[Federal Register Volume 60, Number 21 (Wednesday, February 1, 1995)]
[Rules and Regulations]
[Pages 6036-6039]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-2495]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 229
[Docket No. 950111010-5010-01; 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: Final rule.
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SUMMARY: The Marine Mammal Protection Act 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 amends the interim exemption
currently in effect under section 114 to make the prohibition on
intentional lethal takings fully applicable to all commercial fishing
operations. All other provisions of the interim exemption remain in
effect until superseded by further regulations.
[[Page 6037]] EFFECTIVE DATE: March 3, 1995.
ADDRESSES: Chief, Marine Mammal Division, Office of Protected
Resources, F/PR, National Marine Fisheries Service (NMFS), 1315 East-
West Highway, Silver Spring, MD 20910.
FOR FURTHER INFORMATION CONTACT: Dean Wilkinson, Office of Protected
Resources, 301-713-2322.
SUPPLEMENTARY INFORMATION:
Background
On December 8, 1994, at 59 FR 63324, NMFS proposed a rule to
prohibit the intentional lethal taking of marine mammals in the course
of commercial fishing operations. The proposed rule provided an
exception if such taking is imminently necessary in self-defense or to
save the life of another person. The notice of proposed rulemaking
requested comments and contained a discussion of the background for the
proposed rule. The background is not repeated here.
This rule implements section 118(a)(5) of the Marine Mammal
Protection Act (MMPA). It prohibits the intentional lethal take of
marine mammals in the course of commercial fishing operations. An
exception is provided for an intentional lethal take imminently
necessary in self-defense or to save the life of another person in
immediate danger. If a marine mammal is killed in self-defense or to
save the life of another person, a report must be made to the
appropriate NMFS Regional Office within 48 hours after the conclusion
of the fishing trip.
In the notice of proposed rulemaking, NMFS announced that it
intended to make January 1, 1995, the effective date for the final
rule. In order to allow time to notify fishers, however, the effective
date is delayed until 30 days after the date of publication in the
Federal Register.
Comments and Responses
Comments were received from the U.S. Fish and Wildlife Service,
Carmel River Steelhead Association, the Center for Marine Conservation,
Earth Island Institute, the Humane Society of the United States, Maine
Aquaculture Association, Salmon for All, and 23 private individuals.
Fifteen commenters supported the proposed rule. Thirteen commenters
opposed the proposed rule. Two commenters neither supported nor opposed
the proposed rule. Specific comments are addressed below:
Comment: There is no compelling reason that this one provision of
the section 118 amendment should be adopted at this time. This action
is clearly in opposition to Congress' intent that the entire section
118 amendment be adopted collectively.
Response: There is nothing in the statutory language or in either
the House or Senate Reports (House Report 103-439 and Senate Report
103-220) that indicates that all of section 118 is to be implemented
simultaneously.
There is evidence that since the passage of the 1994 amendments to
the MMPA, the intentional lethal taking of marine mammals has occurred
at levels greater than historic levels. For example, one marine mammal
rehabilitation facility reports that 31 California sea lions were
admitted after being shot between May 1 and November 1, 1994. The same
facility admitted a total of 37 pinnipeds that had been shot in the 8-
year period prior to 1992. An acceleration in the rate of intentional
lethal takes over historic levels is contrary to the intent of Congress
to prohibit the intentional lethal take of marine mammals in the course
of commercial fishing.
In addition, there have been indications that allowing the
intentional lethal take of certain species may result in the
intentional lethal taking of other species whose intentional lethal
take is prohibited. Although it is not certain that fishers were
responsible, an event in March 1993 illustrates this problem. In a
relatively short period of time, 58 dead pinnipeds washed onto beaches
on the central Washington coast. Nine of the animals were Steller sea
lions. Of 34 animals that were fresh enough for examination, 32 had
been shot including eight of the nine Steller sea lions--three of which
were pregnant. The intentional lethal taking of Steller sea lions is
prohibited under the MMPA, and the species is listed as threatened
under the Endangered Species Act. It is possible that the similarity of
Steller sea lions to other pinniped species, whose intentional lethal
take is allowed, was responsible for individuals assuming that it was
legal to kill them.
