, recent evidence shows 
that a number of marine mammals are being intentionally lethally killed 
in the course of commercial fishing operations in certain fisheries. 
Records from one marine mammal rehabilitation facility indicate that 31 
California sea lions were admitted after being shot between May 1 and 
November 1, 1994. Because full implementation of the section 118 regime 
would not result in a mechanism for the allowance of intentional lethal 
takes, there is no compelling reason to allow the intentional lethal 
taking of marine mammals to continue.

Classification

    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 this rule, if adopted as 
proposed, would not have a significant economic impact on a substantial 
number of small entities. There are low cost means of deterring marine 
mammals from stealing a fisher's catch without having to use 
intentionally lethal means.
    This proposed rule has been determined to be not significant for 
purposes of E.O. 12866.
    This rule does not contain a collection-of-information requirement 
for purposes of the Paperwork Reduction Act.

List of Subjects in 50 CFR Part 229

    Administrative practice and procedure, Confidential business 
information, Fisheries, Marine mammals, Reporting and recordkeeping 
requirements.

    Dated: December 5, 1994.
Charles Karnella,
Acting Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
    For the reasons set out in the preamble, it is proposed that 50 CFR 
part 229 be amended as follows:

PART 229--INTERIM EXEMPTION FOR COMMERCIAL FISHERIES UNDER THE 
MARINE MAMMAL PROTECTION ACT OF 1972

    1. The authority citation for part 229 continues to read as 
follows:

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

    2. Section 229.2 is amended by revising paragraph (k) to read as 
follows:


Sec. 229.2  Definitions.

* * * * *
    (k) Incidental take means the intentional nonlethal or accidental 
taking of a marine mammal in the course of commercial fishing 
operations.
* * * * *
    3. Section 229.4 is amended by revising paragraphs (b)(2) 
introductory text, (b)(2)(i)(B), and by adding paragraph (b)(2)(iii) to 
read as follows:


Sec. 229.4  Prohibitions.

* * * * *
    (b) * * *
    (2) Under this part 229, except as provided under paragraph 
(b)(2(iii) of this section, it is unlawful to:
    (i)(A) * * *
    (B) Intentionally lethally take any marine mammal.
* * * * *
    (iii) If a taking under paragraph (b)(2)(i)(A) of this section or 
paragraph (b)(2)(i)(B) of this section is imminently necessary in self-
defense or to save the life of a person in immediate danger, it is not 
an unlawful activity, provided that the taking is reported to the 
appropriate Regional Office of the National Marine Fisheries Service 
within 48 hours after the end of the fishing trip during which the 
taking occurs.
* * * * *
    4. Section 229.6 is amended by revising the third sentence of 
paragraph (c)(2)(i), removing paragraph (c)(6), and redesignating 
paragraphs (c)(7) through (c)(10) as paragraphs (c)(6) through (c)(9), 
respectively to read as follows:


Sec. 229.6  Issuance of Exemption Certificates.

* * * * *
    (c) * * *
    (2) * * *
    (i) * * * Marine mammal report/log forms require information on: 
The fishery, fishing effort, 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; type of interaction and any injury to the marine mammal; a 
description of any intentional takes (i.e., efforts to deter animals by 
nonlethal means to protect gear or catch or efforts to protect human 
life involving either lethal or nonlethal means); and any loss of fish 
or gear caused by marine mammals. * * *
* * * * *
    5. Section 229.7 is amended by revising the last sentence of 
paragraph (b), removing paragraph (e), and redesignating paragraph (f) 
as paragraph (e), respectively to read as follows:


Sec. 229.7  Requirements for Category III fisheries.

* * * * *
    (b) * * * The report must include information on: The fishery, 
fishing effort, 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 all lethal incidental takes; a 
description of any intentional lethal take to protect human life; and 
any loss of fish or gear caused by marine mammals.
* * * * *

[FR Doc. 94-30309 Filed 12-7-94; 8:45 am]
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