Given the above, the availability of nonlethal means of deterring
marine mammals from gear and catch, and the fact that section 118(a)(5)
of the MMPA requires that NMFS implement the prohibition on intentional
lethal takes of marine mammals in connection with commercial fishing by
no later than September 30, 1995, implementation of the statutory
provision at this time is warranted.
Comment: The deadline for response to the proposed rule should be
extended to 40 days. Fifteen days provides little opportunity to
disseminate information to those who may be interested in commenting on
the rule.
Response: NMFS is implementing section 118(a)(5) of the MMPA. The
statutory language is explicit, and NMFS has no discretion as to the
substantive content of the rule. As indicated in the previous response,
there is reason to believe that intentional lethal takings of marine
mammals are occurring at levels above historic levels and that allowing
the intentional lethal take of some species may result in the taking of
threatened species. Given this, a 15-day comment period was deemed
sufficient.
Comments were received through day 27 from the date of the
publication of the notice of proposed rulemaking, and all comments
received were considered.
Comment: Several commenters opposed to the rule noted that,
particularly on the west coast, fishers had a significant amount of
their catch taken by pinnipeds. They also noted that populations of
harbor seals and California sea lions have increased substantially
since the passage of the MMPA and that natural predators such as bears,
wolves, and cougars are no longer present. Some commenters pointed out
that west coast salmonid runs have been seriously depleted, and that a
number of populations either have been listed under the Endangered
Species Act or are being considered for listing. The commenters
provided information that pinnipeds prey on such runs. Two commenters
provided documentation of the number of steelhead and coho in the
Monterey, CA area with scars and wounds that appeared to be caused by
marine mammals.
Response: As pointed out above, the statutory language does not
provide NMFS with the discretion to allow the intentional lethal take
of marine mammals in the course of commercial fishing operations other
than to protect human life. The rule does not affect the ability of
persons involved in such fisheries to use nonlethal deterrence methods.
Other provisions of the 1994 amendments to the MMPA address this
issues. Section 120(f) of the MMPA requires NMFS to prepare a report to
determine whether California sea lions and Pacific harbor seals are
having a significant negative impact on the recovery of salmonid
stocks. Although NMFS has no discretion in this rulemaking, the
information submitted on this issue will be provided to the individuals
drafting this report.
Further, sections 120(a) through (d) of the MMPA provide a
procedure whereby a state may apply to NMFS to authorize intentional
lethal take of individually identifiable pinnipeds [[Page 6038]] which
are having a significant negative impact on the decline or recovery of
salmonid stocks that have been listed under the Endangered Species Act
or are approaching threatened or endangered species status. If
authority to intentionally lethally take individually identifiable
pinnipeds is granted, section 120(c)(4) requires that the taking be
performed by Federal or state agencies, or by qualified individuals
under contract to such agencies. However, it does not provide NMFS with
the discretion to authorize intentional lethal taking in the course of
commercial fishing operations.
Comment: Marine mammals that have learned to raid nets for their
food can be extremely aggressive. Protecting oneself from threatening
marine mammal behavior should not place the fisherman or woman in
violation of the law.
Response: The rule contains an exception to the prohibition on
intentional lethal takes for circumstances when the killing of a marine
mammal is imminently necessary in self-defense or to save the life of
another person in immediate danger. If a marine mammal is taken under
such circumstances, the individual involved is required to report the
taking to the appropriate NMFS Regional Office within 48 hours of the
conclusion of the fishing trip.
Comment: It should be noted in the preamble to the rule that the
section 101(c) exception allowing intentional lethal take to protect
human life also provides the Secretary of Commerce (and for species
under the jurisdiction of the Department of the Interior, the Secretary
of the Interior) the authority to seize and dispose of any carcass.
Response: As part of the implementation of the 1994 amendments to
the MMPA , NMFS intends to propose specific regulations to cover the
section 101(c) exception. Those regulations will incorporate the
provision allowing, but not requiring, the Secretary to seize and
dispose of any carcass. As the commenter noted, this provision also
applies to commercial fishing operations, and the point is well taken.
Because of the nature of fisheries, such animals may never come into
the possession of a fisher or may be discarded before a fishing trip is
completed. In instances when a carcass is retained, the Secretary has
statutory authority to confiscate and dispose of it. Because such
instances are likely to be uncommon, language will not be added to this
regulation, but will appear in the more generic regulation implementing
the section 101(c) exception for intentional lethal taking to protect
human safety.
Comment: The draft stock assessment sets potential biological
removal (PBR) for western north Atlantic harbor seals at 864 animals.
The small number of animals currently taken by intentional means to
protect aquaculture facilities will have a negligible impact on the
stock.
Response: With the exception of the section 101(c) provision noted
above, the MMPA states that the intentional lethal taking of marine
mammals in the course of commercial fishing operations is prohibited.
Therefore, the question of whether the lethal removal of a specified
number of animals is beneath the PBR level is irrelevant. The concept
of PBR was developed in order to assist in managing incidental, i.e.,
unintentional, taking of marine mammals in commercial fisheries.
Comment: The Gulf of Maine Pinniped-Fishery Interaction Task Force
mandated under section 120(h) has not been set up yet. The Task Force
might recommend intentional lethal take as an option. In addition, the
guidelines for nonlethal deterrence are not yet in effect.
Response: NMFS has made initial contacts concerning members of the
Task Force, and the Task Force should be formalized by the time that
this rule becomes effective. Nevertheless, the Task Force report is not
due until the end of April 1996. Even if the Task Force were to
recommend that intentional lethal takes be allowed, a statutory change
would be required before such a recommendation could be implemented.
Similarly, the draft guidelines on nonlethal take should be available
soon. Although the guidelines are not yet in place, the section 114
interim exemption and its authorization for nonlethal deterrence remain
valid. Until deterrence guidelines are issued, participants in
commercial fisheries may continue to use all nonlethal deterrence
methods that are currently used.
Comment: The promulgation of this regulation will result in the
loss of millions of dollars to the salmon aquaculture industry because
of harbor seal predation on salmon in net pens. NMFS cannot justify the
statement that the proposed rule ``would not have a significant impact
on a substantial numbers of small entities.''
Response: Since 1989, owners of salmon net pens have been subject
to the requirement contained in the 1988 amendments to the MMPA (Pub.
L. 100-711) that all lethal takes--whether intentional or
unintentional--be reported to NMFS within 10 days. During that period,
only three intentional lethal takes have been reported by participants
in the salmon aquaculture industry--one harbor seal in 1991 and two
gray seals in 1993. While NMFS recognizes that there may have been a
degree of underreporting, there is no documentation of a level of
interaction between harbor seals and net pens of the magnitude that
would be necessary to support the argument that prohibition of
intentional lethal takes would result in the loss of millions of
dollars to this fishery.
Comment: Two comments were received concerning gear practices. The
comments dealt with issues more properly in the area of fishery
management than the proposed rule. One commenter stated that an
exception to the prohibition should be extended to hook and line
fishermen, and fishing with nets should be totally banned. The second
stated that as a recreational fisherman, he had been unable to catch
fish because trawlers and net gears had devastated populations of such
fish as haddock, cod, and yellowtail flounder. The commenter stated
that there should be a partial ban on commercial fishing during certain
times of the year.
Response: The statutory language does not permit an exception for
specific types of fisheries. The comments on specific gear types are
not within the scope of this rulemaking and should more properly be
addressed to the Fishery Management Councils responsible for regulating
specific fisheries.
Classification
This final rule has been determined to be not significant for
purposes of E.O. 12866. Because NMFS is unable to consider alternatives
to the statutory mandate, the preparation of an environmental
assessment under the National Environmental Policy Act is not required,
and none has been prepared.
List of Subjects in 50 CFR Part 229
Administrative practice and procedure, Confidential business
information, Fisheries, Marine mammals, Reporting and recordkeeping
requirements.
Dated: January 27, 1995.
Gary Matlock,
Program Management Officer, National Marine Fisheries Service.
For the reasons set out in the preamble, 50 CFR part 229 is amended
as follows: [[Page 6039]]
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 paragraph (k) is revised 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) 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. 95-2495 Filed 1-31-95; 8:45 am]
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